Hate Crime and Public Order (Scotland) Bill

The Convener (Adam Tomkins)

Good morning, and welcome to the 25th meeting of the Justice Committee in 2020. We have no apologies this morning.

Agenda item 1 is stage 1 consideration of the Hate Crime and Public Order (Scotland) Bill. I welcome the Cabinet Secretary for Justice, Humza Yousaf, and his various officials, some of whom are joining us in the room and some of whom are joining us remotely online. You are all very welcome.

Before we get under way, I want to explain that it is very unusual to start a stage 1 inquiry with evidence from the responsible minister—normally, we take evidence from the responsible minister at the end. In this inquiry, we will do that, but the cabinet secretary indicated to Parliament earlier in the autumn that he wished to propose amendments to aspects of the bill at stage 2, and the committee wants to understand exactly what the implications of those amendments are before we get under way with our stage 1 evidence from external stakeholders. That is why the cabinet secretary will appear at the beginning of the inquiry and at the end of it.

Cabinet secretary, do you want to make any opening remarks before we get under way?

The Cabinet Secretary for Justice (Humza Yousaf)

Yes, I will make some brief opening remarks.

As you say, convener, it is unusual for a cabinet secretary or minister to attend at this stage, so I thank the committee for being so accommodating and allowing me to give evidence on the bill. I will talk about the proposed amendments that I announced to Parliament on 23 September, but it is worth giving the briefest of overviews of the purpose of the bill and its background.

Effective hate crime legislation makes it very clear to victims, perpetrators and wider society that offences that are motivated by prejudice are completely unacceptable and will be treated seriously. I am committed to taking this opportunity to shape the legislation so that it is fit for the 21st century and, most importantly, affords sufficient protections to those who need it but at the same time continues to give people reassurance around their important freedoms of expression.

Legislation on hate crime has evolved over time in a quite fragmented manner, and it is not as user-friendly as it could or should be. The bill provides for the modernisation, consolidation and extension of hate crime legislation in Scotland and is very much based on the independent review by Lord Bracadale and further consultation following his recommendations.

In short, the bill seeks to modernise and extend hate crime legislation by including age as an additional characteristic; creating new offences relating to stirring up hatred that will apply in relation to each of the characteristics; updating the definition of transgender identity, including removing the term “intersexuality” and creating a separate category for variation in sex characteristics; and including a power to enable a characteristic of sex to be added to the list of characteristics at a later date, if for example that is recommended by the working group on misogynistic harassment.

The group that I have just mentioned will be established to consider how the justice system currently deals with misogyny. The group will specifically consider whether a stand-alone offence to tackle misogynistic behaviour is required in our criminal law and whether the characteristic of sex is required in the hate crime legislative framework. The appointment of the working group chair will reflect the expertise that those important issues demand and will ensure that gender equality, human rights and of course the law are given equal weighting.

A participative approach will be integral to that work, and I am committed to ensuring that membership of the working group reflects a wide breadth of opinion, diversity, knowledge and experience that reflects the complexity of the issue at hand. Appointment arrangements for a chair are currently in train. I will update Parliament on that and the group’s terms of reference very shortly.

In relation to the amendments that I proposed on 23 September, I do not propose to make adjustments to the threshold for the stirring up of racial hatred offences, which have been part of our criminal law in the whole of the United Kingdom for decades, in the form that is provided for in the bill.

The decision on the proposed change to the operation of the new stirring-up offences is not one that was arrived at lightly. I listened to and discussed the matter with a number of stakeholders, politicians and political parties, with the aim of seeking to strike a more appropriate balance between respecting freedoms of expression while protecting people who are impacted by those who deliberately set out to stir up hatred.

I am pleased that a broad range of organisations, including the Faculty of Advocates, the Law Society of Scotland, the Humanist Society of Scotland and the Catholic Church, have welcomed the change whereby only the intent to stir up hatred will apply to the new offences and the “likely” limb will be removed.

That change will affect consideration of ancillary issues, such as the operation of the “reasonable” defence and areas of the freedom of expression. Those provisions were included in the bill in the context of offences that could be committed where hatred was “likely” to be stirred up. As the bill undergoes the scrutiny process, I will engage with Parliament and stakeholders to consider whether it would benefit from further changes.

I reassure members that I will seek common ground, consensus and, where necessary, compromise. Since the bill was introduced, I have met more than 50 organisations from a broad range of sectors to discuss its implications. It is, of course, for the Parliament and primarily the Justice Committee to scrutinise the bill and to decide exactly where the appropriate balance lies between effectively tackling hate crime to protect the people who are targeted from its insidious effects and protecting people’s legitimate right to freedom of expression. I believe that those two aims are not mutually exclusive.

I am happy to take questions.

The Convener

Thank you very much, cabinet secretary. I want to start where you left off. As the minister who is responsible for the bill, how do you think that Parliament should seek to legislate in an area that touches on the fundamental human right of freedom of expression? I do not want to put words into your mouth, but would you agree or disagree with the proposition that rights such as the right to freedom of speech should be interpreted and applied generously, and that restrictions to the exercise of those rights should be legislated for narrowly and only where that is shown to be necessary in the public interest?

Humza Yousaf

Broadly, I agree with the statement that you make. It is important to remember—I know that you are very aware of this, and I am certain that members of the committee are, too—that we will look to ensure that any bill that we pass is compatible with the European convention on human rights. A variety of articles of the ECHR are important; in particular, the article on freedom of expression is vitally important.

I agree with your general premise, which is why decisions that are taken in this area are not taken lightly. I think that the changes that I proposed on 23 September get that balance just about right.

The Convener

Therefore, where there is reasonable doubt about whether the balance has been appropriately struck or inappropriately struck—with regard to not just the Hate Crime and Public Order (Scotland) Bill but any bill that touches on fundamental human rights such as that of free speech—Parliament should err on the side of giving protection to the right rather than curtailing it, because the right should be interpreted generously and the restriction on it should be applied only where that is necessary.

Humza Yousaf

We should also remember that people have the right to live their lives without having such prejudice or hatred directed towards them. I speak as somebody who has often been the target and the victim of hatred, whether racial or religious. The criminal law must protect people from such hatred.

Notwithstanding all the disagreements that we have around the bill, I think that most of us will agree with the principle that hate crime legislation is required. Therefore, in my opinion, it is necessary to balance rights. We must balance people’s right to freedom of speech with the right of people who are often the target of hatred to be protected from that hatred. As a society and as a Parliament, we must get that balance right. I do not think that those two things are mutually exclusive. I think that we can ensure that we get the balance between them right.

The Convener

I absolutely agree that the two are not mutually exclusive, but it does not follow from that that getting the balance right between them is easy—you are, of course, not implying that it is easy.

What is the Government’s view, and your view, on how far the right to freedom of speech extends? In your opening remarks, you mentioned the Faculty of Advocates and the Law Society of Scotland. In its evidence, the Law Society cites with approval the well-known dictum from Lord Justice Sedley that

“Freedom only to speak inoffensively is not worth having”.

In its evidence, the Faculty of Advocates cites the equally well-known dictum from Lord Rodger, who said that freedom of speech applies to

“‘information’ or ‘ideas’ that ... offend, shock or disturb.”

Do you accept that the right to freedom of speech in European human rights law extends to the right to offend?

Humza Yousaf

Yes. That is why there is not a word in the bill that deals with offence. People should have the right to be offensive and to express controversial views. The bill does not intend to deal with people who have offensive views.

The stirring-up offences, which are the most controversial part of the bill, seek to criminalise behaviour that is threatening or offensive and that also is intended to stir up hatred. That applies to the new offences; I have to be clear that the stirring up of racial hatred offence continues to have the threshold that has been in place for the past 34 years. For the new offences, however, the behaviour must be threatening or abusive with the intent of stirring up hatred. That does not deal with offence.

It is helpful to note that, since the announcement that I made on 23 September, the bodies that the convener has quoted have said that they support the proposed change. The Faculty of Advocates said:

“The Scottish Government has listened to”

the concern about freedom of expression,

“which was voiced by many others, and proposes to amend the Bill so that a crime will be committed only where the stirring up of hatred is intentional. Faculty welcomes that amendment.”

The Law Society said:

“We are pleased ... that the Cabinet Secretary is actively seeking common ground and compromise to ensure Scots Law is fit for the 21^st century and there are sufficient protections for those most vulnerable to prejudice in our society. We welcome proposals to strengthen the Bill in relation to the new ‘stirring up’ offence to include the requirement of intention.”

The Convener

Even with your amendments, is it not still the case that the bill goes further than Lord Bracadale recommended? Section 3(1)(a)(i) provides that

“A person commits an offence if ... the person ... behaves in a threatening, abusive or insulting manner”

with regard to stirring up racial hatred. Lord Bracadale recommended that we omit the word “insulting”, and that recommendation was supported by the Faculty of Advocates and the Law Society of Scotland. Why is the Scottish Government not listening to that advice?

Humza Yousaf

It is interesting that the one group that you have not mentioned is, of course, those who are most impacted by the stirring up of racial hatred. I live by the principle of listening to such groups when making legislation. I have been a minister in the Government for eight years, and I have always thought that the famous principle, “That which is about us without us is not for us”, is a very important one to live by. I suspect that the convener agrees with that.

Therefore, although I put a great degree of weight behind the reflections, advice and expertise of the Faculty of Advocates and the Law Society, I will be very interested to hear the committee’s evidence from groups that represent those who are most targeted by racial stirring-up offences and by racial hatred. I do not know for sure which groups will give evidence—that is a decision for the committee. However, those groups will tell you that they do not want any perceived dilution or weakening of the current stirring up of racial hatred offence, which has existed for 34 years with, as far as I can see—feel free to challenge this—barely any controversy whatsoever.

I reflected on Lord Bracadale’s recommendation, but—I am not suggesting that the convener is doing this—those who are experts, particularly in the drafting of legislation, should not and must not discount the real life experiences of the victims of such crimes.

The Convener

Absolutely. In the course of our stage 1 inquiry, the committee will, of course, hear from a broad range of witnesses who will encapsulate and cover all that and much more.

This will be the last question from me, cabinet secretary. You have already explained that the right to freedom of speech includes the right to express yourself offensively. You have also said that you think that it should be a criminal offence for somebody to speak in a manner that is insulting.

There is not much of a difference between being offensive and being insulting. Can you explain what would be captured by the criminalisation of insulting speech in section 3 of the bill that would not be captured if we took “insulting” out and made it a criminal offence only to speak in a threatening or abusive way?

When we consider the scope of the criminal law in this Parliament, we must be careful not to undercriminalise. That is the point that you are making. We want to make sure that all of the harms and wrongs that we want to capture by the criminal law are captured by the words on the page. However, we also want to guard against overcriminalisation, and we must make sure that we are not inadvertently making criminal that which we think we ought to be free to do.

Can you give an example of a wrong or a harm that is criminalised by that word “insulting” in section 3 and that needs to be criminalised and would not be criminalised if we made the threshold, or the ingredients of the offence, “threatening and abusive” behaviour?

Humza Yousaf

You are again referring only to the stirring-up offence in relation to race. It is important to again reiterate that none of the other thresholds include the word “insulting”. It is only included for the issue of race. It is included not only in Scotland: the English and Welsh legislation for the racial stirring-up offence also includes “insulting”, as does the Northern Irish offence and, for interest, the Republic of Ireland offence. It is not a new approach: it has existed for 34 years with barely any controversy.

I could flip the question and ask where you think that it would be acceptable for somebody to insult someone else due to their race, and to do so with the intent or likelihood of stirring up hatred, which is the crucial second part of the test. Where do you think that the criminal sanction should not apply?

It may be, as you imply, that there is not much difference between somebody being abusive and being insulting. I suspect that this is why Lord Bracadale, in his recommendations, asked us to consider removing “insulting”. However, there could be examples where somebody could racially insult another person by referring to racial stereotypes. We must remember that there must also be the intent to stir or the likelihood of stirring up hatred. If it does not do so, it is not an offence under the legislation.

The Convener

You talk about the offence having been on the statute book for 34 years. That is true, but there are important differences between this offence in the Public Order Act 1986, which is in force now, and the version of the offence that appears in the bill. A number of members want to ask you about those differences.

Rona Mackay (Strathkelvin and Bearsden) (SNP)

Good morning, cabinet secretary. I was going to ask you to expand on the reasons for not including the stirring up of racial hatred in the bill, but that has been covered. How do you respond to concerns that not including it in the bill creates a hierarchy of characteristics, so that, if a hate crime involved race and another characteristic, it would be set apart?

Humza Yousaf

That is a fair question. I suspect that we will come back to that and that people will keep asking it. If I remember correctly, the Law Society of Scotland was particularly exercised about the issue. It is worthy of consideration and discussion. However, there is a justification for treating the offence of racial hatred differently from offences relating to the other characteristics. There is no getting round the fact that we are treating it differently and that there is a different threshold in the law that we are proposing.

One justification for that is to do with the statistics. Crown Office and Procurator Fiscal Service data shows that, in 2019-20, there were 3,038 racial stirring-up offences; 660 offences relating to religion; 1,486 relating to sexual orientation; 387 relating to disability; and 41 relating to transgender people. Therefore, with regard to the aggravator, offences relating to racial hatred are the most common by far—more so than all the others combined. Those offences make up about 54 or 55 per cent of the total. The most recently published police figures are starker still, showing that about two thirds of hate crimes relate to racial hatred.

The approach can also be justified on the basis of the nature and severity of the crimes and the fact that structural racism has existed for years and continues to exist. For all those reasons, a justification can be made for treating racial hatred slightly differently from other offences.

Rona Mackay

The figures that you have given demonstrate the need not to dilute the law for that offence, which would probably have been the effect, had it been included.

Humza Yousaf

There is potential for a perception that the law would be diluted, which is a serious concern for those affected. I should have said to the convener, as I will say to Rona Mackay, that our minds are not closed on considerations relating to that offence. However, it will be crucial to listen to the voices of those who are impacted the most.

The Convener

Annabelle Ewing has questions on that area.

Annabelle Ewing (Cowdenbeath) (SNP)

On the section on stirring up hatred, I want to touch on the issue of the defence of reasonable behaviour. The cabinet secretary will be aware that there have been calls for that to be fleshed out in the bill to provide clarity. What are the cabinet secretary’s thoughts on that?

Humza Yousaf

I thought long and hard about the reasonableness defence before proposing changes to the bill. Now that I have proposed those changes, I am thinking about it even harder, because there are some compelling arguments around the reasonableness defence.

One proponent of considering a non-exhaustive list of factors to which the judiciary should have regard in relation to a reasonableness defence is Dr Andrew Tickell, for whom I have a great deal of time. I have spoken to him about the bill on a couple of occasions recently. Now that we are moving to intent only, I struggle with the idea of a non-exhaustive list of factors. Putting aside the offence of stirring up racial hatred for a second, with the new offences of stirring up hatred, which will be based on intent only, I find it difficult to envisage a situation where behaviour could be threatening or abusive and with the intent of stirring up hatred, and yet be justified as reasonable. If somebody can work out a scenario where that would be the case, I am all ears. I have yet to find one, but there are people who are, no doubt, smarter than me who are considering the bill. I would be interested to hear examples of such a scenario.

I am still considering the reasonableness defence. I am all ears, and I have a lot of sympathy for those who think that it is worth having a non-exhaustive list. However, as a point of practice or operation, I cannot envisage behaviour that would be threatening or abusive with the intent of stirring up hatred and yet be reasonable.

Annabelle Ewing

I am aware that the reasonableness test exists without exhaustive or non-exhaustive definitions in statute. However, we are considering this particular bill.

I have a further question on the broad area of defences. The issue of private dwelling house conversations has attracted a number of comments under freedom of expression concerns. What further thought might the cabinet secretary give to that specific issue? He will be aware of concerns that have been raised that what people say in their homes should not be the subject of engagement with criminal law. That is one view that is being put across, although I imagine that there are others. It would be interesting to hear the cabinet secretary’s thoughts.

Humza Yousaf

As always, I will caveat this by saying that we will listen to the evidence as it comes forward. I met with the Christian Institute, which is one of the organisations that is at the forefront of asking the Government to consider a dwelling defence. It argues that the dwelling defence exists in the 1986 act and that its removal would weaken protections. That argument somewhat goes to what the convener said about erring on the side of caution when it comes to freedom of speech.

My concern with the dwelling defence is on a point of principle and of policy. With the new stirring-up offences that are being created, as a Parliament or even as a society, are we comfortable with giving a defence in law to somebody whose behaviour is threatening or abusive and that is intentionally stirring up hatred against, for example, Muslims? Are we saying that that is justified because it was in the home? The reading of the dwelling defence is that it applies so long as such behaviours are not witnessed by those outside the dwelling. It does not say that the dwelling cannot have X number of people inside it.

The effect that threatening or abusive behaviour with the intent of stirring up hatred could have on other family members—children in particular—is insidious. Are we saying that, as a society, we are comfortable with no criminal sanction being applied to people because that is being done in the confines of their dwelling, whereas if they stepped on to the street outside their house, that would be a criminal offence? I am not convinced as a point of policy or principle that I agree with that defence, but I will continue to keep an open mind.

The Convener

I will ask a follow-up question on that issue. The bill is called the Hate Crime and Public Order (Scotland) Bill. It replicates aspects of offences that currently exist in the Public Order Act 1986. How can a person commit an offence against public order in private?

Humza Yousaf

When it comes to the public order element, that largely refers to the abolition of the blasphemy law. However, I will take your question as read. The point of stirring-up offences and the reason why we need them is that the effect of that behaviour is, or could be, to motivate people to carry out acts of hatred, which include violence, assault and so on against people who belong to particular communities. Now, you may—

The Convener

All of those would themselves be criminal offences.

Humza Yousaf

Let me finish the point.

If a person behaves with the intent of stirring up religious hatred against, for example, Jews, in their private dwelling with their children in the room or friends that they have invited over for a dinner party, and those people then act on that stirring up of hatred and commit offences, you are right that they would then be prosecuted by the law, but should the person who had the intent of stirring up hatred and who behaved in a threatening or abusive way not be culpable? Should that person not receive some sort of criminal sanction?

Your answer to that might be no, because that was done in a private dwelling. My answer is that the criminal law should look at that stirring up of hatred because the person had the intent to do so. We should remember that intent must be proven beyond reasonable doubt and if that is the case—if it was the person’s intention to stir up hatred against Jews to ensure that those who listened to their words went out and stirred up hatred and committed offences against Jews—that deserves criminal sanction.

The Convener

Liam Kerr wants to ask a supplementary question before I bring in James Kelly.

Liam Kerr (North East Scotland) (Con)

I want to follow up Annabelle Ewing’s question about the reasonableness defence. The question was interesting, and I listened carefully to your answer, cabinet secretary. The burden is on the accused to bring forward enough evidence to avail themselves of that defence. The Sheriffs Association and the Crown Office have said that clarification on the extent of that burden is needed. Notwithstanding your point about the introduction of intent, is that clarity still required to enable the defence to know what it will have to adduce?

Humza Yousaf

That is a reasonable point to make, and that is why I am not dismissing the idea of a non-exhaustive list of factors. There are two things that we have to consider in relation to whether that should be in explanatory notes or something else. First, with the “likely” limb removed from the new stirring-up offences, do we need that? Is that still required? Secondly, are we aware of the potential unintended consequences?

Let us assume that we move to stirring-up offences that involve intent only and we give a list of factors that have to be considered, one of which is journalistic expression, which is commonly asked about. We would not want to give the likes of Tommy Robinson a defence by saying that he is a blogger who writes for the Patriot Times, so his reasonable defence is that he is a journalist. It would not be as simple as that, of course—contextual factors and so on would be looked at—but now that the “likely” limb is to be removed, we have to consider whether a non-exhaustive list of factors that sheriffs predominantly should have regard to is needed and ensure that there are no unintended consequences. However, Liam Kerr has made a reasonable point that is worth consideration.

James Kelly (Glasgow) (Lab)

I want to come to the issue of legal clarity. We all accept that hate crime legislation is important and that it is important that it offers robust protections. For it to work effectively, members of the public, legal practitioners and members of the police force must understand what the end product means and what is an offence under it. It is fair to say that the bill as drafted is not clear enough with regard to those categories. How will the amendments that you will lodge address issues to do with a lack of legal clarity? For example, the Scottish Police Federation thought that its members were being put in a position in which, if someone made a complaint about what they regarded as an offensive remark that was stirring up hatred, they would have to make a judgment, and it did not think that the bill as drafted was clear enough. How will your amendments address those concerns?

Humza Yousaf

Obviously, I read carefully what the Scottish Police Federation had to say about the bill as introduced, and I spoke to it after my amendments had been proposed. I do not speak for the federation, which the committee might call to give evidence, but it would be fair to say that it thought that the proposed change was welcome. The proposal certainly provided some reassurance to the federation. I am sure that it will have other questions about the bill and potentially maybe even other concerns about it but, without putting words into its mouth, I spoke to it after the proposed change was announced, and it was certainly reassured to an extent.

Most of the concern about uncertainty in relation to the bill was focused on the “likely” limb of the stirring-up offences. People were unsure about whether their behaviours would inadvertently be captured by the bill as introduced. Although I could give a multitude of reasons why I do not think that that would have been the case, that was clearly the perception. Furthermore, I do not want there to be any self-censorship. I do not want people to be unsure and start censoring their behaviour, particularly those in the artistic field, or journalists.

You said that there is not legal clarity. The proposed change to intent only will provide that clarity. At the very least, there is a triple lock in relation to the new offences: they must be proven beyond reasonable doubt; the behaviour must be threatening or abusive; and, importantly, the behaviour must have the intent behind it—there must be mens rea. If we maintain the reasonableness defence, you could potentially argue that there is a quadruple lock. If you want to include the freedom of expression provisions for certain stirring-up offences, you could even say that there is a quintuple lock. I hope that removing the “likely” limb will give the most reassurance and clarity to people who were concerned previously.

Liam McArthur (Orkney Islands) (LD)

I want to return to some of the issues that the convener raised about freedom of expression. You will be aware of the concerns that have been expressed and the comparisons that have been made with the protections under the law in England and Wales. You have also made comparisons between those protections and what is contained in the bill. It seems to be that those protections are more narrowly drawn and generic. I would be interested to know whether you have looked at the protections as they apply under English and Welsh law and whether they can be applied to the bill.

I note that the minutes of various meetings that you have had on the bill have been published, including the discussion that you, your officials and I had, in which I recall you referring to potential legal difficulties in applying freedom of expression protections. Will you outline in a bit more detail what those difficulties are? That might be helpful for the committee.

Humza Yousaf

That is a really good set of questions from Liam McArthur. As I mentioned to the convener, we all know that our freedoms are protected under the ECHR, so whatever is in the bill is supplementary to that. I think that that is the way to look at this, first and foremost. However, that is an important issue, because people are looking for additional reassurances when it comes to freedom of expression, particularly in a bill of this nature.

I am considering the breadth and depth of the provisions on freedom of expression. What do I mean by that? On the breadth, a number of people have argued that the freedom of expression provisions should not be limited to the two areas to which they are currently limited but should cover other protected characteristics. I am open to that suggestion, which I am considering.

On depth, could the current freedom of expression provisions go further? The member referenced the legislation in England and Wales. On the freedom of expression on religion, for example, the protection under the Public Order Act 1986 includes

“expressions of antipathy, dislike, ridicule, insult or abuse”.

Again, I can confirm that I am looking into that, perhaps with the exception of abuse because, as you know, the offences in Scotland would be for threatening or abusive behaviour, whereas some of the stirring up hatred offences in England cover only threatening behaviour—it would not make sense to have freedom of expression to cover abuse if one of our thresholds is threatening or abusive behaviour. With that exception, I am certainly happy to consider expressions of antipathy, ridicule, dislike and insult for the current freedom of expression provisions.

On legal difficulties, I do not want to stray into the legal advice that we take, so I will make a general point. We have to be aware of some of the concerns that might be expressed were we to have a generic freedom of expression provision. Would that be specific enough to give people the reassurances that they need or they require?

We are looking at all those issues in the round and I anticipate some further change to the freedom of expression sections, which will probably come at stage 2 from members or possibly from the Government. It is an area that is under active consideration.

The Convener

I know that a lot of members want to ask about statutory aggravation and the hate crime characteristics, which we will come to but, before we move on to other areas of the bill and leave the stirring-up offences, I will ask a further question about the difference between the way in which the bill seeks to legislate against stirring-up offences and the way in which the Public Order Act 1986 already does that. You have said many times here, in the chamber and elsewhere that all you are doing is putting on a fresh statutory footing offences that have been in existence for 34 years.

However, there is a critical difference between the way in which the stirring-up offences are legislated for in section 18 of the Public Order Act 1986 and the way in which you are proposing to do it in section 3 of the bill. The 1986 act makes it plain that, when someone does not intend to stir up racial hatred, they are not guilty of an offence if they were “not aware” that their behaviour might be threatening or abusive. There is no equivalent to that provision in the bill and, as far as I recall, there is no reference to it in the policy memorandum that accompanies the bill—forgive me if I have got that wrong. Why do you not want to have an equivalent to that provision in the bill?

Humza Yousaf

I am more than happy to look at that but, again, it might come back to a question of whether that would be covered by a reasonableness defence—that is, whether it would be a reasonable defence if somebody stated that they did not know that their behaviour was threatening or abusive in relation to the racial stirring-up offence, where there is still a likelihood limb. If we think that there is a gap there in relation to how the offences translate from the 1986 act—there are differences and I have already touched on the dwelling defence and why I think that that difference is justified—let us look at that with an open mind.

The Convener

James Kelly wants to ask a question about section 4, which is on theatres and plays, and then we will move to other areas of the bill.

James Kelly

You will be aware that the Law Society of Scotland offered criticism of section 4 in relation to plays and performances being captured by the bill. Plays and performances by their very nature can, as you acknowledged earlier, be provocative, and people attending those performances are aware of that, so why did you feel that it was necessary to introduce that section and do you feel that it leads to further confusion?

Humza Yousaf

I will turn to my officials behind me, because I am sure that there is a section on performances and plays in the 1986 act in relation to the offence of stirring up racial hatred—Philip Lamont indicates to me that that is correct. We are considering similar provisions for the new stirring-up offences, but that provision is not particularly new, because it exists in the 1986 act.

The Convener

I am sorry to interrupt, but the provision in the 1986 act is in a quite different form from the one in your bill.

Humza Yousaf

Sure, and I will come to that in a second. I understand why there has been some questioning of why that is in the bill; in fact, I met a group of organisations that represent artists and performers and so on, and their concern was largely around the likelihood limb. They wanted to understand better the rationale for having a section of the bill that targeted performances and plays. The reason why it is in the bill is for issues of culpability. For example, if a director of a play who himself or herself does not speak the words that are threatening or abusive with the intent of stirring up religious hatred—this is included in the bill, of course—they should very much be culpable of that offence, because they had a part in it. Even though they may not have spoken those words or acted that behaviour, it is right that they are culpable.

If a performer is playing a racist character or a character exhibiting religious hatred, that behaviour is not likely to be threatening or abusive with the intention of stirring up hatred. That has been suggested, but that is not the case. Both parts of the two-part test must be met for someone to be prosecuted for that offence. That is very important.

Although the convener was right to interject to say that there are differences between how the bill and how the Public Order Act 1986 are written, in the past 34 years there has been a multitude of performances, plays and broadcasts that have included racist characters and, to my knowledge—I am happy to be challenged on this—there has not been a prosecution that has caused concern in the artistic community.

When I proposed these changes, I was pleased that Scottish PEN, which raised some of the concerns that James Kelly raises, said:

“Scottish PEN welcomes today’s announcement … that key changes will be made to the proposed Hate Crime and Public Order (Scotland) Bill, including a requirement that intention to stir up hatred is proven beyond a reasonable doubt before an offence can be prosecuted.”

I hope that that provides an element of reassurance.

James Kelly

I am not totally convinced, to be honest. Can you give an example in recent Scottish history of a play or performance that caused an issue that would be captured under this provision and for which people would have been legitimately prosecuted?

Humza Yousaf

No. I do not think that people put on plays often with that intention. However, where there is an intention by a far-right group to put on a performance for a limited audience of their supporters, where the behaviour is threatening or abusive with the intention of stirring up religious hatred, that should result in prosecution, not just of the performer but, for example, of the director, who did not speak any words but who directed the play that was threatening or abusive with the intention of stirring up religious hatred. If that was done, it would be important that those involved were prosecuted. The commission of the offence must involve the consent or connivance on the part of the person or be attributable to neglect on the part of such a person. There is a fairly strong argument from those in the performance sector with regard to that second limb. Now that the offences are intent only, is there a need for the inclusion of “attributable to neglect”. I am happy to look again at that to see whether it is needed. To flip the question around, if a director consented or connived to put on a play that was threatening or abusive, with the intent—remember that that is the crucial part—to stir up hatred against those with a disability, would James Kelly suggest that they should avoid culpability? My argument is that they should not.

James Kelly

I am trying to understand your motivation for introducing section 4. You have not been able to cite an example in recent Scottish history of a performance that would be covered by the section to demonstrate why we require its inclusion.

Humza Yousaf

Should we not have the reassurance that, if there were such a case, those involved would be culpable? My answer would be yes. The protections that exist for somebody such as me, because of my race, should also apply to people in relation to the other protected characteristics.

James Kelly

I think that the issue will continue to play out, convener.

The Convener

Cabinet secretary, you indicated that you are open minded about the structure and wording of defences elsewhere in the bill. One of the key differences between section 4 of the bill and the existing provision covering theatre performances, which is section 20 of the Public Order Act 1986, is that the latter contains a series of defences, none of which has made it into your bill. Are you open minded about including some defences to the section 4 offence, or is there a reason for not including defences?

Humza Yousaf

In short, I would be open minded about doing that. My concern, which is similar to the one that I referenced to Liam Kerr, is about unintended consequences, particularly when we move to the intent-only offence.

If it is okay, I will bring in Philip Lamont to talk in a bit more detail about the differences between the 1986 act and this bill. However, in short, the answer to your question is yes—there is no close-mindedness here. Even when I object to particular defences, such as the dwelling defence, when it comes to the policy principle I am still keeping an open mind.

The Convener

Before your official speaks, I will specify what I meant. In section 20 of the 1986 act, it is a defence if the person

“did not know and had no reason to suspect”

that the

“offending words or behaviour were threatening or abusive”

or if he or she

“had no reason to suspect that the circumstances in which the performance would be given would be such that racial hatred would be likely to be stirred up.”

Those seem to me to be reasonable defences, and they are not in your bill. That must have been a conscious decision, because section 4 is essentially the transcription of a current offence from section 20 of the 1986 act into the bill, and yet all of those defences are missing. There must be a reason why you thought that those defences were unnecessary.

Humza Yousaf

Yes, but—again, I go back to my previous point—that might well be what is potentially covered by the reasonableness defence. I will double-check that with my officials. Any court or sheriff would take contextual factors into account; they would take into account any of those factors as they relate to a person’s intent or otherwise.

The Convener

The reasonableness defence is not in this section; the reasonableness defence pertains to offences in sections 3 and 5 but not those in section 4. It is a big omission.

Humza Yousaf

What I am saying now is similar to what I said in my answer to Liam Kerr, which is that any sheriff or judge would take a range of contextual factors into account. If your argument is that those contextual factors should be in the bill, as they were in the 1986 act, I am not close minded about that. However, as a matter of principle, I think that any sheriff or judge would consider the contextual factors.

I am unsure whether Philip Lamont wants to add anything further.

Philip Lamont (Scottish Government)

I do not have too much to add. Section 4 says that culpability applies only if an offence is also committed under section 3. Therefore, a person—most likely the performer—would have to commit a section 3 offence to open the door to a section 4 one, and there is a reasonableness defence in section 3. However, as the cabinet secretary said, it is right that we are open minded about considering whether something further is needed. That could be done either with some prescriptive defences or by applying the reasonableness defence, which we think captures the type of defences that are in the 1986 act already in a general way, more directly to section 4.

The Convener

That is a very helpful clarification.

Part 1 of the bill is on statutory aggravation. John Finnie has the opening question on that.

John Finnie (Highlands and Islands) (Green)

Good morning, cabinet secretary and officials. Cabinet secretary, you mentioned the relationship between the extensive piece of work that Lord Bracadale did and the bill that we have in front of us to scrutinise. I would like to ask about the statutory hate crime of aggravation.

Lord Bracadale recommended that statutory aggravation should continue to be the core method for prosecuting hate crime in Scotland. Do you agree, and are you confident that the proposed expansion of stirring-up offences will not undermine that?

Humza Yousaf

It is undoubtedly going to be the case that, regardless of the expansion of hatred offences, statutory aggravators will still be the way in which the courts will choose to prosecute crimes involving hatred. That will not change with the offence of stirring up racial hatred, which has a lower threshold than the other stirring-up offences that we have proposed. That offence has been used to prosecute a handful of times during the past seven or eight years in comparison with the statutory aggravator, which has been added to an offence thousands of times during the same time period. I do not think that a particular difference will be made, because the new stirring-up offences have a high legal threshold to meet of proving beyond reasonable doubt that someone was being threatening or abusive with the intent of stirring up hatred. I suspect that most prosecutions will still happen via statutory aggravators.

John Finnie

I will move to another point. The bill says that, when an offence is proven to have been aggravated by prejudice, the court must make clear what difference the aggravation has made to the sentence that is imposed. Lord Bracadale recommended removing that requirement, and the senators of the College of Justice have described it as “a somewhat artificial exercise”. It is self-evident that transparency in sentencing is important, but will that provision help to achieve it?

Humza Yousaf

To go back to an earlier point, I disagreed with Lord Bracadale’s recommendation because it is important to engage with victims of hate crimes. Organisations that represent victims broadly—not just racial equality groups, although they support the Government’s proposed action—feel that it is important for victims’ sake to know the additionality to the sentence from the statutory aggravator. That is an important factor for the victim. Having listened to evidence from victims organisations and various equality groups, we decided not to proceed with Lord Bracadale’s recommendation.

John Finnie

Are you gilding things a little? Surely any judicial sentencing has due regard to the aggravator, as it is a factor that has been considered. That is perhaps why the senators of the College of Justice describe the proposed statement as “a somewhat artificial exercise”.

Humza Yousaf

That is an opinion and a perspective but, as I said, we must not forget the perspective of victims, which is that they want to know the additionality to the sentence. Victims have vociferously challenged the perspective that you present. I suspect that the committee will hear from a number of organisations that represent victims of hate crimes and I would be interested to hear their responses to the question.

The Convener

Does Shona Robison have questions on the same area?

Shona Robison (Dundee City East) (SNP)

I will come on to terminology, but I have a question on John Finnie’s previous point. Is the provision intended to achieve more consistency and transparency about aggravation being a factor in a judgment? Some judges explain that an aggravating factor existed, but is there inconsistency in explanations? Will the bill achieve more consistent explanations for victims about what the aggravation meant for sentencing?

Humza Yousaf

I certainly hope that the bill will have that effect. I have spoken to a number of people who have been victims of crimes that were aggravated by hatred—I have been one of those people and my case went to court—and they have often said that they want such clarity and consistency. The bill says that the court must

“state on conviction … that the offence is aggravated by prejudice, and … record the conviction in a way that shows … that the offence is aggravated by prejudice, and … take the aggravation into account in determining the appropriate sentence, and … state … where the sentence in respect of the offence is different from that which the court would have imposed if the offence were not so aggravated”.

That will provide the consistency and clarity that victims want.

Shona Robison

That is helpful—thank you. You have previously expressed a willingness to reconsider some of the terminology that is used in the bill, including the phrase “evinces malice and ill-will”. What is your current thinking on that?

Humza Yousaf

That is challenging, because words and terminology matter, particularly in law. Although I completely respect the view that “evinces malice and ill-will” is not the most easily understood terminology, there was a bit of a concern that if we moved to adopt Lord Bracadale’s recommendation on the matter, that could well weaken the threshold slightly.

Notwithstanding that, I am open minded. A hybrid that could perhaps be considered is the wording “demonstrates malice and ill-will towards the victim”. If that wording were used, the “malice and ill-will” part of the provision would not be lost, but the term “evinces”—which, I suspect, is probably not well understood by most people—would be replaced.

The issue is under active consideration at the moment. I have not come to a final judgment, and I will be interested in the oral evidence that the committee takes on the matter.

Shona Robison

Thank you for that. My view is that, where possible, we should seek to modernise language and terminology, not least to aid the public’s understanding. Therefore, I think that a change of the kind that you mentioned would be welcome.

The Convener

Annabelle, if you want to ask any further questions on the statutory hate crime aggravation, please feel free to do so, but I know that you also have questions on the subject of hate crime characteristics.

Annabelle Ewing

Thank you, convener. I have a brief follow-up question on the issue that Shona Robison raised. As a lawyer, I know that we like arcane language, so I take her point.

In that regard, I had understood that the Crown Office and Procurator Fiscal Service believed that it would be possible to adopt Lord Bracadale’s suggested formulation, or something like it, without really changing the test that would be applied, and I note that you indicated, cabinet secretary, that you would engage further on the matter. What stage have you reached in the process of further engagement on the issue?

Humza Yousaf

Those conversations are continuing. The Crown’s thoughts on the matter are, of course, pivotal to our consideration of it. I am committed to looking at the issue. As I said, there is probably a strong argument for the word “evinces” to be replaced with language that is better understood. I am keen to test whether, if we were to move away from the use of the phrase “malice and ill-will”, that would have any practical legal effect—in particular, I would not want there to be a weakening of part 1 of the bill. I am seeking such assurances as we speak.

Annabelle Ewing

I thank the cabinet secretary for that answer.

I will move on to the next part of our discussion. My question concerns the non-inclusion in the bill as it stands of the characteristic of sex. I understand that, in addition to Lord Bracadale’s recommendation that the characteristic of sex be included in the bill, support for that position has been expressed by, among others, the Convention of Scottish Local Authorities, the Faculty of Advocates, Police Scotland and the organisation For Women Scotland.

It would be helpful if you could clarify the rationale for the approach that you have taken thus far on the matter, despite the fact that many others have expressed the clear view that that is not the optimal approach.

Humza Yousaf

That is a good and very important question. I am sympathetic to listening to the arguments on the issue, and I have done so. I engaged with a number—but not all—of the organisations that Annabelle Ewing mentioned in the run-up to the bill’s introduction.

When Lord Bracadale made his recommendations, I was keen to speak to the largest national organisations that represent women. Those organisations are well known to the committee, and I suspect that they will be invited at least to supplement their written evidence in some way.

I think that I am correct in saying that Engender, Zero Tolerance, Scottish Women’s Aid and Rape Crisis Scotland all oppose the introduction of a gender or sex aggravator. I am happy to correct the record if I am wrong. Engender in particular has led the campaign against it, producing a briefing and publishing a report on its reasons, which I think that it distributed to every MSP. From its perspective, there are some compelling arguments not to introduce a sex aggravator, particularly as that does not take note of the gendered nature of violence against women. It is worried, as is Scottish Women’s Aid, that a sex aggravator could be used by perpetrators of domestic abuse to further cause challenge and difficulty for victims of domestic abuse.

There is a range of reasons—and, as I said, there is a whole report on those—why a number of national organisations do not want a sex or gender aggravator to be introduced. I decided to meet some organisations that represent and work with women at the coalface at a local level. Again, we can provide details of those organisations. We met on a couple of occasions, and it is fair to say that the views of a number of them—not all of them—align with the view of Engender and those other organisations.

It is a live debate, and that is why the misogynistic harassment working group will be very important. It should look at the issue. An enabling power is a good idea because, after detailed consideration, if a sex aggravator is wanted and seen as needed as part of the solution to tackle the issue, it allows for that to be brought forward. However, it is not clear cut that a sex aggravator would have the effect that some people think that it would have.

Annabelle Ewing

Yes, there is always an interesting debate to be had on most worthwhile things in life. However, I am worried. We have an opportunity in the bill, but I do not know where going down a side route will take us, time-wise. It seems that it will take us some years down the line to another position. That is surely one of the factors in the balance, in addition to all the things that the cabinet secretary has said and, indeed, to all the opposing views that other organisations have raised. Presumably, we just need to ensure that we do not leave any gaps.

Humza Yousaf

I agree entirely with Annabelle Ewing’s summation of the issue. The order-making power leaves open the ability to add sex as an aggravator. If, after consideration of the oral evidence from a range of groups, members lodged amendments to include an aggravator on sex, the Government will keep an open mind, as we will on all these matters.

Rona Mackay

On the stand-alone offence of misogynistic harassment, you said in the chamber that the proposed working group, which you have mentioned today, would be set up in October. We are coming towards the end of October, so where are we with that?

Humza Yousaf

In truth, I would have liked to have been a bit further down the line. Undoubtedly, the challenges of Covid-19 impacted on the work, even before my statement to Parliament. However, the process of the appointment of a chair is under way, which is positive. Once the chair is appointed, it will be hugely important to work through the remit with her—or with that individual. In broad terms, there is a real need for the group to address the lack of administrative data that might provide quite detailed information to fully understand women’s experiences of misogynistic harassment.

As a second phase, the group then has to look at the legal context and potential gaps in the existing law. That includes the issue that we have just discussed about the potential for a sex aggravator and whether a stand-alone offence of misogynistic harassment could fit within a legal framework and be an effective tool.

Those are the broad areas of work. I hope to be able to update the Parliament in relatively short order on the appointment of a chair, and we will then work with the chair on the remit. I should say that the membership of the working group should be very broad and include representatives of women’s organisations, academics and those who have an expertise in law—our legal stakeholders will be incredibly important as well.

Rona Mackay

What timescale will you give the group to produce its remit? Are there any deadlines?

Humza Yousaf

I have to be careful on that. There are a number of pressures on us, but the appointment of the chair is under way, so I hope that, within a matter of weeks, I will be able to confirm to Parliament the appointment of the chair. The remit will flow from that, as will the membership. Although we have a broad idea of the membership, we obviously want the chair’s input on that.

Rona Mackay

Is there any end date for the work that the group will carry out? When will it come to conclusions?

Humza Yousaf

It is important to include the chair in that. The work plan will be one of the first things that the group considers. I do not want the plan to be dictated by me and the Government; it should be set by the chair and the members of the group. It is important that they are comfortable with what we are asking them to do and the phases of work that they will do. Therefore, I cannot give you an exact timetable, as it is for the working group to come forward with that.

The Convener

On the timing of that group’s work, we are set to take evidence on the issue on 24 November. Is there any prospect of the group reporting and finalising its views before then?

Humza Yousaf

No. It would be unrealistic to suggest that. Given all the work that I have just described, the lack of administrative data and the need to consider the legal context, I would not expect the group to do that. It will take some months to work through the issues in considering a stand-alone offence. The reason why we have introduced an order-making power is so that, if the bill is passed, it would be possible to add the sex aggravator at any time, if the working group and, ultimately, parliamentarians were convinced that it was needed. That would be done through an affirmative order.

The Convener

So it is more likely that the committee’s evidence on the issue will feed into the work of the group rather than the other way round?

Humza Yousaf

Potentially. I am certain that the group will have an interest in the committee’s deliberations and the evidence that it takes.

The Convener

Fulton MacGregor has questions in the same area.

Fulton MacGregor (Coatbridge and Chryston) (SNP)

I want to ask about the hate crime characteristic of race, which covers

“race, colour, nationality ... or ethnic or national origins”.

Will you confirm that the definition includes some groups that might also be covered by the characteristic of religion? Will you expand on your thinking in that area of the hate crime characteristics?

Humza Yousaf

Some religious groups, or groups that we tend to think of as religious groups, also describe themselves as groups that would be covered under the characteristic of race. For example, I think that the Sikh community was pushing to be recognised under the race characteristic in the census. If that is not correct, I am of course happy to be corrected on that. I think that the issue also applies to the Jewish community, which, under the current rules in the census, is categorised as a race, and that community absolutely has its reasons for that.

It is for the court and not for me to decide which statutory aggravator applies in the circumstances. I see no reason for such groups to be concerned that the aggravator as drafted would not be able to include crimes against them, but ultimately it is for the court to determine that.

Fulton MacGregor

Thank you for that clarification. I will move on a wee bit from your answer. As you will be aware, we have had suggestions for adding to the proposed hate crime characteristics to cover Gypsy Travellers, asylum seekers and refugees. What are your views on that? To what extent might they be covered by the characteristic of race?

Humza Yousaf

The feeling from Lord Bracadale was that the current definition of race covers a number of groups. I know that some groups—such as those in the Gypsy Traveller community—are concerned about whether they are covered, but Lord Bracadale’s view is that they are. We are reflecting further on the issue, but I think that such groups are covered by the fairly broad definition of race.

Fulton MacGregor

I have no further questions. I thank the cabinet secretary for intending to attend this Thursday’s meeting of the cross-party group on racial equality, which I chair. The topic will be the bill. The cabinet secretary mentioned the importance of speaking to stakeholders, including people who have been impacted by hate crime. The cross-party group has a large membership and its members are eager to speak to the cabinet secretary about such issues and how they have been impacted. I thank him for taking the time to do that.

The Convener

I always welcome a plug for a cross-party group’s forthcoming meeting, especially when it is on such an important issue.

Liam McArthur

I return to the sex aggravator, which the convener, Annabelle Ewing and others referred to. We all understood and welcomed the announcement of the misogynistic harassment working group, but the concern is that time is passing, which leaves us in an incredibly difficult position. As the convener said, the risk is that the process will be reversed and that we will feed into the group’s deliberations rather than it feeding into our deliberations. The bill contains an order-making power, but the concern is that, even under the affirmative procedure, the Parliament would have inadequate time to scrutinise what would probably be sensitive and detailed legislation. Is the Government taking that concern as seriously as it should?

Humza Yousaf

I completely understand the concerns that you articulate. With the establishment of the working group, when you see its chair and membership, I think that we will all agree that they have expertise in issues in the legal landscape that affect women.

If the bill is passed with the amendments that I propose, it will contain the power to make an order under the affirmative procedure, as you said. Parliament would not consider such an affirmative statutory instrument blind; it would consider it with the weight of the evidence that the working group submitted on whether the instrument should be made. I hope that such weighty consideration would happen, whenever that might be—I respect your point that the committee might feed into the group’s considerations.

I take on board the point, which is why the order-making power is important. There is nothing to prevent a member lodging a stage 2 amendment to not include an order-making power but a sex aggravator. A member would be free to do that after considering the evidence from women’s organisations, and the Government would consider such an amendment. As I have said about other issues, I am not closed-minded on that.

Liam McArthur

I do not know who the members and chair of the working group are likely to be, but I do not dispute for a second that it will have a broad base of relevant expertise in the area, which is reassuring. However, ultimately, it is for the committee and the Parliament to make and scrutinise legislative proposals, and it feels as though our ability to do that is somewhat compromised by the process that we are now locked into. We will see what happens with the evidence, but it is important to put on record my concern, which I suspect other members share to a greater or lesser extent.

Humza Yousaf

I am happy to reflect on that concern.

The Convener

A number of us might also have a general concern about the creation of criminal offences by a secondary instrument. There is a very strong presumption that the scope of the criminal law should be a question of primary legislation and not secondary instruments. However, these are all issues that we will consider. Liam Kerr wants to come in on that before we go back to John Finnie.

Liam Kerr

I want to pick up on exactly that point. I find that to be a particularly interesting area, as I know that the cabinet secretary does. Much earlier, Rona Mackay asked about the provisions on stirring up hatred having the potential to create a hierarchy of characteristics. It might be argued that that is what part 1 of the bill would do around sex. By omitting a sex aggravator, you would almost establish a hierarchy of characteristics that enjoyed legal protections over those that did not. Do you see that as a risk? What is your view on the Faculty of Advocates’ suggestion that it is more appropriate for MSPs to look at that area than a working group?

Humza Yousaf

There is nothing stopping MSPs looking at the area in detail, if the Justice Committee or individual MSPs want to do that and urge the Government to bring forward the affirmative SSI to create a sex aggravator. We can think about ways in which MSPs might be able to participate or take evidence from the likes of the misogynistic harassment working group.

I am interested in the addition of an aggravator and the perception of a hierarchy, in the sense that I can understand why the omission of a sex aggravator in the list of characteristics could be concerning to a number of women. I have heard that view expressed since the introduction of the bill. The oral evidence that the committee will take and the various publications from the likes of Engender and others are important because they contain a level of nuance and detail that a number of us would find interesting, particularly in relation to the fact that a sex aggravator would, to all intents and purposes, apply to men and women. Therefore, a number of stakeholders have concerns, which we all respect, that even if a prosecution did not take place, such an aggravator could be used to make claims about or accusations against victims of domestic abuse. There is concern about that, and other concerns have been raised.

I take Liam Kerr’s point about the perception of omission, which is why I commit to the Government keeping an open mind on how that progresses. However, it is hugely important that evidence is taken on that, and that the views of those who have a genuine concern about a sex aggravator are listened to. I know that the committee will do that.

The Convener

John Finnie wants to ask about racially aggravated harrassment, which is another aspect of hate crime legislation that we have not yet touched on.

John Finnie

Cabinet secretary, Lord Bracadale recommended repealing the offence of racially aggravated harassment, and the Scottish Government did not accept that recommendation. If such an offence is thought to be necessary in relation to race, why is it not considered to be necessary for other characteristics?

Humza Yousaf

I take the point that Lord Bracadale made about the repeal of section 50A of the 1995 act. My initial consideration was that we should repeal that section, for all the reasons that Lord Bracadale gave. I changed my mind about that because of strong representations from a variety of racial equality groups.

Lord Bracadale and I attended a conference organised by Black and Ethnic Minorities Infrastructure in Scotland. A number of racial equality groups were there. It is fair to say that at that meeting, there were strong representations about why those groups would not want to see section 50A repealed. At the very least, they saw it as weakening the current protections for racial minorities.

That goes back to the point that I made earlier to Rona Mackay. If we look at the numbers of those who are affected by racial hate crime, there is a justification for treating racial hatred slightly differently to how we treat hatred of people with other protected characteristics. There will be a live debate on that as we continue considering the bill and I will keep a close ear and eye on it.

John Finnie

Given that the bill consolidates and tidies up other legislation, is this an opportunity to address the concerns of BEMIS and others? I share those concerns and would not want any dilution, but does the bill not end up looking a bit cluttered?

Humza Yousaf

I did not get the last part of what you said.

John Finnie

I wonder if not repealing the offence of racially aggravated harassment leaves the legislation looking a bit cluttered and confused.

Humza Yousaf

The argument could be made for that. As you rightly say, the bill looks to consolidate. Hate crime is quite fragmented around the legal landscape at the moment. There could be an argument that retaining section 50A would mean that, in some regards, there is still an element of fragmentation.

The counter to that is the argument that I just talked about. The racial equality groups that are most affected by racial hatred, and those who represent them, would argue that that does not outweigh their concerns that there could be a weakening of protection for them.

John Finnie

I am struggling a bit here, cabinet secretary. Why not reflect those concerns in this brand new legislation that is going to be all-encompassing?

Humza Yousaf

We could look to do that. I would be interested to see ways in which we could perhaps subsume section 50A into the legislation. At the moment, a number of racial equality groups argue that we should leave section 50A as it is. If there is an argument to subsume it within the legislation, I will take that away and consider it.

The Convener

John Finnie’s line of questioning makes me think of a different but related question. The bill does not just seek to consolidate legislation; it will significantly extend the scope of criminal law in Scotland. The extension of scope can be seen by contrasting section 50A with some of the provisions in the bill that we have already talked about in depth.

The offence of racially aggravated harassment in section 50A can be prosecuted if the person who is alleged to have committed it

“acts in a manner which is racially aggravated and which causes, or is intended to cause, a person alarm or distress.”

That sort of language—fear, alarm or distress—is a common feature of public order legislation and has been for decades. It is another one of those common features of past and present public order legislation that is to be omitted from the bill. Do you accept that, although there is an element of consolidation in the bill, it does much more than merely consolidate existing offences? It extends the scope of the criminal law so that, for example, it will criminalise threatening and abusive behaviour where no evidence exists of either fear, alarm or distress being caused. I am not saying that it is inappropriate to criminalise that behaviour; I am asking whether you accept that that is what the bill seeks to do, which is not a consolidation of existing offences but a significant extension of the scope of criminal law in Scotland.

Humza Yousaf

The bill extends the protections that are afforded to some members of society from being victims of hatred to other groups in society, who also are often the victims of hatred. As I have often said in the chamber—I might have repeated it already today—I am afforded certain protections because of my race, as you are because of yours, but those protections are not afforded to people who are the victims of hatred or of its stirring up because of their religion and other characteristics that the bill proposes. I consider the bill as an extension of existing protections, as opposed to the way in which you have characterised it.

You mentioned “threatening or abusive behaviour”—I think that you actually said “threatening and abusive” but, trust me, I know that one for good reason. The bill ties that behaviour into intent, so the offence is not just about threatening or abusive behaviour: one also has to be able to demonstrate beyond reasonable doubt that there was intent.

There is already a 2010 offence of threatening or abusive behaviour and we can discuss it if you wish. The bill wants to ensure that there is intent behind the new stirring-up offences—for the racial stirring-up offence, I accept that there must be “intent or likelihood”. Those are important contextual factors in that discussion.

The Convener

The cabinet secretary is absolutely right. There is an existing offence in the Criminal Justice and Licensing (Scotland) Act 2010 of behaving in a threatening or abusive manner, but a critical ingredient thereof is that the criminalised behaviour is likely to cause a reasonable person to suffer fear or alarm.

That particular element of the offence is in the statute book now, but is not in the bill that is in front of us today. I conclude therefore that the bill does not merely consolidate existing offences—although it does do that—but also significantly extends the scope of the criminal law by, as the cabinet secretary puts it, offering protections to a range of characteristics that the scope does not currently protect.

Humza Yousaf

I do not want to dance on the head of a pin, but you use the words “significantly extends” and it depends in what context you mean “significantly”. We know that racial hatred is by far the largest category of hatred, that the racial stirring-up offence has a lower legal threshold than the other stirring-up offences, and that it has been prosecuted in Scottish courts fewer than 10 times in the past seven or eight years.

If that is the effect of the racial stirring-up offence—with its lower legal threshold—do we really think that, by extending protections to other characteristics, the bill will “significantly extend” the scope of the law, with relation to the frequency and volume of prosecutions or its effect on members of the public? That is a question for debate.

With regard to fear and alarm, if the argument is that the bill affords a particular protection to individuals, the inclusion of intent—only for the new stirring-up offences—probably provides people with even more significant safeguards.

The Convener

Liam Kerr wants to ask wrap-up questions, which will be the last questions unless somebody else catches my eye.

Liam Kerr

I would like to go back to James Kelly’s earlier question about the performance of plays. I am musing on this question: if I produce or record something in England or Wales, which is then published, recorded or reproduced in Scotland, can I be convicted of an offence under the current bill, and if so, how will you prosecute me?

Humza Yousaf

Do you mean under the part 2 offence? If a stirring-up offence is committed in Scotland—for example, if a leaflet that a person was communicating or distributing was produced by the English Defence League, in England, but was distributed in Scotland—the offence would still have taken place if that behaviour was threatening or abusive with the intent of stirring up religious hatred. Philip Lamont might want to add to that.

Philip Lamont

It would depend on the facts and circumstances. However, it is possible that offences might have been committed in both jurisdictions, in which case prosecution authorities would need to speak to each other. However, it would depend on the exact facts, circumstances and behaviour that gave rise to the offence.

Liam Kerr

Quite clearly. My next question relates to James Kelly’s question about plays. Presumably, I could write a play in England that is then staged in Scotland. If it does not constitute any form of hate crime in England but would do so in Scotland, would I be prosecuted and, if so, how could I be if I never set foot in the jurisdiction?

Humza Yousaf

The bill says that culpability involves “consent or connivance” in the commission of the offence, and there is also a provision about neglect. I am happy to look at the bill again in that regard. In the situation that you describe, if it could be proven that the commission of the offence involved the director’s consent, that might well be a matter that prosecuting authorities would consider.

Liam Kerr

I have been musing on that issue since James Kelly raised it. Perhaps we could speak more about it at another time. Has there been any conversation between the jurisdictions about the interaction between the differing legal systems and how they would interplay?

Humza Yousaf

As you would imagine, Police Scotland regularly deals with the issue of cross-border crime and issues where law might be different in our separate jurisdictions and legal systems. I have not had any particular discussion with my UK Government counterparts on that issue. We have been dealing with a variety of other issues, but not that one, because it is very much an issue for the Scottish legal system to deal with. My officials might be able to give you an update on conversations that they might have had with UK Government officials.

Philip Lamont

In England and Wales, there are stirring up hatred offences for three characteristics, but there is only one in Scotland. Therefore, the scenario that you mention is relevant, but is already the case and has been since offences involving stirring up religious hatred and stirring up hatred on the basis of sexual orientation were brought in in England and Wales in the 2000s.

Liam Kerr

I understand that. I was curious about whether there had been conversations about an interplay between any new legislation here and what is in place elsewhere.

I will move on. I want to ask you specifically about the financial memorandum. I have seen several examples—as all members probably have—of bills’ financial memorandums that, no doubt inadvertently, have not accounted for all of the costs. You will have seen reports today that the Scottish Courts and Tribunals Service did not see the final draft of the bill and its financial memorandum until they were published, and that its officials have said that they were disappointed that they were not provided with sufficient opportunity to fully contribute. Why was that the case, and were there any other groups that, in hindsight, should have been consulted and have had input on the financial memorandum but were not?

Humza Yousaf

That is a reasonable question to ask on the back of the letter from the SCTS. I will point to a few things. First, I slightly disagree with the premise that there has not been consultation with the SCTS; there was a fair degree of consultation with it, and it would have seen the intention that the Government had for the bill way in advance of us drafting legislation, because of the review by Lord Bracadale, the consultation by the Government and also through official engagement. Although SCTS officials might not have seen the final product, with the i’s dotted and t’s crossed—it was right for us to introduce the bill so that Parliament would see it first—they would have been well aware of what the bill proposed.

I was surprised by the nature of the letter when we received it in the summer. However, on reading the concerns that were raised, my officials immediately picked up the phone to the SCTS—I speak to the SCTS every couple of weeks—and we are working through its concerns about implementation. During the committee’s evidence taking, I suspect that you will question the SCTS, and I hope that it will be able to confirm that good progress has been made in that regard.

Liam Kerr

The letter came in June and, at that time, the SCTS said that it will need to assess the costs, and that

“If these costs are significant, we are of the view that these could not be met from current budgets.”

You said that meetings were held around that time to address concerns. What were the conclusions? What if the bill is passed and the SCTS cannot meet the costs from current budgets?

Humza Yousaf

I have a couple of things to say about that. I hope that our further conversations since June have acted as reassurance to the SCTS about the way in which it interpreted the bill and the additional costs that it thought might be required, and that we have mitigated some of its concerns. The committee is of course free to ask the SCTS about that.

I have been a minister for eight years and taken numerous bills through Parliament, and I know that financial memorandums often need to be changed and tweaked, for example when amendments are passed at stage 2. We will keep it under regular consideration.

On the broader point, discussions about the SCTS budget are on-going, as members would expect. I recently had a meeting with the Cabinet Secretary for Finance, the Lord Advocate and the Lord President to discuss the finances of the SCTS, which is a matter that is kept under regular consideration.

Liam Kerr

I think that the other potential cost will be around policing. Presumably the training of 17,000-odd police officers will need to be done, for example. Given what the SCTS has said, the obvious question to ask is whether the police were consulted. If so, was that in a different or similar way to the consultation with the SCTS? Would the police service say the same thing as the SCTS said in its letter?

Perhaps a more important question at this stage is, what planning has been done with the police to ensure not only that they can enforce the provisions but that they are sufficiently resourced to, for example, take officers away from the front line for training?

Humza Yousaf

That is not an unreasonable question to ask. I have just been looking through the financial memorandum, various parts of which talk about Police Scotland, which we obviously took a view from. Police Scotland is referenced throughout the financial memorandum and the costs are reflective of the conversations that we had with it. In paragraph 86, for example, there is discussion of the training element of the costs. It says:

“The training will be undertaken by officers in-house and will have a notional cost”.

That has been done in conversation with Police Scotland. I think that Liam Kerr has raised the issue before, perhaps in the chamber.

Other policing stakeholders such as the Scottish Police Federation might take a different view and say that more training will be required and that the Government needs to consider X, Y and Z. From my recent conversation with representatives of the SPF on the bill—I hope that I am not putting words in their mouths; they can speak for themselves—I think that moving to intent only for stirring-up offences has given the SPF a degree of reassurance about the training element. However, I am sure that the SPF will continue to push on that and our conversations will continue.

The long and short of it is that conversations with the police have taken place, which is why they are referenced in the financial memorandum. Those conversations will continue. I will leave it to the committee to question Police Scotland on its views on the financial memorandum and to hear its expansive thoughts on the bill in general.

The Convener

Thank you for your time this morning, cabinet secretary. We have kept you here for a long time, which is a reflection of the importance of the bill that you have introduced to Parliament and the seriousness with which we take our scrutiny of it. We look forward to taking evidence from a range of stakeholders, after which we will have you back before we publish our report at the end of stage 1.

We will suspend for five minutes to allow for a changeover of witnesses.

The Convener

I am delighted to welcome to the committee Lord Bracadale, who I understand wants to make a few opening remarks before we ask questions.

Rt Hon The Lord Bracadale QC

Yes. Thank you, convener. I welcome this opportunity to meet the committee. In my introductory remarks, I shall say a little bit about the format of my review and some of the principles that underpinned my approach.

In 2017, Annabelle Ewing asked me to conduct a review, which I completed in 2018. I think that it is important to bear in mind the difference between a review of this kind and a project that is undertaken by the Scottish Law Commission. The commission has the assistance of a draftsman and will typically prepare a draft bill. The review dealt more with points of principle and practice, and made recommendations that could, if accepted, be developed in legislation.

I commissioned Professor James Chalmers and Professor Fiona Leverick of the University of Glasgow to prepare an academic report examining the underlying principles and setting out the current law in Scotland. They also carried out a comparative exercise to analyse the approach in other jurisdictions. That comprehensive paper was issued along with my consultation paper.

I also appointed a reference group of people with relevant knowledge, experience and expertise. They came from different backgrounds; they included people with a practical criminal justice background in the police, in prosecution and in defence, and sitting sheriffs. In addition, I included members with a human-rights background, a representative of Victim Support Scotland, an academic and a former Minister for Justice. Although I take full responsibility for the terms of the report, the assistance of that powerful group was invaluable.

The review gathered evidence and consulted widely. I travelled from Lerwick to Dumfries to meet people, and I met a number of members of the Scottish Parliament, some of whom are on this committee. I spent a lot of time listening to representatives of stakeholder groups and gained a good understanding of the profound impact of hate crime on individuals and communities.

I will turn to the underlying principles of the review. I explored why hate crime legislation is necessary. From the evidence in the literature, it was clear that hate crime legislation—not on its own, but with other interventions including education and attitudinal shift—could contribute to addressing the mischief.

I identified a number of functions that make hate crime legislation necessary. It marks and undermines the additional harm that hate crime causes to the victim, other members of the protected group and wider society. It has an important symbolic function in sending out a message that such behaviour will not be tolerated.

There are also practical benefits, including establishment of a simple and easily understood scheme, achievement of consistency in sentencing, and maintenance of records to produce good-quality annual statistics to inform future policy. I reflected on those tests when I was considering what the best scheme would be.

When I was looking back at my report in anticipation of coming here, I noticed that in the introduction I said:

“My report is intended to enable Scottish politicians to debate the issues involved and to encourage public discourse.”

To that extent at least, I might have had some success.

The Convener

Thank you very much for that introduction, Lord Bracadale. Will you outline where you think the principal differences are between the bill and what you recommended it should do?

Lord Bracadale

I think that the important aspect of the bill is its bringing together of a number of disparate provisions, which is why part 1 is enormously important.

The most significant aspect in which the Government has not followed my recommendations in relation to part 1 is the approach that it has taken to gender. I can explore that with you in detail in due course, if you wish.

The Convener

Yes—other members will explore that issue with you in some detail in a few moments.

What do you understand to be the relationship between parts 1 and 2 of the bill? In paragraph 5.15 of your report, you said:

“I recognise that almost every case which could be prosecuted as a stirring up offence could also be prosecuted using a baseline offence and an aggravation”.

Why do we need both? Why do we need stirring-up offences in addition to statutory aggravations?

Lord Bracadale

That is because the stirring-up offences are designed, in my view, to address the most egregious cases in which, generally speaking, the attack is not on individual members of a group but on the group as a whole. That is the difference. That is a relatively rare occurrence; the statistics on stirring-up racial hatred demonstrate that. I expect that the number of cases in relation to the other protected characteristics would also be relatively small. The stirring-up offences would address the particularly egregious situation in which the attack is on a group as a whole.

The Convener

In your view, the stirring-up offences are designed to capture particularly egregious situations. I am trying to understand whether they are particularly egregious situations that would already be captured by part 1. You said that part 1, on statutory aggravation, is the core method of prosecuting hate crime in Scotland. What would we lose if that were the only method?

Lord Bracadale

We would lose the ability for society to mark a particularly insidious offence addressed against a group as a whole. I am fortified in that by the approach that has been taken in other jurisdictions—England and Wales, and those that we looked at abroad. It is about society saying that the particular offence against the group as a whole requires to be marked in a particular way.

The Convener

You said that it

“requires to be marked in a particular way.”

That is a very interesting way of putting it. I do not want to put words in your mouth, Lord Bracadale, but that suggests that part 2 of the bill is not really about effective prosecution and that it is, rather, about fair labelling and the Parliament legislating, almost symbolically, to address itself to particular egregiousness in hate crime. That suggests that there is a bit of a divide between what will be used in how the police and the prosecuting authorities will do their jobs on the ground, which will rely overwhelmingly on part 1, and much of the political argument with regard to the bill having been about the scope of part 2. Is that a fair characterisation, or am I missing something?

Lord Bracadale

One has really only to look at the examples of prosecutions under the Public Order Act 1986 or section 6 of the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012. For example, in one case under section 6 of that act, a person stated on Twitter that he hated Shia and Kurds and called for them to die

“like the Jews did at the hands of Nazi Germany”.

It is the nature of the attack on groups as a whole that cries out there. It seemed to me—as I have said, I think that this is done in every jurisdiction—that those particular offences call for a particular way of dealing with them.

Rona Mackay

Good afternoon, Lord Bracadale. In your opening statement, you made it clear why you believe that hate crime legislation is necessary—I think that the whole Parliament agrees on that—and you have spoken about an area in which the Government has not taken forward your recommendations. In broad terms, do you believe that the bill demonstrates that your most important points have been implemented? Are you happy with the bill, at this stage?

Lord Bracadale

In broad terms, the Government has implemented the main thrust of my recommendations. It is not for me to analyse particular sections of the bill in terms of how it has done that; that is for others. However, in broad terms, the Government has adopted my recommendations, but with some exceptions.

Rona Mackay

Do you see the bill as a consolidation and strengthening of existing laws? Was your aim to bring things together and clarify certain aspects?

Lord Bracadale

Consolidation was undoubtedly a hugely significant aspect. The law on hate crime in Scotland has developed in a piecemeal way over decades, so bringing it all together in one act is a useful thing to do. That should allow a better and clearer understanding of what the law is.

Rona Mackay

You said in your opening statement that it was quite evident that the bill had sparked debate. Were you surprised by the amount of debate that it created in the media and elsewhere?

Lord Bracadale

When I consulted, I received a lot of responses, and a lot of concern was expressed about freedom of speech, so I addressed that. After my report was issued, the Government conducted another consultation in which it received responses on freedom of speech. However, in neither of those consultations was there anything like the reaction that the committee has had in its consultation. As you know, there is a wide range of responses. For example, the likelihood threshold did not feature in the responses to my consultation as a specific issue; it was freedom of speech generally that became an issue.

However, by the time of the committee’s consultation, there had been much more analysis—for example, by the legal bodies. There is also quite a bit of misunderstanding in some of the criticisms that have been made. That underlines the importance of understanding that the bill should not, in my view, be about behaviour that is offensive.

Annabelle Ewing

Good afternoon, Lord Bracadale, and welcome to the committee. To pick up on an issue that you referred to in your opening statement concerning the characteristic of sex as far as aggravated offences are concerned, I do not know whether you had the opportunity to watch the session that we just had with the cabinet secretary. I asked him why he had not included the characteristic of sex in the bill, and he gave a very full answer. He is obviously willing to listen.

The answer, at its heart, involved concerns that have been raised that such express inclusion could, in some way, involve unintended negative consequences, particularly for women in abusive situations. Why did you propose the express inclusion of the characteristic of sex in the bill?

Lord Bracadale

I found, in the evidence, that there had been an increase in the harassment and abuse of women, both in the physical world and online. There had also been a cultural shift in the sense that women were not prepared to tolerate behaviour that they might have put up with in the past. I had regard to the requirements of the UN Convention on the Elimination of All Forms of Discrimination Against Women and the requirements of the Istanbul convention, and there was strong support in the consultation for some provision in this area.

Many of the consultees supported the introduction of a statutory aggravation, but some of the organisations representing the interests of women, including Engender, Scottish Women’s Aid and Rape Crisis Scotland, were opposed to that approach and favoured instead taking more time to develop a stand-alone offence of misogyny. They advocated a participatory approach—taking, if necessary, years—and they had a philosophical objection to the definition of hate crime that I was using, which was that of Chakraborti and Garland, which underpins statutory aggravations.

The organisations wanted to follow the definition advanced by Barbara Perry, which is that hate crime is designed to reaffirm precarious hierarchies and characterise a given social order. They pointed to the lack of evidence of significant prosecutions in other jurisdictions, and they pointed to the example of New Jersey. In their view, there was a lack of capacity of police and prosecutors to recognise and respond to gender-based hate crime, and they compared the approach in the Equality Act 2010, which they felt had given rise to a highly generic approach that spanned all protected characteristics and diminished the focus on the needs of particular groups.

I have a lot of respect for those organisations, and I have considered their arguments carefully. However, it seemed to me that there was no gap in the law that required to be filled by an offence of misogynistic harassment, because threatening or abusive behaviour under section 38 or communications under the Communications Act 2003 could have a statutory aggravation attached to them. Therefore, I considered that it was not necessary to introduce a new offence, as that could cause confusion. It was also extremely difficult to pin down a precise definition of misogyny laws, and I found that different groups had different understandings of what the term meant.

An aggravation would be in keeping with the general approach to the scheme that I was suggesting, and it would meet the requirements that I mentioned in my introductory remarks of undermining harm, sending a message and having practical benefits.

I also recommended that a stirring up of hatred offence be extended to gender or sex. It is instructive to note that the Law Commission in England and Wales has very recently issued its consultation on hate crime. It is proposing a number of radical measures—when we come to discussing stirring-up offences, I can perhaps point to its proposals—but, in relation to sex or gender, it has rejected the concept of misogyny and is recommending consulting on its proposal to add sex or gender as a protected characteristic.

Against that background, my own view was that this was an opportunity to introduce a statutory aggravation.

I apologise—that was rather a long answer.

Annabelle Ewing

Thank you for your comprehensive answer, Lord Bracadale. Your rationale and methodological approach to the issue are interesting.

In your view, issues to do with misogynistic harassment are arguably covered by current law. However, sex as a characteristic is not expressly mentioned in the bill in terms of aggravations. Would that represent any gap in protection?

Lord Bracadale

In my remit, I was asked to consider whether additional protected characteristics should be added. Both gender and age were specifically mentioned, so I was required to explore that. The evidence led me to say that there should be a statutory aggravation in relation to sex or gender.

Annabelle Ewing

Okay. I am just reading that response.

Lastly, you will be aware that the cabinet secretary’s intention is to set up a working group on the issue of misogynistic harassment. I assume that, if you were invited to give your views, you would be willing to engage with that working group.

Lord Bracadale

Certainly. If the group wishes to have me, I am more than willing to speak to it.

Liam Kerr

I will stay on the same topic as my friend Annabelle Ewing.

In your answers, you talked a couple of times about sex or gender. Very briefly, do you use those terms interchangeably to mean the same thing, or am I misunderstanding?

Lord Bracadale

My remit related to gender, so my report talks about that. The Government has chosen to use the term “sex”, and, if it introduces a protected characteristic in that area, it will use that term. That is for technical reasons, but, in essence, I think that we are talking about the same thing for the purposes of hate crime.

Liam Kerr

Annabelle Ewing asked about the working group and the approach that the Scottish Government has decided to take. That obviously differs from the conclusion that you came to in your report. Do you take a view on the Government’s approach? Do you think that that is a deviation that makes a material difference, or is your view that you concluded one thing and the Government is taking the issue down a different route but there will be no material difference in the round and in the outcome?

Lord Bracadale

In the face of the quite formidable organisations that represent women’s interests arguing for that approach, I can fully understand why the Government would go down that road.

Liam Kerr

Thank you.

This is my final question. Do you take a view—you might have heard the convener allude to this earlier—on the desirability of such a provision being introduced in primary or secondary legislation, or would there be no material difference in either approach?

Lord Bracadale

Not including such a provision in the bill is perhaps a missed opportunity. I think that the women’s groups would argue about that, but so be it. They would rather wait for a number of years to get a different outcome.

The Convener

Before we turn to John Finnie, Rona Mackay has a brief supplementary question.

Rona Mackay

Do you agree that, if sex were included as a protected characteristic and as an aggravation, it would not exclusively protect women, because it could be men or women who are affected?

Lord Bracadale

Yes, I do accept that.

The Convener

John Finnie wants to ask questions about statutory aggravations.

John Finnie

Thank you, Lord Bracadale, for your report, which has got us to this point. I have one brief question, because I know that Shona Robison has a related question. Will you clarify an issue that has been touched on? You recommended that

“Statutory aggravations should continue to be the core method of prosecuting hate crimes in Scotland.”

Does the bill, as it is presently configured, effectively provide for that approach?

Lord Bracadale

In the sense that it has brought together in one place the existing statutory aggravations—the Government has introduced an additional one—I think that it does. The importance of part 1 of the bill, as I see it, is that it will allow statutory aggravations to be, as I said, the core way in which prosecutions are conducted. What emerges from that is that, although they can attach to any offence, they will most likely attach to offences such as assault, to section 38 of the Criminal Justice and Licensing (Scotland) Act 2010 or to section 127 of the Communications Act 2003.

The Convener

Thank you, John—that was quick. As you mentioned, Shona Robison also has questions in that area. We will then hear from James Kelly.

Shona Robison

On the statutory hate crime aggravation, when an offence is proved to have been aggravated by prejudice, the bill states that the court must make clear what difference the aggravation has made to the sentence that has been imposed. As you know, that is in line with existing legislation, but it appears to be contrary to your recommendation on that point. What is your thinking on that matter?

Lord Bracadale

I thought that it was important that an aggravation be taken into account in sentencing and that an aggravation attach to the previous convictions of the convicted person. It is important that the court would state in sentencing that the offence was aggravated and that that should be recorded. I found evidence that the recording was uneven. For statistical purposes, it is important that recording is done well. However, when it came to the requirement to state what the sentence would have been but for the aggravation, I was told by a number of practitioners and sheriffs that, because sentencing is a complex exercise that takes into account a lot of considerations—for example, a reduction might be based on a guilty plea or the contents of a social inquiry report—it was quite difficult to specify precisely what the difference was between what the sentence would have been and what the sentence ended up being. Indeed, the point was made to me by some that the victim of the crime might feel let down if there was not a sufficient difference expressed between the two.

That was my thinking. I thought that it was important that the aggravation be recorded and noted on the previous convictions but that it was just too difficult to specify the convictions in the context of sentencing.

I fully understand and accept the point that you are making, that that element can be measured, and I can see the argument that it should be recorded. However, on balance, I came to the view that that particular aspect should not be continued.

Shona Robison

Just to be clear, it sounds as though you are saying that you are not opposed to the principle but that you have practical concerns about how that element could be extracted from all the other elements that would be taken into account in sentencing. Is that a fair summary?

Lord Bracadale

Yes.

Shona Robison

Is there anything else that you would like to say about the approach to statutory aggravations in terms of what is in the bill and your own recommendations? Do you have anything else that you would like to put on record?

Lord Bracadale

I thought that the statutory aggravations scheme had worked effectively. It makes for simplicity and consistency. Prosecutors told me that the use of aggravations was an effective means of prosecuting hate crime and that the annual statistics were building up into good-quality data. For those reasons, I did not make any radical recommendations in relation to statutory aggravations. I suggested, as you alluded earlier, that “evincing malice and ill-will” might benefit from being re-expressed as “demonstrating hostility”. The concept of evincing malice and ill will is well known to criminal lawyers with experience over the years, but I think that the phrase “demonstrating hostility” would be more readily understood generally.

I recommended that the category of protected persons should include not only those who are presumed to have a characteristic but also those who have an association with a particular identity. That would include, for example, advocates who advocate on behalf of protected groups. That has been included in the bill.

The Convener

Lord Bracadale, we are now going to move to some questions about part 2 of the bill and the offences of stirring up hatred. James Kelly will lead on that area.

James Kelly

First, can I deal with the issue of freedom of expression? It has been the subject of some debate around how the bill seeks to protect freedom of expression against potential prosecution for stirring up hatred offences. As drafted, the bill protects on the basis of sex and religion. Others have argued that that is too minimalist an approach, that protections around freedom of expression should be extended to more characteristics and that further offences should be allowed. What is your view on that?

Lord Bracadale

Any stirring up of hatred offence would have to meet the requirements of the European convention on human rights. There are two approaches that can be taken to the protection of freedom of expression clauses. One is not to use them at all and to rely purely on the court applying the ECHR. If you are going to use them, they should reflect the approach of the ECHR and, in particular, they should make clear where the line is drawn between offensive behaviour that has not been criminalised and the type of behaviour that is being criminalised.

The formula that was used in the Public Order Act 1986 and in section 7 of the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 had more strength about it than the formula that is used in relation to religion in the bill. I recommended that there should be freedom of expression clauses, and I would have expected them to extend across all protected characteristics, because I was trying to avoid any kind of hierarchy of protected characteristics.

James Kelly

That is very clear. I also want to ask about how things such as plays and performances have been dealt with in sections 3 and 4 of the bill in relation to stirring up hatred. Again, as drafted, both sections have caused some anxiety among performing groups, because they feel that their ability to perform could be constrained. That has been reinforced by the Law Society, which feels that the proposals in the legislation go further than the Public Order Act 1986, that they are more stringent and that they would threaten freedom of expression. Do you have a view on that?

Lord Bracadale

The cabinet secretary’s amendment has a significant impact here, because the legislation will require intention to stir up hatred. In the light of that restriction, I find it difficult to understand that the performer would require to behave in a threatening or abusive way and intend to stir up hatred. I do not understand how the concept of neglect on the part of the director fits easily with that, and I note that the cabinet secretary has understood that. That point requires to be revisited in the light of his amendment.

The existing Public Order Act 1986 defences become less significant if we have to prove intention, although defences of that kind might still be required in relation to race, because the two versions of the threshold will be retained. With regard to intention, it becomes more difficult to argue that there needs to be a defence that the person did not know that a behaviour might be stirring up hatred. The Crown would have to demonstrate that there was intention, which might be difficult.

The Convener

I take Lord Bracadale back to his answer to James Kelly’s first question about the free speech provisions in sections 11 and 12 of the bill. You compared those provisions with those in section 7 of the now repealed Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 and section 29J of the Public Order Act 1986. I think that you said that both those sections offered greater protection for freedom of speech—that they were both stronger—than sections 11 and 12 of the bill. Can you clarify what you mean by that? While you do so, can you also reflect on what the cabinet secretary said earlier—that he was minded, although he did not commit himself, to consider amendments that both broaden and deepen the protection of free speech in the provisions in sections 11 and 12?

The cabinet secretary explained that to broaden the protection of free speech would mean that protection would apply to all the characteristics and not just to two of them, and that to deepen the protection of free speech would imply that it should not only pertain to discussion or criticism, which is what the bill says at the moment, but extend to the expression of antipathy, dislike, ridicule or insult, which are words that are used elsewhere in other statutes. I invite you to reflect on those comments.

Lord Bracadale

My recommendation was effectively that the protection of freedom of speech would mirror precisely what you have described, although the reference to abuse in some of the earlier legislation would obviously have to come out. Such amendments to the bill would be an expression of the kind of line that we want to identify between “offensive behaviour” on one side and “threatening and abusive behaviour” on the other, with whatever other threshold there is.

The Convener

In the law of England and Wales, the extension of the stirring-up offences to cover religion and sexual orientation requires that the expression or behaviour be “threatening”—not “threatening or abusive”. Do you think it appropriate to extend the scope of the criminal law to criminalise not only that which is threatening but also that which is abusive in those contexts?

Lord Bracadale

It is quite important to refer to what the Law Commission says in England and Wales. It proposes a radical change in relation to stirring up of hatred offences, namely to apply the legislation across all characteristics, including race, and to have the same approach in relation to all characteristics.

Although it proposes to keep the two thresholds of intention and likelihood, in cases wherein intention can be demonstrated, the Law Commission’s intent is to remove the earlier threshold of “threatening” so that any language that stirs up hatred or intends to do so—whether or not it is threatening or abusive—will constitute an offence.

On the other hand, in cases wherein the Crown is only able to prove likelihood, the Law Commission proposes to strengthen the “threatening” threshold to “threatening and abusive” so that likelihood becomes more difficult to prove. It is sticking to the two thresholds but is adopting exactly the formula that I suggested for the likelihood threshold and going for “threatening and abusive”. Comparisons with England have to be understood in the light of that consultation.

The Convener

That is very helpful, but the core point remains. I do not want to put words into your mouth, but I want to be sure that the committee fully understands the exact implications of what you are saying. Your view is that the depth of the free speech protections in sections 11 and 12 should be extended to capture antipathy, dislike, ridicule and insult in addition to discussion or criticism. Was that the force of your recommendation, and is it the case that you have not changed your mind on that?

Lord Bracadale

I have not changed my mind.

The Convener

That is helpful. Thank you.

Liam McArthur also has a supplementary in that area, and then we will have a question from Rona Mackay.

Liam McArthur

Good afternoon, Lord Bracadale. I thank you not only for your work on the area but for your willingness to engage with those of us in the Parliament who have an interest in it.

Earlier, the cabinet secretary alluded to concerns about the legal difficulties that might be involved in enhancing the protections for freedom of expression. He was a little more coy about the nature of those difficulties. I wonder whether you foresee them or are reasonably comfortable that, as the convener has explained, that process could be done relatively straightforwardly.

Lord Bracadale

The test is really whether the protection reflects what is in article 17 and article 10 of the European convention on human rights. I think that the formula that we have discussed does that. I do not know what are the legal difficulties to which the cabinet secretary alluded.

Rona Mackay

In answer to a question from James Kelly, you said that you had tried to avoid having a hierarchy of characteristics. The bill retains the possibility of liability for stirring up racial hatred based on insulting behaviour. Do you think that that creates such a hierarchy?

Lord Bracadale

I recommended the removal of the word “insulting”. I come back to the line, which I mentioned previously, that divides offensive and abusive behaviour. On the face of it, insulting behaviour seems to me to lie on the non-criminal side of that line, which is why I thought that it was inappropriate to retain it.

On the question of a hierarchy of characteristics, there is now more difficulty with retaining not only insulting in the offence of stirring up of racial hatred but the likelihood threshold. As of now, the position is that there is a significant difference between the approach to race and the approach to the other characteristics. If insulting were to be taken out, there would be similarity at least at that threshold level.

Rona Mackay

The cabinet secretary gave us quite stark figures that would possibly justify doing that. Would you say that that would support allowing it to stand?

Lord Bracadale

When I looked into the issue I asked the Crown Prosecution Service in England for assistance. The word “insulting” has been deleted from section 5 of the Public Order Act 1986, which relates to a harassment offence. The CPS told me that it had been unable to find any case that could not be characterised as abusive as well as insulting. It took the view that, from the perspective of the prosecution, the word “insulting” could safely be removed from that legislation.

The Convener

Unless any other member wants to come in—in which case I ask them to indicate that, either on the BlueJeans system or in the committee room—I have a couple of final questions.

I would like to hear your views on a couple of the other differences between the way in which the stirring-up offences are currently legislated for in the Public Order Act 1986, as amended, and the way in which it is proposed that they will be legislated for in the bill that we are considering.

One of the ingredients in the current law that is absent from the bill that is before us is that, according to section 18 of the 1986 act, no offence of stirring up racial hatred can be committed in a private dwelling, where there is no public order element to the occurrence. Do you have a view as to whether that exception should be omitted from the bill, as is the case at present, or whether we should include it?

Lord Bracadale

I did not recommend the removal of the dwelling exception, although I anticipated an exercise to rationalise what is in my view the somewhat cumbersome structure of the Public Order Act 1986. No suggestion had been made to me that the existence of the exception had inhibited the use of the provision. That said, I hear what the cabinet secretary said.

It is instructive to note what the Law Commission in England has said about that, which may lead to a change in the 1986 act. The Law Commission has suggested that, if the aim is to ensure that the criminal law does not intrude on purely private matters, the dwelling exception is poorly targeted, because it would include a meeting in a large private house but would exclude a private conversation in an office. The commission also makes the point that I think the cabinet secretary was seeking to make that other incitement offences can be committed in a house. The Law Commission now proposes the removal of the dwelling exception.

The Convener

Given your experience of the operation of criminal law, do you have any reflections on that? The suggestion from the Law Commission would move what have been understood to be public order offences into a purely private setting. Are you relaxed about that and should we be relaxed about it, or should we be alert to some danger in it?

Lord Bracadale

Your concern is well founded, and you probably should do some further work on that.

The Convener

I am not sure what further work we can do, other than ask questions and lodge amendments—that is all that we can do from here.

My final question is on that same subject of differences between the construction of the stirring-up offence in the current law and the construction of it in section 3 of the bill. They are perhaps subtle differences of drafting, but they might have significant unintended consequences. There is an absence in the bill of any provision equivalent to section 18(5) of the Public Order Act 1986, which provides that, where someone does not intend to stir up hatred, they are not guilty of an offence if they were not aware that their behaviour might be threatening or abusive. As I said, there is no equivalent of that in the bill. Should we reflect on that?

Lord Bracadale

If it were not for the cabinet secretary’s proposed amendment, that would be an important issue. In relation to the protected characteristics that he is amending to require intention, it is already a defence that where there is no intention there is not an offence. However, maybe the issue needs to be looked at in terms of stirring up racial hatred.

The Convener

Yes. The offence of stirring up racial hatred in the current law contains that element. It is not so much a defence; it is part of the definition of the offence, or the actus reus. No offence is committed if there is no intention and if the individual was not aware that the behaviour might be threatening, abusive or insulting. However, under the bill, that would appear to become an offence.

Lord Bracadale

Yes, I think that that requires to be addressed.

The Convener

Should it be addressed by amending the bill?

Lord Bracadale

By amending it.

The Convener

As no other member wishes to ask a question, I thank you very much, Lord Bracadale, not only for your time this morning but for all the work that you have done over many years on this very important aspect of Scottish criminal law.

The Deputy Presiding Officer (Lewis Macdonald)

The next item of business is a stage 1 debate on motion S5M-23682, in the name of Humza Yousaf, on the Hate Crime and Public Order (Scotland) Bill.

Members who wish to speak in the debate should press their request-to-speak buttons.

The Cabinet Secretary for Justice (Humza Yousaf)

I am pleased to open the stage 1 debate on the Hate Crime and Public Order (Scotland) Bill.

I intend to respond in my speech to a number of issues that were raised during the scrutiny process, but first I thank the members of the Justice Committee and the clerking team, and all those who gave evidence. Their evidence has helped to shape the comprehensive and helpful stage 1 report, and the majority of the recommendations in it have been accepted and welcomed by the Government.

Justice Committee members heard from Lord Bracadale at the start of their scrutiny of the bill. In 2018, Lord Bracadale published a report on hate crime that was commissioned by the Scottish Government. In commissioning that report, the then Minister for Community Safety—and now member of the Justice Committee—Annabelle Ewing, explained that

“racism, intolerance and prejudice of all kinds are a constant threat to society and, while Scotland is an open and inclusive nation, we are not immune from that threat … This review will help ensure that we have the right legislative protections in place to tackle hate crime wherever and whenever it happens.”

I could not agree more with that sentiment. It is as true now as it was when Annabelle Ewing made that statement.

I thank Lord Bracadale for his extensive report, on which the bill is based. The Scottish Government consulted on his recommendations in late 2018, and, informed by the views offered, developed and introduced the bill earlier this year.

I do not think that anyone disagrees with the need to address hateful behaviour. It is only by confronting such behaviour that we can collectively build the Scotland that we all want to see, where everyone can live free from hatred and prejudice.

The bill, which spent several years in development, through the independent review and the Scottish Government consultation, is designed to consolidate, modernise and reform hate crime law in Scotland.

Hate crime is not merely the use of unpleasant words that offend people; hatred has an insidious and corrosive effect on society. We often talk about that societal impact, and we are right to do so. We should also not lose sight of the impact that hate crime can have on the individual affected and on their family. I know that from personal experience, but so do many other victims who have been the targets of hate because of their sexuality, their race, their religion, their transgender identity or, indeed, any other characteristics, such as disability.

Johann Lamont (Glasgow) (Lab)

Does the cabinet secretary agree that significant numbers of women are targeted precisely because they are women?

Humza Yousaf

Yes, I am certain that that is the case. I will come to a section later in my speech on the misogynistic harassment working group, which will look at the issue in greater detail. The Justice Committee took a great deal of evidence on that subject.

I make it clear from the outset—it is important to highlight and acknowledge this—that I know that members across the parties have expressed concerns about elements of the bill. I hope that I have demonstrated the conciliatory approach that I wish to take as the bill progresses through the parliamentary process. The Government has shown great willingness to compromise and address those concerns; I am certain that members will show the same willingness, so that, at the end of the process, we will have a bill that the entire Parliament can be proud of. Members might still have concerns about aspects of the bill, but I reiterate that I do not doubt their commitment to tackle hatred and that I will continue to have an open mind on amendments that may be proposed as we move into stage 2 of the parliamentary process.

I will move on to look at the stage 1 report in greater detail. A range of issues were aired during the committee’s scrutiny of the bill and I will touch on some of them. They include the distinct approach that the bill takes on race; finding the appropriate balance between protecting freedom of expression and protecting groups who are targeted by hateful behaviours and speech; and the importance of the working group on misogynistic harassment, which I just referenced to Johann Lamont.

The bill takes a distinctive approach in respect of race compared to that taken to other characteristics. The approach was the subject of considerable debate and discussion during stage 1, but that is a sign of a healthy and robust scrutiny process. That distinct approach means that, in relation to stirring up hatred, the offences for race carry different legal thresholds from those for the other characteristics, which is a situation that is replicated across the UK.

Two thirds of all recorded hate crimes in Scotland relate to race. In 2019-20, there were more than 3,000 charges relating to racial hate crime—eight times a day, every day, someone is targeted because of their race—and those are only the cases that we know about because they have been recorded.

Sadly, there is no denying the prevalence of racial hate crime offending in Scotland, so I believe that a distinct approach for race is needed—and is justified. We need an approach that recognises the seriousness of racial hate crime as well as the impact that it has on community and societal cohesion.

The removal of the word “insulting” from, or repealing, the existing stand-alone offence of racially aggravated harassment could be particularly damaging when it comes to tackling racial hatred in Scotland if doing so was perceived as weakening a criminal law protection in the area of race. If we removed the term “insulting”, we would be the only legal jurisdiction in the UK to do so. The committee heard compelling testimony from equality groups that supported the retention of that term. I am aware that, during its scrutiny of the bill, the committee asked whether the existing offence of racially aggravated harassment—which is also known as a section 50A offence—could be consolidated into the bill. I am pleased to confirm that the Scottish Government intends to do that by way of a stage 2 amendment.

The stirring up hatred offences in the bill prompted the greatest interest throughout scrutiny of the bill. As I said I would, I listened to the voices that expressed concerns in that area, and in September I announced fundamental changes to the operation of the new offences in the bill. I am pleased that the announcement of those changes before stage 1 scrutiny got under way allowed the Justice Committee to focus on the many important aspects of the bill.

The changes that I announced, which have been welcomed by almost all stakeholders, reflected the degree of concern that existed about the potential for the new stirring up hatred offences to lead to people self-censoring entirely legitimate activity. That was because if there was no requirement for there to be intent to stir up hatred in relation to the offence, there could have been at least the perception that the legislation might be used to prosecute legitimate acts of expression, which might have led to an element of self-censorship. It was never the intention for the new stirring-up offences to have that effect.

My proposed changes have allowed us to focus more on the corrosive effects of hate speech. As the committee heard, hate speech can leave entire communities feeling isolated, scared and vulnerable to attack. Although there might be—I accept this point—a relatively small number of prosecutions under the new offences, as has been the case under the existing provisions on race, stirring up hatred against a group of people is abhorrent, and the law must have the tools to address it when and where it occurs. I am pleased that the shift in policy that I announced has seemed to greatly ease the fears of a number of stakeholders.

A number of other issues relating to the operation of the stirring up hatred offences have been debated during scrutiny of the bill. At the Justice Committee last month, I announced that I proposed to remove from the bill specific provisions relating to theatrical performances, which some artistic stakeholders felt singled them out. Although those provisions were based on existing precedent contained in the Public Order Act 1986, I consider that they can be removed without significantly affecting the operation of the bill.

I have confirmed in my response to the stage 1 report that I will add a time limit to the police powers of search and entry in the bill—again, that was recommended by the committee.

I turn to freedom of expression, which I know has been an issue of some concern to members. I know that a frustration has been some people’s view that there is a binary choice between freedom of expression and hate crime law—that it is one or the other. That is not a view that this Government takes, and I know that it is not the view of a number of stakeholders.

Freedom of expression is not and has never been an absolute right, and most members probably accept that. Equally, it is important for the Government to recognise—I give an assurance that we do recognise this—that it is a fundamental freedom that is important to our democracy and the rule of law.

I say to all members that it does not have to be a binary choice between freedom of expression, which we all value, and ensuring that we have strong hate crime laws that afford protection to people who are most often the target of hate. It is not one or the other.

Liam Kerr (North East Scotland) (Con)

Does the cabinet secretary agree that hate crime can be tackled without violating the fundamental right of freedom of expression?

Humza Yousaf

Absolutely—that is my entire point. The two do not have to be mutually exclusive. Liam Kerr will know that we have in the bill provisions on freedom of expression in relation to religion. I have given feedback to the committee on how I think that those provisions can be expanded to align better with the provisions on freedom of expression regarding religion in the English and Welsh legislation. I will, of course, be quite keen to hear from the committee what more we may be able to do.

On the other characteristics covered by the bill, I will continue to reflect on whether there is a compelling need to extend or strengthen the protections offered by provisions on freedom of expression. I am not persuaded that all characteristics need such a provision. Disability is one example—I would be curious to see whether anybody thinks that there has to be a freedom of expression provision in relation to people with a disability. However, I can see that there is merit in seeking to introduce such provisions in relation to some of the other characteristics covered by the bill and, indeed, in assessing the depth of what such provisions should be. In my response to the stage 1 report, I mentioned that I thought that there was merit in bringing forward freedom of expression provisions in relation to at least a couple of protected characteristics, namely transgender identity and age.

The process of scrutinising the bill—and, in particular, its stirring up hatred offences—has improved its quality. There has been effective and constructive parliamentary scrutiny, just as there should be.

I turn to the issue that Johann Lamont raised in her intervention: the characteristic of sex and how that is dealt with in the bill. I know that, for good reason, there are a range of very strong views on the matter. I reiterate that I do not doubt for a second that, regardless of which side of the debate a member is on, they believe very strongly in making sure that we have a bill that affords protection against hatred.

There is undoubtedly a pressing need to tackle misogyny and gender-based violence in Scotland. Through our work to implement the equally safe strategy and take forward recommendations from the First Minister’s national advisory council on women and girls, we understand the significance of how such behaviour can limit women’s and girls’ space for action, and we want to address that.

I was therefore delighted to announce Baroness Helena Kennedy as the chair of the working group, which will look to explore options around a potential stand-alone offence. Baroness Kennedy is well placed to take forward that work in the context of equality and human rights. She has indicated that Scotland is taking a pioneering position by exploring how the law can be harnessed to address conduct that is directly aimed at women.

Johann Lamont

I am sure that the cabinet secretary would recognise that hatred of women, which has been expressed through the centuries, is nothing new.

Last Thursday, I spoke in a debate in the Parliament, after which I was accused of transphobic hate. That accusation was not true. However, if I were to respond to my accusers by saying that they were expressing a hatred of women and of the rights for women that I sought in the debate, I would have no defence against that and no protection in the provisions of the bill. Is that fair?

Humza Yousaf

I do not think that Johann Lamont is interpreting the legislation correctly at all. It does not concern subjective opinions in relation to, for example, the new offences regarding transgender identity. It would not be enough for someone to say, “I think that Johann Lamont is transphobic and therefore she should be investigated and prosecuted.” A high threshold would exist, and it would have to be proven beyond reasonable doubt, taking account of all the contextual factors, that she intended to stir up hatred against people because of their transgender identity. I am certain that it would not be possible to prove that.

However, even if it were to be proven that Johann Lamont’s behaviour had been intended to stir up hatred, the other legal threshold would also have to be met—that her behaviour was threatening or abusive. Again—I have no doubt that this will be covered in the debate—the test that would be applied by the courts is not a subjective one but an objective one. I therefore do not agree with Johann Lamont’s interpretation.

I understand that I am running out of time, so perhaps I could say more on the working group on misogynistic harassment in my closing remarks.

I know that members will wish to speak on many other aspects of the bill that I have not had time to cover—for example, I am sure that we will go on to debate the dwelling defence, the public element, the definition of “abusive” and the reasonableness defence. I will listen carefully to everything that members have to say.

In the meantime, I again thank the Justice Committee for its comprehensive and excellent report, which gives us a good basis for going on to stage 2. My plea is that, as we have done in advance of this debate, we should continue to work together to strengthen the law and to tackle hate crime in a way that will protect the rights of everyone to live their lives free from harm, while also protecting the important fundamental right to freedom of expression. I am certain that we can do so. I commend the general principles of the bill to the Parliament.

I move,

That the Parliament agrees to the general principles of the Hate Crime and Public Order (Scotland) Bill.

The Deputy Presiding Officer

I call Adam Tomkins to open the debate on behalf of the Justice Committee.

Adam Tomkins (Glasgow) (Con)

Our law reports are replete with resounding statements on the importance of free speech. In the case of R v Secretary of State for the Home Department, ex parte Simms, Lord Steyn said that

“freedom of speech is the lifeblood of democracy. The free flow of information and ideas informs political debate. It is a safety valve: people are more ready to accept decisions that go against them if they can in principle seek to influence them.”

In R (on the application of Animal Defenders International) v Secretary of State for Culture, Media and Sport, Lord Bingham said that

“Freedom of thought and expression is an essential condition of an intellectually healthy society. The free communication of information, opinions and argument about the laws which a state should enact and the policies its government at all levels should pursue is an essential condition of truly democratic government.”

In western liberal democracies, one of two approaches is taken to the problem of hate speech—that is to say, expression that is directed towards stirring up hatred. Most countries, including the United Kingdom, seek to regulate it, criminalising its worst excesses while bearing in mind the cardinal importance of free speech, as set out in the quotations that I have just cited.

The outlier is the United States, where the first amendment prohibits such regulation, with constitutional protection of speech that goes further than it does anywhere else. US critics of European, Canadian and New Zealand hate speech laws say that they suffer from two flaws, both of which are fatal from first-amendment perspectives—that they are vague and that they are overbroad. For the past two months, the Justice Committee, which I convene, has been poring over every line of the Hate Crime and Public Order (Scotland) Bill, anxious to ensure that it falls into neither of those traps.

As our unanimously agreed report makes clear, the aims of the bill are partly consolidation and partly expansion. Some of its provisions are based on existing offences that are found in the Public Order Act 1986, but others extend the reach of Scotland’s criminal law.

There is no disagreement between the committee and the cabinet secretary about how such provisions should be understood. We all accept that we have no right to criminalise speech just because we find it offensive—indeed, we have no right to do so no matter how offensive we find it.

Freedom of expression is not absolute in our law, but at the same time there is absolutely no doubt that it extends to the right to “offend, shock or disturb”.

“Freedom only to speak inoffensively is not worth having”,

as one judge put it.

The bill is about matters that are of fundamental importance, but it is also about balance. Which of us would want to live in a Scotland where people are free to threaten each other or to abuse each other on the basis of their race, their religion, or any aspect of their sexual identity? Getting that balance right is not easy—it is not a question of science, but is a matter of judgment.

In the committee’s judgment, the bill does not get that balance right, which is why—again, unanimously—we have recommended a series of amendments. Most, but not quite all, of our amendments have now been accepted by the cabinet secretary, so I thank him for his thoughtful and considered response to our report, which was published yesterday.

In our report, we welcome the amendments that were announced earlier in the autumn, but we say that they do not go far enough. The cabinet secretary said in September that the new offences of stirring up hatred on grounds other than race should be amended so that they could be committed only where such hatred is intended to be stirred up, and not merely where it is likely. In the committee’s view, that was a useful and helpful first step.

The cabinet secretary returned to the committee in November to say that, in addition, he would remove from the bill the provision that is targeted at theatres and public performance of plays, and that he would strengthen how the bill protects free speech in relation to religion. It is not just “discussion or criticism” of religion that should be protected; so, too, should ridicule and expressions of antipathy—and even of insult. Again, the committee welcomed all that.

Let me say, Presiding Officer, that the cabinet secretary’s constructive and pragmatic approach to the bill has been much appreciated by everybody on the Justice Committee, and has greatly helped to improve our scrutiny of the bill. That scrutiny has led us to conclude that, welcome as the cabinet secretary’s amendments are, we need to go further in order to ensure that the bill achieves its objectives without interfering with our fundamental rights.

For example, it is not just free speech with regard to religion that needs further protection; free speech with regard to other characteristics needs it, too. Police powers to enter and search premises need to be more tightly defined and further thought needs to be given to the extent to which we want to criminalise behaviour that takes place wholly in private but which would, nonetheless, be caught by the stirring-up offences.

On that point, I remind Parliament that the full title of the bill is the Hate Crime and Public Order (Scotland) Bill. Current stirring-up offences, as I have already said, are found in the 1986 act. We should bear it in mind that those offences are targeted at public disorder, not at private thought.

Among the suite of further amendments that we recommend, one, to my mind, stands out. Under the bill, it will become an offence to use threatening or abusive behaviour that is intended to stir up hatred. We must define what we mean by that. In particular, we must explain what we mean by “abusive”. That key term must have an objective meaning, such that—in the committee’s view—the Crown must show, in order to secure a conviction, that a reasonable person would have found the behaviour to be abusive. The cabinet secretary, in his response, has indicated his strong agreement with that sentiment and I welcome that, but he seems to think that the bill does not need to be amended to reflect it, so that is a matter that we are, clearly, going to have to come back to later.

I will illustrate what is at stake with a real example that touches directly on the questions that Johann Lamont has already asked this afternoon. It is a delicate matter that needs to be treated with care and sensitivity.

As we all know, there is at the moment in Scotland a robust and, sometimes, rather fraught live debate about women’s rights, about whether sex is immutable, and about the rights of transgender people. Some women who are campaigning on a certain view on these matters have been accused of transphobia.

The committee is absolutely clear that the bill is not intended to chill public debate on those matters or to lead to self-censorship in relation to them. However, the committee is anxious to ensure that those are not unintended consequences of the bill. That is why we need to ensure that a person can be charged with a stirring-up offence only if a reasonable person would have regarded their behaviour as abusive.

Tim Hopkins of the Equality Network and Becky Kaufmann of the Scottish Trans Alliance gave compelling evidence on that point. Becky Kaufmann said that aspects of the debate on women’s rights can make people—and, indeed, have made her—“extremely uncomfortable” and can be “very disrespectful” of people’s identities, but that, nonetheless, that is no business of the criminal law.

That brings me full circle. The bill is not about criminalising that which other people find offensive or disrespectful; it is about behaviour, including speech, that threatens or abuses, and that does so intending to stir up hatred.

Humza Yousaf

I thank the convener of the Justice Committee for his thoughtful speech. I accept what he says, and I will go back and reflect further on whether we can give a definition of “abusive” in the bill and not just in the explanatory notes. I commit to doing that.

However, does he accept that, even if there is a discussion or debate on the definition of “abusive”, the second part of the legal test is crucial and that, to use his example, it would have to be proved beyond reasonable doubt that a person intended to stir up hatred against somebody else because of their transgender identity?

Adam Tomkins

Absolutely—I accept that. However, the committee received a pile of evidence to the effect that we need to think not just about what happens in the criminal courts, but about what happens in police investigations. Speaking for myself, I say that I want to ensure that we do not have unnecessary police investigations on the basis of, for example, a flimsy allegation that somebody has engaged in transphobia when no reasonable person would have arrived at that conclusion. That is the force of my concern.

I am nearing the end of my remarks, and I have focused so far on only one aspect of the bill—namely, the stirring-up offences. Although that is the most contentious aspect of the bill, other provisions in the bill will have far greater practical effects. On that, we are all agreed. Offences that are aggravated by prejudice harm not only the immediate victim, but communities at large. As such, they should attract an aggravated-offence sentence. The committee agrees with the cabinet secretary that judges should be transparent about that in their sentencing decisions.

Hate crimes are better understood as focusing on the particular vice of prejudice, rather than on broader considerations of vulnerability, but it should be for Parliament in legislation, and not for ministers in regulations, to determine hate crime.

The bill does not include sex as a hate crime characteristic; sharply contrasting views about that were presented to the committee in evidence. On balance, we think it prudent to await the conclusions of the newly established working group on misogynistic harassment before legislating in the area. We warmly welcome the appointment of Helena Kennedy to chair that working group.

There is a lot more to be said, but the clock is against me. I hope that I have given a flavour of the committee’s work on the bill. Our report is lengthy and detailed, for which I make no apology. The 390 paragraphs of our report were designed with one objective in sight: to shine a light on the bill and on its strengths and its limitations, rather than to generate yet more heat about what has been a very contested measure.

The committee could not have done that without the open-mindedness and fair-mindedness that each and every member of the committee brought to the inquiry. We could not have done it without the extraordinary dedication, high standards and professionalism of the committee’s brilliant clerking team, which is led by Stephen Imrie and Katrina Venters. Most of all, we could not have done it without the help and support of the hundreds of Scots who engaged in the law-making process and who gave evidence. I thank them all.

Liam Kerr (North East Scotland) (Con)

I am pleased to open for the Scottish Conservatives in the debate on whether the Parliament should agree to the principles of the Hate Crime and Public Order (Scotland) Bill. Before I address those principles, I will pick up on the closing remarks of the Justice Committee’s convener. The bill is the most controversial in the history of the Scottish Parliament. An unprecedented 2,000-plus people and groups felt compelled to respond to the request for evidence. That is extraordinary, and I think that it shows the best of civic Scotland. However, it also shows just how badly the Scottish Government got the bill wrong when it introduced it.

Following that, the Justice Committee took evidence from witnesses who presented themselves to scrutiny in very difficult circumstances and pursuant to a challenging timeframe. Every witness added considerable value to the inquiry, and that is reflected in the quality of the committee’s report. The report is a tribute to the professionalism, skill and patience of the clerks to the committee and other parliamentary staff. I know that I speak for everyone here when I acknowledge them.

Finally, I must acknowledge the MSPs on the committee. I approached the inquiry with a significant degree of trepidation. In September, I led a debate in which I asked the Parliament to reject the bill as drafted and invited the Government to come back with something workable that did not attack freedom of speech, and which could be scrutinised and implemented in the short time that was available to protect, via the aggravators, those we are all so keen to protect. That proposition was rejected by all parties, bar the Conservatives, so I worried about how the inquiry would go.

However, the committee was not only collegiate and courteous but forensic, and its evidence taking and the report showed the best of what parliamentary scrutiny can be. The committee came to the unanimous conclusion that the Parliament should approve the general principles of the bill only if the changes that were unanimously demanded in the report were made to it.

I turn to those principles. In the programme for government, the First Minister told us:

“we need to ensure that we have laws in this country that are capable of tackling hate crime because it is pernicious and horrible and we should have zero tolerance for it.”—[Official Report, 1 September 2020; c 46.]

She is right. There was widespread acceptance from witnesses that we must do all that we can to ensure that the first part of the proposed new law, which deals with the statutory aggravations, is not only capable of tackling hate crime but does so completely and unambiguously.

Few witnesses had any issue with the principles of part 1. Similarly, I do not think that anyone had any issue with the principles of part 4, on the abolition of the offence of blasphemy. Part 3, which deals with provisions around characteristics, was also accepted in principle, although, properly, there require to be further debates and amendments on that point. It is with part 2 that severe challenges arose.

As introduced, the bill poses a grave threat to freedom of speech. As drafted, it would outlaw speech even if it was plain that the speaker had no intention to express, never mind stir up, hatred. The offence could be committed even in a person’s own home—we would even have to watch what we said around our own dinner table. Under the bill as drafted, those who take a particular position on women’s rights risk being accused of transphobia and criminalised for hate crimes, as Johann Lamont mentioned.

Time and again, whether in written submissions or oral evidence, the committee heard from individuals and organisations as diverse as the Law Society of Scotland, the Faculty of Advocates, the Scottish Police Federation, the Scottish Newspaper Society, the Humanist Society Scotland and the Catholic Church that the draft provisions threatened freedom of expression.

Those are the challenges that I sought to resolve in September when I suggested that the Scottish Government take the bill as drafted off the table and come back with something that did not have the controversial stirring-up offences in it so that the provisions on the aggravation of offences by prejudice, which we all agreed were so vital, could proceed smoothly and promptly.

Parliament was not with me on that proposition, but the cabinet secretary was with me on the fact that the proposed extension of stirring-up offences raises questions about impacts on freedom of expression and citizens’ engagement in democratic debate. I say that because, in what I believe to be an unprecedented move, even before the Parliament had started to debate the bill and before the committee evidence-taking process had begun, the justice secretary announced that he would be making amendments to his own bill. He said that the new stirring-up offences would be amended at stage 2 so that they would be crimes of intention only. That was welcome but insufficient. We knew that it was insufficient because the pressure from civic Scotland did not relent.

Therefore, the justice secretary returned to the Justice Committee to acknowledge the fundamental flaws that are inherent in the part 2 principles and promised to lodge an amendment at stage 2 that would scrap the provisions on theatres, plays and live performances. Even so, the cross-party Justice Committee was unanimous in its view that that would still not right the wrongs of the bill, that further changes—those that are set out in the committee’s report—had to be made and that only if the justice secretary implemented its unanimously agreed recommendations would the bill be acceptable.

Yesterday, we received the Government’s response to the committee’s report. Encouraging amendments are proposed. Section 5, on the possession of inflammatory material, is to be removed; there is a proposal for time limits on the police powers of entry per section 6; and freedom of expression protections are to be strengthened. We have a third set of changes to the bill’s principles being proposed by the Government before we have even arrived at stage 2.

However, here is the rub. First, not all of the committee’s recommendations regarding stage 2 principles have been taken on board. The reasonableness defence is not to be added to—there is just consideration of adding to the explanatory notes. The term “abusive”, which we heard so much about from the convener of the committee, is not to be defined but, rather, will be clarified in the explanatory notes. The Law Society of Scotland says in its submission that came in last night that simply clarifying in the explanatory notes is unacceptable.

“The Bill must stand on its own so there is no role for ‘guidance to accompany the legislation’”.

There is still no protection in the bill for things that are said in the privacy of one’s home. Not only is that a violation of the right to privacy but, to paraphrase the convener, how can a public order offence be committed in private?

John Mason (Glasgow Shettleston) (SNP)

Does the member accept that there are other aspects of the criminal law that impact on what happens in one’s home?

Liam Kerr

I do. We heard about that in committee. However, I think that my point stands. We do not have protection in the bill for things that are said in the privacy of one’s home.

Other crucial problems remain unchanged. In the section 3 stirring up of hatred offences, the threshold for criminality is arguably too low, and the offences are still wider ranging than those in other jurisdictions in the UK. The freedom of expression protections will not cover all new characteristics and, even for the characteristics that are covered, the protections are arguably not sufficient.

The conditions that were imposed for support by the Justice Committee have not been satisfied, and we do not know today that the cabinet secretary’s promised amendments will be agreed to at stage 2. He can propose all that he likes, but it is for the Parliament to approve those things or not. Today, we will vote on the principles of the bill as drafted.

The convener said in his opening remarks that the bill is about matters of fundamental importance but that it is also about balance and that, in the committee’s judgment, it does not get that balance right. He is correct. The committee is correct. The bill, on the unamended principles of which we will vote tonight, does not get the balance right and, as drafted, it could criminalise that which other people find offensive or disrespectful.

Humza Yousaf

Will the member take an intervention?

Liam Kerr

Do I have time, Presiding Officer?

The Deputy Presiding Officer

Yes, if it is a quick one.

Humza Yousaf

Thus far, Liam Kerr has not really mentioned the victims of hate crime. What does he say to the Equality Network, Stonewall, racial equality organisations, the Muslim Council of Scotland, the Scottish Council of Jewish Communities, Victim Support Scotland, HIV Scotland—all those who support the general principles of the bill?

Liam Kerr

I say that I thank them very much for their counsel in the committee sessions. I am not sure that this is the point that the cabinet secretary was making, but he will have read the Murray Blackburn Mackenzie submission that came in last night, which anticipates that concern, saying:

“Careful scrutiny of legislation does not mean lack of compassion for the groups it sets out to help. Effective legislation requires critical engagement.”

I know that the cabinet secretary will agree that that is what we are engaged in. I am very grateful to the groups that he mentioned. Their evidence was extremely important and I think that they will also appreciate that that is what we are doing.

As I said, the bill, on whose unamended principles we will vote today, does not get the balance right. I find support for that in the LGB Alliance submission that we received last night, which includes the words:

“We have serious concerns about the Bill in its present form, and ask that it be withdrawn and rethought.”

The bill is the most controversial in the history of devolution, but the cabinet secretary’s response has not reflected the avalanche of opposition that his bill has faced. Genuine hate crime must always be punished, but the bill goes too far. Our fundamental right to freedom of speech remains under threat, and accordingly the Scottish Conservatives will vote against the principles of the bill at decision time tonight.

Rhoda Grant (Highlands and Islands) (Lab)

I start by echoing some of the comments that Liam Kerr made about the committee and the drafting of its report. I pay tribute to the clerks, to all those who gave evidence and to the committee members who took evidence, including my colleague James Kelly.

I joined the committee as the report was being drafted and, to be frank, I was expecting to join a bit of a rammy. However, that was not the case, and that is down to everybody who works with and in the committee. All worked hard to ensure that the committee could reach consensus and I believe that, by doing so, and if the cabinet secretary continues to work with us, we can pass good legislation that will stand the test of time. There are many complex points of law to be considered, but paramount is the balance between freedom of speech and protection from hate speech.

Scottish Labour is supportive of the overall principles of the Hate Crime and Public Order (Scotland) Bill and agrees that it is important to consolidate hate crime legislation. However, we have concerns about the way in which the bill has been drafted. It is welcome that the cabinet secretary has on several occasions listened to concerns, and I hope that he will continue to do so. Although the changes that he has accepted are welcome, I believe that he must go further to meet all the concerns that have been expressed about the bill.

There are concerns about whether to add sex as a characteristic in the bill. There is concern that leaving it out might give a signal that hate crime that is based on sex and misogyny is in some way of lesser importance than other hate crimes. There are also concerns that the promised legislation to deal with misogyny may never transpire.

In Scotland, we know that violence against women is not only about hatred; it is about control and inequality. Engender pointed out that both the Convention on the Elimination of All Forms of Discrimination Against Women and the Council of Europe’s Istanbul convention on preventing and combating violence against women and domestic violence suggest a presumption against gender-neutral laws that protect men and women in exactly the same way, because those seldom protect women, given that men and women are not equally empowered. That concern has been expressed by Engender, Zero Tolerance, Scottish Women’s Aid and Rape Crisis Scotland, which oppose a sex aggravator and support separate legislation that incorporates the societal issues that underpin misogyny and violence against women.

Scottish Labour welcomes the working group on misogynistic harassment, and agrees that provisions and protections must reflect the serious nature of violence against women. However, we share concerns about the delay, and we reserve our position on adding sex as an aggravator, in order to avoid a hierarchy of protections. We therefore agree with the committee that the working group should report within a year, in order to allow timely implementation of its recommendations, and we will reflect on what may be required between then and the finalisation of the bill.

Liam Kerr

I am grateful to Rhoda Grant for taking a very quick intervention. She knows that I share a lot of her concerns on that issue. Where is Scottish Labour at the moment on lodging an amendment at stage 2 to introduce sex as an aggravator?

Rhoda Grant

Obviously, we are considering that as part of what we may do at stage 2. I am not saying that we will do it, but we are looking at it and we will look at the balance of evidence when we speak to stakeholders, because there is an issue about having protection in place while we wait for a working group to report. It may be that the bill could be amended to allow for that to happen, so that there is no gap between one protection and another. However, as I have said, we will be discussing that with stakeholders, so have not drafted anything at this point.

It is welcome that the Scottish Government has conceded that amendments are necessary in order to make part 2 of the bill fit for purpose, and we have already heard a fair amount about that. Requiring intent for the stirring-up offences will be an improvement to the provisions and will ensure that the bill includes adequate protections for freedom of speech and thought and does not criminalise legitimate views. The cabinet secretary’s proposed triple lock is welcome. The behaviour must be threatening or abusive, and intended to be so. As with all criminal law, the crime must be proved beyond all reasonable doubt, and the perpetrator must intend wrongdoing.

I believe that the amendments are welcome, but Ephraim Borowski of the Scottish Council of Jewish Communities still had concerns about online hate speech. He told the committee:

“having posted their hatred, people will then end their comments with ‘Just saying’ or ‘Just asking.’ They are now being given a get-out-of-jail-free card because they can say that they did not intend to cause offence, but that they were merely asking a question”.—[Official Report, Justice Committee, 10 November 2020; c 27.]

I would welcome clarification from the cabinet secretary that such an easy defence will not be possible under the bill. In that context, it is disappointing that the cabinet secretary has chosen not to clarify the operation of the reasonableness defence in the bill, as the committee recommended that he should do. Clarification could have provided reassurance about such a scenario. I hope that he will look at that again.

Humza Yousaf

I will address Rhoda Grant’s point about there being an easy defence in my closing speech. On the reasonableness defence, I am struggling to understand how behaviour that is threatening or abusive and that is intended to stir up hatred could be justified as reasonable. I would be happy for any member to respond to that point in their speech or in an intervention; perhaps Rhoda Grant has an example of behaviour where the intention is to stir up hatred but for which there is a reasonableness defence because of X, Y or Z—if she does, I will be keen to hear it.

Rhoda Grant

I do not have an example, but the law needs to take account of every possible scenario. We have to be careful not to do anything that impinges on people’s freedom of speech. Some of the language that is used on social media is pretty grim, and language that I think is reasonable might not be the same as language that someone else thinks is reasonable. I hope that the cabinet secretary will tell us whether there will be further amendment to the bill to provide comfort in that regard.

On freedom of expression, Tim Hopkins, from the Equality Network, said that the Law Commission for England and Wales talked about the English provisions that take a similar approach to that of sections 11 and 12. He quoted the commission’s clarification that

“the law applies to hatred against persons, not against institutions or belief systems”,

that

“criticism of behaviour is permitted”,

and that the provisions maintain

“a space for discussion of public policy on potentially controversial issues”.

Some people argued that article 10 of the European convention on human rights, which is set out in schedule 1 to the Human Rights Act 1998, provides those protections. However, article 10 says:

“The exercise of these freedoms ... may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society”.

Therefore, it would be better for the bill expressly to incorporate the protections, rather than depend on article 10. The cabinet secretary has shown willingness to improve the freedom of expression provisions in the bill; Scottish Labour thinks that he should set out how he intends to further amend the bill in that regard at stage 2.

I am running out of time, Presiding Officer. I will comment further in my closing speech.

John Finnie (Highlands and Islands) (Green)

The bill has taken a rather unusual route thus far. It has certainly prompted a lot of debate. I thank the people who helped us to get to this point: the witnesses, our outstanding parliamentary staff and—although self-praise is faint praise—my colleagues on the Justice Committee, because we have worked collaboratively to produce the report that we are discussing.

It became very apparent that words and phrases are important. I am thinking of words and phrases such as “stir up”, “likely to”, “insulting”, “abusive”, “reasonableness”, “dwelling”, “freedom of expression” and “freedom of speech”.

We know that freedom of speech is not an absolute right. The committee explored how far that right extends, and in particular whether it extends into a right to offend. A similar issue arose in the context of the Defamation and Malicious Publication (Scotland) Bill, when we considered freedom of expression versus the right to defend one’s reputation. Concerns were voiced about the bill’s potential to have a chilling effect. In written evidence, the Law Society cited with approval Lord Justice Sedley, who said:

“Freedom only to speak inoffensively is not worth having”.

Likewise, the Faculty of Advocates cited Lord Rogers, who said that freedom of speech applies to

“‘Information’ or ‘ideas’ that … ‘offend, shock or disturb’”.

Words, and the weight that is attached to them, have become very important. In paragraph 44 of its stage 1 report, the committee agreed that

“the right to freedom of speech includes the right to offend, shock or disturb.”

It went on to say that it

“understands that this Bill is not intended to prohibit speech which others may find offensive, and neither is it intended to lead to any self-censorship.”

However, it was

“anxious to ensure ... that these are not unintended consequences of the Bill.”

There is no single definition of hate crime. Lord Bracadale used the following definition, which is that

“Offences which adhere to the principle that crimes motivated by hatred and prejudice towards particular features of the victim’s identity should be treated differently from ordinary crimes.”

We know that existing arrangements for hate crime deal with it as an aggravator to an existing offence, such as robbery, assault or breach of the peace, and that a lesser degree of proof is required to prove that aggravation.

The consultation on the bill generated a lot of interest. A substantial portion of the responses expressed concerns about freedom of speech and religious expression. However, that has to be countered by the need of vulnerable groups for protection and

“sending out a message about the unacceptability of prejudice-based content.”

There was a constant tension about freedom of speech, freedom to offend and the state’s obligation to ensure that that does not tip over into hate. That led to some lobbying, with some intemperate language from some people and some emotive imagery about constabularies invading churches. That has to be set against concerns about the bill attacking existing protections if there were to be further dilution.

As others have said, the cabinet secretary’s approach is to be commended. The letter in September and the indication in October about changes to exclude the likelihood provisions is very welcome. It is, I hope, a signal of the way in which we will continue. Thinking of the response yesterday, it seems that, for my colleagues, there is still a way to go on some aspects. The bill and the way that it has been dealt with send an important signal. It is an emotive subject, and we all want it to be properly addressed.

The cabinet secretary defended the retention of the word “insulting”, saying that it had been in legislation for 34 years. The Law Society said that

“it lowers the bar for criminality a bit too far.”—[Official Report, Justice Committee, 3 November 2020; c 4.]

The issue of a hierarchy of discrimination and inconsistency in relation to race has been mentioned. However, the committee rightly agreed that there are unique features in the pernicious nature of race crime. Race organisations strongly argued in favour of retaining the word “insulting”, suggesting that removing it would create a perception of dilution. Amy Allard-Dunbar of Intercultural Youth Scotland said:

“Microaggressions are daily instances of racism that add up to cause significant racial trauma. A lot of them come under the term ‘insulting’, and it would be hard to understand their impact if the term was not included in the bill. That provision needs to be kept.”—[Official Report, Justice Committee, 17 November 2020; c 33.]

There has been a lot of discussion, including about the term “abusive”, which the Crown Office tells us is a concept well understood by Scots prosecutors. There are people in favour of the decision. Discussions on that should continue. Similarly, I do not think that we are done with the dwelling defence yet. It is welcome that the cabinet secretary proposes to remove the provisions on public performances; likewise the time limit on police powers.

There were polarised views in relation to the working group on misogynistic harassment. I feel that there is a gap, and I am delighted that Baroness Helena Kennedy is to carry out an investigation.

Victim Support said that the impact of hate crime

“is frequently more devastating and longer lasting than that of other types of crime because an aspect of an individual’s core identity and sense of belonging is attacked.”

In its view,

“abusive behaviour forms part of a number of microaggressions that not only negatively impact individual victims, but whole communities and marginalised groups.”

For that reason, we need to keep discussions going, but at decision time, the Scottish Green Party will vote for the general principles of the bill.

The Deputy Presiding Officer (Linda Fabiani)

Liam Kerr please, for up to six minutes—sorry, Liam McArthur.

Liam McArthur (Orkney Islands) (LD)

You are not the first and you will not be the last, Presiding Officer.

In normal times, this would have been a complex and sensitive bill with potentially far-reaching consequences. During a pandemic, with evidence taken in virtual meetings and under enormous time pressures, the task of scrutiny has been made immeasurably harder. Like others, I pay tribute to all those who played their part: to witnesses, who responded in their thousands and had to adjust oral evidence to take account of the shifting sands of the Government position; to committee colleagues, not least our convener, who have been diligent, forensic and collaborative throughout; and to our clerks and the Scottish Parliament information centre, who have provided exceptional support.

I also thank the cabinet secretary, who recognised the hole that he had dug for himself and sought a ladder rather than a shovel. He is not out the hole yet, but he is a good deal closer than he was when we last debated the bill back in September. In that debate, the justice secretary accepted the ladder that I offered him when he acknowledged the serious concerns around part 2 of the bill—the so-called stirring-up offences—and agreed to set out ahead of stage 1 evidence taking how he proposed to address them.

That resulted in those offences being made intent only. It was a small but significant shift that left a great deal still to be reviewed, repaired and removed, but it allowed the committee to begin hearing evidence in a very different atmosphere, on a bill that was salvageable as opposed to one in need of being put out its misery.

We should not underestimate how problematic that latter outcome would have been, because our hate crime laws need modernising and consolidating. Hate crime for all protected characteristics is on the rise, and although the culture shift required to reverse that ugly tide will take time, our police, prosecutors and courts need the tools to deal with it when and where it occurs. At the same time, of course, we must be alert to the impact on other fundamental freedoms.

Our report asks whether rights such as freedom of speech and privacy should be interpreted and applied generously and restrictions to those rights legislated for narrowly and only where necessary in the public interest. To that question, as a liberal, I believe the answer is yes—even if those freedoms are not unfettered.

Again, I quote Lord Justice Sedley, who has been anonymously cited by others, who argued that

“Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative ... Freedom only to speak inoffensively is not worth having”.

That is why, during our stage 1 evidence, I focused my questioning on how those freedoms might be afforded greater protection in the context of the bill, and that is where I intend to concentrate my energies during stage 2.

I welcome the justice secretary’s earlier commitment to enhancing protections in relation to religion and his willingness to go further in broadening and deepening the protections relating to other characteristics. I look forward to seeing the detail of any such amendments and remain happy to work with the justice secretary, as well as those who gave evidence on those issues in developing options for the committee to consider.

Although it is important to stress that each characteristic is equally deserving of protection, as John Finnie said, those protections need not be equal. As the committee recognised, the history, nature and prevalence of hate crimes differ, and that justifies taking different approaches. In passing, and as the convener very ably laid out, particular attention will be needed for protections in relation to transgender identity. As witnesses observed time and again, in an already combustible debate there is a risk of making it even more explosive.

However, race clearly stands out, not least given its significantly higher prevalence; it is right, therefore, that we do nothing that dilutes or appears to dilute protections that currently exist. That makes the case for retaining both the current threshold for stirring up hatred and the reference to “insulting”. It is also why bringing the stand-alone offence of racially aggravated harassment into the scope of the bill is the right thing to do.

Consolidation helps to make law more accessible and thereby more effective. In the same way, updating the language to replace “evincing” with “displaying” malice or ill will addresses concerns that we heard about accessibility.

Although most of the attention around the bill has focused on part 2, as Tim Hopkins of the Equality Network reminded us, part 1 on aggravators is far more important. The Scottish Law Commission found that, in England and Wales, where a stirring-up offence covers race, religion and sexual orientation, stirring up is infrequently used in comparison with aggravated charges. That reinforces Lord Bracadale’s conclusion that basing our hate crime laws on an aggravator model remains the right approach.

At this stage, sex is excluded from the bill as an aggravator. I very much understand the rationale for exploring a stand-alone misogyny offence, but that leaves a glaring omission. There is also the risk that any future provision will be made under secondary legislation, which inevitably limits scrutiny by the Parliament, even under the super-affirmative procedure. Baroness Kennedy’s appointment as chair of the working group on misogynistic harassment is a coup, and I can think of no better person to take on that role. However, if that work delays by years any meaningful change to the law, the impeccable qualifications of the person who kicks the can down the road will come as cold comfort.

As BEMIS made clear and as the latest hate crime statistics bear witness,

“Scotland is not immune to racism or prejudice”,

so we should ensure that our laws are fit for purpose. At the same time, we must avoid doing anything that undermines our fundamental freedoms, which makes the task of tackling hate crime more difficult.

That is the challenge for the committee at stage 2. The cabinet secretary has undertaken to perform major surgery on his bill, but more will be needed if it is to gain the Parliament’s approval. With those caveats, the Scottish Liberal Democrats will vote for the bill’s principles.

The Deputy Presiding Officer

All the opening speeches went over time, so we will be strict with the open debate. Members have six minutes for speeches, which must include any interventions.

Rona Mackay (Strathkelvin and Bearsden) (SNP)

I am pleased to speak in the stage 1 debate on the bill, whose general principles I will support today. As the Justice Committee’s deputy convener, I add my thanks to the clerking team and the bill team for the fantastic support that we received throughout scrutiny of the bill, which was a big job that they made immeasurably easier. They enabled the committee to deal with the bill’s many aspects reasonably and consensually.

I am sure that the many victims of hate crime are even more disappointed than I am that the Conservatives will not back the general principles—those victims must feel severely let down. The cabinet secretary gave evidence to the committee twice, which absolutely demonstrates his willingness to engage and listen to all concerns. He has accepted the overwhelming majority of the committee’s recommendations and is willing to engage further on other matters. Given that hate crime numbers in all categories are rising, it is imperative to hold to account those who spread hatred of minority groups.

The first recommendation in the committee’s report says:

“The Committee agrees that the right to freedom of speech includes the right to offend, shock or disturb. The Committee understands that this Bill is not intended to prohibit speech which others may find offensive, and neither is it intended to lead to any self-censorship. The Committee is anxious to ensure, however, that these are not unintended consequences of the Bill.”

That is a good place to start. The bill has achieved huge media and public attention because of fears that freedom of speech might be restrained, but that categorically is not and never has been the bill’s intention. The bill is intended to show that Scotland does not endorse the freedom to abuse or to threaten minorities.

In 2018, Lord Bracadale undertook a hate crime review with a view to consolidating various provisions on hate crime, some of which have existed for decades, and to making the existing fragmented legislation fit for the 21st century by putting it in one bill. The bill implements most of Lord Bracadale’s recommendations, and the legal profession and stakeholders have overwhelmingly welcomed the consolidation.

Recommendations that the Government accepted include those on strengthening protection of freedom of expression provisions and on having an objective test for applying the term “abusive”. On that test, it should be noted that the existing law under section 38 of the Criminal Justice and Licensing (Scotland) Act 2010 is widely used, and that any clarification must not restrict the definition in relation to domestic abuse cases, for example, which could have damaging unintended consequences. For that reason—I note what the cabinet secretary said in his intervention on the committee’s convener—I believe that putting clarity in the explanatory notes, rather than in the bill, is the correct decision.

Including the existing offence of racially aggravated harassment in the bill was also accepted, as were new limits on police powers of search and entry.

Some faith groups, artists, authors and others raised concerns about section 4, which was removed entirely. Section 5 of the bill, which deals with possession of inflammatory materials, will be removed by amendment at stage 2.

One of the most important amendments was made by the cabinet secretary even before scrutiny began. As we have heard, it related to part 1 of the bill, on stirring up hatred. The cabinet secretary introduced the requirement to show intent to stir up hatred, which has to be proved beyond reasonable doubt in a court of law. The amendment was universally welcomed by all witnesses and stakeholders during evidence sessions and is, I believe, the right thing to do.

Each member of the committee followed a specific line of questioning with witnesses. My line of questioning was on the different approach that is taken in the bill to racial hatred, by retaining the “insulting” and “stirring up” elements that have been present in current legislation under the Public Order Act 1986 for 34 years. There was a—[Inaudible.] I do not support that view. Racial hatred accounts for two thirds of all—[Inaudible.]

The Deputy Presiding Officer

Excuse me, Ms Mackay. When you move backwards from your screen, we lose your voice. Please can you lean in?

Rona Mackay

I apologise, Presiding Officer.

To remove the word “insulting” would dilute the message that racial hatred is abhorrent. It would also mean that there would be a lower threshold for racial hatred in Scotland than there is in England and Wales. Groups that deal with racial hatred, including BEMIS, the Coalition for Racial Equality and Rights, and YouthLink Scotland, told us that they support the inclusion of “insulting”. Unlike the cabinet secretary, I have never been targeted in that way, so their evidence is good enough for me.

The so-called dwelling defence has been much debated—often, fuelled by misinformation. There should be no sanctuary, in a home or other closed space, for intent to stir up hatred. Other crimes that take place in the home do not have that defence. Any allegation of that nature would have to be proved beyond reasonable doubt—it is not about restricting discussion around the kitchen table.

Misogyny in Scotland must be tackled. I welcome the setting up of a misogyny working group to be headed by Dame Helena Kennedy QC. The group will consider whether the characteristic of sex as an aggravator ought to be added by regulation to the list of characteristics. However, leading women’s organisations, including Engender and Scottish Women’s Aid, articulated strong arguments against including a sex aggravator.

I am pleased that the cabinet secretary has said that he intends to lodge amendments at stage 2 to add freedom of expression provisions for the protected characteristics of transgender identity and age.

It would take more than six minutes to cover just one aspect of the bill. In conclusion, I ask everyone who had preconceived notions about the bill to listen to the detail and to understand that it is not about curbing freedom of speech. All of us—not just members of the Scottish Parliament, but the people of Scotland—who want to live in a country that is inclusive and has zero tolerance for those who stir up hatred with intent to abuse and discriminate against minorities, should get behind the bill.

I am proud to support the general principles of the bill today.

The Deputy Presiding Officer

We have absolutely no time left. If members go over time, either we will end up with an even later decision time, or I will have to cut off speeches before they end.

Ruth Maguire (Cunninghame South) (SNP)

Crimes that are driven by prejudice and hatred have deep social consequences. There is not just physical and psychological damage to the victim of the crime, but damage to the group to which the victim belongs and to our wider community, as a whole. As parliamentarians, we have a duty to work together to ensure that we do our utmost to protect, so that they can live their lives freely, those who are most vulnerable and who are targeted with hate. The volume of interest in and engagement with the bill from diverse stakeholders reflects not only the importance of the issue, but of cross-party committee scrutiny and the bill process as a whole.

I am grateful to the Justice Committee for all its work at stage 1. I commend the cabinet secretary for his approach in listening to concerns that have been raised and acting on them. Having the debate in advance of stage 1 was extremely helpful in that regard. I appreciate that the Scottish Government accepts the overwhelming majority of the Justice Committee’s recommendations, including on strengthening of protection for freedom of expression, ensuring that the test of the term “abusive” is objective and removing from the bill section 5, on possession of inflammatory materials.

While we do everything that we can to ensure that Scotland is a place where there is zero tolerance of hate crime, we must ensure that we strike the right balance between respecting, protecting and upholding all rights, including the right to free speech.

Freedom of speech, of course, carries with it duties and responsibilities, and it can be legitimately subject to conditions, restrictions or penalties in the interests of, among other things, public safety and prevention of disorder or crime. The bill cannot, and does not, prevent people from expressing controversial, challenging or offensive views, nor should it seek to stifle criticism or rigorous debate in any way.

The bill includes explicit provisions on freedom of expression, but the bill’s provisions are required to be interpreted in accordance with the European convention on human rights, anyway. The ECHR guarantees us all the right to protest and to express views, even if they shock, offend or disturb others, although I acknowledge Rhoda Grant’s point about whether we should have to rely on the ECHR for judgments.

I welcome the Scottish Government’s movement around the stirring up provisions. I note the positive reception that was given to that by many organisations that were concerned initially. Lisa Clark, from Scottish PEN, stated:

“the cabinet secretary’s amendment to focus on the requirement to prove intention to stir up hatred is welcomed and has eased ... our anxieties about the potential for a chilling effect on writers”.—[Official Report, Justice Committee, 10 November 2020; c 2.]

I want to talk about misogyny, which is not covered by the bill but which, nonetheless, requires urgent attention. The cabinet secretary highlighted the impact that hate crime has on individuals who are targeted and on their wider group. The impact of misogyny on the lives of women and girls should not be underestimated. We, of course, account for more than 50 per cent of the population, so the women and girls who experience misogyny make up a sizeable proportion of our citizens.

Having reflected on the evidence that was provided to the Justice Committee, I agree with it that it is wise to wait until the working group on misogynistic harassment has reported before Parliament considers legislating to add sex as a hate crime characteristic. The matter is undoubtedly complex, and there are many differing views on how best to approach it from a criminal justice perspective. There is no single definition in law that is commonly used in a criminal context to encapsulate the breadth of behaviours that come under the umbrella term “misogyny”.

Evidence from Engender on international examples concluded that, in relation to other states and the current work on tackling violence against women and on criminal justice systems in Scotland and Europe, a sex aggravator not only would do nothing to make women safer, but might have unintended and harmful consequences. I understand why women would be instinctively drawn to a sex aggravator—as Engender was, and as I certainly was—but it is crucial that we legislate in a way that best protects women and girls. At the moment, it looks as though the addition of a sex aggravator is not the way to go, but we will, of course, have to wait to see the working group’s conclusions.

The appointment of Baroness Kennedy and the Scottish Government’s commitment, in principle, to developing a stand-alone offence of misogynistic harassment are welcome. I acknowledge that it will be up to the group’s chair to agree the overall timescale in which to deliver what is being asked of it, but I press the cabinet secretary to say a little more on that front. At a time when it feels as though misogyny is at epidemic levels, it would be helpful to women and girls in Scotland to hear the Government reaffirm that misogyny is taken just as seriously as other hate crimes are, and that effective action will be taken as soon as possible. In Baroness Kennedy’s words,

“The law has often failed to provide adequate remedies and justice for the harassment, assault and sexual violence experienced by women. Women have had to fight hard to properly criminalise such behaviour. The everyday abuse of women too often involves verbal degradation of the darkest and most threatening kind.”

Confronting all hate crime is central to building the safer, stronger and inclusive Scotland that we all want.

I will be proud to support the bill at stage 1.

Margaret Mitchell (Central Scotland) (Con)

I thank the Justice Committee’s clerks, who always do a superb job in compiling stage 1 reports but who, together with the Scottish Parliament information centre, have performed a herculean feat in analysing the staggering 2,000 responses to the committee’s call for evidence and compiling the stage 1 report on what is one of the Scottish Parliament’s most contentious bills in its 21 years of existence.

Hate crime is vile and should and must be acknowledged, recognised, addressed and dealt with proportionately, fairly and effectively in a number of ways through training, education, awareness raising and—yes, where necessary—the rule of law. However, legislation in itself is not a panacea for tackling hate crime; it might, where appropriate, be another tool in the box to address it.

The Hate Crime and Public Order (Scotland) Bill was introduced by the Cabinet Secretary for Justice, Humza Yousaf, on 23 April 2020. It seeks to consolidate all existing Scottish hate crime legislation into one new hate crime statute and to modernise and extend existing hate crime legislation in Scotland by including age as an additional characteristic and creating a new offence of stirring up hatred.

I want to focus on the age provision in the bill. According to Dr Hannah Bows’s research on age, which the Justice Committee commissioned, seeking to recognise and respond to elder abuse through specific criminal offences or by widening access to the hate crime framework to include older age will neither reduce violence and abuse nor improve prosecution and violence rates, but it

“may exacerbate inequalities and potentially facilitate further cultural devaluation of older people.”

She concluded:

“there are significant issues with extending legislation to older people based on the ‘vulnerable older adult’ arguments.”

The Justice Committee noted Dr Bows’s conclusion that the approach to elder abuse should be based on vulnerability, not age. It is significant that the committee further noted Lord Bracadale’s recommendation that

“the Scottish Government should consider the introduction, outwith the hate crime scheme, of a general aggravation covering exploitation and vulnerability.”

I agree.

The bill has five parts. Part 2 creates the new offence of stirring up hatred, which is the most controversial aspect of a deeply flawed bill. The part 2 stirring up hatred provisions are misguided and have attracted justified criticism from numerous and various contributors. Police Scotland stated that the provisions create a “hierarchy of discrimination” that could bring the justice system into disrepute—for example, through the inclusion of the word “insulting” in respect of one set of characteristics but not another set. The Scottish Police Federation said that the provisions could move policing away from criminalising deeds and acts to policing what people think and feel as well as criminalising what is said in private.

Freedom of speech is one of the fundamental freedoms in any civilised democracy. The Law Society of Scotland has warned that the bill lacks clarity and could threaten freedom of speech. For example, religion and sexual orientation are protected, but those protections do not exist for other characteristics. The Sheriffs Association stated the bill created the possibility of exposing

“artists, performers and academics ... to potential criminality”.

The actor Rowan Atkinson and the crime writer Val McDermid have stated that the bill could result in stifling free expression. [Interruption.] Will I get time back if I take an intervention, Presiding Officer?

The Deputy Presiding Officer

No, you will not get time back.

Margaret Mitchell

I apologise, then—I cannot take an intervention.

Despite the cabinet secretary’s intention to remove section 4, which is on theatre and public performances, it seems to me that the context in which remarks are made and thoughts develop has not been properly considered. Furthermore, in the jurisdictions in the rest of the UK, private conversations in the home are excluded, but they would not be in Scotland under the bill. Prosecutions for stirring up hatred require the permission of the Attorney General or the Director of Private Prosecutions. In Scotland, the Lord Advocate’s consent would not be required under the bill.

It is unprecedented that, before beginning its scrutiny of the bill, the Justice Committee took evidence from the cabinet secretary to allow him to state what amendments and substantial changes he proposed to make to the bill at stage 2. Crucially, if legislation is to be fit for purpose, it must be drafted with care and precision. Words and their meanings matter. The fundamental changes that have already been proposed and the necessary further ones being discussed today are evidence that the bill is rushed and flawed. Given that, the bill should be withdrawn now and considered properly so that it can be brought back in the next session of Parliament.

Fulton MacGregor (Coatbridge and Chryston) (SNP)

As a member of the Justice Committee, I record my particular thanks to the clerks for their tireless work on the scrutiny of the bill, which has been an effort by all. I also pay tribute to all committee members from all parties for the collaborative nature of the scrutiny.

There has been a lot of publicity about the bill, with the media saying that it is controversial, flawed or contentious. We have heard some of those words today. It is easy to get sucked into all that, but it is not what we found in the committee. Witnesses were generally supportive of the principles of the bill, although some had concerns that I will come to and which we have already heard about. Members worked together to improve the bill and our stage 1 report is a fair reflection of that process.

The main issue is that we all want to tackle the plague of hate crime in our country. It is real. We all know that and we in the committee and in Parliament have heard it many times. A few weeks ago, the cabinet secretary came to the cross-party group on racial equality, which I chair, to talk about the bill. Many of the organisations that support those who are affected by such crimes were positive about the principles of the bill and agreed to write to the Government to say that following the cabinet secretary’s presentation.

There is no committee member or party that is not committed to tackling hate crime. We worked from that platform. We want to work in a way that does not impinge on freedom of speech and the bill does that.

It is perhaps our first recommendation from the stage 1 report that best sums up the bill. Rona Mackay read it already but I will do so again because it is important:

“The committee agrees that the right to freedom of speech includes the right to offend, shock or disturb. The committee understands that this bill is not intended to prohibit speech which others may find offensive, and neither is it intended to lead to any self-censorship. The committee is anxious to ensure, however, that these are not unintended consequences of the bill.”

That final part, about unintended consequences, is important, because all parliamentarians have a duty to ensure that there are no such unintended consequences. Part of that involves helping the public to understand what the bill does and does not do.

That said, the committee has done its job. The evidence clearly led us to aspects of the bill that needed to be changed. The cabinet secretary has already spoken about those and about the amendments that he will lodge at stage 2. As others have said, he came to the committee early in the process. We heard significant concerns about the stirring up of hatred. Even if some of those were exaggerated, it is right to address that issue head on. Our report welcomes the cabinet secretary’s proposal that the bill be amended at stage 2 so that, with the exception of race, the stirring-up offences will apply only to intent.

We received a lot of evidence voicing concerns about section 4, which deals with offences that are committed as part of a public performance. It is right that the cabinet secretary has committed to removing that section from the bill.

We also heard a lot of concerns about section 5, which deals with offences of possessing inflammatory material. The committee’s report made suggestions about providing more clarity that might ease those anxieties. The cabinet secretary went further in his response and will be seeking to remove that section from the bill.

Those are all indicators of a Government working collaboratively to bring forward the best legislation possible.

I welcome the Government’s agreement to deepen the freedom of expression provision for religion and also welcome the cabinet secretary’s intentions, raised today, to lodge amendments at stage 2 that will add freedom of expression sections for the protected characteristics of transgender identity and age. Those are welcome additions to the bill.

Regarding the individual hate crime characteristics, I agree that race should be treated differently and that there should be an offence of stirring up racial hatred. The history and volume of such crimes point to the need for that outcome, which is also what the stakeholder groups would expect.

We heard strongly held views about whether sex should be included as a hate crime characteristic. Ruth Maguire summed that debate up well. Dr Marsha Scott of Scottish Women’s Aid worried that such a move

“might have unintended negative consequences”.

Engender agreed, commenting that

“rushing to legislate ... runs the risk of entrenching that misunderstanding further in criminal justice bodies and public understanding, and in women’s perception of what the state will or will not tolerate for them”.—[Official Report, Justice Committee, 24 November 2020; c 3, 5.]

However, there were strong arguments on the other side of the debate, including from Lucy Hunter Blackburn, who told us that

“it is really important that people see themselves in the bill. A group of people who cannot see themselves in the bill ... are those who are subjected to any kind of abusive behaviour or harassment ... based on their sex”.—[Official Report, Justice Committee, 17 November 2020; c 65.]

Ultimately, the committee unanimously came to the same place on the issue as the Scottish Government: that both cases were strong and that we need the working group that has been established to do its work and report back to Parliament on the issue. We suggested a timescale of a year for that, but I accept that that is ultimately for the group to decide.

This is a good bill. It will not solve every problem or do everything, but it has the potential to change lives and help tackle hate and prejudice. I hope that this debate has tackled some of the myths around the bill and demonstrated that the committee is working to improve it and make it as good a piece of legislation as possible. I am disappointed to hear—I heard it only today—that the Conservatives will not vote in favour of the bill’s general principles, but I will certainly do so and I encourage others to do so.

James Kelly (Glasgow) (Lab)

First, I pay tribute to the Justice Committee, and particularly the clerks, who have done an outstanding job in getting the evidence considered by the committee, bearing in mind the huge volume of written submissions and the fact that we were dealing with a complicated bill in difficult circumstances because of the pandemic.

Hate and prejudice have no place in a modern progressive society. From that point of view, anything that can be done through legislation and other means to root out perpetrators of hate and prejudice and provide proper protection for victims has to be very much welcomed. The context for the bill’s introduction was the Bracadale review. There was broad agreement that legislation that tidied up the legal process, made it more efficient and provided more clarity was welcome.

However, it is fair to say that, when the bill was published, it ran into areas of difficulty. In getting legislation through Parliament, aside from the parliamentary process, there are two areas that need to be considered. First, does the legislation have public support? Secondly, does it provide legal clarity? When the Justice Committee ran its consultation, there were a vast number of responses that raised concerns. It takes a great deal to get the Police Federation of Scotland, the Catholic Church and the Law Society of Scotland on the same page, criticising the bill. The bill as published failed to get public support.

The Law Society said in its submission that the bill lacked legal clarity and that it would potentially run into the same difficulties as the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012, meaning that, whether someone was a football supporter, a police officer or someone with a role in the judiciary, there was a lot of confusion as to what constituted a legal issue under the legislation.

Liam Kerr

Mr Kelly makes a reasonable point. Does he agree with the Law Society that putting things in the explanatory notes is not a sufficient substitute for putting things in the bill?

James Kelly

I take that point, and I will come on to the Law Society’s substantive written submission for this debate.

The bill as published clearly had issues and was flawed. In that regard, the committee has done an excellent job in interrogating the bill. The committee has also done the cabinet secretary a favour in relation to its interactions with him. It shows how badly drafted the bill was that the cabinet secretary had to come back to the committee on three occasions with clarifications and commitments as to what amendments would be required. Fair play to him—at least he has interacted with the process and has proposed amendments.

There are clearly a number of issues with the bill. Much of the debate has concentrated on part 2, on the stirring up hatred offence, on which Liam Kerr raised a specific point. Even the fact that the cabinet secretary has said this afternoon that he will consider putting in the bill a definition of “abusive behaviour” in terms of stirring up hatred shows how far he has come.

Issues of freedom of expression have been raised by religious groups, and we have heard about the problems that theatres and theatrical groups have had in relation to performances. A lot of issues that the committee considered in its report require further attention.

Part 1, which consolidates offences, is well drafted, and that is welcome. However, in its submission, BEMIS raised the point that the lack of disaggregated data does not allow us to properly interrogate the statistics on hate crime. That should be addressed at stage 2.

The bill, in its initial draft, is flawed and has difficulties. The committee has done an excellent job in flushing out some of those difficulties and suggesting improvements. The cabinet secretary has interacted with that process, but there is still a good way to go. The amendments will have to be thoroughly and robustly tested at stage 2 to ensure that the concerns that people have raised about part 2 have been addressed. For us to do that, we need the appropriate balance between correctly tackling hate crime and protecting freedom of speech. There is still a job to do on that at stage 2.

Annabelle Ewing (Cowdenbeath) (SNP)

I am pleased to have been called to speak in the stage 1 debate on the Hate Crime and Public Order (Scotland) Bill. As the cabinet secretary mentioned in his opening remarks, I have a particular interest in the subject. As a newish member of the Justice Committee, I, too, pay tribute to the significant work carried out by the clerks and SPICe. I also thank everybody who took the time to make a submission. I remind members of my entry in the register of interests, wherein they will note that I am a member of the Law Society of Scotland and hold a current practising certificate, albeit that I am not currently practising.

There has been a lot of noise surrounding the bill, but a lot of studious and diligent work has been pursued out of the glare of tabloid newspaper headlines and Twitter. It is that studious and diligent work that I wish to focus on. We are all engaged in a very serious undertaking, which is to ensure that every citizen has confidence that the criminal justice system works for them and is not beyond their reach. Indeed, as has been pointed out, there is a risk that some people are focused on the theoretical impact of the bill rather than on the actual impact of actual hate crime on real people.

That is not to say that we are not duty bound to do our utmost to get the balance right. Of course, that is, in essence, the balance that is set out in article 10 of the European convention on human rights: on the one hand, the freedom of expression and, on the other hand, the recognition that such a freedom carries with it duties and responsibilities. That is the key point that I would submit.

In that regard, I am pleased to note that the cabinet secretary has listened to the concerns that have been raised and is considering addressing those concerns by strengthening the freedom of expression provisions in the bill. Obviously, we wait to see the detail, but it is very encouraging indeed that the cabinet secretary has signalled his intentions. I believe that the strengthening of the freedom of expression provisions in the bill will secure the requisite balance that we need in law.

In the limited time that I have left, I wish to focus on an issue that I highlighted during the committee’s deliberations: the characteristic of sex, which is a protected characteristic under the Equality Act 2010. As we have heard, the bill as it is currently drafted does not include that characteristic within its scope. I understand that its omission reflects a long-standing debate about how best to tackle the scale of the problem that women face in that area.

I was particularly struck by, among the evidence that the committee received, the detailed arguments advanced by Engender and other organisations to the effect that, to date, symmetrical approaches to the issue have demonstrably not worked. In that regard, the Istanbul convention on preventing and combating violence against women and domestic violence was cited, as it has been in the debate. It was recalled that the convention provides for a presumption against gender-neutral laws. I understand that it is on that basis that the Scottish Government proposes to set up a working group—which, as we have heard, is to be chaired by Baroness Helena Kennedy—to consider two issues: whether, in due course, the characteristic of sex should be included in the bill and whether, in addition, there should be a stand-alone offence of misogynistic harassment.

Having considered the matter very carefully indeed, and having taken into account the important point that the working group will also address the addition of the characteristic of sex in the bill—of course, I do not wish to prejudge the detailed analysis that the working group will carry out, which is much needed—and given the scale of the problem that affects women in that area, I support that approach. However, I add the caveat that the working group should complete its report within 12 months, as those key issues must be addressed and they cannot be kicked into the long grass, even inadvertently. I am reassured in that regard by the evidence of the Crown Office and Procurator Fiscal Service that, in the absence of a statutory aggravator, there would be nothing to prevent prosecutions from taking place in relation to cases that are reported at present.

Nevertheless, I have to say that, at this time, I am not persuaded by the submissions that the committee received from some organisations, which tended to suggest a conflation of the motivation for the working-group approach with other debates currently being had on the immutability of sexual dimorphism and the importance of not conflating sex and gender. Those are important issues, and they will be debated as the months go by, but I am not convinced that having a working group is in any way intended to impact negatively on the current debate.

Presiding Officer, I have been timing myself on my phone, from which I note that my time is just about up. I will conclude by quoting Lord Bracadale, who, when giving evidence to the committee on his review of hate crime, said:

“I identified a number of functions that make hate crime legislation necessary. It marks and undermines the additional harm that hate crime causes to the victim, other members of the protected group and wider society. It has an important symbolic function in sending out a message that such behaviour will not be tolerated.”—[Official Report, Justice Committee, 27 October 2020; c 34.]

[Interruption.] I agree entirely with that statement.

Liz Smith (Mid Scotland and Fife) (Con)

There was a challenge there, I think, Presiding Officer.

First, I record my thanks to the members of the Justice Committee and its convener, my colleague Adam Tomkins, for what is, without doubt, an extremely thorough, thoughtful and well-balanced report. Given the nature of the subject, it cannot have been an easy task to grapple with such complex legal issues, including disputed definitions, such as those of “abusive action”, “inflammatory material” or the word “insulting”.

Although the committee took the view that Lord Bracadale’s distinction between hate crime and other crimes is helpful, there remained the hugely complex and, at times, controversial task of striking the right balance between allowing extensive freedom of expression and the need to punish hateful action, thereby protecting the public. Paragraph 38 of the report sets out that challenge in a nutshell in saying:

“Legislating on hate crime inevitably touches on fundamental rights”,

which, of course, include the right to free speech. Indeed, in recent weeks, for us to recognise just how difficult that is, we need only have listened to the passionate and, at times, bitter debate within the University of Cambridge as to what free speech actually constitutes, and by whom it should be safeguarded.

Neither can it have been easy for the committee to deal with such a large volume of submissions and witness statements, which is always a sign that there is not only a high degree of public interest in the bill but a wide variety of views to be represented.

Back in September, when we debated the bill in Scottish Conservative business time, I began my speech by pointing out the need to be mindful of the meaning of “good law”—the concept in jurisprudence that law

“decrees that a legal decision is both valid and able to hold legal weight,”

and that it is not a decision

“that has to be overturned or rendered obsolete.”

As I explained,

“Good law is the basis for effective policy making and, as such, it requires ... a clarity of purpose; to be understood in simple language; to be strong in its evidence base; to be workable; and to be accepted by the public.”—[Official Report, 9 September 2020; c 55.]

In short, good law should strike a balance between simplicity and legal precision, and should adhere to the highest standards of drafting and clarity of language. I think that the Justice Committee has largely succeeded in agreeing that those are the most important principles for good law making, so it has to be against those criteria that we examine the bill at stage 1.

Also in the September debate, my colleague Liam Kerr set out exactly why the Scottish Conservatives had real objections to some key sections of the bill, particularly in relation to part 2. He did so because those sections would not do what the bill said it would do on the tin. Despite the good intentions, part 2 of the hate crime bill has been seen as illiberal, intrusive and deeply flawed. It is deeply unpopular with a wide range of stakeholders and with the public, because they can see those glaring flaws, which mean that part 2 is all too ready to be misinterpreted. In short, that part of the bill in particular was not, in its intentions, striking the balance that the committee set out.

Once again, I draw the comparison with the named person legislation. Despite the benign intentions that were acknowledged by the Supreme Court, it was so full of problems—perhaps unintended consequences—that it would be deeply intrusive into private family life at the same time as giving unacceptable powers to the state and to those who would administer the scheme. Of course, we all know that when it came to the data-sharing aspect of that legislation, which was covered in part 4, it was struck down by the Supreme Court. It was bad legislation that was likely to give rise to illiberal action and confusion over legal responsibilities, and to undermine fundamental freedoms and personal choice.

There is another parallel to draw. Just like the hate crime bill, the named persons legislation brought together unlikely bedfellows from a wide range of backgrounds. That, in itself, should give members pause for thought. In my extensive parliamentary experience, that is usually a sign that something is wrong or deeply flawed.

The legislative debacles that were the named persons law and the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 must not be repeated.

There are some good intentions behind the hate crime bill, but as it stands, it is badly in need of reform. There are still debates to be had at stage 2—about tightening up language so that there can be no misinterpretation or ambivalence about the proposed law, about strengthening the free speech provisions and about whether there is a need to create a prosecution lock when it comes to stirring-up offences. There is also a debate to be had about how to ensure that there is better recording of hate crimes.

Of course, legislative changes will not do everything. I was struck by the committee’s view that there is an important role for education in all this. I whole-heartedly agree. Although that will be a matter for another committee, we must not lose sight of its importance.

The process of scrutiny has been increasingly under the spotlight in this session of Parliament, and not always for good reasons, so we must not repeat past mistakes. I have been here 14 years, and they have certainly become more frequent in recent times.

We owe it to our constituents to ensure that bad law has no place in Scottish politics, which is why the Cabinet Secretary for Justice must listen carefully and respond to the concerns of the committee—most especially, in my view, in relation to part 2.

I thank the committee again for its excellent work. It has been no easy task, but I respect the committee members and the committee convener—my colleague Adam Tomkins—for all that they have achieved.

John Mason (Glasgow Shettleston) (SNP)

I appreciate being given the opportunity to speak, Presiding Officer.

As members know, I am not a member of the Justice Committee, but I have taken an interest in the bill—not least, because a number of faith groups have taken strong lines on it. Also, I am convener of the cross-party group on freedom of religion or belief, at which we spend a lot of our time considering hate crime in other countries and the need for freedom of expression in those same places.

I guess that there will always be a tension between freedom of speech and expression on the one hand, and protecting vulnerable and potentially vulnerable groups from verbal and other abuse, on the other. As someone who broadly seeks to adhere to biblical or traditional Christianity, I very much want the freedom of speech that allows us to go out into the marketplace, to share our faith and to encourage people of all faiths and none to see that following Jesus Christ is the only way to God.

People might strongly disagree with what I have just said, but I hope that no one would suggest that it is inherently hateful. Logically, I must then be happy to allow other groups to be critical of Jesus and of Christians, and to encourage us to follow a secular or other path. After all, the person who is at the centre of our faith was insulted and was killed on a cross, so being insulted from time to time does not come as a huge surprise to followers of Jesus. To an extent, we expect it.

Freedom of speech and expression is hugely important. With my CPG hat on, I see very well the need for protecting vulnerable groups, which is the reason for the bill. That is certainly the case in Scotland and the UK, but it is even more the case in a number of other countries. It seems to me that, if similar legislation were to be passed in China, Pakistan and India, it would be a huge help and encouragement to minority groups there—those who practise Falun Gong, the Uighur and Tibetans in China, Muslims and Sikhs in India or Christians in Pakistan.

I accept that we are trying to get the balance right between different values—freedom of speech and protecting some of the most vulnerable sections of our community. As Rhoda Grant mentioned, it is worth noting the warning from Ephraim Borowski of the Scottish Council of Jewish Communities not to go so far the other way that freedom of expression takes over and we give a “Get out of jail free” card for any kind of hate speech.

The bill has always been clear in sections 11 and 12 that freedom of expression is protected and that we can criticise each other’s views on religion or sexual practices. The European convention on human rights also guarantees the right to protest and to express views, even if they shock, offend or disturb others. Therefore, I think that the bill is acceptable in that regard. However, there is clearly a feeling that freedom of speech needs more underlining, and I have no problem with that. I understand that the Government proposes a widening and deepening of the freedom of expression provisions, which is to be welcomed.

It was suggested by some that there should be a blanket guarantee of freedom of expression to replace sections 11 and 12. However, I agree with the Government’s response that that is not desirable or required for race and disability. As Scotland and the UK become increasingly secular, some religious people certainly feel that they and their beliefs are under threat. There is a suggestion that religion is a private affair and that it has no place in the public square. I therefore think that the bill can help to protect religious people from overly aggressive hard-line secularists.

From that perspective, it disappoints me that some religious groups appear to oppose the bill per se. I thought that Inclusion Scotland made a good point when it said that it is

“concerned that consideration of the Bill has been overly focussed on the theoretical impact of the Bill on freedom of expression rather than the actual impact of hate crime on real people, including disabled people.”

There had been concern about whether the provision on possessing inflammatory material might cover even owning religious scriptures such as the Bible or the Qur’an. I have to say that I did not feel that there was a problem with the provision, but it sounds as though the Government’s proposal to remove section 5 would be a positive step to reassure people.

I am wary of the suggestion that private dwellings should be removed from the criminal law. As Michael Clancy of the Law Society of Scotland said,

“There is no sanctuary, in that sense, for most aspects of the criminal law and I do not think that there should be a sanctuary when it comes to hate speech.”—[Official Report, Justice Committee, 3 November 2020; c 9.]

We pretty well know that much racism and sectarianism stem from the home and the family so, ultimately, in extreme cases, we need to be willing to tackle that.

We received a fair number of briefings in preparation for today’s debate, in which a number of points particularly struck me. For example, the Equality Network and the Scottish Trans Alliance emphasise the importance of non-legislative action, and BEMIS has spoken about that, too.

Training for the police, appropriate treatment for victims and public awareness campaigns are all vital. We know that organisations such as Show Racism the Red Card and others are doing valuable educational work with young people on sectarianism. We certainly want to see more of that kind of thing.

Overall, I very much support the bill and am pleased that the Justice Committee was able to recommend that its general principles be approved, subject to appropriate amendments being lodged. Humza Yousaf has been very proactive in proposing amendments to alleviate many of the concerns that have been raised, and I welcome that.

I certainly hope that Parliament will support the bill at stage 1.

Alex Rowley (Mid Scotland and Fife) (Lab)

In opening my remarks, I must make the point that the way in which the cabinet secretary and the Scottish National Party Government introduced the bill left a lot to be desired. The policy memorandum that accompanies the bill states:

“This Bill provides for the modernising, consolidating and extending of hate crime legislation in Scotland. Legislation in this area has evolved over time in a fragmented manner with the result that different elements of hate crime law are located in different statutes, there is a lack of consistency, and the relevant legislation is not as user-friendly as it could be. The new hate crime legislation will provide greater clarity, transparency and consistency.”

That seems like a good objective but, as we know and as the Government has acknowledged, the bill as drafted is pretty poor and, rather than offering answers, it has simply raised more concerns.

I note that, in its report, the Justice Committee states:

“A substantial proportion of respondents (including most individuals) had concerns about the impact of hate crime laws on freedom of speech and religious expression and about laws designed to protect specific groups. Many called for the repeal of hate crime laws, or, at least, did not want such laws to be extended. These views shaped their responses to the consultation”.

That reflects much of the contact that I have had from individuals, who have raised their concerns and called for parts of the bill to be scrapped, as they believe that the bill threatens freedom of speech and freedom of expression.

Although some have praised the cabinet secretary for being willing to compromise, I believe that it was a major folly to bring forward such an ill-considered and ill-drafted bill. The danger of such an approach is that it has allowed the bill to be politicised in a way that it should not have been, with the result that, despite the committee’s hard work and the fact that most organisations have said that they support the principles of the bill, the Tories are not even prepared to allow it to go forward to the next stage. The danger of the bill becoming politicised is that people use it for political gain in order to get votes. That is the problem. The cabinet secretary made a major mistake when he introduced a piece of proposed legislation that was simply not fit for purpose, and he should acknowledge that.

I am clear that hate and prejudice have no place in Scotland and that it is important to have clear and robust laws to deal with hate crimes that are committed in our society. I am equally supportive of the overall principles of the Hate Crime and Public Order (Scotland) Bill and agree that it is important to consolidate hate crime legislation in one body of law. I believe that the evidence that we have received from various organisations over the past week or so and the work of the Justice Committee indicate that there is support for the principles of the bill.

It is welcome that the Scottish Government has conceded that amendments are necessary to make part 2 of the bill fit for purpose. Requiring intent for the new stirring-up offence will be an improvement to the existing provisions. However, Scottish Labour still has concerns about the bill as it is currently drafted and agrees that further improvements to part 2 are needed to ensure that it includes adequate protection for freedom of speech and thought, and that it does not criminalise legitimate views. It is encouraging that the cabinet secretary has shown willingness to improve the freedom of expression provisions in the bill, but we believe that he should set out how he intends to further amend that aspect both generally and in section 12.

Public understanding of the bill will rely on clarity about the terms that are used. That is why we support the committee’s recommendation that improvements be made to the definitions so that the language is up to date and the application of provisions on reasonable defence, for example, is clear.

I urge the cabinet secretary not to take an arrogant view and not to fail to acknowledge the failures in introducing the bill in the way that he did, but to work together with others. The committee has done a great deal of work to try to bail him out. I also urge the Tories not to play politics, because the bill is a key piece of legislation and, done right, it will be good for Scotland.

Richard Lyle (Uddingston and Bellshill) (SNP)

The debate on the bill has been one of the most intense that I can remember. In the past six months, strong views have been expressed by a huge range of people—lawyers, police officers, academics, journalists, actors, writers, women’s campaigners and faith groups. The bill has generated hundreds of newspaper headlines, thousands of submissions to Parliament and—colleagues will attest to this—a great deal of correspondence from constituents.

The people of Uddingston and Bellshill have been vocal on the bill, and I owe it to them to raise their concerns today. I have received many emails about the bill, and I will read from a few of them. Mari said:

“Please take a stand and require amendments to protect freedom of speech and private conversations.”

That constituent is concerned that speaking from the comfort of her own home will be turned against her.

If people are plotting a hate crime or indeed a terrorist crime, they should face the full force of the law. This may just be newspaper hype, but it needs to be explained.

Anne says:

“People must be allowed to express their views in their own home without the threat of police intervention.”

She asks for a dwelling defence, saying that, otherwise, innocent remarks could and will be blown up. She asks:

“Do we really want to interfere in people’s private lives?”

Thomas asked the same, and those questions must be answered.

I want to ask, and try to answer, two questions today. First, why has the bill received such a strong reaction from the public? Secondly, how should we proceed in the light of that? There is no doubt in my mind that the aims of the bill are laudable. Crimes that are motivated by hatred and prejudice are a blight on society, and the Government, like me, wants them to be punished. I support that intention, but any law must be measured and be supported by the general public. Good intentions are not enough in and of themselves.

Many bills that have been discussed in this Parliament were well motivated but had to be improved at their various stages, and the bill that we are discussing today is a prime example of that. We have to ensure that it meets the test of ridding us of hate, whether that hate arises because of race, religion or sexual orientation. No self-respecting person should hate another person just because of their race, colour, sexual orientation, religion or even their politics. We all occupy a small planet and we must rise above that and learn to live and work with one other.

However, the consequences of well-motivated but poorly executed legislation are serious. We are talking about new offences that will bring citizens into contact with the criminal justice system, and we have to ensure that they tackle hate and bigotry in a measured way. The proposals in the bill may have significant, far-reaching consequences for individuals, families and communities. It is crucial that we get the legislation right the first time instead of having to pick up the pieces later, after the damage has been done.

I think that that concern about the detail of legislation answers my first question, which was why the Hate Crime and Public Order (Scotland) Bill has caused such concern. The stirring up hatred offences in part 2 are highly subjective and their scope has not been defined. I am sure that, after today, they will be defined and, as the bill progresses, that will be resolved. I am grateful to the Government for promising to lodge amendments at stage 2 that will provide more clarity.

There is still wide concern about the definitions in the bill. What does the term “hatred” mean? In today’s world, merely disagreeing with certain ideas is considered hateful by certain people. That is the world we live in and that is what we have to deal with. Vague stirring up hatred laws could give people a tool with which to punish their political opponents and pursue personal grievances through the courts.

Members may recall that my second question was about how we should proceed. If we were being asked to support the mere consolidation of laws, all members would be on board. However, part 2 of the bill presents a problem. Given the concerns that I have expressed on behalf of my constituents, I ask the Government to try to resolve many of the questions that are being asked and which have been asked in the debate. Associated with the bill are risks that need to be discussed and resolved, and I, for one, think that the cabinet secretary is trying to do that.

As I have already said, hate and bigotry have no place in modern society. I welcome the intentions of the bill and will support it tonight.

Shona Robison (Dundee City East) (SNP)

Like others, I begin by thanking in particular the Justice Committee clerks, who have done a tremendous job; my colleagues across different parties who have worked in a very constructive and consensual way; those who have given evidence; and, of course, Lord Bracadale, whose report lies behind what is an important bill for modernising hate crime law.

I also want to thank the cabinet secretary for his approach to the bill. That has been very important in getting us to where we are, in that the Scottish Government has so far accepted 33 of the 39 recommendations—about 85 per cent. That shows his willingness to reach compromise and consensus. So far, there has been huge movement on the stirring-up offences, which has been welcomed by stakeholders; on the strengthening of freedom of speech, which has also been welcomed by stakeholders; and on the removal of the reference to theatrical performances. Now there has been further movement on police powers of entry and on freedom of expression and other characteristics. All that is very welcome and is in line with the committee’s recommendations.

The cabinet secretary has also made clear that the terms “threatening” and “abusive” must have an objective test. The question is how that is best expressed. The cabinet secretary has left the door open on that, including the possibility of further exploration of whether it might be included in the bill.

In addition, the defence of reasonableness is, I think, difficult, and the cabinet secretary has outlined the difficulty of finding an example. I think that the committee acknowledged that in its report, and it is something for further consideration.

I turn to a couple of the comments that have been made during the debate. Margaret Mitchell seemed to be suggesting that one of the reasons for not supporting the bill was the retention of the term “insulting” in relation to race, and I have a couple of things to say about that. It is very important that we recognise the distinct approach to race and the fact that there is a different legal threshold, which is due of course to the prevalence of racial hatred as an issue. I do not want the term “insulting” to be removed, as I think that that would weaken existing legislation and send out a really bad message. I hope that members agree with me on that.

Given all the movement that I outlined at the beginning of my speech, it is disappointing that Liam Kerr has said that the Tories will not support the principles of the bill at stage 1. That is not in keeping with the tone and consensual nature of the way in which the committee has worked or that of the report.

I have some sympathy for Rhoda Grant’s point about the omission of sex as a protected characteristic. However, there is now a working group to look at the need for a stand-alone offence of misogyny, under the very expert chairing of Helena Kennedy. As she and the expert group have been asked to do that job, we ought to allow them to get on with it, albeit that I think that we need to keep a watching brief in order to make sure that that is done within a reasonable timeframe.

I want to end my speech on this point. We must always remember that at the heart of this are the victims of hate crime. That sometimes gets lost in the legal detail in debates about the bill, but we must remember that that is what the bill is about. That is crucial if we are to create the inclusive Scotland that we all want.

Without doubt, the bill has been on a journey. I think that we have reached a large degree of consensus. I am pleased to support the principles of this important bill and I hope that the consensual approach will continue as it enters its next stage.

The Deputy Presiding Officer (Lewis Macdonald)

We move to the closing speeches.

Rhoda Grant

This has been an interesting debate. I think that everyone agrees that we need to strike a balance between protecting freedom of speech and dealing with hate speech, and that the bill should not chill debate or stop disagreement and argument, because we can reach consensus only if we are allowed to express our opinions freely.

I think that every member agreed that, as James Kelly put it, hate crime has no place in a modern Scotland or any modern society, so we should do everything in our power to stop it. James Kelly, Margaret Mitchell, John Mason and other members talked about what we need to do not just through legislation but by other means to educate people about hate crime and ensure that it is not part of our modern society. If hate speech no longer happened, we would not need the bill at all.

A lot of speakers talked about the lack of clarity in the bill. James Kelly quoted the Law Society on that point. The cabinet secretary has clarified on three occasions that there will be changes to the bill. Those changes are welcome, but, as Alex Rowley pointed out, a bill that should have been universally supported by members of this Parliament and, indeed, people outside the Parliament did not get that support because of the very poor quality of the drafting. As Richard Lyle said, the backlash against something that we should all support was unexpected; it happened because of the poor drafting.

We need to be careful, because, as I think Liz Smith said, making bad law is worse than not making law at all. It is a sad fact that, towards the end of a parliamentary session, bills have often been pushed through without time being taken to give them proper scrutiny or to pause for thought, and the legislation has subsequently been found to be flawed and has had to be revisited. I make a plea for time to be provided for reflection on whether the proposed amendments at stage 2 will get it right. We need to get the bill right, and I echo the points that Richard Lyle made to that effect. The cabinet secretary has accepted changes; I urge him to go further and accept more change, because that will be important if we are to get the law right.

Adam Tomkins highlighted the committee’s concerns about the terminology in the bill. Terms such as “abusive” need to be explained in the bill; people need to understand how they will be interpreted, so that there is no doubt about what they mean. Behaviour that is abusive or threatening must be believed to be so by reasonable people. It is important that we put that in the bill, because the meaning must be clear, so that we do not chill debate and disagreement, as Alex Rowley said.

In an intervention during the cabinet secretary’s speech, Johann Lamont showed how accusing someone of hatred can be a means of trying to silence the person’s voice and prevent them from expressing their views and opinions. We need to take care that the bill does not allow that to happen.

Members talked about the aggravators of sex and misogyny. Ruth Maguire talked about the increasing misogyny in society, which concerns us all. It is more complex than hate crime in that it involves power relationships. Women are not a minority—indeed, they are probably the majority—but the way that they are treated because of misogyny makes their place in society unequal.

It is a shame that the bill will be passed before the working group reports—it should have been the other way round. We should have had a crime of misogyny. Had that been done first, it would have dealt with the arguments. The fact that there will be a gap in which people are not protected by sex as a characteristic is really not good enough. Again, it highlights some of the faults in how the bill has been introduced, which might have been rather rushed and without consideration having been given to what we are trying to achieve by it.

A number of speakers, including Liam McArthur and John Finnie, talked about insulting behaviour, which they explained had been included in racial hatred offences for some time. That is retained separately in the bill. Many have argued that it is not used with reference to racial hatred prosecutions, but the point was made strongly to the committee that taking it out of the bill might signal a watering down of racial abuse protections. I do not think that that would be supported on any level.

Some members talked about theatres. Liam McArthur, Rona Mackay and others welcomed the removal of section 4, and I fully agree with them. It is difficult to understand why theatres and the acting profession were singled out in the bill. Anyone who has watched “Small Axe”, a series by Steve McQueen on the BBC, will have seen a portrayal of racial hatred that is sometimes difficult to watch, although it is important to do so.

We all believe that hate crime has no place in a modern Scotland, and we want to get the bill right. Labour will support the bill at stage 1, but we will look for further amendments to ensure that it does what it is supposed to do without chilling debate in our society.

Donald Cameron (Highlands and Islands) (Con)

I refer to my entry in the register of members’ interests, as I am a member of the Faculty of Advocates.

I welcome the opportunity to close for the Scottish Conservatives in this important debate on a bill that, as many members—including Richard Lyle, Adam Tomkins and others—have stated, is one of the most disputed pieces of legislation ever brought before Parliament.

I join others in thanking the Justice Committee for its considered and thorough report, which I will refer to. I particularly thank my friend—and the convener of the committee—Adam Tomkins for his remarks at the beginning of the debate, in which he set out some of the changes that have taken place during the committee’s deliberations on the bill.

From the outset, I reiterate the views of all my colleagues on the Conservative benches and, indeed, across the chamber. We all abhor intolerance, bigotry, racism and prejudice of any kind. We all recognise the profound harm that hate crime causes to the victim and the community to which they belong. However, we, on these benches, profoundly believe that the bill still goes too far.

In the debate in September, I referred to the right to freedom of expression and the importance of preserving that right, notwithstanding the necessary constraints that have always applied to that right. It is a qualified right; there are no absolutes.

I repeat what I said in September about the justice secretary’s own perspective on the bill. I have never doubted his personal commitment to the bill, in the light of his own experiences, or his good faith in attempting to make changes to it, or the sincerity with which he has approached the significant, difficult and thorny issues that arise. However, despite the well-intentioned moves by him and his Government to amend the bill, it unfortunately still falls short of what we and many people in Scotland are calling for.

We have stated that there are elements of the bill that we agree with. As my colleague Liam Kerr noted in his opening remarks, few—if any—witnesses to the committee had any issues with parts 1 and 4 of the bill, and many agreed with part 3, while recognising that some amendments were needed. However, it is clear to us that part 2 simply goes too far, and we remain unconvinced that the Scottish Government properly recognises that. Colleagues across the Parliament will have received hundreds of emails from constituents about the bill and, truth be told, very few—if any—of the people who have contacted me have been vocal in their support.

Many people are concerned that, if the bill is passed, it could have the potential to criminalise acts that may be considered inconsequential or acts that cause only minor offence. For instance, the National Secular Society argued that, despite amendments to the bill, it felt that it would not provide comfort to

“writers, artists or playwrights who anticipate lengthy, expensive, stressful, sleepless months before court cases.”—[Official Report, Justice Committee, 10 November 2020; c 32.]

The Scottish Newspaper Society argued that it knows from the

“number and nature of referrals to the Independent Press Standards Organisation many complaints are lodged on the basis of offence being taken and this legislation creates the conditions for such grievances to move through the criminal justice system.”

One of the most profound interventions was that of BBC Scotland, which stated that it

“strongly shares the concerns expressed by the Scottish Newspaper Society as to the impact on freedom of expression”.

Those are significant and stark comments from diverse and differing quarters of Scotland, and they are not alone. As I noted in my remarks to the chamber in September, and as others have noted, valid and deep concerns have been expressed by Police Scotland, the Scottish Police Federation, the Faculty of Advocates and the Law Society of Scotland, to name but a few organisations.

As Liam Kerr pointed out earlier in the debate, there is also strong public opposition to the bill. Although it should come with the usual caveats, a poll by Savanta ComRes found that 87 per cent of Scots say that free speech is an important right in our society and 63 per cent think that disagreement and debate are beneficial to society. It also found that only 29 per cent of people feel that the law should criminalise offensive words.

As others have noted previously, opposition to elements of the bill has come from people across the political spectrum, which is remarkable. It is clear from the significant opposition from individuals and organisations that the Scottish Government should go back and think again, and I urge it to do so.

I will turn briefly to the committee’s report. The committee concluded that

“support for this Bill will depend on whether the Scottish Government makes the further changes to the Bill needed to bring it into line with the recommendations we have agreed unanimously”.

I acknowledge that the Government has taken on board several of the committee’s recommendations, including the strengthening of freedom of expression protections and the strengthening of section 6 in relation to warrants. As others have noted, it has also gone further than the committee’s recommendation to provide clarity to the provisions in section 5 by removing that section altogether, which we welcome—[Interruption.] I am sorry, but I do not have time. I normally would, but I am constrained.

We welcome that, but it is not enough. The Scottish Conservatives believe that there remain elements of the bill that we cannot support. There is still no protection in the bill for things being said in the privacy of one’s home, and the section 3 stirring up of hatred offences are still wider ranging than in other jurisdictions of the UK. We also remain worried that Lord Bracadale’s recommendation to remove the word “insulting” from section 3 has not been taken up. That, along with other vague concepts such as the word “abusive” and the reasonableness test, mean that numerous flaws remain. To take issue with the point that has been made about the definition of “abusive” appearing in the bill, criminal courts applying the legislation day to day are far more likely to have the legislation to hand than the explanatory notes.

Although the Scottish Government has accepted the committee’s recommendation that free speech protections need to be strengthened, it has also indicated that it does not intend to cover all new characteristics that are introduced in relation to the stirring-up offences.

Several months ago, I called on the Government to pause, think again and come back to Parliament with a new bill that did not risk criminalising the freedom of expression. We made numerous suggestions about how the bill in its current form could be strengthened, but, regrettably, the Government has ignored several of those calls. We are being asked to support a bill that, at its heart, seeks to stamp out the scourge of hate crime but that also attacks the freedoms that our society holds dear. On that principle, the Scottish Conservatives—with deep regret—cannot support the bill at stage 1.

Humza Yousaf

The debate has been constructive and has generated more light than heat. I do not agree with everything that has been said, but arguments have been articulated in a constructive way to progress the bill. I repeat that, as I said in my opening speech, although members might disagree about the bill and although the Conservatives will not vote for its general principles, I do not doubt the commitment of any member of the Conservative group to stand against hatred, bigotry and prejudice. I have been the victim of those things on many occasions, and many Conservative colleagues have messaged me and come up to me to provide their support. I have no doubt about their intentions, but I will come back to why I am disappointed by their stance on the bill.

Many members, if not all, said that freedom of speech is a crucial cornerstone of our democracy, and I could not agree more. I also agree that the law must not criminalise that which is purely offensive or shocking or can be described as disturbing. I was keen to stress during the committee’s scrutiny that the word “offensive” is not mentioned anywhere in the bill. The new offence of stirring up hatred will criminalise behaviour that is threatening or abusive and is intended to stir up hatred, which must be proven beyond reasonable doubt. I will come back to some of those concepts.

I will address key issues that members across the chamber have raised. Many members, including Rhoda Grant, Ruth Maguire, Annabelle Ewing and Shona Robison, referred to the misogynistic harassment working group, on which I welcome the committee’s recommendation. When we first considered drafting the bill, I was probably in the same space as the committee and many members have been in—I thought that it was wise to accept Lord Bracadale’s recommendation of what he called a gender aggravator, which we called a sex aggravator to align the provision with the Equality Act 2010.

As with all the bill’s provisions, I listened to those who are most affected. When I met the largest national organisations that represent women and tackle violence against women—Engender, Scottish Women’s Aid, Rape Crisis Scotland and Zero Tolerance—they presented a strong, united front that a sex aggravator could do more harm than good. I had not considered that until I spoke to those groups. Engender then released a report, which many members have read.

It is important to reflect on the unintended consequences. If we include a sex aggravator, which could still come from members’ stage 2 amendments, we will have to ensure that it does not fall foul of unintended consequences. Scottish Women’s Aid made the strong point that a perpetrator of domestic abuse could use a sex aggravator to continue to abuse the victim or survivor. How would we guard against that? Like all the aggravators, a sex aggravator would be neutral—it would apply to men as it did to women, just as a race aggravator applies to a white person as much as to somebody of colour. That is hugely important to consider.

Johann Lamont

I appreciate very much the fact that the issues will be considered further. Perhaps I have missed this. Will the cabinet secretary explain why that problem applies uniquely to hatred of women and not to other ways in which people are targeted with hatred?

Humza Yousaf

I commend the Engender report to Johann Lamont, because it goes into detail about how there is not a good evidential basis for a sex aggravator being used effectively to deal with misogynistic harassment. Johann Lamont might take a completely different view, and she and her party have every right to lodge stage 2 amendments, but it is hugely important to consider the unintended consequences.

That is not to say that a sex aggravator will not be added to the bill. I have accepted the committee’s recommendation that, if the enabling power is used to make an order, the instrument should be subject to the super-affirmative procedure, to allow for further parliamentary scrutiny. We are not saying that there should not be a sex aggravator; we are taking a moment to allow the misogynistic harassment working group, which Baroness Helena Kennedy is chairing, to take its time—but not too much time, as I will say shortly—to do the work and ensure that no unintended consequences will arise.

I will be speaking to Baroness Helena Kennedy about the committee’s recommendations. She has indicated that she is aware of the committee’s recommendation for a 12-month timescale and we will have a discussion about whether she will be able to carry out the broad area of work that she is being asked to do, which is pioneering and potentially world leading, within 12 months. If she is able to do that, we would want to see that work being done in that timescale.

I want to touch on a few more issues that members have raised. I should caveat everything that I say by noting that the Government and I will give serious consideration to any amendments that are lodged at stage 2. We will go in with an open mind. There is nothing that has been suggested thus far, either by the committee in its report or by members today, that I would be completely closed to and say was completely off the table.

The reasonableness defence remains in the bill. However, for those who have asked us to expand on that, with a non-exhaustive list of factors, I repeat the challenge that I put to the Justice Committee twice and that I have repeated today, without receiving a satisfactory answer. If someone can give me an example of behaviour that was intended to stir up hatred, and the defence was that it was reasonable, I would be extremely keen to hear it. I have put that to law experts. We have many members who are non-practising solicitors and lawyers, including a law professor. If they can think of an example where the reasonableness defence is needed in that regard, I would be all ears. I look forward to hearing about that in advance of stage 2.

A third area that has been raised by members from all parties, but particularly by the Conservatives, is the issue of a public element and protecting conversations that take place in private or in the home. I noted that it was the unanimous recommendation of the committee—forgive me if I am incorrect—that there should not be an absolute dwelling defence in the bill. That was mentioned by legal experts; many legal experts and Police Scotland agreed with that point. The Law Society of Scotland was very strong on that point and the Crown Office agreed. I assume that because the recommendation was unanimous, the Conservatives are not pushing for an absolute dwelling defence. However, they are perhaps suggesting that we consider a public element.

In all sincerity, I would be keen to understand what is meant by a public element. I will give one hypothetical example—I am more than happy, if time allows, to take an intervention on the point or we can discuss it post-stage 1. Let us say that someone invited five friends to the house, they locked the doors and closed the curtains so that there was no public element whatsoever, and they stirred up hatred towards Catholics. Those five friends then went out and desecrated chapels and assaulted priests. Those five individuals could be prosecuted for a variety of offences, but is it genuinely the Conservatives’ position that, because the doors were closed and the curtains were drawn, the instigator—the person who stirred up that hatred—should face immunity from the criminal law? They do not need to answer that right now, but I would be keen to understand what they mean by a public element.

Could a public element mean that someone could hire a community hall and bring people in by invitation only, close the doors and stir up hatred, but because there was no public element—it was by invitation only—that person should be immune from prosecution? I genuinely do not understand what is meant by the public element and greater clarity from the Conservatives on that point would be most welcome.

Briefly, members articulated themselves clearly on the freedom of expression provisions. The Justice Committee made some important recommendations that I was pleased to accept and welcome. I accept Liam McArthur’s interest in that in particular and I would be happy to work with him in advance of stage 2 and hear his views on how the Government could go further and how the bill could go further.

There are two issues: broadening and deepening. On the deepening aspect, I would be keen to hear from members where they think that the freedom of expression provisions could go further. We have gone further on the freedom of expression provision in relation to religion. Can we go further on the freedom of expression provision on sexual orientation? If anyone holds that view, I would be keen to engage on that front.

I have said that we will broaden, extend and expand the freedom of expression clauses. We will introduce new freedom of expression clauses for transgender identity and for age. I will keep an open mind if someone says to me that we need one for disability, a variation of the sex characteristic, race and so on, but I am not convinced that they are needed for other protected characteristics.

On the term “abusive”, I reiterate what I said in my intervention on the convener: I will give further consideration to providing clarity in the bill. Rhoda Grant, James Kelly and others made the point about the definition of “abusive”. As I articulated in the Government’s response, my concern is that we do not fall foul of adverse unintended consequences. I am concerned that we might end up creating confusion in criminal law if we include a definition of “abusive” in the bill while other legislation—for example, the Criminal Justice and Licensing (Scotland) Act 2010, which deals with threatening or abusive behaviour, or the Domestic Abuse (Scotland) Act 2018—does not contain such a definition. That might not be the case.

Adam Tomkins

I am grateful to the cabinet secretary for taking an intervention. It is late in the day, but this is a really important matter. In the 2018 act and in the 2010 act, under the offence in section 38, “abusive” is objectively defined. It is defined differently in those statutes, but it is objectively defined. What harm would be done by an amendment that simply said that, for the purposes of the stirring-up offences, “abusive” means that a reasonable person must have found the behaviour abusive?

Humza Yousaf

I know that I am going up against a law professor, but the difference in interpretation is that Adam Tomkins considers that to be a definition whereas we consider that to be a different legal test. If we were to introduce a reasonable person test, that would be another legal test. The threshold would become that behaviour needed to be threatening or abusive and cause fear and alarm, for example, and such behaviour had to be proven to be intended.

I am not taking the proposal off the table. It is worthy of consideration. I am talking to our legal advisers, as members would expect. I would like to have a discussion with the convener in advance of stage 2 about whether we can provide clarity to the definition in the bill without there being adverse negative consequences. I make that commitment.

I will end—forgive me, Presiding Officer; I know that I have gone over my time—by saying that I am disappointed in the Conservatives’ position. I reiterate that I do not doubt that they are sincere in wanting to tackle prejudiced behaviour and discrimination, but I am disappointed, because the Government has engaged in good faith and we have found common ground. I am sure that they have done so, but I say to the Tories that it is important that they engage further with victims organisations and those who are most impacted by hate crime.

If the Conservatives were to vote against the bill’s general principles, they would be voting against the general principles, not the minutiae of particular provisions or amendments that might be lodged. I can see them shaking their heads, but that is what they would be doing. They would be voting against the general principles of a hate crime bill that is supported by the Equality Network, Stonewall Scotland, racial equality groups, many faith groups, Age Scotland and Victim Support Scotland.

I know that there are genuine concerns that aspects of the bill could have what is described by many people as a chilling effect on freedom of speech. We should also all bear in mind, as I am sure that we do, the chilling effect of hate crime. Ask any gay person, any lesbian, any bisexual, any person with a disability, any black or Asian person who has been racially abused, any Muslim, any Jew, any Sikh, any Christian, any Catholic or anybody who has been the victim of hate crime about the chilling effect that hate crime has had on them.

I will end on this quote, which Victim Support Scotland sent in a briefing to MSPs. They spoke to a user of their service who is continually physically and verbally threatened in their own community due to both their race and sexual identity. That individual said:

“He’s attacking me and my family because of who we are and what we look like. It hurts. I can’t change who I am.”

That goes to the very root of hate crime; you cannot change who you are.

I commend the motion in my name and I hope that the Parliament will allow the bill to proceed to stage 2.

The Presiding Officer (Ken Macintosh)

The first question is, that motion S5M-23682, in the name of Humza Yousaf, on the Hate Crime and Public Order (Scotland) Bill at stage 1, be agreed to. Are we agreed?

Members: No.

The Presiding Officer

We will move to a division. We will suspend for a few moments to allow members to access the voting app.

The Presiding Officer

We will resume proceedings and go straight to the vote. I remind members that the question is, that S5M-23682, in the name of Humza Yousaf, on the Hate Crime and Public Order (Scotland) Bill at stage 1, be agreed to. Members may cast their votes now. This will be a one-minute division.

For the benefit of members online, we are now in the vote on motion S5M-23682, in the name of Humza Yousaf, on stage 1 of the Hate Crime and Public Order (Scotland) Bill. Members should vote yes if they agree with the bill.

I am afraid that we have had some technical difficulties. Members who are joining us on BlueJeans did not hear me calling the vote and half a dozen of them were therefore unable to exercise their vote. We will have to run that vote again. It is better to run it again than to disenfranchise members.

We will wait until we can be sure that members can hear the instructions from the chamber. There will be a short pause while we find that out. We are not suspended. We are still in session and we are still being broadcast.

There is a slight problem with Blue Jeans, and the members online cannot hear instructions from the chamber. We will run the vote again and I will type in instructions so that they can all see when the vote is open, which is our back-up position. We will run the vote for slightly longer. We can check whether anybody has voted. We will therefore run the vote again for two minutes and we will make sure that everybody has a chance to vote. Just hold on a second before we get ready to vote.

The question is, that motion S5M-23682, in the name of Humza Yousaf, on the Hate Crime and Public Order (Scotland) Bill at stage 1, be agreed to. Members may cast their votes now. This will be a two-minute division on the Hate Crime and Public Order (Scotland) Bill at stage 1.

The vote is now closed, so I will check whether any member struggled to vote and I will confirm the result after I have done that.

Edward Mountain (Highlands and Islands) (Con)

On a point of order, Presiding Officer. Oh—finally, the robust system has confirmed that I voted no. I withdraw my point of order. The system is obviously not bust but robust.

Dr Alasdair Allan (Na h-Eileanan an Iar) (SNP)

On a point of order, Presiding Officer. I thought that I had voted, but I have an error message suggesting that I have not.

The Presiding Officer

I can confirm that you did vote, Dr Allan.

The Minister for Public Health, Sport and Wellbeing (Joe FitzPatrick)

On a point of order, Presiding Officer. My screen does not say whether I voted or not, so I am hoping that I did.

The Presiding Officer

You did.

Rona Mackay (Strathkelvin and Bearsden) (SNP)

On a point of order, Presiding Officer. I was unable to vote, and I would have voted yes.

The Presiding Officer

Thank you, Ms Mackay. We heard that, and I will make sure that your vote is added to the vote roll.

Jenny Marra (North East Scotland) (Lab)

On a point of order, Presiding Officer. I am sorry, but I could not hear you and I missed the vote. I would have voted yes.

The Presiding Officer

Thank you, Ms Marra. That is noted and your vote will be added to the vote roll.

Alex Neil (Airdrie and Shotts) (SNP)

On a point of order, Presiding Officer. My system would not allow me in to vote. Microsoft has got no verification codes left. Can I ensure that my vote is recorded as—[Inaudible.] [Laughter.]

The Presiding Officer

Can I just check what your vote was, Mr Neil?

Alex Neil

I would have voted yes.

The Presiding Officer

Thank you. That has been noted and your vote will be added to the vote roll.

Sandra White (Glasgow Kelvin) (SNP)

On a point of order, Presiding Officer. I voted yes in the first vote, then was unable to vote in the second vote. Then the system told me that I voted no, and then it told me that I had not voted at all. I would have voted—and did vote—yes.

The Presiding Officer

Thank you, Ms White. I will make sure that your yes vote is recorded.

I can confirm that we have now accounted for all votes.

For

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Bibby, Neil (West Scotland) (Lab)
Boyack, Sarah (Lothian) (Lab)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Finnie, John (Highlands and Islands) (Green)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Greer, Ross (West Scotland) (Green)
Griffin, Mark (Central Scotland) (Lab)
Harper, Emma (South Scotland) (SNP)
Harvie, Patrick (Glasgow) (Green)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Johnson, Daniel (Edinburgh Southern) (Lab)
Kelly, James (Glasgow) (Lab)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lamont, Johann (Glasgow) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Lochhead, Richard (Moray) (SNP)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Macdonald, Lewis (North East Scotland) (Lab)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Marra, Jenny (North East Scotland) (Lab)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Matheson, Michael (Falkirk West) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McArthur, Liam (Orkney Islands) (LD)
McKee, Ivan (Glasgow Provan) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
McNeill, Pauline (Glasgow) (Lab)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Rennie, Willie (North East Fife) (LD)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Rumbles, Mike (North East Scotland) (LD)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Russell, Michael (Argyll and Bute) (SNP)
Sarwar, Anas (Glasgow) (Lab)
Smith, Elaine (Central Scotland) (Lab)
Smyth, Colin (South Scotland) (Lab)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Kevin (Aberdeen Central) (SNP)
Swinney, John (Perthshire North) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Wightman, Andy (Lothian) (Green)
Wishart, Beatrice (Shetland Islands) (LD)
Yousaf, Humza (Glasgow Pollok) (SNP)

Against

Balfour, Jeremy (Lothian) (Con)
Ballantyne, Michelle (South Scotland) (Ind)
Bowman, Bill (North East Scotland) (Con)
Briggs, Miles (Lothian) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Carlaw, Jackson (Eastwood) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Chapman, Peter (North East Scotland) (Con)
Corry, Maurice (West Scotland) (Con)
Davidson, Ruth (Edinburgh Central) (Con)
Golden, Maurice (West Scotland) (Con)
Greene, Jamie (West Scotland) (Con)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Harris, Alison (Central Scotland) (Con)
Kerr, Liam (North East Scotland) (Con)
Lindhurst, Gordon (Lothian) (Con)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Mason, Tom (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Scott, John (Ayr) (Con)
Simpson, Graham (Central Scotland) (Con)
Smith, Liz (Mid Scotland and Fife) (Con)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Wells, Annie (Glasgow) (Con)
Whittle, Brian (South Scotland) (Con)

Abstentions

Tomkins, Adam (Glasgow) (Con)

The Presiding Officer

The result of the division on motion S5M-23682, in the name of Humza Yousaf, on the Hate Crime and Public Order (Scotland) Bill at stage 1, is: For 91, Against 29, Abstentions 1.

Motion agreed to,

That the Parliament agrees to the general principles of the Hate Crime and Public Order (Scotland) Bill.

The Presiding Officer

The final question is, that motion S5M-23531, in the name of Kate Forbes, on the financial resolution to the Hate Crime and Public Order (Scotland) Bill, be agreed to. Are we agreed?

Members: No.

The Presiding Officer

There will be a division.

The vote is now closed.

I am afraid that there were a few technical difficulties with that vote, so I will take points of order, and we will make sure that everybody’s vote is recorded.

We have a point of order from Rona Mackay, although I am not sure that the sound is working.

Rona Mackay

Oh dear. [Laughter.]

The Presiding Officer

We have a point of order from Rona Mackay.

Colleagues, there are a number of technical difficulties. Basically, members who are online cannot hear us. Although we are in communication, it is not satisfactory. We have agreed the main item of business, so I suggest that we postpone the vote on the financial resolution until tomorrow. We will rerun the vote tomorrow when we have business in the chamber.

Before we move to members’ business, I encourage all members to be careful when leaving the chamber, to wear their masks, to observe social distancing and to follow the one-way systems that are in place around the building.

I will suspend the meeting for a few moments to make sure that members who are joining us remotely can do so.

The Convener (Adam Tomkins)

Good morning, everyone, and welcome to the Justice Committee’s fourth meeting in 2021. We have received no apologies. We are joined by Johann Lamont, Margaret Mitchell and the Cabinet Secretary for Justice, Humza Yousaf. I welcome you all to our meeting.

Agenda item 1 is stage 2 consideration of the Hate Crime and Public Order (Scotland) Bill. Members should have a copy of the marshalled list and the groupings for debate.

This is a fully virtual meeting and we will use the chat function on BlueJeans as the means of voting electronically. When we vote, I will call for members to type Y in the chat function to record any votes for yes and I will do the same in turn for no, for which members will type N, and for abstain, which members will record by typing A. The clerks will collate the results and I will read them out and confirm which member voted in which way. If I make an error, please alert me immediately so that we can correct it. I will take the voting as slowly as we need to so that we all have time to manage everything properly.

The cabinet secretary is joined by a number of officials, who are welcome. I remind them that they cannot speak at this stage, but they can communicate directly with the cabinet secretary.

If we lose the connection to anyone at any point, I will suspend the meeting so that we can try to get them back. If we cannot do that after a reasonable time, I will have to deem that the member is not present and consider with the deputy convener whether we can proceed or whether we need to suspend the meeting for longer.

I intend to take a short break at about 10 past or quarter past 11, and the meeting will not continue beyond half past 12. We are unlikely to finish stage 2 consideration today, which means that we will continue it next week.

If there are no questions about anything that I have just said, we will get under way.

Before section 1

The Convener

The first group of amendments is on freedom of expression. Amendment 103, in the name of Liam McArthur, is grouped with amendments 65, 77 to 79, 117, 81, 82, 82A, 82B and 112. If amendment 117 is agreed to, amendment 81 will be pre-empted.

Liam McArthur (Orkney Islands) (LD)

We live in a gloriously diverse world and we are all the stronger because of it. Evidence shows that societies and economies are healthier when every person can contribute, and that means stopping the discrimination that rules many people out of living their lives to the full. Genuine equality of opportunity means equality no matter what we look like, who we are or where we come from.

As a liberal, I believe passionately in freedom of expression, even when the exercise of that freedom can be challenging, unpleasant or offensive, but there are necessary limits on that freedom when it impinges on the rights of others. Freedom of expression does not amount to freedom to erode the rights of others. Establishing its thresholds and limits in criminal law is not easy or straightforward, but we need to meet that fundamental challenge in amending the bill.

I pursued freedom of expression protections with every panel of witnesses that we heard from at stage 1, and such protections have been a priority for me as we moved to stage 2. I welcomed the cabinet secretary’s offer to look at how they could be widened and deepened, but I came to the view that that opened up the risk of a piecemeal approach. As the Equality and Human Rights Commission noted, that brings its own problems, which is why I was attracted to the idea of a catch-all freedom of expression amendment.

Amendment 103 reflects such an approach. I note that the Equality Network and the Scottish Trans Alliance both “strongly support the principle” behind the amendment and argue that a freedom of expression provision to cover stirring-up offences generally is preferable to

“singling out certain protected characteristics”

as being more acceptable to criticise.

I fully accept that amendment 103 is flawed and requires further refinement, but it provides a basis on which to strike the balance that we all wish to see. It has served a purpose by opening up discussions between committee members and the Government, and with key stakeholders, about how such a catch-all amendment could be made to work.

I am aware of concerns that, if we are not careful, the process of arriving at an approach that addresses our collective concerns may lack the necessary transparency and rigour. Taking further evidence between stages 2 and 3 is almost certainly impractical in the timeframe that is available, which has proved to be extremely challenging for the committee. Nevertheless, a way will need to be found to expose any proposed wording to the widest possible scrutiny and input ahead of stage 3.

Suggestions have been made to improve amendment 103. I am grateful to the Equality and Human Rights Commission for its constructive proposals, which draw on the wording that is used in the Marriage and Civil Partnership (Scotland) Act 2014. That might not suffice, given that we are dealing with criminal law and the additional pressure to provide clarity on scope and application, but it might offer a basis from which to develop something that is more suitable.

On the clarity that is needed, the Equality Network made a reasonable point in observing that no single piece of legislation can be expected to comprehensively list all the things that are not criminal; rather, criminal law is designed to articulate what behaviour is not allowed in our society. That is not straightforward and it certainly still requires clarity, but it is a useful frame of reference. I look forward to hearing the views of colleagues and the cabinet secretary on the amendment.

To turn briefly to the other amendments that are in the group, the approach that the cabinet secretary takes in amendment 65, in relation to age, and amendment 82, on gender, means that I cannot support those amendments, for the reasons that I have set out. The same is true of Liam Kerr’s amendments 81 and 82B and, for the sake of balance, of my amendment 82A, which was an attempt to explore an alternative means of addressing the issue. I will not move that amendment.

John Finnie’s amendment 117 is interesting. In referring to

“criticism of matters relating to sexual orientation”,

it appears less open to being targeted at individuals. I look forward to hearing the thinking behind that approach.

I understand the intention of Rhoda Grant’s amendment 112, but I am concerned about the scope that it would allow for actions and behaviour that purport to be

“for the purpose of advocating for women’s rights”

but which go beyond anything that I suspect she would wish to endorse.

Notwithstanding what I have said, the cabinet secretary’s amendments 77 to 79 do not seem to trigger the same issues as the other amendments in the group do. They appear to be a reasonable response to the overwhelming written and oral evidence that the committee received from a broad range of groups that represent different faiths and religions and the secular community. On that basis, I am comfortable with supporting those proposed changes.

Hate crime legislation should not be used to criminalise good-faith, well intentioned and respectful debate, even when the views that are expressed in that debate are found to be unpleasant, hurtful or offensive. We know that many people have genuine questions about changing the process of gender recognition. The bill should not criminalise such conversations, but there are vulnerable people in the conversations who need and deserve to be protected.

I move amendment 103.

The Cabinet Secretary for Justice (Humza Yousaf)

Good morning. I hope that the committee can hear me loud and clear—if not, I have a fetching headset that I am happy to wear if the sound drops off. Please alert me if that happens.

I thank Liam McArthur for his remarks. Members will be aware that the purpose of the bill’s provisions on the protection of freedom of expression is to provide reassurance and greater clarity about the boundaries of the criminal law. That reassurance comes through provisions that highlight behaviours that will continue to be legal once the offences of stirring up hatred are implemented.

In particular, transgender identity has repeatedly been cited as requiring new provisions to help to clarify the operation of the new offence of stirring up hatred in relation to transgender identity. I make it clear that, as Liam McArthur said, nothing in the bill prevents robust debate or even criticism of policies such as those contained in the proposals for reform of the Gender Recognition Act 2004, as long as such behaviour does not cross the line into being threatening or abusive and intended to stir up hatred.

Above and beyond the issue of transgender identity, there are clear and compelling calls for provisions across all characteristics. Views differ on how we might best achieve reassurance and clarity. It is therefore incumbent on us all to work together to strike the appropriate balance. It is for that reason that, despite having lodged amendments 65 and 82 in the group, I advise the committee that I will not move either of them, because it is clear that there is no agreement yet on the best approach. I thank Opposition members, with whom I have engaged over the past few days, for agreeing to take a collaborative approach to finding a solution on which I hope we can all agree in advance of stage 3—one that gives comfort to those who are concerned about free speech and protects communities from hatred. I have always said that those two aspects are not mutually exclusive.

I intend to move amendments 77 to 79, which are on religion, for reasons that I will explain and to which Liam McArthur alluded.

It is apparent that there is a lack of consensus on how to approach freedom of expression protections—that much is clear from reactions to the amendments that have been lodged on the subject. That is exemplified by amendment 82A, in the name of Liam McArthur, and amendment 82B, in the name of Liam Kerr, which have both been lodged to adjust my amendment 82 but which take radically different policy paths.

Following discussions in recent days that have involved all of us who have lodged amendments on freedom of expression, I think that it is right that we should take time between stages 2 and 3 to reflect on the amendments and see whether we can develop a collaborative approach that produces a set of provisions that will command support across the board.

Notwithstanding my intention not to move amendments 65 and 82, I will offer a brief commentary on them, as well as speaking to the other amendments in the group. Amendment 103, which we just heard about from Liam McArthur, would add a general provision on the protection of freedom of expression that applied to all protected characteristics that the bill covers. It would also make it clear that nothing in the bill affects a person’s rights under article 10 of the European convention on human rights.

I do not doubt that amendment 103 is well intentioned. Subsection (1) of the proposed new section would apply across the characteristics and is the type of freedom of expression protection that is likely to inform the solution that is necessary. However, as Liam McArthur recognised, there are technical and policy concerns about how the amendment would achieve the aim, which I will explain briefly.

The most important issue with subsection (1) of the proposed new section is that it appears to disapply the operation of the stirring-up offences, because it provides that

“nothing under this Act should prohibit discussion or criticism in relation to characteristics”.

The policy on offences of stirring up hatred is such that, if discussion or criticism of characteristics amounts to behaviour or material that is threatening or abusive and is intended to stir up hatred, the bill will prohibit such discussion or criticism.

The practical effect of subsection (1) of the proposed new section is that a person could discuss or criticise race or religion in a threatening or abusive manner, with the intention of stirring up hatred against Jews, Muslims or black people, but no offence would be committed. I know that that is not what Liam McArthur seeks to achieve through amendment 103. It is likely that, ahead of stage 3, a provision could be developed that is capable of providing for certain types of behaviour or materials that are not solely to be taken to be threatening or abusive in relation to characteristics that the bill covers.

I have concerns about subsection (2) of the proposed new section in amendment 103. Liam McArthur touched on them; they are largely about what subsection (2) would do to the compatibility of the bill’s provisions with ECHR rights, while not providing additional guidance on the boundaries of the criminal law. That could create unwelcome legal uncertainty. Although provisions in other legislation might well mirror what is in subsection (2), Liam McArthur was right to point out that there are different thresholds and implications for criminal law versus civil law.

We can use Liam McArthur’s amendment 103—particularly subsection (1)—as a potential starting point for any consideration between stages 2 and 3 of a broader freedom of expression provision.

I will move amendments 77 to 79, which are on religion. There should be a minimum standard of freedom of expression protection for characteristics that the bill covers—as I said, I have agreed to work on that collaboratively with colleagues. However, to draw on the consensus about specific protections that relate to religion, there should be additional protections, which my amendments 77 to 79 will provide.

As I have stated throughout scrutiny of the bill, the Scottish Government recognises the importance of balancing freedom of expression with people’s right to be protected from hateful speech—those aims are not mutually exclusive. I am aware of concerns that have been expressed about the extension to religion of the stirring up hatred offence and about the perceived likelihood that self-censorship might arise in relation to the right to express views about faith or discuss and debate religious matters. That is not the bill’s intention.

It is important to recognise that the right to freedom of expression is not without limit. We must strike an appropriate balance between respecting rights of expression and protecting victims sufficiently. For characteristics that the bill covers, we will work together to achieve effective protection that can be considered at stage 3. However, additional protections for religion are needed, and I am comforted that many witnesses and stakeholders, including those from faith groups such as the Catholic church, have indicated that the current provisions in section 11 could usefully be aligned more closely with the equivalent provisions in English and Welsh legislation under the Public Order Act 1986. In effect, that is what amendments 77 to 79 will do. I will move those amendments and I ask members to support them.

As I indicated, I will not move amendments 65 and 82. However, I will explain why they were lodged, because I wish to put on the record how the general approach to protecting freedom of expression in relation to the characteristics that amendments 65 and 82 cover could be capable of application to all the characteristics that are in the bill.

Amendment 65 would insert after section 10 a new section to provide for freedom of expression in relation to the characteristic of age for the purposes of the stirring up hatred offence in section 3(2). Subsections (1) and (2) of the proposed new section provide that

“for the purposes of section 3(2) ... Behaviour or material is not to be taken to be threatening or abusive solely on the basis that it involves ... discussion or criticism of matters relating to age, whether relating to age generally or to a particular age or age range.”

Amendment 82 would insert after section 12 a new section to provide for freedom of expression in relation to the characteristic of transgender identity for the purpose of the stirring up hatred offence in section 3(2). The approach that the amendment takes is similar to that for the age characteristic, which I just spoke about. There are two amendments to amendment 82, which I have touched on.

Amendments 117 and 81 would adjust the protection of freedom of expression provision for the characteristic of sexual orientation in section 12. Amendment 81, in the name of Liam Kerr, would add to the protections a new specific matter relating to the sex of parties involved in marriages. I say without pre-empting him that, after a constructive discussion, I understand that he has agreed not to move his amendment, which I welcome.

I have had constructive dialogue with John Finnie on amendment 117, which would largely remove section 12(2) and replace it with a protection in respect of

“discussion or criticism of ... sexual orientation.”

The existing provision is more focused on sexual practices and conduct, which would still be covered by amendment 117. On balance, and in line with what I hope and expect will be a collaborative approach ahead of stage 3, I ask Mr Finnie not to move the amendment.

I also hope, in the light of constructive engagement that she and I have had in the past few days, that Rhoda Grant will not move amendment 112. It has been clear from scrutiny of the bill that protection of freedom of expression is a key element of its overall safeguards. Such provisions play an important role in reassuring people and in providing clarity about the boundaries of the stirring-up offences.

Amendment 112 relates to protection of freedom of expression for those who advocate for women’s rights. It is important that the bill does not inadvertently cause anyone who wishes, in a non-threatening and non-abusive manner, to discuss or criticise matters that relate to women’s rights to feel that they must self-censor because they fear that they might commit an offence. I recognise that many women with sincerely held beliefs are concerned that they would have to self-censor because of what is in the bill. That is absolutely not the bill’s intention. I am committed to providing reassurance through what I hope will be a broad freedom of expression provision that applies to all the characteristics, which will give comfort to the many women who have raised such concerns. The fact that the new offences can be committed only when the behaviour is threatening or abusive and—if my amendments 1 to 4, in a later group, are agreed to—when it is intended to stir up hatred is an important safeguard.

Under amendment 112, if behaviour or material was threatening or abusive and was intended to stir up hatred in respect of any characteristics in the bill—such as race, religion or transgender identity—that would be permitted if it was in the context of advocating for women’s rights. I cannot support that. I know that Rhoda Grant’s amendment is well intentioned, but it is deeply flawed. It could mean that, under the guise of protecting or advocating for women’s rights, somebody could engage in racism, homophobia, Islamophobia or antisemitism, which I know is not Rhoda Grant’s intention. The issue will be covered by the freedom of expression provision that I mentioned. I have had constructive dialogue with Ms Grant and I hope that she will agree not to move amendment 112 and to work with other members to develop a broader freedom of expression provision that covers all the protected characteristics.

My door has been open and it remains so. I will continue discussions with a wide range of stakeholders and with the Opposition to ensure that we lodge a freedom of expression provision at stage 3 that commands as much support as possible across wider society. People expect us to work together to rise to the challenge, and I am sure that we can.

The Convener

Thank you, cabinet secretary.

I call John Finnie to speak to amendment 117 and the other amendments in the group.

John Finnie (Highlands and Islands) (Green)

We have already heard about the worth of our system of scrutiny, which builds on the committee’s stage 1 report. The cabinet secretary said two key words. We all want “reassurance” on freedom of expression; we also want absolute “clarity” about what the law does and does not say.

We all know that, with any legislation that includes a list, questions are immediately raised about what is not on the list, or what should be on it. My amendment 117—which was added to our list—takes the same approach in relation to sexual orientation as amendment 65 takes in relation to age and amendment 82 takes in relation to transgender identity.

Amendment 117 would make a significant improvement to section 12. It would remove what the Equality Network referred to as the “laundry list”. There are some unpleasant things on that list—I refer to the removal of language relating to conversion therapy, for example. I am delighted that amendment 117 would have pre-empted amendment 81, whereas amendment 82B may be a case of least said, soonest mended.

However, it is clear, even this far into the debate, that a general provision on freedom of expression would be preferable. To that end, I align myself with the comments of both members who have just spoken—in particular, those of my colleague Liam McArthur on his amendment 103. Such a general approach would not single out protected characteristics, which would make it more acceptable to some people.

We know that words are important. We want robust provision for freedom of expression, but we also want clarity on hate crime so that there is no dubiety about what constitutes such crime. There is undoubtedly a danger that, if we get the legislation wrong, it would embolden would-be perpetrators and reinforce the idea that lesbian, gay, bisexual, transgender and intersex people are, for some reason, less valuable than others.

I thank all those who have submitted briefings. The Equality Network’s briefing has been helpful. It talks about

“a chilling effect on ... confidence”,

which cannot be underestimated.

Many people who are able to see things over the longer term understand the advances that have been made in people’s outlook, largely due to education rather than legislation. We want no regression in that regard whatsoever, but I fear that there is the potential for that to happen. The willingness of all parties to engage in discussions on that can—I hope—sort the matter out.

I will not say much more, other than to highlight the lack of precision in the drafting of amendment 112. I know that my colleague Rhoda Grant would never condone stirring up hatred, but amendment 112 is clumsily worded, and I will not support it.

On the cabinet secretary’s remarks about religion in relation to his amendments 77 to 79, I will lend him my support. We heard in committee that there is strong support for such an approach, and it is important that that is reflected in the legislation that is passed.

I hope that the collaborative approach to which members have alluded will continue, because that is how we make the best legislation. Our obligation is to make good law, and we do that when we work together.

Liam Kerr (North East Scotland) (Con)

I have two amendments in the group on freedom of expression.

Given my contributions to both the debate that I brought to the chamber and the debate at stage 1, it is no secret that I think that the stirring-up offences and protections in part 2 suffer from real challenges. As I set out clearly in those debates, were it up to me, we would have taken those elements out of the bill in order to deal with them separately, outside the extraordinarily truncated timetable facing us.

However, we are where we are. It is my firm belief that if the Government insists on putting limits on freedom of speech, it has a duty to make absolutely clear, without ambiguity, what those limits are. That is the clarity and precision that John Finnie rightly talked about.

Pretty much all my amendments start from that position. They try to make the bill as tightly drafted as it can be, not only so that it protects those people whom it seeks to protect, but so that it does not inadvertently create grey areas and uncertainty. The bill must be clear and unambiguous to ensure that those who require protection get it and those who wish to exercise freedom of expression are able to do so and know precisely what the limits are. The cabinet secretary said that nothing in the bill will criminalise certain things, but people need to be clear on that.

Here is the situation in which we find ourselves. All colleagues have been required to draft and lodge amendments, and are now required to debate them, in an extraordinarily tight window. I believe that we all recognise our duty to make the bill as good and as workable as possible—after all, that is the purpose of amending it—so that we ensure that the coverage, and the protections that are required, can be made to work.

The cabinet secretary articulated his view that the aim of the amendments on freedom of expression may be more productively achieved through reflective, collaborative working, whereby all MSPs can articulate what we seek to achieve, work with stakeholders and ensure that whatever mechanism we use to protect both the protected categories and freedom of expression works.

Liam McArthur mentioned the briefing from the Equality and Human Rights Commission. I noted that briefing too, because it rightly suggests that there exists the risk of a piecemeal approach. This debate takes us towards that approach.

There is merit in many of the amendments in the group, but, as other speakers have articulated, there are challenges and limitations to all of them, and we have to get this right. I am persuaded by that; I think that there must be merit in members working collaboratively, but transparently and openly, in order to come up with an amendment or amendments that tighten the bill appropriately and ensure that the protections that are needed work.

In his remarks, the cabinet secretary articulated that certain things are absolutely “not the intention” of the bill. That may be, but it is imperative that intention is translated into legal certainty—the “absolute clarity” that John Finnie referred to.

For those reasons, I shall not move amendments 81 and 82B today. I look forward to working with colleagues and stakeholders to make the bill as good as it can be.

The Convener

Thank you. I call Rhoda Grant to speak to amendment 112 and the other amendments in the group.

Rhoda Grant (Highlands and Islands) (Lab)

I understand the evidence that was received from Engender and other organisations, and what they say about hate crime against women being based on a power dynamic that is different from the hate crime that is suffered by minority groups. However, I still believe that leaving misogyny out of the bill could leave women at a disadvantage, because it could be deemed hateful to stand up against misogyny, yet the person doing that could have no protection at all.

My amendment 112 is not a general freedom of expression amendment; I lodged it in order to put some protection in the bill for a group that is subject to hate crime that is not covered by the bill. I understand that the power exists to add misogyny to the legislation at a later date, but I am keen that women get protection from the start, even if that protection is removed when we later legislate against misogyny.

I know that my amendment does not achieve what I was looking for it to achieve, and the last thing that I want to do is provide a loophole. I lodged it as a probing amendment, with the aim of hearing the thoughts of the cabinet secretary and the committee, and with a view to lodging an amendment that provides that protection at stage 3.

I am attracted to Liam McArthur’s approach of having a more general freedom of speech protection, but I want to see some balance in the bill that gives protection against misogyny.

I am grateful to the cabinet secretary for the discussions, and I want to be part of future discussions with him, with committee members and with all stakeholders to get the bill right. I believe that we have just one chance to do that, and we need to make sure that it is right for everybody concerned.

I will not move amendment 112, and I look forward to working with others on the issue.

The Convener

Thank you. Before I call Fulton MacGregor, I want to add a few words of my own to the debate, given the importance of the subject matter and the centrality of this question to the committee’s stage 1 report.

All the conclusions and recommendations in our stage 1 report were reached and made unanimously. In paragraph 44, we said:

“The Committee agrees that the right to freedom of speech includes the right to offend, shock or disturb. The Committee understands that this Bill is not intended to prohibit speech which others may find offensive, and neither is it intended to lead to any self-censorship. The Committee is anxious to ensure, however, that these are not unintended consequences of the Bill.”

That anxiety is evident in a number of the contributions that we have heard this morning.

I started my speech in the stage 1 debate by reciting some of the American criticisms of the bill, which I have been reading about ever since I first read the bill and which are about why hate speech laws are not the right way to combat hate in society. That is not my view, but I wanted to read the view of those free speech lawyers, advocates and campaigners who take the view, which is commonly taken in the United States, that the way to combat hate is with more speech, not less. Their criticisms of hate speech law really resonate with me as I read and puzzle over the bill.

The criticisms boil down to two: vagueness—that we lack precision when we ban speech or criminalise aspects of it; and the risk of overbreadth. All the amendments in this group seem to have been designed to mitigate those risks and meet the challenge of how to legislate to criminalise hate speech without falling into the trap of either vagueness or overbreadth.

I want to say a few things about the matter, particularly in the context of the on-going and difficult debate over transgender identity and its role in the bill. The events of the past few days and the reaction to the amendments that have been lodged in this group with regard to transgender identity make it even more obvious that we absolutely must define what we mean.

I have been disturbed by the reaction to what I thought were modest, innocent and perfectly reasonable amendments in the name of the cabinet secretary—particularly amendment 82, for which I would have voted if the cabinet secretary had pressed it. It is clear that the cabinet secretary’s carefully chosen words in amendment 82 have caused fear, alarm and distress. I take that fear, alarm and distress seriously, but I have to say that I am alarmed, distressed and, if I am honest, a little afraid of the reaction, or aspects of it, to the amendment.

Yesterday, a leader of one of the parties in the Scottish Parliament tweeted that, in his view, a number of the amendments to the Hate Crime and Public Order (Scotland) Bill that have been lodged were “shockingly overt transphobic ... amendments”. We seem to have come to a point at which, if we are going to criminalise hate speech on the ground of transgender identity, we have to define what we mean.

I struggle to find an amendment in this or any other group that I think is a “shockingly overt transphobic” amendment. I do not know whether the MSP to whom I have just referred was tweeting about Liam Kerr’s amendment 82B, but

“stating that sex is an immutable biological characteristic”

does not make one transphobic. Does

“stating that there are only two sexes”

make one transphobic? Really? Does using

“‘woman’ or ‘man’ and equivalent terms”

or “pronouns” in a certain way make one transphobic? Are we trying to criminalise that sort of speech?

The parties that are represented in the Parliament seem to have reached a sort of conclusion, behind closed doors, that the way forward is to find a generic free speech provision that would be based on, but not identical to, Liam McArthur’s amendment 103. I really worry about that.

Given that we are trying to tackle the problems of vagueness and overbreadth, having a generic provision, rather than a series of specific provisions, might not meet the challenge. I do not rule out the possibility that a provision that is based on amendment 103 might turn out to be the solution. However, I want to put down a marker. If the challenge is to combat the problems of vagueness and overbreadth in criminal law, having a generic free speech provision, rather than a series of specific and carefully worded provisions, might not be the solution that some people seem to think that it is.

To put a slightly different gloss on the matter, I have always thought that, in the end, it will not be free speech provisions that do the real work of delimiting and defining the scope of the offences. The words that we use in the bill define the offences. For example, I support the cabinet secretary’s amendments in a later group that ensure that the word “abusive” is defined and understood objectively by the insertion into the bill of a reasonable person test. Those amendments are likely to do much more work in practice when it comes to defining and delimiting the scope of the offences than free speech provisions.

I support the collaborative approach—of course I do. However, as Liam McArthur said, we are talking at one and the same time about matters of fundamental principle and about some very vulnerable people. On a subject as sensitive and as difficult as this, that collaborative approach in law making surely has to be in Parliament and in public, and not behind closed doors, with party representatives talking only to themselves.

John Finnie is right that we need absolute clarity in this area of law. I am one of those people who now needs more reassurance about the matter than I did 48 or 72 hours ago, because of some of the things that I have seen written in the context of these amendments. I am less reassured now than I was a few days ago that we will be able to fix this, and fix it appropriately. That is what I wanted to say about this debate.

Fulton MacGregor (Coatbridge and Chryston) (SNP)

I will speak about amendments 65 and 82, in the name of the cabinet secretary. I agree with a lot of what the convener said. A reasonable analysis of amendment 82 in particular would quickly determine that it is a well-intended and modest—as the convener put it—amendment to tighten up the bill. As the convener also alluded to, however, that is unfortunately not how it has been interpreted over the past few days in relation to some aspects. It is up to that point that I agree with the convener.

I had some concerns when I first saw the amendment, although not to the extreme extent that we have seen on social media and certainly not about the intention behind it. However, the nine of us on the committee and people who have been following the bill have an understanding of it that the general public do not in relation to the possible unintended consequences.

We all know that there is a heated debate going on and I was worried that it could lead to further isolation and marginalisation of our transgender community, which is a concern that I have heard. I am glad that the cabinet secretary has said that he will not press the amendment and that we can go back to the drawing board on this—that is definitely the best place to be. I also agree with the Equality Network, Stonewall Scotland and the Scottish Trans Alliance that a broader and more generalised definition that incorporates all hate crime would be beneficial. Although I appreciate the concerns that have been raised by the convener and others, that is the way forward.

Obviously, there must be freedom of expression; we have all agreed on that throughout the committee’s scrutiny of the bill, and that has to include all the debates that we have, including the gender reform debate that we are having now. There has to be scope and permission for people to have strongly held views on both sides of that debate.

However, as a committee and as a Parliament, we need to work together to get this right going into stage 3. I agree with the convener’s final comments that it will be very difficult. However, it is also a good opportunity, at the end of this parliamentary session, for Parliament to come together and work to find a solution. I am confident that we will be able to do that.

The Convener

For what it is worth, I certainly pledge to work with the cabinet secretary and anybody else, preferably in public, to resolve these issues that it seems we cannot resolve today.

Rona Mackay (Strathkelvin and Bearsden) (SNP)

I agree with Fulton MacGregor’s comments, and I want to address a couple of your comments, convener. Everyone on the committee is as one on the fact that we must protect freedom of expression, which is the crux of the bill. Convener, you used the phrase “behind closed doors”. I am not sure that I agree with that. The cabinet secretary was clear and open about the fact that he has spoken to party leaders about their amendments, which is normal practice. There was nothing cloak and dagger about that, and he did it for the right reasons. I hope that it will lead to consensus and that we get a good bill.

The other point that I want to make is about being very specific. As you will know, when we start to be very specific about characteristics, we will always get an opposing view, which would not achieve consensus.

The Convener

I ask the cabinet secretary to respond briefly to some of the points that have been made in the debate, before Liam McArthur winds up.

Humza Yousaf

Thank you, convener. I will touch on some of the points that you made. All the contributions that we have heard have been extremely helpful, and I appreciate your reflections, convener, given your expertise in the law. It is a difficult balance for all of us to get right between stages 2 and 3, because we must recognise that there is an obligation on us to be specific and to provide clarity—to come together to find precision where we can. However, as I heard loudly and clearly on Friday when I met stakeholders and, indeed, when I spoke to a number of members across political parties, we must recognise that that focus—being specific—can also lead to some groups feeling as though they are being targeted and marginalised. How do we get that balance right between telling people that they are not being targeted because of who they are and saying that we are trying to create law and give people assurances that are specific? Perhaps we can do that by using the wording of Liam McArthur’s amendment 103, which refers to “discussion” and, possibly, we should even think about using the word “criticism”, which amendment 103 does, because it is important, in a democracy, that people are allowed to criticise. How do we do that in a way that also does not make any group feel marginalised or targeted? Applying the freedom of expression protection that is set out in amendment 103 to all the protected characteristics might be a way to get round some of the fears that a number of groups have mentioned.

Convener, I take on board your point, and you speak for a number of people who might be concerned about the fact that we are going to withdraw or not move several of our amendments, but I hope that they will take some comfort from our saying that we will come back at stage 3 with, we hope, a freedom of expression protection that will still be robust and strong and provide the clarity and precision that are needed, without making any group feel that it is being targeted. I am happy to leave it there, convener.

The Convener

Thank you for that helpful set of remarks, cabinet secretary. I invite Liam McArthur to wind up the debate on the group and to press or withdraw amendment 103.

Liam McArthur

Like you, I found the cabinet secretary’s comments and all the contributions to the debate helpful. The cabinet secretary is right to remind us that the challenge is to create robust protections for freedom of expression that avoid marginalising or targeting individual groups. John Finnie helpfully drew out the concerns about so-called laundry lists for articulating freedom of expression protections. That is why I chose to take a more generalised catch-all approach in amendment 103.

Liam Kerr was also right to point to the need for clarity in what is being criminalised and in how the intention that we all share—as is clear from the comments that we have heard this morning—is translated into legal certainty. I am grateful to Rhoda Grant for helpfully walking us through the probing nature of her amendment and her concerns about the omission from the bill of sex as an aggravator. I welcome, too, Fulton MacGregor’s support for the approach that has been taken to amendments, albeit that that needs to be revised.

I understand Rona Mackay’s concern to push back at the notion that discussions are somehow taking place behind closed doors in a way that is not normal practice or—as she referred to it—“cloak and dagger”; I do not think that there is any suggestion that that is what has been done in recent times. The formulation of an approach where there are disagreements between individual members or parties is not unusual.

However, we are now in a different situation—the cabinet secretary has demonstrably reached out to as wide a cross-section of people as he can to see whether there is a way forward, and I commend him again for doing so. Nonetheless, the convener was absolutely right to apply a challenge—not just a free speech critique of hate crime laws and their vagueness and risk of overbreadth, but a challenge to us that, in adopting a collaborative approach, to which we all appear to be signed up, we develop that in Parliament and in public. A way needs to be found to ensure that, as we develop a version of a catch-all freedom of expression amendment that builds on amendment 103 and addresses its flaws and deficiencies, the process is seen as transparent, robust and vigorous, for all the reasons that the convener highlighted with regard to the way in which the debate is playing out.

Again, I appreciate the fact that all members have referred to, and have shown strong support for, a collaborative approach, but there is a risk that such an approach excludes those who are not part of the discussion. We need to avoid that at all costs. I am sure that the cabinet secretary will have heard that loud and clear during this morning’s deliberations and will be giving active thought to how we can avoid that happening.

For the time being, I am content not to press amendment 103 and to commit to working with the convener, other colleagues and the cabinet secretary to develop wording that addresses the concerns that have been outlined today.

Amendment 103, by agreement, withdrawn.

Section 1—Aggravation of offences by prejudice

The Convener

The next group is on language of statutory aggravations. Amendment 5, in the name of the cabinet secretary, is the only amendment in the group.

Humza Yousaf

I recognise the importance of accessibility of the language that is used in legislation. The issue of language in the operation of the statutory aggravators has been discussed throughout the scrutiny process. In that regard, part 1 of the bill makes provision for the aggravation of offences by prejudice and provides that a criminal

“offence is aggravated”

if

“the offender evinces malice and ill-will towards the victim ... based on the victim’s membership or presumed membership of a group defined by reference to a characteristic”

as listed, or if

“the offence is motivated (wholly or partly) by malice and ill-will towards”

any such group.

Lord Bracadale, in his final report, recommended updating the language in that area to aid understanding, and I have given that careful consideration. Importantly, his recommendation in that regard was not intended to change the applicable legal threshold. That is why we took the decision, on introducing the bill, to retain the existing wording, in order to provide reassurance that the current legal threshold would continue to operate. The approach was informed by bodies such as Police Scotland, which stated that any change to the existing wording, specifically “malice and ill-will”, might alter the threshold under which offences aggravated by prejudice are captured.

However, in my evidence to the Justice Committee, I indicated that a potential compromise would be to adjust the language on the threshold so that it talks about demonstrating malice and ill will. That is the effect of amendment 5, which will replace “evinces” with “demonstrates”, so that a criminal offence will be aggravated by prejudice if the offender demonstrates malice and ill will towards the victim, based on the victim’s membership or presumed membership of a group defined by reference to a listed characteristic.

I am pleased that, in its stage 1 report, the committee supported such an approach, which will aid accessibility of the language without having the effect of lowering the current legal threshold.

I move amendment 5.

Amendment 5 agreed to.

The Convener

Group 3 is on the characteristic of age. Amendment 30, in the name of Margaret Mitchell, is grouped with amendments 43, 86, 87 and 99A. If amendment 86 is agreed to, I cannot call amendment 87, because of pre-emption.

Margaret Mitchell (Central Scotland) (Con)

Amendments 30 and 43 would remove “age” from the list of characteristics in the bill. Amendment 86 operates on the basis that if age is removed from the list of characteristics there will be no need for it to be defined in section 14, “Meaning of the characteristics”. Amendment 99A would remove from Government amendment 99 the requirement for age as a characteristic to be captured by reporting.

In his review, Lord Bracadale recommended that, outwith the hate crime scheme, the Scottish Government should consider introducing a general aggravation that covers exploitation and vulnerability. The inclusion of age as a characteristic follows on from his conclusion that there ought to be

“a new statutory aggravation based on age hostility.”

In his report, Lord Bracadale said that, for a crime to be considered to be aggravated by age hostility, it would need to be

“proved that the offence was motivated by hostility based on age, or the offender demonstrates hostility towards the victim based on age during, or immediately before or after, the commission of the offence.”

In practice, proving that would be quite a difficult task. In particular, for crimes committed against the elderly, it would need to be determined that the crime was motivated by hatred of the old as a group and the victim’s membership of that group, rather than by a desire to exploit the victim’s perceived vulnerability because of their age.

The Justice Committee thought that, given the evidence that it received and the conclusions of research that it commissioned, the approach should be based on vulnerability, not age. The committee asked the cabinet secretary to set out, outwith the bill, his plans for dealing with exploitation of people based on their vulnerability. I therefore lodged probing amendments to give the cabinet secretary the opportunity to do just that.

The committee commissioned from Dr Hannah Bows, of the University of Durham, research on elder abuse. She concluded:

“there is no available evidence that older people are targeted as victims of crime ... because they represent the older community.”

Furthermore, she noted:

“there is limited reliable evidence that older people are specifically targeted because of hatred and hostility”

towards older people.

That is key to our understanding of what is a hate crime. The purpose of hate crime legislation is to distinguish between ordinary crimes, as it were, and those that are motivated by hatred or prejudice towards certain aspects of the victim’s identity. Hate crime is characterised by the targeting of the victim because of their difference and perceived membership of a particular group towards which the offender is antagonistic. That is why characteristics such as race, disability and sexual orientation are included in hate crime legislation, as they are distinct groups of individuals.

However, although there is recognition that older people are the victims of crime and there are legitimate concerns about how the criminal justice system currently responds to cases in which the victim is elderly—in particular, there are concerns about low prosecution and conviction rates—including age as a characteristic in this bill will not address those issues.

It has been argued that age ought to be included in the bill because other characteristics that are protected by equalities legislation are included. For the sake of completeness, therefore, age should also be captured. However, equalities legislation and hate crime legislation serve different purposes. Equalities law aims to prevent discrimination against an individual, in the workplace and wider society, based on their protected characteristics. Discrimination against older people when applying for a promotion at work, for example, is not equivalent to assaulting someone because of the offender’s hatred and malicious feelings towards older people as a group.

The Crown Office and Procurator Fiscal Service stated in its written submission:

“There is a distinction between offences which demonstrate hostility towards someone’s age and offences where the accused has exploited someone because of their age and perceived associated vulnerability. The aggravation relating to age in the Bill captures the former”—

that is, hostility—

“but not the latter”—

that is, vulnerability.

The Law Society of Scotland pointed out the difficulty in distinguishing between hostility to someone’s age and their perceived vulnerability because of their age. In addition, John Wilkes, of the Equality and Human Rights Commission, told the committee:

“The commission does not consider that age should be a listed characteristic, as it thinks that there will not be sufficient evidence to meet the threshold for statutory aggravation.”—[Official Report, Justice Committee, 17 November 2020; c 27.]

The cabinet secretary’s amendment 87 will amend the wording of section 14(2) from

“age falling within a range of ages”

to “age range”, which I agree is clearer.

However, the inclusion of age as a characteristic in the bill will not serve to address some of the fundamental issues that the justice system faces when the victim of a crime is elderly. Furthermore, evidence heard by the committee noted the lack of clarity on the difference between crimes motivated by a hatred of a certain age group and those that involve taking advantage of someone because of their membership of that age group.

Therefore, age as a characteristic ought not to be included in the bill. Instead, other approaches, outside legislative change, should be considered when it comes to elder abuse and crimes that are based on an individual’s perceived vulnerability.

I move amendment 30.

Humza Yousaf

Margaret Mitchell’s amendments in this group, when read with amendment 11 in the name of Liam Kerr, which is in a later group, would remove the characteristic of age from the bill.

The bill includes age as an additional characteristic to ensure that hate crime legislation provides sufficient protection against offences that arise from age-related prejudice. It includes a new statutory aggravation in relation to age, as well as new offences that relate to the stirring up of hatred based on age.

The inclusion of age as a characteristic in hate crime legislation will send a clear message to society that those offences will be treated seriously and will not be tolerated. Importantly, the offences cover persons of any age or age range. That means that they do not apply only to older people or children and young people, although it might be that, in practice, offences that relate to the characteristic of age are more likely to be committed against those groups. I note that, during its stage 1 scrutiny, the committee heard from Age Scotland and YouthLink Scotland. Both organisations have said that the people who they support feel targeted because of their age, and both support the inclusion of age in the bill.

Amendments 30, 43 and 86 would remove that protection for people who are targeted on the basis of their age. Amendment 99A would amend amendment 99, in my name, which provides for the publication of reports by police on recorded hate crime, to remove the requirement to report hate crime offences involving age. The number of prosecutions under the characteristic of age might not be high, but I see no reason why that should prevent us from providing that additional protection.

I am aware of concerns around the need to tackle the exploitation of vulnerability, as opposed to hate crime based on age and I note that Margaret Mitchell referenced research by Dr Hannah Bows, who explored that matter in depth. As I outlined in my response to the committee’s stage 1 report, the Government is committed to considering whether there should be reforms to the criminal law to improve the protection that is available to people who might be at increased risk of being exploited and becoming victims of crime because of their vulnerability. That is very distinct from hate crime.

Our having age as a characteristic in hate crime law while separately seeking to introduce, at some future date, new criminal law reforms in respect of vulnerability are not mutually exclusive approaches, not least because they seek to achieve different policy outcomes. The addition of age would do no harm—[Inaudible.] That is a conversation that we will, no doubt, have later in relation to—[Inaudible.] In fact, a number of stakeholders support the inclusion of age as a characteristic.

Therefore, I very much consider that the offences in the bill should apply to age in a way that is similar to how they apply to other characteristics. I ask the member not to press amendment 30 and not to move amendments 43, 86 and 99A. If she does, I ask members not to agree to those amendments.

Amendment 87, in my name, will make a minor change to refine the drafting in section 14 in relation to the meaning of “age”, and I hope that members will support it.

The Convener

Thank you, cabinet secretary. No other member has indicated that they wish to speak, so I invite Margaret Mitchell to wind up and press or withdraw amendment 30.

Margaret Mitchell

I note what the cabinet secretary said about the inclusion of age as a characteristic sending out a strong message, but that is a pretty weak reason to include it in the hate crime bill. We are talking about not hate crimes but crimes against young and old on the basis of vulnerability. Dr Hannah Bows said that seeking to recognise and respond to elder abuse through specific criminal offences or by widening access to the hate crime framework to include older age will neither reduce violence and abuse nor improve prosecution and conviction rates.

I am disappointed that the cabinet secretary did not say more about what the Scottish Government could do to raise awareness and recognition of the exploitation of elderly people, and sometimes younger people—very often through scams—based on their vulnerability. Perhaps there is a need for a holistic approach to the work that is being done under current strategies and for wider work on older people and a broader view of family law with respect to older people.

I hope that the cabinet secretary will reflect on those serious concerns as we move to stage 3. It would be a tragedy if the Government thought that age being included as a hate crime was a done deal and just walked away and forgot about the issue. If the exploitation of vulnerability is not included in the bill, elderly people and younger people who might be targeted will still be vulnerable.

However, as I said, my amendments are probing amendments. I will not press amendment 30.

Amendment 30, by agreement, withdrawn.

The Convener

Before we move to the next group, we will suspend for five minutes, so that we can check on our home-schooling children, or have a biscuit or a cup of tea.

The Convener

The next group is on the characteristic of sex. Amendment 31, in the name of Johann Lamont, is grouped with amendments 89, 93 and 95 to 98.

Johann Lamont (Glasgow) (Lab)

I have some problems with my connection, so I apologise if people have difficulty following me.

I sent a letter to committee members, which I hope has proved to be useful in providing the detailed thinking behind my amendments. [Inaudible.]—wants to include—[Inaudible.]—lose the definition of sex that is currently—[Inaudible.]—the act—[Inaudible.]—fundamental point—

The Convener

I am sorry to interrupt, but we should move Johann Lamont from video to audio only, because I am struggling to hear her. I understand that her connection will be improved if she is on audio only. Please make that change, because we need to be able to hear her arguments.

Johann Lamont

I apologise. I hope that my letter provides enough detail should the connection break again.

If we seek to produce legislation that addresses behaviour that is motivated by hate, it is essential that we address the hatred that blights the lives of women—a group of people that is, of course, in the majority, although that does not prevent misogyny surfacing.

Earlier, I was struck by committee members’ anxiousness to find consensus and to be clear about how particular groups should be treated. However, the bill excludes women, and most women have experienced misogyny during their life—that is not a controversial or disputed point. Indeed, those who argue against including sex as a characteristic in the bill are explicit in recognising that that is a reality for women.

I think that that is a matter for us, as legislators. I note that the working group on misogynistic harassment has been established; it can do an important job, but it is not a substitute for a decision to include women in primary legislation.

Amendment 31 would add “sex” as a characteristic, recognising that sex can be a motivator in a hate crime. The amendment would not preclude the working group from doing its job. The group can address any potential challenges and work on improving the situation; it could also propose stand-alone legislation, if it saw fit to do so. However, at the moment, women are excluded from the bill, and that is not acceptable.

The Government has relied on arguments that have been made by Engender and other groups. Those groups should be treated with respect; what they have to say is important. However, other academics, women’s organisations and groups have argued, some for a long time, that the hatred of women—misogyny—should be recognised in law. It is not a new idea.

I will briefly touch on some of the arguments that have been made against including sex as a characteristic in the bill. It has been said that that would not be a panacea, and that we need more than simply a signal, such as education. That is true for all the characteristics that are listed in the bill, because no part of the legislation will work unless there is education and public awareness, so it would seem that women are unique in not even being given that signal. The current position is that the Government will invest in education and public awareness, but that women’s experience would not be part of that conversation.

There is also an argument—which I understand—that the legislation could be manipulated by abusers of women. However, that has always been the case. If we were prevented from legislating because abusive men would manipulate the legislation against women, we would not have legislated on stalking, sexual assault, domestic abuse or coercive control. There might be a job for the working group to look at the way in which legislation can be used by abusers against the abused. I note that it might be the case that the legislation could be used against other characteristics, too.

Groups have made the point that we should not use gender-neutral language and that we should name the crime. I recognise that strongly—we should talk about male violence against women and so on. However, the same groups have applauded the Domestic Abuse (Scotland) Act 2018 and called it world leading, yet the 2018 act uses neutral language. Indeed, in the discussion on age, the cabinet secretary has already talked about the way in which the characteristics are described in legislation.

There is also the argument that women are not a minority group and that people find it uncomfortable to have legislation for women because they are not in the minority. However, that fact should give us even greater cause to think that the characteristic of sex should be included. Women are still abused not just in Scotland but globally, despite being the majority.

It is important to understand the experience of misogyny, which should be in primary legislation and decided democratically. That is what Lord Bracadale argued, as have other witnesses. It is clear that, when women are included, they have become more visible in public policy and data gathering. That helps the experience of women to be understood, including in the justice system. We should not be afraid of gathering such information and of better understanding women’s lives.

I have a final couple of points. I appreciate that the convener has been generous in the time that he is giving me.

The Law Society of Scotland makes a key point about the importance of education and public awareness campaigns. If we are to have this legislation, it cannot simply be a signal. However, as I said, as the bill is drafted, hatred of women would be absent from the discussion. We cannot afford to be excluded from that discussion, because so many women and girls are affected.

I have heard no compelling argument that there is a risk to including women at this stage; indeed, doing so would treat them with respect. If we accept that women’s lives are shaped and limited by misogyny and hatred, we should be clear that that is unacceptable. As more groups are identified and named in the legislation, the absence of women becomes harder to understand.

I hope that the committee will recognise that my amendments are not about making life more difficult. We have the provision of the working group, which can look at some of the concerns that have been expressed. It is a fundamental reality of women’s lives that they experience hatred, so I do not understand why a bill on hate crime would exclude women. Whatever the weaknesses of the bill might be, they should apply to all characteristics. I believe strongly that women should be included and I hope that the committee agrees with me.

I move amendment 31.

The Convener

Thank you. I am sorry that we were not able to see you, but we caught clearly what you were saying. Annabelle Ewing, Rhoda Grant, John Finnie, Liam Kerr and Liam McArthur all want to contribute to the debate, and I will call them in due course. First, I call the cabinet secretary to speak to amendment 95 and the other amendments in the group.

Humza Yousaf

I thank Johann Lamont for her remarks. It is important to recognise her life-long contribution to and efforts in respect of equality for women and more broadly across the board. Despite the fact that I will disagree with her in relation to her amendments, I hope that she will not doubt our motivations with regard to equality for women and, indeed, across the board.

As I have stated throughout the scrutiny of the bill, the Scottish Government recognises the importance of tackling misogyny and all forms of gender-based violence in Scotland. That is evident through our work to implement the equally safe strategy and to progress the recommendations from the First Minister’s national advisory council on women and girls. We understand the significance of how such behaviour can limit women’s and girls’ space for action, and we want to address that. However, I also know that there are strong—sometimes diverging—views on how that important matter should be tackled.

Johann Lamont’s amendments would see the characteristic of sex added to the list of characteristics in section 1 of the bill, and add provision to define sex. Consequently, the amendments would remove the power to make those additions by regulation at a later date. On the surface, that seems appealing. Including sex in Scotland’s hate crime framework would make it clear that offences that are aggravated by malice and ill will towards individuals based on their sex are unacceptable and subject to sanction by the criminal law. Some of the witnesses that the committee heard from at stage 1 initially favoured that approach, but a number of them went on to change their minds when more evidence was heard. That additional evidence has persuaded me, as I know it has persuaded some members of the committee, that the issue needs further expert examination.

It is my view that the issue of misogyny is far bigger than the hate crime framework. The Government has put on record its belief that work should be done to explore having a stand-alone offence of misogyny, and Baroness Helena Kennedy’s working group will examine and explore that matter.

If adding a sex aggravator was a neutral act, I would have no hesitation in supporting it. However, it must be recognised that a number of experts of pedigree, with decades of expertise in that area, have provided evidence that such an aggravator could harm women. In particular, a number of national organisations with expertise in tackling misogyny and violence against women, including Engender, Scottish Women’s Aid, Rape Crisis Scotland and Zero Tolerance, have all warned of potential harms to women and unintended consequences flowing from the inclusion of sex in the hate crime framework.

During the committee’s stage 1 oral evidence sessions, we heard the concerns directly, including the potential for an expected low level of prosecutions to mask the true extent of misogyny that exists across our society, and, importantly, that domestic abuse perpetrators might use the threat of criminality and a gender-neutral aggravator as part of a wider pattern of coercive control over women. Above all, I do not want to legislate for something that has not been fully considered and could potentially have detrimental impacts on tackling the very real consequences of violent and oppressive misogyny.

The bill proposes a different approach. At present, section 15 contains an enabling power to allow for the characteristic of sex to be added to the bill at a later date. The rationale for including the enabling power was closely tied to the creation of the working group. The working group will consider how the criminal law deals with serious misogyny and misogynistic acts; it will also consider whether to use the bill’s power at section 15 to add the characteristic of sex to the hate crime legislative framework.

Assembling a group with a significant level of expertise and granting it the time to consider relevant evidence and data will allow us to be presented with a set of robust conclusions on how we best tackle misogyny in the Scottish context.

The group might well come back with the conclusion that a sex aggravator is an important tool. If that is the case, the Government will, of course, give that recommendation consideration and, if necessary, it will trigger the enabling power that I hope will be in the bill after stage 2. The proposals represent a unique way forward that provides the best approach to help shape society so that women and girls can live their lives free from harassment and abuse.

Towards the end of last year, I was delighted to announce Baroness Kennedy’s appointment as chair of the working group. The committee’s stage 1 report recommended that MSPs wait until the working group has reported before Parliament considers legislating to add sex as a hate-crime characteristic. I strongly agree with that approach.

In response to the call from parliamentarians for the working group to progress its work at pace, Baroness Kennedy confirmed yesterday that she has agreed to meet the 12-month deadline recommended by the Justice Committee in its stage 1 report. That means that the working group is committed to delivering its findings in 12 months, and I hope that that gives comfort to anybody who feels that the issue is being kicked into the long grass. It is not. There will be a recommendation, one way or another, after expert advice and analysis, on whether a sex aggravator should be added to the bill via the enabling power.

It is for those reasons that I ask members to give the working group the time that it needs to scrutinise the data and evidence on misogyny in Scotland; to test the ability of the criminal law to respond to these problems; and to work through the issue of whether a sex aggravator could unintentionally do harm to women. I believe that, if we give the working group that time, its report will be substantial and informative. I therefore ask members to vote against the amendments in the name of Johann Lamont.

The amendments in my name in this group will adjust the enabling power so that it can also be used to modify other provisions of the bill in the event that the characteristic of sex is added to the hate crime legislation framework in future.

Amendment 96 will allow future regulations to make provisions for the data reporting requirements, which I have proposed adding to the bill under a separate amendment.

Amendment 98 will ensure that, in response to the stage 1 report, we strengthen the procedure applying to regulations that enable the characteristic of sex to be added so that the power is subject to a form of super-affirmative procedure.

Amendment 95 will allow protection of freedom of expression provisions to be added to the bill for the characteristic of sex. That would provide flexibility to allow freedom of expression provisions to be included, or not, by means of regulations made under section 15, as well as providing the flexibility to determine how those freedom of expression provisions should be framed. However, in light of previous discussions on the general approach to freedom of expression in the bill, I will not move amendment 95 at this stage, which will allow members to work collaboratively to achieve the most effective protections for consideration at stage 3.

I encourage members to support amendments 96 and 98 in my name.

The Convener

As I mentioned earlier, a number of members have indicated their desire to participate in the debate on this group. I call Annabelle Ewing first, to be followed by Rhoda Grant.

Annabelle Ewing (Cowdenbeath) (SNP)

During the stage 1 debate on the bill on 15 December 2020, I made a number of points on this topic, which I wish briefly to reiterate.

First, the genesis of the bill has nothing to do with the current debate on the immutability of sexual dimorphism and the importance of not conflating sex and gender. I know, because I was the junior minister in the justice team who commissioned Lord Bracadale to conduct the review of hate crime legislation.

Secondly, the approach being proposed by the Scottish Government reflects a long-standing debate about the best way to tackle misogyny against women because of their sex. That debate centres on whether that is best tackled by a symmetrical approach—an approach that, to date, has patently failed—or whether there should be a presumption against gender-neutral laws, as set forth in the Istanbul convention on preventing and combating violence against women and domestic violence.

Given the scale of the problem that affects women, and on the basis of the evidence that was submitted to the committee, I am persuaded that wider reflection on the issue is long overdue. In that regard, I have been reassured by the Crown Office and Procurator Fiscal Service’s comment that, in the meantime, the absence of a specific sex aggravator will not prevent prosecutions from taking place.

I therefore welcome Baroness Helena Kennedy’s working group, which is to look at the issue in detail. I note the calibre and expertise of the working group’s newly announced membership and I am pleased that Baroness Kennedy has confirmed that the group will conclude its work within 12 months. I pressed for that in the committee, and was pleased to receive the support of my committee colleagues and the Scottish Government in that regard. I understand that the working group will have its first meeting next week.

I am of the view that we should allow the group to conduct its vital work and that we should not pre-empt the outcome, so that we can all get to a point at which women cannot be attacked with impunity because of their sex.

Rhoda Grant

I support amendment 31, in the name of Johann Lamont, for the same reasons that I gave when I spoke to my amendment 112. Johann made the point that violence against women is men’s violence against women. It is important that we understand that when we legislate.

I, too, support the establishment of the working group and look forward to hearing its findings. Meanwhile, however, the problem remains that women do not have any protection and are being left out of a bill on hate crime. I welcome the fact that the group will report quickly, within 12 months, but the cabinet secretary cannot guarantee what the group will say about its findings and what legislation will follow. I would be more comfortable if we added “sex” to the list in the bill, with provision to remove and replace it after the working group on misogynistic harassment has reported, because not to do so will leave a gap in the legislation and in protection for women.

John Finnie

I have just a few months left of my stint as a parliamentarian, and at no time previously have I been so aware of the idea of people taking sides and asking, “Whose side are you on?” I am on the side of good, informed law making. I think that that is very important.f

Johann Lamont talked about domestic violence. I should declare that I am an office bearer of the cross-party group on men’s violence against women and girls. The title of the group is important. We talk about men’s violence against women and girls—language is important, as we said earlier—and although they are not exclusively the victims of domestic violence, they are overwhelmingly the victims of domestic violence and it is overwhelmingly the case that we still live in a deeply flawed, patriarchal society.

Johann talked about our work to legislate on controlling and coercive behaviour. We are rightly proud that we dealt with that concept, which is challenging to deal with, and it is important that the training that followed the legislation recognises the role of men’s controlling behaviour in our society.

The bill is fundamentally about consolidating hate crime law; it is also about some extension of hate crime law, as we made clear in our report.

In November of last year, the committee welcomed the appointment of Baroness Kennedy, and yesterday, or possibly it was the day before, we learnt of the composition of the task force that she will lead to consider whether misogynistic behaviour should be a stand-alone offence in Scots law. If I thought for one second that what the Scottish Government was presenting was a version of kicking the matter into the long grass, I might take a different approach. However, I ask Johann Lamont to reflect on whether, having engaged the impressive membership of that working group, which has a very impressive leader—we were all delighted that Helena Kennedy would lead it—it would be inappropriate to—[Inaudible.]—its work. There is important work to be done, which will be reflected in legislative changes in due course. This is not—[Inaudible.]

Liam Kerr

I was not set on speaking to this group of amendments, but I will do so because, as members will know, the issue has played on my mind from the start, much as it has on the minds of my committee colleagues.

In my contributions in committee and debate, I have always started from the position that there should be an aggravator for sex. As Johann Lamont put it, women should be included. I regret that the issue was not included at the outset and fear greatly that it could be kicked into the long grass, as John Finnie just alluded to. Annabelle Ewing said that it is a long-standing debate and it seems to be, which worries me greatly.

I received Johann Lamont’s letter, in which she articulates why she feels that her amendments should be included. I found her argument very persuasive. She argued her case well and spoke well today. The key question that I have asked myself throughout the process is along the lines of: why not just do this? Where is the prejudice if we put the protection in, unless and until the working group reports? Rhoda Grant made a similar proposition, but I come to a different conclusion. I heard evidence in committee about where the prejudice might be, which made me pause a little, but, for completeness, I found that Johann Lamont argued coherently why we should prefer her side.

Crucially, in my mind, we received a briefing from the Law Society of Scotland—of which I remind colleagues that I am a member—to which Johann Lamont referred. She said that there is no risk in including women at this stage, but the Law Society’s submission said

“any substantial change to the list of aggravations should be subject to robust scrutiny”,

and it is right. We should have had that opportunity, but it has not been afforded to us and we cannot subject it to that scrutiny at this stage. That is disappointing, but it is the reality.

Like others, I am reassured by the news that the working group has been constituted and particularly pleased that it has set a 12-month timeframe for when it will report. That gives me comfort that the issue will not be kicked into the long grass. I am disappointed because I would have preferred to be in a different position today, but we are where we are. For those reasons, and only after deep reflection, I will vote against Johann Lamont’s amendments.

Liam McArthur

Like John Finnie, I start with a declaration. I have recently been appointed ambassador to the newly established White Ribbon Scotland Orkney organisation. I am pleased to say that it is going from strength to strength here in the islands.

Like Liam Kerr, not only can I understand the anxiety underlying Johann Lamont’s amendment 31—I, too, thank her for the information that she provided ahead of this committee session—but it is very much the position that I held at the outset of the scrutiny process. The bill appears to offer the perfect opportunity to create a legislative tool to deal with the vile misogyny that remains all too prevalent in our society.

It was said that disgraceful online vitriol had largely motivated the exodus of women from public office in the run-up to the 2019 general election, which reinforced the clear and pressing need for more to be done to tackle misogynistic harassment—a problem that is not confined to the world of politics and too often blights the lives and chances of women and girls in this country. The Scottish Liberal Democrats are wholly committed to tackling the matter robustly and with urgency.

In our evidence sessions, however, a variety of equality organisations called for that work to be done in a holistic way that would recognise the full extent of misogynistic behaviours; they persuaded me. Moreover, I believe that the group that Baroness Kennedy assembled and chairs is equipped to carry out the task in a thorough and inclusive manner.

Although I support the establishment of that group, I share the concerns of a number of members about how realistic it is to expect the group to produce recommendations within a year. Even if it meets that heroically optimistic timeframe, legitimate concerns exist about the scope that would be available to Parliament to scrutinise those recommendations effectively.

I look forward to hearing what the cabinet secretary has to say on that point. In the meantime, I thank Johann Lamont for lodging her amendment, which allows for a debate on the question of misogynistic harassment at stage 2, but confirm that I will not support amendment 31.

Rona Mackay

We have had good contributions so I will be brief—I just want to say a few words.

I thank Johann Lamont for lodging her amendment. I have huge sympathy and understanding for what she says, and she puts her case forward very well. I am one of the conveners of the group on men’s violence against women and girls, so the subject means a lot to me. On balance, due to the evidence that we have heard, I will not support the amendment for reasons that members have already articulated, so I will not go over them again.

Johann said that the matter of misogynistic harassment was not even being discussed. Although it might not be part of the bill at this stage, the matter is being discussed and the setting up of the misogynistic harassment working group shows how seriously the issue is being taken.

The issue is standing alone, in that an eminent group has been set up to consider the whole issue. Misogyny has been with us for ever and it seems to be getting worse, so I hope that the group’s work will show us the way forward. I would rather let the group do its scrutiny within a year and see what comes out of the process, and that is the only reason why I will not support amendment 31 at this stage.

Shona Robison (Dundee City East) (SNP)

I will be brief as well. As a feminist, I have spent my whole life fighting misogyny. We all want the same outcome, but it is about how to get the best one. If I thought for a minute that amendment 31 would solve the problem of misogyny in Scotland and beyond, I would support it. However, the evidence that the committee has heard over the past few weeks and months shows that the issue is complex, which is why the working group has been established.

I want us to consider the issue of misogyny, not just in relation to this piece of legislation but across the criminal justice system. As I understand, the working group will consider how the whole criminal justice system in Scotland deals with misogyny. Far from kicking the issue into the long grass, we have an opportunity to examine it as a whole across our criminal justice system and to consider how best to ensure that women are afforded the protection that they should have.

We need to hear reassurances from the cabinet secretary that action will be taken on that eminent group’s recommendations as soon as it reports—I want to ensure that action happens at the earliest opportunity. We can all agree on the fact that Baroness Kennedy and her colleagues will do a good job on the matter.

Fulton MacGregor

I echo the comments made by Rona Mackay and Shona Robison. First, I thank Johann Lamont for lodging the amendment and for her work in this area. I have got to know Johann over the past few years, sitting on cross-party groups together, and I know how passionate a campaigner she is on this and many other issues, particularly in regard to children affected by childhood sexual abuse. I thank her for that and for the amendment.

I hope that I can reassure Johann. She will know this, but the committee discussed the issue at length. It was probably one of the most discussed topics during stage 1, and it is important that we get it right. The evidence that the committee heard from women’s organisations was finely balanced. We heard that such an amendment might not help women, but we also heard evidence to the contrary. The stage 1 report demonstrates that we believe strongly that the working group on misogynistic harassment should be allowed to do its work and to make a recommendation. We all have a lot of faith in that working group, as other members have said. For that reason, I do not support the amendment at this stage. However, like everybody else, I see the merit in it, and I look forward to seeing how the working group addresses the matter.

The Convener

A couple of points made by members in the debate were directed to the cabinet secretary, so I ask him to respond to those briefly before I invite Johann Lamont to wind up the debate.

Humza Yousaf

I am happy to do that, convener. The central point put forward by a number of committee members, including those from my party, was that they sought an assurance from the Government that, if the recommendation of the working group, which is to report within 12 months of its first meeting, is that sex should be included as an aggravator and that that is its firm and unanimous view, I would commit to including that in the bill. On the basis that there is an enabling power to add that to the bill, that would be done with a super-affirmative procedure. I am happy to give that absolute assurance. I am slightly disturbed that some members believe that the Government would kick things into the long grass, but I hope that committee members feel that they have been given an assurance that the 12-month timescale means that there will be no kicking of the issue down the road. I look forward to the expert deliberations of Baroness Kennedy’s working group.

The Convener

Long grass is getting a bad name in this debate. I invite Johann Lamont to wind up the debate and to press or withdraw amendment 31.

Johann Lamont

I thank committee members for the seriousness with which they listened and have responded to what I said. I do not agree with what committee members have said, but I respect that it is something that people have thought about. Therefore, it is not with disrespect that I argue still that this needs to be in the bill.

The cabinet secretary says that, if the working group decides that sex should be included as an aggravator, we will respond to that. Frankly, it is a matter for legislators to decide that. We have seen other matters on which, in dealing with the complexities of addressing the views of different groups in the legislation, the committee has been clear that it needs to come together to address the issue and sort it, and I am asking no more than that for women. It is clear that this is a finely balanced argument and that the Government, in particular, has weighed the evidence from Engender, Rape Crisis Scotland, Scottish Women’s Aid and Zero Tolerance more heavily than the evidence against their views.

I do not accept that there has been no scrutiny of the matter. Lord Bracadale made a clear recommendation in favour of including what he referred to as “gender” but that would clearly be sex. Academics and women’s groups have argued for sex to be included. This is not something new. It has been a live issue in the Parliament—goodness, it was an issue when I was a Government minister, back in 2004. We have wrestled with these arguments over a long period of time, so the argument that there has been a lack of scrutiny simply does not hold. People are making a judgment on the basis of the evidence. I have great respect for the national organisations that have argued their case, and I think that I have at least made a serious effort to argue why, on balance, I believe that they are not right in this instance.

On the question of gender-neutral language, the Equality Act 2010 and the Domestic Abuse (Scotland) Act 2018, which is regarded as world leading, both use the language that I propose. Using the term that I suggest would not affect our ability to tackle violence against women. The groups to which I referred say that there is evidence that it could be used against women, but they have provided no such evidence. Even if that were the case, it would logically mean that we could not legislate on such matters at all because of manipulative abusers.

Members have referred to the fact that I have been involved in these arguments for a long time. It is not that long ago that we were told that domestic abuse was not a matter for the courts or for legislation and that it was not a matter of public interest but a private matter. We disagreed with that view, and we showed that it could be changed.

I feel very strongly that, sometimes, when we say something out loud, there is a commonsense reaction that we should listen to. We have been asked to accept the proposal that the Scottish Parliament wants to address hate in our society that is targeted at particular groups but that it wants to exclude women from that legislation, despite the fact that all the evidence shows that women experience misogyny and hatred in their lives at a level that everybody accepts is very serious. We accept that women experience hate in their lives in a way that damages their opportunities and denies some young women the ability to achieve their potential, but we are nevertheless saying that there is no place in the bill for women. When we say that out loud, it is clear that the commonsense argument is irrefutable.

There are weaknesses and limitations in the bill, but those apply to all the characteristics that are identified. Nobody wants to create harm for anyone, and in all such cases, in whatever way the bill was taken forward, we would have sought the same effect. The case has not been made why women should be excluded from legislation that seeks to understand the motivation behind crimes and to understand hatred and address it not just in the criminal courts but through education and public awareness.

I propose that sex be included as a characteristic and that, if that would present problems for particular offences, the working group could address those problems. I accept that I have not persuaded all members of the committee today, and I do not intend to press my amendments at this stage, although I expect that I will bring the matter back at stage 3.

Nevertheless, I am looking for strong reassurances regarding the transparency of the working group and who is going to be on it. Specifically, I seek a reassurance that they will be charged with the responsibility of looking not simply at the issue but at what the weaknesses would be if sex were included as a characteristic. We would be asking the group not to decide whether sex should be included, but to show why it should not be and what would need to be done to ensure that there is protection in place. That is the position that the group could look at.

I am not talking about the long grass. The issue has, for many years, exercised women and women’s groups and organisations that are currently campaigning on the matter. In contrast to the commonsense view, no explanation has been given as to why women, who experience hatred daily, should not be included in legislation that is about giving people further protections and educating society about the corrosive nature of hatred in people’s behaviour.

As I said, I do not intend to press the amendment at this stage, but I will bring it back at stage 3. It is a matter that needs to be democratically decided, and then working groups or whatever can work on the detail of it. [Inaudible.]—with which people have addressed the matter.

In conclusion, I ask that members think about how they would answer the question: if there is hate crime legislation to protect groups that are vulnerable, why are women not included? If we cannot answer that question, I think that we should include such an amendment at the next stage of the bill’s consideration.

Amendment 31, by agreement, withdrawn.

The Convener

The next group is on “Characteristic of transgender identity”. Amendment 104, in the name of Liam Kerr, is grouped with amendments 107, 109, 113 and 114. If amendment 15, which is in the group entitled “Stirring up hatred offences: characteristics”, is agreed to, I will not be able to call amendment 107.

Liam Kerr

These amendments of mine are grouped under the title “Characteristic of transgender identity”. They are probing amendments through which I seek the clarity that we were all discussing earlier.

As I have said, my approach to the bill—which I think is also the approach of my colleagues—is simply that, if the Government is going to legislate, it has a duty to make it absolutely clear and unambiguous to whom the legislation applies and whom it protects. Pretty much all my amendments to the bill start from the position of trying to make it as tightly drafted as it can be, so that we not only protect those people whom the bill seeks to protect, but do not inadvertently create grey areas and uncertainty.

A core principle of any law is that it must be comprehensible to those who are subject to it—ordinary citizens. They must understand the scope of the law so that they can take all appropriate action to remain within it. That is the issue that I seek to probe the cabinet secretary on. I do not know where to find a definition of “transgender identity”. I cannot find the definition of “a non-binary person”. Indeed, the Scottish Government responded to a freedom of information request by saying:

“The Scottish Government does not have an official definition of non-binary.”

During the stage 1 debate, when the cabinet secretary was talking about any future statutory aggravator that would be aimed at protecting women under hate crime law, he said that it would need to align to the protected characteristic of sex in the Equality Act 2010. There was sense in that, and I am probing the reason why the definition of “transgender identity” in the bill would not be aligned to the definition of “gender reassignment” that is used in the Equality Act 2010. It seems to me that that would add clarity to the legislation, because it would point to a clear definition of whom the legislation is trying to protect.

It might be that the definition in the bill is intended to go beyond the definition in the Equality Act 2010. That is perfectly within the compass of the cabinet secretary’s remit—it is “his” legislation, if you like. However, once it is passed, people need to be clear on that. If it is going beyond that definition, I ask, through these probing amendments, for the cabinet secretary to clarify to whom precisely he is seeking to extend the protection of criminal law and to confirm that those groups are not covered by the definitions that are given in the Equality Act 2010.

I move amendment 104.

John Finnie

Members have all seen what the Equality Network briefing says, particularly in relation to—[Inaudible.]—which I will quote verbatim:

“We strongly disagree with the amendments in this group, and ask members to reject them. By replacing ‘transgender identity’ with ‘gender reassignment’, amendments 104, 107, 109 and 113 would change the terminology that has been in use for 10 years under the existing statutory aggravation legislation.”

The Equality Network points out that

“the police and other parts of the criminal justice system ... are very familiar with that and what it means”,

and they have expressed no concerns about the current terminology. It goes on to say:

“Amendment 114 would remove protection for crimes targeted at nonbinary people and cross-dressing people”.

That protection has been in place for 10 years, and its removal would be regressive and, indeed, offensive.

I get that Mr Kerr lodged probing amendments, as he put it, and wants to generate discussion, but I sincerely hope that he does not press amendment 104 or move the other amendments in the group.

Rhoda Grant

I agree with John Finnie. In addition, the amendments would probably take people who are transitioning out of the scope of the bill, because gender reassignment takes an awfully long time. We often hear the transgender community say that waiting lists are overly long. If people are not protected by legislation while they wait, they will have just cause for complaint about the long waits that they must face.

Humza Yousaf

The amendments in the group would remove the term “transgender identity” from the bill and replace it with “gender reassignment”, which would limit the protections provided in the bill to male-to-female transgender people and female-to-male transgender people, excluding non-binary people and cross-dressers.

I recognise that the term “gender reassignment” is used in the Equality Act 2010, as Liam Kerr pointed out. However, it is important to note that the act and the bill serve very different purposes. In this instance, the amendments would have an adverse effect on the clear and inclusive definition that is currently used and proposed in the bill for hate crime purposes.

I am aware of suggestions that the only reason why cross-dressers are included in the bill’s definition of transgender identity is that they are protected under the current legislation. Although that is a key and important point, cross-dressers are also included because there is evidence to suggest that they experience hate crime. The Equality Network, whose briefing was mentioned by John Finnie, has provided examples of that. For instance, a man who is not a trans woman but wears a dress for a drag performance could be at high risk of transphobic hate crime. The Equality Network says that it is very likely that a perpetrator could later claim that they had no issue with trans women who are really transitioning and had a problem only with men who dress up as women without transitioning. To me, therefore, it is clear that prejudice can be based on the fact that a person cross-dresses and not just the fact of their being trans or the presumption that they are trans. It is therefore essential that cross-dressing people continue to be protected in the bill.

The use of up-to-date and inclusive language is an important overall objective as we update and modernise hate crime legislation, and I have sought to ensure that, where possible, the language that is used is simple and is understood by stakeholders and the general public. The amendments lack clarity. They would be damaging to non-binary people and would remove protection from people who cross-dress, who are currently protected by the law. They would significantly limit the protections that the bill expressly affords to such people.

The Government remains committed to improving the lives of people, including non-binary people. Not only is transgender-related hate crime a significant issue that needs to be tackled, but trans people continue to suffer poorer outcomes relative to the wider population. That needs to change, and the amendments in Liam Kerr’s name, if they were supported, would take us in the wrong direction. I hope that Liam Kerr will not press amendment 104 or move the other amendments in his name, which I think he said are probing amendments. I hope that, through the provisions in the bill, we can improve outcomes for trans people.

The Convener

I invite Liam Kerr to wind up and to press or withdraw amendment 104.

Liam Kerr

I am grateful to all members for their contributions to the debate. The issue that amendment 104 deals with was brought up by witnesses who gave evidence to the committee, and it is important that it is examined. It is important, too, that members have put their views on the record. What the cabinet secretary has just said is particularly important. It is a question of providing clarification and protecting people. It has been a good debate.

Therefore, I can confirm that it is not my intention to press amendment 104, or to move any of the other amendments in the group. We have had the debate, and I think that it was a valuable one.

Amendment 104, by agreement, withdrawn.

The Convener

The next group is on the characteristic of variations in sex characteristics. Amendment 105, in the name of Liam Kerr, is grouped with amendments 106, 108, 110, 111, 115 and 116.

I must point out that there are a number of pre-emptions: if amendment 105 is agreed to, I will not be able to call amendment 106; if amendment 16 in the group on the stirring up hatred offence as it relates to characteristics is agreed to, I will not be able to call amendment 108; if amendment 110 is agreed to, I will not be able to call amendment 111; and if amendment 115 is agreed to, I will not be able to call amendment 116. There will be a test on that later to make sure that members were paying attention.

In the meantime, I ask Liam Kerr to move amendment 105 and to speak to all the amendments in the group.

Liam Kerr

All members of the committee recognise that the question whether “variations in sex characteristics” should be included in the bill as a hate crime characteristic is a sensitive area. Indeed, our report says:

“This is an exceptionally sensitive matter”.

It is one on which I certainly do not claim any expertise. The committee’s report asked Parliament to reflect on the area

“carefully as the Bill is debated further.”

With my amendments, I seek to give the committee that opportunity. I lodged the amendments that relate to the deletion of “variations in sex characteristics” in order to probe the Government’s rationale for adding “variations in sex characteristics” as a statutory aggravator.

As I understand it, the term refers to a set of around 40 conditions that affect the development of the reproductive organs and genitals. There seems to be a general acceptance that it was inappropriate to have grouped those with other characteristics in the Offences (Aggravation by Prejudice) (Scotland) Act 2009, which is why a new protected characteristic was created. I note that the terminology is contested. At stage 1, we heard from dsdfamilies, which favours the term “differences in sex development”; apparently, that is the term that is used by national health service clinicians. In the 2009 act, the term “intersexuality” was used, which I understand is more commonly referred to as “intersex”.

My probing amendments simply ask the cabinet secretary to set out his case for the inclusion of “variations in sex characteristics” as a hate crime characteristic, bearing in mind the evidence that we heard from dsdfamilies. In its submission to the committee, it said:

“If the government is determined to add VSC to the hate crime bill, we would urge them to provide a clear definition of what conditions they cover, an evidence base for the sort of hate crime they believe people may experience, and the reason why this is not the same for anyone else with more readily obvious body difference.”

Similarly, the representative of dsdfamilies who gave evidence at stage 1 was concerned, in particular, that the proposed inclusion could be stigmatising. In its written response, dsdfamilies states:

“Singling out a biological condition in this way reinforces stigma rather than working towards understanding and societal acceptance.”

I would very keen to hear the thoughts of the cabinet secretary and my fellow committee members on that issue.

As with my amendments in the earlier group, with my amendments that seek to change “variations in sex characteristics” to “differences in sex development”—in passing, I note the typo in amendment 116, which I will correct at stage 3, if it is agreed to—I simply seek absolute precision in the language of the law, so that everyone knows precisely what is being talked about.

In response to a parliamentary question that I lodged last summer, the cabinet secretary said that “variations in sex characteristics” had been used because

“this is an inclusive term, increasingly being adopted by stakeholders.”—[Written Answers, 4 June 2020; S5W-29138.]

The first question is whether those stakeholders included national health service clinicians who work with people with those characteristics, and whether those clinicians were included in the consultation. I ask that not least because I see that the NHS refers to “differences in sex development” and gives a definition of that. One would have thought that that should be followed, for consistency and clarity.

I would be grateful for the thoughts of the cabinet secretary and committee members on the amendments.

I move amendment 105.

John Finnie

I did not hear Mr Kerr mention the Klinefelter’s Syndrome Association or the adult support co-ordinator at the CAH Support Group, or the concerns that those organisations have voiced about amendments 106, 108, 111 and 116. It is clear that there is a measure of discomfort for some people in discussing the issues. I want to have legislation that is inclusive and that covers everyone.

Once again, we have a probing amendment. There clearly is a place for probing amendments to try to understand the Scottish Government’s rationale in introducing the bill. However—it is a large “however”—any amendment that would remove protection that, as we discussed previously, has been in place for 10 years is unacceptable. That would be the effect of amendment 105 for intersex people and people with variations in sex characteristics. Therefore, whether or not it is a probing amendment, there is no place for it, and I hope that it will be rejected.

Humza Yousaf

At the outset, I note Liam Kerr’s point that he has lodged the amendments largely as probing amendments to generate discussion and debate. I agree that stage 2 is often a good place for discussion and debate.

Amendments 106, 108, 111 and 116 seek to replace instances of the term “variations in sex characteristics” with the term “differences in sex development”. As Liam Kerr pointed out, there are differing views on the terminology that should be used. I think that we all recognise the sensitivity of the issue and the need to use the correct terminology. The decision to use “variations in sex characteristics” was based on that term being used increasingly by stakeholders. For example, in a call for evidence that was issued in January 2019, the United Kingdom Government equalities office used the term “variations in sex characteristics”.

People with a variation might of course refer to their specific variation or diagnosis, but it is necessary for the legislation to refer to them as a group. I recognise that some organisations and individuals prefer to use the wording that Liam Kerr proposes. However, on introducing the bill, we took cognisance of the association, and sometimes confusion, between the terms “differences in sex development” and the more outdated “disorders in sex development”. That further contributed to our decision to proceed with using the term “variations in sex characteristics” in the bill. We want to use the term that has the maximum possible support from stakeholders.

Liam Kerr’s alternative option is to remove the protection that is offered by the hate crime legislative framework for those with variations in sex characteristics. That gives me concern. As members will know, the Offences (Aggravation by Prejudice) (Scotland) Act 2009 lists “intersexuality” as part of the definition of “transgender identity”. However, although the wording of the 2009 act reflects understanding of the position at that time, that is no longer the case. Therefore, the bill will remove “intersexuality” from the definition of “transgender identity”, given the clear differences between people with variations in sex characteristics and people with transgender identities. However, so as not to lose the protection for that group of people, the bill includes VSC as a separate characteristic within hate crime law.

I recognise that there remains a lack of consensus on whether VSC should be included as a characteristic in the bill at all. That was highlighted when the committee took evidence from a number of stakeholders who, as I say, have differing views.

I offer reassurance that I recognise the need to consider all the issues that concern people with variations in sex characteristics, including health issues. I think that we can do that and ensure that they receive adequate protection in the criminal law against hatred. Amendments 105, 110 and 115, in Liam Kerr’s name, when read with amendment 16 in group 10, would entirely remove the protection that the law offers to those individuals. I do not believe that that is the correct way forward. For those reasons, I cannot support any of the amendments in the group, and I urge members to vote against them.

The Convener

I ask Liam Kerr to wind up and to press or withdraw amendment 105.

Liam Kerr

I thank Mr Finnie and the cabinet secretary for their contributions. I start by assuring Mr Finnie in particular that no one is seeking to remove protections. This is an important debate that reflects the differences in evidence that we heard in the committee, and I am grateful to him for bringing up the evidence from the Klinefelter’s Syndrome Association and other evidence that we heard and had submitted to us. It is an important debate, and it is important that people hear it. I absolutely reassure both Mr Finnie and the cabinet secretary that I am not looking to press amendment 105 or to reduce the protections.

In terms of the amendments about definitions, I agree with the cabinet secretary. Again, this is an interesting debate, because I do not know the answer. Interesting points are made by all contributors. Having listened carefully to what the cabinet secretary has said on that matter, I think it likely that I will not press those amendments. I shall reflect on it, and we will no doubt hear from people who have a view and who might seek to guide us.

That is where I am, convener. I will not press amendment 105, and I may well take the same view on the other amendments in the group.

Amendment 105, by agreement, withdrawn.

Amendment 106 not moved.

Section 1, as amended, agreed to.

The Convener

That takes things as far as we can take them today. We will recommence our stage 2 considerations next week. The clerks will be in touch with everyone in due course to confirm arrangements. Our next meeting will be on Tuesday 9 February.

The Convener (Adam Tomkins)

Good morning, everyone, and welcome to the Justice Committee’s fifth meeting in 2021. We have no apologies this morning, and we are joined by Dean Lockhart MSP, Johann Lamont MSP and the Cabinet Secretary for Justice, Humza Yousaf MSP. I welcome all of them to the meeting. We may be joined later by Liz Smith MSP if we reach her amendments.

Agenda item 1 is continuation of our stage 2 consideration of the Hate Crime and Public Order (Scotland) Bill. Members should have a copy of the marshalled list and the groupings for debate.

I remind everyone that this is a fully virtual meeting and that we will use the chat function on BlueJeans as the means of voting electronically. When we vote, I will call for members to type Y in the chat function to record any votes for yes; I will do the same in turn for no, for which members will type N, and for abstain, which members will record by typing A. The clerks will collate the results, and I will read them out and confirm them. If a mistake is made in the process, please let me know immediately by typing R, “help” or something else appropriate in the chat box before we move to the next vote because, once we move to the next vote, we cannot go back.

If we lose the connection to any member at any point, I will suspend the meeting to try to get them back into the meeting. If we cannot do that after a reasonable time, the deputy convener and I will have to make a call as to whether we can proceed or whether we will have to abandon the meeting.

I hope that that is reasonably clear. We have proceeded in that way before, but I hope that that is helpful for members of the public who are tuning in and are not used to how we do things online.

If there are no questions or comments about any of that, we will make a start.

Section 2—Consequences of aggravation by prejudice

The Convener

The first group of amendments is on disaggregation of data relating to hate crime. Amendment 32, in the name of Dean Lockhart, is grouped with amendments 59 and 99.

Dean Lockhart (Mid Scotland and Fife) (Con)

Good morning. My amendments 32 and 59 provide for the disaggregation of data with respect to different offences committed under the legislation. Paragraph 386 of the committee’s stage 1 report on the bill states:

“the Committee notes the evidence from some of our witnesses that more could be done to improve how hate crime offences are recorded and monitored”.

Paragraph 386 also highlighted the importance of ensuring

“consistency of approach across Scotland, e.g. within Police Scotland, when it comes to recording offences”

under the legislation.

Paragraph 381 highlights the evidence that was given by the Equality Network and Victim Support Scotland, which called for

“a legal requirement to be integrated into the Bill that places a duty on the Scottish Government, Police Scotland and any other relevant duty bearers to develop a bespoke system of hate crime data collection and disaggregation across all characteristics covered by the Bill”.

My understanding is that, under other legislative frameworks in Scotland, if any statutory aggravation is proven, the court is required to state on conviction that the offence is aggravated by prejudice relating to the characteristic in question, to record the conviction so that it shows the relevant aggravation, and to take that aggravation into account in sentencing. I am not certain that the bill replicates that, so my amendments seek to ensure that that is covered. Evidence was also given by the Scottish Courts and Tribunals Service that it would struggle under the bill, as introduced, to record incidents in the way that it currently does. My amendments seek to address those issues.

Amendment 99, in the name of the cabinet secretary, also deals with data disaggregation, but in a different context. I look forward to hearing whether the cabinet secretary considers that that amendment addresses all the issues that have been raised by the stakeholder groups that I have mentioned in relation to data disaggregation and the recording requirements under the legislation.

I move amendment 32.

The Cabinet Secretary for Justice (Humza Yousaf)

Good morning to you, convener, and all the members who are present. I hope that everybody is doing well. I will speak to amendments 32 and 59, which are in Dean Lockhart’s name, and to amendment 99, which is in my name.

I recognise very much the value of data and evidence on hate crime, to which Dean Lockhart referred, and the fact that the data needs to be improved. It needs to be disaggregated more and to tell us more about victims and perpetrators. Such data is essential to our work to tackle hate crime more effectively.

As was just said, a number of stakeholders have—rightly—called for several years for improved data on hate crime. Most recently, those calls have included a request for additional statutory requirements to publish more information on hate crime. Like our stakeholders, I want that level of data to be published regularly and sustainably.

I am delighted to have the support of Police Scotland and BEMIS for amendment 99, which relates to information that the police record, rather than to convictions or charges that are reported to the Crown Office. The amendment is important because it will provide vital information from the earliest stage of the justice system about the groups that are being targeted and how such crimes come to the police’s attention.

Underreporting of hate crime is a key issue that must be tackled. Having the data and evidence to inform our response will ensure that that response is effective and provides the necessary support for victims. We are working with Police Scotland to ensure that its new crime management system is capable of capturing the disaggregated data that is available on a sustainable basis, as I said.

Amendment 99 provides a clear framework for reporting data under the new system and creates a legal duty for reports to be provided annually. Until Police Scotland has in place the systems to extract the data, I am happy to give the commitment that for at least the reporting year of 2020-21, which covers the exceptional circumstances of the Covid pandemic, the Scottish Government will produce a further study that does a deep dive into the characteristics of police-recorded hate crime.

Dean Lockhart’s amendments 32 and 59 consider the opposite end of the justice system by focusing on convictions data. I absolutely support the intention that is behind the proposed provisions, but significant challenges would be associated with implementing them.

Courts cannot provide the proposed level of data at the moment, and the Scottish Courts and Tribunals Service has told us that it would not be possible to implement the proposals with its current systems. However, that does not mean that it would not be possible in the future. Having disaggregated data on convictions is an important ambition but, for such a proposal to work in practice and deliver the improved disaggregated data that we agree is needed, it would benefit from further refinement, including refinement through engagement with the Crown and the SCTS.

Amendments 32 and 59 would require the Scottish ministers to prescribe subcategories in regulations. I understand that the intention is to give clarity, but my approach in amendment 99 is more advantageous, as it provides a degree of flexibility that Dean Lockhart’s amendments do not. That is particularly important given the difficulties under the courts’ current systems, which I just explained.

There is a technical difficulty with amendments 32 and 59. They would require the Scottish ministers to make regulations that were subject to the affirmative procedure, and I recognise the importance of the rigorous scrutiny that that procedure provides. However, the amendments combine that with a mandatory duty to make regulations, which could have the unintended effect that, if Parliament did not approve the regulations, the Scottish ministers would be unable to meet their legal duty.

I ask Dean Lockhart not to press amendment 32 and not to move amendment 59. I am happy to work with him, if he wishes, to potentially develop a provision on disaggregated data on convictions for an amendment that could be lodged at stage 3. We would have to factor in considerable time for developing the SCTS’s systems capability before such a provision could be commenced, if the bill were passed.

I ask members to support amendment 99, which is in my name.

The Convener

Thank you. Two members have indicated that they wish to speak in the debate on this group. I call Liam McArthur, to be followed by Rhoda Grant.

Liam McArthur (Orkney Islands) (LD)

I will be brief. As the cabinet secretary has identified, there may be some weaknesses in the framing of Dean Lockhart’s amendment 32, but the principle is sound. Over the course of this parliamentary session, the committee has had cause to return to that principle on a few occasions. Having disaggregated data is very much in the public interest, so if a way can be found at stage 3 to address the concerns that the cabinet secretary has justifiably flagged up, that will lead to an improvement in the bill. I welcome the cabinet secretary’s offer, and I thank Dean Lockhart for lodging his amendment.

Rhoda Grant (Highlands and Islands) (Lab)

I agree with what has been said, so I will not repeat it. It will be important to have both police data and conviction data, so that we can see any difference between the two figures and decide whether more work needs to be carried out in certain areas.

The Convener

I invite Dean Lockhart to wind up and press or withdraw amendment 32.

Dean Lockhart

I thank the cabinet secretary, Liam McArthur and Rhoda Grant for their remarks. The limitations of existing systems are understood, and I welcome the cabinet secretary’s commitment to consider and address them, such that further disaggregation of data under the legislation can be provided for. Therefore, I look forward to working with the cabinet secretary between now and stage 3 to take disaggregation of data as far as it can go under the legislation. I will not press amendment 32 or move amendment 59.

Amendment 32, by agreement, withdrawn.

Section 2 agreed to.

After section 2

The Convener

The next group concerns the offence of racially aggravated harassment. Amendment 33, in the name of the cabinet secretary, is grouped with amendments 62, 64, 66, 68, 70, 72, 74, 100 and 102. If amendment 24 in the group entitled “Removal of provisions ancillary to sections 3 and 5” is agreed to, I cannot call amendment 64.

Humza Yousaf

Amendment 33, which is the only substantial amendment in the group, inserts a new part after section 2. The new part contains one section, which provides for an offence of racially aggravated harassment. The provision restates section 50A of the Criminal Law (Consolidation) (Scotland) Act 1995, with some minor adjustments to the wording for consistency with the equivalent wording in part 1 of the bill. The remaining amendments in the group are consequential on the insertion of the new section by amendment 33.

Lord Bracadale recommended that we repeal section 50A of the 1995 act, which covers the offence of racially aggravated harassment. He argued that offending behaviour that is caught by that offence could mostly be captured by and recorded through other offences, with the addition of racial aggravation. However, we heard clearly from stakeholders that repealing the offence could send the wrong message. Removal could be particularly damaging in terms of tackling racial hatred in Scotland, particularly if it was perceived as a weakening of criminal law protection in the area of race.

In addition, in 2019-20, the Crown Office and Procurator Fiscal Service reported 1,208 charges under section 50A—a staggering 40 per cent of all race hate crimes reported by the Crown Office that year. As I previously set out, I believe that a distinct approach for race is needed in recognition of the seriousness of racial hatred and the impact that it has on community cohesion.

As I listened to the Justice Committee’s scrutiny of the bill at stage 1, I took cognisance of the calls to consolidate the offence of racially aggravated harassment into the bill. Doing so will maintain the distinct approach for race and ensure that all hate crime legislation can be found in one place.

My officials and I have engaged with a number of racial equality organisations, and I know how important it is to them that the offence is maintained in Scots law. I know that those organisations are also anxious to ensure that any move to consolidate would not alter the practical effects of the offence, nor how the courts prosecute it. Amendment 33 aims to consolidate in the bill the existing offence of racially aggravated harassment.

I am happy to leave it there, rather than speaking to the consequential amendments in the group. I hope that members will support the consolidation of the offence in the bill.

I move amendment 33.

Liam McArthur

As with my comments on the previous group, I will be brief. I very much understand and sympathise with the rationale for not adopting in the bill as introduced the approach that is now being proposed. Any message that there would be a dilution or weakening of the protections in relation to crimes of a racial nature is one that we would need to take seriously, although we heard pretty compelling evidence that that would not be the case.

Consolidation provides a greater opportunity for the law to be clear, comprehensible and therefore enforceable, and I hope that the groups to which the cabinet secretary has spoken in recent weeks will take some reassurance from that. The committee’s message is that there should be no dilution or weakening, and that the practical effect of the changes proposed in amendment 33 are simply about consolidation. I welcome amendment 33.

John Finnie (Highlands and Islands) (Green)

I echo everything that Liam McArthur said. There are two important points. The administrative aspect stood out—the offence could either be consolidated in legislation or not, so I am delighted at its proposed incorporation in the bill.

I am also delighted to hear about the cabinet secretary’s discussions with racial equality groups. We are aware that no one wanted any dilution, and it is clear that race requires a different approach. I am delighted at the incorporation of the offence, and I hope that those groups are reassured that this has never been about diluting protections that have long been in place.

The Convener

I associate myself with the remarks of Liam McArthur and John Finnie. I am delighted that the offence will be consolidated in the bill, and I very much share the view that there is no dilution of protections associated with taking that step. I therefore welcome amendment 33.

I invite the cabinet secretary to wind up and say whether he wishes to press or withdraw amendment 33.

Humza Yousaf

I will press amendment 33 in my name. I am certain that most of, if not all, the racial equality groups with which I, and the committee, have engaged will take great comfort from the reassurances from members that none of us wants to see any dilution of the protections. The committee’s stage 1 report recommended the consolidation of section 50A of the Criminal Law (Consolidation) (Scotland) Act 1995. That is a sensible approach, and I am delighted to press amendment 33.

Amendment 33 agreed to.

Section 3—Offences of stirring up hatred

The Convener

The next group is large and complex, as there are a number of pre-emptions. The group is on the threshold for, and operation of, offences relating to the stirring up of hatred. Amendment 34, in the name of the cabinet secretary, is grouped with amendments 34A, 35, 36, 36A, 37 to 39, 39A, 9, 40, 40A, 10, 1, 2, 41, 42, 17, 6, 18, 3, 4, 44, 45, 55, 8, 25, 27 and 84.

I draw members’ attention to the information on pre-emption in the groupings document. If amendment 34 is agreed to, I cannot call amendment 35. If amendment 36 is agreed to, I cannot call amendment 37. If amendment 39 is agreed to, I cannot call amendment 9. If amendment 40 is agreed to, I cannot call amendment 10. With that in mind, I invite the cabinet secretary to move amendment 34 and speak to all the amendments in the group.

Humza Yousaf

As you say, this is a large grouping, but I will try to be succinct.

I will start with amendments 1 to 4, in my name. As members know, the bill creates a new stirring up of hatred offence, which applies to the characteristics of age, disability, religion, sexual orientation, transgender identity and variations in sex characteristics. Those characteristics do not currently have a stirring up hatred offence associated with them in Scotland; amendments 1 to 4 relate to those new stirring up of hatred offences.

Expanding the offences of stirring up hatred to cover those further characteristics caused concern about the inadvertent impact that such offences could have on people’s right to freely discuss controversial ideas, for example about religion. In light of the concerns that have been raised, I made the decision that I announced in Parliament in September 2020 that amendments would be lodged to seek to make the stirring up offences for all characteristics except race require an intention to stir up hatred as an essential element of the offence. Amendments 1 to 4 make good on that commitment, so I ask members to support them.

Amendments 2 and 4 remove the likely to stir up hatred limb of the new stirring up hatred offences in sections 3(2)(b) and 5(2)(b). Amendments 1 and 3 are consequential.

I will be supporting Liam Kerr’s amendment 19, which seeks to remove section 5. Therefore, amendments 3 and 4, which adjust section 5, are relevant only if amendment 19, which is to be debated in a future grouping, is not agreed to.

Amendments 34, 36 and 38 to 40, in my name, ensure that it is clear that there is an objective standard against which behaviour or material must be assessed for the purposes of the stirring up hatred offences. For an offence to be committed under section 3, a person requires to have engaged in conduct or to have communicated material that is threatening or abusive or, in the case of characteristics relating to race, insulting.

There has been public and stakeholder concern as to who gets to decide whether something is abusive under the bill. I know that you in particular have pressed the Government on the issue, convener. There may be a perception that reliance will be placed on the subjective views of individuals, which could result in people being investigated for criminal prosecution for very spurious allegations that do not, in any sensible view, amount to abusive behaviour. Similar concerns could equally apply to what amounts to threatening or insulting behaviour. For that reason, I agree with the committee, and indeed with the convener, that it is best to include provisions in the bill to clarify and put beyond doubt the nature of the test to be applied when interpreting those terms. The best way to do that is by reference to the objective standard of a reasonable person test. That is what amendments 34, 36, 39 and 40 seek to do.

In addition, amendment 38 adds a reasonable person test to the likely effects of a person’s behaviour or communication for the stirring up racial hatred offence. That applies an objective standard as to whether the effect of a person’s behaviour or communication is likely to result in hatred being stirred up against a group defined by race, which includes colour, nationality, citizenship or ethnic or national origins.

Amendments 42 and 45, in the name of Liam Kerr, pick up the same issue about objectivity within the stirring up hatred offences. Although those amendments are well intentioned, they are more limited in scope than my amendments in this area, as they do not relate to behaviour or material that may be insulting or likely to stir up hatred. In addition, I decided that clarity in the bill would be best achieved at the place where the thresholds of the offence are provided, so my amendments are made directly to sections 3(1) and 3(2), whereas Liam Kerr’s amendments are added to the ends of sections 3 and 5.

The overall policy aims for my amendments and Liam Kerr’s amendments are broadly the same, but I suggest that my amendments go further in terms of policy and that they are more transparent and consistent with the reading of the bill, so I ask members to support my amendments.

Liam Kerr lodged amendments 39A and 40A, to remove the term “abusive” from amendments 39 and 40. Those are consequential changes, which are required if his amendments 9 and 10 are agreed to. I will shortly explain my position on his substantive amendments 9 and 10 but, for the reasons that I will give, I ask members to oppose amendments 39A and 40A.

In a similar vein, Dean Lockhart lodged amendments 34A and 36A. Those amendments are consequential to his amendments 35 and 37, which remove “insulting” from the threshold of the stirring up racial hatred offences. Again, for the reasons that I will give shortly in discussing his substantive amendments 35 and 37, I ask members to oppose amendments 34A and 36A.

Amendment 17, in the name of Liam Kerr, would entirely remove section 3 from the bill. When read together with schedule 2, amendment 17, if agreed to, would result in there being no offences of stirring up hatred—including the stirring up of racial hatred—in Scots law. That is not what the stage 1 report recommended. I ask members to reject amendment 17. The amendment disregards the existing legal landscape in Scotland and across the UK, where offences of stirring up hatred are not new. It would remove long-standing, UK-wide laws that protect people from suffering racial hatred in Scotland and would result in Scotland having the UK’s weakest protections against the stirring up of hatred.

Behaviour that stirs up hatred is corrosive. It can result in entire communities feeling isolated, scared and vulnerable to attack. In the most serious cases, it can directly encourage activity that threatens or endangers life. Amendment 17 turns its back on all victims of hate crime. I hope that members will vote against it, because agreeing to it would set a harmful precedent for Scotland.

Liam Kerr has also lodged amendments 9, 10 and 18, which seek to remove the threshold of “abusive” from the operation of the new offences relating to the stirring up of hatred. Amendments 25 and 27 are consequential to those amendments.

Amendments 9, 10 and 18, if agreed to, would mean that new offences relating to stirring up hatred would be restricted to “threatening” behaviour or material intended to stir up hatred, or to the possession of threatening material with a view to communicating it to stir up hatred. Abusive behaviour would therefore never be subject to criminal sanction under part 2 of the bill, even if such abusive behaviour or material was intended to stir up hatred. I cannot support amendments 9, 10, 18, 25 or 27, which do not take account of Scotland’s legal context or of the Justice Committee’s unanimous recommendations on that issue.

As a matter of criminal law policy, it is appropriate to include abusive behaviour as part of the offences relating to stirring up hatred. Scotland has had a statutory offence of threatening or abusive behaviour since 2010; the offence has been prosecuted thousands of times in our criminal courts. The police, Scottish courts and legal practitioners are used to considering what constitutes abusive behaviour. That has been affirmed during scrutiny of the bill by those representing the legal profession and by Police Scotland.

It is important to balance protecting people from hate crime with respect for freedom of expression. We all agree on that. Removing “abusive” conduct from the scope of the new offences relating to stirring up hatred does not achieve that balance. I urge members to vote against amendments 9, 10, 18, 25 and 27.

Amendments 35 and 37, in the name of Dean Lockhart, seek to remove the threshold of “insulting” from the operation of the offence of stirring up racial hatred, as provided for in section 3(1) of the bill. That threshold has operated in Scotland, England, Wales and Northern Ireland for more that 30 years. Removing it would leave Scotland with the weakest protection against the stirring up of racial hatred in the UK.

We cannot deny the prevalence of racial hatred in Scotland. I know that from personal experience and the committee heard about it from a number of racial equality groups during its oral evidence sessions. The sad reality is that two thirds of all recorded hate crime in Scotland relates to race. The bill recognises the damaging impact of racial hate crime on community cohesion. That could be worsened if there was a perception that the protections in hate crime law that relate to race were being weakened. Members who spoke on the previous group of amendments made it clear that they would not want to give any impression that the law on racial hatred was being diluted.

There is a distinct approach for race, which is also reflected in the English and Welsh stirring up hatred provisions, as set out in the Public Order Act 1986. Any changes that give rise to a perception that long-standing protections in that area are being weakened must give us pause for thought. A number of the groups that spoke to the committee gave compelling testimony that there is a justification for taking a distinct approach to the stirring up of racial hatred offences and for retaining the existing threshold of “insulting”.

I firmly believe that, if there were perceived to be a weakening of the offences of stirring up racial hatred, that could cause difficulty in that there would also be at least a perception of weakening of the criminal law. That is not a risk that I would be willing to take.

I therefore ask members not to support amendments 35 and 37.

Amendments 41, 44 and 84 have been lodged by Liam Kerr. Amendments 41 and 44 appear to add the requirement of a public element in order for an offence to be committed under sections 3 and 5 where the offending conduct takes place in a private dwelling. Amendment 84 is consequential.

The public element that is provided for by amendments 41 and 44 does not extend to what people in other dwellings might see or hear. If words were to be written where they could be seen or heard by, say, neighbours within their dwellings in an upstairs or downstairs flat, that would not constitute a public element, which means that no offence of stirring up hatred would be committed. Instead, the public element seems to require people in public places, such as on a street pavement, to see or hear the words or behaviour before an offence can be committed.

In my view, those are entirely artificial distinctions, which fail to recognise that, when the offence of stirring up hatred occurs within a dwelling, that does not avoid the potential wider harmful impacts that such offences seek to prevent. For example, damage to local community cohesion, feelings of victimisation by neighbours and the incitement of acts of violence might occur in a dwelling, but such effects can be felt by behaviour taking place in public, to the detriment of the targeted group.

We must also be very careful of the potential unintended adverse consequences of such amendments. The effect of Liam Kerr’s amendments 41, 44 and 84 is that a person using some sort of video, teleconference, internet live stream or chat room function might be able to escape criminal liability if it were not possible to prove that anyone who saw or heard the communication was outside a private dwelling at the time.

Amendments 41 and 44 would create an obvious, glaring omission in law by allowing people to continue to stir up hatred from the confines of their own homes to a wider audience, whether members of that audience were in their own dwellings or even another person’s dwelling at the time of viewing. If someone behaves in a threatening or abusive manner or communicates threatening or abusive material with the intention of stirring up hatred, I consider that the criminal law should be capable of addressing such behaviour, whether it takes place within a private dwelling or outwith it.

As has been recognised by legal and academic stakeholders, the criminal law is often concerned with what goes on inside people’s homes—and rightly so. At stage 1, the committee heard oral evidence from Michael Clancy, who said:

“There is no sanctuary, in that sense, for most aspects of the criminal law and I do not think that there should be a sanctuary when it comes to hate speech.”—[Official Report, Justice Committee, 3 November 2020; c 9.]

I very much agree with him. I urge members to vote against amendments 41, 44 and 84.

Amendment 55, in the name of Liam Kerr, seeks to insert in the bill a requirement that any prosecution in respect of the offences of stirring up hatred in section 3 or section 5 must be instituted by or consented to by Crown counsel. The Lord Advocate has written to the committee, explaining his views on why amendment 55 should not be agreed to. It seems to draw on a provision of the Public Order Act 1986, which applies to England and Wales and which states that proceedings for an offence of stirring up hatred may be instituted there only by or with the consent of the Attorney General.

Of course, the crucial point is that that provision applies only to England and Wales and not, as it stands, to Scotland. That is because fundamentally different systems of prosecution apply in Scotland compared with those in England and Wales. In practice, all prosecutions in Scotland are brought by public prosecutors who operate within the system of prosecution for which the Lord Advocate is responsible and they are subject to direction from the Lord Advocate. A private prosecution may be initiated only with the concurrence of the Lord Advocate or the approval of the court. In practice, private prosecutions are practically unknown.

In contrast, in England and Wales prosecutions can be brought by a range of agencies. The practical availability and prevalence of private prosecutions and prosecutions brought by public bodies other than the Crown Prosecution Service justifies control, in certain cases of sensitivity, through the imposition of an explicit requirement for consent by the Attorney General. As explained, the situation does not arise in Scotland, because all public prosecutions are brought by prosecutors within the system for which the Lord Advocate is responsible. The Lord Advocate’s powers of legal direction combined with his ministerial oversight of the system of prosecutions in Scotland make it unnecessary—indeed, I would suggest constitutionally inappropriate—to prescribe the operation of the decision-making processes of the Crown in that way. I know that the Lord Advocate has made that entirely clear.

Amendment 6, in my name, removes section 4 from the bill. Section 4 concerns the culpability of directors and presenters of plays where a performer commits an offence of stirring up hatred under section 3 during the public performance of a play. That change was welcomed by the committee in its stage 1 report. Having listened carefully to the evidence during the scrutiny of the bill, I decided that the provision does not serve a useful purpose in singling out directors and presenters of plays in a way that is not done for other similar categories. In particular, I consider that there is no need to legislate that neglect could be sufficient to lead to criminal liability for a director or presenter of a play if a performer commits an offence of stirring up hatred under section 3. On that basis, I am satisfied that the general criminal law rules on part liability can instead be applied to ensure that, where any person commits a stirring up hatred offence under section 3 of the bill, any other person who, for example, participates or assists in the committing of that stirring-up offence may also be held criminally liable. I therefore ask members to support amendment 6.

I turn finally in this group to amendment 8, which is also in my name. Where an organisation has committed an offence under section 3 or 5, section 9 makes provisions for certain persons who are involved in the operation of organisations to be held criminally liable for committing an offence under section 3 or 5. That is a normal feature of criminal legislation. However, following further policy consideration since the introduction of the bill, I consider that culpability of responsible individuals on the basis of neglect where an organisation commits an offence is too low a threshold in the context of offences relating to stirring up hatred. Accordingly, amendment 8 removes neglect from the scope of the provision in section 9. The amendment has the effect that section 9 will apply only when an offence under section 3 or 5 is committed by a relevant organisation and the commission of the offence

“involves consent or connivance on the part of a responsible individual”.

I move amendment 34.

The Convener

Thank you, cabinet secretary, for taking us clearly and carefully through the amendments in this long and complex group, which raise a number of overlapping issues.

Dean Lockhart

My amendments reflect representations, in particular from the Law Society of Scotland, that the committee heard at stage 1. The bill as currently drafted provides differently for the offence of stirring up racial hatred in comparison with offences that are committed against other protected characteristics. Section 3(1)(a), whether or not it is amended by the cabinet secretary, will still retain the concept of “insulting” as a characteristic of behaviour that might lead to someone being considered to have committed an offence. The committee has heard a great deal of evidence on whether that element of the offence should remain in the bill. I have lodged my amendments to provide the committee with an opportunity to consider the issue.

As the cabinet secretary set out, one of the justifications that has been given for retaining the reference to “insulting” conduct is that the word is present in current legislation: the Public Order Act 1986, which has been in place for more than 30 years. However, witnesses who gave evidence to the committee were not convinced by that argument. For example, Dr Andrew Tickell said:

“The argument that, because it is in the Public Order Act 1986, it should be in the bill is not convincing ... We should be ... asking whether those protections, restrictions or extensions are necessary.”

Roddy Dunlop of the Faculty of Advocates believes that “insulting” is not a necessary part of the bill. He said:

“It is difficult to see a situation in which words are used that are not ‘threatening’ or ‘abusive’ yet which might still be thought worthy of criminalisation under reference to ‘insulting’.”

Mr Dunlop also questioned how many convictions there have been on the basis of “insulting” and surmised that it was probably “none, or almost none.” He concluded, therefore, that he would not be concerned about dilution of the protection if the word was removed from the bill.

Mr Dunlop’s view is supported by assertions made by Anthony McGeehan of the Crown Office and Procurator Fiscal Service, who told the committee that policy officials conducted a review of relevant cases in relation to the 1986 act since 2009 and found that

“the removal of the word ‘insulting’ would not diminish the ability of the Crown to take appropriate prosecutorial action in relation to those reported offences.”

All of that indicates that there would be no weakening or dilution of the protection afforded by the legislation by removing the word “insulting”. On the other hand, including it would add further ambiguity to the bill and to the criminal law in Scotland.

In addition, the Law Society of Scotland advanced the concern that retaining the term “insulting” could, arguably, create a hierarchy of victims. Anthony McGeehan of the COPFS argued that there is a risk,

“if the insulting offence is retained”

in the legislation

“in relation to racial hate crime”,

that there would be

“a difference in the behaviour that is allowed in relation to the other protected characteristics but not in relation to race crime.”

Police Scotland also alluded to the matter, saying that

“it could create a hierarchy of discrimination and”

make

“it more difficult for the officer to understand what types of behaviour and what circumstances cross the criminal threshold.”—[Official Report, Justice Committee, 3 November 2020; c 5, 3, 39, 47-8, 37.]

We heard from the cabinet secretary a concern that the removal of “insulting” from the bill at this stage may send the wrong message, and the Scottish Government is not willing to risk such a perception arising. In response, I highlight the written evidence from Victim Support Scotland, which states:

“provided the inclusion or exclusion of behaviour as ‘insulting’ does not adversely impact anyone affected by crime, Victim Support Scotland can support this language change.”

The cabinet secretary’s concern about messaging can be addressed by making it clear that there has been no reduction in the underlying conduct that would constitute an offence under the bill.

For those reasons, there is a strong case for the removal of the word “insulting” from the definition in the bill. It would not weaken protection, it would not risk detriment and it would ensure that we do not inadvertently create a perceived hierarchy of offences.

On that basis, I move amendment 34A.

Liam Kerr (North East Scotland) (Con)

I have a number of amendments in the group to speak to, each of which seeks to address a distinct shortcoming of the bill. I will deal with my amendments slightly out of order—it will become clear why.

Amendment 17, which seeks to remove section 3, is one of a series of amendments, with the others to be debated in a later group. Their combined impact is the deletion of part 2—the stirring-up offences part. From the start, it has been my contention, and that of a number of people, that part 2 needs to be subjected to greater scrutiny. Whatever we amend the drafting to at stage 2, the provisions will have significant and far-reaching ramifications. We are considering them in a truncated timescale and in circumstances that are far from ideal.

The bill deals with extremely important issues, but part 2 and its threat to free speech could be carved out so that the other parts could be amended—as we are doing in these meetings—precisely so that we do not turn our backs on victims. Indeed, that would achieve precisely the opposite, which is what we all wish to do. However, I do not think that the committee will be with me on that. I fear that if I move amendment 17 and my later, related amendments, I will be precluded from advancing them, and my argument, before the full chamber at stage 3. Accordingly, I shall not move amendment 17 today, in order to preserve my position.

Amendments 39A, 9, 40A, 10, 18, 25 and 27 seek to remove the term “abusive” from the stirring up hatred provisions and thus limit their scope to “threatening” behaviour. That would bring the provisions into line with public order laws south of the border on the stirring up of hatred on the grounds of religion or sexual orientation.

Those laws, which have been in place for more than a decade, have struck a balance between preventing the stirring up of hatred and protecting freedom of expression. That suggests that “threatening behaviour” is an appropriate threshold to adopt and does not go beyond what is required to protect what needs protection. The threshold is clear and catches words and behaviour that intimate violence.

In contrast, “abusive” arguably risks reducing the threshold for what could be considered hate speech and thus could be used to try to shut down the expression of opinions. In the bill as introduced, the terms are to be read disjunctively—“threatening” or “abusive”—not conjunctively. By lodging his amendments to add a reasonable person test, the cabinet secretary has acknowledged that there is a problem with the term “abusive”. The test is welcome as far as it goes; its inclusion is the reason why I will support his amendments in that regard and not press my amendments 42 and 45.

However, the cabinet secretary’s amendments do not go far enough. Some stakeholders have rightly asked whether the proposed provisions catch speech and writing that are not currently criminal—speech and writing that are controversial, combative and even insulting, but which rightly ought to be protected as part of our democratic tradition. Lord Justice Sedley famously said that free speech includes not only the “inoffensive” but

“the irritating, the contentious, the eccentric, the heretical, the unwelcome and provocative.”

It is such an important point: other people’s dislike of one’s views should not restrict the freedom to speak one’s mind. We should all operate with a presumption that is in favour of free speech and be willing to defend other people’s freedom to speak even when we profoundly disagree with what they say.

Many of those who contributed to the consultation, from many different perspectives, raised the concern that the term “abusive” could lead to the offences catching speech that was merely contentious or provocative.

My concern is about the reports that could be lodged with Police Scotland at the front end of that process, should the stirring-up provisions leave room for doubt on what the term “abusive” should be taken to mean. Should such a case proceed, the courts would have to adjudicate on whether someone’s political opinions were abusive.

In the consultation and in our evidence sessions, people recognised that the reasonable person test, in relation to which the cabinet secretary has lodged amendments, is useful. However, they were concerned about the uncertainty that is inherent in the test and wished that uncertainty to be removed. I listened to those people, and my amendments in the group would remove that uncertainty.

I turn to amendments 41, 44 and 84, which I will colloquially call the dwelling defence amendments. The amendments seek to provide a defence for words that are spoken in a private dwelling and are not overheard by any person except those within. I note again that such a provision exists in parallel public order law in England, Wales and Northern Ireland.

The underlying rationale for what I am trying to do is twofold. First, the point was made several times during the committee’s evidence sessions, including by the convener, that the bill is supposed to be concerned with public disorder, as the title of the bill demonstrates. We can all recognise the risk of public disorder at a rally, where rabble-rousing public speakers inflame feelings and individuals can feel emboldened by being in a large group that commits criminal acts. The same considerations do not apply in the context of a private family home. The language remains equally reprehensible as that used at the public rally, but the risk of public disorder is clearly not present.

Secondly, there is a wider argument for the protection of private speech in the context of the home. Throughout the debate on the bill, the committee has recognised the inevitable tension between the tackling of hate crime and the vital rights of freedom of speech and expression, and the need to balance the two.

The Government has been forced to make concessions throughout the process because the bill as introduced failed to protect our right to freedom of speech. No concession has yet been made on the lack of a private dwelling exemption, but one needs to be made, because prosecuting people for stirring up hatred over a private conversation in their own home is a violation of privacy.

Crucially, a dwelling defence would not hinder the operation of the offence. Lord Bracadale told our committee that no suggestion had been made to him that the existence of a dwelling defence exception

“had inhibited the use of the provision.”—[Official Report, Justice Committee, 27 October 2020; c 46.]

During the evidence sessions, the committee heard concerns that allegations could be made by individuals after an argument at a dinner party or a similar social event and then investigated by the police. It would be difficult to establish a case for a stirring up hatred offence having been committed in that scenario.

Calum Steele of the Scottish Police Federation warned us that conversations about contentious issues could be repeated innocently by children in the playground and lead to reporting. The police would have no choice but to investigate. In building a case for prosecution, they would have to take witness statements from others who had been present. If a person had a guest in their family home who objected to something that was said, the only other witnesses might be the person’s spouse or children. Without a dwelling defence, the bill could lead to the ridiculous scenario in which parents censor themselves in their own homes because they are anxious that their children might repeat something that they have said out of context. The idea that we should empower the police to question children about what a parent said over the dinner table is surely anathema to our democratic values.

In summary, the reason for much of the opposition to part 2 is that it deals with situations in which people have opinions. We might not like or agree with those opinions, but people have a right to them, and they surely must have a right to express them in their own home. It cannot be the police’s job to investigate private ideological disputes and to use the criminal law to set the parameters of acceptable opinion. I fear that it would cause serious harm to the police’s reputation with the public if they were forced to investigate things that were said in the privacy of someone’s own home. I therefore seek support for my amendments 41, 44 and 84.

Amendment 55 stipulates that any decision to take proceedings on a stirring up hatred offence must require

“the consent of ... Crown Counsel.”

For ease, I will refer to that colloquially as a prosecution lock. The Public Order Act 1986 and the Public Order (Northern Ireland) Order 1987 require that a similar step be taken before prosecutions are brought.

The relevant consideration that I have in mind is that, for the reasons that I have provided in relation to earlier amendments, there is a danger that someone could be accused of a stirring-up offence and prosecuted simply for speaking an offensive viewpoint. Even if they were not, ultimately, guilty of the offence, to be accused of such an offence would have the potential to ruin their life, particularly if they were taken through the court system first.

The cabinet secretary has spoken persuasively about the incorporation of a reasonable person test through amendment 40. I seek to ensure that such consideration is given at a preliminary stage. In England, consent for a stirring-up prosecution is required from the Attorney General. In Northern Ireland, it is required from the Director of Public Prosecutions. In Scotland, the equivalent level of seniority would be the Lord Advocate but, as the Lord Advocate and the cabinet secretary have set out, we have no legislative precedent for sending such decisions to the very top of the prosecution hierarchy in that way. That is precisely why I have not gone for that option.

Instead, I have based amendment 55 on guidance that the Lord Advocate issued in 2013. The guidance says:

“Any decision to take proceedings in relation to cases of this nature will be approved by Crown Counsel.”

Therefore, sign-off by Crown counsel is a mechanism for which there is precedent in Scotland.

There is enormous public concern about the new stirring up hatred offences, so amendment 55 would provide a simple additional check and balance to reassure people that prosecution will be brought only when all issues, including the importance of free speech, have been properly considered by a senior prosecutor.

Last week, the committee received a letter from the Lord Advocate that specifically addresses amendment 55. I am grateful to the Lord Advocate for taking the time to address the specific point. His argument is, of course, persuasive, but I do not think that it is a compelling reason to reject my amendment. He is correct to say that we operate a completely different justice system from that which has been developed in England and Wales. He cites that as a reason why he does not find favour with my argument that other jurisdictions take such an approach, so why not Scotland. However, I do not find that to be a persuasive reason for rejecting the principle of a prosecution lock. In my submission, the principle is sound and is not defeated by comparison.

The Lord Advocate then contends that a prosecution lock is “wholly unnecessary”, as the Lord Advocate will

“put in place the appropriate policies and procedures for decision-making”,

including whether a case should be reported to Crown counsel. I have no doubt that, were such policies in place, the amendment would be otiose, but there are no such policies and procedures in place. That means that, in the event that the bill passes, there will be no prosecution lock or safeguard to prevent such a prosecution, and there should be.

I come to the next argument in the Lord Advocate’s letter for not incorporating a prosecution lock. The Lord Advocate says that one of the reasons for having a prosecution lock in England is that individuals there can bring private prosecutions, which is not possible in Scotland. I do not follow the logic of that point. I am not concerned with people bringing private prosecutions; I am worried about handing fiscals difficult decisions to make in implementing a contentious new law—difficult decisions that they will have to make in a vacuum. An extra safeguard is therefore absolutely justified.

I completely understand why members might understand the principle behind my amendment but be reluctant to accept it after reading the Lord Advocate’s letter. However, I have set out clearly why my submission should be preferred and why the amendment should be agreed to.

I am minded to move my amendment, pending what the cabinet secretary has to say in response to my remarks when he winds up the debate. For the avoidance of doubt, I am all too aware that, should I move amendment 55, I might be disbarred from lodging a revised amendment on the same principle at stage 3. I am keen to hear the debate on the amendment, but I reserve the right not to move it when the convener puts the question so that I can preserve my position for stage 3.

The Convener

Thank you, Mr Kerr. That was clear and helpful. John Finnie wants to say a few words, after which I will say something, too.

John Finnie

I want to talk about a couple of positives, if I may, in relation to amendment 6, on plays. I welcome the Scottish Government’s positive response in that regard. The provision was always seen as an outlier. A lot of people simply could not understand why it was in the bill and I welcome its removal, not least because the one thing that we want in Scotland and any progressive liberal democracy is a vibrant arts sector—[Inaudible.]—and I welcome that.

Similarly, on amendment 8 and the threshold for the stirring-up offences, I welcome the Government’s positive response to the committee’s stage 1 report. The application of an objective definition to the meaning of the term “abusive” must be welcomed by everyone. We want some clarity on that.

On prosecutorial policy, there is nothing new in the bill on how the police would engage with the public or respond to crimes or accusations of crimes, or how the prosecution would treat things differently. There is nothing new in the bill about that. Some of Liam Kerr’s hyperbole on that bordered on nonsense, quite frankly.

In its briefing, the Equality Network Scotland asked us to reject amendments 39A, 9, 40A, 10, 18, 25 and 27, which would remove the term “abusive” from the stirring up hatred offences against those with protected characteristics other than race.

We know that the Government amendments will ensure that “abusive” is interpreted objectively. The Equality Network’s briefing says:

“Hate crime legislation is intended to combat the genuine harm caused to affected communities by the behaviours covered in the law. Restricting the coverage of the offence only to behaviour that is threatening would narrow the scope to exclude behaviours that cause as much or more harm than directly threatening behaviour.”

Convener, you will recall the compelling evidence that we had from a range of people. The Equality Network commented:

“As we noted in oral evidence, the kind of grossly abusive graphic material produced about Jewish people by the Nazis illustrates that the intentional stirring up of hatred can be done by material that is not in itself explicitly threatening.”

I was somewhat bemused at Liam Kerr telling us that the Lord Advocate made persuasive arguments before going on to ridicule what the Lord Advocate said—I certainly thought that they were persuasive in relation to Mr Kerr’s desire to rewrite prosecutorial policy in Scotland.

On amendment 17, which would delete the stirring-up provisions entirely, including those relating to race, I know that Mr Kerr wants to preserve his position, but if he does not wish to move the amendment, I will move it on his behalf so that we can get this nonsense dealt with at stage 2. I will move his other amendments as well.

This is pandering. If we are going to arrest the perniciousness of hate crime across the United Kingdom, we need a uniform approach, and we need our laws to be as tight as possible. Good grief—I would have thought that that would be something that a Conservative member would be in favour of. We need international co-operation on the matter. Mr Kerr is taking a wrecking ball not just to the bill, but to existing protections, and that is unacceptable.

The Convener

Fulton MacGregor and Rhoda Grant also want to come in, but I will say a few words before I turn to Fulton. There is a lot in this group of amendments, and I want to say a few words about a number of themes that have arisen.

I will start with the amendments in the cabinet secretary’s name that I have supported, which define “abusive” in an objective way. For me, this is a question of fundamental principle, to the point where I would not have been able to support the bill unless such amendments were made. We had a debate last week about the freedom of speech and freedom of expression sections in the bill. Those sections are important and it is imperative that we get them right at stage 3, but even more important is having an appropriately narrow, curtailed and defined scope of the offences that we are writing into the Scots criminal law book. Explaining what we mean by the terms that we use, especially when those terms are apt to be stretched and used in different ways by different interested parties, is critical to the exercise of good law making.

The committee was unanimous in its stage 1 report in concluding that “abusive” needed to be defined objectively. In the stage 1 debate, there was some discussion about whether that needed to be done in the bill or in explanatory notes or guidance, and I am delighted that the cabinet secretary has seen the force of my argument that “abusive” needed to be objectively defined in the bill, and that is why I support this suite of amendments. These are matters of fundamental principle that go to the very heart of the balance that we are seeking to strike between criminalising that which stirs up hatred and, at the same time, safeguarding and protecting freedom of expression.

I do not support the amendments that Liam Kerr has lodged to remove “abusive” from the bill. I would have supported them if “abusive” had not been defined objectively and clearly, but it is much more important, it seems to me, that we have a clear and objective understanding of what “abusive” means, and if the amendments in the cabinet secretary’s name are supported by the committee, as I believe they will be, I see no case for removing “abusive” from the scope of the common law in this context, not least because there are a number of other areas unrelated to hate crime where abuse or abusiveness is criminalised, such as in the Domestic Abuse (Scotland) Act 2018.

That is a question of fundamental principle, but what are much more finely balanced questions of judgment are the debates about whether the word “insulting” should remain in the scope of the racial hatred offences and the extent to which there needs to be a public-facing element in those offences.

With regard to both those issues, I find the arguments to be very finely balanced, as did the committee in its stage 1 report. The committee recognised the force of the arguments both for removing the word “insulting” from the scope of the racial hatred offences and for not removing it. Those arguments were made by different witnesses who kindly gave evidence to the committee. It is a difficult issue to wrestle with, but I have concluded that “insulting” should be removed from the scope of the racial hatred offences for two reasons. The first reason has to do with the definition of “race” in the bill, which is not just about race but about ethnicity, citizenship and nationality, and I am not sure that we should criminalise people who insult each other on the basis of their nationality or citizenship. I do not see why nationality and citizenship should be protected more fully in criminal law than transgender identity or sexual orientation.

Secondly, where an issue is finely balanced and there are good sound arguments on both sides, the freedom of expression considerations that underpin it all should tilt that balance in favour of the outcome that is more protective of free speech. It seems to me that that is the force of what the committee wrote about freedom of expression in its stage 1 report, in which it said, I think, that freedom of expression is a general principle that should be broadly and amply interpreted and understood and that exceptions to that principle should be as narrowly drawn as possible. For those reasons—this matter is not a fundamental question of principle but a finely balanced question of judgment—I will support the amendments that seek to remove the word “insulting” from the scope of the racial hatred offences, which are largely in Dean Lockhart’s name.

Similar reasons lead me to support amendments 41, 44 and 84, in Mr Kerr’s name, which reintroduce to our public order law a public-facing element of these offences. In this case, it is not so much freedom of expression but the right to privacy that is at issue. Again, these are finely balanced issues, with plausible and sound arguments on both sides. However, on balance, I find myself in agreement with what Mr Kerr said on those issues.

I have two final points, before I bring in Mr MacGregor and Rhoda Grant, who are waiting patiently. I completely agree with, and find persuasive and compelling, what the Lord Advocate said about the so-called prosecution lock. The committee did not take any oral evidence on that matter in its stage 1 inquiry, and it did not express a strong view on it in its stage 1 report. The prosecution lock pertains in the prosecutorial systems of England and Northern Ireland because of the different offices that they have in their prosecution systems, which we do not have in Scotland. For the reasons that the Lord Advocate amply set out in his lengthy letter to the committee last week, for which I thank him, it is clear that that kind of prosecution lock does not fit with the fabric of the Scottish criminal justice system. Therefore, I will not support Mr Kerr’s amendment 55.

Finally on this group, I am pleased to support amendments 6 and 19, which remove from the bill sections 4 and 5 respectively.

Thank you for your patience, Fulton, and I now hand over to you.

Fulton MacGregor (Coatbridge and Chryston) (SNP)

I have a few remarks on the amendments lodged by Liam Kerr on the dwelling defence, because there was a lot of discussion in the committee on that matter. I cannot agree with the argument that Liam has made. The amendments to introduce a dwelling defence could take us back many years. It is not that long since people would have come to committees like this—not in this Parliament, because it was established relatively recently, but in other places of power—and argued that things such as domestic violence should remain behind closed doors. On the basis of the information that we get in cross-party groups and in my party, we can all agree that some of the worst offences happen behind closed doors.

Liam Kerr puts forward a reasonable argument, and if someone were just tuning in to listen, they might think that it sounds quite justifiable, but I do not think that it holds up to scrutiny given what we have heard. We have already established certain thresholds. We know that the bill does not prosecute free speech and that it will offer protection for people to have free speech—people are not going to prosecuted for things that are not hate crimes.

At the end of the day, whether it occurs in a public or a private space, if it is a hate crime, and there is evidence of that, surely we agree that it should prosecuted. Liam Kerr used the example of a family sitting down at the dinner table and being worried about what the kids might say. My argument would be that, if a hate crime is being committed in front of the kids or the partner, a hate crime is being committed, and if it is not, it is not. It is quite simple—surely we should not want any kids to be exposed to hate crime.

I know that the main argument would be about the public aspect, and the convener has picked up on that argument as well. That is probably the strongest point in favour of the amendments, but surely the worry should be that, if the issue is taken out of the home, it will become public anyway. If the kids in Liam Kerr’s example repeat what has been said by, presumably, their parent in a private dwelling, that concerns the public interest, because the hate crime has been taken elsewhere.

Those are the only amendments that I wanted to speak on. I will not support Liam Kerr’s amendments on those issues. I thank the convener for giving me the time to make those points.

The Convener

I ask Rhoda Grant to contribute to the debate.

Rhoda Grant

I will be as quick as I can. This is probably the most contentious part of the bill. If it is amended today, it will be interesting to see whether that meets the aspirations of those who have concerns about it. I welcome the reasonable person interpretation. I think that it goes a long way to meet concerns, and I will be supporting it.

On the removal of “insulting”, the balance is fine, but it remains to be seen whether that adds or takes away anything. In my view, to be seen to water down protections in a hate crime bill would not be the right direction to take, so I will not be voting for amendment 34A or amendment 35.

I have some sympathy for what the amendments on the private dwelling defence are trying to do. However, for threatening or abusive behaviour not to be prosecuted if it takes place in a private dwelling does not hit the right balance at all. That defence would mean that, if you went into someone’s house and were threatened or abused, you would not be able to report that to the Crown. It is even more of a concern if it were applied to the use of social media and someone had threatening and abusive behaviour on their Twitter account. Surely that cannot be defensible because it took place in a private dwelling.

That is all I wanted to say; obviously, I reserve my position on the section for stage 3. We need to meet the aspirations of those who have real concerns about it, and I hope that the amendments that I will be supporting will go some way to doing that.

The Convener

No other member has indicated that they wish to contribute to the debate on the group, so I invite the cabinet secretary to wind up on amendment 34 and will then ask Dean Lockhart to formally wind up on the group and to press or withdraw amendment 34A.

Humza Yousaf

If I may, I will speak to some of the points that have been raised. The debate has been very useful and helpful, and it shows that we can debate issues that are at times highly contentious with a degree of respect.

I will reference some of the remarks that have been made in relation to Dean Lockhart’s amendments that seek to remove the “insulting” threshold. He suggested that, if “insulting” were removed from the threshold in relation to racial hatred, there would simply be a perception that the law was being weakened and that, in practice, it would not make a material difference.

My response is that, particularly in relation to this bill, I think that we have all agreed that perceptions can be important. We accept that when we discuss provisions on freedom of expression, for example, as the committee and the Government did collectively yesterday. I think that the vast majority of us probably accept that having a freedom of expression section would make little material difference to the bill, but we also accept that it gives assurance to a number of people who are concerned about the impact of the bill on free speech. Therefore, I think that perceptions are hugely important.

Dean Lockhart referenced a number of stakeholders to whom he had spoken in relation to the “insulting” threshold. However, I notice that he did not mention a single racial equality stakeholder. I would hope that, when suggesting such a change, he spoke to such stakeholders. He may have done so and, of course, he can tell us so in summing up. I remind him of the important maxim on which I hope that we all agree: what is about us without us is not for us. Therefore, I think that it is imperative that we take into consideration the views of those who would be most affected by any potential weakening of the law, or at least the perception of the weakening of the law.

I note everything that the convener has said in his support for the removal of the “insulting” threshold being a finely balanced decision. My response is that we are not criminalising people who are insulting people because of their nationality. There would also have to be either the intention to stir up hatred, or behaviour or material communicated that would be likely to stir up hatred. If people were insulting people who were Polish or Pakistani with the intention of stirring up hatred or, indeed, if their behaviour was likely to stir up hatred, I think that most of us would agree that that should be prosecuted.

I add that the “insulting” threshold has existed since 1986—for almost 35 years—without any controversy. I am curious about the amendments, because they seem to be trying to fix a problem that I do not think exists.

On the public element in Liam Kerr’s amendments, which has been spoken about, I accept that, for a number of members, there is a finely balanced judgment to be made. I want to reassure members that I have not dismissed any of the arguments that call for a dwelling defence or a public element—far from it. I have given the matter serious consideration—I have had quite a few sleepless nights thinking about the issue.

I know that it is often the case that, when we debate amendments at stage 2, we do so on technicalities and draftsmanship. However, on these amendments, the public element is firmly a matter of principle and policy. You should ask those who have been victims of hate crime, assaulted due to the colour of their skin or their religion, or beaten up because they are gay whether they are comforted by the fact that the individual who stirred up hatred against them cannot be prosecuted because they did so in their own home. I think that they would receive no comfort from that whatsoever.

There are serious flaws with the amendments in relation to the public element. Someone could have 20 friends in their private dwelling, the curtains could be closed and the doors could be locked. That person could intentionally stir up hatred against people who are Jewish, for example. Those 20 individuals could then go out and desecrate synagogues and graffiti them with swastikas. Those people would, of course, be charged for those offences, but the individual who stirred up hatred—and intended to stir up hatred—against Jewish people would not be prosecuted. How could that be justified, or be seen to be fair in any way?

I will give another example. You could have a group of workmen in your house. One of them might be Polish, for example. If you stir up hatred with the other workmen and they assault—attack and verbally abuse—that Polish workman in your house, because that was done in your private dwelling you could not be prosecuted for stirring up hatred. That cannot be right.

I will not add anything else to what I have said about any of the other amendments, other than to say that I firmly agree with the points made by the Lord Advocate, as you would imagine that I would. I hope that members will support the amendments in my name and reject those that the Government and I have expressed serious reservations about and opposition to.

The Convener

I invite Dean Lockhart to wind up, and to press or withdraw amendment 34A.

Dean Lockhart

I will make this brief, because committee members have done a good job of explaining the underlying rationale behind some amendments and their concern about other amendments not being pressed.

With respect to “insulting”, I understand the cabinet secretary’s concerns about perception and about dropping the language and concepts at this stage in the legislative process. As the committee has heard in evidence, this is an issue that can be dealt with by the Scottish Government. In my view, the cabinet secretary’s concerns are outweighed by the serious concerns that would arise were the concept of “insulting” to be retained in legislation. I will not go through all the concerns that I highlighted in my opening remarks except to say that retaining “insulting” would create unwelcome uncertainty in Scottish criminal law. We have heard from Police Scotland that the offence of insulting would be difficult to police in practice, because it would create a hierarchy of events in which some behaviour in respect of some protected characteristics was allowed and some behaviour in respect of other protected characteristics was not allowed. That is a serious concern. On that basis, I will press amendment 34A.

The Convener

The question is, that amendment 34A be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Kerr, Liam (North East Scotland) (Con)
Tomkins, Adam (Glasgow) (Con)

Against

Ewing, Annabelle (Cowdenbeath) (SNP)
Finnie, John (Highlands and Islands) (Green)
Grant, Rhoda (Highlands and Islands) (Lab)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
McArthur, Liam (Orkney Islands) (LD)
Robison, Shona (Dundee City East) (SNP)

The Convener

The result of the division is: For 2, Against 7, Abstentions 0.

Amendment 34A disagreed to.

Amendment 34 agreed to.

The Convener

Amendment 34 pre-empts amendment 35.

Amendment 36 moved—[Humza Yousaf].

The Convener

I remind members that if amendment 36 is agreed to, I cannot call amendment 37.

Amendment 36A moved—[Dean Lockhart].

The Convener

The question is, that amendment 36A be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Kerr, Liam (North East Scotland) (Con)
Tomkins, Adam (Glasgow) (Con)

Against

Ewing, Annabelle (Cowdenbeath) (SNP)
Finnie, John (Highlands and Islands) (Green)
Grant, Rhoda (Highlands and Islands) (Lab)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
McArthur, Liam (Orkney Islands) (LD)
Robison, Shona (Dundee City East) (SNP)

The Convener

The result of the division is: For 2, Against 7, Abstentions 0.

Amendment 36A disagreed to.

Amendment 36 agreed to.

The Convener

Amendment 36 pre-empts amendment 37.

Amendment 38 moved—[Humza Yousaf]—and agreed to.

Amendment 39 moved—[Humza Yousaf].

The Convener

I remind members that if amendment 39 is agreed to, I cannot call amendment 9.

Amendment 39A moved—[Liam Kerr].

The Convener

The question is, that amendment 39A be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Kerr, Liam (North East Scotland) (Con)

Against

Ewing, Annabelle (Cowdenbeath) (SNP)
Finnie, John (Highlands and Islands) (Green)
Grant, Rhoda (Highlands and Islands) (Lab)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
McArthur, Liam (Orkney Islands) (LD)
Robison, Shona (Dundee City East) (SNP)
Tomkins, Adam (Glasgow) (Con)

The Convener

The result of the division is: For 1, Against 8, Abstentions 0.

Amendment 39A disagreed to.

Amendment 39 agreed to.

The Convener

I will briefly pause the meeting while I take advice from the clerk.

The Convener

Sorry about that; I just needed to check something that I could not understand.

Amendment 39 pre-empts amendment 9.

Amendment 40 moved—[Humza Yousaf].

The Convener

I remind members that if amendment 40 is agreed to, I cannot call amendment 10.

Amendment 40A moved—[Liam Kerr].

The Convener

The question is, that amendment 40A be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Kerr, Liam (North East Scotland) (Con)

Against

Ewing, Annabelle (Cowdenbeath) (SNP)
Finnie, John (Highlands and Islands) (Green)
Grant, Rhoda (Highlands and Islands) (Lab)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
McArthur, Liam (Orkney Islands) (LD)
Robison, Shona (Dundee City East) (SNP)
Tomkins, Adam (Glasgow) (Con)

The Convener

The result of the division is: For 1, Against 8, Abstentions 0.

Amendment 40A disagreed to.

Amendment 40 agreed to.

The Convener

Amendment 40 pre-empts amendment 10.

Amendments 1 and 2 moved—[Humza Yousaf]—and agreed to.

The Convener

I will suspend the meeting for five minutes to enable everybody to take a comfort break, check on their children and all that sort of thing. We will reconvene just after 11:35.

The Convener

Welcome back, everyone. The next group of amendments is on the stirring up hatred offence characteristics. Amendment 11, in the name of Liam Kerr, is grouped with amendments 12 to 16. I call Liam Kerr to move amendment 11 and speak to all the amendments in the group

Liam Kerr

The probing amendments 11 to 16 are about seeking clarity and flushing out the evidence base that, perhaps due to the truncated timetable on which the bill is operating, the cabinet secretary has been unable to provide prior to this point. Underlying that request is the way in which the bill has been drafted, because it does not seek to create a single, unified criminal offence of stirring up hatred; rather, it looks to particularise, in section 3(3), six protected characteristics and establish offences spinning off each of those. However, the committee is being asked to consider the characteristics almost as a package and to include them all. The Scottish Government’s and Lord Bracadale’s arguments for doing so have focused on the symbolism of that approach, rather than the practicalities of it.

My amendments 11 to 16 simply probe whether the cabinet secretary will provide for each of the protected characteristics the evidential basis for introducing each one in section 3(3). In his answer, can he set out for each protected characteristic the Scottish Government’s estimate of how many cases it expects to proceed before court? Can he point, for each characteristic, to a specific case where he thinks that the police might not be able currently to act in relation to that specific characteristic?

I move amendment 11.

The Convener

Thank you, Mr Kerr. No other member has indicated that they wish to speak on the group of amendments.

Another member has now indicated that he wishes to speak.

John Finnie

Forgive me, convener, for being a bit slow with the keyboard.

These amendments are important and it is important that we discuss them. I find myself again looking to the briefings that we have had, particularly the one from the Equality Network. It is important to quote directly from the people on the front line. The briefing states:

“Amendments 14, 15 and 16 would be a stark statement that the Parliament believes that LGBTI people are less valuable than the other people covered by this bill. This would represent a reversal of many decades of progress in Scotland.”

I whole-heartedly agree with that. I will not support Mr Kerr’s amendment, but I will press it.

The Convener

Thank you. No other member has indicated that they wish to take part in the debate on the amendments, so I call the cabinet secretary.

Humza Yousaf

I share much of the sentiment and possibly even some degree of anger about amendments 11 to 16.

I associate myself with the remarks from the Equality Network and others. They point out that people may feel that, if the protections are not extended to them in the way that they currently exist under the racial stirring-up offences, they would not be as adequately protected in law. Would that mean that the hatred that is directed at them is seen as a lesser hatred? That would be a dangerous signal for any Parliament, let alone our own, to send.

In England and Wales, stirring-up offences have been extended to cover religion and sexual orientation. In Northern Ireland, there are stirring up hatred offences that cover race, religion, sexual orientation and disability. As has been described, section 3(1) of the bill provides for the offence of stirring up hatred in relation to race. Amendments 11 to 16 seek to remove each of the additional characteristics that relate to the new offence of stirring up hatred in section 3(2) of the bill.

Liam Kerr asked a range of questions about the evidential base; I am happy to write to him with more detail on that. However, he should be comforted—I would hope that he is—by the oral evidence that he, as a member of the Justice Committee, heard at stage 1. He has often talked about a truncated timetable for the bill. I accept that the committee has had, and still has, quite a lot to deal with in a truncated period of time, in particular given Covid pressures. However, the committee heard almost 40 representations during its stage 1 oral evidence proceedings, so no member can claim that they have not heard the issues debated at some length.

If amendments 11 to 16 are agreed to, their effect would be to remove some or all of the listed characteristics from the scope of the stirring up hatred offences. That could mean that perpetrators who deliberately intend to stir up hatred based on a person’s sexual orientation or disability, for example, would not face criminal sanction in relation to the distinct harm that is caused by such behaviour. If there is a particular characteristic that gives Liam Kerr cause for concern—he did not seem to suggest that there was—I would be interested to hear what it is. If he can single it out, I can give him specific data that he may wish to see.

I have often pointed out that stirring up hatred offences are not—and I would not expect them to be—prosecuted in large numbers. The racial stirring-up offence has existed for almost 35 years, and in the past decade it has been prosecuted in Scotland only seven or eight times. We know, therefore, that the offences in the bill would not be prosecuted a large number of times. We certainly know that when the racial stirring-up offence is prosecuted, it can make a stark and important difference to the communities that have been targeted.

I cannot support amendments 11 to 16, which at best would result in some characteristics being favoured over others to benefit from the protections that section 3(2) of the bill affords, and at worst could remove those protections entirely.

I leave the committee with this question. If I am protected from having hatred stirred up against me on the basis of my race, why should others who are often the victims of hate not be afforded that same protection? Legislating to protect all existing and new characteristics from offences of stirring up hatred, as the bill currently does, will send a very important message and a signal that that type of behaviour attracts particular condemnation by society and will not be tolerated. However, it is more than just a message—it is about the law affording those protections to groups that are often susceptible to hatred. To do any less than that would be to fail the victims of hate crime. I therefore urge members to vote against amendments 11 to 16.

The Convener

I see that Rhoda Grant has just indicated that she wishes to contribute. I can squeeze her in if she is brief, although it is a late call.

Rhoda Grant

I will not vote for any of those amendments; indeed—[Inaudible.]—characteristic added to the list, which is sex.

The Convener

Thank you—that was commendably brief.

I ask Liam Kerr to wind up and indicate whether he wishes to press or withdraw amendment 11.

Liam Kerr

I am grateful for the contributions, but I am disappointed—as I have been throughout the process—by Mr Finnie’s approach to these matters. It is the job of the Parliament to ensure that matters such as these are explored. If there is a lacuna in the Government’s evidence base that stakeholders are interested in hearing about, probing amendments such as these are a legitimate mechanism to test and explore that.

I seek leave to withdraw amendment 11 and will not move the other amendments. If John Finnie wishes to do so, let the record show that he was the one who wished to remove those characteristics.

The Convener

Does the committee agree to amendment 11 being withdrawn?

John Finnie

I think that the matter is important, given that we have engaged in discussions—and I resent the characterisation that Mr Kerr made. Of course, we must have robust scrutiny, and I have encouraged that all along.

I would like to press the amendment.

The Convener

The question is, that amendment 11 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

Against

Ewing, Annabelle (Cowdenbeath) (SNP)
Finnie, John (Highlands and Islands) (Green)
Grant, Rhoda (Highlands and Islands) (Lab)
Kerr, Liam (North East Scotland) (Con)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
McArthur, Liam (Orkney Islands) (LD)
Robison, Shona (Dundee City East) (SNP)
Tomkins, Adam (Glasgow) (Con)

The Convener

The result of the division is: For 0, Against 9, Abstentions 0.

Amendments 12 to 16 not moved.

Amendment 41 moved—[Liam Kerr].

The Convener

The question is, that amendment 41 be agreed. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Kerr, Liam (North East Scotland) (Con)
Tomkins, Adam (Glasgow) (Con)

Against

Ewing, Annabelle (Cowdenbeath) (SNP)
Finnie, John (Highlands and Islands) (Green)
Grant, Rhoda (Highlands and Islands) (Lab)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
McArthur, Liam (Orkney Islands) (LD)
Robison, Shona (Dundee City East) (SNP)

The Convener

The result of the division is: For 2, Against 7, Abstentions 0.

Amendment 41 disagreed to.

Amendment 42 not moved.

Amendment 17 moved—[John Finnie].

The Convener

The question is, that amendment 17 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

Against

Ewing, Annabelle (Mid Scotland and Fife) (SNP)
Finnie, John (Highlands and Islands) (Green)
Grant, Rhoda, (Highlands and Islands) (Lab)
Kerr, Liam (North East Scotland) (Con)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
McArthur, Liam (Orkney Islands) (LD)
Robison, Shona (Dundee City East) (SNP)
Tomkins, Adam (Glasgow) (Con)

The Convener

The result of the division is: For 0, Against 9, Abstentions 0.

Amendment 17 disagreed to.

Section 4—Culpability where offence committed during public performance of play

Amendment 6 moved—[Humza Yousaf]—and agreed to.

Section 5—Offences of possessing inflammatory material

Liam Kerr

In anticipation of a debate that is shortly to take place, I will not move amendment 18.

Amendment 18 not moved.

Amendments 3 and 4 moved—[Humza Yousaf]—and agreed to.

The Convener

Amendment 43 is in the name of Margaret Mitchell. I ask Liam Kerr whether it will be moved.

Liam Kerr

Margaret Mitchell has asked me not to move amendment 43.

Amendment 43 not moved.

Liam Kerr

In anticipation of amendment 19 being debated, I will not move amendments 44 and 45.

Amendments 44 and 45 not moved.

The Convener

The next group is on offences of possessing inflammatory material and starts with amendment 19, which Liam Kerr referred to. Amendment 19, in the name of Liam Kerr, is grouped with amendments 47, 48, 51, 56 to 58, 60, 61, 63, 67, 69, 71, 73, 75, 76, 80, 85, 92 and 94.

Liam Kerr

I have no wish to take more time than is required in this long meeting. I have one amendment in the group—amendment 19. It simply says, “Leave out section 5”. That section, which has been one of the most contentious aspects of part 2, is entitled “Offences of possessing inflammatory material”. Many committee members expressed concern about the provision. We received powerful and compelling testimony on the issue in oral and written evidence as we prepared our report.

I lodged amendment 19 to remove section 5 altogether. I was pleased that the cabinet secretary supported that move in his letter in response to the committee’s report and by lodging his support for the amendment. The convener has also signalled his agreement to the amendment.

Nothing further requires to be said. I move amendment 19.

Humza Yousaf

I am happy to speak to amendment 19 and to a number of consequential amendments. Section 5, which provides for offences of possessing inflammatory material, is based on provisions that are in the UK Public Order Act 1986. The offence of possessing inflammatory material is not new—it has existed for a number of years in relation to the characteristic of race, for example—but the extension of the offence to the additional characteristics that the bill covers is new.

I listened carefully to the oral evidence that was presented to the committee, and I read through a number of the written responses that the committee received. I engaged with a number of stakeholders, particularly those in faith groups and in the creative industries, including authors and playwrights, and they expressed some deep reservations to me about this offence.

As I confirmed in my stage 1 report response, the Scottish Government has decided that section 5 is not required in the bill, and I am therefore happy to support amendment 19, which seeks to remove the section. I have lodged a number of consequential amendments flowing from the removal of the section.

In supporting amendment 19, I have taken the view that conduct that is criminalised by section 5 can be covered to a very significant extent—albeit not entirely—by application of the general criminal law in relation to attempts to commit offences combined with the specific offences in section 3. Hence, there is no significant policy effect or practical effect in removing section 5 from the bill.

I support amendment 19 and I ask members to support it as well as the consequential amendments in my name.

Amendment 19 agreed to.

Section 6—Powers of entry etc with warrant

The Convener

The next group is on powers of entry. Amendment 46, in the name of Liz Smith, is grouped with amendments 7, 49, 50, 52 to 54 and 101.

Liz Smith (Mid Scotland and Fife) (Con)

Thank you for this opportunity, convener. Amendments 46, 49, 50, 53 and 54 all form part of the same point. Put simply, section 6 as drafted allows the entry into premises by a constable or a member of police staff. A “member of police staff” is defined in section 6(4) as

“an individual appointed under section 26”

of the Police and Fire Reform (Scotland) Act 2012. Under section 26(2)(b) of that act, that also includes persons provided to the police under arrangements between the police and a third party.

In evidence, Assistant Chief Constable Ritchie spoke to the committee about

“certain powers being exercised by members of police staff, which is the unusual element here.”

It is that “unusual element” that is concerning.

In the same evidence session, Calum Steele of the Scottish Police Federation said:

“Police staff currently have the skills for many roles, and the technology to enable them to perform them, but the use of invasive and coercive powers still tends to be reserved to police officers, even if the investigative capacity rests somewhere else in the police service ... To reiterate a point that we made in our submission, it is entirely possible that, through the freedoms that police staff enjoy as members of the public who work in the police service, they could then find themselves using coercive or enforcement powers on other members of the public in the course of an investigation that relates to issues on which they have taken public positions. That is not a helpful wedge to introduce into debate on the role of police officers in society or who should have such powers over members of the public.”

I agree with that.

In a closing point made in that evidence session, Anthony McGeehan of the Crown Office and Procurator Fiscal Service said:

“It would not be unusual for a procurator fiscal to seek a search warrant that allowed a uniformed police officer to execute a search warrant with the assistance of other members of police staff, as opposed to a search warrant being executed distinctly by a member of police staff who was not a police constable. That concern could be addressed through the tightening up of the drafting of section 6.”—[Official Report, Justice Committee, 3 November 2020; c 42-4.]

However, that has not been done, and my amendments therefore seek to address the concerns that the police raised by deleting the ability for a “member of police staff” to be warranted to undertake those matters under section 6.

Amendment 52 seeks to pick up the point that, as drafted, the provisions of section 6(3) are very wide. Throughout, the Law Society of Scotland has flagged its concern that the operation of the provision will be a challenge, not least because no time period for undertaking the conversion exercise is specified. Although not stated, presumably, the cost would need to be borne by the person who is required to undertake the conversion, which seems to be not only wide but slightly unreasonable.

The Law Society of Scotland helpfully suggested clarifying the provision with an amendment—which I note has not been lodged—to introduce a caveat of “reasonableness” with regard to the time that is afforded to convert or produce, and specifying that costs should be borne by those who instruct the search. That is interesting, but it has an impact on police costs. In the absence of the cabinet secretary coming forward with proposals to address those concerns, I will be moving amendment 52.

I move amendment 46.

Humza Yousaf

Amendments 46, 49, 50, 53 and 54, in the name of Liz Smith, seek to remove members of police staff from the powers of entry provision in section 6. Liz Smith has articulated well the concerns that were raised during the committee’s oral evidence sessions at stage 1.

Section 6(1) enables a sheriff or a justice of the peace to grant a warrant

“authorising a constable or a member of police staff to enter premises if ... there are reasonable grounds for suspecting ... that an offence”

relating to stirring up hatred

“has been, or is being, committed at the premises, or ... there is evidence at the premises of the commission of”

such an offence.

I appreciate that concerns have been expressed about section 6 by witnesses who gave evidence to the committee, and Liz Smith referenced the evidence of the Scottish Police Federation and Police Scotland. They do not regard the inclusion of members of police staff as an essential operational requirement, given that police constables would, in any event, be present and able to enforce warrants.

Liz Smith’s amendments 46, 49, 50, 53 and 54 would remove police staff from being subject to the warrant powers. I have reflected carefully, and I support amendments 46, 49, 50, 53, and 54. I give notice that, ahead of stage 3, I will consider further whether any additional changes may be needed to ensure that members of police staff can still enter premises when a police constable has been authorised under the warrant power in the bill. However, that does not prevent me from supporting those amendments today.

I cannot support Liz Smith’s amendment 52, because it would unduly hinder the ability of the police to secure evidence in relation to the suspected commission of an offence of stirring up hatred. In the exercise of a warrant, section 6(3) provides the police with the power to require any electronic information to be produced or converted in such a way that it can be removed from premises that are subject to a warrant. For example, that could happen in relation to a computer on which there are reasonable grounds to suspect are stored hundreds of threatening or abusive emails or electronic communications for the purpose of stirring up hatred in others. Unfortunately, I can think of far too many international examples of such stirring up hatred offences to which electronic communication was key.

Removing section 6(3) would take away an important part of the powers of entry that are provided for in the bill, which would undermine the ability of the police to gather evidence. Therefore, if Liz Smith chooses to move amendment 52, I ask members to vote against it.

Amendment 7, in my name, adds a time limit to the exercise of warrants that are granted to the police under section 6. The committee invited me to reflect further on that issue in the light of the evidence that was heard. In my response to the committee’s stage 1 report, I committed to lodge an amendment to limit the period of effect of a warrant to 28 days. Amendment 7 makes good on that commitment.

Finally, amendment 101, in my name, concerns the exercise of powers of entry and search under a warrant that is granted under section 6 as they relate to Crown land. It is fairly normal to insert such a provision in legislation that contains powers of entry and search. Such provisions exist in many acts of Parliament, including the Wild Animals in Travelling Circuses (Scotland) Act 2018 and the Forestry and Land Management (Scotland) Act 2018.

Accordingly, I ask members to support amendments 7, 46, 49, 50, 53, 54 and 101, and to reject amendment 52.

The Convener

John Finnie has indicated that he wishes to speak on the group.

John Finnie

For the reasons outlined by the cabinet secretary, I will also not support Liz Smith’s amendment 52. However, I thank her for raising an important issue and will support her other amendments.

There are important specifics that relate to the bill, but there is also the general principle around giving extensive powers that are, if I am quoting Mr Steele correctly, “invasive and coercive”—the ability to gain entry to and search premises and the ability to detain and arrest someone. Those powers should be given out only sparingly and only to sworn constables. That does not mean that police support staff do not play a valuable role in forensics and in backing up police officers. That is not the issue; the issue is about having a sworn constable exercise those important powers.

The Convener

As no other member has indicated that they wish to speak on the group, I invite Liz Smith to wind up and press or withdraw amendment 46.

Liz Smith

I thank the cabinet secretary for his comments, which were very helpful. I also thank Mr Finnie. The issue that the amendments address is important. I lodged them as a result of the evidence to the committee relating to comments that were provided by the police. We have to recognise the concerns that the police would have if we did not amend the bill. I listened carefully to what the cabinet secretary said about amendment 52 and, when the time comes, I will not move it. However, I will press my other amendments.

Amendment 46 agreed to.

Amendments 47, 48 and 7 moved—[Humza Yousaf]—and agreed to.

Amendments 49 and 50 moved—[Liz Smith]—and agreed to.

Amendment 51 moved—[Humza Yousaf]—and agreed to.

Amendment 52 not moved.

Amendments 53 and 54 moved—[Liz Smith]—and agreed to.

The Convener

We have three further groups to debate and we will not get through them all today. Therefore, I will draw a line at this point. We will reconvene next week to continue and complete our stage 2 consideration of the bill.

Next week, we will commence with the debate on the next group of amendments, which concerns removal of provisions ancillary to sections 3 and 5. I do not anticipate that the remaining stage 2 consideration will take more than about an hour, but we do not have an hour today, not least because we have one other piece of business to deal with.

I thank Dean Lockhart, Johann Lamont, Liz Smith and Humza Yousaf for joining us. I ask members of the committee to stay where they are because there is another item on the agenda that needs to be disposed of in public.

The Convener (Adam Tomkins)

Good morning, everyone, and welcome to the Justice Committee’s sixth meeting in 2021. We have no apologies, and we are joined by Johann Lamont and by the Cabinet Secretary for Justice, Humza Yousaf.

The first agenda item is to complete our consideration of the Hate Crime and Public Order (Scotland) Bill at stage 2. Members should have a copy of the marshalled list and the groupings for debate. I remind everyone that today’s meeting is fully virtual and that we will use the chat function on BlueJeans as our means of voting electronically.

When we come to a vote, I will ask members to type Y in the chat function to record any votes for yes. I will do the same in turn for no, with members typing N, and for abstain, with members typing A. The clerks will then collate the results and I will read out and confirm which committee member has voted in which way. If I make any mistakes, please alert me immediately by typing R in the chat box, because we cannot go back once the next vote has been called.

If we lose the connection with anyone at any point, I will suspend the meeting for a short time to try to get them back. If we cannot do so after a reasonable time, I will consult the deputy convener on whether we can proceed fairly. Those instructions are the same as for meetings in previous weeks—I hope that that is all reasonably clear. If there are any questions, please ask them now.

As there are no questions, we move directly to consideration of amendments.

Section 6—Powers of entry etc with warrant

The Convener

The first group is on the removal of provisions that are ancillary to sections 3 and 5. Amendment 20, in the name of Liam Kerr, is grouped with amendments 21 to 24, 26, 28 and 29.

Liam Kerr (North East Scotland) (Con)

Amendments 20 to 24, 26, 28 and 29 are grouped as being ancillary to section 3 and to section 5, which has been removed. The amendments are a function of, and entirely dependent on, amendment 17, which I did not move last week. The amendments are entirely consequential—they hinged on amendment 17 being agreed to, which did not happen. It would not therefore be appropriate to seek to remove the sections to which the amendments refer, and accordingly I will not press amendment 20 or move the other amendments in the group.

I move amendment 20.

The Cabinet Secretary for Justice (Humza Yousaf)

I am happy with that. If the amendments had been pressed, I would have opposed them. I am happy to say nothing more than that.

The Convener

This has been a short debate. Does Liam Kerr wish to press or withdraw amendment 20?

Liam Kerr

I have nothing further to say, convener. I seek to withdraw amendment 20.

Amendment 20, by agreement, withdrawn.

Section 6, as amended, agreed to.

After section 6

Amendment 55 not moved.

Section 7—Recording conviction for offence under section 3 or 5

Amendments 56 to 58 moved—[Humza Yousaf]—and agreed to.

Amendments 59 and 21 not moved.

Section 7, as amended, agreed to.

Section 8—Forfeiture and disposal of material to which offence relates

Amendment 60 moved—[Humza Yousaf]—and agreed to.

Amendment 22 not moved.

Section 8, as amended, agreed to.

Section 9—Individual culpability where organisation commits offence

Amendments 61 and 8 moved—[Humza Yousaf]—and agreed to.

Amendment 23 not moved.

Section 9, as amended, agreed to.

Section 10—Provision in relation to providers of information society services

Amendments 62 and 63 moved—[Humza Yousaf]—and agreed to.

Amendment 24 not moved.

Section 10, as amended, agreed to.

Amendment 64 moved—[Humza Yousaf]—and agreed to.

Schedule 1—Offences relating to stirring up hatred: information society services

Amendments 66 to 75 moved—[Humza Yousaf]—and agreed to.

Schedule 1, as amended, agreed to.

Section 11—Protection of freedom of expression: religion

Amendment 76 moved—[Humza Yousaf]—and agreed to.

Amendment 25 moved—[Liam Kerr].

The Convener

The question is, that amendment 25 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Kerr, Liam (North East Scotland) (Con)

Against

Ewing, Annabelle (Mid Scotland and Fife) (SNP)
Finnie, John (Highlands and Islands) (Green)
Grant, Rhoda (Highlands and Islands) (Lab)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
McArthur, Liam (Orkney Islands) (LD)
Robison, Shona (Dundee City East) (SNP)
Tomkins, Adam (Glasgow) (Con)

The Convener

The result of the division is: For 1, Against 8, Abstentions 0.

Amendment 25 disagreed to.

Amendments 77 to 79 moved—[Humza Yousaf]—and agreed to.

Amendment 26 not moved.

Section 11, as amended, agreed to.

Section 12—Protection of freedom of expression: sexual orientation

Amendment 80 moved—[Humza Yousaf]—and agreed to.

Amendment 27 moved—[Liam Kerr].

The Convener

The question is, that amendment 27 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Kerr, Liam (North East Scotland) (Con)

Against

Ewing, Annabelle (Mid Scotland and Fife) (SNP)
Finnie, John (Highlands and Islands) (Green)
Grant, Rhoda (Highlands and Islands) (Lab)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
McArthur, Liam (Orkney Islands) (LD)
Robison, Shona (Dundee City East) (SNP)
Tomkins, Adam (Glasgow) (Con)

The Convener

The result of the division is: For 1, Against 8, Abstentions 0.

Amendment 27 disagreed to.

Amendments 117 and 28 not moved.

Section 12, as amended, agreed to.

After section 12

Amendment 112 not moved.

Section 13—Interpretation of Part 2

Amendment 84 moved—[Liam Kerr].

The Convener

The question is, that amendment 84 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Kerr, Liam (North East Scotland) (Con)
Tomkins, Adam (Glasgow) (Con)

Against

Ewing, Annabelle (Mid Scotland and Fife) (SNP)
Finnie, John (Highlands and Islands) (Green)
Grant, Rhoda (Highlands and Islands) (Lab)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
McArthur, Liam (Orkney Islands) (LD)
Robison, Shona (Dundee City East) (SNP)

The Convener

The result of the division is: For 2, Against 7, Abstentions 0.

Amendment 84 disagreed to.

Amendment 29 not moved.

Section 13 agreed to.

Section 14—Meaning of the characteristics

Amendment 85 moved—[Humza Yousaf]—and agreed to.

Amendment 86 not moved.

Amendment 87 moved—[Humza Yousaf]—and agreed to.

The Convener

The next group is on the characteristic of disability. Amendment 88, in the name of Dean Lockhart, is the only amendment in the group. He is not with us, so Liam Kerr will speak on his behalf.

Liam Kerr

Dean Lockhart lodged amendment 88 but is unable to attend the meeting and has asked me to speak to and move the amendment. The amendment is a simple one that was recommended by the Law Society of Scotland, of which I remind colleagues that I am a member as a practising solicitor.

The amendment proposes a simple but important change to the particularisation of

“a medical condition which has (or may have) a substantial or long-term effect”

in the definition of disability. The amendment would replace that with the particularisation of

“a medical condition which has had, or may have, a substantial or long-term effect”.

That is a small but crucial change that would extend protections. Under the existing drafting, if a condition were to be substantial but not long term, it would be covered only while the person had it. If the person ceased to have such a condition, they would lose protection.

By way of example, let us say that at some future date someone committed what would otherwise be a hate crime against people who had in one way or another struggled with their mental health to a level that it constituted a disability. If a target of the hate crime had managed to overcome their mental health issues but was nonetheless targeted because of their mental health, they would arguably not be covered by the bill. I do not imagine that that is what is intended, especially as the stigma around mental health can endure for a long time. To cover that scenario and ensure that the protection endures, an amendment to include the words “has had” will suffice. I see no reason not to ensure that clarity.

I move amendment 88, in Dean Lockhart’s name.

John Finnie (Highlands and Islands) (Green)

This is the first and perhaps only time that I will find myself supporting Mr Lockhart on such a matter. What is important is the motivation of the attacker—what they presume. This is a welcome tidying-up operation and I will support amendment 88.

Humza Yousaf

The Government will support Dean Lockhart’s amendment 88, although it does not necessarily make a practical legal difference in its effect. For clarity, I say that the current provisions will apply when malice and ill-will are based on a person having had a disability in the past. If a person is the victim of an offence in which the offender demonstrated malice and ill-will on the basis that the victim had recovered from cancer, for example, the victim will still be a member of a group that is defined by reference to a disability.

All that said, I take the point that Liam Kerr makes on Dean Lockhart’s behalf that the amendment could provide clarity and reassurance that those who have had a disability or medical condition in the past, and who are targeted for that reason, are included in the definition of disability. For clarity, I am happy to support amendment 88, in Dean Lockhart’s name.

Liam Kerr

I am grateful to Mr Finnie and the cabinet secretary for their comments. I have nothing further to add, so I will press amendment 88.

Amendment 88 agreed to.

The Convener

I call amendment 89, in the name of Johann Lamont, already debated with amendment 31. Johann, do you wish to move or not move amendment 89? I cannot hear Johann Lamont.

Johann Lamont (Glasgow) (Lab)

I apologise, convener. Can you hear me now?

The Convener

Yes.

Johann Lamont

I am now having to join you by phone. I wish to flag up the fact that amendment 89 relates to the debate that we had about whether sex should be included in the bill’s list of characteristics. The amendment would simply insert a definition of “sex”, as defined in the Equality Act 2010. The bill should include that definition. If we end up with a working group, it should still be linked to that definition. I will not move the amendment at this stage, but I hope that the Cabinet Secretary for Justice will look at it. Even if he continues to resist the idea of including sex as a characteristic, there should be an established definition for the working group to use, should that be agreed at stage 3.

The Convener

That is very clear.

Amendment 89 not moved.

The Convener

The next group is on the characteristic of sexual orientation. Amendment 90, in the name of Johann Lamont, is grouped with amendments 91, 99B and 99C.

Johann Lamont

I confess that I feel rather anxious about having this debate. Last week, it seemed to me that members were being condemned just for lodging amendments, even though they were within the scope of the bill. I continue to be concerned about our ability to stress test the bill and its provisions and about the closing down of debate. It is essential that we can have an open and rigorous debate.

I do not intend to press these amendments at this stage, but I want an explanation from the cabinet secretary for the use of the term “a different sex”. It is clear in law that there are two sexes, and definitions matter. If we are going to use different language from that in the Equality Act 2010, there is a responsibility on the cabinet secretary to explain the reason for that. In some places, there is a debate about whether there are only two sexes or whether sex is on a spectrum, and we should not ignore that debate. If that is what is being suggested, we need to be clear about that. I want to use the terms used in the Equality Act 2010, and the purpose of my lodging these amendments is to ensure that the cabinet secretary provides an explanation and states whether the Scottish Government believes that there are only two sexes and, if not, what the other ones are. It is essential that we have that explanation if we are to use different definitions in the bill from those in the Equality Act 2010.

I move amendment 90.

The Convener

John Finnie has indicated that he wishes to speak. If any other member wishes to speak, they should please type R in the chat box.

John Finnie

I agree absolutely with Johann Lamont about the need for unfettered discussion. In the Scottish Parliament’s unicameral set-up, legislation is scrutinised primarily in committees. We must be able to express views that others find uncomfortable.

Johann Lamont knows that I disagree with her on the issue that her amendments raise, but it is important that people respect differing views. Good grief—surely our raison d’être is to prompt discussions and to be courteous in them. I agree with her about that, although I disagree about the specifics of her amendments, for a good reason that concerns consistency of approach.

The bill uses the phrase

“persons of a different sex”,

which is consistent with other Scottish legislation of the past decade, including the equal marriage act, which is the Marriage and Civil Partnership (Scotland) Act 2014, and the equal civil partnership act, which is the Civil Partnership (Scotland) Act 2020. In 2014, I was a member of what was then the Equal Opportunities Committee, and I do not recall that the issue was a feature in the rigorous debate that took place then. Changing the bill’s language in the way that Ms Lamont suggests would be inconsistent with all other recent Scottish legislation.

I will pick up on a point that I raised in relation to Dean Lockhart’s amendment 88, which we have just discussed. To quote the Equality Network, Johann Lamont’s amendments would be

“likely also to mean that the statutory aggravation could not be applied where a sexual orientation hate crime was committed against a person because they are in a relationship with a non-binary person”.

That would be because a person’s partner was presumed to be neither of the same sex nor of the opposite sex but of a different sex. As I said in relation to amendment 88, on disability, which we just discussed, what matters is the attacker’s motivation—what the attacker presumes a person’s sexual orientation to be. The actual identity or legal sex of a victim or their partner is, to an extent, irrelevant.

If Johann Lamont were to press her amendments, I would oppose them.

Liam McArthur (Orkney Islands) (LD)

It is important to echo the sentiments that John Finnie expressed. I am grateful to Johann Lamont for lodging her amendments, in no small part because of some of the debate about the bill. If we shy away from robust debate of issues that arouse considerable emotion and are seen as highly sensitive, we fail in our duties, not least because the committee structure is intended to do the heavy lifting of scrutiny, as John Finnie said. Johann Lamont deserves considerable credit for lodging amendments that allow the debate to take place.

Like John Finnie, I disagree with Johann Lamont’s amendments, but that is not to take away from the importance of having the debate. John Finnie set out well how the bill’s language is consistent with previous legislation, which reassures me that the bill’s approach is worthy of support.

As I said, it would be remiss of us not to say that we need to have, and be seen to be having, the debate that Johann Lamont’s amendments have prompted.

Humza Yousaf

Thank you—[Inaudible.]—with the remarks that John Finnie and Liam McArthur made. I heard from them a reasonable and reasoned articulation of why they disagree with Johann Lamont’s amendments. I also heard their willingness to engage in discussion, which I hope calms the anxiety that Ms Lamont said that she felt about lodging the amendments. No one will condemn her—certainly not from the Government or among her colleagues who we just heard from. I associate myself with the remarks of Liam McArthur and John Finnie about the need to have such debates, as uncomfortable as they might be. Unfortunately, outside the committee setting, such debates can sometimes be toxic.

We have all seen examples of that, but I am pleased that the debate in the committee has been respectful, and I am sure that, when we discuss the issue in the chamber at stage 3, if that is Johann Lamont’s intention, the debate will be equally respectful.

Like John Finnie and Liam McArthur, I cannot support Johann Lamont’s amendments now and could not do so if they were lodged again at stage 3, simply because, as legislators and lawmakers, we should be consistent in our approach to legislation. As John Finnie said, the term “different sex” has been used in legislation. Indeed, Johann Lamont has previously voted for legislation containing the term “different sex”. She now wishes to revert to using the term “opposite sex”, so it would be interesting, when she winds up, to hear what has changed.

Consistency and precedent are important in legislation. Being inclusive is important, too. Organisations such as the Equality Network and Stonewall Scotland support the use of the term “different sex” because they believe it to be more inclusive, particularly of non-binary persons. I agree. For those reasons, I agree with John Finnie and Liam McArthur that we should be respectful in the debate. I have heard no one wanting to close down the debate, but I would respectfully disagree with Ms Lamont. It will be interesting to hear why she has changed her previous support for the term “different sex” and now supports using the term “opposite sex”.

Johann Lamont

I note members’ emphasis on respectful debate. I am concerned, however, that the cabinet secretary has still not explained whether he believes that there are two sexes. There is a difference between saying, “You’re a different sex from me” and saying, “I’m a different sex.” It is not semantics. I have not changed my position. In fact, the definition that we are dealing with—as opposed to the conversation—is in the Equality Act 2010, and I have not yet heard an explanation of why that would change. It is, of course, important to be inclusive and respectful, and to understand how people feel about themselves and the world, but we are simply dealing with a definition here, and it is a definition that is in the Equality Act 2010.

I hope that, at some point, we hear the cabinet secretary confirm his view about whether there are two sexes. One of the things that has changed is that there is now a conversation about there being a spectrum, and more than two sexes, but that discussion will not be determined by the bill. That is why, although my amendments are part of an on-going debate on the issue, I will not press amendment 90.

Members have talked about the need for respect. I understand that the parties have met to talk about freedom of expression and that there will be further meetings. There is some anxiety that that process is not transparent. I do not know whether the convener is able to comment on how we can reassure people who have expressed concerns to the committee about the bill’s impact on their ability to say what they think. Will the cabinet secretary meet groups such as For Women Scotland who gave evidence to the committee? Will there be a chance for people to stress test the bill? I realise that I am straying slightly off subject, but it is all in the same context. Even by simply raising these issues, people like me have been accused of stirring up hatred, which is precisely what the bill deals with. The cabinet secretary will understand the need for these anxieties to be addressed.

I thank the committee for considering the issues raised by the amendments. I will not press amendment 90 or move the other amendments.

The Convener

It might be appropriate at the end of this process to say some words about where we are with freedom of expression provisions.

Amendment 90, by agreement, withdrawn.

Amendment 91 not moved.

Section 14, as amended, agreed to.

Section 15—Power to add the characteristic of sex

Amendment 92 moved—[Humza Yousaf]—and agreed to.

Amendment 93 not moved.

Amendments 94 and 96 moved—[Humza Yousaf]—and agreed to.

Amendment 97 not moved.

Amendment 98 moved—[Humza Yousaf]—and agreed to.

Section 15, as amended, agreed to.

After section 15

Amendment 99 moved—[Humza Yousaf].

Amendment 99A not moved.

Amendment 99B not moved.

Amendment 99C not moved.

Amendment 99 agreed to.

Sections 16 to 18 agreed to.

Schedule 2—Modifications of enactments

Amendment 100 moved—[Humza Yousaf]—and agreed to.

Schedule 2, as amended, agreed to.

Section 19 agreed to.

After section 19

Amendment 101 moved—[Humza Yousaf]—and agreed to.

Sections 20 and 21 agreed to.

Long title

Amendment 102 moved—[Humza Yousaf]—and agreed to.

Long title, as amended, agreed to.

The Convener

That ends stage 2 consideration of the bill. I place on record my thanks to the cabinet secretary and to Johann Lamont, Dean Lockhart, Margaret Mitchell and all the members of the committee for the way in which they have conducted themselves during stage 2 consideration of the bill. We all know that this is a difficult bill that has generated a lot of controversy and not a little heat. I also place on record my thanks and indeed my debt to the clerks and all the staff who support the committee in our work.

Members know that discussions are under way between the parties and the cabinet secretary about stage 3 amendments, particularly those that relate to freedom of expression. Those discussions, which Johann Lamont referenced a few moments ago, will continue, and we are all determined to ensure that they are as transparent and open to the public and to all relevant stakeholders as possible.

I say formally that the bill will now be reprinted as amended at stage 2 and published online tomorrow morning. The Parliament has not yet determined when it will hold stage 3. Members will be informed of that date in due course along with that of the deadline for lodging stage 3 amendments. In the meantime, members will be glad to know that stage 3 amendments can now be lodged with the clerks in the legislation team.

The Convener (Adam Tomkins)

Good afternoon, everyone, and welcome to the seventh meeting in 2021 of the Justice Committee. We have no apologies.

We are joined by the Cabinet Secretary for Justice, Humza Yousaf, and his officials, whom I welcome to the meeting. We are also joined by a significant number of witnesses. I am grateful to everyone for making the time available to join us at such short notice. I hope that I do not miss anybody out—please forgive me if I do. We have with us Danny Boyle from Black and Ethnic Minority Infrastructure in Scotland; Michael Clancy from the Law Society of Scotland; Eilidh Dickson from Engender; Anthony Horan from the Catholic Parliamentary Office of the Bishops Conference of Scotland; Tim Hopkins from the Equality Network; Lucy Hunter Blackburn from Murray Blackburn Mackenzie; Becky Kaufmann from the Scottish Trans Alliance; Iain Smith from Inclusion Scotland; Susan Smith from For Women Scotland; Fraser Sutherland from the Humanist Society Scotland; Dr Andrew Tickell from Glasgow Caledonian University; and Kieran Turner from the Evangelical Alliance.

We have only one item on our agenda, which is to consider options for amendments to the Hate Crime and Public Order (Scotland) Bill on freedom of expression, which have been proposed by the cabinet secretary. I remind everybody that we are here to talk about only the proposed free speech amendments to the bill. I am not prepared to, and I do not intend to, reopen any other aspect associated with the bill at the moment.

I will say a few words about why we are doing this and what it will lead to.

The bill has completed stage 2 and is therefore no longer formally with the Justice Committee. The stage 3 debate on the bill is scheduled for later in March in the Parliament chamber. Our discussion here is about trying to shine as much light as we can on issues arising with regard to a matter that has been discussed in the chamber and by the Justice Committee many times and in great detail: namely, the impact that the bill will have on freedom of expression and what the bill should say about that impact.

We know that the bill was significantly amended at stage 2 and that among those significant amendments was a suite of amendments that narrow and focus the scope of the offences provided for, particularly with regard to the stirring-up offences. The question is: what in addition to that needs to be said about freedom of expression in the judgment of our witnesses, guests and stakeholders? That is where we are.

The committee does not expect to draw up a report, reach conclusions or make recommendations with regard to today’s proceedings. The proceedings are being held in public so that there can be full public discussion of the issues. I hope that members of the Scottish Parliament will draw on that in their own way as we approach stage 3. The meeting is being broadcast live, and there will be a substantially verbatim Official Report of what is said in it.

I know that the bill has generated a lot of heat and that people feel passionately about it. So far, in all our deliberations in this committee, we have tried to shine light on the bill rather than to generate heat. All of us who have spoken about the bill in the committee have done so with respect for people who hold different views. I expect that to continue today.

I will invite the cabinet secretary to speak briefly to his proposed amendments. I will then go around the room and invite our guests to reflect on the proposals and on what they heard the cabinet secretary say. If there is time after that, members of the committee will ask questions, and I will ask the cabinet secretary to conclude.

This is an unusual session, in that it is not principally driven by members’ questions. We are here to listen rather than to speak, and we want to hear as much as possible from the guests whom we have invited. I reiterate my thanks to them for their time and for all the effort that has been poured in to help the committee to do its job as best as it can, to ensure that Parliament, if it passes the bill, passes the best possible bill.

I invite the cabinet secretary to speak to his proposed amendments.

The Cabinet Secretary for Justice (Humza Yousaf)

Thank you, convener. I align myself with your remarks, particularly on how respectful the debate has been.

I thank all the stakeholders who are attending the meeting. As the convener has already said, they are doing so at very short notice. I also thank them for being prepared to offer their views in what will undoubtedly be a constructive and respectful manner. In addition, I thank the convener and the Justice Committee for agreeing to host this unusual session, as the convener has described it.

We often decry the nature of our politics—and sometimes with good reason—but we have seen a genuine desire to collaborate and reach as much consensus as possible on a number of issues, particularly on a freedom of expression provision in the Hate Crime and Public Order (Scotland) Bill. That is testament to the positive approach that has been taken by those around this table—particularly members of the committee. I hope that it also shows the Government’s continued willingness to find common ground where we can.

As my letter to the Justice Committee made clear, it has been very helpful to discuss that with all the committee members, as well as how best a collaborative approach to freedom of expression can be developed. Today’s session is intended to broaden out the dialogue in order to inform how best to approach freedom of expression. It is not the only chance that we have had; the committee has received numerous written submissions and, in its stage 1 deliberations, it took evidence from more than 35 witnesses. However, this session will help us to further inform our approach to freedom of expression.

I am clear that protecting members of groups that are targeted by hate crime and protecting freedom of expression are not mutually exclusive. It is also important to state that the inclusion of freedom of expression provisions is not necessary for the bill to be compatible with the European convention on human rights. However, I accept that freedom of expression provisions can cast light on the operation of the stirring up of hatred offences and provide necessary reassurance and clarity. Freedom of expression provisions can also reinforce the boundaries of the criminal law by protecting the right to express views that might be distasteful or offensive to many but, nonetheless, are not and should never be the business of the criminal law.

I have circulated four options to aid our further discussions of the matter. We have all been clear that we wish to ensure that the process is transparent and allows for further consultation with our key stakeholders. I will not talk through each option, because my covering note, which the committee has published, goes into sufficient detail to explain each of the options that are in front of us. However, those around the table will note that I have suggested the formulation of “discussion or criticism” for each of the four options.

It is my strong belief that we need to make it clear that criticising matters that are related to protected characteristics is not subject to criminal sanction under the bill. Equally, I have heard loudly and clearly from sections of our community that can be targets of hatred that they do not wish to be singled out through the freedom of expression provision, because they fear the consequences of such treatment within the bill. Therefore, my proposals seek a common middle ground, and I hope that we can unite around one of the proposed options or a variation of them.

I hope that the amendments that were agreed to at stage 2 on including a reasonable person test, which the convener alluded to, also give comfort to those who had previously been concerned about vexatious complaints being made. The amendments that were made at stage 2 make it crystal clear on the face of the bill that the court must undertake an objective assessment of whether behaviour is “threatening, abusive or insulting” or is likely to stir up hatred.

I am keen to hear the stakeholders’ views on a number of issues, but I am particularly interested in whether race, for example, should be covered by a freedom of expression provision, because the arguments on that are very finely balanced. It would be useful if those who argue that there needs to be more specificity for certain protected characteristics could give examples of behaviour that would not be captured by “discussion or criticism”.

None of the options that have been circulated is the Scottish Government’s preferred option; instead, they set out how Parliament could decide to include freedom of expression provisions. Much like committee members, we are in listening mode. I look forward to hearing the views of all those at today’s session, and I commit to continuing to work with everyone—parliamentarians and external stakeholders—to ensure that the bill adequately protects people in our society from hate and adequately protects the important freedoms of expression and speech, which we all hold dear.

The Convener

Thank you very much, cabinet secretary. That is very helpful.

In addition to the witnesses whom I listed earlier, we are joined by Roddy Dunlop QC, who is the dean of the Faculty of Advocates. I would like to hear from him, Michael Clancy and Andrew Tickell before moving on to other witnesses. I invite Roddy Dunlop to respond to what he has heard and read from the cabinet secretary.

Roddy Dunlop (Faculty of Advocates)

Thank you for the invitation to the meeting.

Given that the starting point for all the options is “discussion or criticism”, my main query, in relation to section 3 of the bill in particular, is about how we can imagine, at a high level of generality, discussion or criticism being threatening or abusive; that is not the purpose of either discussion or criticism in generality. One has to bear in mind that the overarching entitlement of freedom of expression includes the entitlement to shock, offend or disturb. If, at a high level of generality, one would not expect discussion or criticism to be threatening or abusive, one wonders what the point is of the exception. Equally, if someone were to use supposed discussion or criticism as a cloak under which to engage in threatening or abusive behaviour, why should that, if it were intended to stir up hatred, be a provision that is excepted and supposedly covered?

Therefore, I wonder whether we would get very much out of those options. Leaving aside the carve-outs for race in this respect—as the convener said, those are not in play at the moment—and given that we already have to get over the hurdle of behaviour being intended to stir up hatred and threatening or abusive, I wonder what the options would add.

I know that Dr Tickell, whom the committee will hear from shortly, has an alternative suggestion. There are already four, so you might not want a fifth, but he suggests that there should be an overall emphasis on freedom of expression and the need to have particular regard to freedom of expression. The law is already very familiar with such provision. For example, section 12 of the Human Rights Act 1998 says that, in relation to pre-publication restraint, there must be “particular regard to” the article 10 protections. Therefore, I wonder whether that suggestion makes sense and is worthy of consideration. As Dr Tickell will point out, that is already covered by the overarching effect of the Human Rights Act 1998, but there is nothing wrong with having it front and centre that that is part of the law, rather than having to refer to a different act. I suggest that Dr Tickell’s option is worthy of consideration, because I am not sure how much we would get from the Government’s four options.

The Convener

That is a very helpful start. Before we come to Andrew Tickell, I invite Michael Clancy from the Law Society of Scotland to speak.

Michael Clancy (The Law Society of Scotland)

Good afternoon, everyone. I was struck by the cabinet secretary’s approach to this discussion. I listened to his introduction, and I have read his letter to the committee, in which he talked about broadening dialogue and adopting an inclusive approach to law making. He also asked us to look at the balancing of rights and responsibilities. It is important to bear those features in mind in considering any legislation that would touch on freedom of expression or affect our human rights.

From the beginning of the process, we at the Law Society of Scotland have been strident about ensuring that hate crime is seen as being unacceptable in 21st century Scotland. All victims, of whatever characteristics, should have similar expectations of what amounts to offending behaviour. In a sense, therefore, they should be able to look at the statute and say that they can understand not only what is threatening and abusive but where discussion and criticism act as brackets at either end of the criminal provisions. That gives a sense of understanding and appreciation, and it matches what we would look for as regards good law—in other words, law that is accessible, clear, consistent and practical in its application. That is how we have looked at the bill’s provisions. In considering our submission, which I hope the committee will have had time to at least scan if not read in depth, given the speed at which the process is moving, I ask the committee to reflect on how we might get to a position in which our statute law fulfils those objectives.

That brings me to that famed publication of the Scottish parliamentary counsel office, “Drafting Matters!”, which contains a motto. I will not torture you all with my pronunciation of the Gaelic, but it translates as

“Say but little and say it well”.

In looking at the options that the cabinet secretary brought before the committee, we were struck by the simplicity, clarity and good drafting of option 3, which applies to all the characteristics. It has no particular carve-outs for one aspect or another, which we think is an important feature.

As for the two points that the dean of the Faculty of Advocates raised, on whether we should have something whereby we do not adopt any of the options, we look to the aspect that Dr Tickell will talk about, in terms of the ECHR. One of the features of the legislation was that it was intended to be a consolidation measure that would bring all the law in the area within the bookends of one piece of legislation. We all know about the background law of the convention rights, which underpin the work of the Parliament. Adding that to the equation would be adding something that is already there. However, I think that we would want to hold fast to the idea of getting as much consolidation as we can. That is why we are in favour of option 3.

I hope that that is helpful, convener.

The Convener

Thank you, Michael. That is very helpful.

Andrew Tickell will be next. Andrew, your name has already been cited. Apparently you have a new plan up your sleeve. Can we hear it, please?

Dr Andrew Tickell (Glasgow Caledonian University)

Absolutely. It is a great pleasure to be with you again. Perhaps characteristically, “none of the above” was my response to the four options.

It strikes me that the discussion around the bill has reached a point where the free expression provisions are critically important and the flashpoint of controversy, as you elucidated at the beginning, convener. However, it is important, as Roddy Dunlop said, to realise how far we have come with the legislation and for people not to misunderstand the idea that the principal safeguards for freedom of expression in the bill will be found in any of the provisions, because I do not believe that they will. In order for someone to be convicted of the stirring-up offence, it now needs to be established that “a reasonable person” would consider the accused person’s actions to be threatening or abusive—so it is not about a subjective take on that but about “a reasonable person”—and that the accused person intended by those threatening or abusive actions to stir up hatred. In addition, the Crown Office and Procurator Fiscal Service now has to establish beyond a reasonable doubt, on corroborated evidence, that the accused person’s actions are not reasonable.

The critical defence to charges under this provision has therefore always been the reasonableness defence and not, in fact, the free speech provisions. As you might remember, I had some anxieties even at stage 1 about the way in which the free expression provisions were going, because they seemed to be adopting the logic of a series of specific statements, or types of statement or criticism, that were safe harboured from the definition of threatening or abusive behaviour. Some of the fankle at stage 2 reflected the fact that the logical thing when framing free expression provisions in that way is to add more and more carve-outs and exceptions.

Although it is important that laws are clear, we need to frame them at a sufficient level of generality. What I suggest in my short written submission, as Roddy Dunlop has said, is that there might be another way to look at the matter entirely, so that, instead of creating internal hierarchies around it, we should look to what is already in the Human Rights Act 1998. Sections 12 and 13 of the 1998 act have specific provisions about not only free expression but the other critical dimension of freedom of thought, conscience and religion, which includes philosophical ideas around questions of gender, sex and so forth. The 1998 act establishes, in effect, that in particular legal contexts, the court should have

“particular regard to the importance of”

those rights.

My suggestion, which I suppose is a fifth limb of the committee’s scrutiny, is to introduce provisions in the bill that say that, in deciding whether the accused person’s actions are reasonable in context—it is challenging, though, as Roddy Dunlop has said, to see how behaviour that is reasonably regarded by the ordinary person as threatening or abusive and can be proved beyond reasonable doubt to be intended to stir up hatred would be reasonable in context—the Parliament could direct the courts to say that they should have particular regard to those questions of freedom of thought, conscience and religion and, on the other hand, freedom of expression. That has the merit of being simple, direct, encompassing and general, as it applies to all the characteristics in question, whether of race, religion or any of the others that have prompted controversy and which a range of witnesses representing their particular interests are here to discuss.

In my submission, that might be a way for the Government, the committee and the Parliament to address the underlying concerns and emphasise to the courts, the public and the police at the early stages of an inquiry that the application of this particular new set of criminal law, which is not so different from others that are already on the books—another detail that is often left out—nevertheless has to be seen within a rights framework that has particular regard to the questions of freedom of expression, freedom of conscience, freedom of thought and freedom of religion. For me, the precedent that we find in the Human Rights Act 1998 is perhaps a more helpful one, to be frank, than any of the four options that are set out by the cabinet secretary. That, in a nutshell, is my fifth route through.

The Convener

Excellent, Andrew. Thank you. That is very helpful, indeed. I thank all three speakers for opening up the discussion. I will now give you a sense of the batting order that I propose to use to bring in other voices. Before we go any further, I want to hear from the organisations that are represented by Danny Boyle, Eilidh Dickson and Iain Smith; then I will go to Tim Hopkins, from the Equality Network, and Becky Kaufmann, from the Scottish Trans Alliance; then to Lucy Hunter Blackburn and Susan Smith, from For Women Scotland; and then finally to Anthony Horan, Kieran Turner and Fraser Sutherland. That is the order in which I invite you to contribute your remarks.

Eilidh Dickson (Engender)

Engender indicated in our stage 1 written evidence to the committee that freedom of expression has been vital for feminist advocacy and women’s equality, and we remain entirely of that view. We also suggested that the existing freedom of expression provisions that were constituted in the bill at the time were narrow and that no obvious justification had been made for picking them out over other difficult or controversial aspects of any particular characteristic.

We proposed that a more general freedom of expression provision that restates the approach to hate speech expression in the European convention on human rights—not only article 10 but article 17—should accompany the appropriately high threshold for an offence under section 3 of the bill, with a reasonable balance between the need for reassurance for the public engaging in political or social discourse and the need to protect marginalised groups. That remains our view, although we continue to take no firm view on the best form of wording for such a provision. We think that the threshold for the offence is the most important protection, and that a freedom of speech provision is supplementary. We are concerned that putting in the bill a tacit approval for words that cause upset, although they clearly should not be criminalised, is disproportionate given the actual impact or role of a freedom of expression provision, which, as I said, would be a reassurance or a supplementary to the threshold.

We are also of the view that fixing aspects of current, 2021 social and political debate in the bill runs the risk of the law becoming out of date as new issues emerge and some degree of consensus around others emerges. Because the freedom of expression provisions do not exempt speech from being criminal if that threshold is met, there is a risk that too much may be invested in them and that people believe certain speech is protected because of its subject matter, when that is not the case.

Feminist speech and advocacy for human rights in general need to be protected, but we are not convinced that the best way to do that is to single out particular views or flashpoints in the text of the bill. We are also concerned about how sex may be incorporated into a freedom of expression provision, although we have not seen any proposals of that type so far; we would be concerned about which opinions and views about women and women’s rights could be given elevated status or tacit approval by their inclusion. We do not believe that Parliament should be setting out in legislation which opinions may be legally expressed without good reason; unless the freedom of expression provision operates as a defence or an exemption to the stirring-up offence, there is not a good reason to do so.

The Convener

That is very helpful indeed.

Danny Boyle (Black and Ethnic Minority Infrastructure in Scotland)

I suppose that what I am about to embark on is a long-winded way of saying, “Could you just leave us out of this, please?”

The Convener

You do not have to be long winded if you want to be brief.

Danny Boyle

I will embellish that point a wee bit in responding to the four options that have been provided and making the case for treating race in a different way. We will not be in a position to endorse any of the options and we appeal to our colleagues, if they end up settling on one of the options, to make sure that race is left out of it. We will not pick any option given that we are essentially asking to be excluded from consideration.

We have heard comments about good law and consolidation, and in relation to the stirring up of racial hatred and its direct relationship with the convention rights, we already have good law, which should be continued in the context of the bill. There was a comment on the perception that race is being treated in a hierarchical fashion and that the legislation should use the same wording for the relationship between the stirring up of hatred and convention rights for all the particular characteristics. From our perspective, the consolidation aspiration of Bracadale is met by containing all the aggravations and stirring-up offences in one place, but we do not believe that it is necessary to treat every characteristic in exactly the same way in so far as freedom of expression is concerned. The characteristics are diverse and different, so bespoke responses are required, and that is reflected in the maintenance of the “insulting” threshold creating a clear distinction between race and the other characteristics, but we do not perceive or intend that to mean that we are at the top of a hierarchy of hate crime; it is only that we are equal but different.

It is a matter of fact that racially aggravated hate crime dominates the annual publication of hate crime figures, but that does not negate the shared experience of isolation, fear and alarm that accompanies all forms of hate crime. The specificity of race was dealt with at stage 1, and we would like to see that being continued as we move forward. We therefore ask that race be excluded from any generic provision on freedom of expression in the bill.

The Convener

Thank you very much, Danny. That was not long winded at all; it was very clear and helpful.

Iain Smith (Inclusion Scotland)

Inclusion Scotland is a disabled people’s organisation that is led by disabled people themselves. We are concerned that consideration of the bill has become overly focused on the issue of its theoretical impact on freedom of expression rather than on the actual impact of hate crime on real people, including disabled people.

There is little doubt that negative portrayals of groups with protected characteristics lead to an increase in hostility towards them and an increase in hate crimes. Disabled people report to us that antipathy, dislike, ridicule and insult form a backdrop to their everyday lives. That impacts on their health, wellbeing and human rights, including their ability to go about their daily lives and participate in society safely without fear of intimidation or harassment and in the same way as everyone else.

We do not believe that the proposals on the offence of stirring up hatred would impact at all on freedom of expression. Rather, they set a limit at the point at which freedom of expression becomes an act of criminality, which the bill defines as that which is threatening or abusive and intended to stir up hatred. Those are very high thresholds, which need to be proved beyond reasonable doubt in a court of law.

In broad terms, we endorse the approach that has been outlined by the Equality Network and the Scottish Trans Alliance in their submissions for this round-table session. The approach that Dr Andrew Tickell has just presented to the committee also strikes us as being a sensible way forward. If there is a justification for having a provision on freedom of expression, we believe that it should be a general one that is based on the approach that is adopted in the European convention on human rights. Dr Andrew Tickell’s suggestion seems to be a good way of implementing that.

We think it important that the bill should send out a clear message about what is and is not acceptable. In that regard, we do not think it appropriate that the bill should list behaviour or language that is acceptable. As I have mentioned, expressions of antipathy, dislike, ridicule or insult are not without consequences for those who are subjected to them. They can legitimise prejudice and lead to more serious consequences, even if that is not intended. We ask members of the committee—and the Parliament when it makes its decisions at stage 3—to give thought to the message that they will be sending if they put on the face of the bill a statement that it is acceptable to use antipathy, dislike, ridicule or insult. Nothing in the bill says that people cannot use those things, but do we really want to say that they can? For example, do we want to say that it is acceptable to ridicule a disabled person who finds it difficult to get on to a bus thereby causing it to be late, or who is prevented from doing their daily shopping because they are subjected to expressions of dislike or insult? I do not think that the Parliament will want to say that for disabled people. Why should it want to say so for any other group in society? We ask members to think very carefully about that.

Preventing the stirring up of hatred does not restrict legitimate expression of opinions. To those who feel that establishing an offence of stirring up hatred will restrict their freedom of speech, I say that they should perhaps first ask themselves what they want to say that they believe could be interpreted as threatening or abusive and intended to stir up hatred.

The Convener

Thank you, Iain. That was very powerfully put, if I may say so.

Tim Hopkins (Equality Network)

Thanks for inviting me to be part of this session. I would like to make three points briefly. The first is that there seems to be broad consensus that the provision on freedom of expression is not about changing the threshold for the offence as it is now, after stage 2; it is about giving reassurance, as Roddy Dunlop said clearly. Therefore it is about messaging. If we put something in the bill about messaging, it is important that we get the messaging right. In particular, we should not inadvertently undermine the overall messaging in the bill, which is about protecting people who face hate crime.

Secondly, one of the objections to the Government’s proposals is that they do not fully cover the scope of freedom of expression. For example, the proposals do not explicitly say that people can say things that are offensive. The problem is that it is very difficult to include the scope of the right to freedom of expression in a few words in a bill. The convention right is, in effect, defined through the jurisprudence of the European Court of Human Rights and the United Kingdom courts.

If we want to include in the bill people’s full right to freedom of expression, the only way to do so is by referring to the convention right, which is why we originally suggested doing that. Andrew Tickell has suggested a slightly different way of doing that. We would certainly be in favour of including something like that. I know that the Scottish Government feels that that might not be appropriate in a criminal law bill—perhaps it will say more about that later.

If that is not possible, we think that the Government’s approach is the right one. The reference to “discussion or criticism” covers all the things that I have heard people say they want to be able to say about, for example, the debate on trans equality. All those things could be categorised as

“discussion or criticism of matters relating to ... transgender identity”.

Similarly, it also covers everything that a church might want to say about the morality or otherwise of same-sex relationships or same-sex marriage. All those things could be categorised as

“discussion or criticism of matters relating to ... sexual orientation”.

The Government’s proposals are broad enough to capture everything that people have raised concerns about.

Finally, it has been proposed that, in addition to the things that are listed in the Government’s proposals, the bill should include examples of discussion or criticism that some people want to be allowed. That is unnecessary, because that is all covered by “discussion or criticism”. More than that, I think that including such examples would be actively harmful. Iain Smith gave a good example by saying that including the right to ridicule or insult could be very harmful to disabled people. It could also be very harmful to trans people, who face such behaviour daily and, in some cases, are afraid to leave their house because of it. It is important that the bill does not pick out certain types of behaviour just because some people would like to be able to behave in that way, given that such behaviour is very distressing to some of the people whose protection the bill is fundamentally about.

The Convener

Thank you very much.

Becky Kaufmann (Scottish Trans Alliance)

I, too, thank the committee for inviting me. I will not repeat a lot of what Tim Hopkins and the other witnesses have said, but I want to draw a line under a couple of specific—[Inaudible.]

First and foremost, I want to drive home what we have said in all our written submissions and what underpinned my stage 1 oral evidence. When we have the conversation about freedom of expression protections in the bill, we should note that the legal protections exist in thresholds, as has been said by a number of—[Inaudible.]

The Convener

I do not know whether it is just me, but—

Becky Kaufmann

—to the bill exists to give reassurance to people that the bill is not squashing their rights. That is a fair thing to do, given the toxic political conversation that often goes—[Inaudible.]

The Convener

I am sorry to talk over you, but I am losing your sound. I wonder whether broadcasting colleagues can turn Becky Kaufmann’s feed to audio only, because that often means that we can hear people whom we would otherwise struggle to hear. If that does not work, I will try to come back to Becky in a few moments.

Becky Kaufmann

Can you hear me now?

The Convener

Yes.

Becky Kaufmann

My apologies. I am working remotely from South Africa because I am caring for an ill relative. Our internet is quite dodgy as there have been storms in the past day.

I am not sure how much of what I just said got caught. I want to underline the idea that we are not talking about—[Inaudible.]—changing the thresholds in law. Thresholds exist in the law as written about intent and the reasonable person test. The issue is really about what the social impact is of such protections, as we have said. The one thing that I want to drive home and which I have said previously is that, being a member of a historically marginalised group, I am well and truly aware that there are members of society who say things about me and people like me that I find deeply hurtful and offensive. However, I do not want, nor would I ever want, those acts to be criminalised, as long as they were not done in a threatening, abusive way with the intention to stir up hatred.

What seems to have been lost in parts of this debate is that it is a two-way street. If your organisation wants to say things like, “Trans people are really male predators trying to harm women”, or you want to—[Inaudible.]—to an international declaration that openly advocates removing my right to legal recognition or excluding me from participating in public life in my lived sex, that is your right under freedom of expression. However, it is also the right of people to then say that they believe that those actions and views are transphobic—both of those are free expression. I strongly believe, as does the STA, that people should be protected and able to say things that other people find uncomfortable; and that, equally, we should be adults about it and accept when people call us out for that.

The Convener

Thank you, Becky. I certainly caught that and I think that others were able to catch it, too. I am sorry for having to switch your video off to enable us to hear you, but I am grateful for what you said.

I hand over to Lucy Hunter Blackburn.

Lucy Hunter Blackburn (Murray Blackburn Mackenzie)

I welcome the chance to take part in the discussion. My principal duty as a witness this afternoon is to bring home to the committee and impress on it the need for there to be the clearest points of reference in the bill about the limits and the lines.

I want to take us back to Lord Bracadale’s review, because I think that we are drifting quite a long way from that, which, after all, the bill is a response to. He said that we needed to

“make clear where the line is drawn between offensive behaviour that has not been criminalised and the type of behaviour that is being criminalised.”—[Official Report, Justice Committee, 27 October 2020; c 42.]

Lord Bracadale discussed that point with the committee at some length in its earlier evidence sessions. He was specific in his review—and even more so when talking to the committee—about the models in sections 29J and 29JA of the Public Order Act 1986, which set out in more detail what is not intended and how the line should be drawn.

We have, as a group—as have others—brought to the committee’s attention numerous ways in which, and examples of where, accusations of hate and abuse have been directed at women taking part in the debates around sex and gender identity who do not subscribe to the view that gender identity should always supersede sex. That is, in essence, the core point of the dispute.

I draw attention to Professor Sarah Pedersen’s written evidence to the committee this week, in which she said:

“it is my opinion that the Hate Crime Bill will afford opportunities for those who wish to silence gender-critical feminist voices to use threats of police reports, the possibility of reputational damage and the need to raise the financial and emotional resources to deal with such reporting.”

That is based on her having undertaken a series of interviews around Scotland with women working in the area.

We have provided the committee with more examples in our written submission. I stress that they are not hypothetical examples—we are not picking them out of thin air. We mention the veteran feminist Lidia Falcón, the president of the Feminist Party of Spain, who spent her 85th birthday in the office of the prosecutor against hate crimes of Madrid because she had been reported for comments that she had made about the reform of gender recognition law in Spain. Last week, she was cleared—all the charges were dropped—because her comments were found to be legitimate political speech, but not until after an investigation had taken place.

As for the atmosphere in which such events take place, members might or might not be aware that, this week, an effigy of Carmen Calvo, the Deputy Prime Minister of Spain, was found hanging in Santiago de Compostela. I am sorry for showing you the image—it is not a good image, but I think that people need to see it to understand it. It is shocking stuff, but it illustrates the atmosphere in which we are working, which is why getting the law clear is important.

We do not think that the provision on discussion or criticism meets the Bracadale test—neither did Lord Bracadale when he met the committee, I would point out. We are joined in that view by numerous other commentators. I know that the police superintendents and the Scottish Police Federation are concerned. The people on the ground are concerned.

In particular, I draw the committee’s attention to the submission of Scott Wortley of the law school at the University of Edinburgh, who talks in incredibly useful terms about the nature of legal drafting and the audience for it. In the case of the bill, the audience is not only the courts; it is all of us on the ground. His submission says—I suggest that this is the job of the committee—that we must ensure that the instruction book that accompanies the bill is really clear. He makes the point that any provision must be clear in the law itself, because that is where it all goes back to.

I also note that, a few days ago, police on the Wirral displayed a billboard, which must have been signed off by someone, which said:

“Being offensive is an offence”.

The police have now withdrawn the billboard, but that example shows us how important it is to be clear in law about what we do or do not mean in this area.

The cabinet secretary invited us to say what behaviour we thought might not be caught by the provision on discussion or criticism. I will read out examples. I do that with some trepidation, because it is not easy for me, but I have to do so if I am to meet the cabinet secretary’s invitation.

We are not clear that the provision on discussion or criticism would cover saying that there are two sexes or that sex is immutable. Would it cover saying that a woman is an “adult human female” and that the word “woman” can be used as a sex-based term? I am not going to stop anyone else from using it differently, but I should be allowed to use it as a sex-based term. Would it cover saying that third-person pronouns can be sex based, and that that is not criminally abusive? I am not sure whether any of those statements amount to discussion or criticism.

Is it discussion or criticism to assert:

“Women have sex-based rights, Only women can get pregnant, A lesbian cannot have a penis, The census should collect data on biological sex.”?

That has been described to me as a hateful position to take. The list goes on to include the statement, “No one is ‘cis’”.

Is it hateful to say:

“Transmen are not men/Transmen are female”?

Is it discussion or criticism to say:

“People who describe themselves as non-binary are still either male or female”?

I will not read the whole list; I will finish with the following examples:

“We should not encourage young people with gender dysphoria to make irreversible changes to their bodies ... Cross dressing is a type of sexual fetish”.

I am not absolutely sure by any means that I would say that all those statements fit into what we might call a discussion or criticism box. I would like the committee to consider whether it thinks that such statements should be criminalised in their own right. If it does not, does it feel that the provision on discussion or criticism is enough?

Those are the main points that I want to make. I also want to say a word about the bill process. We feel that this is a very late point at which to be having discussions on these degrees of detail. I appreciate that there has been a lot of generic and high-level discussion on freedom of expression, but the content of the bill has not been closely attended to until now. It feels to me as though we are trying to do an awful lot in a very short time. I commend the committee for having a public process at this point, but it brings out how difficult it is to deal with such matters in the way that we are.

The Convener

Thank you. There is a lot to chew over in what you said, but I shall resist the temptation to do so now. I invite Susan Smith to come in.

Susan Smith (For Women Scotland)

I echo what Lucy Hunter Blackburn said powerfully and from the heart. The heart of the issue is that women in Scotland are furious and frightened by some of the implications of the bill not least because, the other week, a series of amendments were proposed, none of which seems to cross a line to being hateful, yet parliamentarians stood up and denounced them as shocking and “transphobic” for including phrases such as

“there are only two sexes”.

We have a real issue that, although there are reasonable person tests in the bill, there are also people who are determined to use the bill to enforce compelled speech. There are also people, some of whom are office bearers in political parties in Scotland, who have stated clearly online that they will use the bill to criminalise and attack women. They are openly discussing that and we know that they are doing so.

The Scottish Government has said that the Convention on the Elimination of All Forms of Discrimination Against Women needs to be at the heart of everything that it does, but I am not sure that we will be able even to talk about CEDAW if some of those people report women for having discussions about sex-based rights. Certainly, political parties in Scotland have managed to draw up definitions of bigotry that claim that it is bigotry to talk about people’s biology or use the wrong pronouns. Where does that leave a woman who is facing a rapist on the stand and the rapist has decided to identify as a woman that week? People are saying that that will have no effect. They are talking about putting misgendering into the bill; there are also all the definitions that political parties are accepting. That goes hand in hand with those issues.

As Lucy Hunter Blackburn said, we have a situation in Spain in which it is not a hate crime to hang an effigy of a real woman in the town square, but it is a hate crime for a woman, who was tortured under Franco, to say that women should have sex-based rights. That is happening under similar laws. There is no provision in the bill for sex; we now learn that there was never going to be and that the working group will not even consider it.

We have very little trust in this Government and very little trust that the bill will not be used to target, harass and attack women. We need stronger provisions and for women to be protected. As we go into an election and the Government is still determined to push through the GRA, we are very concerned that women who argue against it—and argue for the law as it stands—will be criminalised. We need up-front reassurances now. We need to know that we can talk about women, adult human females and two sexes, and about sex being immutable, because we are not getting any reassurance.

Women are angry. There are thousands and thousands of very, very frightened women. The convener said that he was frightened by the implications of some of the objections to the amendments; consider how frightened women are. I am sorry to be so emotional about it, but it is difficult and traumatic, and it has been a horrific experience for a lot of vulnerable women. Thank you for inviting us back and hearing us. Please remember to listen to women.

The Convener

Thank you. There is no need to apologise for being emotional. A lot of us find it a very emotive subject, because it is a very emotive subject, and we are holding this extraordinary session in order to do as much of the work on the record and in public as we can.

There are three witnesses from whom we have not yet heard. I will invite them to speak before I throw open the meeting to questions from committee members—please indicate that you have a question by using the chat box function. I ask Anthony Horan, Fraser Sutherland and Kieran Turner to share their thoughts with us, in that order.

Anthony Horan (Catholic Parliamentary Office of the Bishops Conference of Scotland)

Thank you for the opportunity to participate in today’s committee meeting.

I would not say that we have settled on one of the cabinet secretary’s options as the ideal candidate. However, the provisions in options 1 and 2 that relate to religion and belief are very robust and are something that we called for from the outset. I commend the cabinet secretary in that regard.

It is important to note that sexual orientation—or sexual conduct and practices, as it was once termed; I think rather appropriately so—ought to be subject to a more robust standard, which is closer to the standard that is expected for religion and belief. In particular, the provisions need to be more specific, to avoid uncertainty and confusion.

These are important issues. For example, transgender identity and sexual orientation get to the very essence of what it means to be human. What does it mean to be male? What does it mean to be female? Is sex binary? Can someone change their sex, or is it immutable? Also, what is the meaning of marriage? What is it for?

On such important issues, people hold positions that are often at odds with the strongly held beliefs, values and opinions of other people—and not exclusively religious people, I might add. Therefore, there is tension and disagreement straightaway in relation to those issues, and there is fertile ground for critique, discussion and debate, in very robust or even offensive, shocking and disturbing terms. With that in mind, we need clarity to help us to distinguish between what is criminal and what is not.

Michael Clancy picked up on that point when he said that the law needs to be clear and consistent. Also, Lord Bracadale said, in his evidence to the committee at stage 1:

“If you are going to use”

freedom of expression provisions,

“they should reflect the approach of the ECHR and, in particular, they should make clear where the line is drawn between offensive behaviour that has not been criminalised and the type of behaviour that is being criminalised.”—[Official Report, Justice Committee, 27 October 2020; c 42.]

That is important not only because Lord Bracadale called for a clear line of demarcation between acceptable and unacceptable behaviour, but because he made the crucial point that offensive behaviour, in and of itself, should not be criminalised. The key point is that there are certain actions, behaviours, discussion points or flashpoints that ought not to be criminalised. That needs to be clear in the bill.

The Convener

Thank you—that was helpful. Fraser Sutherland is next.

Fraser Sutherland (Humanist Society Scotland)

Thank you, convener.

I draw the committee’s attention to our written submission. The main point that I want to make on religion and belief is that we have already had a discussion, and an amendment has already been agreed that replicates what is in options 1 and 2. There is concern about potentially undoing, just a matter of weeks later, what the amendment did, when there was broad consensus among religious and secular groups that broader parameters are needed when it comes to religion and belief.

There are a variety of reasons for that. In our written evidence, I set out why there is a difference between the religion and belief characteristic and the other characteristics. Religion and belief are, by their nature, philosophical concepts. Therefore, there is wider appreciation of criticism, insult or ridicule when it comes to religion and belief than is the case for, for example, race and disability. That is why the amendment that was agreed to was meaningful. Anthony Horan just touched on the matter when he referred to Lord Bracadale’s evidence on the need to set out where we draw the line between what is and what is not an offence.

You will remember that when I gave evidence for the first time at stage 1, I sat alongside representatives from Scottish PEN and David Greig from the Royal Lyceum Theatre Company, who gave very powerful evidence on the impact in terms of self-censorship, for example. There is a particular risk in relation to religion and belief, which often faces ridicule and offence in material in art, theatre, writing and cartoons. If something is just restricted to discussion or criticism, people will self-censor or vexatious complaints will be made against people who produce such material.

We have seen, in other jurisdictions, people bringing vexatious complaints against dissidents, apostates and blasphemers; my concern is that Parliament might be creating a law that would allow a margin of appreciation for people to bring such complaints, particularly against those who have left a closed religious group or who have converted from one religion to another. There is a robust argument to be made that religion and belief should be treated slightly differently; that was done through the amendment that was made just a couple of weeks ago. I encourage the committee to stick to that.

The Convener

Thank you. That was very helpful. Kieran Turner has been waiting very patiently.

Kieran Turner (Evangelical Alliance)

Given that my surname begins with T, I am used to waiting until the end of the line—I know that you will share that experience, convener. One of the benefits of going last is that you get to reflect a little bit on what people have said. I want to make three comments, and will probably reference others as I go along.

As has already been said, we have come a considerable way from where we were when I gave evidence with many others at stage 1. We welcome many of the amendments that have been made, particularly those around the thresholds, the reasonable person test, intent and—which is important for us—deletion of the “inflammatory material” section of the bill. Those were all important aspects for our community.

On comments that have just been made, we have always, including when we appeared before the committee in November, advocated for breadth and depth when it comes to freedom of expression. We welcome breadth; in the four options that are in front of us, option 1 would best reflect that. However, we would advocate for an option 1 plus. I will come on to that in a second. I know that the cabinet secretary talked about race; it is a finely balanced view. On balance, we would go for option 1, rather than option 2, because of the definitions of race in the bill that have been discussed previously—the fact that it includes nationality and citizenship and is a broad definition. There is also the principle of hierarchy that has been discussed already.

On the depth aspect, along with the Roman Catholic Church and the Humanist Society, we welcome and support the new provision on religion and belief. We have consistently argued for its inclusion and certainly do not want to see it being removed. We have always advocated for robust free speech protections.

However, we are concerned that that depth has not been extended into other areas, so at the moment there appears to be a very distinct hierarchy, when we consider options 1 and 2. Our response to that would be to level up rather than level down the free speech protections.

Fraser Sutherland was articulate as ever in his thinking on why religion and belief is separate. What he said might be true for some characteristics, but there are areas of belief that we have discussed this afternoon in which there are deeply held and contested views. There are other areas under discussion that have parallels to religion and belief, therefore we advocate for increased definition, particularly around transgender identity. We thought that the provision in section 12 that was previously in the bill reflected the start of the approach that Lord Bracadale had taken; we argue that that definition should be put back in.

My final comment is around reassurance on further definition, if the committee and Government were to take that approach. As someone who represents a protected characteristic and who has argued for people to be able to abuse, insult, show antipathy towards, dislike and ridicule it, I do not think that other groups should have anything to fear from the approach. The reason why has already been outlined: the threshold of criminality in the bill would catch behaviour that is threatening or abusive to a reasonable person, and behaviour that has the intent of stirring up hatred. Even the enhanced religion and belief provision is not a “Get out of jail free” card for anyone. If people behave in a way that meets the threshold, they will be subject to prosecution.

The deepening and greater clarity allows for what has been talked about: the difference between what is offensive and what is abusive in the bill. We believe that with better definition in some other areas, the bill would be clearer to the police, the courts and, crucially, the general public. As has already been articulated this afternoon, we have seen that there are strongly held views in a number of areas in which there are two sides. We need freedom of expression provisions to protect both sides in such debates, so we argue for greater definition.

The Convener

Thank you, Kieran. That was very helpful, indeed. Five members of the committee wish to ask questions. Clearly, not all our guests and witnesses will be able to answer all questions; only two or three answers to each question are likely. We will finish at 5 to 4, because I want to allow the cabinet secretary to come back in and offer some immediate reflections on what he hears this afternoon. He will probably start by telling Kieran and me that having a surname that begins with “T” is nothing compared with having a surname that begins with “Y”. However, let us have less on surnames and more questions. I ask members for short sharp questions and, as always, to direct their questions to one or two witnesses, which is helpful.

Liam McArthur (Orkney Islands) (LD)

Kieran Turner finished by talking about the need for greater definition. I am struck that there is an argument around that, which we heard being expressed by Lucy Hunter Blackburn and Susan Smith.

On the other hand, Andrew Tickell talked about taking a much more broad-brush approach—an option 5, if you will. I am interested to hear Andrew’s response to the concerns that he has heard being expressed by Lucy, Susan and others about the need for greater detail and precision. I would then be interested, if there is time, to hear Lucy’s response to what Andrew has to say by way of response to those concerns.

The Convener

That would be helpful.

Dr Tickell

The problems with becoming more and more specific about what is not, in and of itself, to be treated as threatening or abusive are the following questions. First, where does one stop and, secondly, to what extent does one end up muddling the field about what is and is not criminal in that context? By incorporating such provision in a general way—which I suggested the committee might want to consider—we would not jettison complexity, but would be saying that it has to be explored in particular cases and circumstances.

A point was raised about vexatious complaints. The uses to which legislation are put are, to a considerable extent, independent of the letter of the law, in this case. The ability to prevent people from making vexatious complaints is limited in such scenarios. The problem with hierarchy and increasing complexity around this is that what is and what is not lawful in any given case does not become more comprehensible to the ordinary person.

Even the formulation that says that doing X, Y and Z or saying certain things is not, in and of itself, threatening or abusive, raises questions about the additional behaviour and what is needed to flip lawful conduct into being unlawful conduct. By incorporating a clear emphasis on the particular importance of provisions on free expression and freedom of thought, conscience and religion, we will at least have a structure to our thinking about how those fundamental values apply to what an accused person is said to have done in an individual case.

I was struck by Engender’s point that we would be, in effect, freezing present social controversies into legislation, which would be challenging for courts to contend with in the long term, because the world moves on, disputes move on and understanding changes. Therefore, the tensions about and demands for clarity are important. We need to be clear about the thresholds for criminalisation. In a sense, we do not find demands for very specific provisions in any other area of law. As things stand in Scotland, we already have an offence of threatening or abusive behaviour that would cause the reasonable person to suffer fear and alarm. That offence has been in place since 2010 so it is, to an extent, the context in which this offence has to be understood.

I understand the social context for anxieties, given particular debates that are raging online, but that might make us forget the fact that existing laws very much echo the approach that is being taken to the stirring up of hatred offence. Indeed, that offence will be considerably harder to charge than offences in laws that are already on the books and could already give rise to vexatious litigation. A more general approach might get us over such issues while emphasising in a very simple and direct way how fundamental free speech, free expression and freedom of conscience, thought and religion are in all contexts.

The Convener

I am reluctant to put people on the spot, but if Lucy Hunter Blackburn would like to say anything in response to that, she should feel free to do so.

Lucy Hunter Blackburn

I would very much like to say something in response. I think that Andrew Tickell is being complacent about experience on the ground. He talked about “debates ... raging online”, but the issue is truly not just about that; debates are also raging in workplaces and around publishers. This is not just a Twitter fight.

I do not have any objection to Andrew Tickell’s proposition, which is helpful in its own right. He is right about beliefs. Kieran Turner made the point well that the issue is not just about religious beliefs; it runs wider, and the bill as amended should recognise that. I do not have any trouble with Andrew Tickell’s position, but I do not think that it provides anything like a benchmark for clarity or a reference point. Our experience of being at the sharp end of the debate tells us that something more is needed. I come back to my point about Lidia Falcón and all the others who have been caught up.

On the point about putting specific things in law, Lord Bracadale recommends the approach that was taken in section 29JA of the Public Order Act 1986, which lists two specific things that are known to be flashpoints. People believing in the basic concept of innate gender identity and that it should override sex is not a flashpoint that will go away in a hurry. That debate will not just take place this year; there will be debates on the issue for a long time to come. There should be recognition that that flashpoint, at whatever level it happens, is unavoidable. I do not want the bill to include a list of 27 things; I do think that there is a list of two to four things that will, I am pretty confident, still be troublesome in a decade.

Given that the committee has not been able to consider quite a few of the other characteristics in any detail, our submission recognises that serious flashpoints might turn up. We suggest that you think about an order-making power that would make it possible to deal with something that no one predicted would turn out to be a hot spot, and which is serious enough to need legislation. That should be considered.

The idea that things can change over time is not a good reason for the bill not to recognise that there are flashpoints—not just here, but internationally—around belief in gender identity. Is it compulsory to believe in gender identity and to express those beliefs? Can I go about my business as an ordinary person, stating that I do not think that everyone has an innate gender identity, that I do not think that I have one at all, and that I do not think that policy and law should be based on the principle that such an identity exists and should override sex in all contexts? In some contexts, I think, it is unimportant, but in others it matters a lot.

Those are my comments on Andrew Tickell’s proposal. I hope that they are helpful.

The Convener

They are.

I ask Liam Kerr to pick up the questioning. We will need to be very swift from now on.

Liam Kerr (North East Scotland) (Con)

Thank you to everyone who has contributed to a fascinating and thought-provoking session.

My question relates to the one that Liam McArthur asked. Dr Tickell, do you envisage option 5—if we can call it that—standing apart from the other four options, or any combination of those options, or do you envisage option 5 coming in conjunction with option 3, for example, as mentioned by Michael Clancy of the Law Society? If option 5 were to be the only confirmation of freedom of expression in the bill, would any protection for freedom of expression be lost by not having any of the other four options in the bill?

Dr Tickell

That is an interesting question. In principle, option 5 could stand alongside the other amendments. You could have any of options 1 to 4 plus my suggestion as an alternative route. The idea was an immediate, short-notice reaction to the limits of the details as they were proposed by the cabinet secretary.

On the question whether that would limit protection, I am aware that the committee found it congenial to have protections around religion in the bill of the type that witnesses here have supported. It would not be inconsistent with retaining some of the work that the committee has already done on specific provisions about what might not count as threatening or abusive behaviour. That is a possibility.

Whatever the legislation says, it has always been the case that the ECHR will continue to apply. Whichever of options 1 to 4 you pick, they are not likely—given the thresholds of the offence—to have a significant effect on the limits of freedom of expression. I suspect that Lucy Hunter Blackburn and I agree on that.

The Convener

It is always nice when consensus breaks out.

John Finnie (Highlands and Islands) (Green)

I share Danny Boyle’s concerns that what was meant to be consolidating legislation has brought us to where we are at the moment regarding race. Mr Boyle, you said that we should leave race out. Have you given thought to what the practical implications of not leaving race out might be?

Danny Boyle

There is no appetite in the race equality community or in communities that are protected on the basis of colour, nationality or ethnic or national origin to even consider the possibility of a test case on threatening, abusive or insulting behaviour with regard to the discussion or criticism of race. This is an established body of law that operates well. People understand it, it protects them and it is embedded in the international human rights law system.

We are always hyper-vigilant about the stirring up of racial hatred. Lucy Hunter Blackburn spoke about issues that we cannot foresee that might occur and have an impact on the bill. That is true of race. We do not feel that this is a risk that it is necessary to take. Communities have not asked for their legal protections to be changed; it is sufficient for the different aspects of the legislation pertaining to race to be consolidated in one place.

Annabelle Ewing (Cowdenbeath) (SNP)

To pick up on what Lucy Hunter Blackburn and Susan Smith said, committee members and others will be aware that I have spoken in the past about the importance of the debate on the immutability of sexual dimorphism and the importance of not conflating sex and gender.

I do not see, either personally or as a lawyer, that my freedom of expression in that regard is impacted by the bill as it stands. However, I recognise from the evidence that we have heard today that there are genuine fears about that issue. Therefore my question for the cabinet secretary is whether, having just heard at first hand the concerns that have been raised, he can provide reassurance that such exercises of freedom of expression will not be impacted by the bill. I ask that particularly in light of Andrew Tickell’s point about the threshold for criminality that the bill sets. Perhaps the cabinet secretary could respond when he comes to wind up his remarks.

The Convener

Before I ask the cabinet secretary to respond to what he has heard, does anyone else want to say anything at all to the committee in the final two or three minutes of our meeting? Anyone who wishes to say anything either to Humza Yousaf or to the committee should please type R in the BlueJeans chat box.

Lucy Hunter Blackburn

I will keep my comment very brief. It is about the distinction between what is said in the Parliament and what is said in the law. I draw the committee’s attention to Scott Wortley’s clear advice that, if you think that something matters and needs to be made clear in law, you should do so in the law and not rely on statements made in the Parliament. I want to underline to the committee the importance of not resting on such statements—even those made on the record at stage 3. Those are not what will be looked at by people out on the ground, advisers or even necessarily the courts. That is the only point that I wish to make.

Tim Hopkins

I will be very quick. For the avoidance of doubt, I just want to say that all the statements that Lucy Hunter Blackburn mentioned that people want to be able to say about trans rights should not be criminalised by this offence. She has the right to say those things, but so do other people and we do not want to see them criminalised. However, it was quite a long list—too long, I think, to write into the bill. Even I, as a supporter of trans rights, could come up with additional points that could be added to that list. In fact, there were some in amendment 82A at stage 2, which Lucy did not mention. That is the problem with such lists—where do you stop?

I make one final point. The other danger of writing such lists into law is that it might encourage behaviour that certainly should not be a criminal offence but could be a civil wrong. If some of the statements in Lucy’s list were said by a person to a colleague at work, and they were repeated, that could constitute unlawful treatment under the Equality Act 2010. We need to be really careful about—[Inaudible.]—writing into the law what appears to be a right to say things that, although they are not criminal, could amount to a civil wrong and are certainly not things that we would necessarily want to encourage.

The Convener

Thank you, Tim. How the bill’s provisions would interact with other legislation that is already on the books is an important point to bear in mind. You have talked about that, and Andrew Tickell has also mentioned, although in a different context, how it might affect not only the criminal law but other civil wrongs.

Cabinet secretary, we have reached the point where I would like to invite you to respond briefly to what you have heard and to outline what, at this point, you think the Scottish Government’s next steps will be. After that, I will close the meeting.

Humza Yousaf

I again thank you, convener, and members of the committee for dedicating more of your time to discussing the Hate Crime and Public Order (Scotland) Bill. I know how difficult it is, particularly at the tail end of a parliamentary session, to give up more time, although consideration of the bill is important. I genuinely am grateful for that.

I am also grateful to all stakeholders. I agree with the points made by some and disagree with those made by others but, nonetheless, they have all given up their time to help to inform me, in my position in the Government, and no doubt members of the committee.

I want to touch on a couple of points. Each of the three witnesses who you asked to make opening remarks at the beginning of the meeting—Roddy Dunlop, Michael Clancy and Dr Andrew Tickell—and a number of others made a very important point. The threshold of the new offences of stirring up that the bill creates—therefore not that on race, which has been in existence since 1986—is very high. The new offences must be based on intent only. The bill includes a “reasonable person” test, so an objective test is applied to them. Such intent must be proved beyond reasonable doubt. Although there is a great deal of emphasis on freedom of expression—we have focused on that in this evidence session—as I thought Eilidh Dickson from Engender articulated, the real safeguard is the high threshold in the bill for the stirring-up offences. That is exceptionally important.

I reiterate what Tim Hopkins said: there is nothing in the list of statements that Lucy Hunter Blackburn read out or in the written submission from For Women Scotland that would be criminalised under the bill. That is also my understanding of the brief. That is the case for two reasons: first, under the “reasonable person” test, nothing that was said by Lucy Hunter Blackburn would be considered to be threatening or abusive—an unreasonable person might think that, but not a reasonable person—and, secondly, there is very clearly no intent to stir up hatred. Lucy Hunter Blackburn’s last point—a very good point—was that the law should provide clarity. That should come not from parliamentarians or Government ministers but from the law, and that is written into the law in the form of the “reasonable person” test and the need to prove intent beyond reasonable doubt, which is something that we all know and understand.

We have heard some very persuasive arguments from both sides of the debate on whether there needs to be more specific detail in relation to some of the protected characteristics. Generally speaking, having heard the debate, I am more inclined towards the view that we cannot draw up exhaustive lists of specific detail. We have done something like that in relation to religion, but we did that with the agreement of the faith groups that it particularly affects as well as with other organisations. However, on that issue, Iain Smith from Inclusion Scotland spoke exceptionally powerfully about the ridicule, antipathy and insults that a disabled person might have to put up with daily. Although we might not give a green light to that type of behaviour, we could send a wrong signal if we tried to be more specific.

Therefore, I will end by making an offer to those who would like to see more specific detail in the bill. I will continue to engage with stakeholders and members of the committee. The convener asked about my next steps. I have several phone calls lined up over the next two days with most, if not all, members of the Justice Committee and a number of stakeholders. If the Government does not go down the path of putting more specific detail in the bill, I suggest that I engage with stakeholders to see where we might be able to give them some reassurance in the explanatory notes that sit alongside the bill. That detail is not in the bill but, as the name suggests, those notes are there to explain how certain provisions in the bill work.

We might need to insert some more specific examples—perhaps some of the examples that Lucy Hunter Blackburn mentions about the belief of some people that sex is immutable and that people cannot transition from male to female and vice versa. If stakeholders would like some examples in the explanatory notes, I am keen to discuss that with them and with the Equality Network, the Scottish Trans Alliance and others to see whether that might be a common-ground compromise.

I thank you, convener, and all the stakeholders. I am confident that we will get to a position where we can get a freedom of expression provision that gives people the confidence that they need on the bill’s impact on free speech and freedom of expression and at the same time ensures that we are not giving a green light to any type of behaviours that I suspect that none of us would like to see happening to protected groups.

The Convener

Thank you for that summary, cabinet secretary. Before I close the meeting, I want to associate myself with remarks made by a number of people over the course of the afternoon that what really matters in the bill is the precision with which the Scottish Parliament defines the criminal offences that it is creating.

The real work that the Justice Committee has done over the months on the bill has been to pore over in great detail how those offences are constructed—not in the explanatory notes but in the legislation. The way in which the scope of those offences has been narrowed and sharpened will do much more to protect and reassure than any formulation of words about freedom of expression, which is not to say that such a formulation of a freedom of expression provision in the bill is unimportant. I do not think that; it is very important. However, although I said that today’s conversation would be focused on the four options that the cabinet secretary put on the table, those are options to be inserted into a bill that now looks very different indeed from the one that was introduced to Parliament a year or so ago.

It is clear that the committee’s work is not yet done. Formally, the Justice Committee’s work on the bill is done, because the bill was passed at stage 2 and is in the hands of the Parliament, which will return to it formally on 10 March, when stage 3 proceedings are scheduled.

I want to express very warm thanks to the cabinet secretary for his time and that of his officials, but also—and even more so, if I may say so—I thank our guests, witnesses and stakeholders for their input. The committee values the way in which the bill has been exposed to the public gaze over the months in which it has been discussed. I wish everyone a pleasant and safe evening. I close the meeting.

The Presiding Officer (Ken Macintosh)

The next item is stage 3 proceedings on the Hate Crime and Public Order (Scotland) Bill. In dealing with the amendments, members should have with them the bill as amended at stage 2, the marshalled list and the groupings of amendments. I remind members that I will sound the division bell for the first division and proceedings will be suspended for five minutes for the first vote of the afternoon. The period of voting for each division will be one minute. Members who wish to speak in a debate on any group should press their request-to-speak button as soon as I call that group.

Section 1—Aggravation of offences by prejudice

The Presiding Officer

Group 1 is on characteristic of sex. Amendment 4, in the name of Johann Lamont, is grouped with amendments 17, 21 and 26.

Johann Lamont (Glasgow) (Lab)

I have issued a detailed letter to all MSPs, outlining the thinking behind all my amendments, and I trust that colleagues have found that useful. I place on record my thanks to all those groups and organisations, women, and colleagues in the Parliament who have given me support in producing my amendments, and I hope that members will reflect on them positively.

We are dealing with a contentious piece of legislation, and I am happy to participate in debates in a serious way that, I trust, matches the seriousness of the challenges across our communities, which are confronted by hate, hostility, aggression and inequality. I am content to recognise that not everyone will agree with me, and that I shall be persuasive to some and not to others. What I shall not be is hateful—and I do not think that that is the motivation of anyone in this chamber.

Why am I arguing for my amendments? One view, of course, is that I am driven by transphobia—an accusation that has been levelled at some women MSPs, in the past, by fellow MSPs. Patrick Harvie MSP confirmed such a view last week, in a reaction to a Twitter comment about my speech last week on international women’s day in which I sought to highlight the suffering, discrimination and violence that women suffer globally because of their sex. Patrick Harvie agreed with a comment that I had displayed

“a vicious bit of transphobia”

and added,

“I’m sorry to say we can expect more of that when it comes to stage 3 of the Hate Crime Bill.”

Perhaps we should forgive Patrick Harvie for letting his sense of male entitlement show. However, to foreshadow a debate in the Parliament by ascribing the motive of hatred to me or to any others who want to participate in the debate but who have the audacity to disagree with him, frankly, says a great deal more about his lack of self-awareness than about how we make good law.

I would defend to the death Patrick Harvie’s right to make those comments about me, but we should remember that the challenge in this Parliament is to have a serious debate about the impact on our communities. Of course, it is easier to silence people for being full of hatred than it is to address their concerns.

The cabinet secretary has said that there is a very high bar to reach before anyone can be accused of threatening or abusive behaviour, but the truth of the matter is that Patrick Harvie regards what I said in the international women’s day debate about the discrimination that women face because of their sex as reaching that bar. Would it not be an irony if I were to become the subject of a report, on the basis of what I said in a debate about the hate crime bill’s provisions? That must trouble anyone who wants a serious discussion across our communities about what hatred means.

I am here to speak up for my constituents and for women with whom I have worked for many years, who understand the scale of hatred and violence that women face and have no well-funded lobbying groups to press the case to the Government on their behalf. Lobbying has been an issue in this Parliament—my colleague Neil Findlay has highlighted that—but most people have to put their hands in their own pockets if they want to lobby and push their case.

When it comes to this bill, however, the truth is that the key lobbyist, to which the Scottish Government has responded at every turn, and which has not stood with women or argued for women to be included in the bill, has operated at the expense of the public purse. The organisation has argued against women being included in the bill without actually speaking to the women who fund it through their taxes.

I have been patronised by many people over the years. We learn to live with that, but it has been taken to new levels by organisations that speak of equality and the needs of women but never think to test their views against the women in our communities.

Let me move on to the specifics of the amendments in my name and for which I seek support. I want to include sex as an aggravator and to define “sex” in the terms of the Equality Act 2010. The proposals are simple. They are supported by Lord Bracadale, who described the omission of sex as a lost opportunity. They are supported by many, many women and by men who stand with them. At heart, the proposition is very simple. If the bill sends a message about the unacceptability of hate crime and offers protections to potential victims of hate crime, as it should do, we might reasonably expect that the group that suffers most as a consequence of hatred—women—would be included.

Hatred of women is so commonplace that it is barely remarked on. A cursory glance at the news any day of the week will show it, not lurking but clear and brutal. Today, we saw a report that shows that the scale of the abuse of women across the world is massive and has not changed over time. Women being murdered by men who have gone on the rampage is upsetting but it is never a surprise. Men do these things; we know it. We see the tragedy and know that behind it is an angry man and a terrorised woman and her family. We see it in domestic abuse. We see it in crimes of sexual abuse. We see it in routine behaviour that means that, for women, whether we are walking or running in a park or going to work, anxiety about male violence is our constant companion, from our youth.

When we ask, out loud, the commonsense question of why women, who understand hate crime more than any other group does, are excluded, it is clear that there is no answer that can make sense of the decision. We are told that the issue is complex—so is the bill. We are told that men are manipulative. We have no doubt that there are men who will manipulate any provision in the bill, including those that relate to other protected characteristics that are identified in the bill.

Huge issues arise for women, but we are content to outsource our thinking to a working group, rather than wrestle with the issues of principle here in the Parliament. We have been given no evidence of the scale of the problem that has been identified by the people who want the working group to consider it. I do not doubt that the working group can do very significant work, but the principle of whether women should be a protected group should be decided here, because it means that when we campaign and have a national push to discuss hate crime, women will be at the centre of the discussion and will not be ignored.

I will finish on these points. I believe that the case for including women is undisputable, but if members are not persuaded, I urge them to at least support amendment 17, which provides the definition of “sex” as outlined in the Equality Act 2010. The cabinet secretary said clearly that the sex aggravator should align with the provision in the 2010 act. Even if people accept the outsourcing of work on that huge decision to a working group, with no evidence of why, it is essential that the Parliament defines the work of the group. The amendment makes clear what the definitions of “men” and “women” are. If members think that those definitions are wrong or are up for debate, say so, and we can have that debate. It should not be for the working group that is being asked to look at the sex aggravator to come back with a new definition of “sex” and new definitions of “men” and “women”. Those are big decisions that should be taken by the Parliament.

I trust that members will support my amendments, so that women, who are at the front line of crime that is driven by hatred, are included. As Tim Hopkins of the Equality Network said,

“it is important that people can see themselves in the bill.”—[Official Report, Justice Committee, 17 November 2020; c 22.]

Well, women are people, too, and they should be seen in the bill and should be included.

I move amendment 4.

Pauline McNeill (Glasgow) (Lab)

I will speak to the amendments in Johann Lamont’s name in group 1, and I thank Johann Lamont for lodging them so that we can debate what I and many women regard as a very serious omission from the bill.

Sex is a characteristic that matters when it comes to understanding levels of violence, which is why hundreds of women have written to me and pleaded for the inclusion of sex as an aggravator in law. Many women constituents are not prepared to wait three years for a working group, and I wonder why the Scottish Government is so convinced of that route in the midst of daily reports of male violence against women.

According to the World Health Organization, one in three women have faced physical or sexual violence in their life. That is why we have 16 days of action for women and girls who face human trafficking, female genital mutilation, rape, murder, forced prostitution, sexual violence and intimate partner violence. The Parliament has involvement in 16 days of action to amplify the voices of women.

I wonder why Scotland is not leading on the issue. Women are regularly the target of offending behaviour based on hostility towards their sex, and it is now well established that women in public life face much higher levels of online abuse than men, which has consequences for their participation. The proposal to add age to the hate crime protected characteristics leaves sex as the main characteristic that would not be protected but is included in the 2010 act. It is a glaring omission and I do not understand why the Scottish Government is asking women to wait for three years. The longer the law is unchanged, the more the message is reinforced that this is not something that is a priority for the Parliament, and it perhaps reinforces fears that women have.

If it was the committee’s view and Lord Bracadale’s view—and, as I have said, the view of hundreds of women—that sex as an aggravator should be included in the hate crime bill, why is that not good enough? I do not understand that, either. Why is Lord Bracadale not good enough but Helena Kennedy and the working group are? It does not make any sense to me to that one legal opinion is rejected as the one that is not wanted. That concerns me deeply.

I have two questions for the cabinet secretary. It would be helpful to know what kind of new law he thinks would include a standalone crime of misogynistic harassment. What would that look like and how would it differ from domestic violence and all the violent crimes that I have outlined? I am genuinely struggling to see what such a crime would look like, since women are already the victims of a range of crimes.

Why can the Scottish Government not put sex as an aggravator in the bill, but still have a working group three years later? If the argument is that if the working group thinks that it should go in the legislation, the Government will include it at that point, surely it could put it in now. If Helena Kennedy takes a different view, we could then change the law. I urge the Parliament to think seriously about omitting sex as an aggravator in a bill about hate crime.

The bill is one of the last pieces of legislation to be dealt with in this parliamentary session, and I urge members to seriously consider voting in favour of the amendments in this group.

Joan McAlpine (South Scotland) (SNP)

A YouGov poll for UN Women UK that was published this week found that nearly every young woman in the United Kingdom had suffered sexual harassment. Claire Barnett, executive director of UN Women UK, pointed out that it is a human rights issue. As Ms Barnett said,

“It’s just not enough for us to keep saying, ‘this is too difficult a problem for us to solve’—it needs addressing now”.

It does need to be addressed now, and that is why putting off the issue until the next parliamentary session is not convincing. That is why I will vote against the Government whip to support Johann Lamont’s amendments on the issue today. Initially, I did not take that view, because I understand that the proposed sex aggravator is gender neutral. I preferred the idea of an offence of misogyny, or even a female sex aggravator, which was never on the cards—although, given that the hate crime protections in the bill extend to characteristics that do not exist in the Equality Act 2010, perhaps there is really no reason why that could not be the case.

I became convinced that the scale of the sexist violence that women experience at male hands, including the two women a week who are killed by men in the UK, meant that it would be bizarre to exclude them from at least part 1 of the bill. The thing that finally turned me to my current position was the Government’s decision to expand the definition of transgender identity to include cross-dressers who are not trans identified. That is not the definition of gender reassignment in the Equality Act 2010. It will seem bizarre to many people that men who enjoy cross-dressing are protected from hate crime, but women are not.

When we last debated violence against women last November, several members, including ministers, praised the femicide census, which documents the killing of 1,425 women by men in the UK last year, yet we seem to be saying that femicide is not hate. I know that a sex aggravator would protect men, but that is already the case under the 2010 act. In the 2010 act, sex is the characteristic, but it mainly protects women. In the bill, as in the 2010 act, the protected characteristics of race and sexual orientation also protect straight people and white people but would be applied most often in crimes against gay people and black people, who face the most oppression. Therefore, why not also include sex, which would protect women more than men?

A number of official women’s organisations, which have been mentioned by Johann Lamont and which work closely with and are funded by central Government, have backed the decision not to include a sex aggravator. However, as the ForWomen Scotland briefing points out, none of those organisations did any research, even in their own networks, before getting to that position. Those organisations suggest that men could weaponise hate crime in domestic violence cases, but our domestic violence laws are already gender neutral.

Members should be aware that there is a reason why funded organisations take such a view. In the past few years, a major ideological schism has opened up in feminist thought, which has its roots in university gender and so-called queer studies courses, in which it is argued that gender is a personal choice and that sex is an identity. That view is taken by the leadership of most Government-funded organisations. However, it is increasingly being challenged by a growing number of grass-roots feminist movements, which argue that gender roles are oppressive and that women face discrimination, violence and subjugation due to the sex that they were born.

The debate is polarised, but it is dynamic and changing. Only yesterday, one of the grass-roots feminist groups succeeded in a legal challenge to the UK census, which will force the Office for National Statistics to collect only sex at birth and legal sex information in the census. Just two years ago, when my committee took evidence on that issue for our census, the public authorities and some of those funded women’s organisations told us that it was not possible to do so. Those organisations also opposed Johann Lamont’s amendment 28 to the Forensic Medical Services (Victims of Sexual Offences) (Scotland) Bill, which ensured that rape victims were able to choose the sex, not just the gender, of their medical examiner. Make no mistake—such positions are as ideological as they are absurd and they have nothing to do with protecting women. I am therefore proud to support Johann Lamont’s amendments today.

Elaine Smith (Central Scotland) (Lab)

I will make a short intervention in support of the amendments in group 1 that have been lodged by Johann Lamont.

Over the past few weeks, members from across the chamber have spoken up against the growing inequalities that women in our society face; they have all expressed concerns about the unacceptability of continuing violence and abuse against women and the urgent need to take action, which Johann Lamont, Pauline McNeill and Joan McAlpine have just outlined in their contributions.

However, today, when we are discussing measures to tackle hate crime, the cabinet secretary proposes to refer the inclusion of the characteristic of sex as an aggravator to a working group. It is not just Johann Lamont who is concerned about that. Women across Scotland are asking whether that is really the best that this Parliament can do.

This is not a new discussion. Thirteen years ago, in 2008, my colleague Marlyn Glenn raised the same point when the Parliament was considering the Offences (Aggravation By Prejudice) (Scotland) Bill. However, violence against women, misogyny and hatred of women were not included. During the evidence sessions on this hate crime bill, voices from the Muslim community called for support for mechanisms to measure hate crimes that are perpetrated against Muslim women.

I agree with all those grass-roots women’s organisations that spoke up during evidence sessions and with all those who cannot understand why we would effectively exclude women in this piece of legislation.

As the working group gets on with its work, additional measures to tackle misogyny can, of course, be considered although, when the cabinet secretary rises, a response to Pauline McNeill’s question on that would be most welcome.

For the legislation to be meaningful and understood, we have a responsibility to be very clear on what this Parliament means when defining men and women as two sexes. From the correspondence that I have received, I know that the people of Scotland, in the great majority, understand that, too. We cannot put women’s concerns and fears to one side, and I was shocked by the lack of serious consultation with the women of Scotland, as well as the number of men who are queueing up to tell women what we should think and how we should feel and, frankly, trying to stop our voices from being heard.

I support the amendments in the name of Johann Lamont.

John Finnie (Highlands and Islands) (Green)

This is an important debate and I do not wish to silence anyone’s voices. There are important issues at stake here and it is right that that is reflected in the debate.

Like many men—I know that people would say that that is a privileged position—I have frequently spoken about women’s experiences of sexism, misogyny, harassment and abuse. There is no acceptable level of toxic masculinity.

Like everyone on the Justice Committee, I warmly welcome the appointment of the distinguished human rights campaigner Helena Kennedy QC and, more recently, I have commended the strong and talented group of women who were appointed to her working group. There is no doubt that progress in dealing with sexism, misogyny, harassment and abuse has been slow, as we have heard from the previous speakers. However, with this working group, it will gather pace. I want the world to be a better place quicker. I am not sure where some of the contributors get a figure of three years from; perhaps we will hear from the cabinet secretary about that.

However, the misrepresentation that is endemic in much of the discourse around this debate is, at best, disappointing, sometimes mischievous and, on some occasions, simply malicious. Some of the horrendous circumstances that women face, which we have heard about, are already covered by legislation, but we need to look at the concerns that have been highlighted.

However, one might reasonably anticipate the furore that would follow if a male politician such as me said, “Let’s disregard this working group, with its distinguished woman leader. It doesn’t matter that the group’s work, with all these talented women, is under way. I want to put in the legislation what I want at this time, regardless of what they might plan.” Words, tactics and intent are important. As before, I will not support amendments of that nature because, as before, I am not prepared to pre-empt or jeopardise the important work of Dame Helena Kennedy’s group.

Elaine Smith

On a point of order, Presiding Officer. It is unfortunate that, given the way in which the Parliament has to operate during the Covid pandemic, there is no way of intervening on members to clarify points. I do not hear anyone in the chamber saying anything about the membership of the misogynistic harassment working group. As women, we are quite happy to support the group and to see what happens at the end of its work, but we have waited 13 years for legislation. We do not see why we should wait any longer and why a sex aggravator should not be included in the bill. The working group, with its distinguished members, can, of course, continue with its work.

The Presiding Officer

Thank you, Ms Smith. The point of order relating to proceedings is accurate, in the sense that debates and discussions in which members participate online are very restricted, and it is not possible for those members to take interventions. I recognise that, but I am afraid that all members have to work with the current system.

However, the point of argument that Ms Smith raised has now been put on the record.

Neil Bibby (West Scotland) (Lab)

Labour will support all the amendments in the group. As Johann Lamont and Pauline McNeill said, in his review of existing hate crime legislation, Lord Bracadale recommended that we introduce sex as a protected characteristic in the bill, and he said that the decision not to include it was “perhaps a missed opportunity.”

I note the concerns of many, including the Scottish Government, on the issue, and that the Justice Committee, in its stage 1 report, said that the arguments are “finely balanced”.

The establishment of the working group on misogynistic harassment, chaired by Baroness Helena Kennedy QC, is important, and we will follow its work closely. We welcome the commitment to publish a report within 12 months, and we hope that it will not take three years. However, as Pauline McNeill said, we worry that there will be a gap in the legislation for those 12 months if we do not include a sex aggravator in the bill, and we worry about the time that it will take for further legislation to be enacted.

As others have said, women are subjected to hate because of their sex, and I am concerned, as other members are, that not only is there a gap in the legislation, but that we might send the message that women are less deserving of the protections that are afforded by the bill from the hate crimes that they experience.

The Government suggests that a sex aggravator can be added later, pending the working group’s conclusions, but the reverse is also true. Any primary legislation that results from the working group’s conclusions could remove or replace the sex aggravator if consensus on a preferred alternative can be found.

Amendment 4 would add sex as an aggravator and would allow courts to record offences as having been aggravated by “malice and ill-will” towards the victim because of their sex.

Amendment 17 provides the definition of sex, as it is defined in the Equality Act 2010, for the purposes of amendment 4. Amendments 21 and 26 are incidental to amendments 4 and 17.

For those reasons, Labour will support all the amendments in the group, and I urge the cabinet secretary and other members to support them, too.

Annabelle Ewing (Cowdenbeath) (SNP)

As a member of the Justice Committee—I should say that I am also a member of the Law Society of Scotland—I have had the opportunity to consider the copious amount of written and oral evidence that the committee received. We received a lot of evidence from a lot of different people, who had a lot of different perspectives on a lot of different issues.

On the issue at hand, and further to consideration of the evidence, it is clear to me that, through the approach that is proposed, we have the opportunity to do something different, substantial and meaningful in relation to the abuse that women suffer day and daily. I have to ask myself the question: what is the point of pursuing the same legislative approach that we have seen decade after decade? That approach has not produced any better results for women; it has not delivered for women. The term “gender neutral” does not deliver for women. Provisions of the Istanbul convention lend support to that.

Johann Lamont

Does Annabelle Ewing agree that the women’s groups that argue against the sex aggravator on that basis welcomed the Domestic Abuse (Scotland) Act 2018, which was gender neutral, as being the gold standard?

Annabelle Ewing

I think that we all welcomed the 2018 act, which is, indeed, the gold standard and something that the Parliament and the Scottish Government can be very proud of. On the specifics, I do not think that we can make quite the same analogy.

However, as I said, after decade after miserable decade of the abuse that every woman in this chamber will have suffered at some time—while it will perhaps have been, in the main, verbal abuse, for some women it will have been more than that, and I would include myself in that category—I think that it is time to try to do something different.

What is proposed here is a working group that is to report within 12 months, which is from an amendment that I proposed and to which the committee agreed in terms of the principle of a time limit being put in place. The working group will look at the misogynistic harassment issue, but it will also look at the issue of a sex aggravator. The group will report to the Parliament, and it will therefore be the Parliament, as the democratic Parliament of our country, that will consider the issues and take decisions.

Colleagues will know that I very much recognise the importance of the principle of the immutability of sexual dimorphism and the importance of not conflating sex and gender, and that I have argued for that in the Parliament and in the committee on the Census (Amendment) (Scotland) Bill, to which my colleague Joan McAlpine referred. I therefore very much recognise the concerns about those issues, but I feel that, having studied the evidence and as a lawyer, the concerns about that debate are becoming part of the debate on the bill before us. I do not necessarily see the two issues as being contemporaneous in that regard.

The Equality Act 2010, which has been mentioned, remains part of the legislation that governs our activities, and we cannot act ultra vires of the 2010 act. Therefore, inserting into the bill before us definitions from the 2010 act and other pieces of legislation seems to me, from a legal perspective, not to make much sense. The Equality Act 2010 is on the statute book and it governs everything that we can do. For the reasons that I have stated, I will not support the amendments in group 1.

The Presiding Officer

I call the Cabinet Secretary for Justice, Humza Yousaf.

The Cabinet Secretary for Justice (Humza Yousaf)

I start by thanking Johann Lamont and all those members who have spoken to her amendments. Although I am about to explain in detail why the Government will not support her amendments, I state for the record that I have known Johann Lamont for quite a few years. We were political opponents in Glasgow Pollok during the most recent election and for years before that. For all the disagreements that I have with her, I do not doubt for one second—not for one millisecond—her commitment to tackling hatred. I have known her to stand on the same platform and denounce hatred in all its forms. Although our debate will be robust—we have heard much of that robustness already—I state for the record that I do not doubt at all her intentions in relation to her proposed amendments. I welcomed the respectful but robust manner in which issues were debated at stage 2, and I am certain that contributions throughout today’s proceedings will be made in a similar manner.

There remains a pressing need, as members have already stated, to tackle misogyny and gender-based violence in Scotland, and the Government is committed to doing so. Indeed, it is clear that there is a shared ambition across the Parliament to doing so. However, it is also clear that there are strong but often diverging views on how that important issue should be tackled. Johann Lamont’s amendments would result in the characteristic of “sex” being added to the list of characteristics in section 1 of the bill and would add a provision to define sex. She is right that, in principle, I do not oppose the intention behind the inclusion of sex in the hate crime legislative framework. I said publicly on the record, when Lord Bracadale’s report came to me, that my initial view was to include a sex aggravator.

As I outlined at committee during stage 2, I know that, on the face of it, including “sex” in the bill seems appealing. To exclude the category of sex, as members have said, seems counterintuitive. However, we also heard during the committee’s oral evidence sessions and know from its written evidence that a number of organisations that have decades of experience of standing up for women’s rights, such as Scottish Women’s Aid, Engender, Rape Crisis Scotland and Zero Tolerance Scotland, expressed concerns that a neutral sex aggravator could do harm to women. I will come to some of the reasons why that is shortly.

However, there is a concerning element in the remarks that have been made. We can accept that there are differences of opinion, but I am deeply disturbed by the insinuation that a few members have made about organisations such as Scottish Women’s Aid, Rape Crisis Scotland, Engender and Zero Tolerance Scotland. Members have every right to disagree, but we should recognise not only that those groups provide a life-saving service for many women but that they have decades of credibility in this area. It is absolutely true that they are Government-funded, but the dangerous insinuation behind labelling them as such is that they are simply doing what the Government wants. Anybody who has had any dealings with Dr Marsha Scott, Sandy Brindley or Emma Ritch knows that they are no Government patsies. When they need to challenge the Government, they do so strongly. Therefore, although we are right to disagree, I plead with members not to denigrate those organisations that have done so much to advance women’s rights over the years.

I was struck by a number of the concerns that Women’s Aid organisations raised regarding the introduction of a neutral sex aggravator that would apply to men just as it would to women. They said that it could become another tool for domestic abuse perpetrators to use as part of a wider pattern of coercive control. We know that perpetrators of abuse often use the criminal or, indeed, the civil justice process to perpetuate that abuse.

I want to read a quote from Grampian Women’s Aid. Some members have talked about national organisations and have made an insinuation—in fact, not an insinuation but a direct accusation—that those organisations have not spoken to women on the ground. This is what Grampian Women’s Aid said:

“we see time and time again, attempts by perpetrators to use elements of the criminal and civil justice system to enforce or extend control and abuse of children and women ... including calling the police and claiming to be victims when they are in fact abusers ... We of course can only speculate about the impact of a gender aggravation for hate crime laws. However, it is our understanding that there is no evidence that such an aggravation has helped protect women where it has been used elsewhere, and we are absolutely confident that perpetrators will attempt to use it to their own benefit should it be introduced in Scotland.”

In her intervention on Annabelle Ewing, Johann Lamont made a point about the domestic abuse aggravator being neutral. Given what Grampian Women’s Aid said, why would we want to give perpetrators a potential additional tool to use in the perpetuation of their abuse?

That is not the only argument that women’s organisations have used. Engender has a 35-page report. I will not go into the policy detail of that, but it is worth recognising that serious concerns have been raised by serious organisations that have a pedigree, a credibility and an integrity when it comes to standing up for women’s rights.

Therefore, it makes perfect sense to me to ask experts—as we have done with the working group, chaired by Baroness Helena Kennedy, who is a lifelong feminist and a human rights lawyer—to look at where there might be gaps in the law and to examine a stand-alone offence of misogyny, but also to examine the issue of the inclusion in the bill of a sex aggravator.

Johann Lamont referred to that a couple of times as outsourcing that work. I happen to disagree. As legislators, we are at our best when we ask experts such as Baroness Kennedy to look at issues in great detail. She has a panel of experts with specialisms in Scots law, human rights and women’s equality, and she has managed to bring in advisory counsel from the Office of the United Nations High Commissioner for Human Rights to support the working group. That group had its first meeting on 12 February and the next one is scheduled for later this month.

Pauline McNeill kept referring to a period of three years. I have no idea where that number has come from. She joined us online, so she might not be able to intervene, but I would be happy to take an intervention because, as I have already set out in writing to every member, and as the working group has confirmed, the group will conclude its work within 12 months of 12 February. I have also confirmed that if, after exploring all the arguments that have been raised by Engender, Rape Crisis Scotland, Scottish Women’s Aid and members of this Parliament, it concludes that a sex aggravator should be included, the Scottish National Party Government, if we are re-elected, will include a sex aggravator. I would bring forward the draft order to do that within a month. That work is continuing at pace. It will not take three years, and I am not sure where that figure has come from.

Regarding a definition of sex, as I have said previously, I do not have an in-principle objection to alignment with the Equality Act 2010. What I will not do, though, is prejudge the work that Baroness Helena Kennedy is undertaking in that regard. I do not have a fundamental, in-principle objection to what Johann Lamont is suggesting or doing; it is simply the case that I recognise what has been said by organisations that have decades of credibility in standing up for women’s rights. They have expressed very serious concerns, many of which were articulated very well by my colleague Annabelle Ewing.

I ask members to give the working group the time that it needs—12 months, as the committee asked—to explore the issue, come forward with recommendations and create, potentially, a world-leading approach. Therefore, I ask members to vote against Johann Lamont’s amendments 4, 17, 21 and 26.

The Presiding Officer

Before I invite Johann Lamont to wind up on the group, I notice that Pauline McNeill has requested to speak, so I will bring her in.

Pauline McNeill

Thank you, Presiding Officer. I asked the cabinet secretary a number of questions. Many commentators have concerns about the length of time that his approach would take. Whatever commitment the cabinet secretary gives, he will have to allow some legislative time and the committee will have to pursue the matter, so many people think that it will take at least a few years. I will not be tied to the three years, but there are certainly concerns about the timescale. I also note the extraordinary times that we are in.

The cabinet secretary might not be able to reply to this, but I asked a question about what a crime looks like. He did not answer that, nor did he answer another question that I put. If he is not against a sex aggravator, which is what he said at the beginning, and given that Helena Kennedy is going to look at the matter, what would be the problem with inserting it now and then revising it in the future? He could have done that, and it seems to me that he has got into an argument for no reason.

Humza Yousaf

I thank Pauline McNeill for that and I thank you, Presiding Officer, for facilitating that intervention.

On the reason why we should not include a sex aggravator now, I note that Rhoda Grant, who might take part in the stage 3 proceedings later on, suggested that we should include it now and then remove it later if the working group says that it should not be in the legislation. However, a concern is held by Scottish Women’s Aid and many others that a sex aggravator, which could apply to men as much as it would apply to women, could do harm. If the suggestion is that we should include it, allow it to do harm to women and then remove it because the expert working group has said, “Yup—it has done harm”, I would ask how many women would be harmed in that process. To me, that seems the wrong way to go about it.

Forgive me—I did not understand Pauline McNeill’s question about what would be a crime, but I am happy to take that away and perhaps address it in writing to her.

The Presiding Officer

I call Johann Lamont to wind up on the group.

Johann Lamont

Thank you, Presiding Officer. You will appreciate that there are quite a significant number of areas that I want to get through.

I have asked why we would ask the question out loud and then not include women in a hate crime bill when we all know that women are the most serious victims. People have said, “Well, it’s all a bit complicated”, but people have been saying that to women since I was a child. They have said that it is too difficult to get women into public spaces or to deal with difficult behaviour and that women have caring responsibilities. If we had taken that attitude, we would never have changed anything.

I commend Pauline McNeill, Joan McAlpine and Elaine Smith for their contributions, which proved that there are a lot of talented women who have something to say about the issue. We should listen to them, because those women are speaking up on behalf of women across the country who have lobbied the Government on the matter.

I very much respect Annabelle Ewing for what she has said and done, particularly around the issue of not conflating sex and gender. I recognise that, but I think that she is wrong in the conclusion that she has come to. She understands that there is a problem for women in relation to hate crime, but says that it should not be central to any strategy or Government legislation, or the campaign around it that says that women should be part of that work.

A number of arguments have been made on the subject. We are told that it is very complex, but I make the point again that hate crime legislation in its entirety is complex. It is our job to work our way through complex legislation.

We are told that a sex aggravator might work against women because of manipulative men. Therefore, because the perpetrators are ultra-manipulative, we have to pull back. That, again, is a counsel of despair; if we had listened to it in the past, we would never have legislated on rape, coercive control or domestic abuse. I make the point again that although the domestic abuse legislation is gender neutral, it protects women, who overwhelmingly are the victims of domestic abuse.

We are also told that women can wait. It might only be a year—we are a bit vague about how long it will take—but women can wait until we make sure that we get this absolutely right. On the other hand, when people have said, “Given the complexities of the bill as a whole, perhaps it might be better to try to bring people together and get our communities to understand what we are doing, pause the bill and build consensus,” we have been told, “No—we cannot wait.” Let the women wait, but not every other issue in relation to the bill. That does not make sense.

In his contribution, John Finnie said that he was not willing to jeopardise the talented group of women, at least one of whom will be representing a group that is actively opposed to the sex aggravator being in legislation. I accept that it is a very talented group of women, but our point is that there are a lot of very talented women right across our communities who understand exactly what hate crime is, and we should be talking to them about what protections they should have.

It is ludicrous to say that the only way forward to address the needs of women is to set up a working group. I am sure that the working group can do a lot of really good work; they are very talented people. However, there is no reason to prevent the sex aggravator from being put into legislation and then let the group work on the detail. If there are unintended consequences, the group can address them.

A lot has been made of the evidence that manipulative men would make things more difficult for women, but, of course, we are talking about an aggravator. The men are already manipulating the initial charge of violence—we know that, and we need to deal with it. The argument does not make any sense.

I want to talk briefly about what the cabinet secretary has said. Let me be clear: I have a lot of respect for the groups that are opposed to the position that I have taken. Indeed, when I was a minister, I funded those organisations to ensure that women were protected in the justice system and given refuge and support, so I have no problem with them whatsoever.

My argument is not that those groups are silenced by their connection to funding from the Scottish Government; it is that the Scottish Government overwhelmingly listens to them above any other groups. Indeed, we found out this week that the Scottish Government does not have a list of groups of women to test its ideas against. The only people that they have are the four groups that they fund. That is a closed circle, and we want to break into that circle and say that there is another set of ideas and arguments: that women need protection in the law. That can be done in principle; afterwards, let the working group do its very best.

I commend Joan McAlpine in particular, partly for her fantastic speech making the case, but also for having the courage to indicate that she will support my amendments against the position of her own Government. I am absolutely confident that if the cabinet secretary allowed his back benchers to do what they know is right, they would support the sex aggravator, support the working group doing the detailed work and definitely support the definition of sex that is in current legislation.

It is clear that this Government has form on changing definitions. It is in the courts at this very moment, defending a change in definition regarding the legislation on gender representation on public boards. That has been changed. Joan McAlpine was the person who took to the Scottish Government the attempt to change the Census Act 1920 and redefine the question on sex; she has informed a lot of the work around what is now in court.

I will finish on this point. If we listen to women and look at women’s experience, it is self-evident that women should be covered by the bill. Women would not argue for something that would make their lives worse. I urge the Scottish Government to listen to women and to what Tim Hopkins said. People need to see themselves in the legislation. Women are people, and they, more than anyone, know that they need the protection of the law.

I urge members across the chamber to support my amendments. If they feel that they cannot, they should at least ensure that we do not have a working group coming back in a year’s time having redefined behind our backs the meaning of sex and men and women and, when people ask about it, saying, “Why are you moving against that change?” Let the working group do its best, but we make the decisions on that.

Fundamentally, as we all know, women face hate, violence and abuse, and they deserve the protection of the law as much as anyone else.

The Presiding Officer

The question is, that amendment 4 be agreed to. Are we agreed?

Members: No.

The Presiding Officer

There will be a division. As this is the first division of the afternoon, I will suspend the meeting for five minutes to summon members to the chamber and to allow members, including those who are offline, to access the voting app.

The Presiding Officer

We come to the division on amendment 4, in the name of Johann Lamont. Members may cast their votes now.

The vote is now closed. Please let me know if you had any difficulty in voting.

For

Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Balfour, Jeremy (Lothian) (Con)
Ballantyne, Michelle (South Scotland) (Reform)
Beamish, Claudia (South Scotland) (Lab)
Bibby, Neil (West Scotland) (Lab)
Bowman, Bill (North East Scotland) (Con)
Boyack, Sarah (Lothian) (Lab)
Briggs, Miles (Lothian) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Carlaw, Jackson (Eastwood) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Chapman, Peter (North East Scotland) (Con)
Corry, Maurice (West Scotland) (Con)
Davidson, Ruth (Edinburgh Central) (Con)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gray, Iain (East Lothian) (Lab)
Greene, Jamie (West Scotland) (Con)
Griffin, Mark (Central Scotland) (Lab)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Harris, Alison (Central Scotland) (Con)
Johnson, Daniel (Edinburgh Southern) (Lab)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Kelly, James (Glasgow) (Lab)
Kerr, Liam (North East Scotland) (Con)
Lamont, Johann (Glasgow) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Lindhurst, Gordon (Lothian) (Con)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Macdonald, Lewis (North East Scotland) (Lab)
Marra, Jenny (North East Scotland) (Lab)
Mason, Tom (North East Scotland) (Con)
McAlpine, Joan (South Scotland) (SNP)
McDonald, Mark (Aberdeen Donside) (Ind)
McNeill, Pauline (Glasgow) (Lab)
Mitchell, Margaret (Central Scotland) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Sarwar, Anas (Glasgow) (Lab)
Scott, John (Ayr) (Con)
Simpson, Graham (Central Scotland) (Con)
Smith, Elaine (Central Scotland) (Lab)
Smith, Liz (Mid Scotland and Fife) (Con)
Smyth, Colin (South Scotland) (Lab)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Stewart, David (Highlands and Islands) (Lab)
Tomkins, Adam (Glasgow) (Con)
Wells, Annie (Glasgow) (Con)
Whittle, Brian (South Scotland) (Con)
Wightman, Andy (Lothian) (Ind)

Against

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Finnie, John (Highlands and Islands) (Green)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Greer, Ross (West Scotland) (Green)
Harper, Emma (South Scotland) (SNP)
Harvie, Patrick (Glasgow) (Green)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Johnstone, Alison (Lothian) (Green)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lochhead, Richard (Moray) (SNP)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Matheson, Michael (Falkirk West) (SNP)
McArthur, Liam (Orkney Islands) (LD)
McKee, Ivan (Glasgow Provan) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Rennie, Willie (North East Fife) (LD)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Rumbles, Mike (North East Scotland) (LD)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Russell, Michael (Argyll and Bute) (SNP)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Kevin (Aberdeen Central) (SNP)
Swinney, John (Perthshire North) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Wishart, Beatrice (Shetland Islands) (LD)
Yousaf, Humza (Glasgow Pollok) (SNP)

The Presiding Officer

The result of the division on amendment 4, in the name of Johann Lamont, is: For 53, Against 68, Abstentions 0.

Amendment 4 disagreed to.

Section 3—Offences of stirring up hatred

The Presiding Officer

Group 2 is on the threshold for and operation of offences relating to stirring up hatred. Before I call the first amendment, in the name of Liam Kerr, as we are already nearing the agreed time limit, I am prepared to exercise my power under rule 9.8.4A to allow the debate on group 2 to continue beyond the limit in order to avoid the debate being curtailed unreasonably.

Amendment 32, in the name of Liam Kerr, is grouped with amendments 33, 5 to 10, 15, 30 and 31.

Liam Kerr (North East Scotland) (Con)

My amendments in group 2 are split into two broad principles, and I will speak to each in turn.

Amendments 32 and 33 try to protect the right to private and family life, but in slightly different ways. At stage 2, I lodged an amendment to provide a defence for words that are spoken in a private dwelling and that are not heard by any other person except those within the dwelling. The defence is similar to those in public order laws in England, Wales and Northern Ireland. My intention was to reflect the fact that, as the committee unanimously agreed, the proposed legislation describes itself as being concerned with “public” disorder. Under stirring-up laws, prosecution over private conversations in the home must surely constitute a violation of privacy and the human right to a family and private life.

During its evidence taking, the committee heard concerns that allegations could be made by individuals after an argument at a dinner party or similar social event and could then be investigated by the police. Calum Steele of the Scottish Police Federation warned us that conversations on contentious issues could be repeated innocently by children at school, which could then lead to reporting. The police would have no choice but to investigate and take witness statements from others present at the time of the speech, which could presumably include one’s own children.

Without a private and family life defence, the bill could lead to a scenario in which parents censor themselves in their own homes because they are anxious that their children might repeat, out of context, something that they have said. We must not make it the job of the police to investigate private disputes and to use the criminal law to set the parameters of acceptable opinion, even in the private sphere.

At stage 2, the cabinet secretary expressed concerns about people stirring up hatred in the home and folk then going out and expressing that. I heard his argument on that, so I have drafted my amendments specifically to address those concerns.

Amendment 32 makes it clear that, if a person is in their usual residence and behaves in a way that could constitute stirring up hatred, or communicates material that could constitute that, but no one outside the dwelling hears or sees it, they do not commit an offence. However, the caveat that I have added is that that defence is applicable only if the other people in the house at that time are either their family or people with whom the house is shared, plus another person from a different household. The beauty of that clause is that it entirely addresses the cabinet secretary’s concerns while ensuring that people can speak freely, without fearing an investigation or prosecution.

Humza Yousaf

I have a simple question for Mr Kerr. If I were to be beaten up because of the colour of my skin, does he think that I would care whether that hatred had been stirred up within a stranger or, for example, his own brother? It would not make a difference to me, as the victim of such a hate crime, whether I had been beaten up by a relative of his or by a stranger.

Liam Kerr

No—of course it would not. However, here we are talking about the dwelling defence and how we protect people from hate speech that might happen around their dinner table. I will address the cabinet secretary’s point as we move through the debate.

I have lodged a further amendment, just in case members remain concerned about the reference to an extra non-family person. Amendment 33 provides a defence if

“the only people present when the behaviour or communication of material occurs”

are the family of or those who live with

“the person engaging in the behaviour or communication”.

None of what I propose is ground breaking. There is precedent for a family and private life defence. Section 18 of the Public Order Act 1986 provides that an offence is not committed if the accused’s behaviour takes place inside a dwelling and is not seen or heard by others. Interestingly, the Law Commission in England recently reviewed whether such a dwelling defence should remain in public order laws. Just last month, it announced that the mechanism should stay to ensure a proper balance between tackling vile behaviour and respecting privacy.

Since the bill that is before us seeks to increase the coverage of the stirring-up offence, it makes sense to import a similar dwelling defence, to protect the right to a private family life and ensure that the public order element of the bill’s title remains pertinent. I therefore intend to press amendments 32 and 33.

Amendments 6 to 10, 15 and 31, in my name, all go towards the same point. From the start of the bill process, I have argued that part 2 needed to be removed and rethought, because we have to get this right. On this—the most controversial bill in the Scottish Parliament’s history—most of the concerns have centred on part 2. In a truncated timetable, and extraordinarily difficult and unprecedented circumstances, parliamentarians and the committee have worked well, and vital changes have been made. However, despite all the evidence taking, all the amendments at stage 2 and all the committee’s emergency sessions, significant concerns remain.

The bill, as amended, requires that behaviour must be judged abusive or threatening by a “reasonable person” and must be

“intended to stir up hatred”,

which is a considerable improvement. However, those terms are not further defined. Although it has been argued that their meaning will be obvious and that they will set a high bar, there is no doubt that the meaning of what is hateful, abusive or reasonable is contested.

Even should some of the many further amendments be agreed to today, huge questions will remain around, for example, what the police could be dragged into adjudicating under part 2. Murray Blackburn Mackenzie warned:

“if the Bill is passed in the form the government is seeking ... the freedom to ... make certain types of statements ... without risking at least serious disruption to life will now rest wholly on what front-line police officers decide in practice a ‘reasonable person’ might judge ‘abusive’”.

On the freedom of expression provisions, which we will consider shortly, although the Scottish Government has lodged an alternative section, which may still be further amended in the next group, we will all have had extensive representations suggesting that it might still not be quite right.

Members will have seen recent representations from many reputable organisations this week raising concerns that the wording is not wide enough to put it beyond doubt that merely offensive or controversial speech is not grounds for a stirring-up hatred prosecution to take place. The Society of Editors illustrates my point, saying:

“The SoE fears that unless there are safeguards put in place the ‘reasonable person’ test stands every chance of being highjacked and used to silence free speech and penalise a free media.

At the very least, the definition stands the chance of creating a chilling effect of the UK’s media.”

Is the society right? I do not know, but what if it is?

Much more thought needs to be given to the content and compass of the stirring-up offences. The cabinet secretary, the Parliament and hundreds of groups have tried for a year now to find the solution, but too many people think that the solution may not have been found. I therefore offer my solution to Parliament. If part 2 is removed from the Hate Crime and Public Order (Scotland) Bill, it will allow the bill to proceed, to consolidate existing provisions, to add a new statutory aggravator on age and to remove the blasphemy offence. We can then come back in the next parliamentary session, and a new Administration can look afresh at this disputed area.

I can anticipate the worry that people will have that, if part 2 were to be removed, it could leave people unprotected. Let me allay those fears, as I have also lodged amendment 31, which reinstates the existing protections provided by the Public Order Act 1986, ensuring that there is no reduction in existing protection should my amendments be accepted.

I will move amendment 6, and its consequentials, to remove part 2, so that the Parliament can be secure in the knowledge that there will be no reduction in protections, so that it can pass the rest of the bill and so that, in the next session, it can allow more time for renewed scrutiny and stakeholder engagement on the stirring-up offences to ensure that we get them right in order to protect what must be protected and who must be protected, while not infringing rights that must not be infringed.

I move amendment 32.

Adam Tomkins (Glasgow) (Con)

It has been clear for months that, notwithstanding all the criticisms that have been made about the Hate Crime and Public Order (Scotland) Bill, a majority of MSPs support the proposed legislation, it will pass at stage 3 tonight and it will be enacted into law.

In all my involvement with the bill, I have sought to improve it. Of course, I could have spent the past few months simply trying to obstruct the bill, but it has been clear for a long time that it will pass, so what would have been the point of that? I want to ensure that the Parliament passes good law. My amendments—both those in this group and those in the next group to be debated—are designed not to thwart the policy objectives of those whose bill it is but to improve the delivery of those policy objectives in the law that we make.

I am in favour of hate crimes being crimes. I do not want to live in a country where people are free to threaten or abuse one another with the intention of stirring up hatred against them. I am also passionately in favour of individual freedom and liberty. When we are seeking to criminalise behaviour that stirs up hatred, we must do so with extreme care and caution. In particular, we must guard against two vices, either one of which could hole the good intentions of the bill below the waterline. We must guard against vagueness, and we must guard against overbreadth. We must specify, as precisely as we can, exactly what it is that we are seeking to criminalise, and we must ensure that we do not inadvertently catch within the web of our criminal law behaviour that ought properly to be left free.

That is what my amendments, both in this group and in the next, are designed to achieve. They do it by remembering this: that when we legislate, as we do here, on the terrain of fundamental human rights, our rights and liberties should be interpreted and understood expansively, and restrictions on our rights and liberties should be contemplated only where necessary, in the public interest, to safeguard a legitimate aim.

Stirring-up offences are not new. The bill does not invent them, although it expands them considerably. We have had stirring-up offences with regard to racial hatred since the 1960s, and they are found now in the Public Order Act 1986. The full short title of the bill is the Hate Crime and Public Order (Scotland) Bill. That is no accident, yet it seems to have been overlooked in much of the debate on and commentary about the bill. The stirring-up offences are offences of public disorder, and they sit alongside other public order offences such as riot, affray, violent disorder and breach of the peace.

One does not need to be a lawyer to understand that, in order to commit a public order offence, there needs to be a public element to what one does. One cannot commit riot in private, and nor should it be possible for someone to be convicted of stirring up hatred if what they have done occurred only in private and there was no public element to it. That is the effect of the law at the moment. Section 18 of the 1986 act, which criminalises the stirring up of racial hatred, provides that the offence is not committed if the accused’s behaviour takes place inside a dwelling and is not seen or heard by others.

It is, of course, the case that the criminal law does not stop at the threshold of one’s home. Our domestic abuse statutes are just one example of that. If I were to invite half a dozen pals to my home and treat them to a rant of antisemitic bilge, and they were to go off and desecrate the nearest synagogue, I should, of course, be liable for a hate crime. I would have invited people into my home and used it as a platform for sharing my racist, bigoted views. Such behaviour would be caught by the bill as it is presently drafted, and my amendment 5 would do nothing to alter that.

Let us consider a different example, however. Let us imagine that I have a family gathering—a Friday night supper—at which my unreconstructed and somewhat embarrassing elderly uncle makes disparaging remarks about a same-sex couple and my somewhat oversensitive 15-year-old daughter, offended at what she has heard, tells her best friend about what has been discussed at my family dinner table. Her friend’s father is a police officer, and the next thing we know is that there is a knock at the door and my elderly uncle is under criminal investigation. Is that really where we want the hate crime bill to go? Do we really want it to deal with family dinner table conversations that take place only in private, with no public element at all? I do not think so, and the Justice Committee did not think so, either.

In its stage 1 report, the committee reached the following unanimous conclusion:

“The Committee believes that there should not be an absolute defence against prosecution based on whether someone was inside a dwelling or not when it comes to words expressed, behaviour or the display of written material. However, care also needs to be taken that people are not investigated for, charged with, or prosecuted for, offences based on their personal views, however abhorrent others may consider them to be, if the expression of those views took place in a private space, such as their own house, and there was no public element.”

That was the unanimous, all-party conclusion of the Justice Committee, which took extensive evidence on that point. Giving effect to that conclusion is exactly what my amendment 5 would do.

We all need a safe space where we can let off steam. The right to respect for private and family life and for home is a fundamental human right. If we abuse our homes, inviting others into them and converting them into platforms for threatening or abusive behaviour that is intended to stir up hatred, the criminal law should of course apply. Therefore, my amendment is not a dwelling defence: it does not exclude everything that happens inside the home from the criminal law. It is a criminal defence. It protects the privacy of wholly private family conversations, and it reminds us that offences against public order need a public element.

If there was any public element, of whatever nature, my amendment 5 would not apply. It would apply only to wholly private behaviour. That zone of privacy, as it were, is defined expressly by reference to the right to respect for private and family life in article 8 of the European convention on human rights. There is a realm of personal liberty that the Government may not enter. Existing stirring-up offences recognise that, and so should the new stirring-up offences that we are creating in the bill. For those reasons, I urge the Parliament to support amendment 5.

Humza Yousaf

I will speak to the amendments in group 2, beginning with amendment 6. However, I will start in the same place as I did in my response to Johann Lamont’s amendments. I suspect that many Conservative members and I will disagree on a number of amendments, but not for one second do I doubt the commitment of Liam Kerr, Adam Tomkins or any Conservative MSP to tackling inequality or hatred in any form. I think that it is important to state that—although I will not do so in every contribution that I make—because the debate has been heated at times, not just in the Parliament but outwith it. I certainly know about that, because I have been the victim of hatred, as many know, and I have had messages of support from members of all parties, which I greatly appreciate.

I turn to the amendments at hand, starting with amendment 6. I confess that I am somewhat surprised that Liam Kerr chose to lodge amendment 6, which would, effectively, strike out the stirring-up offences. It was only a few weeks ago that he lodged an absolutely identical amendment at stage 2 and then, after listening to my very persuasive speech, which it must have been, he was so convinced by my arguments that he voted against it. I very much hope that this will be a case of history repeating itself. Although I commend Liam Kerr’s persistence, if not his confusion, on the issue, I cannot support what I consider to be quite a regressive amendment.

I urge members to wholeheartedly reject amendment 6. I believe that our criminal laws should provide comprehensive protection for our most vulnerable groups in society from the very damaging effects of behaviour that stirs up hatred, through a stand-alone offence that reflects the precise nature and gravity of those effects. The bill’s provisions make it clear that that type of behaviour attracts the particular condemnation of society and that it simply will not be tolerated. Liam Kerr’s amendment 6, unfortunately, disregards the recommendations of the Justice Committee in that area. It would result in Scotland having the weakest protections in the UK in the area of stirring up hatred. In debate, we sometimes forget that stirring-up offences exist across the UK—in England and Wales and in Northern Ireland. If we were to accept Liam Kerr’s amendments, Scotland would have the weakest protection in law, by quite some distance, for those vulnerable communities.

Supporting Liam Kerr’s amendment 6 would send a very damning message to all victims of hate crime. As has been recognised time and again, through the very compelling testimony of stakeholders who represent victims and of victims themselves, behaviour that stirs up hatred can have a really corrosive effect. It can result in entire communities feeling isolated, scared and vulnerable to attack. In the most serious cases, it can directly encourage activity and assault that threaten or endanger life.

Members may well remember the so-called punish a Muslim day in 2018. If I remember correctly, Anas Sarwar raised the issue in the chamber with the First Minister. Leaflets were distributed in schools and workplaces and were put through the doors of mosques, all in order to threaten an entire community. People were to be “awarded points” for pulling off the hijab of a Muslim woman or for pulling the beard of a Muslim man. That was with the intent of frightening, scaring, intimidating and, at its worst, assaulting and endangering the lives of the Muslim community. Muslims were frightened; I know that not just from my personal experience but from speaking to that community often. They feared for their safety. Some of them took a day off work; some felt that they had to keep their kids off school; some did not attend their university or college—all because they feared attack for no reason other than their faith. If we accepted Liam Kerr’s amendment, we would not be giving the protection in law that an entire community—such as the Muslim community during punish a Muslim day—so well deserves.

In short, I hope that members will stand shoulder to shoulder with victims of hate crime and will vote against amendment 6, which, if agreed to, would send a very harmful message to the people of Scotland.

Amendments 7 to 10, 15 and 31, in the name of Liam Kerr, are largely consequential to amendment 6, so I ask members to reject those amendments, too.

I turn to the various amendments that would introduce a dwelling defence or public element to the offences of stirring up hatred. Amendment 5 was lodged by Adam Tomkins. I appreciate the Justice Committee convener’s engagement with me on the bill and in particular on this issue, which has genuinely exercised him since the bill’s introduction. Amendment 5 would introduce a statutory defence for people who commit offences of stirring up hatred under section 3, where such offending behaviour occurs “wholly in private” and there is “no public element” to it. Similar amendments were lodged by Liam Kerr at stage 2 and heavily defeated; all members, with the exception of the Scottish Conservatives, voted against them.

I listened carefully to what Adam Tomkins said. He rightly highlighted the dangers of vagueness and the bill not being specific enough about how the criminal law would operate. However, I take issue with the characterisation that somehow the offences as they are provided for in the bill—much improved as they have been during the scrutiny process—are vague.

Liam Kerr

The cabinet secretary will be aware that Lord Bracadale supported the inclusion of a dwelling provision when he gave evidence to the Parliament. Precisely why, in legal terms, is the cabinet secretary not going for that? Has he had legal advice on the issue?

Humza Yousaf

Yes, of course. I have had advice from the Scottish Government legal directorate and from my officials. I will explain why I do not agree with Lord Bracadale. I did not accept all his recommendations, such as those on the race and gender aggravators.

It is entirely clear that the new stirring up hatred offence could be committed only where a reasonable person—that is the common law term, and the reasonable person test is an objective test—would consider behaviour or communication of material, wherever that took place, to be threatening or abusive and intended to stir up hatred, and where the behaviour or communication of that material was not reasonable.

Amendment 5 creates the same, entirely artificial, distinctions as were created by the amendments that were roundly rejected at stage 2. Fundamentally, it fails to recognise that the fact that an offence of stirring up hatred occurs within a private space does not mean that the wider harmful impacts that such offences seek to prevent are avoided. Let us all be clear: the effects of behaviour that stirs up hatred can and will be felt well beyond the four walls of the private space or dwelling in which the behaviour occurred. There are potentially life-threatening implications for members of the targeted group if the incitement of acts of violence through threatening or abusive behaviour that is intended to stir up hatred are acted upon.

I am firm in my view that if someone engages in threatening or abusive behaviour or communication with the intention of stirring up hatred, the criminal law should be capable of addressing such conduct, regardless of where it occurs.

It is also important to ask ourselves what is meant by behaviour that occurs “wholly in private” with “no public element”, which is the wording in amendment 5. I am afraid that the amendment is not at all clear and provides very little guidance. Wholly private from whom? Members of the public? People who do not live at the address at which relevant behaviour might have occurred? Amendment 5 provides no definition in that regard.

Amendment 5 refers to

“the right to respect for private and family life by virtue of Article 8 of the European Convention on Human Rights.”

That right does not preclude the application of the criminal law in private spaces. If it did, laws that protect people from assault, domestic abuse, threatening or abusive behaviour or sexual offences, to name but a few, would not apply if the conduct occurred in private. Why should stirring up hatred be any different?

The effect of the proposed defence in amendment 5 and the behaviour that it seeks to exclude from the scope of the stirring up hatred offences is therefore, potentially, far reaching. It appears to me that amendment 5 would mean that if a large group of people were invited to meet in a private space for the purpose of stirring up hatred against a group—for example, Catholics attending their local parish church or Jewish people attending their local synagogue—and words or materials were exchanged during that meeting that were threatening or abusive and intended to stir up hatred, and were seen or heard only by people within that private space, no “public element” would have occurred and no offence of stirring up hatred would have been committed.

Instead, for an offence to be committed it would seem to require people in public places—for example, on a street pavement—to see or hear the abusive or threatening behaviour or material. That ignores entirely the point that private stirring up of hatred can still inspire equally harmful acts of hatred outside that private space.

Adam Tomkins

I fear that the cabinet secretary, no doubt inadvertently, is mischaracterising the nature of amendment 5. It is perfectly clear from the wording of the amendment that if anybody invites members of the public who are not members of their family into their home for a meeting about anything, that is not a wholly private event and is an event with a public element. The cabinet secretary says that the amendment lacks definition, but I say to him that “public element” is a phrase that is drawn directly from Scots law on breach of the peace and “wholly in private” is expressly defined in the amendment by a reference to the fundamental human right to respect for private and family life. None of the cabinet secretary’s criticisms of the wording of my amendment 5 are, with respect, justified.

Humza Yousaf

I will come to that point. MSPs will be well aware by now that the first element of the threshold of the new stirring up of hatred offence is a requirement for behaviour or communicated material to be threatening or abusive. For me, that is the same threshold that has existed in Scots criminal law since 2010 with the statutory offence of threatening or abusive behaviour, but that offence, which has been prosecuted thousands of times over the past decade, does not have a defence if it occurs in private for very good reason: why should threatening or abusive behaviour be treated differently depending on where the conduct may have occurred?

It would mean that Scots law operated so that threatening or abusive behaviour without the intention to stir up hatred is an offence when committed wholly in private while threatening or abusive behaviour with the intention of stirring up hatred would not be an offence if committed wholly in private. That does not appear to be a sensible approach for Parliament to adopt.

I note that Mr Tomkins suggests that one does not need to be a lawyer to understand that a public order offence requires a public element. I should say that the public order element of the long title is to do with the repeal of the blasphemy law. I may not be a lawyer and I do not claim to have the expertise that Adam Tomkins does as a professor of law, but I fundamentally disagree with that statement on a point of principle. The very purpose of the offence is that hatred is stirred up in others, so comparisons about being able to riot in private completely miss the point of the offence. If a person stirs up hatred in others and those others attack, for example, Catholics, Protestants or Sikhs as a result of hatred being stirred up in them, it should not matter at all where the hatred was stirred up. The effect is the same—groups being singled out for hatred and attacked for who they are.

I thought that Dr Kayembe, the newly elected rector of the University of Edinburgh, who was on BBC “Reporting Scotland” last night responding to Adam Tomkins’s amendments, made a very persuasive case when she talked about her children having been racially abused by other children and said that, no doubt, a lot of that hatred came from the family home, probably in a private space and possibly from the parents or an older sibling. That is worth listening to.

On Adam Tomkins’s example of an unreconstructed uncle, who we all have in our families, saying something perhaps unacceptable or offensive to a same-sex couple, that would not be prosecuted. That is because it would not meet the threshold that a reasonable person would view that as threatening or abusive. However, let us say for the purpose of his hypothesis that it did—do we genuinely think that it would reach the threshold of being intended to stir up hatred and be proven beyond reasonable doubt in a court? I do not believe that to be the case.

Similarly, amendments 32 and 33 by Liam Kerr are a further attempt to introduce a dwelling defence. I do not think that I have to go into too much detail on that, as I have taken a fair bit of time on Adam Tomkins’s amendment. As I said before, simply creating an artificial distinction whereby if hatred is stirred up in one’s sister, brother, child, step-child or grandchildren, somehow that should not be prosecuted, is a misunderstanding.

It is a misunderstanding to suggest that when hatred is stirred up in an individual, and they go and beat up or threaten somebody due to their sexual orientation, transgender identity, disability, faith or colour, the individual should not be prosecuted simply because the person who instigated that hatred was their brother, uncle, father or mother. To me, that makes no sense whatever. I ask members to oppose amendments 32 and 33.

Amendment 30, in my name, makes a change to schedule 1, which deals with the treatment of offences in the bill in relation to providers of “information society services”. The inclusion of provisions in schedule 1 follows the requirements of certain articles in the European e-commerce directive, and is commonly done in legislation. In accordance with the e-commerce directive, paragraph 1 of schedule 1 provides that proceedings for such offences

“may not be instituted against a non-UK service provider”

that is established in the European Economic Area, unless it is necessary and proportionate in the public interest. The change in relationship between the UK and the EU arising from the EU exit and the end of the transition period has given rise to a concern that paragraph 1 of schedule 1, as currently framed, makes an unjustifiable distinction in that context between non-UK service providers that are established in the European Economic Area and those that are established elsewhere, including in the UK. Such a difference in treatment could conflict with rights under the European convention on human rights. Amendment 30 simply seeks to rectify that.

I ask members to support amendment 30 and oppose all other amendments in the group.

John Finnie

I will try to be brief. It is important to say that the extension of the existing offence of stirring up racial hatred to cover other characteristics is to be welcomed. It seems to me that it does not matter how mildly Mr Kerr wants to revisit the matter, the idea—particularly coming from a unionist—that our communities would have less protection from elsewhere in the United Kingdom is at best confusing, which I think is the word that the cabinet secretary used.

In relation to the dwelling offence, I will not reiterate what the cabinet secretary said. Of course, there is the sanctity of a dwelling, but that does not mean that there cannot be state intrusion when that is appropriate. If a local family of neo-Nazis are getting together to discuss their vile deeds, the location is irrelevant—it is about how the hatred manifests. We must protect our communities.

We have heard various examples of what could happen if Mr Kerr’s amendments to remove the stirring-up provisions were agreed to. In a briefing that we have been given, there is the example of leaflets being put through doors. On one side of the leaflet was an image of a mannequin being hanged; the other side said that the only debate about homosexuality was about how to carry out the execution. The leaflet also called for the death penalty. That was clearly threatening and intended to stir up hatred. We need to be cautious of whom we are pandering to.

Liam McArthur (Orkney Islands) (LD)

I am grateful to Adam Tomkins and Liam Kerr for allowing Parliament as a whole the opportunity to consider the so-called dwelling defence, or as Adam Tomkins referred to in with regard to his amendment, a privacy defence.

I am afraid that, in pursuing their objective, amendments 32 and 33 get rather lost down a rabbit hole. However, amendment 5, in the name of Adam Tomkins, better reflects the point of principle that is at stake. He has talked with great force and some persuasiveness about how the bill should not engage with discussions that take place around the family dinner table. As a liberal, I tend to agree with that sentiment, which—as he reminded us—is reflected in one of the recommendations that the committee reached unanimously.

However, I do not think that amendment 5 would give effect to what Adam Tomkins is seeking to achieve. To avoid the rabbit hole down which Liam Kerr’s amendments have disappeared, Adam Tomkins has opted for a broader definition of the protection that he seeks to afford. Unfortunately, that leads to the opposite problem of vagueness, which opens up the potential for unintended consequences and loopholes that could be exploited for all manner of behaviour that I know Adam Tomkins would be the first to condemn and abhor.

In the digital age, the effects of actions and speech that take place behind closed doors can be more far-reaching than was the case when such a dwelling defence might have been more reasonably argued. Moreover, it is worth bearing it in mind that the right to privacy under article 8 of the European convention does not preclude the application of criminal law in private spaces, as the cabinet secretary reminded us. If that were the case, laws that protect people from assault, domestic abuse, threatening or abusive behaviour or sexual offences would be hard to prosecute if the conduct occurred in private. Why should stirring up hatred be different?

I recognise and respect the genuine and legitimate concerns that Adam Tomkins seeks to address through his amendment 5. Liam Kerr’s motivations, as evidenced by his amendments, 6, 7, 8, 9, 10, 15 and 31, appear to be rather different. On balance, the changes would risk doing more harm than good. The idea that private places should be sanctuaries for harmful behaviour requires to be challenged. On that basis, the Scottish Liberal Democrats cannot support amendments 5, 32, 33 or amendments, 6, 7, 8, 9, 10, 15 and 31, from Liam Kerr.

Neil Bibby

Part 2 of the bill has been one of its most controversial elements. We acknowledge and welcome the significant amendments that the Justice Committee made at stage 2 to strengthen the provisions in the bill. By introducing the reasonable person test and a requirement to prove intent to stir up hatred, the provisions are now stronger and have a higher legal threshold than the current stirring up hatred offences in the Public Order Act 1986.

However, we have carefully considered additional amendments at stage 3 to provide further clarity and reassurance. There has been much debate around the decision not to include a dwelling defence, as is currently provided for in the 1986 act. As Liam Kerr said, there are real questions about enforceability.

We understand the evidence, which was brought forward and reiterated by the cabinet secretary and Liam McArthur, that a dwelling defence does not exist for other criminal acts in Scotland but, as Adam Tomkins believes, we believe that there must, in criminalising speech in particular, be due regard given to the rights that are afforded under the ECHR.

I note the view of Dr Andrew Tickell, who told the Justice Committee that although he was not convinced of the need for a dwelling defence, consideration might be needed for “a requirement of publicity” to comply with the ECHR, as is now required for common-law breach of the peace. I am persuaded that Adam Tomkins’s amendment 5 strikes that balance to ensure that there must be a public element to the offence and to clarify the right to a private life under article 8 of the ECHR. Therefore, we will support amendment 5, although we will not support amendments 32 or 33.

There were significant amendments at stage 2, with further amendments being determined today at stage 3. We believe that part 2 of the bill is necessary and that it provides the legal protections that are required, so we will not support amendment 6—or the other amendments from Liam Kerr—to remove it from the bill. We will also support amendment 30 in the name of the cabinet secretary.

Liam Kerr

I thank members for their contributions to the debate and I associate myself with the cabinet secretary’s opening remarks about respectful debate.

I will quickly address some of the points that have been raised. On the dwelling or privacy defences, the cabinet secretary raised the concern, which he expressed at stage 2 and in response to Adam Tomkins, that people could be invited into a home and hatred could be stirred up, with no criminality attaching to the home owner. I do not think that that stacks up, because I have drafted my amendments, as has Adam Tomkins, precisely to ensure that the home owner cannot do that. MSPs will have noted Adam Tomkins’s intervention on that matter to the cabinet secretary.

The cabinet secretary also said that he is concerned about people intentionally stirring up hatred from the privacy of their house, perhaps through remarks made in the media and on the internet, because that defence would potentially protect them. Again, I do not think that that stacks up because, as the cabinet secretary will have noted, Free To Disagree pointed out that people who publish vile statements online could already be committing a crime, so I cannot see that that is an argument against a dwelling defence.

In any event, I remind the cabinet secretary and the chamber that Lord Bracadale, whose review formed the basis of the bill, told the Justice Committee that concerns about extending public order offences into purely private settings are “well founded”.

Adam Tomkins reminded us that the all-party committee was unanimously clear in its stage 1 report, which says:

“care also needs to be taken that people are not investigated for, charged with, or prosecuted for, offences based on their personal views, however abhorrent others may consider them to be, if the expression of those views took place in a private space, such as their own house, and there was no public element.”

The committee was unanimous, and it was correct.

Adam Tomkins hit the mark. The bill is called the Hate Crime and Public Order (Scotland) Bill; there has to be a public element. Without it, we will be policing private thought. That is precisely what the bill should not be doing.

Finally, on the dwelling or privacy defence, given that Lord Bracadale, the Law Commission in England and distinguished legal experts support such a provision, and given that existing laws catch harassment, threatening or abusive behaviour and breach of the peace, I cannot understand why the cabinet secretary is so opposed to it. His arguments do not defeat theirs, so I will press the amendments.

On removal of part 2, I have listened carefully to the points that have been made across the chamber. I readily acknowledge how far the bill has come in its development. However, the bill—even in amended form—does not allay the concerns that have been raised by many people.

I listened to the concerns that several members raised about the protections if part 2 was not there, but none of what we heard changes the fact that something is already there, as Adam Tomkins said. I lodged amendment 31, which would reinstate the existing protections that are provided by the Public Order Act 1986, precisely to ensure that there would be no reduction in existing protections should my amendments be agreed to.

The Criminal Justice and Licensing (Scotland) Act 2010 covers “threatening or abusive” conduct. Statutory aggravators already attach greater severity to crimes that are motivated by hatred against others. By way of example, I note that support for my position comes in the Government’s financial memorandum, which states:

“the conduct in question would already constitute existing criminal offences such as breach of the peace or threatening or abusive behaviour.”

We must make law to protect people, but we must also make good law—law that does what it needs to do without unintended consequences. That is what I seek to do through my amendments.

I press amendment 32.

The Presiding Officer

The question is, that amendment 32 be agreed to. Are we agreed?

Members: No.

The Presiding Officer

There will be a division. Members may exercise their vote now.

The vote is now closed. Please let me know if you were not able to vote.

Alison Johnstone (Lothian) (Green)

On a point of order, Presiding Officer. I was unable to vote. I would have voted no on amendment 32.

The Presiding Officer

Thank you, Ms Johnstone. I will make sure that your vote is added to the vote list.

For

Balfour, Jeremy (Lothian) (Con)
Ballantyne, Michelle (South Scotland) (Reform)
Bowman, Bill (North East Scotland) (Con)
Briggs, Miles (Lothian) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Carlaw, Jackson (Eastwood) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Chapman, Peter (North East Scotland) (Con)
Corry, Maurice (West Scotland) (Con)
Davidson, Ruth (Edinburgh Central) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Greene, Jamie (West Scotland) (Con)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Harris, Alison (Central Scotland) (Con)
Kerr, Liam (North East Scotland) (Con)
Lindhurst, Gordon (Lothian) (Con)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Mason, Tom (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Scott, John (Ayr) (Con)
Simpson, Graham (Central Scotland) (Con)
Smith, Liz (Mid Scotland and Fife) (Con)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Tomkins, Adam (Glasgow) (Con)
Wells, Annie (Glasgow) (Con)
Whittle, Brian (South Scotland) (Con)

Against

Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Bibby, Neil (West Scotland) (Lab)
Boyack, Sarah (Lothian) (Lab)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Finnie, John (Highlands and Islands) (Green)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Gray, Iain (East Lothian) (Lab)
Greer, Ross (West Scotland) (Green)
Griffin, Mark (Central Scotland) (Lab)
Harper, Emma (South Scotland) (SNP)
Harvie, Patrick (Glasgow) (Green)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Johnson, Daniel (Edinburgh Southern) (Lab)
Johnstone, Alison (Lothian) (Green)
Kelly, James (Glasgow) (Lab)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lamont, Johann (Glasgow) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Lochhead, Richard (Moray) (SNP)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Macdonald, Lewis (North East Scotland) (Lab)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Marra, Jenny (North East Scotland) (Lab)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Matheson, Michael (Falkirk West) (SNP)
McArthur, Liam (Orkney Islands) (LD)
McDonald, Mark (Aberdeen Donside) (Ind)
McKee, Ivan (Glasgow Provan) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
McNeill, Pauline (Glasgow) (Lab)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Rennie, Willie (North East Fife) (LD)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Rumbles, Mike (North East Scotland) (LD)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Russell, Michael (Argyll and Bute) (SNP)
Sarwar, Anas (Glasgow) (Lab)
Smith, Elaine (Central Scotland) (Lab)
Smyth, Colin (South Scotland) (Lab)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, David (Highlands and Islands) (Lab)
Stewart, Kevin (Aberdeen Central) (SNP)
Swinney, John (Perthshire North) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Wightman, Andy (Lothian) (Ind)
Wishart, Beatrice (Shetland Islands) (LD)
Yousaf, Humza (Glasgow Pollok) (SNP)

Abstentions

McAlpine, Joan (South Scotland) (SNP)

The Presiding Officer

The result of the division is: For 30, Against 89, Abstentions 1.

Amendment 32 disagreed to.

Amendment 33 moved—[Liam Kerr].

The Presiding Officer

The question is, that amendment 33 be agreed to. Are we agreed?

Members: No.

The Presiding Officer

There will be a division.

For

Balfour, Jeremy (Lothian) (Con)
Ballantyne, Michelle (South Scotland) (Reform)
Bowman, Bill (North East Scotland) (Con)
Briggs, Miles (Lothian) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Carlaw, Jackson (Eastwood) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Chapman, Peter (North East Scotland) (Con)
Corry, Maurice (West Scotland) (Con)
Davidson, Ruth (Edinburgh Central) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Greene, Jamie (West Scotland) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Harris, Alison (Central Scotland) (Con)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Kerr, Liam (North East Scotland) (Con)
Lindhurst, Gordon (Lothian) (Con)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Mason, Tom (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Scott, John (Ayr) (Con)
Simpson, Graham (Central Scotland) (Con)
Smith, Liz (Mid Scotland and Fife) (Con)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Tomkins, Adam (Glasgow) (Con)
Wells, Annie (Glasgow) (Con)
Whittle, Brian (South Scotland) (Con)

Against

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Bibby, Neil (West Scotland) (Lab)
Boyack, Sarah (Lothian) (Lab)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Finnie, John (Highlands and Islands) (Green)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Gray, Iain (East Lothian) (Lab)
Greer, Ross (West Scotland) (Green)
Harper, Emma (South Scotland) (SNP)
Harvie, Patrick (Glasgow) (Green)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Johnson, Daniel (Edinburgh Southern) (Lab)
Johnstone, Alison (Lothian) (Green)
Kelly, James (Glasgow) (Lab)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lamont, Johann (Glasgow) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Lochhead, Richard (Moray) (SNP)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Macdonald, Lewis (North East Scotland) (Lab)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Marra, Jenny (North East Scotland) (Lab)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Matheson, Michael (Falkirk West) (SNP)
McArthur, Liam (Orkney Islands) (LD)
McDonald, Mark (Aberdeen Donside) (Ind)
McKee, Ivan (Glasgow Provan) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
McNeill, Pauline (Glasgow) (Lab)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Rennie, Willie (North East Fife) (LD)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Rumbles, Mike (North East Scotland) (LD)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Russell, Michael (Argyll and Bute) (SNP)
Sarwar, Anas (Glasgow) (Lab)
Smith, Elaine (Central Scotland) (Lab)
Smyth, Colin (South Scotland) (Lab)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, David (Highlands and Islands) (Lab)
Stewart, Kevin (Aberdeen Central) (SNP)
Swinney, John (Perthshire North) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Wightman, Andy (Lothian) (Ind)
Wishart, Beatrice (Shetland Islands) (LD)
Yousaf, Humza (Glasgow Pollok) (SNP)

Abstentions

McAlpine, Joan (South Scotland) (SNP)

The Presiding Officer

The result of the division is: For 30, Against 90, Abstentions 1.

Amendment 33 disagreed to.

The Presiding Officer

Group 3 is on freedom of expression. Before I call amendment 1, in the name of Adam Tomkins, I highlight to members that we are exactly 45 minutes behind where we thought that we would be at this stage and that we are already scheduled to run until 8 o’clock. I recognise that these are important matters about which members feel strongly, but if members could curtail their remarks slightly, that would be helpful.

Amendment 1, in the name of Adam Tomkins, is grouped with amendments 2, 3, 11, 11G, 11B, 11C, 11D, 11E, 11F, 13, 14, 34, 16, 18, 19, 20 and 22.

Adam Tomkins

We come now to the core issue that the bill confronts. I fear that, despite what you have just said, Presiding Officer, my remarks might take some time. However, I hope that members will feel that they can speak freely about the issue.

The core issue is how to legislate effectively against hate crime while at the same time protecting freedom of speech. That is a dilemma on the horns of which the bill has been caught since it was first introduced, and it is still not resolved. We have, however, come a long way and, in order to set the debate on this group in context, I will briefly remind the chamber of the moves that have already been made to bring the bill into line with freedom of expression.

First, all the stirring-up offences, other than with regard to race, can be committed only intentionally. If someone is merely reckless as to whether hatred will be stirred up, that will not be enough to trigger the criminal law; they must intend it. Secondly, specific offences relating to theatres and public performances have been removed from the bill entirely. Likewise, the offence of possessing inflammatory material that may stir up hatred has been removed from the bill. All those changes were made because of the huge volume of concerns about free speech that the bill as introduced generated.

At stage 2, a further and, to my mind, critical change was made. All the stirring-up offences were amended so that they can be committed only where a reasonable person would consider behaviour to be threatening or abusive. From a free speech perspective, that is the single most important change that the bill has undergone. Just because someone feels threatened or abused will not be enough to trigger criminal liability, unless a reasonable person would find the behaviour to be threatening or abusive.

Johann Lamont

Does Mr Tomkins accept that, in some contexts, the “reasonable” person would be directed by an institutional drive to have a particular attitude and that, for some women, the idea of the test of a reasonable person is not sufficient?

Adam Tomkins

I certainly accept that some women have forcefully expressed that view on social media and elsewhere, and I will go on to address it directly in my remarks.

Essential though that change of reasonableness is, and welcome as it is, even that does not go far enough to ensure that the bill can operate in a way that fully respects freedom of speech. There has been much to-ing and fro-ing about how the bill should reflect and incorporate that all-important free speech principle.

Some commentators have quite wrongly said that this aspect of the bill has been rushed. That could not be further from the truth. The Justice Committee took extensive evidence on the free speech implications of the bill at stage 1 and wrote about that evidence at length in the stage 1 report. At stage 2, although most of the amendments relating to free speech were not pressed to a vote, there was a very full and open debate on the issues. That debate, as ever in the Justice Committee, was conducted both robustly and respectfully. After stage 2 was completed, the cabinet secretary published a number of options for a free speech provision to be added to the bill. We published a full and open call for evidence on those options and we were delighted to be able to host a public round table with a broad range of stakeholders and expert witnesses to discuss those with the cabinet secretary.

I do not know of any issue, relating to any bill passed in this session, that has been subject to more scrutiny—and to more detailed and expert scrutiny—than the free speech implications of this bill.

That brings me to the substance of the amendments before us. I welcome amendment 11, in the name of the cabinet secretary, and will vote for it, but on its own and in the context of this particular bill, it does not go quite far enough. I shall explain why.

Amendment 11 provides that, as regards the protected characteristics of age, disability, sexual orientation, transgender identity, and variations in sex characteristics, behaviour or material is not to be taken as being threatening or abusive if it involves discussion or criticism of matters relating to those characteristics. To be clear, and coming to the point that was raised by Johann Lamont, it will not be a hate crime to criticise aspects of policy relating to transgender identity and it will not be a hate crime to discuss whether marriage, or the adoption of children, should be extended to same-sex couples.

So much fear has been stoked in relation to those matters that it is important to set that out. Criticising policy relating to transgender identity is not a hate crime under the bill. Even if you express yourself in a manner that others find transphobic, it is not a hate crime to discuss or to criticise matters relating to transgender identity.

Elaine Smith

For clarity on that point, would your amendment mean that a woman could be sure that she would not be treated as being abusive or threatening solely for saying things such as the following: “There are two sexes, and people can’t change sex.” “A woman is an adult human female.” “Male people shouldn’t play women’s sports.” “Access to single-sex spaces like changing rooms should be based on sex, not gender identity.” “Women’s prisons should only be used for biological women.” Those are just a few examples. I would be grateful if the member could be clear about what amendment 1 means.

Adam Tomkins

Those questions go to the heart of the issue and I very much welcome the fact that we are having the debate here today. I want to address those questions.

If you want to argue—or even to campaign robustly—for women’s sex-based rights, or to argue that sex is immutable or is binary, you are not committing a hate crime, even if someone else is offended, shocked or disturbed by what you say. Even if someone else is very upset by what you say and accuses you of transphobia, you are not committing a hate crime unless you cross that threshold of saying something that is not merely offensive but is something that a reasonable person would hold to be threatening or abusive in a manner that intends to stir up hatred. That will be the effect of the bill if the cabinet secretary’s amendment 11 is accepted by the Parliament and if my amendment 1, which I am now speaking to, is also accepted. I will turn to the detail of those amendments.

Amendment 11 makes additional provision relating to religion. It provides not only that “discussion or criticism” of religion is not to be taken as threatening or abusive behaviour but that

“expressions of antipathy, dislike, ridicule or insult”

are not to be taken as threatening or abusive as regards religion. With that, the bill will bring into Scots law the free speech safeguards as regards religion that already exist in the law of England and Wales.

However, it is to be noted—this goes directly to the point that Elaine Smith makes—that, under amendment 11,

“expressions of antipathy, dislike, ridicule or insult”

are protected as free speech only as regards religion, and not as regards any of the other protected characteristics. Therefore, speech that is so critical of, for example, policy relating to transgender identity that it crosses the line and may be regarded as an expression of antipathy or dislike will not be protected by the cabinet secretary’s amendment.

That is where my amendments 1, 2 and 3 come in. My amendments, which are not probing amendments—I intend to press them—are designed to sit alongside and complement the cabinet secretary’s amendment 11. There is nothing in any of them that cuts across his policy intentions or objectives. They represent three different ways of seeking to achieve the same thing. We do not need them all; we need only one of them. If amendment 1 is agreed to, I will not move amendments 2 or 3. If amendment 2 is accepted, I will not move amendment 3.

The aim of all three amendments is to clearly distinguish in the bill the threatening or abusive behaviour that we are seeking to criminalise from speech that is, as it were, merely offensive, shocking or disturbing, which should not be caught by the criminal law.

Let me explain a little more about that distinction, Presiding Officer. My right to free speech extends to and includes speech that you might find offensive, shocking or disturbing. I do not have the right to express myself in a way that threatens or abuses you, but if, short of that, I choose to speak in a way that upsets, shocks, disturbs or offends you, that is too bad.

Those principles are fundamental to the way in which the European Court of Human Rights understands the right to freedom of expression in article 10 of the ECHR. Indeed, the words “offend, shock or disturb” in my amendments are lifted directly from that court’s case law, which has been endorsed and read into our law by the courts here in Scotland, as has happened elsewhere in the United Kingdom. This could not be more important. As the English judge Lord Justice Sedley said in one of the leading cases, the right to speak only inoffensively or in a manner that the state approves of is not worth having. That is not free speech at all. It is controlled speech, or licensed speech.

Happily, in the context of the bill, those principles have been uncontroversial, uncontested and accepted by all. The cabinet secretary endorsed them when he gave evidence to the Justice Committee in October, and the committee, in turn, did likewise, again unanimously.

However, it is not enough that we all think and say that the bill does not seek to criminalise speech that others may find offensive, shocking or disturbing but which does not meet the threshold of being threatening or abusive. It would not even be enough to say that in the bill’s explanatory notes. We need to write it into the bill, and I am offering Parliament three different ways of doing that. The first—amendment 1—is based on wording in the Human Rights Act 1998, the second is based on wording in the European Communities Act 1972 and the third is based on wording in the Public Order Act 1986.

Neil Findlay (Lothian) (Lab)

The member is making an excellent speech. I have said very little on the bill as it has gone through Parliament, and that is why I am in the chamber to listen to stage 3 today. However, the more I have heard, the more concern it has caused me. I think that many of us, if we are being honest, believe that there should be a form of hate crime legislation but how it is being done in the bill is not it. Many people—out in the community and in here—would want the Government to withdraw the bill so that whichever party wins the election could come back with properly thought-out legislation that carries not only an overwhelming majority in this place but the confidence of the people who are victims of hate crime.

Adam Tomkins

That is exactly the position of the Scottish Conservatives—I welcome Mr Findlay aboard. That would be the effect of amendment 6, which was moved by my friend and colleague Liam Kerr and was debated in the previous group.

Amendments 1 to 3 are three different ways of achieving the same policy ambition. My preference is for the first formulation, which provides that when considering whether behaviour was reasonable, as the bill requires the courts to do, the courts must have regard to the right to freedom of expression, including the general principle that that right extends

“to the expression of information or ideas that offend, shock or disturb.”

The formulation in amendment 1 has been carefully drafted. Its language is drawn directly from, and mirrors, the Human Rights Act 1998, article 10 of the ECHR itself, and the European Court’s key case law on free speech. As I said, the amendment is designed to sit alongside and to work with the cabinet secretary’s amendment 11. It writes into our law core principles of free speech that were unanimously accepted and endorsed by this Parliament’s all-party Justice Committee in its stage 1 report on the bill. I very much hope, therefore, that Parliament will be able to accept both my amendment 1 and the cabinet secretary’s amendment 11.

Elaine Smith

It boils down to this: what is a reasonable person? Could the member perhaps answer that? It may be that an MSP is a reasonable person but they objected last week to speeches as being transphobic that other members thought were reasonable. That is the first thing. Would the principal of the University of Edinburgh be considered a reasonable person? He has reported stickers that say “adult human female” to the police. We have to understand what a reasonable person is.

Adam Tomkins

I completely agree, which is exactly why I am moving my amendment. Relying on the idea of a reasonable person is essential, but it is not enough. In addition to that, we need to specify in the bill exactly what we mean. What we mean is that, just because someone is offended by what I have to say with regard to transgender identity or any of the other protected characteristics, that does not mean that I am committing a hate crime. Yes, they can go off and call me transphobic if they want, but that does not mean that I am committing a hate crime. Someone’s sense of being offended, shocked or disturbed by what I have said might very well upset them, but it does not trigger the criminal law. Relying on a test of reasonableness alone—important and essential though that is—does not do the job, which is why I am saying that, in addition to that, we need to legislate expressly to say that speech that is offensive, shocking or disturbing does not meet the criminal threshold. The criminal threshold is threatening or abusive speech that intends to stir up hatred and in the circumstances is not reasonable.

If the cabinet secretary’s amendment 11 and my amendment 1 are both accepted by the Parliament, there will, with respect, be no need for any of the amendments to amendment 11 that have been lodged by Joan McAlpine and Johann Lamont. The substance of what Joan McAlpine wants to do in her amendment 11G will be done by my amendment 1, but in a manner that works with, rather than cuts across, what the cabinet secretary is seeking to achieve. The specific examples of speech that ought to be permitted that are in Johann Lamont’s amendments, which Elaine Smith has put to me during the course of this speech, will not need to be written into the law, because it will be clear in each case that the combination of amendments 1 and 11 already have the effect that Johann Lamont is seeking to achieve.

I urge the Parliament to accept my amendment 1, the cabinet secretary’s amendment 11 and the consequential amendments in our names: amendments 13, 14, 34, 16, 18 to 20 and 22. If those amendments are accepted, it follows that amendments 11G, 11B, 11C, 11D, 11E and 11F, in the names of Joan McAlpine and Johann Lamont, do not need to be pressed.

I move amendment 1.

Humza Yousaf

I will speak to amendment 1 and all the other amendments in the group, but I would not mind addressing Neil Findlay’s point first—and I am happy for him to come back in an intervention. He said that he has spoken to victims of hate crime and that they do not want the bill. I have no idea who on earth he has talked to. BEMIS, which is one of the national racial equality organisations, sent round a letter that said that it supports the bill, and 20 organisations signed up to that. The Muslim Council of Scotland, the Scottish Council of Jewish Communities, the Humanist Society Scotland, Scottish Women’s Aid, Victim Support Scotland—

Neil Findlay

On a point of order, Presiding Officer. We have a duty to be accurate in the Parliament. I never said what the cabinet secretary has just accused me of saying. I say to him: please correct the record.

The Presiding Officer

That is not a point of order, Mr Findlay; it is an argument.

Humza Yousaf

I would have given way after I finished my point. I am happy to look back on what Neil Findlay said, but he said, in a way, that the bill is not supported by victims of hate crime, and I tell him that it is supported by victims of hate crime. I have just read out a list, and I could go on. I gently suggest to him that, when he is purporting to speak on behalf of victims of hate crime, he should speak to the organisations that have represented victims of hate crime for many years.

I agree with many members who have spoken about the issue that we are discussing during the parliamentary process. Some have argued that there is a tension between hate crime law and freedom of expression, but I am not persuaded by that. I do not think that the two have to be mutually exclusive, and I think that there can be strong protections in law against hate crime and strong freedom of expression provisions.

Let me state very clearly that the bill has never been about prosecuting the offensive. In fact, the word “offensive” does not appear in the bill. I and others might find a person’s speech to be distasteful, abhorrent and deeply offensive, but that in itself is not a ground for prosecution under the bill.

The bill is fundamentally different from what it was when it was introduced to the Parliament. Many changes have been made; Adam Tomkins articulated some of them well, particularly in relation to the stirring up of hatred offences in part 2. The bill now requires the following: that there is an intention to stir up hatred; that the court will objectively assess whether behaviour or material is threatening or abusive; that each element of the stirring up of hatred offences is to be proven beyond reasonable doubt with corroborated evidence; and that there is the availability of a reasonableness defence.

The convener of the Justice Committee articulated things well when he said:

“The way in which the scope of those offences has been narrowed and sharpened will do much more to protect and reassure than any formulation of words about freedom of expression”.—[Official Report, Justice Committee, 22 February 2021; c 29-30.]

I agree. The amendments in my name in the group will complement those safeguards. I agree with Adam Tomkins’s point. We need to have words on the face of the bill that give reassurance to people who have genuine and legitimate concerns about the impact of legislation—particularly, of course, this legislation—on their free speech and freedom of expression.

Amendment 11 was one of the four options that I provided to the Justice Committee for the round-table session. I agree that that was a very good session. The issue has had a lot of scrutiny. I was quite persuaded by what Danny Boyle of BEMIS—an organisation that many members know—said about the harm that could be caused if race were included in any freedom of expression provision. He essentially argued that that freedom of expression provision does not exist in other stirring up of racial hatred offences across the UK, so why is race being included in our discussion? I was convinced by that argument.

Amendment 11 will tie the freedom of expression provision to the operation of the stirring up of hatred offences. It does that by indicating whether certain types of expression used in behaviour or material could in themselves meet the thresholds of the offences. For example, the amendment makes it very clear that criticism of matters relating to transgender identity are not solely to be taken to be threatening or abusive. However, if the criticism was expressed in a way that a reasonable person would consider threatening to trans people or that threatened trans people with violence, that could, of course, still amount to behaviour that is threatening or abusive.

I say to Elaine Smith, who intervened on Adam Tomkins, that none of the statements in the list that she articulated would be prosecuted if they were simply made in a chamber or in discussion, even if that discussion were robust. By the way, the reasonable person test is commonly used in many pieces of legislation; I can write to Elaine Smith with a list of a number of pieces of legislation that use that test.

For such statements to be prosecuted, it would have to be proven that they were made in

“a threatening or abusive manner”.

Even if that test were met—let us say that there was some dubiety about the test—it would still have to be proven, beyond reasonable doubt, that those statements were intended to stir up hatred. Someone who simply and solely—I think that Elaine Smith used the word “solely”—articulated those statements would not be prosecuted, regardless of the robust nature of the discussion.

Amendments 13, 14, 16, 18 to 20 and 22 are consequential to amendment 11.

Before I discuss further amendments in the group, I will reflect on the Justice Committee’s round table on 22 February. We heard very powerful evidence from Iain Smith of Inclusion Scotland. Many colleagues will recall him from his service as a Liberal Democrat MSP. I thought that he spoke incredibly eloquently at the round table on the importance of our freedom of expression provision. He said:

“it important that the bill should send out a clear message about what is and is not acceptable. In that regard, we do not think it appropriate that the bill should list behaviour or language that is acceptable. As I have mentioned, expressions of antipathy, dislike, ridicule or insult are not without consequences for those who are subjected to them. They can legitimise prejudice and lead to more serious consequences, even if that is not intended. ... do we want to say that it is acceptable to ridicule a disabled person who finds it difficult to get on to a bus thereby causing it to be late, or who is prevented from doing their daily shopping because they are subjected to expressions of dislike or insult? I do not think that the Parliament will want to say that for disabled people. Why should it want to say so for any other group in society? We ask members to think very carefully about that.”—[Official Report, Justice Committee, 22 February 2021; c 11-12.]

Amendment 11B, from Johann Lamont, would insert new wording into the freedom of expression provision. It would have the effect of adding new, specific wording on the operation of the provision, so that certain matters that are asserted, and the advancement or rejection of propositions that follows from those assertions, would be explicitly referred to in the provision.

All of the matters that are listed in amendment 11B are covered by the wording of amendment 11, which captures discussion or criticism of matters relating to each of the characteristics, except—crucially—race, which I have already mentioned. I do not think that there is a need to include a laundry list of specific wording, as is suggested. My worry is that, if we do that, we run the risk of suggesting that

“discussion or criticism of matters”—

which is a wide category—somehow does not already encapsulate the matters that are listed by Johann Lamont. If we create a non-exhaustive list, the problem is that it is, by definition, non-exhaustive, so there can be confusion over what is not included in the list. Therefore, I ask members to oppose amendment 11B.

I also agree with Adam Tomkins that, if his amendment 1, which I will speak to shortly, is accepted, there is no need for the other freedom of expression provisions that are being advanced by Joan McAlpine and Johann Lamont. I will explain that Adam Tomkins’s approach in amendment 1, which has regard to freedom of expression—including with respect to the effects of behaviour and material as part of the operation of the reasonableness defence—is a better approach to the issue.

Amendment 11G, from Joan McAlpine, is similar to elements of amendment 11F. It would add wording to the freedom of expression provision in amendment 11, such that, with regard to “discussion” and “criticism” being covered, it would make clear that that included when such discussion or criticism was “perceived as offensive”.

Although I understand what Joan McAlpine is trying to do with her amendment, my concern has always been that such an approach could have the unintended consequence of implying that criticism that is offensive could never be considered abusive, no matter how extreme the offensive nature of that criticism. If behaviour was, by a reasonable person’s definition, threatening or abusive, and it was intended to stir up hatred, it may not be prosecutable because it would also—in most cases, I suspect—be perceived to be offensive.

I turn to Adam Tomkins’s amendments. The Government will support amendments 1 and 34.

Amendment 1 would apply to all the offences of stirring up hatred when a person has been found to have behaved in a way, or communicated material, that was threatening or abusive and that was intended to stir up hatred, and claims that such behaviour or communication of material was reasonable in the particular circumstances. For the offences of stirring up racial hatred, the additional threshold of being insulting and likely to stir up hatred is also covered.

The effect of amendment 1 is that a court would be required to have particular regard to the importance of freedom of expression under article 10 of the ECHR when determining whether a reasonableness defence was made out. In so doing, the court must have particular regard to the general principle that the right to freedom of expression applies to the expression of information or ideas that offend, shock or disturb. It is right for the bill to give that reassurance. A number of stakeholders have expressed concern that their right to shock, offend or disturb might be compromised by the bill. Amendment 1 puts that beyond reasonable doubt and does it by tying it to the reasonableness defence, so that it does not have unintended adverse consequences.

I note that Adam Tomkins said—if I heard him correctly—that if amendment 1 is accepted, he will not move amendments 2 and 3. Therefore, in the interests of time, I will not go into the details of my concerns about those amendments.

Given the concerns that I have expressed, I cannot support amendments 2, 3, 11G, 11B, 11C, 11D, 11E and 11F. I will support amendments 1 and 34 in the name of Adam Tomkins and ask MSPs to support my amendments 11, 13, 14, 16, 18 to 20 and 22.

The Presiding Officer

Before I call the next speaker, I should say that we have just gone past the deadline for group 4 amendments. I invite the Minister for Parliamentary Business and Veterans to move a motion to extend the time limit.

Motion moved,

That, under Rule 9.8.5A, the second time limit (and, as a result, subsequent time limits) be moved by up to 30 minutes.—[Graeme Dey]

Motion agreed to.

The Presiding Officer

We might have to revisit that. [Interruption.]

I call Joan McAlpine to speak to amendment 11G and the other amendments in the group.

Joan McAlpine

I welcome the cabinet secretary’s freedom of expression amendment and will of course support it. I also support amendment 1 in the name of Adam Tomkins. However, I do not think that either amendment goes far enough to protect people from vexatious complaints of hate crime. Adam Tomkins’s amendment might offer a defence in court, which is welcome, but it will not necessarily prevent arrests, accusations or investigations. Both amendments fall short of implementing Bracadale’s recommendation that there need to be clear lines in law between what is criminal and what is not.

I totally oppose threatening and abusive behaviour that stirs up hatred: I am in full agreement with the cabinet secretary on that. It is very clear, however, that many individuals and organisations are concerned that citizens could be falsely accused of such crimes.

The bill’s “reasonable person” safeguard is welcome and will work well in most instances, but it will not work where views are polarised. In particular, the debate around women’s rights and trans identity means that views that might be considered inoffensive and factual by some people will be perceived as hateful and abusive by others. My amendment 11G seeks to address that problem without extending the freedom of expression given to religion to other characteristics, as I am also aware of the unintended consequences that that might have, particularly for the protected characteristic of disability.

I know that it is not the cabinet secretary’s intention to see people falsely accused. He told the Justice Committee:

“People should have the right to be offensive and to express controversial views.”—[Official Report, Justice Committee, 27 October 2020; c 4.]

Amendment 11G puts that reassurance into the bill, within the cabinet secretary’s freedom of expression provision, in a way that is crystal clear and which will help law enforcement. I do not agree with the cabinet secretary’s suggestion that amendment 11G will allow anyone who has been accused of stirring up hatred somehow to get away with it by using the defence that what was said was only perceived to be offensive. In his amendment 11, the words “solely ... involves or includes” would still stand, leaving wide scope for genuine hate crime to be prosecuted even if my amendment 11G were to be agreed to.

Members will have seen from their inboxes that many people share my concerns about the need to strengthen freedom of expression. In particular, women who are concerned about calls that anyone who identifies as female must be accepted as such—“without exception”, to use the words of campaigning groups—have been accused of hate speech, including by people in positions of authority such as politicians. Here I associate myself with Johann Lamont’s earlier remarks about comments made by Patrick Harvie.

Women who have been branded hateful include sportswomen such as Martina Navratilova and Sharron Davies, after they raised concerns about female sports; Jenni Murray, the former presenter of “Woman’s Hour”, who is often considered a national treasure; Germaine Greer; and even J K Rowling, after she disclosed details of her own domestic abuse. They have all been no-platformed and accused of hate. Lesbian feminist philosophers such as Professor Kathleen Stock OBE of the University of Sussex have been subjected to terrible abuse, and the human rights lawyer Professor Rosa Freedman, of the University of Reading, had urine smeared over her office and was followed home.

Even doctors who express concerns about the significant rise in children being medicalised through approaches such as the use of puberty blockers, such as Marcus Evans and David Bell of the Tavistock clinic, have been accused of hate. In England, the criminal defence barrister Allison Bailey, a black lesbian feminist, is currently challenging a very well-known, publicly funded charity that had pressed her employer to take action against her. Some women have already lost their jobs for talking about such issues.

There is absolutely no doubt in my mind that the individuals who have no-platformed, bullied and tried to silence those respected men and women will use hate crime legislation against them—and in doing so they will consider themselves to be perfectly reasonable. Many will be in influential senior positions in public bodies.

A couple of years ago, a spokesperson for Scottish Trans Alliance urged supporters to report as a hate crime the use, in public places in Edinburgh, of feminist stickers opposing the Gender Recognition Act 2004.

Many public authorities, including the police, receive training from trans rights organisations whose definition of hateful behaviour is very wide indeed. In England, groups of police officers have taken public positions on such matters, including some on Merseyside who recently displayed on social media a poster that said:

“Being offensive is an offence”.

The chief constable there later apologised, but clearly there are people in law enforcement and in other senior positions who share such views, all of whom would consider themselves to be reasonable. It would be nice to think that Police Scotland would take a more sensible view—I hope that it will—but good laws should not be made by crossing our fingers.

I believe that my amendment 11G will give clarity to the police and protection to members of the public. For those reasons, I encourage members to support it.

Johann Lamont

I recognise that we are under pressure of time, but unless some members have been absent for the past couple of years they might not have noticed that this is a very serious debate, which is highly contentious. If they are fed up about having to sit and listen to it, perhaps they should not be in the chamber at all, especially if they do not recognise the significance of what we are doing here. [Interruption.] I am sorry if we are boring those members, but I remind them that, as members of the Parliament, it is our responsibility to address such serious questions.

I am happy for members to stay and listen, and perhaps to contribute, but I resent in the strongest terms the implication that we are wasting people’s time by considering the bill. The minister is not saying that, but from their reaction to what the Presiding Officer said earlier it was clear that some members were concerned that we might be taking too long over this. Forgive me, but I am not going to take—[Interruption.]

The Presiding Officer

Order, please.

Bob Doris (Glasgow Maryhill and Springburn) (SNP) rose—

Johann Lamont

Does someone want to come in?

Bob Doris

I thank Johann Lamont for taking this intervention.

I am listening carefully to all the contributions on these amendments, and I greatly value and appreciate them. I am not always agreeing with everything that is said, but I am finding the debate informative and helpful. I would not want Ms Lamont to suggest that I am somehow not engaged with this; I promise her that I am.

Johann Lamont

I apologise for having been rather broad brush, particularly given the bill. We heard groans at the idea that we might be kept here a bit longer. This is a serious matter for all of us. I very much appreciate what Bob Doris said.

I will not go through all the amendments in the group; members will have read my letter already, of course. However, I will talk quickly about some of them and I will make some important points about the whole question of freedom of expression.

Of the amendments in this group, amendment 11B most fully implements Lord Bracadale’s recommendation that the bill should include provisions that help to clarify the line between the criminal and the non-criminal. It puts in the law a range of statements that should not be deemed abusive just in their own right. We have never really had an explanation from the cabinet secretary for his rejection of a number of Lord Bracadale’s recommendations, but that amendment is one of them.

Amendment 11C adds a subsection to the new section contained in amendment 11 on the protection of freedom of expression in relation to religion, expanding it to cover non-religious “beliefs or practices”.

Amendment 11D comprises a new free-standing section that provides that

“Nothing in this Act shall be taken as requiring a person to profess any belief or to use language as if they held any belief.”

It is remarkable that we might feel that we need to put that in legislation.

Amendment 11E adds two new subsections to the section contained in amendment 11. Taken together, those subsections allow

“examples of behaviour or material which is not to be taken to be threatening or abusive”

to be added to that proposed new section, using

“Regulations ... subject to the affirmative procedure.”

Amendment 11F introduces a definition of “discussion or criticism” to make it clear that it

“includes the expression of opinions which have the capacity to offend, provoke, discomfort, shock or disturb, including those expressed as antipathy, dislike, ridicule or insult, and includes the rejection of any belief.”

I recognise that this is a very difficult debate, and I agree with the cabinet secretary, in particular, that the comments by Inclusion Scotland have force, but we should be ensuring that the law does not allow somebody to berate anybody or to deny people their rights. It is not just about speech; that, in my view, would constitute a breach of the peace. Behind that, we should of course have a whole series of measures to address why on earth somebody thinks that that is acceptable behaviour.

I do not want to do anything in particular around the rights of disabled people. I know that they can be targeted and can suffer all sorts of disadvantage. That is the dilemma: it is about finding the balance in ensuring that people are protected from hateful and terrible behaviour while we also have the right to debate ideas.

I sometimes think that folk have now got to a place where they think that demands for freedom of expression are for people on the right or for people who are conservative in their views—socially conservative or whatever. Clearly, some people are making that case on the basis of their particular views at a particular time, which some people may regard as being on the right of the political spectrum. The truth is that we all need protection when it comes to freedom of expression. My party was founded on saying and believing things that, at the time, were regarded as out there or unacceptable.

The women’s movement knows that women had to break barriers and to say things that were seen as unacceptable, that the establishment did not regard as reasonable and that would have been regarded at the time as beyond the pale. We can see in more recent history how social movements—lesbian, gay, bisexual and transgender communities themselves—have said and challenged things that people would have regarded as being beyond the pale. We know that it is necessary for us to have freedom of expression.

I note Adam Tomkins’s amendments. I feel that he is being optimistic in his interpretation of what they would do. A number of tests would still need to be passed, and people would need to be persuaded that someone was being reasonable. They might end up in court, even if they had done something entirely reasonable and even if they were exonerated. People might end up having to face challenges in court, which I do not think it is reasonable to expect from people who are simply expressing a view.

The cabinet secretary talks about the important work that was done at stage 2, and I recognise that. However, even at the round table, where the level of response on freedom of expression was massive, the truth is that, in the positions that were taken by some witnesses, particularly members of the women’s organisations, there was no evidence of a shift.

The cabinet secretary was very good about meeting me and listening to my views, but it did not shift his position. There is a difference between facilitating a debate and moving the debate on as a consequence of what people have said, and I do not think enough has been done in that regard. Therefore, my amendments try to test what it is reasonable for people to be able to say.

I must underline the points that were made so effectively by Joan McAlpine about what the debate is and what the challenges are for many women just now. There are issues about what is regarded as reasonable and acceptable, about what is losing people their jobs and about what is silencing many of our young women, some of whom contact me privately and say, “I cannot do that or say that because, in my work community or social circles, it is utterly unacceptable, and there would be consequences.”

A couple of years ago, I went to a meeting at the University of Edinburgh. I have been going to political meetings for a very long time, and I cannot remember ever being at a meeting that was so conscious of the need for security. It was a women’s meeting, to talk about these issues, and we needed security of a level that I do not recall ever before seeing. That tells us what it is like for a woman who wants to express the views that are set out in the amendments that I have spoken about today. The scale of the challenge, the silencing and the chilling effect is real. It is not that real for me, because I am old, but it is real for younger people who feel that they cannot freely express their views, and I think, with respect, that Adam Tomkins is offering hope but no guarantees.

I will finish on a point on amendment 11B. It provides a clear point of reference in the face of the law for those taking part in debates on sex and gender identity. It puts beyond doubt that asserting, advancing or rejecting certain things should not be treated as being abusive or threatening under the law, based simply on their content. Those things are:

“that ... sex is a physical, binary characteristic that cannot be changed ... that the terms ‘woman’, ‘man’ and related terms refer to sex as such a characteristic”

and

“that a person’s sex may be relevant to that person’s experience or relevant to other persons.”

Members have had a briefing about amendment 11B from the Equality Network, which calls that an “unnecessary laundry list”—what are we women like, with our laundry lists?—of matters relating specifically to transgender identity that

“includes propositions that fundamentally undermine trans people’s long-established right ... to be legally recognised in their transitioned gender.”

It says that it is

“a list of ‘approved’ statements that include attacks on the fundamental rights of one group of people”

and that

“trans people’s rights are open season for attack.”

That is the Equality Network’s interpretation of what other people would regard as an entirely reasonable, legal, logical and sensible thing to say: that there are two sexes. The call for us to be entitled to say that is described as a fundamental attack on the rights of one group of people. Well, I say that sex is a physical, binary characteristic that cannot be changed; that the terms “woman” and “man” refer to sex as such a characteristic; and that a person’s sex may be relevant to that person’s experience or relevant to other persons.

Colleagues, we have a choice: we can give women the protection that they need to talk about their reality in ordinary words safely, or we can endorse the view that just talking about that reality and what it means to them in their own words is, of itself, some form of attack and something to be condemned. I know what my choice is. It is the one that will let me leave this Parliament knowing that I fought right to the end for women’s rights, including the most basic right of all: the right for women to name those rights in their own terms.

I urge members to support the amendments in my name and particularly to support the amendment in Joan McAlpine’s name.

Sandra White (Glasgow Kelvin) (SNP)

I want to touch on amendments 1, 34 and 11. The speeches from Johann Lamont and Joan McAlpine were absolutely excellent. Freedom of expression is for everyone—that is an important part of the bill.

I, too, was a bit concerned about judicial issues and going to court. However, having listened to members’ contributions—Adam Tomkins’s, in particular—I feel that amendment 1 covers most of the issues about which I had a bit of concern. I thank Adam Tomkins for amendment 1 and the cabinet secretary for amendment 11 and others—I am going to support all of those as well as Adam Tomkins’s amendments.

I have two wee questions. First, will the amendments to the bill apply to someone who happens to communicate or say something about a Government in another country and cover that against being a hate crime? That is very important to me, because I look at things internationally, not just in Scotland.

Secondly—perhaps the cabinet secretary will answer this—in talking about the bill and about how it is going to go through, members have raised the issue of people knowing about the bill. I suggest—I am sure that it will be in the bill—that, if we are going through with the bill, and particularly when it comes to freedom of expression, we need to ensure that Police Scotland officers are trained and told about the legislation and how they should approach it. I also think that the Crown Office and Procurator Fiscal Service has to be trained and educated about it. Most important, the general public has to be educated on what exactly the bill means—in particular, for freedom of expression.

I will leave it at that—whether the bill covers the two things that I have asked about.

Neil Bibby

There has been widespread concern and debate about the potential effects of part 2 of the bill on freedom of speech. Although there are strong protections against hate crime in the bill, it is important that there is clarity about what sort of speech is protected. Scottish Labour welcomes amendments that seek to provide such clarity and that provide further reference to existing protections on freedom of speech that are afforded by the ECHR—by article 10, in particular.

We support the Government’s amendment 11, which provides for general freedom of expression whereby

“discussion or criticism”

of any of the protected characteristics is not in and of itself to be taken as

“threatening or abusive.”

It is important that there is a general provision for that, rather than specific provisions that are aimed at specific groups—other than for religion, the provision for which is slightly different but widely accepted.

We also support the technical and consequential amendments in the name of Humza Yousaf, which replace the existing freedom of expression provisions and clarify the language in the bill.

We also support Adam Tomkins’s amendment 1 and his consequential amendment 34. Amendment 1 provides further clarity on rights under article 10 of the ECHR and reminds the police and the courts that, in the enforcement of the provisions, due regard must be had to those rights. Those rights under the ECHR are well established and well understood by the courts. They apply to

“information or ideas that offend, shock or disturb.”

I welcome the clarity that amendment 1 provides, and it is important that Parliament supports it.

In confirming our support for amendment 11, I noted that we believe that there should be a general freedom of expression provision. In general, it is bad law for legislation to be so prescriptive about what is allowed, as any text cannot cover every eventuality. We believe that general provisions such as those in amendment 1 better protect freedom of expression than non-exhaustive lists, which might be relevant only in the context of current political debate, so we cannot support amendments 11B and 11E. We accept that there will be deeply held or contested views on some of the characteristics that are protected under the bill, but we are not certain that that will be the case for all—for example, for age and disability. For that reason, we cannot support amendment 11C.

Finally, we will support amendment 11G, in the name of Joan McAlpine, and amendments 11D and 11F, in the name of Johann Lamont. Although those amendments may not be strictly necessary—especially should amendments 1 and 11 be agreed to—we believe that they will provide additional clarity and reassurance in the bill.

John Finnie

I thank Adam Tomkins. I am a member of the Justice Committee, and Mr Tomkins gave a very accurate résumé of the progress—yes, the progress—that has been made on the bill. I am sure that he will confirm that absolutely no one has been in touch to say that they were not in favour of freedom of expression, and he has rightly identified that fear has been stoked about the issue. I ask his colleagues to reflect on any role that they may have played in that stoking.

What we have is a threshold and a high bar, which has been raised as we have gone along. I perhaps have more confidence than some of my colleagues in the police’s judgment in dealing with reported incidents and in the Crown Office and Procurator Fiscal Service’s approach to prosecution.

It is disappointing that some people characterised the everyday operation of our legislature, with on-going talks between parties and the Government to resolve issues, as sinister. The convener and the cabinet secretary are to be commended for their work. There was extensive consultation and additional evidence was taken.

The Scottish Greens will be happy to support amendment 1, in Adam Tomkins’s name, and amendment 34, which will provide additional assurance. It is important that the court will have “regard” to the provisions. Likewise, we support amendment 11, in the name of the cabinet secretary, which is a product of the engagement to which I referred and which makes it clear that legitimate comment or criticism—including opposition to proposed reforms to gender recognition law—will not fall foul of the law.

The purpose of a freedom of expression provision is to provide the assurance that means that self-censorship is avoided when it comes to legitimate free speech, but that is not to carve a hole in the stirring-up offence. Should amendments 1 and 11 be agreed to, they will cover all discussion and criticism of any matters that relate to any characteristic.

Amendment 11B would add a list of matters that relate specifically to transgender identity. A previous speaker used a quotation, but it was not a complete quotation, so I will add an important word: it was about the inclusion of provisions that fundamentally undermine transgender people’s long-standing “convention” right to be legally recognised in their transitioned gender. Gender recognition has enabled trans women to be legally recognised as women for all purposes since 2004. Recognition has been in place longer when it comes to many areas, such as for the purpose of passports, driving licences and medical records.

Of course, people should be free to discuss and criticise that fundamental human right without being criminalised, unless they do so in a way that is objectively threatening or abusive and intended to stir up hatred. Amendment 11 already provides that reassurance. As the Equality Network said,

“to add into legislation a list of ‘approved’ statements that include attacks on the fundamental rights of one group of people is entirely wrong.”

I agree.

The Presiding Officer

I apologise for interrupting the flow of the debate on this group, but we are again up against the time limit that has been set for the debate. Let me explain what has to happen. Normally, we can allow only an extra 30 minutes for a debate, so we have to suspend the standing orders and then ask for another 30 minutes.

Neil Findlay

On a point of order, Presiding Officer. Can you advise us about timings? Some members are not allowed to stay over and must take public transport, and the trains are running on a limited timetable. If we are going to stay late, that is fine. We just need to know that very early, so that we can arrange accommodation or whatever.

The Presiding Officer

We are not at that stage at all, Mr Findlay. We voted this afternoon, before we started to consider the amendments, on a timetable for the debates at stage 3 that anticipated that we would finish considering the amendments at around 7 o’clock and then finish the subsequent debate at around 8 o’clock. We are running roughly 45 minutes behind, and we have extended for half an hour, but I am going to ask the Minister for Parliamentary Business and Veterans to move a motion to extend the debate for a further half hour.

I implore members to try to curtail their remarks a little so that we can catch up, but I recognise that this is an important debate and I want to allow time for it.

Minister, I am minded to accept a motion without notice to suspend the final sentence of rule 9.8.5A.

Motion moved,

That the last sentence of Rule 9.8.5A be suspended.—[Graeme Dey]

Motion agreed to.

The Presiding Officer

I am now minded to accept another motion without notice to extend the time limit by a further 30 minutes.

Motion moved,

That the second time limit (and, as a result, subsequent time limits) be moved by up to a further 30 minutes.—[Graeme Dey]

Motion agreed to.

Liz Smith (Mid Scotland and Fife) (Con)

On a point of order, Presiding Officer. I seek guidance on timings. This is one of the best debates that I have heard in the Parliament, and it is important that members are allowed to have their say on these important issues. I foresee several extensions to the timings. Can some guidance be provided on what the finish time might be?

The Presiding Officer

It is very difficult to say. The group that we are on now is perhaps one of the most contentious; others may not be quite as robustly debated, but we will see. Like you, Ms Smith, I recognise the need to debate these matters properly and fully, allowing members the chance to express themselves. I therefore ask that members try to do so concisely, if they can. I am not asking members not to speak, just to do so concisely.

Johann Lamont

On a point of order, Presiding Officer. As someone who is perhaps one of the culprits, I wonder whether it is possible for you to take soundings about moving the debate after the stage 3 amendments to tomorrow or to a point that parties could agree. That would mean that we could concentrate on the amendments without feeling that the last bit would be rushed or that it would be keeping people back. I appreciate that people have caring responsibilities.

The Presiding Officer

I recognise that point of order. I have already taken soundings on the issue and, at that stage, business managers were not minded to move the debate. However, things might change as the evening progresses, so I will take soundings again on the issue. I stress again that these technical matters about process should not get in the way of the debate. It is very important that members have the confidence to express themselves and feel satisfied with the nature of the debate. As far as I am concerned, that is what is happening at the moment.

We move back to the debate, and I call Jenny Marra to be followed by Patrick Harvie.

Jenny Marra (North East Scotland) (Lab)

I am glad that the Presiding Officer said that, because I am keen to express myself as fully as I feel is necessary. Amendment 1 in the name of Adam Tomkins is helpful, but it does not go far enough. I speak in support of the amendments that have been lodged by my colleague Johann Lamont.

Hate is now such a contested term, and I am worried that members of the Parliament are complacent about the atmosphere in which women are currently arguing that sex continues to matter in shaping their experiences of the world. I know that from my experiences over the past two years. I was branded online as hateful for questioning NHS Scotland’s policy that stated that a baby’s gender was assigned at birth. I know that not to be true and that my son’s own sex was clearly observed and recorded at birth, but for that to be branded as hateful is perhaps an example of the atmosphere that we are operating in.

The campaign group Women’s Place UK, which submitted written evidence on the bill at stage 1, told us about the violent threats and protests that it has faced at almost all of its 27 public meetings, including a bomb threat. I was at the meeting that Johann Lamont talked about, as were many colleagues in the chamber, and never in more than 25 years of going to political meetings have I felt the intimidation that I felt then.

That was at the University of Edinburgh and, just yesterday, its student newspaper reported that “transphobic stickers” had been found on campus. Those stickers included one that said:

“Do you believe that male-sexed people should have the right to undress and shower in a communal changing room with teenage girls?”

When similar stickers were found on campus previously, an activist group encouraged people to report them to the police. The university principal was reported to have said that the perpetrators would be traced via closed-circuit television footage and he reported the stickers to the police.

Adam Tomkins told us that the test is that the person shows that they were being reasonable in the circumstances. I ask him about the sticker posters and the University of Edinburgh principal—were they being reasonable in the circumstances? I do not think that the Tomkins amendment is clear enough. Professor Tomkins knows as well as I do that, over the years, the courts have been biased in relation to women. Indeed, a book, which draws on Scottish examples, was written about the matter by Helena Kennedy, the very person who is heading up the working group.

We know that there has been bias over the years. It was just about two years ago that a dental student in Scotland got off with sexually abusing a young girl because the male sheriff said that it would be harmful to that student’s dental career to have the crime against his name. The bias is apparent, so I ask Professor Tomkins, does his amendment not require the more specific detail that Johann Lamont has provided? His contribution in the group 2 debate, in which he said that more specifics are required in the legislation, suggests that perhaps it does.

I will draw to a close by saying that, in such an atmosphere, anything short of a provision that puts beyond doubt that basic statements about sex are not of themselves abusive under the bill will leave women exposed to unpredictable judgments by front-line police officers and the courts, and, before that, maybe even their employers. The only safe option for women will be constant self-censorship, which will have an invisible corrosive effect that is antithetical to healthy democratic debate. The Parliament should not be so complacent about setting up such a situation.

Patrick Harvie (Glasgow) (Green)

I draw members’ attention to my entry in the register of members’ interests, which shows that I am a member and supporter of a number of equality groups that, for decades, have fought for not only my human rights, but the human rights of many others.

I certainly do not intend to speak in the debates on all the groups today, but I feel the need to contribute to the debate on this group, especially given the extraordinary personal comments that were made about me earlier.

We all know that legislation that we pass in the Parliament cannot breach the ECHR. If it attempts to do so, it can be struck down by the courts. We also know that a stirring up hatred offence has been in operation for decades without having been found to breach freedom of expression rights. However, not everybody knows that such a protection exists; therefore, if there is a need for reassurance in the bill that does not undermine the operation of the offence, which has been agreed though cross-party discussions and led to amendment 11, so be it. However, some members have instead sought, either directly or tacitly, to have the bill endorse behaviour that is prejudiced, even if it is not in the scope of the offence.

We have already seen attempts to secure explicit legal protection in the bill for practices such as deadnaming and misgendering. Although it might be possible for such expressions to be made in ways that do not meet the tests of the offence, nobody should be in any doubt that they very frequently form the basis of abuse that is directed against trans people in our society. Now, among other troubling amendments, amendment 11B seeks specific legal protection, not for all views on a contentious topic, but solely for the expression of three beliefs, which, taken together, represent a position that is incompatible with the Gender Recognition Act 2004 in any form. That act has been in place for more than 15 years precisely because its absence was ruled a breach of trans people’s human rights.

Although some people seem unwilling to acknowledge the existence of transphobia, and even seek to defend its proponents, recent years have seen the growth of an extraordinary wave of hostility to trans people in politics and in the media, and promises made to them by all five parties here in this Parliament have been broken. Attacks against their equality and human rights and their access to healthcare are routine, as are attempts to claim that everyone who supports trans equality is a misogynist.

Of course, I am not referring just to the spurious and absurd allegations that have been made against me; that claim also ignores the fact that so many of Scotland’s women’s and feminist organisations are intersectional and trans inclusive, which rejects the idea that trans people’s rights and women’s rights are in conflict. Even well respected organisations such as Rape Crisis Scotland and Glasgow Women’s Library have been denounced as misogynist, simply because they do not discriminate against women who are trans.

Of course, all that is deeply harmful to trans people, and the situation would be made far worse today if Parliament agreed to amendments that seem to legitimise such attacks against them. However, we should also be clear about the deeper threat. Anti-trans campaigners are openly working with religious far-right organisations from the US, which, in turn, are open about their strategic goal of using trans equality as a wedge issue, in order to fragment the equalities movement. At least one such organisation is already active in Scotland and has been quoted approvingly by members of this Parliament. Let us not kid ourselves that, if they succeed in opposing trans people’s equality and human rights, they will be satisfied with that. Their next target might be sex education, equality in family law, HIV drugs on the national health service or abortion rights. We do not need to look far to find anti-trans activists arguing against all those things.

I was elected to this Parliament in 2003 in the wake of the defeat of the appallingly hostile and prejudiced campaign to prevent the repeal of section 2A of the Local Government Act 1986. That issue was a test case and, since then, this Parliament has never voted directly to oppose the equality and human rights of Scotland’s queer community, although there have been some close calls. It is dismaying to see amendments today that would end that proud track record.

I hope that the Parliament will reject the hostile amendments in this group, which are designed not to improve the treatment of hate crime in our society but to further an agenda of fragmenting the equalities movement because, whether in the remaining days of this parliamentary session or in the years ahead for the next, that is an agenda that threatens not only trans people; ultimately, it will threaten any and every marginalised group whose rights have been won by solidarity and are opposed by those who seek to fragment us against one another.

Elaine Smith

I think that we are now quite clear about Mr Harvie’s views and motivations. I had remarks that I wanted to make, so I was not going to do this, but I will read out a tweet about last week’s international women’s day debate. The tweet said:

“Oh there’s a bit of vicious transphobia in the #IWD2021 debate. Thanks Johann.”

The reply from Mr Harvie said:

“I’m sorry to say we can expect more of that when it comes to stage 3 of the Hate Crime Bill.”

I ask everybody in the chamber to look at those international women’s day speeches last week then tell me where the transphobia was in any of them.

Presiding Officer, I rise to support the amendments in the name of Johann Lamont and Joan McAlpine. I will also support amendment 1, which is in Adam Tomkins’s name.

Many grass-roots women’s groups, some religious bodies and many constituents have expressed concern to me about freedom of expression. They are concerned that the Government’s amendments do not go far enough to protect free speech. Women are particularly concerned that the Government’s amendments will not be enough to prevent the chilling effect on women’s ability to discuss and debate their rights.

We are seeing that being played out just now. If anyone wants to go on to Twitter to see what people are saying about me and Johann Lamont, they will find that there are some chilling effects already. The rights that we want to discuss—the rights that exist in law—are protected for good reason and are based on the United Nations Convention on the Elimination of All Forms of Discrimination Against Women.

I have to say that I am now extremely careful about what I say about rights that I have taken for granted in the past. I cannot believe that that is what women face in 21st century Scotland. It is shocking that they are being silenced from speaking about rights that are protected by law—they are self-censoring, as Jenny Marra said.

I am conscious that any reference to sex-based rights, sex discrimination and sexism—not gender—will immediately attract accusations that I am being hateful or transphobic. My carefully drafted factual speech, much of which was based on my lived experience as a woman, for last week’s international women’s day debate, was attacked in that way. As I said, we see such attacks right now all over Twitter.

Therefore, I will support the amendments from Johann Lamont and Joan McAlpine, which will give clarity to those, including the police, who will have to interpret the legislation.

Liam McArthur

I echo Liz Smith’s earlier comments. Contributions that we have heard on this group of amendments have probably seemed shocking, disturbing and offensive to some, but everything that has been said needed to be said, in the context of the debate.

Johann Lamont spoke very passionately on the issue from her perspective, and her voice needed to be heard in the debate, as did Patrick Harvie’s. Although I cannot necessarily support Johann Lamont’s amendments, I thank her for pursuing the matter through stage 2 and stage 3, and for providing colleagues with very detailed and cogently argued evidence to support her amendments.

I also thank Adam Tomkins for the way in which he initiated the debate on the group, which is the way in which he has stewarded the committee through the scrutiny process. He laid claim to having helped to secure the reasonableness test. I merely claim to have pushed the cabinet secretary towards making the stirring-up offences intent only, on the back of the debate that we had in September. I certainly agree with him that, even in combination, those two changes were insufficient, which is why we are back here considering stage 3 amendments.

The amendments are at the crux of the debate on the bill. The Justice Committee has faced a fairly remarkable challenge in how to strike an appropriate balance between, on one hand, protecting those who might be vulnerable to hate speech and, on the other, protecting our fundamental right to freedom of expression. Of course, that right is not unfettered, but nor should it be unduly constrained by a requirement to be polite or respectful. In the words of Lord Justice Sedley, who is the unofficial patron saint of the bill, so frequently has he been prayed in aid:

“Freedom only to speak inoffensively is not worth having”.

However, striking the appropriate balance by turning intention and aspiration into black-letter law has proved to be enormously challenging.

At stage 2, various amendments were lodged that sought to provide protections in relation to speech and debate around various protected characteristics, but none was entirely satisfactory. My attempt involved adopting a broader catch-all provision, rather than applying different thresholds for different characteristics. That approach, if not the precise wording of my amendment, seemed to attract majority support, and it has formed the basis of amendment 11, which has been lodged by the cabinet secretary.

Amendment 11 offers reassurance on freedom of expression for each of the new characteristics that are added in the bill. It avoids singling out and reflects the fact that freedom of expression is a general right that should apply across all subjects. The exception, of course, relates to religion, which reflects the pretty much universal support that the committee heard from representatives of faith groups, the Humanist Society Scotland and other key stakeholders, for the bill to go further in that area. That can be justified in making a distinction between, for example, the right to ridicule or express hostility towards ideas and beliefs, and hostility that is directed towards an individual’s identity, which would be more problematic. Others have reflected on that, particularly in relation to disability.

Amendments 13 and 14, which will remove sections 11 and 12, are also sensible and to be welcomed. Nothing here, though, requires anyone to subscribe to any particular belief or to express themselves in ways that suggest that they do—which I hope helps to address the point in Johann Lamont’s amendment 11D—nor do any of the provisions in the bill cut across an individual’s rights under the ECHR. However, I accept that, as Adam Tomkins set out, amendment 11 on its own is insufficient. In that light, I very much welcome amendment 1, which makes explicit reference to the ECHR. Importantly, it would put in the bill the general principle that the right of freedom of expression applies to

“the expression of information or ideas that offend, shock or disturb.”

As Adam Tomkins suggested, that perhaps renders Joan McAlpine’s amendment 11G redundant. My sense, too, is that amendment 1 would meet with Lord Sedley’s approval.

Although I am nervous about the regulating powers that Johann Lamont seeks to introduce under amendment 11E, there is no doubt that there is merit in the argument that future Parliaments will need to keep the issues under review. We do post-legislative scrutiny far too rarely in the Parliament, but the bill is perhaps an obvious example of where it could usefully and sensibly be deployed.

The Presiding Officer

I call Adam Tomkins to wind up on this group.

Adam Tomkins

I will try, Presiding Officer, but this is a hell of a debate to try to respond to and to wind up. It has been an extraordinary and outstanding debate. As everybody knows, I am shortly to leave the Parliament and am not seeking re-election. I have had my criticisms of things that have been going on in this place in the past few weeks and I have no doubt expressed myself sometimes in a manner that has offended, shocked and disturbed others. However, the treatment of the bill and, indeed, the debate this afternoon have shown the Scottish Parliament at its best, which is not to say at all that I agree with everything that has been said.

I will start with something that Patrick Harvie said: that he found aspects of Johann Lamont’s amendment 11B “troubling”. I have to say that I am deeply troubled by that remark, because there should be nothing troubling about an amendment—it is not my amendment—that simply seeks to set out what speech in the context of the debate around transgender identity is lawful and acceptable, even if it upsets people, and what speech is not. Saying or even arguing robustly that sex is a physical binary characteristic that cannot be changed is not a hate crime under this legislation and there should be no doubt about that. Saying that the terms “woman” and “man” and related terms refer to sex as such a characteristic is not a hate crime under this legislation and there should be no doubt about that.

John Mason (Glasgow Shettleston) (SNP)

Whichever side of the argument one is on, is it not going into too much detail in the legislation to have that kind of thing in it?

Adam Tomkins

Yes, I think that it is, but that is not my amendment. However, I have to say that, as I leave the Parliament, I am troubled that members of the Parliament are themselves troubled by amendments that seem to me to be innocent, such as Johann Lamont’s amendments.

To answer Mr Mason’s question, I do not think that we need to go there if we accept amendment 11, in Humza Yousaf’s name, and amendment 1, in my name. I thank the cabinet secretary for his support for amendment 1 and I also thank Joan McAlpine, Sandra White, Neil Bibby and Elaine Smith for voicing their support for amendment 1. More broadly than that, I thank John Finnie and Liam McArthur for their kind words, not just about amendment 1 but about my role in the making of the legislation more generally.

The cabinet secretary came to give evidence at the beginning of the Justice Committee’s discussions of freedom of speech and the hate crime bill. He said that he recognised that we in Parliament must do two things about freedom of speech in the bill: we must both broaden and deepen the protection of free speech.

The cabinet secretary’s amendment 11 broadens the protection of free speech and my amendment 1 deepens it. The combination of those two amendments, with no conflict between them, will achieve that aim of broadening and deepening the protection of free speech.

Joan McAlpine, Johann Lamont, Jenny Marra and Elaine Smith voiced sincere and deep concern about whether even that combination of amendments goes far enough. Johann Lamont said that my amendment 1 offers hope but no guarantees. Joan McAlpine said that good laws should not be made by crossing our fingers. I do not often agree with Joan McAlpine, but I absolutely agree with her on that point.

I agree with Johann Lamont that amendment 1 does not offer guarantees, because I do not think that we can do so. What we can do when we make criminal law is offer clarity. My concern from the beginning has been to guard against vagueness in the hate crime bill by offering clarity as a solution and to guard against overbreadth by narrowing the scope of the offences as a solution to that. As Neil Bibby said, that combination of amendments delivers the clarity that we need in our criminal law.

Johann Lamont

I say respectfully that women who have faced this may strongly feel the need for more than Adam Tomkins’s perception of what clarity is. We heard a speech from a colleague who made very clear that what I had put in amendment 11B was hate speech. What assurance and clarity can Adam Tomkins give to me and to the women who want to express their views in this regard that our words will not end up being reported as a hate crime? There is evidence in front of him—we have been told that what is said in amendment 11B is hateful. What consequence comes from that for us? What clarity do we have in that regard?

Adam Tomkins

What is in the amendment is hateful in that member’s subjective opinion, but that does not make it a hate crime or make it criminal. Any of us can throw around accusations or allegations of transphobia or of any other kind of phobia, but that does not make it criminal.

In order for a point of view to be criminal, if amendments 1 and 11 are accepted, it must be not merely hateful, transphobic or offensive but threatening or abusive. There is nothing threatening or abusive in anything that anyone has said here. It would have to be intended to stir up hatred and the Crown would have to prove that on corroborated evidence. It would have to be unreasonable in the circumstances and, if amendment 1 is accepted, it would also have to be proved to be speech that is more than merely offensive, shocking or disturbing.

No one of the amendments offers the guarantee or the clarity that Johann Lamont is looking for, but they do when taken together.

Liam McArthur

Part of the problem that we have wrestled with throughout the process is the risk or threat of people bringing complaints. There seems to be no way of writing something into law that will remove that risk. This point might be better directed to the justice secretary than to Mr Tomkins as convener of the Justice Committee, but is there anything that can be done to provide some assurance about the way in which the police would respond to any complaints that are made?

Adam Tomkins

That is the point that I was going to close on. It was addressed very powerfully by someone else with whom I do not always agree, Sandra White. She said that much of the answer to this will depend on police training. The police must be appropriately trained about the parameters of the criminality that we are setting down. I believe that that must happen not only with regard to freedom of speech but with regard to privacy, although I will not reopen that debate. If the police are well trained, we can get a long way there.

Johann Lamont

Will the member take an intervention?

Adam Tomkins

If I am permitted to, I will.

Johann Lamont

I just want to make the point that there is one way of making it clear in law that it is entirely reasonable for anybody to make these points, and that is to put it into the law. The only reason why I am asking for it to be put into the law is precisely because folk have complained that they are hate speech. Frankly, it is not a comfort for me to know that I am going to have a good case when I get to the court. I would quite like to be told that I am allowed to say that without any danger of being reported to the police.

Adam Tomkins

There are two things that we can do. The other thing, of course, is to do what Neil Findlay suggested, which is the same as what Liam Kerr suggested all the way back in September, and take the bill off the table. We will all have a choice, whether it is tonight or tomorrow, to vote for or against the bill at stage 3. If members do not believe that the bill is fit for purpose, they should not vote for it. We could then invite the next Scottish Parliament, which will soon be elected, to revisit the issues in the light of all the debate that we have had. We have been trying to put forward that proposition for some months, but we have not yet had any support from anybody in other parties.

Presiding Officer, what do I have to do now? I think that I need to press amendment 1.

The Presiding Officer

That was a successful conclusion, Mr Tomkins. Thank you. [Applause.] Unanimity has broken out.

Amendment 1 agreed to.

Amendment 5 moved—[Adam Tomkins].

The Presiding Officer

The question is, that amendment 5 be agreed to. Are we agreed?

Members: No.

The Presiding Officer

There will be a one-minute division.

Voting is now closed. Members should let me know if they were unable to vote.

Colin Beattie (Midlothian North and Musselburgh) (SNP)

Presiding Officer, I was unable to access the system. I would have voted no.

The Presiding Officer

Thank you, Mr Beattie, I will make sure that you are added to the tally.

Gil Paterson (Clydebank and Milngavie) (SNP)

Presiding Officer, I was unable to access the app. I am still struggling to do it now. I would have voted no.

The Presiding Officer

Thank you, Mr Paterson. I will make sure that your name is added to the tally.

For

Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Balfour, Jeremy (Lothian) (Con)
Ballantyne, Michelle (South Scotland) (Reform)
Beamish, Claudia (South Scotland) (Lab)
Bibby, Neil (West Scotland) (Lab)
Bowman, Bill (North East Scotland) (Con)
Boyack, Sarah (Lothian) (Lab)
Briggs, Miles (Lothian) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Carlaw, Jackson (Eastwood) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Chapman, Peter (North East Scotland) (Con)
Corry, Maurice (West Scotland) (Con)
Davidson, Ruth (Edinburgh Central) (Con)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gray, Iain (East Lothian) (Lab)
Greene, Jamie (West Scotland) (Con)
Griffin, Mark (Central Scotland) (Lab)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Harris, Alison (Central Scotland) (Con)
Johnson, Daniel (Edinburgh Southern) (Lab)
Kelly, James (Glasgow) (Lab)
Kerr, Liam (North East Scotland) (Con)
Lamont, Johann (Glasgow) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Lindhurst, Gordon (Lothian) (Con)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Macdonald, Lewis (North East Scotland) (Lab)
Marra, Jenny (North East Scotland) (Lab)
Mason, Tom (North East Scotland) (Con)
McAlpine, Joan (South Scotland) (SNP)
McNeill, Pauline (Glasgow) (Lab)
Mitchell, Margaret (Central Scotland) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Sarwar, Anas (Glasgow) (Lab)
Scott, John (Ayr) (Con)
Simpson, Graham (Central Scotland) (Con)
Smith, Elaine (Central Scotland) (Lab)
Smith, Liz (Mid Scotland and Fife) (Con)
Smyth, Colin (South Scotland) (Lab)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Stewart, David (Highlands and Islands) (Lab)
Tomkins, Adam (Glasgow) (Con)
Wells, Annie (Glasgow) (Con)
Whittle, Brian (South Scotland) (Con)
Wightman, Andy (Lothian) (Ind)

Against

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Finnie, John (Highlands and Islands) (Green)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Greer, Ross (West Scotland) (Green)
Harper, Emma (South Scotland) (SNP)
Harvie, Patrick (Glasgow) (Green)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Johnstone, Alison (Lothian) (Green)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lochhead, Richard (Moray) (SNP)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Matheson, Michael (Falkirk West) (SNP)
McArthur, Liam (Orkney Islands) (LD)
McDonald, Mark (Aberdeen Donside) (Ind)
McKee, Ivan (Glasgow Provan) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Rennie, Willie (North East Fife) (LD)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Rumbles, Mike (North East Scotland) (LD)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Russell, Michael (Argyll and Bute) (SNP)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Kevin (Aberdeen Central) (SNP)
Swinney, John (Perthshire North) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Wishart, Beatrice (Shetland Islands) (LD)
Yousaf, Humza (Glasgow Pollok) (SNP)

The Presiding Officer

The result of the division is: For 53, Against 69, Abstentions 0.

Amendment 5 disagreed to.

Amendments 2 and 3 not moved.

Amendment 6 moved—[Liam Kerr].

The Presiding Officer

The question is, that amendment 6 be agreed to. Are we agreed?

Members: No.

The Presiding Officer

There will be a division.

The vote is now closed. Please let me know if you were unable to vote.

Gil Paterson

On a point of order, Presiding Officer. I am afraid that I was unable to tune in again. I would have voted no.

The Presiding Officer

I will make sure that that is added to the vote tally.

Rachael Hamilton (Ettrick, Roxburgh and Berwickshire) (Con)

On a point of order, Presiding Officer. I would have voted yes on amendment 6.

The Presiding Officer

I will make sure that that is added to the vote tally.

For

Balfour, Jeremy (Lothian) (Con)
Ballantyne, Michelle (South Scotland) (Reform)
Bowman, Bill (North East Scotland) (Con)
Briggs, Miles (Lothian) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Carlaw, Jackson (Eastwood) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Chapman, Peter (North East Scotland) (Con)
Corry, Maurice (West Scotland) (Con)
Davidson, Ruth (Edinburgh Central) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Greene, Jamie (West Scotland) (Con)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Harris, Alison (Central Scotland) (Con)
Kerr, Liam (North East Scotland) (Con)
Lindhurst, Gordon (Lothian) (Con)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Mason, Tom (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Scott, John (Ayr) (Con)
Simpson, Graham (Central Scotland) (Con)
Smith, Liz (Mid Scotland and Fife) (Con)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Tomkins, Adam (Glasgow) (Con)
Wells, Annie (Glasgow) (Con)
Whittle, Brian (South Scotland) (Con)

Against

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Bibby, Neil (West Scotland) (Lab)
Boyack, Sarah (Lothian) (Lab)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Finnie, John (Highlands and Islands) (Green)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Gray, Iain (East Lothian) (Lab)
Greer, Ross (West Scotland) (Green)
Griffin, Mark (Central Scotland) (Lab)
Harper, Emma (South Scotland) (SNP)
Harvie, Patrick (Glasgow) (Green)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Johnson, Daniel (Edinburgh Southern) (Lab)
Johnstone, Alison (Lothian) (Green)
Kelly, James (Glasgow) (Lab)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lamont, Johann (Glasgow) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Lochhead, Richard (Moray) (SNP)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Macdonald, Lewis (North East Scotland) (Lab)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Marra, Jenny (North East Scotland) (Lab)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Matheson, Michael (Falkirk West) (SNP)
McArthur, Liam (Orkney Islands) (LD)
McDonald, Mark (Aberdeen Donside) (Ind)
McKee, Ivan (Glasgow Provan) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
McNeill, Pauline (Glasgow) (Lab)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Rennie, Willie (North East Fife) (LD)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Rumbles, Mike (North East Scotland) (LD)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Russell, Michael (Argyll and Bute) (SNP)
Sarwar, Anas (Glasgow) (Lab)
Smith, Elaine (Central Scotland) (Lab)
Smyth, Colin (South Scotland) (Lab)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, David (Highlands and Islands) (Lab)
Stewart, Kevin (Aberdeen Central) (SNP)
Swinney, John (Perthshire North) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Wightman, Andy (Lothian) (Ind)
Wishart, Beatrice (Shetland Islands) (LD)
Yousaf, Humza (Glasgow Pollok) (SNP)