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Hate Crime and Public Order (Scotland) Bill

Overview

Hate crime is the phrase used to describe behaviour which is both criminal and based on prejudice.


There are already laws in place to protect certain groups from hate crime.


This Bill aims to do three things. It updates these existing laws and pulls most of these laws into one Bill. It also adds to the groups currently specifically protected by hate crime laws. 


Criminal courts can generally take into account any prejudice when sentencing a person. Also, people are protected from hate crime through specific laws that apply. 


People are currently protected by specific laws on the basis of:



  • disability

  • race (and related characteristics)

  • religion

  • sexual orientation

  • transgender identity


This Bill adds age to that list and allows sex to be added at a later date.


The Bill creates a new crime of stirring up hatred against any of the protected groups covered by the Bill.


The Bill also abolishes the offence of blasphemy which has not been prosecuted in Scotland for more than 175 years.

You can find out more in the Explanatory Notes document that explains the Bill.

Why the Bill was created

The Bill is a response to the recommendations made in Lord Bracadale’s independent review of hate crime laws.


The Bill has been created to make sure that the groups covered by the Bill are protected from hate crimes. It also makes sure that the laws that provide that protection are fit for the 21st century.


Crimes motivated by prejudice will be treated more seriously and will not be tolerated by society. The Bill has been created to make this clear to victims, those who commit hate crimes, and the wider society.

You can find out more in the Policy Memorandum document that explains the Bill.

Becomes an Act

The Hate Crime and Public Order (Scotland) Bill passed by a vote of 82 for, 32 against and 4 abstentions. The Bill became law on 23 April 2021.

Introduced

The Scottish Government sends the Bill and related documents to the Parliament.

Hate Crime and Public Order (Scotland) Bill as introduced

Scottish Parliament research on the Bill 

Financial Resolution

The Presiding Officer has decided under Rule 9.12 of Standing Orders that a financial resolution is required for this Bill.

Stage 1 - General principles

Committees examine the Bill. Then MSPs vote on whether it should continue to Stage 2.

Have your say - Justice Committee

The deadline for sharing your views on this Bill has passed. Read the views that were given.

Have your say - Finance and Constitution Committee

The deadline for sharing your views on this Bill has passed. Read the views that were given. 

Who examined the Bill

Each Bill is examined by a 'lead committee'. This is the committee that has the subject of the Bill in its remit.


It looks at everything to do with the Bill.


Other committees may look at certain parts of the Bill if it covers subjects they deal with.

Who spoke to the lead committee about the Bill

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First meeting transcript

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 21st 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.

10:15  



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.

10:30  



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.

10:45  



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?

11:00  



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.

11:15  



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.

11:30  



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.

11:45 Meeting suspended.  



11:51 On resuming—  



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.

12:00  



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?

12:15  



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.

12:30  



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.

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Second meeting transcript

The Convener

Our second item is the continuation of stage 1 consideration of the Hate Crime and Public Order (Scotland) Bill. We have two panels of witnesses today. I welcome our first panel: Roddy Dunlop QC, the dean of the Faculty of Advocates; Michael Clancy, the director of law reform at the Law Society of Scotland; and Dr Andrew Tickell, a lecturer in law at Glasgow Caledonian University. I thank all the witnesses for their written submissions, which are, as always, available on the committee’s web pages.

As we have a lot of witnesses and many issues to discuss, we will go straight to questions and I will not invite witnesses to make opening statements. Another reason for that is the length of and detail in the written submissions, which have been extremely helpful.

I want the witnesses to reflect on the proposed amendments that Humza Yousaf, the Cabinet Secretary for Justice, has indicated that he wishes to make to part 2 of the bill. Given the tenor of the written evidence from this morning’s witnesses, it is obvious that they all welcome the amendments. However, do the amendments go far enough to ensure that the bill does all that it needs to do to protect the fundamental rights of free speech and privacy, and the right to a fair trial?

Roddy Dunlop QC (Faculty of Advocates)

I am much obliged to the committee for hearing the views of the Faculty of Advocates. The convener is absolutely correct that the proposed amendments are welcome—they have been welcomed explicitly by the faculty. The amendments address a number of concerns. As members work through the faculty’s submission, they will see that a recurring theme of our concerns is the potential damage that might be done by the “likely to stir up” provision, allowing for unintentional criminalisation in an area in which that would not be welcome.

Therefore, the amendments address many—not all, but many—of our concerns. I say “not all” because, for the reasons discussed in the submission in reference to what was said by Lord Bracadale, we have a residual concern about the use of “insulting” with regard to race only.

The answer to the concern, which has been given already—no doubt it will be given again by those who propose it—is that the provision in regard to race has been on the statute book since 1986, so what is the problem? The problem that I have with it is that it is difficult to see what the provision adds. Despite its 20-year history, I have been unable to find a prosecution that even suggested, let alone ultimately turned on, “insulting” being the crucial provision. 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”.

There are two aspects to that. Why would we want only one characteristic to be protected against insult? Secondly, but more importantly, with the term “insult”, subjective concerns are brought in. All sorts of people are capable of being insulted by all sorts of things, whereas with “threatening”, something is either threatening or it is not—that is quintessentially objective. Similarly, something is either abusive or it is not, and that, too, is quintessentially objective.

With notions of insult, we move into the notion of subjectivity, and there is a concern that material might be criminalised that really should not be. Even if that is not the ultimate result—for example, because there is still the check of whether there is an intention to “stir up hatred”—it might result in people being prosecuted, or in people demanding prosecutions because they have felt insulted by something that has been said. In a world in which we are told repeatedly—appropriately, it seems to me, and in reference to the European convention on human rights—that a pluralist society must be open to not only notions that are welcome but those that are liable to offend, shock or disturb, I struggle with a provision that allows the criminalisation of something that is merely insulting. I say “merely” because, if what is said is also threatening or abusive, it will be struck at.

The case of Fáber v Hungary, which we cite in our submission, is of some import in that regard. That was the case in which an offensive flag was flown close to an anti-racism demonstration. It was accepted that the use of the flag would cause unease and a sense of disrespect among past victims. That seems to be pretty close to something that would be deemed to be insulting—and insulting only. The European Court of Human Rights found there to have been a violation of article 10 of the convention, because there was nothing violent in the act so there was no threatening or abusive aspect to it. I struggle to square away the guidance in that authority with what is being suggested with a provision for “insulting” only. That is our primary residual concern with regard to the bill.

The Convener

I have a couple of follow-up questions on that, but I will first bring in Michael Clancy on the same question that I asked Roddy Dunlop. I also ask Mr Clancy to reflect on what Mr Dunlop just said.

Michael Clancy (Law Society of Scotland)

At the Law Society of Scotland, we agree with the faculty dean’s assessment of the cabinet secretary’s amendments. We have taken a look at them, and they relieve much of our anxiety about the provisions in sections 3 and 5.

There are issues with the use of the word “insulting”, as the dean points out, because it is a subjective test. In our submission to the committee, we note that it lowers the bar for criminality a bit too far. Not only is it a subjective test but, with the introduction of the new crimes in the bill, it might create a hierarchy between stirring up hatred on the basis of race and stirring up hatred on the basis of the other protected characteristics. It is important to take those points into account.

The convener asked about freedom of expression, which is not an absolute right under article 10 of the European convention on human rights—it has to be tempered. The article says:

“Everyone has the right to freedom of expression.”

However,

“The exercise of these freedoms ... carries with it duties and responsibilities”

and it can be limited by prescriptions of law, as

“are necessary in a democratic society ... for the prevention of disorder or crime”.

It is quite clear that it is perfectly legal under the terms of article 10 to seek to control freedom of expression; it is a question of how far one goes, and perhaps the word “insulting” is a word too far.

The Convener

I put the same question to Dr Tickell, and offer him an invitation to react and respond to what we have just heard from Roddy Dunlop and Michael Clancy.

Dr Andrew Tickell (Glasgow Caledonian University)

Thank you for the invitation to the meeting. It is welcome to see the Scottish Parliament anxiously scrutinising a measure with regard to free expression. Parliament has not always done that and, as Lord Bracadale recognised when he made his recommendations, stirring-up offences inevitably raise questions of free expression.

With regard to the cabinet secretary’s amendments, I very much welcome the shifts towards an intention form of mens rea, which I argued for in my submission, as others did in their submissions.

Some free speech anxieties in respect of the bill are well founded and some are exaggerated and excessive. Moving to an intention-only model should substantially allay the anxieties that people rightly had about the first iteration of the bill. We should not just jump over the idea of intentionally proving an intention to stir up hatred as if it is a small thing to establish. It should not be too difficult for prosecutors to establish, but it is no small requirement. There is a lot of misinformed and exaggerated discussion around the bill, and we need to be quite careful about taking seriously the terms of the new offences. That shift is extremely welcome.

I tend to agree with Roddy Dunlop’s propositions on issues around “insulting”. The argument that, because it is in the Public Order Act 1986, it should be in the bill is not convincing in relation to any aspects. We should be considering the matter from a first-principles perspective and asking whether those protections, restrictions or extensions are necessary. I struggle to imagine circumstances in which communication or comment would be insulting but not abusive, as “abusive” is a pretty capacious concept.

In terms of the consolidation principle that notionally undergirds the bill, it would be a good idea to make the legislation more simple. I do not see what is added in terms of protection. If there are anxieties about perceptions that it would make it harder to criminalise people who engage in racial incitement, that can be addressed by those types of arguments.

As I argued in my submission, there is scope to allay anxieties about free expression. As has been commented, the bill is subject to the European convention on human rights, as would be any enforcement in court. The court is subject to the ECHR, and it would have to consider in convicting or not convicting any individual whether convention rights were engaged in that case.

However, the extent of the anxiety around the bill means that, although the reasonableness defence is welcome, there is perhaps scope to make more clear and to communicate—as a political goal as much as a legal one—that there are particular factors that should be taken into account with the stirring-up offences in relation to whether behaviour should be regarded by the court as reasonable or not. That is my main reaction to that element of the bill.

The Convener

That is helpful. I have two or three follow-up questions on what the committee has just heard.

The first question is for Roddy Dunlop in the first instance. The suggestion was made that “threatening” and “abusive” are objective tests, whereas “insulting” is a subjective one. I want to ensure that the use of “abusive” in the bill really is as objective a test as it is elsewhere in Scots law. That is, where “threatening” and “abusive” are used elsewhere in Scots law, there is a requirement that the abuse causes

“a reasonable person ... fear or alarm”

or “distress”. There is no such requirement in the bill.

Therefore, is there not a danger that, even though elsewhere in Scots criminal law “abusive” is an objective test, in the bill, it could elide into that subjective space that we perhaps do not want criminal law to get into? If that is a problem, would the cure—for the test of “abusive” to be met—be an amendment that would require the Crown to show that a reasonable person was caused fear, alarm or distress?

Roddy Dunlop

I would not have any objection to that sort of amendment; my only query would be whether it was necessary. You are quite right that, in many contexts, there is an express provision making that approach clear, but the word “abusive”, which is an ordinary word in the English language, has an objectivity to it that does not exist with “insulting”. It is difficult for someone to say, “I subjectively felt that I was abused” by a behaviour that is not abusive under any ordinary definition of the word. “Abusive” already imports an objective test.

If there is any doubt about it, it does not seem that the objective behind the bill has anything other than an objective notion, so there should not be any objection to an amendment to make that positively clear.

10:15  



The Convener

My concern is not that we are going to see people convicted on the basis of something that is alleged to be but is not really abusive. My concern—which I came to in reading your written evidence—is that police powers will be used to search people’s homes and private premises for material that is said to be inflammatory or abusive but which would not cause a reasonable person fear, alarm or distress.

I talked about freedom of expression in my opening question, but I did not talk about only that. I also talked about the fundamental human right of respect for privacy and about the article concern around due process. Is there not a concern that allowing for a potentially subjective interpretation of “abusive” in the legislation would generate article 8 and article 6 considerations?

Roddy Dunlop

If there were any possibility of that, I would agree. That is not my reading of the word “abusive”, but if there were any realistic possibility that it might be given that meaning, I would strongly agree that it should be corrected, or at least clarified, by an amendment to the legislation to make that crystal clear. That cannot be what is intended, and I would share your concerns about the repercussions if that were to be the case. It is those concerns that lead me to rail against the retention of the “insulting” provisions that we have already discussed.

Dr Tickell

It is important that we underscore, as is implicit in the convener’s question, the fact that threatening or abusive behaviour has been a crime in Scotland for 10 years. It is interesting that a lot of the response to the bill seems to suppose that that is not the case, which may tell us about public legal education as much as anything else. You have to establish fear or alarm; you do not have to establish distress for a section 38 prosecution, simply fear or alarm.

Given that section 38 of the Criminal Justice and Licensing (Scotland) Act 2010 is on the statute book, we must think about the bill in the context of what is already criminal. If we did what you suggest, convener, what would be the point of the bill? You would ultimately have an offence that required all the same behaviour and, on top of that, an intention to stir up hatred.

There might be an argument for that in relation to fair labelling and properly calling out particular types of behaviour, as Lord Bracadale said last week, as that would aim at a whole group rather than targeting individuals. However, you would get into the territory of removing any distinctive contribution that the bill makes to Scots law through its recognition of stirring-up offences.

Michael Clancy

Changing the bill as you suggest is an interesting proposition, convener. One answer is that one must read the statute book as a whole. Therefore, where abuse is defined elsewhere in the law, there might be an indication to those who are prosecuting, defending and judging that abusive behaviour could be considered in that context.

If we leave the bill without any specific definition, there might be a question as to why there is no definition of “abuse” in this legislation, whereas there is in other legislation. To rely on the ordinary English language usage of the word “abuse” takes us only so far. It raises questions and it would be neater—particularly in the context of an attempt to consolidate our law—if there were a definition in the bill.

The Convener

My final question picks up on an issue that we explored with the cabinet secretary and with Lord Bracadale last week. It is the possibility under the bill of what have historically been understood to be public order offences being committed in private.

Under the Public Order Act 1986, it is not quite a defence, but part of the constitution of the offence, that stirring up racial hatred cannot be committed by a person inside a private dwelling. There is no equivalent provision in the bill as it stands. Is that omission justified or should it be rectified?

Roddy Dunlop

There has obviously been an awful lot of media coverage of that issue in the past week and there are a lot of strongly held views. You will have noted that the Faculty of Advocates did not pick up on the matter in its submission. I see the position as quite finely balanced because, on the one hand, for the state to step in and interfere with freedom of expression in the home seems rather draconian, but on the other hand, as I think Dr Tickell pointed out, there are many instances in which the state does just that. It is equally criminal to punch somebody in your home as it is to do so on the street. I suppose that the countervailing view would be that we want to stop, for example, the radicalisation of children within the home by hate speech being propagated within the home, in the same way that we would want to stop it being propagated by someone on a soap box on the street corner.

My primary concern is that the provision could be abused and that there could be a situation where, as has been suggested in the media, one’s least favourite uncle becomes the subject of a complaint to the police because of what he said over the Christmas turkey. That cannot really be what we are looking at here, but equally, should it be the case that you are able to breed hatred within the home without repercussion? It is more difficult to say that that should be allowed, given the pernicious effects of hate speech and the laudable aims of the bill, which I remind the committee that the Faculty of Advocates is supportive of.

The Convener

Thank you. We might therefore just want to take the words “and Public Order” out of the short title of the bill, if it is not a bill that contains offences against public order.

Michael Clancy

That is not something that the Law Society of Scotland’s criminal law committee raised in its submission. My words on the matter, for what they are worth, are therefore without the sanction of the committee. One has to think about where the state intervenes in the home. Of course, we have seen instances quite recently where the state has done exactly that under coronavirus legislation—where there has been a threat to public health and a contravention of the regulations when someone has invited 50 people into their home, for example.

What is public order in these circumstances? Does it relate to the number of people? Does the number depend on the size of one’s family? The dean of the faculty cited the example of a Christmas dinner table. It depends on the size of your table, but you might invite more people in and make some comments or, I suppose, allow comments to be made that would contravene this legislation, and there does not seem to be a particularly hard line about whether it is about public order in the public space or public order in the private space. Therefore, I would edge towards including statements that are made in the home, for some of the reasons that the dean mentioned about the extent of criminal law and how it works. 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.

Dr Tickell

It is worth remembering—I know that this is an irritable point to make—that the bill is about street harassment, which is a form of harassment that most of Scotland’s minorities experience regularly. I must say that I find the fixation on those kinds of questions in the media quite ridiculous at points, given that we are talking about such a serious issue.

Most criminal offences do not have a dwelling defence. Indeed, some types of crimes—and most rapes and murders—mostly happen within dwellings. In 2018, the Scottish Parliament legislated on domestic abuse, which takes place mostly within dwellings. The fixation on dwellings is largely because that element happens to be in the 1986 act and because campaigners, having gained concessions from the cabinet secretary earlier, are trying to seek further concessions.

If the committee is in any way attracted to the idea, I suggest that it would be much more coherent to have a requirement of publicity. Breach of the peace was historically often used to prosecute domestic abuse in Scotland, but in 2009 the High Court, in the case of Harris v Her Majesty’s Advocate, decided that in future the common-law crime of breach of the peace would require an element of publicity in order to comply with the ECHR.

A requirement that is based on the artificial limits of the household strikes me as rather unpersuasive. A requirement that conduct should have a public element—to echo the test from the common-law crime of breach of the peace—would at least seem to be more coherent than an artificial distinction relating to households.

Broadly speaking, I tend to agree with Professor Robert Black, who was quoted in The Times this week; he made the obvious point that criminal law is quite often concerned with what goes on inside people’s houses, and in most cases very properly so.

The Convener

Liam Kerr has a quick supplementary before I bring in Liam McArthur.

Liam Kerr (North East Scotland) (Con)

Good morning. My point arises from that line of questioning. Some commentators, including Lord Bracadale, have suggested that, given that between 2011 and 2018 there were only eight prosecutions for stirring up hatred under the 1986 act, the main purpose of the new offences will be symbolic, or will be about sending a message. Does the panel agree with that assessment of the new offences? In any event, do you take a view on whether that is the proper function of the law?

Roddy Dunlop

It is true that there has historically been a pretty low level of prosecution for the offence. Indeed, one might take the view that, if those are the only instances that were thought to meet the public interest test for prosecution, that should be welcomed. However, the fact that it does not happen that often does not mean that we should not criminalise it.

I do not think that the proposed legislation is symbolic. One sees on social media in particular now an increasing incidence of behaviour that is beyond the pale. It transcends the mere conveying of ideas liable to shock or offend, which is something that, in a pluralist society, we all have to be prepared not only to put up with but—to be frank—to welcome.

Where one transcends that and gets into a world where behaviour is abusive and/or threatening, legislation is not just a question of symbolism. The law really ought to step in to say, “This is not something that is to be tolerated—this is a proportionate fetter on your freedom of expression and the behaviour should be subject to sanction.”

The Convener

That is helpful—thank you. I will bring in Liam McArthur.

Liam McArthur (Orkney Islands) (LD)

Good morning to the witnesses—I am glad to see that Dr Tickell is back online and with us again.

I will reverse the order of the convener’s line of questioning. We have touched on the issue of freedom of expression. Mr Dunlop talked about the existing ECHR protections that would apply in respect of any court rulings.

However, there have been concerns. A comparison has been drawn with the way in which the legislation is framed in England and Wales, where there are specific freedom of expression protections linked to each characteristic.

In his evidence last week, the cabinet secretary made clear that he is open to expanding not just the breadth but the depth of those protections. Do the witnesses have any specific views on what they would like to see happen in taking up the cabinet secretary’s offer?

10:30  



Dr Tickell

I am sorry—my sound cut out rather dramatically and I hope that my last point was coherent. The freedom of expression protections are, as you have said, limited to two of the protected characteristics, which obviously seems rather jarring, given the bill’s structure. Whatever the bill said about free expression, the European convention would apply.

One of the challenges that the Government has faced in drafting the bill is that it has tried to have carve-outs for particular types of statements—for example, the provisions try to capture statements that encourage people to desist from homosexuality. It is difficult to draft those provisions without having a long list of things that, in and of themselves, do not amount to threatening or abusive behaviour.

I suggested that one effective way to address the issue is to consider and try to flesh out the reasonableness defence in general and to have a non-exhaustive list of factors to be taken into account with regard to, for example, artistic, journalistic, scholarly and academic expression—one might wish to add more to that list.

Those factors are about the general genre in which expressions manifest, which a court could take into account as part of the contextual analysis of whether conduct is reasonable. The approach to free expression in the bill has severe limits, because one begins to accumulate more and more statements that should not, in and of themselves, be regarded as threatening or abusive.

That is the only way that I could devise of bumping up and making more robust the sense of free expression protections in the legislation, which is also about giving people reassurance. Journalists often think that the bill is about them. I think that they are generally mistaken about that, but if they are concerned about it, the appearance in the bill of the journalistic context of activity as a factor to which the court should have regard in assessing reasonableness strikes me as an effective way of addressing underlying anxiety. It would also gesture to the court that the context is a factor to be taken into account in any future prosecution—albeit that it is only one such factor. That is my view on an effective way to realise the freedom of expression aspiration in the bill.

Liam McArthur

That answered the question that I was going to ask about whether that would be in the bill or whether you would see it being put in subsequent guidance. That is helpful.

What are Mr Dunlop’s views on the cabinet secretary’s offer?

Roddy Dunlop

The difficulty with non-exhaustive lists is where to stop before you become exhausted. As Dr Tickell pointed out, one could have a never-ending series of factors that might be taken into account in the process. As has been pointed out, I wonder whether we are not already covered by the fact that any interpretation of the bill, or indeed of any legislation, must be convention compliant.

If we assume that we will not recant from the convention—there is absolutely no sign that we will—the bill must be read in a way that makes it convention compliant. That means that if the court arrived at an interpretation of section 3, or of any section of the bill, that contravened article 10 of the convention, that interpretation would be bad and unlawful—wrong in law. That being so, the particular protection that we are looking for would already be there.

To that extent, I wonder whether non-exhaustive lists become more of a problem than a solution, because the tendency is to consider them as tick-box exercises and to use principles such as ejusdem generis—the legal interpretive principles with which we have all grown up—to constrain the ability to enable freedom of expression. Leaving the provisions with a requirement to be compliant with article 10 of the convention might be enough.

Liam McArthur

Dr Tickell picked up a concern that those protections relate to two of the characteristics; at present, there appears to be a greater level of protection in some areas than others. We also have a better sense of how those protections work in practice, in relation to the law in England and Wales, which has been updated relatively recently. Are the concerns that you have in relation to those non-exhaustive lists borne out by your understanding and experience of that legislation?

Roddy Dunlop

Again, you will have seen that that was picked up in the faculty’s response. I agree with Dr Tickell’s description of sections 11 and 12 as “jarring”. You wonder why there are carve-outs for two protected characteristics and not for anything else. Perhaps that highlights the dangers of non-exhaustive lists.

I am not aware of any particular difficulty resulting from the changes in the law in England and Wales. That is perhaps because—and I am answering my own argument here—if you have a non-exhaustive list, which itself has to be read in a way that is convention compliant, there really is not a difficulty, and perhaps it just provides more clarity. If more clarity is welcome and if more guidance to the ordinary citizen as well as to the courts is desired, non-exhaustive lists have a part to play.

My overriding point is that, regardless of whether there are non-exhaustive lists, the protection is there. Therefore, really, what you are saying is that, if these lists are to be brought in, it is more to provide comfort or clarity, because, ultimately, the protection is there in the requirement that the provision be read in light of article 10 of the convention as necessary and proportionate before there is such a fetter on freedom of expression.

Liam McArthur

That is helpful. Michael Clancy, do you want to respond to the same question?

Michael Clancy

Sections 11 and 12 are exceptional, and the protection afforded to freedom of expression is not immune from criticism, if I may put it that way.

We noticed that the cabinet secretary had indicated that he is interested in the breadth and depth of these provisions. Of course, that is all about who gets protected in terms of their expression. One can see in section 11 that behaviour is not to be taken as threatening or abusive solely on the basis that it involves discussion or criticism of religion, religious beliefs and practices, proselytising or urging persons to cease practising their religion. Therefore, one might say that, under the bill, those who make that kind of comment are getting an additional protection to others, except those who make comments regarding sexual orientation, which would be protected under section 12.

Where does that take us? Criticism and discussion are very wide concepts, and being able to criticise or discuss is part of our suite of freedoms of expression that the dean and Dr Tickell have indicated are protected under article 10. Do we then move to extend the breadth and depth of those protections to the other protected characteristics? That is certainly an opportunity and a possibility that I am sure that the cabinet secretary is pondering even as we speak.

The Convener

I will bring in James Kelly next.

James Kelly (Glasgow) (Lab)

I turn to the issue of plays and theatrical performances, which are covered in section 4 of the bill. Mr Clancy, can you explain the current law relating to plays and theatrical performances and say whether the provisions in the bill fill any gaps in the current law and are therefore required?

Michael Clancy

Thank you for that question, Mr Kelly. We have concerns about section 4, which will replace section 20 of the Public Order Act 1986 but is much more stringent. We think that it presents a threat to freedom of expression in the arts. There is no justification in the policy memorandum for the drafting of section 4, and it is not clear what mischief the provisions seek to constrain.

Section 20 of the 1986 act refers to presenting or directing

“a public performance of a play”.

There is an exclusion under section 20(4), which states:

“a person shall not be treated as presenting a performance of a play by reason only of his taking part in it as a performer.”

That is quite distinct from section 4 of the bill, which states:

“an offence under section 3 is committed during a ... performance of a play by a person who is a performer in the play”.

That provision is different from the 1986 act and represents a significant change in the law.

Someone “who presents or directs” an event or performance is also captured in the bill, as is the case with the 1986 act. That causes difficulties, however, as there is no definition of presentation or direction in the bill. Someone could direct a play but not be present during the performance. Many directors would find the concept difficult to grapple with, but the drafters of the bill no doubt had a better idea of these things.

That provision would have an impact on the Theatres Act 1968, which was actually introduced to remove certain forms of censorship in theatres. The definition of a play in the 1968 act includes a ballet. We have to look closely at what the bill is trying to deal with and whether we need to revisit the wording to make it more modern and up to date.

I hope that that answers your question, Mr Kelly.

James Kelly

It does, indeed, Mr Clancy—it was comprehensive, as ever.

I turn to Mr Dunlop. Mr Clancy explained the situation with the 1986 act and the way that its provisions have, in effect, been extended in the bill to be more specific about performance. How do you feel about that? Does the Faculty of Advocates have similar concerns?

Roddy Dunlop

Yes, we do. When I looked again at our submission and the bill as originally drafted in preparation for today’s session, it occurred to me to ask why we are addressing plays in particular. The term “play” is very broadly defined; it would include stand-up comedy, for example, which is not a play as it is traditionally understood. We are not talking only about Shakespeare.

Why is that being attacked—or rather, addressed—specifically? It is for historical reasons that go back into the dim and distant, when there was a need to address plays because they were the primary form of public performance in society at that time. Nowadays, a far more pressing concern would be things that are said on social media or via YouTube or a similar platform. I would suggest that that is a far more pressing concern than what might happen in the King’s Theatre.

I wonder whether it might be appropriate simply to leave section 4 out of the bill, on the basis that an offence would be committed under section 3 if there was “threatening or abusive” behaviour or speech that was uttered with a view to stirring up hatred against a particular protected characteristic. If that happened in the course of a play, assuming there is the usual criminalisation of inciting or procuring such a matter, would that not adequately cover the concerns that might lie behind that aspect of the bill?

10:45  



It seems to me that, if somebody deliberately wrote something of that nature and caused it to be brought to the public in the form of a play, it would be caught by the general offence anyway. If that is correct—and I suggest that it is—I am not sure why there needs to be a particular and direct provision that deals with plays.

James Kelly

Thank you, Mr Dunlop. Those are valid points.

Dr Tickell, with regard to potential amendments in that area, do you share the concerns of the other panellists, and do you feel that the bill should be amended to bring it more in line with the Public Order Act 1986, such as by taking out section 4 altogether, as Mr Dunlop has suggested?

Dr Tickell

Yes, I agree entirely with the dean of the faculty. It is completely unnecessary, and it is another good example of a red rag that has been unnecessarily waved at the culture war bull of this hate crime issue. It has made performers and actors think that something special has been designed for them. The only addition that I can identify in having the provision in the bill is that a director who, through their negligence, has one of their performers effectively commit a stirring-up offence on stage would be covered by the law. Under the Criminal Procedure (Scotland) Act 1995, in Scots law, a person can be found guilty art and part, as we call it, of bringing about a crime if they are part of a common criminal conspiracy. The example that is usually given is of bank robbers, with the heist runner, the person who wields the sawn-off shotgun and the getaway driver all being equally guilty of the crime of robbery. If we apply that logic to a play in which an actor, with the connivance of their director, engages in an offence, the director is already guilty as a matter of law. The idea that the provision involves a dramatic change to the status quo is mistaken, and I agree that we would lose nothing that we should not lose simply by removing section 4 altogether.

Section 4 is there because it is in the 1986 act—it is another good example of the copying and pasting of bits of the 1986 act resulting in yet more backlash for the bill that, politically, it did not require. It distracts from the fundamental points and issues here. I argue that we should simply remove it, because it does not add anything useful to the bill. How could such a situation conceivably arise? What kind of negligence could a director engage in that would result in one of their actors accidentally stirring up racial hatred? I find that a comically absurd proposition. I think that we could remove section 4 and really lose nothing that we should not lose from the criminal law.

The Convener

Thank you. I did not think that we would hear about bank robbers, heists and ballet this morning, but every day is a school day.

In a few minutes, we will move on from part 2, but Liam Kerr has a few questions to wrap up this part of the questioning before we do so.

Liam Kerr

Earlier, the convener briefly alluded to police powers, particularly around search and seizure under section 6 of the bill. The faculty raised concerns about malicious complaints and the seizing of devices for long periods. In its submission, the faculty goes on to say that the offence could lie

“in the mere possession of material, irrespective of intention”,

which we spoke about earlier. The Law Society of Scotland highlighted the lack of a time period under section 6. On that basis, do you have concerns about how we amend that section? What do you suggest we do in relation to section 6?

Roddy Dunlop

As I recognised, some of the faculty’s concerns are already met by the proposed amendment. By taking the word “likely” out of the stirring-up provision, we would narrow the scope for malicious complaints for abusive—[Inaudible.]—for the unwelcome consequences that we have referred to in the submission.

However, there remains the potential for concern. I suggest that the safeguards that the faculty has listed in paragraph 46 of its submission onwards ought to be looked at carefully. In particular, we should consider whether we need a search and seizure provision that is far more aligned with other areas of the law and that is not quite as widespread and draconian as the one in the bill.

As I said, a large part of the concern that was created by the “likely” to stir up hatred provision is avoided by the proposed amendment. If the “insulting” provision were to go, that would also water down our concerns. A very much holistic approach has been taken in that, if we were to take away those primary areas of concern, that would bleed into all the other concerns that were listed.

Liam Kerr

I am very grateful for that answer. Does Michael Clancy have any further thoughts on that?

Michael Clancy

In general, the Law Society’s view is that section 6 lacks a lot of specification in that a warrant that was granted under the provisions would lack scope. We consider the provision to be unduly oppressive. We cited in our submission the case of the bill of suspension by Holman Fenwick Willan LLP and Duff & Phelps Ltd v the procurator fiscal at Glasgow. In that case,

“the terms of the warrant were limitless in date and wide in their description of the potential recoverable material and were too vague to have sustainable validity.”

No one would want warrants that were issued under the bill to fall foul of such case law and to be unduly oppressive. Therefore, we want the terms of the provisions in section 6 to be tightened in order to make them clearer and more effective.

Liam Kerr

I am very grateful.

I will move on to a separate issue, which is the cross-border element of the bill. If the witnesses watched the session last week, they will know that I explored that issue then. Lord Bracadale’s report included discussion of whether Scottish courts can deal appropriately with an alleged offence in which some aspects of the case take place in a different country. Lord Bracadale did not see a need for a specific provision on the issue in the bill. Last week, we heard from the cabinet secretary about how he felt cross-border issues were being dealt with. What are the witnesses’ views? Dr Tickell is on my screen, so perhaps he would like to start.

Dr Tickell

That is an interesting question. I suppose that the issue might apply particularly to situations in which there was cross-border co-ordination in the distribution of hateful materials. My understanding of how the Scottish criminal courts have adopted their approach is that, if part of a conspiracy takes place in Scotland, in general, that is enough to establish jurisdiction and to prosecute the case here.

In general, we apply an idea of territorial jurisdiction—in effect, what goes on in Scotland stays in Scotland. Some of the offences that have been created in recent times have included provision relating to extraterritoriality. I am thinking particularly about the Domestic Abuse (Scotland) Act 2018, which provides that, if there is a course of abusive conduct, some of which—or, indeed, all of which—takes place abroad, the perpetrator can be prosecuted in Scotland. In general, that is quite an exceptional approach to criminal law, but the Parliament has adopted that approach in the past.

My strong impression is that, when behaviour has had a strong association with Scotland, the criminal courts have generally been quite satisfied in indicting people in this jurisdiction for that behaviour, even if some elements of it have taken place outside Scotland.

The Convener

We will move on, unless Roddy Dunlop or Michael Clancy has a burning issue that they want to add to the points that Dr Tickell has covered. I see that they do not.

Shona Robison and John Finnie have questions about part 1 of the bill, which is about the statutory aggravation.

Shona Robison (Dundee City East) (SNP)

Good morning. My first question is about Lord Bracadale’s recommendation that statutory aggravations should continue to be the core method of prosecuting hate crime in Scotland. Do you agree? Do you think that the bill effectively provides for that? Perhaps we can start with Roddy Dunlop.

Roddy Dunlop

Absolutely. As the committee will have seen from our submission, we have no difficulty at all with part 1 of the bill. It seems to do exactly what Lord Bracadale suggested, which was, in effect, that there should be a continuation of the status quo—a situation in which statutory aggravation is seen to be the appropriate way of dealing with the vast majority of hate crime in Scotland. The vast majority of hate crime in Scotland already accompanies other criminality, and it is appropriately dealt with as an aggravation. We have no difficulty whatever with that.

Michael Clancy

Like the dean of the Faculty of Advocates, we agree with Lord Bracadale’s assessment, and we think that part 1 of the bill covers that. We have no difficulty with the aggravations, which are relatively uncontroversial.

There is an issue around the use of the word “evinces” in section 1(1)(a)(i), which I think we might come on to, but if you wanted me to, I could go into that a bit further.

Shona Robison

Yes, I was going to ask about the language that is used, so it would be helpful if you could respond on that.

Michael Clancy

We think that the use of the word “evinces” is anachronistic and a bit old-fashioned. I could see me starting a campaign to use “evince” in everyday language, but that would probably not go very far. It is an issue that other people have picked up on. Our law ought to be written in a way that makes it easy to understand, accessible and clear, and the use of language that is not currently in common usage probably does not meet that objective. A phrase along the lines of “demonstrates malice or ill will” might be a suitable substitute. That is the kind of thinking that the Law Society has been doing about that particular provision.

Shona Robison

Thank you for that. You might be aware that the cabinet secretary has said that he is open to looking at the wording and that he has suggested similar language to that which you have suggested.

Can we hear from Andrew Tickell?

Dr Tickell

Absolutely. Practically speaking, part 1 of the bill—although it has attracted almost no public commentary—is the most important part of the bill, because we know from all the different jurisdictions in the world that have hate crime rules that such aggravators are what we are talking about when we talk about hate crime. We are talking about behaviour that is already criminal, to which an aggravator is attached on the basis of what the accused person does in the perpetration of that criminal behaviour or immediately before or after the offence.

I am sorry to come back to this, but the bill has often been junked in the media as though it is comprehensively awful, ghastly and misconceived. Well, people who say that are junking aggravators as well. Aggravators are not only the law as it stands but a tremendously important way of marking out such behaviour as being, as the name suggests, aggravated or additionally wrongful. If someone picks their victim on the basis of their perception of their characteristics, that is one of the critical ways in which hate crime is realised and effected in our country, and I think that it is critical that the bill recognises that.

I am surprised that there has not been more conversation in the parliamentary debate about whether the factors and characteristics that are listed in part 1 of the bill are comprehensive enough. If we look at how other jurisdictions approach things that can potentially aggravate offences—the report by Professors Leverick and Chalmers to the Bracadale review is a very accessible way of doing that—we will find additional characteristics there. I would be very sympathetic to the characteristic of homelessness being added to the list. We know that people who are perceived to be homeless are much more likely to be victims of not just street harassment or abuse in the street but assault by members of the public, simply by dint of the fact that they do not have a home to go to.

11:00  



It is perhaps unfortunate that we have got locked in to those existing characteristics, partly because of this terrible fixation on the stirring-up offences. It might be at least worth contemplating whether other things might, and perhaps should, feature in the list of aggravating factors on the basis of the social experience in Scotland and the experience of the people whom we know tend to be the predominant victims of crime. That, after all, is what the bill is mainly about.

Shona Robison

Thank you. That is an interesting thought, on which I am sure we will reflect further.

That is all from me, convener. I know that colleagues have other questions in this area.

The Convener

Thank you. John Finnie wants to come in, and then Annabelle Ewing, unless she thinks that her questions have already been covered.

John Finnie (Highlands and Islands) (Green)

Good morning, panel. I have questions for Mr Clancy and Mr Dunlop about the written evidence that they submitted.

Mr Clancy, in your submission and in the meeting a moment ago, you welcomed the continuance of statutory aggravations. In your submission you said:

“The statutory aggravation model should continue to be the means used for prosecuting hate crime to maintain similar and appropriate thresholds for criminal offending as exist at present.”

Are you satisfied that the thresholds for criminal offending as outlined in the bill are appropriate?

Michael Clancy

Yes, we are. Subject to the issue to do with insulting behaviour, which we discussed earlier—of course, when our submission was written, the signal about the provisions that are now subject to amendment had not yet made its way through to anyone—I think that we are on solid ground now and can say that we are content in that respect.

John Finnie

Thank you.

Mr Dunlop, in the Faculty of Advocates submission, you said:

“Lord Bracadale’s conclusion in relation to aggravation in particular was based on the consistency which the unified approach would achieve with other existing hostility aggravations which he considered to be more easily understood by practitioners and the public”.

Do you believe that the bill delivers a unified approach with other existing hostility aggravations? Will the public understand that, and is such public understanding important?

Roddy Dunlop

Yes, I think that it consistently does what Lord Bracadale suggested would be done. Part 1 of the bill extends the existing list of aggravations to a wider range of protected characteristics. That seems to me to be consistent with the bill’s aim. As long as that is done along with the amendment to take out the aspect about behaviour that is likely to stir up hatred, making the crime one of intention only, as we discussed—and I echo Mr Clancy on the need to address the concern about insulting behaviour—that seems to me to raise the matters to a level at which they should be criminalised under part 2.

I have no difficulty whatever with the provisions on aggravation, because part 1 really just says that the offence is aggravated if someone who is committing a criminal act is doing so because of hostility towards a protected characteristic—and the protected characteristics that are listed are well understood in terms of employment law, for example—which seems to me to be entirely appropriate and exactly what Lord Bracadale was suggesting.

John Finnie

Thank you.

My next question is for the whole panel, but may I come to Dr Tickell first? Lord Bracadale recommended repealing the offence of racially aggravated harassment, but the Scottish Government did not accept that recommendation. Is it your view that the other characteristics have been sold short and that a hierarchy is being created in that regard?

Dr Tickell

I have a couple of thoughts on that. If we are going to keep the offence of racially aggravated harassment, there is no argument for it not to be in the bill. If one of the key reasons for the bill is to consolidate the law, I find it crackers that the offence is not present in the consolidating measure.

As you say, the Scottish Government did not accept that recommendation, which raises questions about what additional contribution or protection the offence under the Criminal Law (Consolidation) (Scotland) Act 1995 provides now in Scotland. We know that it has been used a lot by Scottish prosecutors, but the offence of threatening or abusive behaviour aggravated on the ground of race would seem to cover much of the same areas. However, if the 1995 offence is to be retained, it must surely be retained in the bill. If the bill is a consolidation measure to end fragmentation, I find it incoherent that the offence is not present in it.

It is undeniable that the idea of treating all the protected characteristics equally is no longer a structuring force in the bill. The Scottish Government’s decision to try to protect the issue of race has resulted in more complexity than would otherwise have been the case.

It is probably worth stressing how the law defines the idea of race, because it does not define it in the way the ordinary person might assume. It applies much more generally to national origins and citizenship, as well as to race and ethnicity, which is perhaps a wider framework for the activity of potential forms of abuse to take place in than many people might immediately realise.

I agree with Lord Bracadale about simply repealing the section 50A offence. Organisations such as Engender probably wish to model a form of misogynistic harassment on the offence, which I think is one of the reasons, in addition to those given by the Cabinet Secretary for Justice, why it has not been repealed and why it has not been proposed that the bill should repeal it.

Michael Clancy

I agree that consolidation should mean consolidation. Consolidation is generally a good idea for the public at large who are affected by laws and for the operating practitioners, whether they be defence solicitors or prosecuting procurators fiscal. The continuance of section 50A of the Criminal Law (Consolidation) (Scotland) Act 1995 looks out of kilter with the concept of consolidation.

We have been trying to consolidate law for a long time. The Scottish Law Commission, which was founded under the Law Commissions Act 1965, has consolidation of the law as one of its objectives. If we consider consolidation as a national objective for the law, we should be doing exactly that, especially when it is reinforced by a judge-led report.

Roddy Dunlop

I wonder to what extent it is the optics of the issue that are proving to be crucial. We have already spoken about the retention of the provisions on “insulting”, which has been driven largely by the fact that they have been on the statute books since 1986. There is a concern about the optics of taking them out, as if that would dilute a protection that has been there since 1986. Provisions regarding the performance of plays have been on the statute books for decades, and there is a concern that, if they were taken out, that, too, would dilute the protection. This offence might be another good example of that, as the worst thing for the optics would be to be seen to be getting rid of a legislative provision that has been used regularly by prosecutors and which has provided protection.

I wonder to what extent there continues to be a need for the section 50A offence, given what would be enacted by the bill. What additional element would not otherwise be caught by what is struck at by the bill? To the extent that there is a need for the offence—to echo the other witnesses—it really ought to be included in the bill.

The aim of a consolidating statute is to have the whole law of that particular genus in one place, so that one can go to the act and find out what is allowed and what is not allowed. The suggestion that we have a hangover offence in which we would have to go to a completely different statute—indeed, we would have to go to an amendment to a completely different statute—does not seem to me to be coherent. If you are going to retain—[Inaudible.]

John Finnie

I thank the witnesses very much for their responses.

The Convener

Annabelle Ewing also has a question relating to that issue.

Annabelle Ewing (Cowdenbeath) (SNP)

I want briefly to pick up on the threshold test of evincing malice and ill will, first with Michael Clancy. However, before going to Michael, I refer members to my entry in the register of members’ interests, wherein they will note that I am a member of the Law Society of Scotland and I hold a practising certificate, albeit that I am not currently practising.

The Law Society is not happy with the use of the word “evinces” in the term “evinces malice and ill-will”, but seems content with the term “malice and ill-will”. Michael Clancy will recall that Lord Bracadale recommended that we use the phrase “demonstrating hostility”. I think that the Crown Office and Procurator Fiscal Service said that the use of that phraseology would not change the test. What is the Law Society’s position on that point?

Michael Clancy

You ask an interesting question, as always. I think that we have settled on “malice and ill-will” because it is a well-understood phrase. It is not particularly out of popular usage—certainly not as much as the word “evince” is. A body of case law is present for us to reflect on the meaning of malice and ill will. That being said, if “hostility” is shown to have exactly the same characteristics as “malice and ill-will”—I am not sure that it does—we would examine that closely and give a view on it.

Annabelle Ewing

I put that question to the other two witnesses, starting with Dr Tickell.

Dr Tickell

It is a good question. The term “evinces malice and ill-will” sounds rather Dickensian, or slightly old-fashioned, does it not? I do not see how shifting the language from that term to “demonstrating hostility” is likely to dramatically change the scope of aggravators, not least because aggravators must be attached to underlying criminal behaviour—if the underlying behaviour is not criminal, it cannot be aggravated.

I do not see how Lord Bracadale’s “demonstrating hostility” is likely to dramatically add to or subtract from the scope of the aggravators. However, from the perspective of the ordinary person, the term “demonstrating hostility” is much clearer than the idea of “evinces malice and ill-will”.

Annabelle Ewing

That is one vote for each side of the argument. Mr Dunlop has the casting vote for this morning’s purposes.

Roddy Dunlop

I live in a world inhabited by those using Dickensian language, so I do not have any particular difficulty with the notion of evincing. In fact, the notion of malice is arguably more elusive. If one passes into the world of defamation in which malice is a recurring concept, malice can mean more than one thing. It means different things under the law of fair comment from what it means under the law of qualified privilege. Malice can mean intent to harm; it can also mean having an ulterior motive.

To that end, if the aim is to make things simpler for the man in the street, I see considerable merit in getting rid of the more Dickensian language and using the term “demonstrating hostility”, because that is an easily understood concept that does not have the wriggle room that the notion of malice might have. As I said, malice means a number of different things in a number of different contexts in the law. Therefore, I see some attraction in saying exactly what is meant, and that is demonstrating hostility.

Annabelle Ewing

I think that the jury is out on that point and, obviously, the committee will have to reflect further on it.

11:15  



The Convener

Although I am delighted that we have had references to Shakespeare and Dickens, can we please stop using “Dickensian” as a pejorative term? With that thought, over to Rona Mackay.

Rona Mackay (Strathkelvin and Bearsden) (SNP)

We have covered the different approach to race extensively, but I would like to ask a couple of brief supplementary questions on that. I have one for Roddy Dunlop and Michael Clancy, and a separate question for Andrew Tickell. Offences of stirring up racial hatred have existed since 1986 in all parts of the UK, so the one in the bill is not new. Last week, the cabinet secretary told the committee in evidence that two thirds of all hate crimes relate to race and that, last year, there were 3,038 racial stirring-up offences. Do those figures not make the case for not removing the word “insulting”, and for race to be an exception? If we removed “insulting”, as Roddy Dunlop suggests, would that not dilute the importance of the severity of hate crimes relating to race?

Roddy Dunlop

[Inaudible.]

The Convener

We need to unmute Roddy Dunlop, please.

Roddy Dunlop

The question is how many of those convictions were perilled on the notion of the word “insulting”. I will warrant that the answer is none, or almost none. To come back to the point that I made at the outset, it is difficult to conceive of a situation in which the language that has been used is not threatening or abusive but is deemed to be insulting in a way that should be criminalised.

I have been trying to figure out examples that might help on the issue. To pick up on one of Dr Tickell’s points, race includes national origin, so is it abusive to say that all Scots are stingy? Probably not. Is it threatening? Definitely not. Is it insulting? Probably. Do we want to criminalise that sort of matter? Is that not really too venial to merit the attention of the law? I suggest that it is.

I come back to the point that the English legislature made when it considered the background of the notion of “insulting”. The view was taken that the word could be removed without having any material impact on the legislation, because no prosecutions turn on that word and there was no realistic risk of dilution for that reason.

Therefore, I would not be concerned about dilution; rather, my concern lies the other way round—it is that the subjective notion of “insulting” would be ripe for abuse. I do not mean that in the sense that I anticipate that there would be convictions because, if we read the provisions as article 10 compliant, with reference to the Hungarian case that I mentioned, we will probably never get a conviction. My concern is about the anterior stage, at which the provision would be subject to abuse and misuse, such as malicious complaints. There would potentially be the draconian effects of a search without warrant, on the basis of retention of devices and so on. It would be a very easy way to get back at the neighbour you do not like—you make a complaint, and all their computers and so on are seized, and there would be all the potential cascading effects that might come from that.

Therefore, I do not see removing the term as a dilution; rather, I see it as a necessary fortification of the protection for freedom of speech.

Michael Clancy

As the dean said, there are good arguments for removing the word “insulting”. Lord Bracadale recommended that the word be removed. I suppose that one could approach the issue in a couple of ways. You could either remove “insulting” from the provisions of section 3(1), or you could add “insulting” to the provisions of section 3(2). However, neither of those sounds quite right. In relation to adding “insulting” to the provisions of section 3(2), there should be equality before the law. Retaining “insulting” creates a suggestion that there is a hierarchy of offences and some people who might be accused of committing an offence would be put to an additional hurdle. The bar of “insulting” is quite low and it is subjective.

On the point that you made about the numbers of offences, one can see that the use of racial epithets or insulting, threatening or abusive behaviour is a serious problem in Scotland, and you will probably return to that issue when you speak to the police officers later on. However, if the net of behaviour is larger—as it will be, if we include “insulting”—that is a potential source of the larger number of prosecutions under the previous legislation. I think that, if we were to remove “insulting”, the cohort that persists in making threatening or abusive comments towards people in the groups that are mentioned in section 3(1)(b) for the purposes of stirring up hate will not stop trying to stir up hate against those groups because “insulting” is not part of their weaponry. They will continue to be threatening and abusive and will still need to find themselves subject to the law.

Rona Mackay

Thank you; that is very interesting.

Andrew Tickell, in your submission, you say that the bill

“risks becoming mired in hyperbole and confusion”.

In evidence last week, Lord Bracadale said that, when he published his review, which is broadly represented in the bill, there was little or no pushback. Why do you think that “hyperbole and confusion” is happening now that we are taking evidence?

Dr Tickell

There are lots of reasons for that, which expand beyond Scotland. The bill is an intervention at a number of intersections of what can be thought of as culture-war issues. Whether we are talking about criticisms of religions by atheistic people, criticisms of Islam, churches criticising homosexual lifestyles, homosexuals criticising churches for criticising their lifestyles, or transgender reform and issues around the Gender Recognition Act 2004, this bill has something for everyone, hence the wild coalition that formed improbably over its proposals.

I feel that I was naive to say that the bill risked being

“mired in hyperbole and confusion”,

because that miring has more or less happened now, and I regret that. We are losing the point here. Some time ago, I wrote an article in a newspaper about one of the worst experiences with hate crime that I have encountered as a teacher. Some years ago, at Glasgow Caledonian University, a number of young students came to me and said, “I cannot come to class, because I have seen reported in the newspapers and on air that tomorrow is punish a Muslim day.” I cannot think of a more heartbreaking moment in my history as an educator. What does one say, beyond burning with fury at the experience of young students—principally women—who are part of my class in their own city and who feel that way?

At times, I find the way in which the bill has been discussed—often from a position of extreme casual privilege—to be repulsive. There are legitimate questions about free expression, which I posed, as you will have seen from my submission. As I said at the outset, it is absolutely right that the bill is anxiously scrutinised for its undoubted potential to chill free expression and I believe passionately that that is important. However, I find the bloodlessness of the discussion of hate crime, as if it is some kind of woke nonsense and virtue signalling, deeply inhumane and unrecognisable. I ask critics of the bill who talk about the bill in such a way what they would say to my student who came to me and said, “It’s punish a Muslim day, so I’m afraid to set foot in my university in Glasgow”. I felt profoundly ashamed that that was something that anyone could experience in our society.

Rona Mackay

Thank you.

The Convener

We will move on to explore some of the other hate crime characteristics.

Fulton MacGregor (Coatbridge and Chryston) (SNP)

I will leave the issue of sex and the list of hate crime characteristics to my colleague Annabelle Ewing, because I know that she was following that up last week.

I want to ask about some of the suggestions that we have heard that the hate crime characteristics might cover Gypsy Travellers, asylum seekers and refugees. Is there any merit in adding those groups, or are they already covered by the characteristic of race?

To save time, because I know that it has already been a long session, I will ask my second question now. The bill does not include any specific provisions dealing with sectarianism. Should it deal with sectarianism, or are the hate crime characteristics of race and religion, as defined in the bill, suitable to cover behaviour that is motivated by sectarianism?

Michael Clancy

The Law Society's committee did not specifically consider the issues of Gypsy Travellers, asylum seekers or refugees. It may be that some of the people who fall into those groups would be covered by aspects of the bill, for example, under section 3(1) and the crime that is created under section 3(2) because they might belong to a race or ethnic group or have specific national origins, and presumably that would apply to asylum seekers and refugees, too. However, there may be issues that would cause some difficulty in putting those characteristics into the provisions for race. That would have to be dealt with on a case-by-case basis. It is something that the Lord Advocate and the prosecutors would have to consider when seeking to make their decision on prosecution for breach of the provisions of section 3. I hope that that gets to Mr MacGregor’s point.

We had noted that sectarianism was not provided for in the bill. If one takes sectarianism to relate only to religion, there may be a shadow of it in section 3(3)(3), which talks about

“religion or, in the case of a social or cultural group, perceived religious affiliation,”

but sectarianism can be related to other factors, too, some of which also come up in the bill. [Inaudible.]

The Convener

We have lost Michael Clancy. Fulton, do you want to direct that question to Roddy Dunlop?

Fulton MacGregor

I think that I got the gist of what Michael Clancy was saying. Yes, we can move on to Roddy Dunlop.

11:30  



Roddy Dunlop

In answer to the first question, it seems to me that the wording that is used at the moment will adequately protect the groups that you have mentioned. For example, you mentioned Gypsies—[Inaudible.]—jurisprudence in that area in regard to protection under employment law, for example, in which protected characteristics are already well understood. I think that I am right to say that Irish Travellers and Romany Gypsies have both been recognised as ethnic groups for the purposes of employment protection, and by the same token that would make those groups fall under the definition in the bill for

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

The term “ethnic or national origins” is sufficiently wide to cover the groups that you mention and, likewise, it will cover asylum seekers, so I do not think that there is any difficulty there.

Scotland’s particular difficulties with sectarianism mean that issues will always be thrown up. We are well aware of the ill-fated attempts to deal with them using the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012. It seems to me that the provisions in the bill are sufficiently flexible to deal with problematic sectarianism. If we are dealing with behaviour that is threatening on the basis of religion, as defined in the bill, there is flexibility in the bill, as Mr Clancy pointed out.

There is also some dubiety—and the faculty has alighted on this in its submission—because of a potential vagueness about the definition of “religion” or, in the case of a social or cultural group, “perceived religious affiliation” and what exactly is meant by that.

However, if the question is whether the bill will sufficiently catch sectarianism that should be criminalised, the answer is yes, it will. If the question is whether it is too wide to catch activity that might be thought to be problematic, I come back to my central point, which is that, as long as we take away the potential for accidental criminalisation by removing the “likely to stir up” provision, the faculty’s concerns in that regard have been addressed.

Dr Tickell

I suppose that it is worth stressing that the perception that is referred to in the bill is the accused person’s perception of the characteristics of their victim. In that sense, if the accused perceives them to be of an ethnic minority, that is likely to be caught by the bill.

The S-word—sectarianism—has been mentioned. As Annabelle Ewing will know, when the football act was being repealed, a group was formed—at the insistence of the Justice Committee, in fact—to consider whether we should have a legal definition of sectarianism. That has largely been memory-holed. I think that what we recommended went down like a cup of cold sick, to use a technical legal term. We recommended that, in context, there could be a definition of sectarianism. It would be fair to say that that caused considerable controversy and did not persuade everyone.

One of the distinctive features of sectarianism in Scotland is that it is what the American scholar Kimberlé Crenshaw would describe as an “intersectional issue”. Perhaps it is a missed point that Lord Bracadale did not use the language of intersectionality—when people are targeted because they have a combination of factors, not only one—in his report. It is not simply an accident of gender or sexuality that sees lesbians being invited by strangers on buses to kiss each other; it is because of an intersection of both their sex and their sexuality.

Sectarianism is not so different in the sense that it is often related to a toxic combination of ethnic origin and Christian denominational questions in a range of forms. This bill will not address that, and the language of sectarianism will remain elusive in legal terms even if, practically, someone who engages in that kind of sectarian behaviour would be caught by the bill. One good example of that was the famous assault of Canon Tom White, who was spat on and subjected to abuse based not only on his religion but also on his perceived Irish national origins or citizenship.

At the very least, the way the aggravator is constructed in the bill means that we could much more tidily combine those two elements. However, the language of sectarianism will not be used. For some people, that will probably be a good thing. Some people would argue that to use the language of sectarianism is to draw a sort of false equivalence in effect and to throw a cloak over predominantly anti-Catholic and anti-Irish feeling by using the language of sectarianism, and those people would insist that the language of race is much more appropriate. That is where we are at at the moment. That is clearly an omission from the legislative language of the bill although, having worked with colleagues to try to define sectarianism, I know that it is not easy to do. As we encountered, it caused considerable controversy and I suspect that the bill does not need any more of that.

Fulton MacGregor

I thank the panel for their detailed answers. I am happy for the convener to move on to Annabelle Ewing. I have one final question, which would be better placed after Annabelle’s questions. Perhaps when the witnesses are responding to her questions or summing up, they could say whether they have any concerns about the way in which various hate crime characteristics are defined in the bill, further to what they have already spoken about.

The Convener

As Fulton MacGregor suggests, I will bring in Annabelle Ewing at this point. If witnesses want to respond to Fulton’s question, could they respond to Annabelle and Fulton in a oner—another technical legal term?

Annabelle Ewing

I will turn to an obvious exclusion from the bill, which is the characteristic of sex. The panel will be aware that it seems that a parallel working group will be set up, although that has not yet been done, to look at creating a stand-alone offence of misogynistic harassment. It would be interesting to hear the panel’s views on that approach and what, if any, risks that may involve.

In terms of process, there is a kind of get-out-of-jail-free card in the sense that it is proposed that the bill will have a provision to allow secondary legislation to be lodged to introduce the characteristic of sex in the scope of the legislation. What does the panel feel about that process and its appropriateness when we are dealing with serious criminal offence issues?

Roddy Dunlop

That is a question that the faculty addresses towards the end of its submission. We note Lord Bracadale’s recommendations on that controversial area. The question that arises most clamantly is why, when protected characteristics are well understood to include sex in many other contexts, that is not being addressed at the same time in the bill. I understand why the view has been expressed by many that the characteristic of sex should be addressed at the same time in the bill.

Equally, that gives rise to a variety of considerations that have been looked at by Lord Bracadale. Doubtless, that is why the characteristic of sex has been stripped out and looked at separately. It seems to me that it is a quintessentially political matter and I understand why it is being taken separately.

The matter needs mature consideration. If it is not thought possible to put it through at the same time as the provisions in the bill, that is okay as long as it is being given the consideration that it needs. It is fairly obvious that we need to merely glance at Twitter or any other form of social media to see that there are difficulties with misogyny in the same way that there are with the other species of hate crime that the bill directly addresses.

Michael Clancy

Similarly, the Law Society is looking forward to hearing what the working group on the sex characteristic will produce. It is a matter of policy as to whether the Government goes down that road.

On section 15 in general, the way in which the matter is being approached in the bill is potentially problematic. There could be the creation of crimes under the proposed regulations. That is not necessarily a bar to dealing with the matter by regulations, but we think that, where a new crime is created—particularly, as the dean of the faculty has indicated, in what is likely to be a very controversial area—it should receive the fullest scrutiny of the Parliament. In the first instance, that would suggest primary legislation for implementing any change, but we think that, if the Government is insistent on using regulations, those regulations should be subject to the super-affirmative procedure so that there is an opportunity for the relevant committees of the Parliament to take evidence on the terms of the regulations and to ask the Government to think about amendments to those regulations. That is where we stand on that issue at the moment.

Dr Tickell

I agree with much of what has been said thus far. Obviously, the proposed provisions do not represent the most satisfactory way to achieve a consolidation, with on-going uncertainty about a core element of what would look like the global picture of hate crime after the bill has passed. However, that is where we are.

The underlying issue of whether sex should be a protected characteristic for aggravator purposes and stirring-up offences, and of whether there should be a separate offence of misogynist harassment, raises some fascinating and important questions around gender neutrality in our law, which we have been moving towards in general. However, echoing what I was saying about the sectarianism example, I ask how many men are subject to misandric harassment on the streets of Scotland. I am not sure that I have met any who have been subject to it, and I certainly have not been myself. If the social reality is one thing, I can perhaps see the argument that the law should effectively reflect the misogynistic framework within which that kind of harassment occurs, as it does to more or less every woman I have ever met in my puff.

It is unsatisfactory that we are where we are on this matter. I agree with Michael Clancy that scrutiny of the proposals will be important, and it will raise fascinating questions of principle about how far we want our law to be gender neutral and how far, by making the law gender neutral, we are in effect disguising the gender inequality in our society. That, ultimately, is what I think the whole debate is driving at.

Other people can speak for themselves on the subject, but there are wider questions about lots of other crimes that could be interpreted through a feminist framework as being motivated by and rooted in misogyny and hatred of women on some level. That is a difficult thing to realise in the law. Can we think of examples of serious sexual offences that are not, to some extent, failing to recognise the full humanity of a female victim in those contexts?

That kind of debate is sensitive and complicated, and it would have been far preferable to deal with all these matters in a oner, instead of approaching them in what is a fragmented way.

Annabelle Ewing

I thank all the witnesses for their comprehensive answers. We have been given further issues to reflect on when we come to consider this matter further.

The Convener

The final questions go to Liam Kerr.

Liam Kerr

I will direct my first question to Roddy Dunlop, followed by Michael Clancy.

Last week, I put to the cabinet secretary the concerns of the Scottish Courts and Tribunals Service on the financial memorandum and the costs that are associated with the bill. What resource implications does the bill have for the legal profession and the courts? Are they adequately reflected in the financial memorandum?

Roddy Dunlop

I cannot instantly think of a particular such implication—there is no impact on the legal profession itself. If the bill leads to more prosecutions, that will lead to more business for the legal profession. I think the real concern is whether it will lead to resourcing problems for the police.

I come back to the question whether the right balance is struck. If the right balance is struck, such that one is only targeting people who are setting out with intent to stir up public hatred, or who are already committing crimes anyway—referring to part 2 followed by part 1, getting those the wrong way round—I do not see that that will create a massive additional problem. As always, the proof of the pudding will be in the eating, and it is important to recognise that we are expanding the existing aggravators to deal with all protected characteristics. However, I do not think that that will have a huge resource implication, so that does not seem to be a consideration that ought to concern the committee.

11:45  



Michael Clancy

It is likely that lawyers will require additional training. When a new consolidation measure reaches the statute book, there is always the potential for a flurry of activity in continuing professional development. People will certainly want to learn about how the law will work in future and the changes to how the law has worked hitherto. Therefore, there will be training for lawyers in both prosecution and defence, and there will be training for judges, which I am sure the Judicial Institute for Scotland will take on willingly. I suspect that there will be training for others in the justice system, especially the police and, potentially, social work departments, because if people have been subjected to threatening or abusive behaviour, they might need additional support across the piece. However, that does not tie into the financial memorandum, and if we have any further thoughts on the financial memorandum or the impact assessment, we will come back to the committee on those.

Liam Kerr

With your indulgence, convener, I will ask a final question. Dr Tickell, I was very interested in all submissions, but I was particularly interested in your reference to Thomas Aikenhead and your comment that striking blasphemy from the statute book will be the “least restitution” that we can give. I am paraphrasing, of course, but Aikenhead was indicted for having engaged in conversation with friends at the University of Edinburgh in which he suggested, in much stronger terms, that Christian religion was “nonsense”. It is a slightly philosophical question, but could it be argued that, by repealing blasphemy but incorporating some elements of part 2, we might be bringing in blasphemy by the back door for challenging the prevailing orthodoxy after the bill is passed?

Dr Tickell

No, I do not think so, to be honest. Thomas Aikenhead was a 20-year-old university medical student. He denied the trinity and mocked the history of the “impostor Christ”, who he said pretended that he was a magician to poor fisher folk in and around Israel—those were his criticisms. He was ratted out by his friends and, thanks to the Lord Advocate of the day and the General Assembly of the Church of Scotland, he found himself throttled by the hangman aged just 20, with all cries for mercy turned away. He was the last man in this country to die for the crime of blasphemy, so his ghost, at least, will be laid to rest if that element of the bill passes, and I would welcome that.

To go back to the initial point, with the new thresholds proposed in the cabinet secretary’s changes to the bill, we would need to prove threatening or abusive behaviour that would stir up hatred against the protected characteristic and demonstrate that the behaviour was not reasonable in the context, taking into account the idea that criticism of religion is an important part of not just article 10 of the European convention on human rights but article 9, on freedom of religion or lack of belief. Although I can see the rhetorical charms of envisaging this as a new form of criminalising the Thomas Aikenheads of our time, looking at the detail of the bill, I would not accept that. However, I very strongly welcome the repealing of the offence of blasphemy. It has existed for far too long on the Scottish statute book, as Mr Aikenhead reasoned to his terrible cost.

The Convener

That is a good consensus on which to end. It has been a long evidence session. I am grateful to our witnesses for their time and detailed consideration. You have all helped the committee very much with our deliberations on this important bill. We will suspend for five minutes before reconvening at 11.54 for the second panel of witnesses. Thank you.

11:49  



Meeting suspended.

11:54 On resuming—  



The Convener

Welcome back, everybody. I apologise for keeping everybody waiting for so long while we explored a variety of issues with our first panel of witnesses. We now have with us Assistant Chief Constable Gary Ritchie, from Police Scotland; Calum Steele, the general secretary of the Scottish Police Federation; and Anthony McGeehan, procurator fiscal from the Crown Office and Procurator Fiscal Service. You are all very welcome.

As with the first panel, I will not invite you to make opening statements, as that will eat up even more time, which we just do not have. We will launch straight into questioning, if you will forgive me. I will start questions for you exactly where I started with the first panel. Given the nature and tenor of your written submissions, it is obvious that you all welcome the cabinet secretary’s proposed amendments to the stirring-up offences in part 2 of the bill. The question is whether, in your view, they go far enough to ensure that the bill does everything that it needs to do to protect fundamental human rights, such as free speech, privacy and fair trial. I direct that question to ACC Gary Ritchie first.

Assistant Chief Constable Gary Ritchie (Police Scotland)

I appreciate the opportunity to speak. I will preface my comments by saying that, from my perspective and the police perspective, two main considerations should apply to the examination of the legislation. The first is the enforceability of the legislation, in a practical policing sense. How realistic is it and how does it help us respond to public demand and expectation?

The second element is something that we have seen quite a lot of recently, through the establishment of coronavirus legislation. There are now considerations about whether a policing intervention is likely to affect public trust and confidence in the police. Obviously, that impacts on the fundamental principle of policing by consent and with legitimacy. All my answers, in terms of the official position of the police service, will be based on those two principles.

To answer your question, yes, we welcome the proposed amendments to require intent, for two reasons. First, it creates equivalence across all the protected characteristics. As has been mentioned before, it removes the potential for members of the public to perceive a hierarchy of discrimination. It also provides consistency for policing. Quite simply, it makes things easier to understand and easier for us to get the message across to our officers and apply the principles and thresholds for when an offence has been committed.

Touching on what I said about the second principle, as far as the police are concerned, someone having intent is the basis of all interventions. It provides a very strong threshold—it is just a lot clearer in practice.

Calum Steele (Scottish Police Federation)

Like the three previous witnesses, the Scottish Police Federation welcomes the amendments that the cabinet secretary has proposed. They are a substantial move towards alleviating a lot of the concerns that would arise for police officers, the reputation of policing and the managing of public expectations of the enforcement of the bill; they certainly remove a lot of areas of conflict.

The “likely” provisions were fairly recognised by a large number of people as being by far the most controversial. As was properly picked up earlier by Mr Dunlop, that addresses or certainly goes a long way towards responding to the risks that would have accompanied those provisions in terms of search and the pernicious effect that that could have on the relationship between the public and the police service.

12:00  



We identified some remaining elements in our submission, not least of which is the proposal to grant powers of search to members of police staff. The ability for police officers to exercise powers over the public is something that is generally accepted, but the Parliament should consider very carefully whether to extend that to police staff who do not have the same limitations placed on activities in their private lives and are not subject to the same disciplinary regime.

I am sure that we will get into this later on, but some of the comments about moving away from subjectivity towards objectivity in tests that should be applied by a police officer will be helpful.

Demands will inevitably be placed on the service. Whenever anything new is introduced on to the statute book and policing enforcement is expected, the requirement to record, measure and report on that tends to be understated in accompanying financial memoranda. I am sure that ACC Ritchie will touch on that later.

Generally, the removal of the “likely” provisions will substantially address many of the SPF’s concerns.

The Convener

Thank you. I put the same question to Anthony McGeehan.

Anthony McGeehan (Crown Office and Procurator Fiscal Service)

The restriction of the stirring-up offences in relation to the majority of the protected characteristics on the basis of intent only is welcome. It provides welcome clarification of the behaviour that will be criminal.

However, a consequence of that restriction is that it expands the difference between the approach taken to the majority of the protected characteristics and that of race. As touched on during the earlier evidence session, offences based upon race include behaviour that is insulting, and it also includes behaviour that is likely to stir up hatred against a group, based on its racial characteristics.

The Convener

I have three follow-up questions and I will ask them all together in the interests of time. I invite the witnesses to respond to them all in one go. They were explored earlier this morning with the first panel.

Should “insulting” be removed from the bill, so that we are seeking to criminalise only those stirring-up offences that are “threatening” and “abusive”, for the other characteristics and for race?

Secondly, does “abusive” need to be defined to ensure that it is objective rather than subjective? In other words, before the Crown can show that something is abusive, does it need to show that such behaviour would have caused a reasonable person to feel fear or alarm?

Thirdly, should there be a dwelling defence in the bill, as there is in the Public Order Act 1986, or are you relaxed about the idea of public order offences being committed in a private dwelling coming within the scope of the criminal law?

Perhaps we will take answers in the same order, with Gary Ritchie going first, please.

Assistant Chief Constable Ritchie

As Calum Steele and Anthony McGeehan said earlier, the simple answer to your first question is yes, because it could create a hierarchy of discrimination and because it is inconsistent. It makes it more difficult for the officer to understand what types of behaviour and what circumstances cross the criminal threshold. In circumstances in which they were dealing with more than one type of discrimination at the same time, that would further add to the confusion.

On the second question, “abusive behaviour” is pretty common parlance for police officers in the execution of their duties. We would always welcome further clarification, but should the provisions of the bill remain as they are, police officers would not have difficulty in interpreting and applying the legislation.

On the third question, I am probably getting into personal opinions, but I think—and I think that this would be my organisation’s position—that some of the potential offences are so insidious that it goes a bit too far for the public expectation to be that people would be considered to be protected just because they committed them in their own home. I refer members to answers that witnesses gave earlier this morning about crimes that can be committed in people’s own homes. It is not unusual to see that crimes of such significance would not carry a dwelling defence. My view and, I think, the view of the police service would be that that should not apply.

The Convener

Thank you very much. That is very clear and helpful.

Calum Steele

The short answer to the question whether “insulting” should be removed is yes. The reasons that were given previously—it is a hangover from section 18 of the 1986 act—were well made, and there is little that I can add to that.

The question whether there should be an objective rather than a subjective test for being abusive is, arguably, one for the criminal law to determine. The fact that there has been debate and discussion about that particular point gets to the very heart of one of the remaining challenges for police officers.

Currently, we correctly identify that section 38 of the Criminal Justice and Licensing (Scotland) Act 2010—in police parlance, we refer to a statutory breach of the peace—provides the objective test for the reasonable person. In many instances, that objective test against things that are immutable and plain to see is very easily applied, but I am not so sure that the same objectivity could be applied to things that are much more opinion held, for example—religion being the obvious manifestation there. Of course, there are areas of sex and gender to consider. In the view of some people, sex is immutable. Gender seems to be much more fluid, but others take the view that, rather than being opinion sourced, views that people hold passionately are, in fact, immutable in their own right.

Like the previous witnesses, I think that it would probably be helpful if that objective test were written into the legislation. Although the current test for objectivity relates to threatening or abusive behaviour or, indeed, insulting behaviour, we have to recognise that there are areas of discourse in Scotland right now—about sexual orientation or gender recognition, for example—in which things that are insulting could very quickly be redefined as abusive in order to hit the criminal threshold in the legislation. I think that, without the reasonable person test, it would be much harder for those who have been accused of crimes to put forward a defence. I do not think that that will make the policing of that any easier in any way, shape or form. In any event, the removal of “insulting” does not apply to sexual orientation and transgender identity, but I think that it is inevitable that, as such crimes become more known across our society, there will be a clamour for the police reach to go much further than the original statute perhaps intended.

On the dwelling defence, I largely concur with the three learned gentlemen on the previous panel. There is no general defence for people committing crime in their own home in any event. The follow-over from the Public Order Act 1986 is highly relevant, but the removal of the “insulting” provision would, to some extent, ameliorate the requirement—or the perceived requirement—for a dwelling defence. Again, we have to recognise that there are some fairly hot topics that can be discussed in homes that could then find themselves being repeated in public that, depending on the particular cause or case that was being advocated by others, could be deemed to be a form of hate crime taking place in the home.

The one that presents itself front and centre at this moment in time in Scotland is transgender identity; that is a conversation that is taking place in our homes and being repeated in the playground—“My mum said,” or “My dad said”—and it is then repeated by other children to their parents, who hold a different view. Although that, at a conceptual level, would be insulting, I do not think that it would be too much of a stretch for people to argue that those are hateful and abusive views to be discussing in the home.

I do not think that it is so much in terms of the more extreme or the more obvious forms of hate crime—and I am mindful of how I use this terminology—that the SPF has some concerns. It is about those that very much fall into the grey areas—sexual orientation and transgender identity most obviously at this particular point in time, but it is not beyond the realms of possibility that legitimate discussions over immigration status and refugees that are taking place in the home could similarly find themselves being reported to the police as hate crimes. Conversations that were had in private could be taken out of the home and repeated, possibly rather innocently, by other members of the home and an “abusive” label could be attached to that.

The Convener

Absolutely. Bearing in mind what I call the iron law of unintended consequences is exactly what I am struggling with here. That is very helpful, thank you. I ask Anthony McGeehan to answer the same questions.

Anthony McGeehan

The proposal to remove the word “insulting” was reflected in Lord Bracadale’s review and, in making that recommendation, Lord Bracadale referred to a review conducted by the Crown Prosecution Service of relevant offences reported to the CPS and a conclusion that the removal of the word “insulting” did not reduce its ability to take prosecutorial action in relation to reported offences. The COPFS has not seen the same scale of relevant offences reported to it recently in relation to the 1986 act, but between April 2009 and March 2020, 27 charges under section 18 of the 1986 act and 13 charges under section 19 of the act were reported to the COPFS.

Policy officials have conducted a review of those cases and that review has confirmed 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. Therefore, the COPFS would support the removal of “insulting” and would observe that its removal would reduce the gap between the approaches taken in relation to race and the remaining protected characteristics.

In relation to your second question, which was whether a definition of “abusive” should be included in the legislation, the concepts of threatening and abusive behaviour are familiar concepts in Scots law and familiar concepts to Scottish prosecutors, but if there was concern that the term “abusive” was not sufficiently clear or perhaps risked a subjective assessment of behaviour, there are precedents for defining abusive behaviour, not only in relation to section 38 of the 2010 act, which has already been referred to today, but in relation to the Domestic Abuse (Scotland) Act 2018, which introduced a definition of abusive behaviour. Again, the introduction of that definition would not be a proposal that the COPFS would object to in principle.

On your question about the absence of a dwelling defence, the reality of offences reported to the COPFS today is that some offences occur within domestic settings. Unfortunately, hate crime occurs in domestic settings. The absence of a dwelling defence, in the wider context of Scots criminal law, is not remarkable.

The Convener

Thank you. Those were crisp, clear and helpful answers from all three of you.

12:15  



Liam McArthur

I want to start with the issue of freedom of expression. In the previous session, there was a general feeling that ECHR provisions provide protections already, but an acknowledgement that the bill allows for more specific freedom of expression protections in relation to a couple of characteristics, although it does not do so across the board. The cabinet secretary made clear to the committee that he is open to widening and deepening those protections. What are your views on that?

Anthony McGeehan

The question of whether the provisions in relation to freedom of expression should be broadened or deepened is a matter for the Parliament. However, I can confirm that, at present, when assessing relevant cases, prosecutors are cognisant of article 10 rights and would consider any case reported to the COPFS with reference to the right to freedom of expression, albeit that the right to freedom of expression is not unqualified. If the Parliament decides to broaden or deepen the provisions relating to freedom of expression, those provisions would be reflected in prosecutorial guidance and would continue to be reflected in prosecutorial decision making.

Liam McArthur

That is helpful. The concern that was raised with regard to the way that things are expressed at present is that a hierarchy could be construed with regard to where those freedom of expression protections apply. There is also the concern that, if we embark on a non-exhaustive list of protections, we will end up not including some protections that some groups might want. Does the COPFS think that those risks could be managed if the Parliament were to take up the cabinet secretary’s offer?

Anthony McGeehan

Regardless of the approach that is taken by Parliament, article 10 would apply to prosecutorial decision making. Obviously, prosecutors will have regard to the terms of legislation but, today and tomorrow, they will have regard to article 10 rights in relation to people who are accused of those crimes and reported to the COPFS.

Liam McArthur

ACC Ritchie, do you have any observations in this area?

Assistant Chief Constable Ritchie

Again, my observations are similar to those of Anthony McGeehan. The proposal is to be welcomed. Of course, the extent to which the matter is defined is an issue for the Parliament. We are well used to ensuring that—as is the case in relation to public order legislation—article 10 protections are built into our policing plans and responses.

It is helpful to police officers to have that freedom of expression provision included in the legislation. However, it is for Parliament to decide how extensive it is.

Liam McArthur

We talked earlier about the benefits of additional clarity being as much about those with whom the police are engaging as they are about the police’s understanding of offences that they are well used to dealing with. In that light, would you say that a non-exhaustive list might actually be quite helpful?

Assistant Chief Constable Ritchie

It is always more helpful to us if the people who we are policing understand the legislation. That is actually what I meant when I said that it is helpful to police officers to have the freedom of expression provision included. If the provisions lay out in clear terms what is permitted and what is not, that is helpful, purely in terms of our engagement with people.

Liam McArthur

Calum Steele, do you have any comments on that?

Calum Steele

I suppose that, to an extent, this is where the law at the prosecution stage and the law at the stage at which it is applied by the police tend to clash. The point was made earlier, most strongly by Mr Dunlop, that it would be almost impossible for prosecutions to take place against the backdrop of article 10 rights, even though the bill does not provide an exhaustive list of freedom of expression defences.

However, set against that, we face the very real situation in which the absence of an express freedom of expression provision in the bill will be utilised as a vehicle to levy criticism at the police service for not acting on concerns that certain kinds of behaviour might be perceived by certain groups as being threatening or abusive. That is an area in which we need to pay much more attention to the potential impact on the relationship between the public and the police service.

To an extent, the police always have to make a value judgment as to whether the activity that they are policing is in its own right likely to be found criminal by the courts. I do not want to labour the point about transgender identity, but that is an area that clearly has the potential to result in fairly significant comment by a whole load of people. It also has the potential to result in fairly significant expectations on the police service to undertake certain action in response to that and to result in adversarial contact between the police and members of the public, but it will probably not result in a prosecution, because of the article 10 provisions.

Therefore, extending the list would be helpful from a policing perspective but not particularly informative from a prosecutorial perspective.

Liam McArthur

That was very helpful—thank you.

Liam Kerr

I have one brief question, which I will direct first at ACC Ritchie.

As you heard from our discussion with the first panel, there are concerns about the search and seize provisions in section 6. In particular, there are concerns about the precision of the drafting and the definitions of what might be seized. I note that Calum Steele raised an issue about the extension of the power of search to police staff. Do you share those concerns? If so, what needs to be changed in section 6 to address them?

Assistant Chief Constable Ritchie

From my reading of section 6, it seems to provide for a fairly traditional power of search, which requires a warrant. Police officers will need to ensure that the evidence is compelling or convincing enough to take to a sheriff or justice of the peace in order to get a warrant in the first place, so the point that was made earlier about the possibility of malicious reports leading to us taking positive interventionary action that involved us crashing down a door needs to be put in context. Receiving one anonymous phone call about the possibility of somebody having materials that crossed over into the realms of being an offence would be insufficient for us even to approach a sheriff or a justice of the peace to seek a warrant. Therefore, in a practical sense—as I said earlier, I need to keep looking at things in a practical sense—I do not really have an issue with the power of search as it is framed.

I turn to Calum Steele’s earlier point about certain powers being exercised by members of police staff, which is the unusual element here. I think that the intention behind that aspect of the bill is probably to recognise that in various elements of policing we have recruited experts in areas such as forensic or cyber analysis. In the future we might see much more such investigative capability not being in the hands of police officers. That is perhaps a nod to the future, but it is probably worth exploring a bit more.

Calum Steele

I do not want to sound like a scratched record, but I believe that, to an extent, the removal of the “likely” provisions would significantly ameliorate the concerns that surround section 6. However, as in all such matters, ultimately, case law will be the determining factor as to whether the provisions are being used correctly. I highlight the concerns that were identified by Mr Dunlop, Mr Clancy and Dr Tickell in the earlier evidence session. They will be able to give much more rounded and relevant answers on the subject than anything that the SPF could offer. Police officers will always do what we believe the law allows us to do. If case law then finds against us, our practice is moderated accordingly thereafter.

Liam Kerr

I am grateful for that answer.

Calum Steele

Sorry, Mr Kerr but, just before I leave that subject, I would like to come back to the issues of investigative powers and the role of police staff.

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. I cannot envisage any occasion on which a non-warranted individual would be going through a door and seizing equipment from members of the public.

Let us not forget that members of police staff are not curtailed from taking an active part in politics or in public or political debate. 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.

Liam Kerr

Thank you for that. Anthony McGeehan, do you have anything to add?

Anthony McGeehan

The issue might arise because the remaining concerns have not been set in a real-world context. As Mr Steele has said, a number of the concerns that have been raised have been mitigated by the proposed Scottish Government amendment. I will set the remaining ones against the background of a real-world warrant situation.

As ACC Ritchie has indicated, the police would consider an application for a warrant only where the officers involved thought it a proportionate response to the alleged offence. They would not take a warrant directly from a justice of the peace or sheriff; they would apply to a procurator fiscal for an assessment of whether there were reasonable grounds to approach a JP or sheriff for one. The sheriff would have to make a final assessment of whether granting a search warrant was an appropriate and proportionate response to the alleged offence. Therefore, although concerns remain, some would be mitigated by the systemic approach that is taken to the consideration and granting of a warrant.

12:30  



Mr Steele raised the issue of the granting of a warrant to a member of police staff. Again, I will set that in a real-world context. It is not unusual for a procurator fiscal to be approached for a warrant in relation to material that is held electronically, and for the requesting police officer to advise that, in order to effectively execute the search warrant, they will require the assistance of forensic experts. 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.

One concern that was raised this morning related to the lack of a time limit being attached to search warrants that are granted under section 6. There are statutes, such as the Misuse of Drugs Act 1971, that impose a time limit on search warrants, but other statutes provide for search warrants that do not have a time limit attached to them. The vast majority of common-law warrants that are granted in Scotland do not have any time limit attached to them. Therefore, the fact that a time limit is not attached to the proposed warrant provision is not remarkable. However, if the Parliament were to decide that a time limit should be attached to the warrant provision, from a practical perspective and subject to anything that Calum Steele or Gary Ritchie might offer, I do not think that that would cause a practical problem.

The Convener

Shona Robison has questions about the statutory aggravation.

Shona Robison

I will wrap two questions into one, for the sake of time. Lord Bracadale recommended that statutory aggravations should continue to be the core method of prosecuting hate crime in Scotland. Do the witnesses agree, and does the bill effectively provide for that?

In line with existing legislation, the bill states that the court must make it clear what difference an aggravation has made to the sentence that is imposed. The witnesses might be aware that Lord Bracadale recommended removing that requirement. I think that he felt that the practicalities of pulling out that element of sentencing would be quite challenging. It would be helpful to hear whether the retention of that requirement is helpful.

Anthony McGeehan

I will deal with those two questions in turn. I confirm that the bill makes effective provision for the continued approach of addressing hate crime by way of statutory aggravations. That well-established approach in Scotland is familiar to the police and prosecutors. The approach is also not limited to hate crime—a similar approach is adopted in relation to domestic abuse, for example. The COPFS supports the continuation of that approach and its articulation as set out in the bill.

The second question related to the court making it clear at sentencing the proportion of the sentence that is attached to the aggravated nature of the offence. The COPFS is not best placed to offer comment on that. I suggest that those who are best placed to offer comment on the practicalities of that process would be members of the judiciary. I know that judicial representatives have provided written evidence to the committee in that regard. I presume that it would also be useful for the committee to hear from representatives of victims, who might be better able to offer an alternative perspective on the value that victims receive as a result of that approach.

Shona Robison

Obviously, the argument in favour is around increasing transparency so that victims can see the aggravation element, but the question is whether that is feasible in practice. Would the other witnesses like to comment on that?

Assistant Chief Constable Ritchie

I agree with Anthony McGeehan. From a policing perspective, we are well used to dealing with statutory aggravators. It makes it easier for police officers to understand and would make the training and communication of the new provisions easier for us.

On the second question, it is not for me to comment on the sentencing provisions, but the current approach in the bill will require officers to provide more information, perhaps at the police reporting stage and when talking to victims. However, I see that as being likely to increase public confidence in our actions, so I have no issues at all with it.

Calum Steele

For the sake of brevity, I will just say that I agree entirely with what Mr McGeehan has said.

John Finnie

I have a question for the whole panel that follows on from Shona Robison’s questioning. I note that, in his evidence, Mr Steele commends the approach of the sentencing judge stating the background. My question for the police officers is about the implications of recording that information. Would it have an impact on how subsequent investigations might take place or is it just interesting to note? I am referring to the requirement to retain information about the aggravation in criminal records.

Assistant Chief Constable Ritchie

As I said, we are used to dealing with statutory aggravations in reporting crime—we capture that information at the moment—so I do not see recording or using that information being problematic for us.

John Finnie

I have a further question, which I posed to the previous panel, on Lord Bracadale’s recommendation about repealing the offence of racially aggravated harassment. The Scottish Government did not accept that position. What are the views of the panel on that? I noted that Mr Ritchie used the term “equivalence”. There is clearly a difference. The bill is consolidating legislation. Do you think that it creates a hierarchy among the protected characteristics?

Assistant Chief Constable Ritchie

You are right that I said that the consolidation creates an equivalence. That will make it easier for police officers to understand hate crime as a whole and what is and is not acceptable. I recognise the recommendation and the actions of the Scottish Parliament, but I think that, broadly, the consolidation will be welcomed in policing and in shaping public understanding of what is acceptable behaviour and what is unacceptable.

John Finnie

I want to push you a little on that, Mr Ritchie. Is that your view, notwithstanding that difference, with the aggravation being applicable to only one of the characteristics?

Assistant Chief Constable Ritchie

Yes. There is undoubtedly a danger of such a hierarchy potentially causing uncertainty. That is why we would always support legislation that seeks to consolidate and create equivalence across a broad definition of hate crime.

John Finnie

Thank you for that. I do not know whether Mr Steele or Mr McGeehan wants to comment on the matter.

Calum Steele

I suppose that, to some extent, it comes down to whether the retained offence would be libelled in its own right, or whether it would be libelled as an alternative to the new offence in section 3(1).

I consider that the way in which the offence is drafted means that the alternative would always be libelled as an alternative. As such, and in line with the comments of the previous witnesses, I am not entirely sure what is gained by its retention. The consolidation and simplification of legislation should be just that. The very learned gentleman in the previous session made that point convincingly.

Anthony McGeehan

The fact that hate crime legislation in Scotland has evolved over a number of years is reflected in hate crime provisions being found in a variety of statutes. The titles of those statutes often do not indicate immediately to the reader that they relate to hate crime. The bill is an opportunity to consolidate hate crime legislation in a single place, with an easily understood title and an easily understood reference point for the public, the police, prosecutors and the courts. To leave section 50A of the Criminal Law (Consolidation) (Scotland) Act 1995 outstanding—to leave it as an outlier—would arguably be inconsistent with the approach of consolidating all relevant hate crime law in a single place.

Lord Bracadale recommended the repeal of section 50A. In doing so, he observed that the repeal of section 50A would not diminish the ability of the police or prosecutors to respond to racial hate crime. That is the experience of COPFS. If we look at offences that are reported as section 50A offences, they can be libelled as a contravention of section 38 of the Criminal Justice and Licensing (Scotland) Act 2010, with an aggravation. Therefore, COPFS’s position is that a repeal of section 50A would not diminish our ability to respond to racial hate crime.

Rona Mackay

My question follows on from John Finnie’s. Anthony McGeehan said earlier that he did not think that removing “insulting” from the bill with regard to racial hatred would diminish the ability to prosecute. Given that two thirds of hate crime relates to race, do you agree that there might be a danger from the point of view of public perception? If insulting behaviour is removed as an offence, people might say, “It’s okay—I can say what I like, because I’m not going to be prosecuted. I’m only insulting them.” Is there not a danger of swinging too far the other way if we take that out?

Anthony McGeehan

If there is a risk, I would suggest that it would be mitigated by securing public confidence through responding effectively to hate crime. COPFS’s analysis is that the removal of “insulting” would not diminish our ability to respond effectively to racial hate crime.

I would also suggest that there is a consequential and different risk if the insulting offence is retained in relation to racial hate crime, whereby there is understood to be a difference in the behaviour that is allowed in relation to the other protected characteristics but not in relation to race crime. I think that that would be a legitimate expectation, should Parliament choose to describe different types of hate crime as criminal in different ways. Therefore, although the risk that you have identified may be a real one, I suggest that it can be effectively addressed through the continuing effective prosecution of hate crime with an amended piece of legislation.

Rona Mackay

Does Calum Steele or Gary Ritchie want to come in?

The Convener

They are both saying no, so we will move on to other hate crime characteristics, including sex and misogynistic harassment.

12:45  



Fulton MacGregor

Good afternoon. I do not know whether you watched the previous session, but I will ask the same questions that I put to the first panel. Again, I will ask them together.

It has been suggested that the proposed hate crime characteristics should be added to so that they cover Gypsy Travellers, asylum seekers and refugees. To what extent do you think that those groups are already covered by the characteristic of race? Do you think that there is any merit in adding to the existing characteristics?

There are no provisions in the bill specifically to deal with sectarianism. Do you think that the hate crime characteristics of race and religion cover that or should there be a specific provision on sectarianism? Perhaps we can start with Calum Steele.

Calum Steele

I genuinely do not think that I can contribute anything on additional characteristics that would trump the comments and observations of the previous panel. If people in the legal profession are content that the bill as drafted would cover asylum seekers and Gypsy Travellers, I bow to their superior knowledge on that issue.

The question of sectarianism is much trickier, because implicit in it is the issue of whether the activities that currently take place in football grounds would be covered by the bill. To an extent, that is more a policy question than a legislation question. I am fairly comfortable that the bill as drafted would cover behaviour that is threatening or abusive in a religious or sectarian sense that takes place in environments such as football stadia.

The question is whether there is a policy appetite for the police service to police that in a very officious manner, with large numbers of individuals almost certainly facing criminal prosecution as a consequence, compared with dealing with individual examples of sectarian behaviour that may take place in much smaller environments. The bill almost certainly adequately covers the question of sectarianism from a legal perspective, but the challenge relates to the appetite for the policing of what would be criminal behaviour in certain environments, simply because of the other challenges that we face from a policing perspective.

Anthony McGeehan

I will take Mr MacGregor’s two questions in turn. In relation to whether hate crimes directed at refugees, asylum seekers or Gypsy Travellers would be captured under the bill as it stands, my assessment is that they would be covered by the expanded definition of race that is provided in section 1(2), which captures not only race but

“colour, nationality (including citizenship), or ethnic or national origins”.

Each case would obviously depend on its own facts and circumstances but, broadly speaking, the categories of victims that you have described would be protected under the terms of the bill.

On your second question, which was about whether there should be a separate statutory aggravation in relation to sectarianism, ultimately, that is a policy decision for the Scottish Parliament, but the committee will be aware that Lord Bracadale’s assessment is that the current statutory aggravations in relation to race and religion are sufficient to address behaviours that are broadly understood to be sectarian in nature. COPFS agrees with that assessment.

From an operational perspective, should such an aggravation be introduced, it would be necessary to have a clear understanding of the interaction of that additional statutory aggravation with the presumably pre-existing statutory aggravations relating to race and religion.

Assistant Chief Constable Ritchie

I do not have much to add. I do not think that there is a gap in the legislation relating to sectarianism or race but, of course, that is a matter for the Parliament. Whether behaviour is defined as sectarianism or dealt with under the provisions of the bill as it stands, I do not think that that will have any material impact on the appetite for policing and providing a policing response in respect of behaviour that we see anywhere.

Fulton MacGregor

I thank the witnesses for those clear, concise and consistent answers.

The Convener

The final questions in this area are from Annabelle Ewing, after which James Kelly will wrap up the session.

Annabelle Ewing

My question is directed at Mr McGeehan, but if the other witnesses wish to chip in, they are welcome to do so. That being the case, for the purposes of broadcasting, we would hear first from Calum Steele and then from the assistant chief constable.

It would be interesting to hear from COPFS on the issue of the non-inclusion of the characteristic of sex in the bill as drafted and the in-tandem development of policy through the working group on misogynistic harassment. That is likely to take some time, and the parliamentary session will expire next March, although I hope that the Parliament will pass a bill on the matter. Does Mr McGeehan feel that there would be any gap relating to the characteristic of sex and misogynistic harassment? I notice from the written submissions that some are of the view that current statutory offences would be sufficient to cover misogynistic harassment. However, now that we have the expert here, it would be interesting to hear what he has to say.

Anthony McGeehan

For the record, I take exception to being described as “the expert” in the area. However, I will offer the observation that the statutory aggravation model, by definition, proceeds on the basis that there is an existing foundation offence. Therefore, the absence of an aggravation in relation to gender does not prevent COPFS from taking prosecutorial action in relation to cases that are reported at present. The addition of a statutory aggravation in relation to gender would not aid our ability to address offences that are reported to COPFS.

I recognise that Lord Bracadale recommended the addition of an aggravation in relation to gender or sex. On that, I echo my observation on the potential for an aggravation in relation to sectarianism. From an operational perspective, it would be necessary for there to be a clear understanding of, and a clear decision in relation to, the interaction between three things: the potential additional aggravation in relation to gender; the potential new free-standing offence of misogyny, or something similar; and the foundation offences that most commonly feature evidence of misogyny or to which those conditions would normally attach.

Annabelle Ewing

Thank you. Obviously, there is further work for us to do as a committee in reflecting on that matter. I make the point that we would not want to conflate sex with gender; sex is the protected characteristic. Lord Bracadale made indirect reference to that in his testimony last week.

I am checking, but I do not think that either of the other two witnesses wishes to chip in.

The Convener

The final questions are from James Kelly.

James Kelly

Will the passing of the bill significantly impact the call on police resources? Do you consider that the bill’s financial memorandum adequately reflects that? I ask Mr Steele to respond first, and then Mr Ritchie.

Calum Steele

Ultimately, of course, we will have to see what the bill as passed looks like, but with the modifications that are being suggested, a large proportion of the concerns about the likely costs of policing and police training time will be significantly addressed. That being said, and as I alluded to earlier, it is inevitable that, when new legislation is created, the requirement to measure, record and report on it, and on the circumstances surrounding it, will create a fairly hefty administrative burden on the police service.

Although the bill is unlikely to change the approach to policing per se, in our considered view, it will place very weighty costs on the police service. The financial memorandum comes nowhere close to describing that adequately.

Due to time and additional pressures, and through the fault of no one, regrettably, we have not had the opportunity to sit down with the service to quantify properly what the costs are likely to be. Experience going back over the guts of a decade and a half tends to suggest that, when it comes to police technology and recording systems, anything that is associated with cost tends to be grossly underestimated by the parliamentary authorities.

Assistant Chief Constable Ritchie

We need to know what the final provisions of the bill will look like, as that will allow us to make an accurate estimate of the extent of training that we will need. If we are talking about statutory aggravations, the training could potentially be done online. If we are talking about using different terms, such as “insulting behaviour”, perhaps the training would have to be more extensive. We need to wait to see the final bill.

In respect of the technology and recording, as Calum Steele rightly says, the costs are unknown, but given that we are developing systems that will be far more flexible, they might not necessarily be significant. We have to wait and see.

The most important point about demand is that we know that hate crime is underreported. It is our policy to do what we can to increase the reporting of hate crime. A bill in which the offences are consolidated, and which is easier to understand, such that there is public knowledge of what constitutes acceptable and unacceptable behaviour in the eyes of the law, is all to be welcomed. I hope that that, in a way, increases demand. Of course, that will bring costs, but the intention behind the bill, and of members of this panel, is to have a real impact on hate crime in this country. That will raise attendant demands for the police, but we have been looking for that impact for a number of years.

13:00  



James Kelly

Thank you for those answers. I turn to Mr McGeehan to get the Crown Office and Procurator Fiscal Service’s point of view. Last week, the committee heard that the Scottish Courts and Tribunals Service had some anxiety about not having adequate sight of the financial memorandum. What is your view on resources, and on the financial memorandum?

Anthony McGeehan

The Government engaged with COPFS on the costs that are likely to result from the bill. The principal cost identified was in relation to training and revised guidance for prosecutors; the cost that was attached to that work was £50,000. Our assessment is that that is a reasonable estimate of the cost that would immediately result from the bill.

There is a potential cost in relation to the new offences. The financial memorandum does not anticipate significant numbers of new offences being reported and, subject to the important caveat that Mr Ritchie has just raised, the approach taken in the financial memorandum is reasonable. I say that because very limited numbers of the preceding offences under the Public Order Act 1986 have been reported to COPFS. In relation to the broadly analogous offences on religious prejudice that were created by the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012, again, limited numbers of those were reported. Finally, as recognised by Lord Bracadale, a number of the stirring-up hatred offences would not be new offences, but would be a different articulation of existing criminal offences.

As I said, the approach taken in the financial memorandum is reasonable. We would monitor the subsequent rates of offences that are reported to COPFS; should those numbers rise significantly, we will engage with the Government.

I return to Mr Ritchie’s caveat. Increasing numbers of hate crimes being reported might reflect increased public confidence in the reporting of those offences and an appropriate response from the state, and that would not be a bad thing.

James Kelly

Okay; thank you for that. That is all from me, convener.

The Convener

I thank all the witnesses for their time and thoughtful contributions this morning and this afternoon. All three members of this panel have helped the committee with our work on the bill and we are grateful to them.

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Third meeting transcript

The Convener

The next item of business is the continuation of stage 1 consideration of the Hate Crime and Public Order (Scotland) Bill. We have two panels of multiple witnesses today. Our first panel comprises John McLellan, director, Scottish Newspaper Society; Lisa Clark, project manager, Scottish PEN; Fraser Sutherland, chief executive, Humanist Society Scotland; and David Greig, artistic director, Royal Lyceum Theatre, Edinburgh. David is also associated with many other theatres in Scotland. I welcome all of them and thank them very much for joining us.

Members of the committee are going to ask questions of the witnesses. Members will direct their questions to particular panel members. If any of our witnesses want to respond to a question and feel that they have not been given the chance to, they should please alert me and the clerks through the chat box in BlueJeans.

We will have about an hour and a quarter for this panel and, hopefully, the witnesses will be able to tell us what they want to tell us about the bill during that time.

I will ask a general opening question and will put it to Lisa Clark first. Your written evidence was submitted before the Cabinet Secretary for Justice, Humza Yousaf, indicated the amendments that he now proposes to make to the bill at stage 2. It was very clear from that evidence that you were concerned that there were significant infringements on freedom of speech in the bill. Have your fears been allayed somewhat, completely or not at all by virtue of the cabinet secretary’s proposed amendments?

Lisa Clark (Scottish PEN)

Our written submission focused a lot on our concerns about freedom of expression, particularly in relation to part 2 of the bill, which is on stirring-up offences, and the proposal that offences “likely to” stir up hatred would be included without a requirement of intention to do so on the part of the accused. Therefore, the cabinet secretary’s amendment to focus on the requirement to prove intention to stir up hatred is welcomed and has eased a lot of our anxieties about the potential for a chilling effect on writers in Scotland.

We have more proposals to make and there are some points that I would like to raise today. However, as the convener said, that was a big focus of our submission and the cabinet secretary’s amendments have been a very helpful development from our point of view.

The Convener

Will you outline what further proposals you would like to see made in addition to what the cabinet secretary has already proposed?

Lisa Clark

Sure. We argue that it would be helpful to strengthen the reasonableness defence by including a new section in the bill that would take account of the literary, artistic, journalistic, comic or scholarly character of behaviour or communication. That would provide assurance to writers that those considerations will be made by the court and that they are not, necessarily, a target of the bill.

We were also keen to have the offences restricted to those that are “threatening and abusive”, removing “insulting”. That would make the bill more accessible, reduce complexity and avoid contradicting the logic of consolidation, which we support. I am sure that other issues will come up, in particular around part 4 of the bill, on offences relating to theatre and public performances. We were not convinced about the need for that provision. However, Scottish PEN considers the move towards intention a positive step.

The Convener

That is very helpful. I ask the same question to John McLellan.

John McLellan (Scottish Newspaper Society)

[Inaudible.]

The Convener

I cannot hear John—he appears to have been unmuted, but there is no sound. While broadcasting fixes that issue, I will put the same question to Fraser Sutherland.

Fraser Sutherland (Humanist Society Scotland)

I echo some of the points that were made by Lisa Clark. The change to remove the words “likely to” and so stick with intention are very welcome. The initial concern was that “likely to” would have a chilling and worrying effect on free expression, particularly for artists and others.

The only other thing that I would continue to make the case for—we made the point in our written submission to the committee and to the Scottish Government prior to the introduction of the bill—is that the bill should try to echo the freedom of expression provision in the Religious and Racial Hatred Act 2006 for England and Wales, in relation to religion, which is much wider in scope than the freedom of expression section in the bill. The provision on freedom of expression in the 2006 act says that nothing in that part of the act

“prohibits or restricts discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents, or of any other belief system or the beliefs or practices of its adherents”.

That underlines some of the points that have been made by the justice secretary himself, including that the intention is not to control people’s ability to have discussions about religion or issues surrounding religion but is to protect people who are religious from acts of hatred. That is a laudable aim, but the justice secretary’s point should be included in the bill. It is not there at the moment.

I would add to what Lisa Clark said about removing “insulting”. It would not be helpful to include “insulting” as an offence in the bill. I am talking from my perspective, with a particular focus on religion. The Law Commission for England and Wales has endorsed that view on “insulting” relating to religion. It says:

“Ridicule has for long been an acceptable means of focusing attention upon a particular aspect of religious practice or dogma which its opponents regard as offending against the wider interests of society, and in that context the use of abuse or insults may well be regarded as a legitimate means of expressing a point of view upon the matter at issue.”

We should be careful about the use of “insulting” in relation to religion. I know that some groups have asked for that provision to be expanded.

The Convener

That is very helpful indeed. I ask David Greig the same question.

David Greig (Royal Lyceum Theatre)

I admit that I came late to the process, so I do not really know about earlier iterations of the bill and can speak only about the version that I have looked at. My concern is specifically about the section on theatre. Broadly speaking, that section is unnecessary. Theatre is the only art form that the bill specifically identifies. By so doing, it is as if it is seeking a solution for a problem that does not exist. Theatre could be covered by a general purpose provision.

I worry that identifying theatre could create a deep problem. Theatre is about people standing up on stage and representing points of view. The overall piece may not have an intention. You sometimes want to put points of view on stage that we are expected to challenge or to whole-heartedly disapprove of. That has been part of theatre since the ancient Greeks used it to explore taboos and to break boundaries.

In my preparation for the meeting I was unable to find examples, either in Britain or abroad, of plays that would have stirred up hatred against groups but were successfully censored so that we would now think, “Phew, it was great that they did that.” I could think of no such examples, whereas I could think of many examples of plays that in some way wished to promote, protect or put forward the point of view of a group with a protected characteristic but which had been censored. We now look back and regard that as foolish.

It is ironic that the definition of “theatre” in the bill comes from the Theatres Act 1968, which ended the censorship of theatre in Britain. I do not see why Scotland would want to reintroduce theatre censorship.

The Convener

If John McLellan is back with us, I invite him to respond to those issues.

John McLellan

Can you hear me now?

The Convener

Yes, we can.

John McLellan

Hurray! The update from the cabinet secretary was broadly welcome, as it indicated a sense of direction, but our main concerns remain. Lisa Clark said something important, which was that the clarification would be helpful when cases come to court, but the main issue is with the processes that lead up to court: the defences and exceptions that come up as cases are being investigated.

There is a significant danger that institutions such as ours that are involved in communication will still be open to investigation and action. Even if those actions are subsequently unsuccessful, the process and consequences of the investigation are as serious as being convicted. People’s lives can be put on hold. People who have led law-abiding lives and have done nothing wrong can find themselves involved in police investigations. That remains a huge concern for us, despite the welcome reassurances that we have been given.

Annabelle Ewing (Cowdenbeath) (SNP)

I have a question specifically for John McLellan and Lisa Clark. It concerns a recent suggestion that religiously inflammatory material would be subject to destruction. If we look south of the border, we see that a not-dissimilar offence was introduced in the Religious and Racial Hatred Act 2006. That offence operates in a slightly different way but has done so in England and Wales since 2007. It concerns the possession of religiously inflammatory material. As far as I am aware, there is no evidence that anything has been destroyed. The same position pertains to the possession of racially inflammatory material. That has been an offence across the United Kingdom for many decades, but there is, again, no evidence that any material has been destroyed.

In this debate, should we not be looking at the issue in a temperate and objective way? Where there are relevant facts to be garnered elsewhere, including in this instance from the operation of a not-dissimilar law in England and Wales, should we not reflect on that experience to inform our debate here in Scotland?

09:45  



John McLellan

We are reflecting on all aspects of the proposed legislation, but just because something has not happened in another jurisdiction, that does not mean that it would not or could not happen here. In this process, it is legitimate to raise concerns and make sure that they are subjected to full scrutiny.

The other point is that the proposed legislation is not the same as the legislation that exists in England and Wales. I think that Annabelle Ewing is referring to a statement given at the weekend—I cannot remember by whom—and I have referred to that issue obliquely in my written submission. It may not have happened in England, but that does not mean that it is not likely to happen here. We just do not know that. For something as serious as that, the job should be to make sure that the legislation does not allow for it at all and that it cannot happen.

Lisa Clark

I echo John McLellan’s point. It is definitely a conversation worth having. We know that there is a concern for writers; they self-censor the subjects that they explore and the research that they undertake as part of their work when it is suggested that possession of certain materials will be held against them in some way. We are keen to have the conversation and make sure that clear guidance is given—particularly, from our perspective, to writers—about what the bill includes in its scope. For example, it is clear to us that having in our possession a book that might hold intolerant views is not in the scope of the bill, but having the intent to communicate the views held in that book and to promote them is completely different. I agree that the conversation is worth having and that it is a serious issue. Clarity is what is needed, to ensure that an unnecessary chilling effect on the issues that writers and journalists explore is not allowed to develop.

Annabelle Ewing

I thank both witnesses for their responses. I appreciate that time is tight, but I just want to say that I am not suggesting that we do not have the conversation. However, it would perhaps not be unhelpful to look at what has happened in other jurisdictions where essentially similar provisions have been made, as has been the case across the UK for racially inflammatory material. I presume that there would be a lobby to amend the relevant legislation in England and Wales if there were such concerns about that provision. Has John McLellan been involved in attempts to lobby to amend legislation south of the border, if the issue is of such huge concern to him?

John McLellan

No, I have not, but what is of concern to me is cases where we have seen the seizure of such things as computers and phone records in an investigative process. One of the big concerns about this legislation as a whole is that that kind of process would be widened. I still hold to the view that, just because something has not happened somewhere else, that does not mean that different legislation will not produce the effect that we fear here. I agree with Annabelle Ewing that all aspects of the principle should be explored, but to say that it cannot happen because it has not happened in England and Wales misses the point.

Annabelle Ewing

I suggest that, on the balance of probability, one has to look at those issues as, in life, one does not have a crystal ball. However, the answers have been interesting.

The Convener

One material difference between the provisions in England and Wales and those in the bill is the extent of the free speech protections. As we have already heard, those extend in England and Wales to antipathy, dislike, ridicule and so on, rather than merely being limited to discussion and criticism. Perhaps Liam McArthur will take up that issue.

Liam McArthur (Orkney Islands) (LD)

That was precisely the segue that I was going to refer to.

Fraser Sutherland has already mentioned some of his concerns about the need for the bill to extend the freedom of expression provisions to a couple of areas, but not across the board. We have heard serious and consistent concerns about that. There has been a suggestion that we should adopt the approach that is taken in the legislation south of the border. As the witnesses may well be aware, the cabinet secretary conceded a willingness to look at both broadening and deepening the freedom of expression provisions in the bill. What do the witnesses think of that? Could John McLellan start?

John McLellan

Sorry, could you repeat the question?

Liam McArthur

My question relates to the freedom of expression protections. The cabinet secretary has indicated a willingness to look at both broadening the way in which the protections apply and deepening them. Would you support that, and what do you envisage that involving?

John McLellan

The fundamental problem that we have is that the protections are defences, not exemptions—they do not prevent investigations. From experience, we know that it is all very well to include defences, but that will mean that people would still be involved in the torturous process of proving that the defences were legitimate and that charges should not be brought or, indeed, that a case would ultimately fail if it were to go to court.

Our position is that the bill does not present absolute exemptions; rather, it presents defences, and the two are not the same. Although the cabinet secretary’s announcement is welcome, it would not prevent investigation or, indeed, prosecution. As I said in my written evidence, something like 57 journalists have been investigated for alleged breaches of existing criminal law and their lives were put on hold while investigations proceeded. Those cases ultimately went to court and failed or were dismissed. The bill has the potential to do that. Even if every case that came forward did not ultimately result in a prosecution, the process involved in reaching that point is a significant concern for us. People would be put through the mill to prove that they had nothing to answer for.

Lisa Clark

Our submission did not consider the investigation stage to the extent that John McLellan’s did. We would not want to see an undue burden being placed on journalists. We know from our work on defamation reform that when legal action is brought against a journalist or a writer, it can be a lengthy and costly process. Certainly, I would be open to learning more and offering further clarity on the point that John has just raised, although that was not a focus of our submission.

Our main argument was that the bill should have a provision that strengthens the reasonableness defence. As I have already said, the bill should ensure that the courts pay due regard to the artistic or literary merit of behaviour or communication.

On our position on freedom of expression and the Hate Crime and Public Order (Scotland) Bill in general, we are under no illusion about serious harm being caused in society by hate crime. Writers from protected groups are massively underrepresented in literature and the arts, and those who have a platform are often at a heightened risk of abuse afterwards. We feel confident that the bill supports freedom of expression for those writers, whose voices often go unheard, and that there is the potential to create a safer cultural space. We recognise the need for writers to hold those in power to account, to be provocative in their art and literature, and to challenge conventional outlooks. Aside from the strengthening of the reasonableness defence, clear guidance, accessible communication and transparency on the scope of the bill should support that, ease writers’ anxieties about what the bill is trying to achieve and create a healthier environment for all writers.

Liam McArthur

I see that Fraser Sutherland wants to come in. I hope that he will add to what he said earlier about the defences, including the reasonableness defence.

Fraser Sutherland

Annabelle Ewing mentioned other jurisdictions. Perhaps a lot can be learned from the work of the United Nations Human Rights Committee and the Rabat plan of action, which discusses the particular issue of how to protect people from incitement to hatred, and how to balance that with protecting freedom of expression. A lot of work was done in detailing a six-part test on how to balance those two things. The test requires any legislature to consider the context of the speech, who the speaker is—their position or status in society—whether the person has intent, which we have talked about, the content and form of the speech, the extent of the speech in terms of how many people it is likely to reach, and the likelihood, including imminence, of harm. The most important thing to take away from the Rabat principles is that they define “incitement” as referring to

“statements about national, racial or religious groups which create an imminent risk of discrimination, hostility or violence against persons belonging to those groups.”

Like Lisa Clark, we are under no illusion about people being targeted with hate crimes, and that absolutely needs to be dealt with. The bill is the right way to do that, and we support its general principles, but the issue is the balance in relation to the stirring-up offences and where freedom of expression is protected. I encourage parliamentarians to have a close look at the United Nations six-part Rabat test and to see whether they can replicate that in the bill or, potentially, in guidance that will go to the police and prosecutors.

Liam McArthur

That is very helpful.

David Greig

I want to speak about nuisance or malicious attempts to use this, with people probably being found to be not guilty ultimately, but the process of investigation being problematic. Theatre provides a specific example. Obviously, a play gets put on—it may be put on for three weeks, for example—and, unlike a book or a film, it is time limited. Therefore, plays become a focus. There is a kind of theatre of protest, and there is a danger, in that we already see picketing outside theatres as a means of trying to get plays shut down—and they can be shut down.

A little more than 10 years ago in Scotland, the Scottish trans writer Jo Clifford was picketed at the Tron for her play “The Gospel According to Jesus, Queen of Heaven”. “The Sash”, by Hector MacMillan, was picketed by Pastor Jack Glass in the 1970s. In Birmingham, “Behzti”, which was written by a young Sikh female writer, was picketed by elders in the Sikh community, because it discussed sexual abuse in the Sikh community. Of course, we all remember “Jerry Springer: The Opera” being picketed.

My point is that it would be incredibly easy for such organised picketing events to be supported by the claim that the play under discussion sought to promote hatred against the group in question, whether Sikhs or Protestants, or—in the case of Jo Clifford—a religion. As a result, the play might be shut down, or there could be circumstances in which the producers decided to shut down the play to avoid the costs associated with—[Inaudible.]

10:00  



For me, that is another reason why putting theatre in its own category in that way almost creates a target. I can think of concrete examples of situations in which prosecutions would be lodged because theatre itself is a type of theatre and, often, certain groups might wish to draw attention to their cause, even if their case would ultimately be unsuccessful.

Liam McArthur

Your provision of specific examples was very helpful.

The Convener

Shona Robison has a quick supplementary for John McLellan.

Shona Robison (Dundee City East) (SNP)

In response to Annabelle Ewing, John McLellan mentioned the seizing of computers and phone records. I would like to clarify what he was referring to. Was he referring to the existing criminal law? Does he think that that should not happen if it is alleged that a crime has been committed?

John McLellan

No, that is not the point that I was making. Throughout the phone-hacking investigations, computers and phone records were seized. Obviously, there was criminality there, because 10 people were successfully prosecuted and some went to jail.

In all the investigations, which stretched to 67 individuals, there was seizure of computers and other materials. If a criminal law is created and there is then a criminal investigation, the seizure of equipment related to that investigation would be an inevitable part of it.

Shona Robison

That is helpful—thank you.

The Convener

James Kelly has some questions about the provisions on theatres in section 4.

James Kelly (Glasgow) (Lab)

Good morning. The issue of theatrical performances has already been picked up by David Greig and Lisa Clark, and it has featured heavily in previous evidence sessions. We need to think about how the issue can be dealt with as we progress to stage 2 and consider amendments.

Do you think that section 4 of the bill can be amended to make it robust, or do you think that it should be deleted in its entirety, as a previous witness has suggested?

Lisa Clark

It was not at all clear to us why plays and public performances were picked out. We did not think that a clear rationale was set out in the policy memorandum that accompanies the bill. We have not suggested any amendments to section 4, because we were not clear about the thinking behind it. We would probably come down more on the side of removing the section. We think that, if someone were to use a theatrical platform to stir up hatred against a protected group, that would be covered by the rest of the bill. We have no amendments to propose.

David Greig

I concur with Lisa Clark. I think that, if theatre were to stir up hatred in some way that the bill wishes to stop, that would already be covered. Therefore, I think that section 4 should be struck out.

The only case that I came across in my investigations was one in Germany in which a neo-Nazi group held a rally and, in order to try to defend against a similar offence of stirring up hatred, described that as putting on a play. That was a sort of weird reversal. However, the defence was unsuccessful, because it was obvious that the group was not putting on a play.

It seems to me that there is no great need to identify the putting on of a play as a separate category and that doing so almost draws attention to the issue and creates a circumstance in which it will become a focus in a really problematic way. I return to the fact that, if I wished to stir up hatred, a play in a theatre is just about the last way that I would do it. That is because of the nature of dialogue, as well as the whole cost of putting on a play. There are many reasons why a play is a very unlikely format for that purpose. Therefore, the easiest thing to do would be to strike out the section. I do not think that there would be any danger of a resulting gap.

The Convener

It is beginning to feel as if that particular aspect of the bill is an analogue offence for a digital age.

Liam Kerr has a series of questions on the stirring-up offences.

Liam Kerr (North East Scotland) (Con)

I will direct some specific questions to the witnesses, starting with John McLellan. He talked about cases coming to court. He mentioned this issue in his written submission, but I would be interested to hear him elaborate on the point. I presume that, if the bill is passed as drafted and if I am offended by something that I read in a newspaper column and decide that it is hate speech, I can report that as a potential crime. In those circumstances, what would happen to the newspaper or columnist that would be different from what happens under the current civil processes and penalties? What would be the impact on that columnist’s and/or newspaper’s willingness to publish such news in future?

John McLellan

Straightforwardly, the person would be interviewed under caution. That is the starting point. To put my councillor hat on, I have previously written about the fact that a man in his 70s in my ward had a complaint made against him for a post on social media and ended up being interviewed under caution in St Leonards police station. Nothing came of it and the case was dismissed, but nonetheless a man in his 70s had to turn up at a police station, with legal advice, to be questioned by police officers about something that he had posted on social media.

That is what the bill would produce. Editors and journalists would be interviewed under caution if a complaint was made, because the police would be honour bound to investigate. The implications of that are huge. For example, in the past year, there have been 21 complaints to the regulator under its discrimination clause from groups of people who were not related to the particular subject of the article. Most of those cases could be raised in Scotland under the proposed legislation.

Once an allegation of a crime has been made, the police do not have much choice about whether to dismiss it; they have to investigate it. Certainly, when new legislation is introduced, even with something as mundane as a change in speeding regulations, the police are automatically under pressure to make sure that the legislation has been worth it, and they are checked up on to see whether they have been following the new instructions. Therefore, my view is that, if the bill was passed, pressure would be put on the police to ensure that they investigated properly any complaints that were brought to them. We know from the existing cases that lots of those kinds of complaints happen all the time.

Liam Kerr

You said that there are 21 complaints to the regulator, and presumably those involve a civil penalty. We know, from section 3(8), that, under a criminal penalty, there could be conviction, on indictment, to imprisonment to a term not exceeding seven years. If that is right, what impact could that have on the willingness of the columnist or the newspapers to publish?

John McLellan

It would be a brave person who would risk going to jail for seven years for something that they had written. The problem here is that they would not necessarily know that they were committing an offence when they wrote the piece or when it was published. Someone might think that what they have written is fair and balanced, but someone else might take offence at it and claim that it is in breach of the law, and, if a complaint was made to the police, the police would have to investigate it. Even if you accept that a chilling factor might make someone do everything that they could to stay within the law, there is still no guarantee that a complaint would not be lodged.

In broad terms, most publishers would seek to avoid becoming embroiled in repeated costly and lengthy investigations. Again, the issue is not just the likelihood of a sentence at the end of the process; it is the cost of the process of proving that you have not committed an offence. That is just as big a danger as the sentences themselves.

Liam Kerr

On that point, I have two brief questions for Lisa Clark of Scottish PEN, who will come at things from a slightly different angle from John McLellan.

Lisa, what is your view about the impact on writers potentially being held criminally accountable for how their work is interpreted or misinterpreted by others?

Lisa Clark

The first draft of the bill certainly raised a lot of concerns for us because it was left open to cover the way in which someone’s work is perceived by others, regardless of their intention. That has now been clarified, and the requirement for someone to have intended to stir up hatred limits the scope of that provision in a way that we find helpful.

I also note that the provision that we have called for that would strengthen the reasonableness defence would be available to everyone at all stages of the process, including the police, so it would not just be reserved to the final court decisions. We hope that guidance and training on that provision would be helpful and ensure that journalists who are writing in the public interest are considered as part of that.

Our submission did not focus on the pre-emptive impact of cost, which John McLellan mentioned with regard to news outlets, so I would not want to speak to that point too much.

For us, there is always a risk that writers will self-censor and that there will be a chilling effect on the issues that people choose to explore in their work. However, clear guidance about what the bill is trying to achieve would help with that.

Liam Kerr

You have mentioned the reasonableness defence a few times. Do you have any comment on the burden of proof under the reasonableness defence lying on the defence, or is it your view that that could be reworked to be more appropriate?

Lisa Clark

That is a good point. It is not something that we explored in our submission, but I could certainly see how it would be helpful to explore that issue. We would be open to undertaking further consultation on that point if that was felt to be helpful.

Liam Kerr

I have no further questions, convener. Somebody else might want to pick up on that point.

The Convener

That is helpful. So far, we have focused on the stirring-up offences, but we will now move on to look at other equally important elements of the bill. John Finnie and Shona Robison have questions about the statutory aggravation factors.

10:15  



John Finnie (Highlands and Islands) (Green)

If the convener will allow me a bit of latitude, I would like to draw on Ms Clark’s use of the term “chilling effect”, which was also used several times by Mr McLellan. Scottish PEN’s submission refers to “Scottish Chilling: Impact of Government and Corporate Surveillance on Writers”, which was a report that it produced with colleagues at the University of Strathclyde. As Ms Clark articulated, the submission says:

“when writers feel their work and communication is being monitored by the state, they are more likely to refrain from writing about sensitive subjects or, in some cases, refrain from writing altogether.”

That is entirely understandable. The examples that are given are the Soviet Union, China and Iran, but the report goes on to say:

“The question of the harms caused by widespread surveillance in democracies, is underexplored.”

Should we infer from that that you believe that there is monitoring under the present legislation? If so, who is doing that monitoring, and to what extent does that influence whether prosecutors and police are proactive rather than reactive in responding to complaints from the public?

Lisa Clark

As you said, our “Scottish Chilling” report focuses on writers’ responses to state surveillance. It is absolutely a concern for writers that that inhibits them in the subjects that they choose to explore in their work. We would be concerned if there was evidence to suggest that police and prosecutors were taking active steps to investigate, rather than reacting to complaints that were submitted. That would certainly have an impact on writers across Scotland.

John Finnie

Does John McLellan want to comment on whether, under the existing provisions—setting aside the additional proposals in the bill—there is any proactivity by prosecutors and police in relation to writing?

John McLellan

I am not aware that the police indulge in regular monitoring of press content for the sake of it, unless, of course, it involves coverage of them. As we saw from the Emma Caldwell case, the police are capable of going beyond the law to find out where information has come from. However, the police learned from that case. They were severely criticised for their actions in that regard, and there has been a change of chief constable in the intervening time.

At the moment, I do not sense that journalists who work for news publishers are under constant threat from, or surveillance by, the police. My fear is that, as the Scottish Police Federation has pointed out, the bill draws the police into such activity. That is a great concern.

John Finnie

Lord Bracadale recommended repealing the offence of racially aggravated harassment under, ironically, section 50A of the Criminal Law (Consolidation) (Scotland) Act 1995. Is it necessary to retain the offence of racially aggravated harassment, given that aggravated harassment offences for other characteristics are not in place?

Fraser Sutherland

I do not have a huge amount to say on that. Given that this whole process has been about bringing together all the different pieces of legislation so that there is equal treatment for the different characteristics, Lord Bracadale’s recommendation would be a welcome approach, rather than trying to maintain other legislation. If we are trying to bring together the offences in one piece of legislation, the different characteristics should be treated equally. That would be my approach.

John Finnie

The matter might not be in your area, Mr Greig, but do you have a view on retaining the offence on the grounds of race?

David Greig

Speaking personally, I agree with Fraser Sutherland. From the perspective of the theatre, I do not feel that I have expertise on that issue, but I would have thought that all protected characteristics should be treated equally.

John Finnie

Okay; thank you very much.

Shona Robison

My question is about statutory aggravations as a general approach to dealing with hate crime. Their continued use as the core method of prosecuting hate crime has been broadly welcomed. Does any witness have a view on that and are they content with what is in the bill?

John McLellan

I do not have any particular comment to make about that. I agree with what David Greig and Fraser Sutherland have just said about equalisation. That refers mainly to other offences that are aggravated by hate. That is fair enough, and I know that it is of great concern to the police. I am not sure that it is particularly appropriate in a news publishing sense, but I do not have that much more to add.

Fraser Sutherland

I agree that statutory aggravations should be the main way of dealing with it, but I want to make a point about the width of the religiously motivated aggravations and what is not currently included in that.

The murder of Mr Asad Shah in Glasgow was not considered to be a hate crime, because his beliefs were considered to be unusual or unique. At the time, in 2016, the Lord Advocate wrote to the justice secretary to highlight what he saw as a gap in the law. Lord Bracadale considered that, but he did not consider that it needed to be closed. That concerns me for a number of reasons.

First, people who leave a religious group are quite often targets for violence or persecution, particularly from a closed religious community. There is a question about whether so-called “apostates” would be protected under the bill. They should be, and the Justice Committee would probably agree that anyone who is targeted because they have left a religious group should be protected in the same way as someone who is targeted because of their religion.

What was brought out in the case of Tanveer Ahmed v Her Majesty’s Advocate in 2016 relates to article 9 of the European convention on human rights, which stipulates that

“Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief ... either alone or in community with others”.

To be fair to him, Lord Bracadale has taken the approach that if someone is part of a religious community, or a defined religious group, they are, and they should be, protected under hate crime legislation. However, if their beliefs are considered perhaps unusual or quite unique, they should not be protected under the statutory aggravations that are in part 1 of the bill. I argue that they should be protected.

There has been no clearer case of religiously motivated killing in the 21st century in Scotland than the Asad Shah case. Given that the whole review was carried out on the back of that murder—albeit that it was not the only reason—and because of the Lord Advocate’s letter, it is disappointing that that gap has not been closed. I would like the committee to consider that in its stage 1 report.

The Convener

Sorry to intervene, Fraser. Did that case result in a conviction?

Fraser Sutherland

Yes. There was a conviction of murder, but there was no statutory aggravation because, in essence, it was not considered a hate crime.

The Convener

What was the sentence?

Fraser Sutherland

It was a life sentence, because it was a murder case.

The Convener

Given that the function of statutory aggravations goes to sentencing, and given that, in any event, a life sentence was imposed on the convicted individual, I am not sure that—

Fraser Sutherland

The question would be for a lesser crime. For example, if a person were to vandalise someone’s house because they are a member of a religious community, that would be dealt with as a statutory aggravation. If someone’s car is vandalised because they are an apostate of a religion, that is not considered to be a hate crime.

The Convener

I understand all that. I wanted to make sure that I had not misunderstood what you were trying to say about the particular case that you were talking about. The case that you were talking about resulted in a conviction for murder and a life sentence. It is difficult to see how that sentence could have been compounded.

Fraser Sutherland

No, but there is a question of classification. The Cabinet Secretary for Justice said that one of the purposes of stirring-up offences is that hate crime is counted as such, and there is enough statistical evidence to measure it. I cannot give you a better example of a religiously motivated murder, yet it is not classified as such in the statistics because it was not considered a hate crime. That is the point that I am making.

The Convener

I apologise to Shona Robison for cutting across her, but Lisa Clark and David Greig also want to come in.

Lisa Clark

To return to Shona Robison’s point, Scottish PEN supports the model of aggravators that is set out in part 1. We believe that the consolidation that is outlined in the bill would make it more accessible and transparent, and ensure that crimes can be identified in a clear and consistent way.

David Greig

In theatre, protected characteristics have been helpful in our work, in the sense that, all the time, we identify how many plays we put on with regard to certain characteristics, in order to make sure that we are looking after people with protected characteristics as we welcome them to the theatre. I want to separate out that element and say that it is very helpful. Therefore, in general, we support such a consistent way of understanding things, but I wish to talk specifically about the stirring up of hatred element.

Rona Mackay (Strathkelvin and Bearsden) (SNP)

I will ask about the bill’s different approach to race; however, first, I will go to Lisa Clark. Do you agree with your colleague Dr Andrew Tickell, who said in evidence that the bill is “mired in hyperbole and confusion”?

Lisa Clark

I do not think that the bill is mired in confusion. I think that the surrounding conversation could be argued as such, and I guess that Dr Tickell felt the same way. There has been a lot of online speculation about the bill, and about people not being able to speak freely in their own homes. I find that speculation quite harmful and it contributes to the creation of unnecessary fear about the potential censorship of writers. There is a lot of great stuff in the bill for writers, and for those who have protected characteristics and whose freedom of expression is suppressed as a result.

Rona Mackay

The bill would treat race differently, and would provide that insulting behaviour would not require intent. Given that two thirds of all hate crimes are related to race, is there justification for that approach?

Lisa Clark

Yes, we absolutely recognise the reasoning behind the inclusion of insulting behaviour. Responding to race-based hate crime is a massive issue that must be tackled. We think that there are many different ways to do that beyond legislation. I think that the issue is that insulting behaviour is a term that is even more subjective and less well understood, whereas threatening and abusive behaviour is already well established in Scots law.

10:30  



We agree with Lord Bracadale that race should be treated in the same way as other protected characteristics. For those cases that might have come under insulting behaviour, moving them to an abusive behaviour charge or the communication charge would be more effective in securing a charge. We are not clear on the specific examples to which a charge of abusive behaviour might not also apply. We feel that treating all characteristics the same would reduce complexity, ensure that the bill is well understood and accessible and allow the logic of consolidation to continue throughout the bill.

Rona Mackay

What is John McLellan’s view on the different approach taken to race in the bill? I am conscious of the time, but if other witnesses want to come in on the subject, they should type R in the chat box.

John McLellan

Lisa Clark’s comments were fair. To return to your original question about Andrew Tickell’s view, I do not think that the bill is confused; it is fairly clear. The problem is that its implications and its application are confusing and have not been properly thought through. It is the unintended consequences that concern me, and that is where the problems arise.

Rona Mackay

Can I interrupt for a second, please? Is there anything in the bill that you approve of?

John McLellan

I agree with the provisions on blasphemy and things like that. The problem is that the bill is a catch-all for news publishers. I am here to represent the interests of the news publishing industry. The bill poses clear dangers for us. I am seeking an exemption for legitimate news publishing. We do not see the need for the bill to be applied to our industry.

There are other areas in the bill that do not affect me and on which I have not commented—it is not for me to judge whether those are good or bad. However, I am very concerned about the bits that affect me.

Rona Mackay

I presume that everyone is concerned about protecting vulnerable groups.

John McLellan

I agree with that.

Rona Mackay

What is your view on the different approach to race in the bill?

John McLellan

I do not have anything particular to say about that, other than that the equalisation of discrimination legislation is a good thing.

Rona Mackay

Unless anyone else wants to come in, that is all from me, convener.

The Convener

Fulton MacGregor and Annabelle Ewing have questions about hate crime characteristics.

Fulton MacGregor (Coatbridge and Chryston) (SNP)

I have a general question. Do any of the witnesses have concerns about how the hate crime characteristics are defined in the bill?

As a wee bit of background, we have explored issues about Gypsy Travellers, asylum seekers and refugees, and it is suggested that they be included in the bill. We have also talked about there being no provisions on sectarianism. I will probably ask the next panel of witnesses more about that, but I would like to hear your general thoughts on the issue. Annabelle Ewing will come in on the issue of sex and misogyny, so I would be grateful if the witnesses could take that into account when responding to my question.

Being cognisant of the convener’s earlier remarks about time and there being no need for every witness to answer every question, I put my question to Fraser Sutherland and Lisa Clark, although I am happy to take John McLellan and David Greig, if they want to come in.

Fraser Sutherland

Some of the groups that you mention, such as Gypsy Travellers, could be considered under the racial heading if any hatred was targeted at them. We should look at who is included within those thresholds. There are legitimate concerns from those communities. You could include them by using the racial characteristic.

I do not agree with the attempt to legislate for sectarianism as a separate characteristic. The easiest course is to restrict that to religious hatred, which is what you have in the protected characteristic of religion. The discussion of sectarianism has been about Christian sectarianism, but sectarianism also exists between different sects of other religions. To legislate for one particular type when other sectarianism also exists would be a mistake. A far better approach would be to have a wider, catch-all crime of religiously motivated hatred.

Fulton MacGregor

I can clarify that the bill does not provide for sectarianism; we are asking about that. What you have said is what we have also heard from other witnesses.

Lisa Clark

We did not respond to the idea of expanding the groups that would be protected by the scope of the bill.

I understand that a working group is considering adding an offence of misogynistic harassment. We would be keen to hear from experts working in gender-based violence and violence against women before we take a view on that. That applies to other characteristics too. We would welcome evidence from people who work with those communities before we take a stance.

Fulton MacGregor

Convener, I am happy to ask the other witnesses whether they have anything to say, or, to save time, they could come in when Annabelle Ewing asks her questions.

The Convener

No one has indicated that they want to come in.

Annabelle Ewing

I return to the protected characteristic of sex and the way that the bill is drafted. As Lisa Clark says, it is notable that the characteristic of sex is not currently included in the bill. Lisa said that she wanted to see the results of the working group. Does she or Fraser Sutherland have any comment about whether that is the best approach, given the timing issues? The working group should take the time that it needs to do its job, but that might take years and the legislation might be put in place in the meantime without the characteristic of sex being included. That would mean that it is not protected by the aggravation or stirring-up offences.

Fraser Sutherland

That is a reasonable concern. There could be a gap in the legislation. I have said all along that there should be equal protection for each characteristic. I have sympathy with and respect for the women’s organisations that have approached the Government about the aim of having a misogynistic hatred offence and the reasons for that. I understand their reasons. I would err on the side of caution and give the working group time to work out those issues and to decide what they want.

On that specific issue, I want to raise the issue of protests that happen outside maternity hospitals, wards and clinics. Around seven of those in Scotland are subject to anti-abortion protests. That is the kind of thing that I think that this kind of misogynistic hate crime provision could help to tackle, because it is harassment that is exclusively targeted at women—usually pregnant women—and is based on the protesters’ belief that women should be mothers and should not have abortions. At these protests, leaflets containing distressing and false information are handed out, abortion and miscarriage patients are approached and followed and women who are not even accessing services, particularly those with children, are also stopped.

Members of this committee will know that buffer zones and so on have been introduced in England and Wales, but I wonder whether that is something that you might recommend that the misogyny working group looks at, too, given that the bill is not only a hate crime bill but a public order bill. The issue that I raise is of serious concern to a number of women.

Lisa Clark

It is completely understandable that the working group should look at the issue. Gender-based violence is poorly understood in society, and there are issues around access to evidence regarding women’s experiences. We understand that, for women writers, there are specific issues around online harassment. There are specific issues that face women in all walks of life. It is a complex area, and I understand that some women’s organisations have raised concerns about whether including a misogynistic harassment charge in the bill is the best way to tackle such nuanced issues that spread into all aspects of life.

We are keen to learn more from the experts in this area, and we have no real objections to the time that it takes to fully consider such serious issues.

Annabelle Ewing

Thank you for those comments. I note the suggestion from Fraser Sutherland. Equally, I would have thought that it would be entirely appropriate for the Humanist Society itself to make suggestions to the working group, when it is up and running.

The Convener

Do any members of the panel have any issues to share with the committee before we close this part of the meeting?

Fraser Sutherland

I know that you will discuss this issue with the next panel, but I will say that we very much welcome the provision to repeal the blasphemy legislation. We have campaigned for that for a number of years, as part of the global humanist movement, which campaigns to remove blasphemy laws in all jurisdictions. We are obviously pleased to see it in the bill.

David Greig

Thank you for listening to me throughout the meeting. I have just one more small point to make. Scotland is not just a place where theatre gets made; because of the Edinburgh festivals and, indeed, more broadly, we are a place that theatre comes to. I want to reiterate that theatre is a focus for things because it is a live event. It would be a sad result of the bill if, as I think would be likely, there were to be a malicious or nuisance prosecution of a play that came to the Edinburgh festival, for example, or a play that was produced in Scotland, and world attention was drawn to us in a situation in which a play was in danger of being shut down because of a prosecution. I think that it is extremely likely that such a prosecution would not be in the spirit of what the hate crimes legislation is trying to achieve but would, in fact, almost certainly have an impact on a powerless or less powerful group. I just want to focus once more on the idea that identifying theatre separately could bring about really quite wide problems and could simply result in theatre being picked out, because it is a very obvious target.

The Convener

Thank you very much for your closing remarks, and I thank all four of you for your time this morning. The evidence that you have given has helped the committee significantly in its understanding of the implications of the bill and we are grateful to you.

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

10:45 Meeting suspended.  



10:50 On resuming—  



The Convener

Welcome back, everyone. We continue our consideration of the Hate Crime and Public Order (Scotland) Bill. I will introduce everybody on our large panel of witnesses before we get under way.

We have Anthony Horan from the Catholic Parliamentary Office of the Bishops Conference of Scotland; David Bradwell from the Church of Scotland; Kieran Turner from the Evangelical Alliance; the Rev Stephen Allison from the Free Church of Scotland; Ravi Ladva from the Hindu Forum of Britain; Isobel Ingham-Barrow from Muslim Engagement and Development; Ephraim Borowski from the Scottish Council of Jewish Communities; Neil Barber from the National Secular Society; and Hardeep Singh from the Network of Sikh Organisations.

If we were all together in the Parliament, we would be doing this in round-table format, rather than having a panel of witnesses at one end of the table. I hope to run it as a round-table discussion, even though we are all in our separate silos looking at each other on screens.

Thank you very much for joining us. We have about an hour and a half. Even with that time, it will not be possible for every witness to answer every question from every member. I want to ensure that, by the end of the session, you have all told us what you want to tell us, so please use the chat function that we can all see on the BlueJeans system that we are using. If you want to intervene or respond to a question at any point, and you have not already been asked by a committee member to do so, please type R, which is the signal that we will use to indicate that you have, as it were, raised your hand and want to say something.

We will not have time to go round the table and make introductory comments, so I will launch straight in. First, however, I want to thank you for your lengthy and extremely helpful written submissions, all of which are, as usual, available on the committee’s web pages. The written submissions were signed off before the Cabinet Secretary for Justice indicated that the Scottish Government will make amendments to the bill. Many of your written submissions were, like so many others that we have received, concerned in particular about the implications of the stirring-up offences in part 2 of the bill on freedom of speech.

I will direct my question to Anthony Horan first. To what extent are your concerns about freedom of speech in the bill allayed by the cabinet secretary’s proposed amendments?

Anthony Horan (Catholic Parliamentary Office of the Bishops Conference of Scotland)

Thank you for inviting me on to the panel to give evidence. We welcome the Government’s decision to move to an intent-only stirring-up offence, which goes some way to allay the concerns that we outlined in our initial submission. However, we still have a number of concerns with the bill, which are principally around the freedom of expression provisions. We welcome the cabinet secretary’s commitment to look at the breadth and depth of those provisions, which is something that he has recently promised to do.

As it stands, there is a hierarchy—there is a gradation of victims, if you like, in which people in groups relating to religion and sexual orientation are treated differently for their protected characteristics because they are explicitly mentioned in the freedom of expression provisions. However, as Lord Bracadale said, those provisions should cut across all protected characteristics to ensure equity.

We believe—as Lord Bracadale also suggested—that the freedom of expression provisions should be broadened to include expressions of antipathy, dislike, ridicule and insult. It is interesting to note that the Government drafted those very terms into its original Offensive Behaviour at Football and Threatening Communications (Scotland) Bill. Therefore, the Government is not alien to it; it has done that before, and I believe that it should include those terms in the Hate Crime and Public Order (Scotland) Bill.

Another suggestion in relation to freedom of expression is to consider the inclusion of other belief systems, so that we are not talking only about religions. Again, that would be to ensure equity for all protected groups.

We still have concerns about the definition of the term “abusive”. We feel that that could be widely interpreted, creating the potential for a chilling effect on free speech and expression. It would help if, at the very least, the Government gave us some clarity around the term, and perhaps adopted an approach similar to that contained in the Domestic Abuse (Scotland) Act 2018, which includes a definition of abusive behaviour.

We also have concerns outstanding about the term “inflammatory”. Although the move to intent only that the Government has outlined will protect people from being prosecuted for having possession of, with intent to communicate, or communicating, harmless material or for personally held beliefs, the term “inflammatory” still needs clarification. It would be helpful to know what the Government means by “inflammatory”, because what arouses anger or hostility in each individual is very subjective. For example, some people might feel that some of the views expressed in religious texts or literature—although widely held by many in society—are inflammatory, which might lead to malicious complaints.

In our written submission, we have given the example of the Catholic understanding of the human person and of the belief that gender—which is very topical—is not fluid and changeable, which might be a view that could be considered inflammatory by some people, leading to a police investigation. Therefore, clarity around the definition of inflammatory might help to alleviate some concerns, which I believe are well founded.

In addition, the term “abusive”—which, as I outlined, can still be widely interpreted—of course, still applies to the offence in relation to the inflammatory provision in the bill. We therefore need clarity on that, too.

I also have some concerns around the term “insulting” and the racial stirring-up offences. However, I note that Rona Mackay asked a question on those points specifically in the previous session. Convener, I do not know whether you want me to hold off on that area, or whether I should go into it now.

The Convener

Rona Mackay will cover that ground in due course. That is a very helpful introductory set of remarks. I know that Ephraim Borowski wants to come in. However, before I bring him in, I will turn to the Rev Stephen Allison and then to David Bradwell, with the same question that I asked Anthony Horan.

The Rev Stephen Allison (Free Church of Scotland)

Good morning, everyone. It is great to be here. We are pleased, as the Free Church of Scotland, to have been invited to join with a number of other witnesses to give the committee evidence.

We mostly agree with what Anthony Horan said. The move to intention is helpful, as there was so much concern about the likely-to-stir-up-hatred aspect of the bill and the unintended consequences of that. Lots of people raised that as a concern, and we welcome its being removed. However, “intention” is a legally defined term that does not necessarily mean what common people take the word to mean. We therefore still have some concerns about its use. For example, we looked at the “Jury Manual”, which says:

“Intention is a state of mind, to be inferred or deduced from what’s been proved to have been said or done.”

We know that we cannot get inside people’s minds, so the facts and circumstances are what prove intention, which could still lead to dispute in court about whether something was intended.

More broadly, that leads to our concerns around the chilling effect for freedom of speech and around debate and discussion being shut down. We are concerned that people would have to prove defences, that they would have to defend themselves in an investigation and that they might face being interviewed and having material confiscated or looked at extensively under offences of possessing inflammatory material, even if that does not ultimately lead to conviction and there are good defences, such as freedom of speech.

11:00  



Our written submission also states that we are concerned that the defences need to be broadened and made clearer. Therefore, we of course welcomed the justice secretary saying that he wants to consider that. Maybe we will talk more about that later.

However, the fact that those defences still have to be proven, or put forward, by the accused makes us worry for freedom of speech. It also worries us that publishers and distributors of material could be affected by the offences in the bill, because although we might be quite happy to speak and take the risk, publishers or those who are producing our material might not want to. That has an effect on freedom of speech.

I completely agree with Anthony Horan that the provision on religious belief must be broadened to include other beliefs and those of no belief at all. At the moment, some of it could be read as protecting those who have religious belief, but not atheists, whom we regularly want to debate, engage and discuss issues with. As the bill is drafted, they might not get the same protections as religious groups.

That is, broadly, what we still have concerns about.

The Convener

That is helpful indeed. Before I bring in Ephraim Borowski and Isobel Ingham-Barrow—which I will do shortly—can I hear from David Bradwell on the same issue?

David Bradwell (Church of Scotland)

In answer to the question about the amendments from the Scottish Government, I would say that they are a big improvement. However, the Church of Scotland is broad and contains a diversity of opinions. Some within the church would have supported the original Government approach in that it seeks to overcome hate crime and responds to the needs and wishes of groups that might be more at risk of being victims of it. There is probably a bigger group in the Church of Scotland that is concerned about the potential chilling effect that the original legislation might have had on freedom of expression.

So long as the European convention of human rights still applies, the risk is only that there will be a chilling effect because people will be afraid that particular expressions of religious opinion about other matters might be impacted. However, we do not want to see that tested in the courts; we would rather have legislation that does what it says on the tin, which is protect people from hate crime and not get into the question of freedom of expression. Therefore, we welcome the Government’s amendments.

The Convener

Ephraim Borowski, Isobel Ingham-Barrow, Hardeep Singh and Kieran Turner all want to come in. I will go to Ephraim next, who might offer quite a different perspective on some of those issues, if his written statement is anything to go by.

Ephraim Borowski (Scottish Council of Jewish Communities)

You are absolutely right in your prediction, convener. First, thank you very much for asking us to elaborate on our written submission.

I will begin to set the scene by saying that the principle underlying all this is in two parts. First, there needs to be a level playing field for all protected characteristics—others have already spoken about that. Not having that has consequences. For example, race is singled out from all the other characteristics in sections 3 and 5. Frankly, it is not that that is a bad thing, but if—as the Faculty of Advocates told the committee last week—the provision about insulting behaviour has never been used, there is no reason to separate it out just for race.

Secondly, we need to be concerned about protecting people and not beliefs or ideologies. That was made clear in an article written by the Equality and Human Rights Commission’s Scotland commissioner in The Herald a couple of weeks ago.

That was by way of background, but on the specific question of intent and effect, I think that the amendment that has been announced by the cabinet secretary is retrograde and essentially provides a get-out-of-jail-free card for something that we might often see in hate-filled posts on the internet: 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—about whether the Holocaust happened, for example.

I am effectively speaking on behalf of what you might think of as a collective victim group as, unfortunately, antisemitism is very much on the rise these days. I therefore take the view that it is the victim who needs protected. Yes, freedom of speech is important, but a balancing exercise needs to be done. The right to freedom of speech is not unqualified, and what is appropriate and what is not needs to be made on a case-by-case basis.

There is good precedent for retaining an emphasis on what a reasonable person would regard as a likely effect—that is, not an idiosyncratic individual reaction to something, which is entirely subjective. On harassment, the Equality Act 2010 clearly refers to the “effect” of someone’s conduct, and that is the core of the difference between direct and indirect discrimination. The 2010 act says that harassment is

“unwanted conduct related to a relevant protected characteristic”

that

“has the purpose or effect of ... violating”

the other party’s dignity. You must have regard not only to how that person sees it; you must have regard to all the circumstances of the case and to what a reasonable individual could have expected. That gives you a middle path that allows you to retain reasonable likelihood without ending up allowing anybody who says, “Oh, I didn’t really mean that” simply to get out of jail.

The Convener

Thank you, Ephraim. That is quite a different perspective from almost everything that we have heard in our oral evidence so far, not just today but during the previous two weeks. I know that several members of the committee will wish to take up with you some of those aspects.

Before I bring in committee members, I will turn first to Isobel Ingham-Barrow, Hardeep Singh, Kieran Turner and Neil Barber, in that order.

Isobel Ingham-Barrow (Muslim Engagement and Development)

Good morning, and thank you very much for having me. First, I will echo much of what Ephraim Borowski has already said, especially on the idea of intent. Since 2006, when intent was introduced in the English and Welsh contexts for religiously aggravated offences, only a handful of cases have been successfully prosecuted. Unfortunately, that is largely due to how difficult it is to prove someone’s intent in a court of law, and that puts the thresholds at an unworkably high level. That would make much of the benefit that the bill would bring redundant, so we are concerned about the inclusion of intent.

However, there are also concerns surrounding freedom of expression, which need to be addressed. Our recommendation for dealing with that is to consider definitions, such as a definition of Islamophobia and definitions relating to other protected characteristics. I have two examples. One concern would be about an inability to criticise religion; there need to be definitions of Islamophobia, antisemitism and so on.

We have given guidelines on how to enact a robust policy-applicable definition of Islamophobia, which would have to include a section exempting the criticising of religion as being outside the realms of Islamophobia. I know that communities have a lot of concern about freedom of religious expression, particularly with reference to religious texts, and about freedom of belief surrounding issues such as sexual preferences, for example, so the definitions need to be robust enough to be policy applicable and written into legislation.

I know that the Parliament has been examining, for example, the all-party parliamentary group on British Muslims definition of Islamophobia for some time and that Covid has disrupted that process quite heavily. However, in defining what we mean by terms such as “abusive”, “insulting” and “reasonableness” or even things such as “grossly offensive” or “grossly insulting”, we need to be having conversations about what those terms mean rather than enforcing intent, because I think that enforcing intent will seriously damage the effectiveness of the bill.

As Ephraim Borowski has correctly pointed out, the bill has come about due to a need to protect victims, so we need to be thinking about how we are going to maximise that protection without disrupting freedom of expression. Having those conversations around guidelines and definitions of what is included within the remit of “insulting” or “abusive” against the different characteristics is a way to combat that.

What is also important, as a few people have mentioned, is uniformity. Each individual protected characteristic needs to be given attention in terms of the guidelines and what would be included within the remit of “insulting”, “abusive” and so on. At the same time, the protections afforded to each of those protected characteristics needs to remain the same. I am sure that there will be questions later about racial hatred being a separate category with separate protections, but if we fail to have uniform protections, we risk creating what Ephraim Borowski referred to in his submission as a “hierarchy of inequality” that would be quite damaging for certain protected characteristics.

The Convener

The Law Society of Scotland has also been strong on that particular point.

I want to move on to other witnesses, but perhaps you could respond to this question the next time the microphone comes around to you, Isobel. I am sure that we would all agree that these terms need to be defined. The question is the extent to which we would be content to leave those questions of definition to the courts and the extent to which we need to define in advance in legislation what all these terms mean. Perhaps we could reflect on that and come back to it in due course, but I am anxious to bring in the other witnesses now.

Hardeep Singh (Network of Sikh Organisations)

Thank you for the opportunity to speak to the committee today. We broadly welcome the modifications around intent. That has allayed quite a lot of fears. However, there are still a lot of concerns about free speech. We believe that the free speech provisions that exist in the bill need to be strengthened. The issue of specificity of language and wording has already been touched on. The existing bill protects religion and sexual orientation only. When it comes to free speech, the protections are limited to “criticism” and “discussion”. We do not think that that goes quite far enough if there is more trenchant speech or more robust discussion around certain issues such as transgenderism, for example, so it would be good for the committee to follow parallel legislation in England and Wales, which was specified in the previous session and earlier, and add words such as “antipathy”, “dislike” and “ridicule”.

In our submission to the committee, we referred to J K Rowling and her staunch defence of women’s rights. We believe that people such as J K Rowling have every right to be able to express their opinions freely without fear of censorship or, if the bill saw the light of day as currently drafted, potential criminal prosecution, so we think that the free speech defence should be extended to transgender issues.

I want to touch briefly on the vagueness of some words in the bill, some of which were mentioned earlier. We believe that a number of words require to be clarified by the committee. The terms “abusive”, “hatred”, “insulting” and “inflammatory material” are subjective and can have a broad interpretation. They are vague and nebulous, which in essence leaves it up to the state or the criminal courts to decide which opinions we can and cannot have.

11:15  



It is difficult to imagine a scenario in which someone says something insulting that is not abusive at the same time. There is a danger that just offensive speech could be caught. If you are an activist of any sort and you take the view that speech that you hate is essentially hate speech, you could potentially weaponise the bill to persecute your political opponents or opponents in any area. That is especially bad in the politically volatile times in which we live. Vexatious claimants, or offence archaeologists, will benefit from the bill, as will some lawyers, who will further line their well-upholstered trouser pockets.

On the word “hatred”, there is a really good example relating to the hate crime operational framework that currently exists in law. There was the case of Harry Miller, who tweeted a poem and was subsequently investigated for what was classified as a non-crime hate incident. Harry, who had more guts than most people out there, took that to court and the judge ruled that there is no right to be offended. Nevertheless, Harry was still recorded as somebody who had carried out a non-crime hate incident. That is scary, because it would still come up on a Disclosure and Barring Service check and could prevent people from getting jobs and so on.

Therefore, we think that there should be clarity around the definitions of those words and we would welcome comments on that from the committee.

The Convener

Thank you—that is helpful.

Kieran Turner (Evangelical Alliance)

Thank you for the opportunity to give evidence.

A lot of what we flagged up has already been said. The amendments on intention help somewhat. Our big concern has always been that people could be caught unintentionally by the bill. We all recognise that the bill is trying to tackle issues that are causing victims significant problems and harms due to the stirring up of hatred, but at the same time it is trying to protect freedom of expression. Prior to those amendments being announced, we had huge concerns that people could be caught unintentionally by the bill and that the balance that Ephraim Borowski talked about was not quite right. It will certainly help to have intent included although, obviously, not all the stirring-up offences will have it, because it will not be included in the racial provision. However, those changes are not a magic bullet, and we still have a few other concerns. I will raise two or three of them.

We think that the freedom provisions need to be broadened and deepened. At the moment, there is a hierarchy of defence or protection. The depth and detail of those provisions need to be better. We associate ourselves with the remarks on section 29J and 29JA of the Public Order Act 1986 and some of the terms that are already applicable, such as “antipathy”, “dislike” and “ridicule”. Lord Bracadale originally suggested that a similar provision be included in the bill, so we question why that has not happened and why that wording has not been transferred across. If new offences are being created on the one hand, there needs to be a similar level of defences that enable the right balance to be struck.

In all of this, we need absolute clarity about what the bill is trying to catch and what it is not trying to catch. Therefore, we agree with the points that have been made about the dangers with the definitions of some key words, and we associate ourselves with what Hardeep Singh said on those issues.

We have questions about inflammatory material and the view to communicate that. At what point does possession become a view to communicate? How is that proved? We have questions about the dwelling-place defence. We appreciate that there are two sides to that, but we wonder whether those two things might be put together in a way that would warrant searches of people’s homes and seizure of materials.

Our final point is about the function of the freedom clauses. They must be in the bill to provide clarity. I noted last week’s conversation about article 10 of the European convention on human rights and to what extent the freedom clauses are needed, but we would like to see greater clarity on the offences that the bill will catch. We need clarity about the defences and the freedom provisions.

There is also an important—perhaps symbolic—message in having the freedom sections in the bill. The stirring-up offences are there because it is seen as important to send a strong message about what society will and will not tolerate. In the same way, if we want to protect the principle of freedom of expression—which all of us on the panel would agree with—that principle should apply to defences as well as to offences.

Neil Barber (National Secular Society)

Thank you for asking the National Secular Society to take part.

There is a concern about intent, and we welcome the reconsideration of that, which is a step in the right direction. However we do not think that that will be of any comfort to writers, artists or playwrights who anticipate lengthy, expensive, stressful, sleepless months before court cases. It will be of no comfort to them that, if that court case takes place, there is a fair chance that they will get off with it. Those artists will simply not make those points in the first place. The result will be intimidation of free speech from the start.

Lots of people have said that today and that point must be considered. There will be hot-shot young lawyers who want to establish a precedent as part of their life’s work and will say, “I put it to your honour that, while there was no abuse, there was obviously an insult.” Legal sophistry pivots on those nuances. The fact that a court case is required to prove intent is not helpful. It will intimidate free speech from the start.

There is a particular concern about religion. A lot of religious ideas and sensitivities are quite esoteric. That means that you cannot know what is going to be offensive. The blurring of “insulting” and “abusive” creates more legal sophistry. A lawyer could say, “Clearly it wasn’t insulting, but I put it to you, your honour, that there was clearly abuse going on.” Those words, as Hardeep Singh says, are interchangeable. They are too vague.

We would like to see far stronger protection, as there is in England, where there are protections for the expression of antipathy, dislike, ridicule and insult and for the abuse of religion and religious practices. In that context, we can draw cartoons of Mohammed and make movies such as “The Life of Brian”. If Scotland allows only for “discussion” and “criticism”, and as long as we are polite about it, free speech will be intimidated from the start. Of course, we are very glad that the blasphemy law is being repealed, but we are concerned that the new hate crime bill should not simply replace the blasphemy law.

It is crazy that Scotland can go to the United Nations and say to countries where blasphemy is a much more serious offence, “Gonnae stop executing your apostates for blasphemy,” when those countries can turn round and say, “Well, you’ve got a blasphemy law; what’s the problem?”

Ideas are not beyond scrutiny. We have to distinguish between ideas and individuals; there is a blurring of the difference between ideas and identity. Anyone who believes that there is an understanding of the difference between religious identity and religious ideas has never been a secular campaigner. Those things are blurred every day.

We need much stronger protection of free speech. We need to bear in mind, too, that in Scotland today the zeitgeist is quite liberal, but—without getting too science fiction about this—we can imagine that in 20 years’ time there is a hellish new regime—

The Convener

I am sorry to cut across you, but we are getting a little further removed from the bill than is ideal, and I want to bring in Ravi Ladva.

Ravi Ladva (Hindu Forum of Britain (Scotland Chapter))

Hello and namaste to everyone. Thank you for inviting me to speak here today and thank you for your time.

Let me say on behalf of the Hindu community that we have issues with the data collection provisions in the bill. We feel, as do other witnesses, that if the bill were passed it could seriously impinge on the intent to modernise hate crime legislation and make it fit for purpose, including by repealing the blasphemy law.

Our concerns about the bill also speak to societal and individual emotional intelligence and our ability to process complex emotions and deal with difficult circumstances and situations, an integral part of which is free speech—the ability to say what we think and how we feel is important, whether or not people agree with that.

Let me give a Hindu—and a personal—example. I subscribe to a philosophical school, Samkhya, which at its core is atheistic but resides in an orthodox framing of Hinduism, along with the most devotional aspects, including the Hare Krishna, for example. That is only possible through dialogue, which builds an understanding and removes ignorance. I opened with the word “namaste”, which is a Sanskrit word that, in essence, recognises divinity in everything and everyone. That level of oneness is something to which we can aspire.

There are grey areas in the bill, which would impact implementation and enforcement. For us, it speaks to an essential part of our social contract as citizens of the UK and Scotland, which is about being good to one another. I do not want someone to be good to me simply out of fear of what a piece of legislation can do, whether that is tie them up in lawsuits or lead to consequences such as prison. The journey to being good to one another breaks down ghettos and creates communities—and prosperity.

We do not want to arrive at a situation in which ghettos of the mind are created in individuals and groups and people’s personalities are repressed. We have seen that with lesbian, gay, bisexual and transgender people, who, for decades, could not be the best versions of themselves; they could not be who they were—and we know the impact of that, in terms of suicide rates and so on. We do not want to move in that direction. Therefore, we should look to have conversations and build programmes that facilitate deepening conversations and bonds.

This discussion reminds me of a passage from one of our holy texts, the Bhagavad Gita: we are kept from our goals not by obstacles but by a clear path to a lesser one. Although we welcome aspects of the bill, we think that we should aim to address the root causes of hate speech—those things that we do not yet understand. To that end, I hope that the discussions about the bill can be broadened out—[Inaudible.]—with support from the bulk of the public, so that we can engage and develop the conversation further.

The Convener

Thank you, Ravi; that is very helpful.

We all need to keep an eye on the time; if we have short, sharp questions and answers, we will get through the business.

11:30  



Annabelle Ewing

Good morning. We are having very interesting discussions. I want to turn to the issues of religiously inflammatory material and racially inflammatory material.

Possession of religiously inflammatory material has been an offence in England and Wales since the Racial and Religious Hatred Act 2006, but I do not recall any evidence of religious books ever being destroyed as a result of the act; the same goes for the possession of racially inflammatory material, which has been an offence across the UK for decades. I agree that the issue is worth discussing, but I wonder about the extent to which discussions in the context of the Hate Crime and Public Order (Scotland) Bill are informed by the experience elsewhere, including in England and Wales.

I put that question, in turn, to Isobel Ingham-Barrow, Anthony Horan, Ephraim Borowski and David Bradwell. I appreciate that many others might have a view, but we will start with those witnesses and take it from there.

Isobel Ingham-Barrow

As I said, we need a clear definition in the guidelines of what constitutes “inflammatory”. On top of that, a number of concerns surrounding possession and disposal of such materials need to be discussed—for example, for the purposes of academic research, people often own materials that they do not agree with. Those areas are in desperate need of discussion. Just because there is no evidence that, under the 2006 act, such materials have been disposed of, that does not change the fact that it could happen, so the issue needs to be given careful consideration.

To touch on the convener’s earlier question, the definitions and—more importantly—the guidelines with regard to what sits within the remit of our understanding and what activities are included within the scope of abuse or insult against certain characteristics need to be embedded within the legislation, so that it is not a subjective decision for the courts to make. Does that answer your question?

Annabelle Ewing

Thank you. I am just listening to the responses. I do not get the impression that people are clamouring for the 2006 act to be amended to remove the provision for the destruction of materials, but perhaps that is an issue for another day.

Anthony Horan

Just because England has experienced the issue in a particular way does not mean that it will play out in the same way in Scotland. As I set out in my first response, the term “inflammatory” needs clarification; what arouses anger or hostility in each individual is subjective, and we are concerned about that. Again, some clarity around the definitions might help to alleviate concerns.

As the convener mentioned earlier, where the line is between what the Parliament should legislate for and what should be left to the courts to decide in interpreting that legislation is probably a matter for political prudence, but it is extremely important that we try to make that line clear, because the legislation can go only so far, and then we need to leave it to the deft touch of the judiciary to interpret the terms. That might sound like a bit of a get-out, but I think that it is a matter of political prudence.

We still have that overarching concern around the definition of “inflammatory”.

Ephraim Borowski

I echo what others have said. “Inflammatory” sounds as though it is a subjective term, but it is being used in the context of law. As I said earlier, as I need hardly tell the committee, lawyers are very used to handling terms that sound as though they are subjective but which are, in the legal context, objective, because the test that conduct has to satisfy in order to reach that standard is what the reasonable person would regard as meeting that standard. I might have less concern, but I would not stand against the idea that defining “inflammatory” in the bill would be an improvement.

David Bradwell

I agree with what everyone has said about clarity of definition. I can use the example of documents in the life of the Church of Scotland, such as the Westminster confession of faith, which was agreed in the 17th century. It is an important description of what it means to be a reformed Presbyterian Christian in Scotland, but parts of it could very well be seen as inflammatory, as inciting hatred or as causing offence to Roman Catholics. In its current usage and through our partnership ecumenically, it is still part of our DNA as a church. We live with it and with our partnerships and relationships. How might such a document be caught by the provisions? Clarity of definition would be very useful.

Annabelle Ewing

I see that three other witnesses have requested to come in. I assume that that should be okay, if everyone is brief.

Hardeep Singh

I agree with Anthony Horan about the need for clarity. It would be extremely helpful if the committee could look at what the criminal threshold for inflammatory material is before that is tested in a real court case. As we say in our submission, we agree with many of the Christian denominations that there are concerns about whether the Bible or other holy texts could be considered as offensive materials. Verses that refer to homosexuality as sinful could be caught by the bill. However, we also made it very clear in our submission that verses in holy texts that incite violence or hatred towards non-believers and that are used for the purpose of stirring up hatred should absolutely fall within the scope of the bill.

We would like there to be clarity about whether, for example, there would be an exemption for an academic in a university who shared “Mein Kampf” with undergraduate students, or for the work of Germaine Greer, which would almost certainly be considered to be inflammatory material by some transgender activists. It would be nice to have some clarity from the committee on such questions.

The Rev Stephen Allison

I agree with a lot of what has been said, but I will make a couple of additional points. Annabelle Ewing referenced the equivalent provisions in England and Wales, which have much stronger freedom of speech protections. In order for the issue of inflammatory material to be dealt with well, stronger protections would be required in Scotland relating to freedom of speech, ridicule and dislike—all the stuff that has been mentioned previously. There are also issues relating to the bill saying that something has to be offensive to a reasonable person, and to testing that.

A supplementary issue is that what is inflammatory, or what offends or abuses people, changes over time. We have seen that recently in relation to people who have written historical material or novels. Even people such as David Hume are suddenly being attacked for their views on slavery. Given that people’s views and what is acceptable in society changes over time, there might be aspects of older inflammatory material that we would strongly disagree with today, but we have to see such material within its historical context. In the Free Church of Scotland, we would say the same about the Westminster confession of faith: it has to be read in a historical context.

Our concern is that, over time, people could see things as abusive and make more use of inflammatory material than may be the case today.

Ravi Ladva

I echo what the Rev Stephen Allison has just said. In history, we see peaks and trends, and expansions and collapses of liberalism and conservatism. There is a possibility that, if things are not well defined, we could be cutting ourselves off from lessons from the past. [Inaudible.]—and the language that is used. I do not know how everybody else feels, but we would welcome the opportunity to see that before it is used in a court of law, in a test trial or anywhere else. That is the point that we would like to make.

Annabelle Ewing

Thank you.

The Convener

Thank you very much. Annabelle, I hope that you feel that people have done justice to your question.

I am going to bring in Liam Kerr for a quick supplementary question on the back of that, and then Liam McArthur. Neil Barber, we will get to you soon.

Liam Kerr

My supplementary is directed at David Bradwell.

In your remarks, you said that a document could be inflammatory to Catholics. Given that section 6 of the bill provides powers of entry and that, in its submission, the Free Church of Scotland commented that only two or three complaints might be sufficient to apply for a warrant, can you foresee a situation in which the police might enter a church in order to seize and retain the offending publications that you have referenced?

David Bradwell

I cannot, because I do not know much about that aspect of police powers and criminal law. It might be better to direct that question at the police or a legal expert.

Liam Kerr

No problem—thank you.

The Convener

We took extensive evidence from legal experts and the police last week, so unless anybody else wants to come in, I think that we can leave that one there.

Liam McArthur

Good morning. In answer to the convener’s original question on stirring-up offences and intent, a number of you mentioned your desire for stronger protections for freedom of expression; Annabelle Ewing referred to some of the safeguards in that respect that are provided in the law in England and Wales.

The Cabinet Secretary for Justice has stated his willingness to consider extending and deepening the protections for freedom of expression. I do not want anybody to go over ground that they have already covered, but do you have any comment on that? What would you wish to see in that respect? Perhaps we can start with Neil Barber and then go to Ephraim Borowski for a slightly different slant.

Neil Barber

As I have said, we would certainly like to see better protections for free speech, in keeping with those in England, where expressions of antipathy, dislike, ridicule, insult and abuse go much further than the quite polite discussion and criticism that we are allowed in Scotland.

On the communicating of hateful material, it occurs to me that Gideons groups send copies of the Bible into schools. We have already discussed some of the texts in the Bible that the Christian Institute recently referred to as “unfashionable”.

On the issue of a hierarchy of protected characteristics, we saw that in Birmingham, where parents said, “We’re not allowed to discriminate against gay people, so you’re discriminating against us by disallowing us from discriminating against people.”

I would be interested in hearing how the cabinet secretary would respond to incidents such as those that have occurred in France, where people have died for drawing cartoons of the prophet Mohammed. Would that be described as abusive behaviour and as a hate crime? Would that be permitted under the proposed legislation?

11:45  



Liam McArthur

I would be interested to hear Mr Borowski’s take on my question, given his earlier comments in relation to intent.

Ephraim Borowski

I have a couple of points to make. First, I will comment directly on what has just been said. There has been a discussion about the use of the phrase “evinces malice and ill-will” and Lord Bracadale’s suggestion that it should be replaced with “expresses hostility”. I understand “malice” and “ill-will” to be ordinary English language expressions that are a lot stronger than mere hostility. As somebody said at last week’s meeting, some of us live in a world where Victorian vocabulary is fairly commonplace, so I am not particularly bothered about “evinces” being replaced with “expresses”.

It is clear that it should be recognised that speech is behaviour and that the same protections that people have from physical assault should exist for verbal assault as well. That requires a balancing exercise as regards intention, negligence and accident, as well as the issues to do with effect, which we talked about earlier.

Secondly, we mentioned a couple of times in our submission an idea that might cut through a lot of this—the idea, which is remarkably radical for us, that we should take out the list of protected characteristics and should protect anybody who is attacked on the basis of their belonging to any identifiable group, whether people with red hair or cyclists.

Why do we give protection to racial groups? That leads to us having to redefine race in the Equality Act 2010 to include other categories. We then have to argue about whether those groups are defined by the census or by people’s self-ascription. There are inconsistencies—for example, Jews and Sikhs are a race but other religions are not—and there is an argument about whether Gypsy Travellers are a race and so forth. We should not need to have that argument if we spoke in complete generality about attacks on people because of characteristics that they share with a group. What defines hate crime—this can be found throughout the literature, all the way back to the Stephen Lawrence inquiry—is that it undermines individuals because of their membership, or perceived membership, of the same group as the initial victim.

Liam McArthur

I thank Mr Borowski and look forward to the stage 2 amendment on protection for cyclists.

Ravi Ladva

What Ephraim has mentioned reminded me of a case in 2019, in which vandals attacked a Hindu temple in Walsall and destroyed a number of idols and statues that were placed outside. It spoke to the fact that there are aspects of each of our faiths that proselytise and actively seek new converts. Can the act of a Jehovah’s Witness or a Hare Krishna who preaches outside be classed as a hate crime because it is seen as hateful towards another person’s particular faith?

Extending further from there, that case speaks to the danger—if not a well-defined possibility—that people could retreat within themselves and from society because they are afraid to express their particular articles of faith, because those particular feelings mandate that they should go out and preach their truth to the world.

The Rev Stephen Allison

Lots of people have talked about the provision about the widening of religious freedom of expression, and I know that lots of people have said, as we did in our submissions, that more protected characteristics should be covered by the freedom of expression provisions, such as the transgender stuff. I would like to add another area that we are concerned about. The current wording of the sexual orientation provision focuses very much on practice and does not talk about some of the wider issues of identity. A concern that we have as a church is that it does not mention any ability to criticise and make comments about same-sex marriage. Given that religious groups have protections that enable them not to conduct same-sex marriages and to hold views against same-sex marriage, we think that there should be some reference in the bill to that, as there is in the equivalent English legislation, which is the Public Order Act 1986.

Hardeep Singh

We would welcome the committee’s thoughts on the issue of considering extending a list of free speech provisions, for example, for journalistic freedom.

The Convener

Thank you for those thoughts on the free speech provisions. We will now move on to a line of questioning that John Finnie, who has been waiting patiently, is going to take up.

John Finnie

Good morning. As in previous sessions, I would like to talk about aggravations. There has been a broad welcome for the statutory aggravation process being maintained. In the first instance, I would like to direct a question to Mr Borowski, about an interesting aspect in his evidence in that regard.

Mr Borowski, you say that you are supportive of that principle, but you highlight what you refer to as one drawback of the statutory aggravation model—perhaps a self-evident one—which is that there must be something to be aggravated. You detail a number of unpleasant incidents that you are aware of, and you go on to say:

“We have experience of a prosecution for ‘racially aggravated conduct’, and we would urge that proposed legislation should make this option available for incidents such as those we have described”.

Do you feel that the scope of the bill is inadequate?

I would also like the witnesses to give a general view on Lord Bracadale’s recommendation that the racially aggravated harassment offence should be repealed. That has been maintained by the Scottish Government. If members of the panel feel that that is necessary with regard to race, why should it not be necessary with regard to the other characteristics?

Ephraim Borowski

You put the point absolutely precisely that, in order to have an aggravation, there has to be an offence that was aggravated. However, if you have, unfortunately, to report what you regard as a hate incident to the police, they are as likely as not to categorise it as an incident and not as a crime. In order to have the perpetrator prosecuted, there are lots of hurdles. First, you have to persuade the police that it is a crime, then the police have to persuade the procurator fiscal and, if necessary, a procurator fiscal has to persuade Crown counsel and so forth, and then you have to persuade the court, if it gets to that stage.

Our concern is with repeated incidents, not just one-off incidents that could be put down to stupidity or whatever. It relates to instances where a particular individual has undertaken a course of conduct that involves low-level harassment, which might actually have a relevant context. One of the examples that we gave in our submission concerned the harassment of someone who had been a previous complainant and was subjected to repeated harassment over a period of time. None of those individual incidents would amount to a crime, and, therefore, none of them can be classed as aggravated and taken to court on that basis.

There needs to be specific provision—a sort of Moorov doctrine, as it were—for hate crime, whereby, if somebody consistently indulges in low-level incidents, particularly if they are directed against the same victim or victim group, they can be aggregated into something that would itself constitute a crime that could then be aggravated. That is the answer to your first question.

The answer to your second question relates to what I said earlier about having a general view of a victim group. Hate crime is a crime that is motivated by the victim’s membership or perceived membership of a particular group, whatever the group is. That sits alongside the principle that has been expressed by me and others today, and by the Law Society of Scotland and the Faculty of Advocates last week, as well as by others, that there should not be a hierarchy of protected characteristics, and that the same protections should apply to all.

Isobel Ingham-Barrow

Obviously, I agree with everything that has just been said. I want to reiterate the importance of those harassment provisions being extended to cover all protected characteristics. That is important, first, due to the hierarchy of inequality that we spoke about earlier, but also because—to take the case of Muslims as an example, because that is MEND’s area of expertise—there needs to be an understanding of the fact that certain forms of hatred such as Islamophobia are a form of racism and that certain groups, such as Muslims, are not covered by existing provisions on the ground of race. Islamophobia manifesting as racism means that Muslims have become a racialised group. For police and prosecution services, it is often difficult to decide on how to move forward with the case in that regard. Obviously, that impacts on victims and communities. Therefore, I fully support the extension of protections across all protected characteristics.

Hardeep Singh

I want to make a comment around the aggravation of offences by prejudice. We think that the provision in the bill about presumed membership and perceived religious affiliation is positive. Ever since 9/11, Sikhs and many others who are described for the purposes of this argument as the “Muslim-looking other” have faced a backlash in retribution for terrorist outrages across the world. To illustrate that, I can give you an example based on freedom of information requests that we have made to the Metropolitan Police in London, which show that, in 2016, 25 per cent of victims of Islamophobic hate crime recorded by the Met were non-Muslims or people of no recorded faith. The majority of those non-Muslims were Christians, followed by Hindus. The figure also included Sikhs, Buddhists, Jews, atheists, agnostics and others.

There is an issue around clarity in that regard. The bill says that, in order to substantiate aggravation by prejudice,

“Evidence from a single source is sufficient to prove that an offence is aggravated by prejudice.”

We would like clarity from the committee about whether that involves the same kind of criteria that are in the College of Policing’s hate crime operational guidance, which says that the reporting of a hate crime must be based on the perception of the victim or any other person, and that the police cannot challenge that perception, and no evidence is required. We hope that the test that the bill is talking about is more of an objective test, because it could potentially lead to a sentence uplift.

John Finnie

I am sure that that clarity will come at some point.

12:00  



Neil Barber

My partner is a social worker and I appreciate that, when a hate crime is committed against somebody, its effect is much more damaging on them and on the community of which they are a part, so it is right to treat that as a serious crime. However, I think that Scots law provides enough protection through section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010, which talks about causing

“a reasonable person to suffer fear or alarm”.

That is adequate protection.

We must look at the difference between threatening people and abusing people. For example, people can believe that marriage equality is inappropriate—although I do not share that belief—as long as they do not ship up at gay weddings with a placard. People can oppose abortion as long as they do not guilt trip women outside clinics. There is a difference between insulting and threatening, and Scots law provides adequate protection against being threatened.

The Convener

John Finnie is indicating that he thinks that his questions have been appropriately answered, so we will move on to Shona Robison.

Shona Robison

I have two questions on the aggravation of offences. You will be aware that a core method in the general approach to dealing with hate crime is the continued use of statutory aggravations, which has been broadly welcomed. Does anybody differ from that view?

On sentence uplifts, Mr Singh mentioned that he would have a requirement for more transparency in sentencing, which involves defining the effect of the aggravation on the sentence. Do the other witnesses agree with that? Is that practical? We heard from some in the legal establishment how challenging achieving that in practice would be.

Hardeep Singh

I am not a lawyer, but I think that clarity is required about the source of evidence. Under the hate crime operational guidance, recording an act as a hate crime depends on the perception of the victim or any other person. Such clarity is required. Whose evidence are we talking about when we talk about a single source of evidence to substantiate—[Inaudible.]

Clarity on that point would be welcome.

Shona Robison

Does anyone want to comment on the general point about the continued use of statutory aggravations? It looks as if there is consensus on that.

The Rev Stephen Allison

On the evidence and the continued use of aggravations, we are encouraged that an aggravation requires the underlying offence to be proven with corroboration, which removes the subjective element. It is of course difficult to prove the hatred element. Having a single source of evidence makes that a bit easier but, as a former lawyer, I know that contrary evidence could always counteract such evidence. The standard is not as high as requiring corroboration, but we are content because corroboration is required for the underlying offence.

What is really affected is the sentencing. Judges always take the aggravation into account—the bench comments all the time on how bad a situation was because of the particular circumstances of the offence. The approach makes it easier for judges to justify decisions and explain that they have increased sentences because of the hatred aspect.

Ephraim Borowski

I have a brief point about how an aggravation is recorded; it relates to an issue that runs through the criminal justice system. It is not good enough to record the relevant protected characteristic, as listed in the bill. It is necessary to know, for example, which race or religion is targeted. Frankly, without that, the statistics are meaningless. It is not possible to identify patterns and trends simply by knowing which of the listed headline characteristics is involved.

The Convener

Ravi Ladva wants to come in, after which we will move on to a new line of questioning with Rona Mackay.

Ravi Ladva

I have a point to make about situations in which the aggravation is a result of ignorance. Many Hindu articles of faith are taken out of context or misconstrued. Will that now be classed as a hate crime? I think that there is scope for organisational awareness and empathy to be built into the bill, whereby people will be protected if it can be proven that what they said was said out of ignorance. I do not know how other witnesses feel about that, but it is important to us that there is a cure and prevention element to what the bill does.

Rona Mackay

In the interests of time, I will direct my questions to Isobel Ingham-Barrow, Kieran Turner and David Bradwell. I want to return to the subject of the bill’s different approach to race.

Isobel, you said earlier, and it is mentioned in your submission, that 83 per cent of Muslims have experienced Islamophobia and that you want it to be treated as a separate category. At the same time, however, you are arguing for the bill to be uniform and for it not to create a hierarchy of characteristics. Could you clarify your thought process, please?

Isobel Ingham-Barrow

When we say that Islamophobia needs to be recorded as a separate category of hate crime, that very much relates to the way in which the police record incidents. As I said earlier, there is often confusion about whether to categorise an offence as being racially or religiously motivated, and that causes a problem particularly when it comes to Muslims—for example, as was mentioned earlier, Sikh communities are often targeted.

In forces such as the Met Police, there is a selection of check boxes whereby officers can tick all the categories that the incident could fall under. That approach is supposed to be uniform across the whole of England and Wales but, in practice, it does not always happen.

In England and Wales, antisemitism is already recorded as a separate category, and we believe that Islamophobia should also be, purely because, when it comes to analysing data and understanding the scale of the problems, it would give us an accurate picture of what is going on on the ground, and allow us to create positive and meaningful policy in such areas.

We are not arguing that there should be a separate protected characteristic to deal with Islamophobia; our point is purely to do with how the police record such incidents.

Rona Mackay

Thank you—that clears that up.

I will move on to Kieran Turner. In your submission, you say that you want the word “insulting” to be removed, but you also say that you do not want to send a signal that protection against racism is being weakened in any way. Could you expand on that, please?

Kieran Turner

Yes, of course. This is a very difficult area, and I know that the committee has covered the different threshold levels of the term “insulting” during the past few weeks. There are two main challenges with the inclusion of “insulting” in the bill as it stands. One relates more to nationality and nationalism and perhaps less to what we might all associate with racism. The concept of insult could overlap with political debates, such as the independence or Brexit debates. The term “insulting” might be carried over and used in those scenarios.

The other area is defences, which I touched on earlier. Proof of intent is now required for the new stirring-up offences, which means that there is a conversation to be had about what happens with the reasonableness test. That is not the case with insult, which leaves us with a question about vagueness and the burden of proof on the accused, or the partial burden of proof on the reasonableness test. Whereas sections 18 to 21 of the Public Order Act 1986 set out specific defences that are required to meet that threshold, there are currently no such defences in this bill.

If the committee decides that “insulting” is to stay in, we would argue for a more specific defence to ensure that people are not caught up in that by mistake. I appreciate that it is a difficult area and there are understandable views on both sides but nationality and the defence are particular challenges.

Rona Mackay

Context would always be important in those cases. That would always be considered.

David Bradwell, you say in your submission that the bill should not refer to “insulting” but to “grossly insulting” language. You say that that might clarify things. Please expand on that.

David Bradwell

The witnesses today are agreed that the right to insult and be insulted and the right to cause offence should be acceptable parts of freedom of expression. It is about where you draw the line around the right to hold strong beliefs that may not fit with the mores of wider society to the extent that they can be seen to be causing anger, upset and hatred.

Because the witnesses represent religions and belief organisations, I will also say that race and religion are often used as proxies for each other in hate crimes. Race is treated differently in the legislation, which is a problem when a crime might be directed at someone because of their religion or their race.

I do not know whether the committee plans to hear from groups representing people who might be more frequent victims of hate crime. The Church of Scotland is in quite a privileged position in that we are not often on the receiving end of hate crime. Within our membership however, we have disabled, elderly or LGBT people who will have questions about why race is treated differently. It would be useful for the committee to explore the reasons behind that. I do not have an answer, but I am glad that you are asking the question.

Anthony Horan

To build on what Kieran Turner said, and given the evidence that the committee heard last week from Lord Bracadale, the dean of the Faculty of Advocates and Michael Clancy, there is a clear suggestion that the term “insulting” should be removed from the bill or that it is not necessary. We support that. The term is open to wide interpretation.

To expand on what Kieran Turner said, nationality and citizenship are covered under the provisions for race. I do not think that people appreciate what including that could criminalise. For example, in recent years, we in the UK have been no strangers to hotly contested referenda, which cause robust and sometimes heated exchanges on the future constitution of the country. There would be a hotbed of insults, all of which could potentially be prosecuted under the provision. Last week, Dr Andrew Tickell said that we live in a culturally contested space, which was a very good point. He is absolutely right and the bill needs to be alive to that.

12:15  



Hardeep Singh

Although we did not comment on the point in our submission, it strikes me that, if “insulting” is used for race only, it could be construed as creating a hierarchy, which suggests a lower criminal threshold. The example that is helpful to illustrate that is the case of a gurdwara—a Sikh temple—in Glasgow that was vandalised with anti-Muslim graffiti in 2015. I will not mention one of the words, but the subsequent words were “no Sharia”, with a Nazi swastika scrawled alongside. That is potentially religiously and racially motivated, and I do not see why one should be treated any differently to the other.

Ravi Ladva

This point comes off the back of the tweet that was sent out by Lord Kilclooney yesterday, and it pertains to section 3(6)(a) of the bill, which defines “a person’s behaviour”. Picking up on Ephraim Borowski’s point about protecting victims, from the Hindu perspective, during the past number of decades, we have been expected almost to take it on the chin and turn the other cheek when certain things about our community have been portrayed. It is worth including in the bill protections and support for those smaller communities that exist within our country and society, whether that be legal aid or any other kind of support, such as emotional support, that they require.

The Convener

I will give Liam Kerr the chance to come in at the end and ask any follow-up questions. In the meantime, I will move on to Annabelle Ewing, who wants to ask some questions about hate crime characteristics.

Annabelle Ewing

I have questions about the non-inclusion of the characteristic of sex in the bill as regards both aggravated and stirring-up offences. In the interests of brevity, I will go to Neil Barber, Kieran Turner, Anthony Horan and Hardeep Singh. Do you wish to make any specific comment on that? Is the parallel work vis-à-vis a stand-alone offence of misogynist harassment the better path, or would there be a gap?

Neil Barber

There are people better informed than me to comment on those issues. Although I have personal opinions, it is beyond the remit of the National Secular Society. However, I note the notion that the law is putting out a message that will not filter down at any real level and will simply be a guiding message. That is useful, but we must remember that people will take that message and employ it to their own ends.

Kieran Turner

Similarly, my initial point is that others are more qualified than we are to say whether a stand-alone offence or part of the bill would be the most effective way of prosecuting in that area. Nonetheless, if the bill is seeking to consolidate and make clear different areas in relation to hate crime and, broadly, to follow the characteristics in the Equality Act 2010, it seems striking that sex is not part of that.

Anthony Horan alluded to the culturally contested conversations that are going on, and thinking about the conversations around the Gender Recognition Act 2004 and its reform, it seems that the bill covers and gives protection to one aspect of that—transgender identity—but it does not cover sex or biological sex. The question then is whether the bill really is seeking to consolidate protections and give everyone equality of protection. Related to that is the framework within free speech, debate and conversation around all those issues. The committee might want to reflect upon that question in its consideration of the bill.

Anthony Horan

The approach that has been adopted appears to be a bit fragmented, in that sex has been dealt with differently to other protected characteristics, which appears to be at odds with the overall principle of consolidation. Given the existing set of protected characteristics, I do not see why it should not be included, but of course that would be a matter for the working group on misogynist harassment to examine in its future deliberations.

I want to pick up on comments that were made in the earlier evidence session. Reference was made to pro-life groups carrying out vigils outside hospitals. I am sure that the groups that organise such events will speak for themselves, but I am not sure that they involve any incidents of harassment, abuse or threatening behaviour. However, that example highlights an important point about balancing fundamental freedoms, which we must take into account. In such situations, it is important to bear in mind freedom of assembly and expression, but those must always be balanced against the rights of people to go about their daily business without incurring harm.

Annabelle Ewing

Indeed. That is always a balancing act, is it not? Our discussions this morning have demonstrated that well.

Hardeep Singh

We have not considered the issue in our submission. My own comment is that the decision should be left to the experts in the working group, but consideration should also be given to other characteristics that could be included. In England and Wales there have even been conversations about whether protected groups should include people with ginger hair or those from subcultures such as goths. I am sure that other communities would also like to take part in such conversations.

Isobel Ingham-Barrow

Most of what I was going to say about consolidation has already been covered. It does not seem to make sense that sex should not be included.

I reiterate the point about the need to protect people’s rights when there are conflicts between those of different groups of people. Perhaps there needs to be greater discussion about how abuse against different characteristics intersects. For example, from our own experience, we would highlight that there is an interplay between misogyny and Islamophobia. Islamophobia is a gendered phenomenon and misogyny definitely plays into the attacks that we see. Women are overwhelmingly the victims of particularly violent instances of hate crime against Muslims. There needs to be an understanding of the intersection between instances of hatred directed against people with different characteristics.

The Rev Stephen Allison

Isobel Ingham-Barrow has just said much of what I wanted to say about the conflict between protected characteristics, which is certainly an issue. The exclusion of sex, together with the inclusion of transgender, creates a hierarchy that suggests that one characteristic is more valuable than the other.

There have been debates and discussions over gender identity issues, and the lack of a free speech clause on transgender plays into that. There is a lot to be said for sex being treated on the same level as transgender issues.

Annabelle Ewing

Thank you all for your thoughts.

The Convener

We will move to James Kelly for a slightly different line of questioning.

James Kelly

Good afternoon, panel. Do you think that any additional measures—legislative or otherwise—should be introduced to protect the victims of hate crime? I would like Hardeep Singh, Kieran Turner and Anthony Horan to answer that question first. If anybody else then wants to come in, they can do so.

Hardeep Singh

I do not have any suggestions for any extra provisions to protect victims of hate crime. I am sorry to go slightly off piste, but I suggest that we should have a dwelling defence to protect free speech in conversations that happen in the home, as there is in parallel legislation in England and Wales.

Kieran Turner

I do not have specific examples to add, but I flag up the ability of all of us around this table, who represent the diverse groups that we are in, to tackle hatred within our own communities whenever that manifests itself. It will not be lost on the panel that we are having this evidence session in the middle of Scottish interfaith week. Currently, many of the panellists will regularly be in online forums, engaging with Government on various issues. I advocate non-legislative approaches to tackling the issue in general, as well as speaking—as I am sure that you will do—to groups for those who have been victims of hate crime to see what other support can be given to them.

Anthony Horan

Like Kieran Turner, I do not have any specific examples. However, I think that it is very important for Parliament to listen to the wisdom of victim support groups and to take full cognisance of their recommendations, because they are the people on the ground. They hear what victims are experiencing, and we would certainly want to support that.

More broadly—Kieran Turner touched on this—we all need to engage our social responsibility and discourage hateful behaviour, which will, we hope, reduce crime in that area, and we need to support the victims of those crimes.

James Kelly

Okay. Thanks for those answers.

The Convener

Neil Barber, David Bradwell and Isobel Ingham-Barrow want to come in on that issue, if I have read that right.

Neil Barber

It will not surprise members to hear that, as a secular campaigner, I feel that criminalising hate speech from silly young laddies on football terraces when they have gone to them-and-us schools for 16 years is a gross act of bolting the stable door. Let us look at changing hate speech based on those very basic things, and let us not criminalise what is a manifestation of the sectarianism that is Scotland’s shame.

12:30  



Isobel Ingham-Barrow

I have a plethora of potential policy developments and activities that could help in those areas.

On the legislation, one of the submissions mentioned anonymity clauses. I believe that they would help victims to come forward to report their experiences.

I have already mentioned the recording of Islamophobia as a separate category of hate crime by the police. There are also issues to do with police engagement with local communities, increasing diversity among the force, and increased understanding.

There are also wider societal issues, such as encouraging political maturity, which involves issues such as political representatives not using divisive language in their statements. That is something that we should be looking into.

We must think about the way in which school curriculums can encourage the decolonisation of education and narratives, develop a sense of shared history, and highlight the contributions of different minority groups to society. That is important at the moment. This is Islamophobia awareness month, which is all about encouraging the recognition of the challenges that Muslim communities face as well as the contributions that they have made to society. Within that, we can talk about a recognition of the lasting impacts of colonialism and so on.

We must think about policies to do with bullying in schools and put in place teacher training on how to deal with bullying that is motivated by issues around race and religion and with other forms of hatred-motivated bullying.

Time is short, so I would be quite happy to send to the committee a long list of recommendations of wider measures outside the bill that could be implemented to help with our approach to hate crime.

James Kelly

Thank you for that comprehensive answer. It would be useful to get a submission on those points.

David Bradwell

I would be happy to supply the committee with examples of work that the Church of Scotland is doing, either supported nationally or delivered locally, to tackle hate speech, to deliver anti-sectarianism initiatives, to overcome violence against women, and to promote intercultural dialogue and refugee integration.

On the role of Government and Parliament, the Scottish Government runs the one Scotland campaign, which is clear about the direction that it would like society to go in. I have had some experience of the new Scots refugee integration strategy, which brings together everyone who might have an involvement in that issue—representatives of refugee organisations, statutory agencies and voluntary groups that offer support—with civil service and Government backing. That might be an interesting model to consider when policy makers are developing Government strategies and funding opportunities for community work, as well as developing political statements with regard to hate crime. Legislation is necessary, but the first step is to be made with people in communities.

James Kelly

Thank you. Those are good examples. Again, if you have further information, it would be useful for the committee to have that.

Fulton MacGregor

I have two questions. One is specifically to do with sectarianism; the other is more general.

The bill does not include any specific provisions on sectarianism. Do the witnesses think that the hate crime characteristics of race and religion are suitable with regard to labelling offending that is motivated by sectarianism? Should more, or perhaps less, be done in that area?

In the interests of time, I would like Anthony Horan and David Bradwell to answer that question although, if anyone else wants to come in, they can put a wee R in the chat box.

Anthony Horan

I tend to go with Lord Bracadale’s view on that. Sectarianism is generally adequately covered under existing offences and aggravations. I think that Lord Bracadale said that there is no gap in the law. Although we acknowledge that there is a problem with sectarianism and that we all have a role in tackling it, it is perhaps better to be a bit more explicit to ensure the fair labelling of sectarianism. If it is anti-Catholic, we should say that it is anti-Catholic, and if it is anti-Protestant, we should say that it is anti-Protestant. As Fraser Sutherland said earlier, sectarianism does not exist only between Catholics and Protestants; it also exists between other faiths and religious groups. I defer to Lord Bracadale, and I would rely on the existing criminal law provisions.

An important point to make is that nobody learns sectarian behaviour from their priest or minister on a Sunday.

Fulton MacGregor

Thank you. That is a powerful point well made.

David Bradwell

I am in full agreement with what Anthony Horan has just said. Members can rest assured that we will be monitoring the issue in the future, as we have done before. It might even be a subject for a future Justice Committee inquiry. Assuming that the bill is passed, we might do some more investigation into how it is working in a few years, particularly on the issue of sectarianism.

Ravi Ladva

I want to make a point on the back of the points that have been made about alternatives, and on the point about sectarianism. I am from Birmingham and am relatively new to Scotland, and I was relatively oblivious to some of the fault lines that exist in society here. I am aware of the fault lines that exist in my background and in cities, for example. One of the things that we could look at is the provision of funding to our respective organisations to do consistent outreach work, break down some of those barriers, engage with people in different areas—such as sport, food and other aspects of our culture—and try to bridge some of the gaps and bring people together along different lines. That is a serious alternative that we should consider.

Fulton MacGregor

Excellent. That is a very good point on which to end that particular line of questioning.

I have one further question, although the witnesses should not feel the need to answer it, because some of it has been covered with earlier questions. It is about general hate crime characteristics. Are any of the witnesses concerned about the way in which various hate crime characteristics have been defined in the bill? Are there any characteristics that should be added? We have already discussed sex, for example. Is there anything else that could be added, or do you have any other concerns about the characteristics?

I am not asking any specific witness that question. If you feel that you have already had a say on that, that is okay.

Everybody seems to be content, convener, so I am happy to pass back to you.

The Convener

Thank you for giving the witnesses the opportunity to come back on that.

Liam Kerr had a couple of supplementary questions that we did not get to earlier. It does not matter if we take them out of sequence; it is important that everybody gets to ask what they want to ask. Please feel free to ask what you want and to wrap up.

Liam Kerr

I have one question on an issue that we have not explored yet, which is the abolition of the offence of blasphemy in part 4 of the bill. Given where we are with the time, I will ask the question in the negative; any witness who wishes to jump in can then do so. There appears to be wide support for the abolition of the offence of blasphemy. Are any of you not supportive of that, or are you concerned about that abolition or about how part 4 of the bill is drafted? If that applies to you, put an R in the chat box and we will come to you.

As nobody has done that, I will hand back to the convener.

The Convener

I will resist the temptation to make bad jokes about self-censorship applying to the witnesses, none of whom wants to object to the abolition of the offence of blasphemy. Indeed, the written evidence that they sent the committee is clear on that.

I thank all of you very much for the time and consideration that you have brought to bear on the bill from a huge variety of faith and non-faith backgrounds. You have helped the committee to understand some of the implications of what we are dealing with in the bill.

If any of you have issues that you would like to reflect on further and come back to the committee on, please feel free to do so. I know that not everybody was able to say as much as they might ideally have wanted to say on every question, so if there is anything that we have not enabled you to say today, please come back to us. Thank you very much for your help and your time.

Our next meeting, which will be on Tuesday 17 November, will be a virtual meeting in which we will continue to take evidence at stage 1 of the bill. We intend to start at 9 o’clock.

I bring the public part of the meeting to a close.

12:41 Meeting continued in private until 13:00.  



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Fourth meeting transcript

The Convener (Adam Tomkins)

Good morning, everyone, and welcome to the 28th meeting in 2020 of the Justice Committee. We have no apologies.

Our first item of business is to continue our consideration of the Hate Crime and Public Order (Scotland) Bill. This morning, we will take evidence from three different panels of witnesses. Our first panel comprises seven witnesses, all of whom I welcome and warmly thank for joining us. We have with us Adam Stachura from Age Scotland; John Wilkes from the Equality and Human Rights Commission; Tim Hopkins from the Equality Network; Oonagh Brown from the Scottish Commission for Learning Disability; Colin Macfarlane from Stonewall Scotland; Kate Wallace from Victim Support Scotland; and Kevin Kane from YouthLink Scotland. Thank you all very much for giving up your time to help the committee with our inquiries. You are all very welcome.

Because we have such a large panel, we will not be able to take opening remarks from you all. Instead, I will launch straight in with the questions. You might all want to respond in turn to the questions, but if you do not have anything to add, please do not feel that you need to. Members will endeavour to address their questions to particular witnesses, at least to start with, so that we do not all speak at once and confuse the broadcasters, on whom we are all relying, as usual, this morning. I would like to direct my first question to Tim Hopkins from the Equality Network and then to John Wilkes from the Equality and Human Rights Commission.

As you know, the expansion of hate crime that is contemplated in the bill has attracted widespread criticism on human rights grounds. In response to that criticism, the Cabinet Secretary for Justice announced in September that he proposes to amend the bill. What is your reaction to the cabinet secretary’s proposed amendments? Do you welcome them? Do they go far enough? Do they go too far?

Tim Hopkins (Equality Network)

Thank you for inviting me to give evidence this morning.

Yes, we support the cabinet secretary’s suggested amendments to the offence of stirring up hatred. I should say that, for us, part 1 of the bill is by far the more important part, but we support the extension of the offence of stirring up hatred to the other protected characteristics.

I will give an example of the kind of thing that I think that the offence should cover. In England, the offence of stirring up hatred on grounds of sexual orientation has been used to prosecute people three times in the past 10 years. One of those prosecutions involved three men who distributed leaflets to houses in the locality. On one side of the leaflet there was a cartoon of a gay man being hanged, and on the other side of the leaflet it said, “The only question about homosexuality in classical times was the method of execution to use.” Those leaflets were clearly intended to stir up hatred and they were threatening.

It is that kind of wrong that the offence of stirring up hatred is targeted at. I do not think that we should assume that the rise of far-right activism could not happen here in Scotland. I think that, in such cases, the court can infer from what has been happening that there is an intention to stir up hatred, so I think that the justice secretary’s proposed amendment does not diminish the utility of the offence.

It is important that the offence covers threatening or abusive behaviour. The materials that were produced by the Nazis about Jewish people included horrible, horribly abusive cartoons of Jewish people that were clearly intended to stir up hatred, but which were not necessarily in themselves directly threatening. We think that it is important that such behaviour would also be caught by the offence.

We strongly support freedom of expression. We think that there is an issue with sections 11 and 12 of the bill, because they cover only two of the protected characteristics and only certain behaviours. We would prefer a freedom of expression provision in the bill that covers all the protected characteristics and is more general in terms. In our supplementary written evidence we made one suggestion for that, but I am sure that there are other possibilities.

The Convener

That is helpful. I ask the same question of John Wilkes.

John Wilkes (Equality and Human Rights Commission)

Thank you for allowing us to give evidence. Yes, we broadly support the amendments. As the bill proposals were introduced, we followed with interest the debate and the reactions to it from some sections of society. We are supportive of the proposed amendments on the issue of stirring-up offences and, for consistency, we believe that they should apply across all characteristics. However, we acknowledge that racial hatred is the most commonly reported hate crime and note that there are no proposals to change that. In some of our publications, we discuss how to balance freedom of expression and stirring up. I am happy to go into more detail if that is helpful.

The Convener

Thank you. Do any witnesses disagree? Does anybody not support the cabinet secretary’s amendments and think that they are mistaken, or are all seven witnesses unanimous in supporting the amendments? Nobody is disagreeing so I will not pursue that line of questioning.

Rona Mackay (Strathkelvin and Bearsden) (SNP)

I want to ask about the different approach to race hate crime in the bill. My questions are addressed to John Wilkes, Kate Wallace and Kevin Kane. If anyone else wants to add anything they should indicate that.

Race hate constitutes two thirds of all reported instances of hate crime, so it is clear that it is a huge issue. Unlike other proposals in the bill, insulting behaviour might be the basis of liability and not require intent to stir up racial hatred. As we know, stirring up of racial hatred has been a crime in England and Wales since 1986, but there have not been many prosecutions for that crime or the crime of possessing racially inflammatory material. Should race crime therefore be treated differently? Should we take a more robust approach to it, given its prevalence, and does it in effect create a hierarchy of characteristics, being different from the other issues in the bill?

John Wilkes

We broadly agree with Lord Bracadale’s view that the existing provisions on stirring up racial hatred should be revised so that they are formulated in the same way as other offences of stirring up hatred. [Inaudible.]—where possible helps to provide wider understanding of hate crime and how it is dealt with.

We were also persuaded by Lord Bracadale’s evidence that deletion of the word “insulting” did not undermine the ability to bring prosecutions. However, we acknowledge that racial hatred is one of the most commonly reported crimes in Scotland. That is where we stand on the issue at the moment.

Rona Mackay

Thank you. Kate Wallace? We are not hearing or seeing Kate so we will move on to Kevin Kane until that is sorted out.

Kevin Kane (YouthLink Scotland)

I trust that everybody can see me.

Rona Mackay

Yes, we can see you.

Kevin Kane

It has been mentioned that the provision on race has been on the statute books since 1986 and has rarely been used. A thought process flows from that, which is to ask: where is the issue? However, we are in the game of education, information provision, training, working with young people in the community and education settings and taking an informal approach, so for us it is important that any legislation is clear for the people who are impacted by the law and for those in the game of education.

It is difficult to envisage a scenario in which using words that are not threatening or abusive would result in criminalisation—I have read some of the previous responses to the question. Therefore, if what is said is not insulting, but meets the threshold for threatening and abusive behaviour, it renders “insulting” null and void anyway.

In our written response, we said that we cautiously shared the Scottish Government’s view that the threshold should be retained as “threatening”, “abusive” and “insulting”. However, we also said that we understood Lord Bracadale’s argument for the removal of “insulting” if it is about streamlining legislation. It is also important to say that streamlining does not mean doing things like for like.

Therefore, the main thing for us is that we need to continue to listen to the affected groups—black, Asian and minority ethnic groups. The view from many of those groups within our youth work equality forums was that the removal of “insulting” would weaken the proposed legislation. Similar to the justice secretary, we believe that we need to keep discussion going on that part of the bill and continue to listen to the views of that community.

I take the point about the potential for creating a hierarchy of protected characteristics. However, being mindful of the justice secretary’s comments about the nature of racial abuse, the structural and historical dynamics and the sheer number of people affected by it in Scotland—which he laid out in his submission last week—there is a case for a slightly lower threshold, perhaps on symbolic grounds.

I can understand why that argument might not hold any weight with a solicitor or a sheriff. However, I was thinking before this session about the Black Lives Matter movement and the great strides that we have made this year. The world is shining a light on racism and taking steps to combat it. Therefore, if I can speak freely, who would want to be the person that would remove something from the law that acts as a key protection for those communities? I can see why the justice secretary would be a little circumspect in his comments.

Unless there is a clear majority from the affected communities that backs its removal, we would not be prepared to take that step. However, it does seem rational and logical to streamline the legislation.

Rona Mackay

That was very helpful. It does not look like Kate Wallace is able to see or hear us. If anyone else wants to comment, they should put an R in the chat box.

The Convener

I will move to Liam McArthur, who wants to pick up on some of the questioning about free speech and related matters.

Liam McArthur (Orkney Islands) (LD)

Shona Robison is going to pick up on the issue of strengthening the provisions on freedom of expression protections that Tim Hopkins referred to. I will return to the point about the thresholds of “abusive” and “insulting”.

Mr Hopkins, you quite reasonably set out an argument about some of the early Nazi propaganda, which might not initially have been threatening although it was highly abusive. Is there not a legitimate concern that the terms “abusive” and “insulting” can be fairly subjective? Therefore, although they might capture things that a reasonable person would, appropriately, seek to be captured by the bill and criminalised, they might also—in the minds of those who are on the receiving end—capture things that, although we should not condone them, we should not criminalise.

The point that Kevin Kane made about the way in which the legislation is understood by those it is seeking to protect is important. If there is a heightened expectation that the provisions cover abusive and insulting behaviour, we run the risk of criminalising things that we really should not. Mr Hopkins, do you agree that that is a concern?

09:15  



Tim Hopkins

Yes, I do. It is important that the term “abusive” is interpreted in an objective way, so that we are not saying that, because one person finds something offensive, it will fall foul of the legislation.

The convener has suggested previously that one way to do that might be for the bill to require that the abusive behaviour should be likely to stir up fear or alarm. However, that is not quite the right solution, because it mixes up two offences: the offence in section 38 of the Criminal Justice and Licensing (Scotland) Act 2010, which is the offence of threatening or abusive behaviour that is likely to cause fear or alarm, and the offence in the bill of threatening or abusive behaviour that is intended to stir up hatred, which is a different thing.

I therefore suggest a different solution. If we want the bill to say specifically that the term “abusive” should be interpreted objectively, I suggest using the solution in section 60 of the Sexual Offences (Scotland) Act 2009, which ensures that the word “sexual” is interpreted objectively for the purposes of that act. If we copied that across to the bill, we would have a provision that said that behaviour or material is abusive if a reasonable person would, in all the circumstances of the case, consider it to be abusive. That would ensure that the term “abusive” was interpreted by everybody in the criminal justice system in an objective way and would allay the concerns that people are going to be investigated or prosecuted because one person said that they found something offensive.

Liam McArthur

That is helpful. I will come to Colin Macfarlane in a second, but first I want to come back to Mr Hopkins on that issue. With any change in the law, there is a tendency for it to be probed and pushed to test the limits to which it extends. Do you envisage a risk that the provision might be a focal point for testing and that cases will be brought that are perhaps not mischievous but are likely to cause anxiety about freedom of expression simply because the police and Crown Office are asked to get involved?

Tim Hopkins

Yes. The answer to that is to ensure that training is done with the police and procurators fiscal before the legislation comes into effect. The pushing of the boundaries that you mention happens anyway, and it could happen with a number of new criminal offences. Therefore, it is important that the police in particular are trained in advance of the legislation coming into effect so that they can be clear to people about the boundary of the offence.

The threshold of threatening or abusive behaviour that is intended to stir up hatred is a high one, and it is important that the police understand that.

Liam McArthur

I ask Colin Macfarlane to go next. If anybody wants to come in on the back of that, they should indicate in the chat box.

Colin Macfarlane (Stonewall Scotland)

I honestly do not have anything much to add. I agree with Tim Hopkins. It is crucial that there is clarity for those who will be expected to prosecute or take up the issue. Training will be absolutely central to the understanding of the thresholds. On your point about pushing the boundaries, Tim Hopkins is right that people want to test any new legislation, but the crucial aspect of that will be the training, learning and understanding of those who are expected to implement the legislation. I have nothing further to add.

Liam McArthur

Mr Wilkes, do you want to come back in and say whether the Equality and Human Rights Commission has concerns in this regard?

John Wilkes

Broadly, I endorse the comments of Tim Hopkins and Colin Macfarlane. Clearly, this is one area where the legislation needs to be drawn up very carefully. We need to get the balance right to protect freedom of expression. Obviously, that is not an absolute right, and it depends on the circumstances and context. It is always the circumstances and context that determine whether something amounts to threatening or abusive behaviour or is protected.

In a previous evidence session, a witness from the Faculty of Advocates said that the term “abusive” is clear and understood and that there is “an objective test” in Scots law, so that might bring some comfort.

It is an area that is discussed in many different fora, and we discussed it in our legal framework, which we published in 2015, on hate speech and the limitations of freedom of expression as defined under the International Covenant on Civil and Political Rights. We also note that work has been done by the Office of the United Nations High Commissioner for Human Rights on the Rabat plan, which looks at these divides, and could be a useful guide in looking at these areas of interest.

Liam McArthur

If no one has anything to add, I will hand back to you, convener.

The Convener

That is very helpful, Liam. I am afraid that we have lost our connection to Kate Wallace from Victim Support Scotland because of technical issues that we have been unable to fix. Therefore, she has withdrawn from the evidence session. If we want to take up anything with Kate or Victim Support Scotland, we will have to do that in correspondence after today. Shona Robison will pick up the questioning now.

Shona Robison (Dundee City East) (SNP)

Thank you, convener. We have received a lot of evidence arguing that the bill’s provisions on a general defence of reasonable behaviour along with the protection for freedom of expression in relation to specific issues need to be strengthened. I want to seek the witnesses’ views on that. Tim Hopkins referred to that earlier, so I will go to him first to see whether he has anything to add. If anyone who has not come in so far wants to respond on that, please type R in the chat box.

Tim Hopkins

Our supplementary evidence suggested a possible improvement to the bill, which might help to allay fears about freedom of expression. It is similar to what happened with the equal marriage legislation in 2014. Concerns were expressed that introducing same-sex marriage could inhibit people from continuing to say, if it was what they believed, that marriage should be between a man and a woman only. We were very clear that that should not be the effect of the legislation, so a section was inserted into that bill—section 16 of what is now the Marriage and Civil Partnership (Scotland) Act 2014—that says that, for the avoidance of doubt, nothing in the act affects your rights under articles 9 and 10 of the European convention on human rights with regard to freedom of religion and freedom of expression. Therefore, in our supplementary evidence, submitted jointly with a number of other organisations, we suggest that a similar provision could be included in the bill. The ECHR applies anyway, because it applies to prosecutors and courts, but putting it in the bill in those terms might give people some reassurance on that matter.

The other issue is that sections 11 and 12 of the bill cover only two protected characteristics with regard to freedom of expression—religion and sexual orientation—and cover only certain behaviours within those protected characteristics. For example, section 11, on religion, does not cover criticism of non-religious belief, even though the protected characteristic in the bill for religion covers non-religious belief. Section 12, on sexual orientation, is different from the English version in that it does not cover criticising same-sex marriage. Where do we draw the line? The problem with provisions such as those in sections 11 and 12 is that, if you include a list of things that it is okay to say, something will always be left out. Therefore, the more general provision would have the benefit of covering all the protected characteristics, but, being couched in more general terms, it could also cover a wider range of behaviour.

The Law Commission for England and Wales has considered that in its consultation paper on hate crime law in England. In paragraph 18.274 of its paper, it points out that the provisions in English law that are similar to sections 11 and 12 have a general purpose: first, to clarify

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

secondly, to clarify

“that criticism of behaviour is permitted”;

and, thirdly, to maintain

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

It seems to us that that should be the purpose of a freedom of expression provision in the bill. It would be more useful if it could be couched in general terms like that.

Shona Robison

That helpful and detailed response is something on which I certainly think that we as a committee should reflect.

Does anyone else want to add to Tim Hopkins’s comments?

Kevin Kane

We were supportive of section 16 of the Marriage and Civil Partnership (Scotland) Bill. The reference to equal marriage is a good one—the wording is framed well—and I would commend it to the committee to consider.

To pick up on Tim Hopkins’s comments, some of our organisations in our youth work network are keen to extend the freedom of expression sections across all the protected characteristics. I say that to get on public record that we are open minded and keen to listen to partners—many of whom are with us today—on that.

However, as has been mentioned in previous evidence-taking sessions, the bill should be convention-ready anyway. Arguably, there is a case for there not being a non-exhaustive list. The defence of reasonableness is a mainstay of Scots law, and it is important to listen to legal opinion on that. It is hard to fathom a situation in which behaviour that is threatening or abusive and has the intent of stirring up hatred could be viewed by the reasonable-minded person in any way, shape or form to be reasonable.

I am agreeing with Tim Hopkins on the one hand but, on the other, I am saying that protections, including on freedom of expression, are laid out in any legislation via the convention.

Shona Robison

Thank you—that is really helpful. That is all from me, convener.

The Convener

Does Colin Macfarlane have anything to add on the issue? I am picking on you—and I am sorry if you think that I am being unfair—because I was struck by the written evidence that Stonewall submitted to the committee, which seems to be pointing in quite a different direction from the one that Tim Hopkins is pointing in. Paragraph 27 of your submission says:

“We remain unconvinced as to the benefits provided to hate crime legislation by protections of freedom of expression with respect to sexual orientation ... Stonewall opposes the equivalent section in England and Wales”.

I want to give you the opportunity to put a view that is different from the one that we have heard from Tim Hopkins—if you do not want to, please do not feel compelled.

Colin Macfarlane

We were one of the organisations, along with the Equality Network and other lesbian, gay, bisexual and transgender and equalities organisations, that put in supplementary evidence on freedom of expression. We consider that replacing sections 11 and 12 with a more general freedom of expression protection would answer and, I hope, allay some of the concerns that some people have with the bill.

Again—I am sorry to repeat myself—we support what Tim Hopkins is saying; there is no difference between us.

The Convener

Thank you very much—that is really helpful to know. When we have evidence that is as strongly written as yours, and the oral evidence points in a slightly different direction, we just want to understand exactly your position. That is a very helpful clarification.

Liam Kerr (North East Scotland) (Con)

I will put my first question to Tim Hopkins of the Equality Network. I will also put it to Oonagh Brown, because she has talked about solutions to the question that I am about to ask.

The committee has heard concerns that the stirring-up offences could be used by some to label opinions as hate speech. We have also heard that, even if that does not ultimately lead to prosecution, the fear of that label or of a police investigation could ultimately lead to people self-censoring. Is there a danger of that happening? If so, what might be the solutions to that problem?

Tim Hopkins

I referred to that in part earlier, when I spoke about training for the police and fiscals.

There is also an issue of publicity. It is important that, when the legislation comes into effect, if Parliament passes the bill, there is publicity about what the offence is and what it is intended to be used for. I gave some examples of that earlier.

I think that threatening or abusive behaviour that is intended to stir up hatred is a high threshold in itself. If that is made public, with examples, I think that that would mitigate the concern that you mention.

That said, a great deal is said, especially on social media, with claims being made that virtually any contribution on any subject could be hateful or wrong. That is not going to stop; unfortunately, abuse on social media is a big problem that needs other solutions.

However, my answer would be that the solution is to provide information about what the offence is intended for and proper training of the police and fiscals.

09:30  



Liam Kerr

Oonagh Brown, is your view different or similar?

Oonagh Brown (Scottish Commission for Learning Disability)

I echo some of the earlier points. SCLD supports the offence of the stirring up of hatred and is mindful that the right to freedom of speech in article 10 of the Human Rights Act 1998 is not an absolute right, and that we have to be responsible and respect other people’s rights by not stirring up hatred, violence and discrimination.

Although we are supportive of the offence, we would welcome consideration of a number of areas, particularly explicitly including learning disability within the category of disability, in order to ensure that people with learning disabilities are protected from hate speech.

The other suggestion that we made in our initial consultation response concerned producing guidance for media outlets on what would be considered to be the stirring up of hate speech in relation to protected groups, including people with learning disabilities.

We believe that that would be critically important because we know that, in the past, the media have, to an extent, created hatred of and discrimination against disabled people. That was clearly seen in media dialogue surrounding austerity, when we saw discussion of disabled people as being dependent. More recently, the way in which disabled people have been discussed during the Covid-19 emergency has included a discriminatory discourse emerging from the media that coronavirus would not impact most people and would affect only the vulnerable. That kind of statement devalues the worth of people with learning disabilities and creates the idea that they are expendable. Given that we know that, on average, people with learning disabilities die 20 years earlier than the general population, we at SCLD feel that such dialogue is not appropriate.

Therefore, with regard to how we manage people’s expectations and understanding of what they can and cannot say, we think that guidance should be provided to media outlets about what kind of dialogue is appropriate. That is not about completely limiting what people can say; it is about the need to take into consideration how views are put across. I highlight that that approach is in line with the general comment from the Committee on the Rights of Persons with Disabilities, which says that state parties

“should undertake measures to encourage, inter alia, the media to portray persons with disabilities in a manner consistent with the purpose of the Convention and to modify harmful views of persons with disabilities, such as those that portray them unrealistically as being dangerous to themselves and others, or sufferers and dependent objects of care without autonomy who are unproductive economic and social burdens to society.”

Liam Kerr

That is helpful.

Tim Hopkins and Colin Macfarlane, I will direct my next question to you, because you have both talked about training for the police and courts, and Tim talked about publicity.

To pick up on something that was raised in a previous evidence-taking session, do you have a view on whether that training and/or publicity have been adequately factored into the financial memorandum or the Government’s thinking about implementation?

Tim Hopkins

I read the financial memorandum and, if I remember rightly, there are two sums of £50,000 in there for things such as training. I cannot remember whether either of those applies to the police. I have a feeling that the financial memorandum says that police training is being done regularly anyway, so issues would be dealt with as part of that.

Our view is that there is something to be said for improving and extending police training on equalities. I know that the police are under huge pressure and that any time spent on training is time taken away from the front line, but about four or five years ago, we were involved in a project that was funded by the Equality and Human Rights Commission, as part of which we helped to train 70 police officers, who then became experts in lesbian, gay, bisexual, transgender and intersex equality in their local areas. However, as I say, that was a number of years ago, and many of those officers have since moved on. It would be helpful to do that again.

We are in favour of more training for the police around equalities generally, part of which could focus on the legislation that we are discussing, but we recognise that there are resource limitations.

Colin Macfarlane

It might not surprise the committee to hear that I agree with Tim. Training and awareness raising are absolutely key for a wider understanding of the communities that are affected. In relation to the bill, I agree with Tim that, if resources are available, they should be used to ensure that our police are trained across the equalities characteristics.

There is an issue about education more generally being used as a tool to change hearts and minds. That is why we are supportive of the work of the LGBTI-inclusive education working group. We hope that the Government and Parliament will continue to support the implementation of that work, because learning about identity and yourself in an education setting changes hearts and minds and goes some way towards changing how people react to and treat those with different characteristics. The training aspect is key, but education is also key, by which I mean in school, college and further and higher education settings.

Liam Kerr

I see that Kevin Kane wishes to respond to the question, convener. Then I will go to John Wilkes.

Kevin Kane

We work with youth groups that work with young victims of crime through every step of the criminal justice process, so I can confidently say that we know that victims do not always get the support that they require from the police and that the majority of them do not seek support. We know that victims feel that support, particularly in relation to hate crime, is inadequate. If strengthening the suite of laws is to be effective, we need that renewed discussion on identifying and addressing the barriers to reporting, access and support. To pick up Oonagh Brown’s point, that could be made clear as part of any support, information and promotion work around the legislation in 2021.

It will not come as a surprise to the committee that I will talk up the youth work sector. We can harness a lot of power, because we are in communities and in schools. The youth work industry is a massive contributor to the crime prevention agenda. We work with two sides of the same coin—perpetrators and victims—so when it comes to education, community building and intergenerational work, our proximity to young people and all the issues that they face is what makes us strong. We are already well positioned to utilise that infrastructure to provide targeted and holistic support to all young people. I flag that point as part of my answer to the question but also in relation to the financial memorandum and what needs to be done. There is a role for youth work here.

Liam Kerr

I will press you on that, because it was an interesting answer. Do I take it that you feel that the financial memorandum does not adequately provide for the various things that need to happen?

Kevin Kane

The financial memorandum could be more explicit.

Liam Kerr

Grand.

John Wilkes

I want to underline our support for the comments that have been made. For the legislation to be effective and build on the development of the existing legislation over the past 20 years or so, it is really important that the people who make judgments about what is going on in real life—in the real world—do so with confidence.

In another life, I served on Dr Duncan Morrow’s advisory group on hate crime, which the Scottish Government commissioned back in 2015. When we heard evidence from the police, there was a sense that we place a lot of responsibility on the police—often on front-line officers—to be absolutely confident on issues of law that can be daunting. That is a really important point. I was also on Lord Bracadale’s advisory group, and that was a theme that came up there, too.

In terms of making the legislation a success—and it is important that it is a success—it is important that everybody who is involved in the identification and prosecution of offences does that with full understanding and support, and that support has to be on-going.

The Convener

Although our focus in the first few questions has been on part 2 of the bill, on the stirring up of hatred, Tim Hopkins said at the beginning of the session that part 1 of the bill, on statutory aggravation, is the most important part of the bill in practice. We will turn to that in a moment, but before we do, I want to make sure that all our witnesses have had the opportunity to say what they want to say to the committee about the stirring-up offences. I am particularly conscious of the fact that Adam Stachura from Age Scotland has not contributed to this part of the conversation. Adam, would you like to add anything before we move on?

Adam Stachura (Age Scotland)

A lot of really good points have been covered, and I do not have a huge amount to add. However, we definitely think that more needs to be said about the training that will be involved with regard to people’s expectations of the bill, particularly when it comes to part 2, and how prosecutors can act on that. As time goes on, I think that there will be greater understanding of what the provisions mean.

The issues around part 2 have been well covered by the other witnesses.

The Convener

Thank you very much. I hand over to John Finnie to take us in a slightly different direction.

John Finnie (Highlands and Islands) (Green)

Good morning. The continued use of statutory aggravations as the core method for prosecuting hate crime in Scotland has been broadly welcomed.

I would like to pick out some elements of the evidence that has been submitted to the committee, beginning with the Equality Network, whose submission makes the interesting remark that

“The aggravation model removes the incentive not to prosecute by separating the burden of proof of the two elements.”

There is more to it than that. Could you say a little about that, please?

Tim Hopkins

Yes. I think that that sentence in our submission made a comparison between the statutory aggravation model and the stand-alone offence model, such as is found in section 50A of the Criminal Law (Consolidation) (Scotland) Act 1995, which provides for the racially aggravated conduct and harassment offence. In the latter case, it is necessary to prove with corroborated evidence both the aggravation and the conduct or harassment in order to prove the offence. With the statutory aggravation, as with aggravations in common law, corroborated evidence is not required—only one source of evidence is required to prove the aggravation. The underlying offence—whether it be common assault, abusive or threatening behaviour or whatever—obviously needs corroborated evidence.

Secondly, in the case of the stand-alone offence, if there is a failure to prove that it was racially aggravated, it is not possible to convict at all, whereas with the statutory aggravation, even if there is a failure to prove the aggravating factor, it is still possible to convict for the underlying offence. Therefore, the system of statutory aggravations is more flexible than using stand-alone offences.

We completely agree that the use of statutory aggravations is the core of hate crime law. Prosecutions for aggravated offences are hundreds of times more frequent than prosecutions for the stirring-up offence. In the most recent year, nearly 1,500 sexual orientation aggravated offences were reported to fiscals in Scotland, with 40 or 50 transgender identity aggravated offences being reported in each of the past four years.

An illustration of how flexible statutory aggravations are is the fact that they cover offences such as abusive or threatening behaviour and assault right up to the most serious offences. In the 10 years since the Offences (Aggravation by Prejudice) (Scotland) Act 2009 came into effect, Scottish Government figures show that there have been seven homophobic homicides in Scotland. The aggravation is absolutely crucial in identifying that all those offences were motivated by prejudice, and in ensuring that they are recorded in that way and dealt with by the whole of the criminal justice system in an appropriate way, including sensitive handling by the police right the way through to appropriate sentencing. The recording of that enables, for example, repeat offenders to be identified.

09:45  



John Finnie

I have a question for Mr Wilkes. The Equality and Human Rights Commission is supportive of the approach of using statutory aggravators. Its submission says:

“This achieves a consistency of approach which can potentially be extended by listing new characteristics for the statutory aggravations if required in the future.”

The submission then mentions one of the potential new characteristics, which is misogyny. That is not a statutory aggravator yet, so I will not ask you to focus too much on the detail. The submission says:

“Specific deterrence of aggravated offending against women by adding the characteristic of sex has symbolic significance, but in itself may not ensure adequate or appropriate protection”.

Can you help me to understand the EHRC’s support? Is it qualified in relation—[Inaudible.]

John Wilkes

I am sorry, but I missed the very last part of what you said.

John Finnie

You support the principle of aggravations, but you express some reservations in relation to one aspect. Could you cover that?

John Wilkes

Yes. That aspect was about sex. You were talking about gender.

John Finnie

Yes.

John Wilkes

We are very supportive of the aggravations approach to hate crime for the reasons that Tim Hopkins listed, including that it is more easily understood.

The issue of sex and misogyny was debated quite a lot in Lord Bracadale’s group. There was recognition that there is clearly an issue relating to hate crime that is targeted at women. The debate was about whether having an aggravator in relation to sex would address that issue—there was recognition that men would be included in that broader definition—or whether something more specific should be done in relation to women and their experiences.

We support the inclusion of sex as an aggravation in the bill, but we recognise and welcome the proposal to set up a working group to look in more detail at the issues relating to misogyny. Our 2019 report on the Convention on the Elimination of Discrimination against Women called for further investment in research on misogyny and violence against women and girls. We will look to the outcomes of that group, which might help with clarification. Fundamentally, we support the inclusion of sex as an aggravation.

John Finnie

The Equality Network has joined BEMIS and others in calling 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.”

Would Mr Stachura like to comment on that?

Adam Stachura

Data collection is hugely important—that is a good point, and it has been made elsewhere. At times, it is difficult to get good-quality data from Police Scotland about the level of—[Inaudible.] When we get the data and information, the numbers often do not seem particularly high. However, when the committee is considering the bill in the round, it should note that the positive things that the bill might do to increase reporting of offences or incidents might give us a better understanding of what is going on across the country, and it will also give people the confidence to report incidents that happen to them, because such incidents have been more publicised.

As with everything in the public sector, there is an absolute need to have far better data collection. We should be able to do that—there is no reason why we should not—but, across the justice sector and the health service, it is often very difficult to get useful data that can help us to look for solutions to the problems that are presented.

John Finnie

Does Ms Brown wish to comment on that?

Oonagh Brown

We covered the issue in our initial consultation response. We want learning disability to be explicitly included in the list of characteristics in the bill. Although we understand that learning disability will be included under the characteristic of disability, it is important that we outline that that includes learning disability and physical impairment.

We also called for a duty on public bodies to record disaggregated disability data on hate crime. We believe that such information can be self-declared by individuals. There are several reasons why we believe that to be important. First, people with learning disabilities experience hate crime. Just last week, the SCLD was informed of a serious case of such hate crime. We know that, between 2014-15 and 2018-19, disability-aggravated crime increased by 64 per cent in Scotland.

We believe that, without separate identification, people with learning disabilities might not recognise the bill as helpful to them and would not report crimes. For example, when we met a group of people with learning disabilities at the fortune works service in Drumchapel, we were told that they had real uncertainty regarding reporting hate crime.

Such a duty should be included in line with article 31 of the United Nations Convention on the Rights of Persons with Disabilities, which is on statistics and data collection, and article 33, which is on national implementation and monitoring. Without the duty, the invisibility in published statistics will impede the evidencing and appropriate implementation of policy measures to ensure justice for that group. It will leave people with learning disabilities as an invisible population that we do not talk about.

John Finnie

That is very helpful.

I have a brief question for Mr Macfarlane. In line with existing legislation, the bill states that the court must make clear what difference an aggravation has made to the sentence that is imposed. Lord Bracadale recommended removing that requirement. Is the retention of that requirement helpful in increasing transparency in sentencing, for example? Do you have a view on that?

Colin Macfarlane

It is important that the offence is named as such, and aggravations help in giving a clear distinction between potential crimes. Seeing the offence named as such gives a sense of closure, in some respects, to victims of hate crime. That is an important aspect of the justice system in allowing people who have been victims of hate crime to get justice.

John Finnie

Does Mr Kane want to comment?

Kevin Kane

In the absence of Kate Wallace from Victim Support Scotland, I point out that I was involved with Victim Support Scotland in the independent review on hate crime, so I will bring that experience to bear alongside my work with the voluntary sector, local authorities and youth groups that work with victims and survivors of all crime. I am aware that sheriffs have highlighted the complexity around the recording and explaining of decisions that are made in court.

The most important thing is that young people tell us that they feel let down. If we take hate crime seriously, by ensuring that the aggravating part of the behaviour is highlighted as a distinct and key feature of the offence, we will not let them down. They feel that it is necessary that the judge should include an explanation of that in his or her deliberations on sentencing. That is important for validating that particular crimes have taken place, and it is also extremely important in relation to recovery.

We need to think about that as part of the wider package of rehabilitation and support, and about how the bill can contribute positively to society. That might seem like a small thing, but it is very important for a lot of people. There is possibly work to be done with statutory bodies in relation to training.

Colin Macfarlane

To back up what Kevin Kane said, I hope that that would lead to better reporting. Obviously, Stonewall supports LGBT people, and we know that there are low levels of confidence in reporting in the system, so the aggravator is critical. If it were to be removed, we might see less confidence in the system, with LGBT people being less confident in reporting.

To completely back up what Kevin Kane has just said, and what Tim Hopkins said earlier, I consider that it is really important for victims that that aspect of the crime is named, and it will also give people confidence to report when they have been the victim of a hate crime.

John Finnie

Many thanks.

The Convener

I move to Fulton MacGregor, who has questions about hate crime characteristics.

Fulton MacGregor (Coatbridge and Chryston) (SNP)

As we know, the bill seeks to add age to existing hate crime characteristics. Does that offer the right balance? It has been suggested to us that it might be more helpful if the exploitation of vulnerability, including what is sometimes referred to as elder abuse, was highlighted through a statutory aggravation linked to the perceived vulnerability of the victim. Is that the right way to proceed? Do we need both?

John Wilkes

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. We agree with Police Scotland’s response in relation to the perceived vulnerability of older people in that respect. We note in our written evidence that the Scottish Sentencing Council is developing guidelines that will set out factors that might make a particular offence under consideration more serious.

Adam Stachura

As you would imagine, in the first instance, we are supportive of age being included as a statutory aggravation. That is for a number of reasons, which slightly go against what has just been said.

There are three important parts to that. First, as has been mentioned, age is missing as a protected characteristic, and this exercise tidies up hate crime legislation. Secondly, the provision will give older people more confidence in reporting crimes. As others have said in relation to different areas, there is either underreporting or a lack of confidence in reporting, and it is a big challenge for people to report.

Thirdly, it will give prosecutors more tools to progress cases. As has been mentioned, corroboration is not necessary for a statutory aggravation. It will be a helpful element in pursuing things, and it will mean that things are taken more seriously. I have said before that it could be quite an important tool in preventing offences in the first place.

It is also important to mention that the provision is not just about older people, because there is no age threshold—there is no upper or lower age limit; it applies to all ages. If a crime has been committed as a result of hostility towards someone’s age—many things could fall under that—the provision would add more weight to either the sentencing or the prevention part.

Separately, we are also supportive of including a vulnerability element. However, after discussions with the Cabinet Secretary for Justice, we are conscious that the Scottish Government considered the issue but found that even the threshold for vulnerability would be incredibly difficult to gauge. It was an interesting conversation, because it highlighted that vulnerability could be used in almost any circumstance. I am not suggesting that that element could not be included, but I think that the issue warrants additional exploration.

I have discussed previously at a committee the issue of elder abuse. We are supportive of more measures on that, whether that is a statutory aggravation or a stand-alone crime. Elder abuse is hugely underreported, and there is nowhere near enough support for people who are subjected to it. In fact, people tend to be removed from a bad situation rather than being protected in the first place, which is different from lots of other elements. Far more can be done in that area. It might not be possible to do something at this juncture, but it is definitely worthy of further work and consideration.

On vulnerability, I took at face value the justice secretary’s view that that could be applied to any circumstance and could make the legislation even more difficult to do.

10:00  



Fulton MacGregor

Thank you—that is helpful.

Tim Hopkins

On the issue of the age characteristic in particular, I defer to Adam Stachura’s and Kevin Kane’s expertise. It is widely agreed that crimes that are motivated by vulnerability are different from crimes that are motivated by prejudice. I support further exploration of whether there should be a general aggravation that relates to vulnerability, but that is outwith the scope of the bill, I think.

Fulton MacGregor

The Victim Support Scotland submission says that there should be

“a zero tolerance approach to hate crime”.

I was going to ask Kate Wallace to expand on that but, in her absence, I ask Oonagh Brown to comment on the concept generally. Do you agree with it, given your previous answer to John Finnie about the group that you work with and represent?

Oonagh Brown

I agree with that approach. For us, it is important that such behaviour against people with learning disabilities is criminalised. People with learning disabilities tell us that, at the moment, when hate crimes are committed against them, they are referred to adult and support protection processes. The focus is often on the people with learning disabilities protecting themselves, and the dialogue becomes, “You have not protected yourself.” That often leaves people with learning disabilities feeling that they are to blame.

Instead, we need to tackle the societal issues that cause hate crimes and enable them to happen, and we need to address the actions of the perpetrator. In addition, we need to see the bill in the wider context of societal and systemic cultural change, which involves looking at how we value people with learning disabilities. In regard to the Covid response, I mentioned that we hear a lot of dialogue that undervalues people with learning disabilities. We need to create a society in which people with learning disabilities are supported to thrive and live the lives that they choose.

Fulton MacGregor

Colin Macfarlane, the Stonewall Scotland submission suggests that it considers that the liability for criminal offences should be even lower than that proposed in the bill. Will you clarify whether that is the case, and elaborate on that view for the committee so that it is on the record?

Colin Macfarlane

I think that that would be our view. Our submission states that, and that is pretty much our position. I do not have much to add, I am afraid.

Fulton MacGregor

That is fair enough—thank you.

I will ask a final question. I see from the chat box that John Wilkes wants to come back in, so this might give him the opportunity to do so. Do the witnesses have any concerns about the way in which the various hate crime characteristics are defined in the bill? My colleague Annabelle Ewing will come in later to deal with the sex characteristic, so perhaps that could be left for now. Are there any concerns in relation to any of the other characteristics? I will go to Kevin Kane first, and then back to John Wilkes.

Kevin Kane

I do not have anything further to add on that point.

John Wilkes

I wanted to come back to the age aggravation. I totally understand the issues, and sympathise with protecting people who are targeted due to their vulnerability. That is really important.

The other issue about the age aggravation is that one of the important things about hate crime legislation is that there should be absolute public understanding of its import. Part of our difficulty with age is that we are not sure that the public will understand the issue around age. People might not equate it to hate crime against other groups, which they might understand better.

We support the definitions and proposals for the other characteristics that are being included in the bill. As the discussion on sex is a separate question, I will leave that aside for now.

There are other groups that might need to be considered for inclusion. In particular, the issue of asylum seekers and refugees has cropped up again and again, including in the Morrow report on hate crime and the Bracadale discussions. The issue is whether the shoring up of the definitions will cover such groups, given that there is evidence that they are being targeted. We consider that the definition of race in the bill would definitively include colour, nationality and ethnic origins and would therefore draw in groups such as Scottish Gypsy Travellers, but case law relating to the Equality Act 2010 is less supportive of an assumption that the characteristic of race would cover refugees and asylum seekers. That is something that the committee might want to consider.

Tim Hopkins

We strongly support the adjustments that the bill makes to definitions of some of the protected characteristics, particularly those that are LGBTI-related. As Oonagh Brown said, it is important that people can see themselves in the bill. We know from our research that, although two thirds of LGB people and 80 per cent of trans people have experienced hate crime and 90 per cent of them have experienced it more than once, 71 per cent have never reported those crimes to the police. Encouraging people to report hate crimes is crucial. One way of doing that is to ensure that people can see that the legislation applies to them.

In particular, the definition of transgender identity has different wording from the definition that was used 10 years ago. It does not change the scope of the aggravation. Similarly, the aggravation relating to variations in sex characteristics does not change what the law covers, because intersexuality was covered in the Offences (Aggravation by Prejudice) (Scotland) Act 2009. However, the language used in the definitions in the bill makes those categories much clearer and is much more acceptable to trans people and, from what people have told us, to people with variations in sex characteristics. That is why we are supportive of the changes to the language that is used.

The Convener

Annabelle Ewing wants to pick up on some of those questions.

Annabelle Ewing (Cowdenbeath) (SNP)

I want to pick up on the non-inclusion of, at this stage, the characteristic of sex. I think that John Wilkes indicated in a reply to John Finnie that sex as a characteristic was included, or that he supported its inclusion, in the bill. Could you clarify your comments? The bill does not include that characteristic; it includes a provision allowing for, in due course, the adoption of secondary legislation to include sex.

John Wilkes

I am sorry if I was not clear earlier. We understand that sex is included in the sense that it could be activated as an aggravator at a later date. We support that—or, indeed, the inclusion of gender, depending on how the secondary legislation is framed.

Annabelle Ewing

Thank you for that answer. Sex is the protected characteristic under the Equality Act 2010, so I presume that that would be the appropriate term.

I turn to Adam Stachura, who made the case for the inclusion of the characteristic of age, as is currently proposed. In that regard, he seemed to be missing part of the puzzle, because sex is a recognised protected characteristic but it is not currently included. I wonder whether Adam has any comments on that.

Adam Stachura

I do not have anything particularly constructive to add on that. Our main focus has been on part 1 and on the introduction of age as a result of the discussions around the Bracadale report and since then. The issue has been well debated—[Inaudible.]—are missing or not strong enough. However, to be slightly long winded, I am afraid that I am perhaps not as well informed about that question as I could or should be.

Annabelle Ewing

That is an honest and succinct answer. Adam Stachura referred to the importance of people understanding the bill as the issue, and, in the written evidence, we certainly read that the non-inclusion of the characteristic of sex might send a bit of a confusing signal, albeit that we understand that there will be the working group on misogynistic harassment. Does Kevin Kane have any thoughts on the subject?

Kevin Kane

I will try to follow in Adam Stachura’s succinct footsteps. My comment is about the working group on misogynistic harassment. Given the variation in views, the strength of feeling involved and the complexity of the issues, the youth work sector is keen to make representations to that group. The fact that the bill has an enabling power to revisit the issue of a statutory aggravator is positive and is a good place to be at the moment.

It is right and proper that we discuss the issue in relation to domestic abuse and other areas affecting the female sex. That has been raised by Engender, Scottish Women’s Aid, Rape Crisis Scotland and a few other organisations. We certainly would not want to rush in with an aggravator that is designed to protect women but which has an unintended consequence that undermines the female sex. We know that that is a concern. The provision would apply to men and women equally, and there is real potential for it to be misused and to create misunderstanding. We know that very few men suffer abuse on account of their sex. We are nailing our colours firmly to the misogynistic harassment working group mast.

Annabelle Ewing

I have one last brief question, which is for Tim Hopkins. He mentioned in passing the support that there is for the current approach in the bill in relation to intersex people and variations in sexual characteristics. We have a panel of witnesses later this morning who will discuss that in a bit more detail. He will recognise that the support for that approach is not by any means universal. For example, dsdfamilies, which will be giving evidence later, takes an entirely different view.

Tim Hopkins

I have a couple of points to make on that. First, I know that in some of the written evidence that the committee received, including in the evidence from dsdfamilies, it was suggested that intersexuality was somehow put into the Offences (Aggravation by Prejudice) (Scotland) Act 2009 by mistake. We were involved in the development of that legislation and in the discussions in the Parliament as the bill went through, and that was certainly not the case. It was put in deliberately because, back in 2008 and 2009, intersex people in Scotland were asking to be covered. However, it was put in the wrong place. It should never have been put under transgender identity, because intersexuality is a completely different characteristic from transgender identity. Therefore, we think that the right thing is being done in the Hate Crime and Public Order (Scotland) Bill by separating it out.

On whether people with variations in sex characteristics should be covered by hate crime law, I do not have lived experience of that, although the committee will hear from two people who have that experience later this morning. However, I can say that we have consulted organisations that are run by people with variations in sex characteristics and we have surveyed people with variations in sex characteristics in Scotland, and there seems to be wide support for including the provision in the bill. At least a significant minority of people in our surveys on the subject told us that they had experienced hate crime because of their variation in sex characteristics—the figures varied from 29 per cent in one survey to 50 per cent in the other.

Those numbers are small, so the exact figures are not statistically significant. However, they point to at least a significant minority of people with VSCs who are experiencing hate crime because of those characteristics. We argue that it should be covered because of that and because it has been covered since 2009. We should tread carefully before taking away protections that already exist.

10:15  



Annabelle Ewing

That issue will be explored further. Having read the submissions, I see that dsdfamilies has concerns about the consultations, or lack thereof, and its participation not being sought in that process. We can put those questions to the organisation later.

The Convener

We will hear from dsdfamilies and others later. Liam Kerr will ask a supplementary, and I will then move to James Kelly.

Liam Kerr

I am enjoying this evidence session immensely. I thought that Kevin Kane raised some interesting points in his response to Annabelle Ewing’s questions about the working group. I took from that that you are, in principle, in favour of the working group, you can see how it could work and you would want to provide input to it. I understand that. However, I presume that, because it is a working group, it will be constituted of particular bodies and not everybody can be part of it. As the bill proposes a working group as a mechanism—which, I presume, will take evidence—how would you respond if, for example, the group did not come to you for evidence? If that is a possibility, does that not suggest that it would be better for MSPs—perhaps through the committee’s consultation—to lead that process, rather than to do so through a working group model?

Kevin Kane

People on the working group should be those who are invited, such as the police, legal or bill-writing teams and those with the right experience. However, in my view, it would be preferable to include people who have lived experience and those who are advocates for particular groups and can talk to the issues. They could perhaps work alongside MSPs and elected representatives to bring that experience to bear.

Given that we could not get agreement on whether that particular aggravation should be in the bill, I put the question back to Liam Kerr: can the issue be dealt with appropriately by parliamentarians? There is also a bigger question about what, generally speaking, is dealt with by the Parliament and what can be achieved more meaningfully via a working group that presents its findings to the Parliament and works with it to get the desired outcome.

To be clear, I am not convinced that we should hand that hot topic over to parliamentarians.

The Convener

I will resist the temptation to get involved in what are and are not appropriate questions for parliamentarians. I will bring in James Kelly, who is an experienced parliamentarian, to ask the final set of questions for this panel.

James Kelly (Glasgow) (Lab)

I will concentrate on the issue of support for victims of hate crime. First, I will bring in Oonagh Brown, and then I will ask Kevin Kane a question. However, I am happy to take contributions from anyone else.

Does Oonagh Brown have any views on what more needs to be done to support victims of hate crime? I am particularly interested in your views on the need for additional reporting or legislation.

Oonagh Brown

As I mentioned earlier, the key issues for people with learning disabilities with regards to exploitative crime and hate crime are about being taken seriously and the onus of their having experienced those crimes not being placed on them.

We must look at how we ensure that we do not remove human rights from people with learning disabilities when they are harmed through unnecessary adult support, protection and guardianship. Instead, in wider consultation, we need to ask people with learning disabilities who have experienced hate crime about the support that they need. In a discussion with the Scottish Learning Disabilities Observatory on research that it had recently conducted about hate crime, I heard a story in which a person who might have experienced hate crime was interviewed publicly about that. People who live in residential settings should be offered the opportunity to report crimes in private, especially where there might be people who are aware of certain things.

To go back to my earlier point, wider than that, we need to ensure that people with learning disabilities are considered valuable members of society, whose evidence as witnesses is taken seriously and valued. In addition, we want the consistent use of the appropriate adult system, where appropriate, to be looked at; we also want advocacy to be examined.

To again go back to my earlier point, we need to make sure that, through adequate data collection, people with learning disabilities do not remain invisible in those discussions. Finally, it would be immensely helpful to provide funding for police awareness and training on learning and intellectual disabilities.

James Kelly

Thank you; that was comprehensive. Your points on talking not just to disability groups but to others about what more needs to be done, and on data collection, are particularly relevant.

The final point was about training and raising awareness among the police. I go back to Kevin Kane. In response to Liam Kerr’s question, you said that more needed to be done to support victims of hate crime and the example that you gave related to the police. What measures could be introduced to the bill that would help raise awareness in relation to supporting victims of hate crime and how the police deal with those crimes and with the victims?

Kevin Kane

I will leave the point about the police and how they deal with that sitting for a minute. I have scribbled a couple of notes, because I had a minute or two to think about the question.

I will pick up on the research point first. We all agree that understanding lived experiences of hate crime would benefit everyone. Because we support thousands of youth workers, it is important for us to have an in-depth understanding of the issues, so that, when we are working alongside young people and statutory bodies, we can drive up standards, affect culture positively and talk about the impact on communities. That understanding also enables policy people like me to demand the right changes.

Earlier, a second point was made about underreporting, which I thought was important. The police run third-party reporting services. The provision has been patchy and there has been talk of renewing the services or starting them afresh. I am not aware of any update on what is happening with such reporting, but, having worked for a third-party reporting service, I know that there were issues about people understanding that the service was available. People do not need to report the crime; they can come to the service, get the support that they deserve and have the option of that organisation reporting the crime directly to the police. I am getting feedback that that is not happening.

I mentioned restorative justice in our written submission. We are interested in discussing how that fits in with hate crime and across the Government’s other objectives. We appreciate that that would need to be done carefully with victims, so that it does not lead to further victimisation.

A number of years ago, pilots on restorative justice were undertaken. Local authorities’ pilots showed mixed results, and there was limited take-up in schools. I wonder whether the bill is an opportunity to kick-start some of those activities again. Because the youth work sector is in the unique position in schools and communities of dealing with both perpetrators and victims of crime, we could benefit the offender and the victim and contribute to that community cohesion that we talk about so much. I would like the bigger picture to be discussed more.

Colin Macfarlane

I primarily want to back up something that Kevin Kane said about third-party reporting. Those services are underresourced and patchy but, from an LGBT perspective, they are crucial. There are LGBT people who will not report their experience of hate crime because they fear that doing so might out them. Many LGBT people are not out in their families, or out in their communities, particularly in rural areas, where the communities are smaller. Third-party reporting provides a way by which LGBT victims of hate crime can report without potentially outing themselves to their wider community. I do not think that that is acutely understood. From our perspective, it is crucial that the third-party reporting system is properly resourced.

James Kelly

Thanks. That is an important point to make.

John Wilkes

I want to add the Equality and Human Rights Commission’s huge support on that point—it is so important. We are talking about the need to get the bill absolutely right and to get in place the right checks and balances so that we have a platform of hate crime legislation whereby victims can get justice and perpetrators will understand that hate crime is not acceptable in Scottish society. In all the groups that I have ever worked in that have dealt with the issue, what always comes through is the absolute devastation that those crimes can cause to individuals who are targeted because of their identity and the corrosive nature of such crimes on community cohesion. Alongside getting the law right, we absolutely must ensure that victims of that insidious issue are fully supported.

Tim Hopkins

I totally support those points, to which I will add two things. First, one way to encourage people to feel that they can report hate crime is through public awareness campaigns. We really like the fact that the Scottish Government does an annual public awareness campaign on hate crime. When people see an advert at a bus stop on Princes Street that says that there is no place for hate crime in Scotland and, in particular, they see targeted adverts on race hate crime, transphobic hate crime and homophobic hate crime, for example, they really understand the message and feel that they can report such crime.

Secondly, it is important that people have a good experience when they report a crime. The work that we have done certainly indicates that people’s experiences of the police are getting better. In fact, in our surveys, the majority of people now say that they have had a good experience of the police, although a minority do not.

People find that the system is less satisfactory at the prosecution and court stages. In fact, a significant majority say that they were dissatisfied with their interaction with the fiscal and with the court process. A lot of that seems to be to do with a lack of communication and information. I know that that issue goes wider than hate crime, because people say that about all sorts of crime, but there is an issue about ensuring that the fiscal’s office communicates well with complainers and that the courts communicate what the process is and what is going on better than they currently do.

James Kelly

I thank the panel for a comprehensive set of views on what needs to be done to give more support to victims.

The Convener

I echo and endorse James Kelly’s comment. The committee is very grateful to all the witnesses for their evidence and, in particular, for getting us to think a little beyond the bill. For understandable reasons, the committee has been focused on what is in the bill for the past few weeks. Getting us to think about what the Government, society and the Parliament need to do to tackle hate beyond that has been really helpful. I thank all the witnesses very much.

I will suspend the meeting for around five minutes to enable broadcasting to ensure that all the witnesses on our next panel are with us.

10:29 Meeting suspended.  



10:36 On resuming—  



The Convener

Welcome back, everyone, and welcome to our second panel: Danny Boyle from BEMIS, Dr Jennifer Galbraith from the Coalition for Racial Equality and Rights, and Amy Allard-Dunbar from Intercultural Youth Scotland. Thank you for joining us. This is not a formally declarable interest, but I remind members of the committee that during this session of Parliament I have been associated with the cross-party group on racial equality chaired by Fulton MacGregor. Everyone should bear that appropriately in mind.

Rona Mackay

Good morning, panel. I want to ask about the different approach to race hate crime in the bill, and everything that surrounds that. We know that two thirds of all hate crime is race related. Do you believe that race hate crime should be treated differently? Should we be taking a more robust approach to it, given its prevalence, and does that create a hierarchy of characteristics?

In your answers, please also address a couple of points that were raised by the previous panel. Kevin Kane said that removing the term “insulting” from the bill would dilute its meaning, educationally and otherwise, because we know that insulting behaviour does not require there to be intent to stir up hatred. Do you agree that removing it might risk diluting the bill? The other point was raised by John Wilkes from the EHRC, who said that race characteristics would not include refugees or asylum seekers. I would appreciate it if you would address that point as well.

Danny Boyle (BEMIS)

Thank you for that comprehensive question. Good morning to the committee and thank you for having us. I will make the case for why race has to be treated in a very specific function. That does not reflect a hierarchy but the reality of the prevalence of contemporary and historical racial hatred. I will place that in the context of why the definition of racial discrimination is what it is and also respond to the point about the term “insulting” and race and John Wilkes’s point about asylum seekers and refugees.

First, the committee and many of the witnesses thus far have already identified that racially aggravated hate crime dominates, far and away, in the whole issue of hate crime in Scotland. It is a pervasive issue and every year since devolution it has been reflected as a significant issue.

When we are talking about race and racism, it is important to highlight why that is so important. In recent times, the issue of race and institutional racial discrimination has, globally, been put much more in the public spotlight. I will set out the context for committee members, members of the general public who are watching the meeting, police officers and anyone who is taking an interest in this piece of legislation.

First, where does the definition of

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

come from? It comes from the desolation of the second world war, the development of the UN monitoring system and the creation of the first international treaty—the International Convention on the Elimination of All Forms of Racial Discrimination—to deal with racial discrimination. That treaty came off the back of a moment of international clarity following the Sharpeville massacre in apartheid South Africa in 1960. Within a decade, the international community had come to an understanding and a recognition that race and racism was such a prevalent and significant issue that we needed to take significant action on it. Race has particular importance not only globally but in Scotland specifically, which is reflected in the significant number of racial hate crimes that occur here.

Rona Mackay referred to the word “insulting” in relation to the stand-alone offence of stirring up racial hatred. That term is pertinent because we are linking the international system to our domestic challenges. We have incorporated a broad definition from the international system into our domestic legal regime because we know that the issue of racism and race is ubiquitous around the globe. However, each jurisdiction has to have the ability to respond to the variations in racism that occur within it at any given time, which will continually evolve.

The Public Order Act 1986 contains an offence of stirring up of racial hatred because, at that time, there was in the UK a significant increase in the manifestation of far-right groups targeting people based on the colour of their skin, their ethnicity, their nationality and so on. The threshold of “insulting” is in the bill because we hear warning bells from history over a significant period of time that tell us that insulting behaviour can escalate into significant human rights violations.

Perhaps later in the session we will come on to discuss the issue of data gaps and why that is so incredibly important, but I will not go there just now.

With regard to John Wilkes’s comments about refugees and asylum seekers, our position is that they would be covered by the aggravation aspect within a stand-alone offence or the stirring-up charge on the basis of their

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

We would take a slightly different view, but we would seek clarity from the EHRC on why it feels that way and whether there is a vulnerability in the law, given that refugees and asylum seekers are currently targeted consistently.

I will leave it there for the time being, but it is important to outline the historical context for the UK and for Scotland, and I hope that we can elaborate on that as we go through the session.

Rona Mackay

Thank you—that is useful. I turn to Jennifer Galbraith.

Dr Jennifer Galbraith (Coalition for Racial Equality and Rights)

Regarding racism, I will flip the question. Essentially, we are saying that race should be treated differently—it should not be treated in the way that it has been treated for the past several decades. The cabinet secretary said recently at the cross-party group on racial equality that we cannot treat an imbalanced situation as balanced. We have already heard that the statistics on hate crime with regard to race are significantly higher than for other characteristics and that they make up the majority of charges and convictions over the past several years.

Regarding the term “insulting”, the Scottish Government communicated in its equality impact assessment that the removal of the term could lead to people thinking that it was permissible to insult people on the basis of their race. We, too, have significant concerns about that—we agree that its removal would dilute those protections, even outside the legal context. In reality, with regard to people’s everyday lived experience, it could have a potential harmful effect on black and minority ethnic communities in Scotland.

With regard to the point about refugees and asylum seekers, it is hard to imagine a circumstance in which someone is going to engage in insulting, threatening or abusive behaviour towards someone while knowing their immigration status. Although immigration status is not specifically mentioned in the bill, it would be hard for someone to know someone’s immigration status before they committed an offence, so we believe that such behaviour would be adequately covered by the current provisions.

Rona Mackay

That is helpful—thank you. I turn to Amy Allard-Dunbar.

10:45  



Amy Allard-Dunbar (Intercultural Youth Scotland)

I do not know whether the committee can hear my audio okay. I can switch off my video if you cannot hear me—please let me know.

Rona Mackay

It is fine.

Amy Allard-Dunbar

That is fabulous. Thank you for having me—it is nice to be here and to see people I have worked with, such as Danny Boyle from BEMIS.

I will address the questions that you posed. First, race definitely needs to be dealt with separately, to echo what others have said, primarily because of the historical and institutional nature of racism. When race is hidden among other equality groups—[Inaudible.]—it tends to be the protected characteristic that is left behind and ignored. Progress has been made on lots of protected characteristics and groups over the years, but we cannot seem to take a lot of steps with race and race relations, because it is difficult to tackle and is so institutional.

There are problems with the current structures under which race is dealt with. A main issue relates to adopting for the consolidating bill a framework of intersectionality, which allows multiple identities to be considered in one instance—so that, for example, the experience of a black transgender man is understood as having two levels of discrimination that involve gender and race. Such a framework is difficult for reporting bodies and other people to take into account. It is an idealistic way to deal with hate crime, but we do not see the potential for it to be taken up correctly and for its operation to be understood.

For race to be understood properly, the approach needs to be separate. As things stand, institutions do not have a good understanding of racism. It is so institutional that there is so much unlearning to do. It would not be able to be tackled correctly if it was with the other protected characteristics.

On the word “insulting” in relation to race, I agree with everyone else that a big problem is microaggressions and the level of understanding of non-overt racism. 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.

I do not know whether many members have heard of the pyramid of white supremacy. The bottom level involves covert acts of racism; at the top, the pyramid goes all the way up to genocide. When insults are continually allowed at the bottom level, the discrimination and violence can escalate to the point at which people can be vilified and at which violence is accepted. As I said, the pyramid goes all the way up to genocide. There is not a point at which action should start—everything must be included.

As for including immigration status, we see that people understand race as a clear thing, as it is a protected characteristic. It would be understood if race was dealt with differently, and we think that it adequately covers immigration status in a broad and general sense.

I hope that that covered everything. I am sorry about my video and audio issues.

Rona Mackay

That is fine. We heard the second part of your response a bit better when you were on audio only.

Can more be done on race? Are we being robust enough? I know that we will flesh this out in further questions from my colleagues, but what do you think about it?

Amy Allard-Dunbar

Race has definitely not been dealt with robustly enough; otherwise there would have been significant improvements that were easy to measure. It is quite disheartening that so many other groups with protected characteristics have made significant progress, over the years, and it seems that race just does not make any significant improvement.

I know that it seems like a very small thing, but, for example, a Christmas advert showing a black family went out yesterday, and it received so many complaints and insults, and so much hatred and racism in comments on social media. The tiniest things, such as a Christmas advert that features a black family, receive so much backlash. Clearly, if something so tiny is such a problem for the Scottish population, race is not talked about enough or understood correctly.

I think that the main problem is that people are afraid of getting it wrong. I know that it is really difficult to talk about and to tackle if you are not a person of colour—if you are not black—but that really needs to be done now, because the people who are suffering most are young people of colour, in particular, and their communities in general. It is really difficult to advocate for yourself and do all that work by yourself. We really need people in positions of power, like yourselves, to be able to elevate the discussion, provide equitable support and start making lots of real headway when it comes to race, because it is just not getting there.

Rona Mackay

Okay. Thank you, Amy; you made a very strong point.

I think that Danny Boyle wants to come in. I am not sure whether Liam McArthur wants to come in.

The Convener

Rona, if you will bring in the other two witnesses, I will bring in the other members.

Rona Mackay

Sure. Danny, do you want to come back in?

Danny Boyle

Thank you very much. I will be as brief as I can.

Amy Allard-Dunbar has raised a number of critical points. One of the big challenges, not just for the committee but for Parliament and society more broadly, is to find where the responses to the challenges that Amy has identified are most appropriately situated.

Amy raised issues about microaggressions and the experience of being a young person of colour or of an ethnic nationality or origin. In Scotland, the reality is that those microaggressions are very unlikely to meet a criminal threshold—either for a stand-alone offence or, certainly, for an offence of stirring up racial hatred. That is where the question lies, to us as a society and to the committee in whatever deliberations you progress: how do we challenge the microaggressions, while also using the—[Inaudible.]

Rona Mackay

I think that Danny may have frozen.

The Convener

He has just dropped off the connection, so we will try to reconnect with him.

Jennifer Galbraith wants to come back in on this, and then we will move on, if that is all right.

Rona Mackay

Sure.

Dr Galbraith

I want to add a point of clarification on refugees and asylum seekers. If there was any doubt on that, it would be worth doing a review of evidence of existing cases, to see if there was indeed a gap. Having said that we believe it would be covered, we would need a review as well, just to make sure.

Rona Mackay

Thank you.

Liam McArthur

My question is probably directed most at Danny Boyle so, if he has dropped off the call, the point may be moot. I will ask it of Jennifer Galbraith and Amy Allard-Dunbar as well.

Danny Boyle made the point that there can be an escalation in terms of insults, abuse and more serious behaviours, and that, if the issues are not addressed early enough, the risk of escalation only increases. I think that we all accept that. I also accept the point about the differing nature of hate crime in relation to different protected characteristics.

My concern, which we have also heard from other witnesses, is that, if we set the criminal threshold too low, we risk capturing things that we should not criminalise but address through other means, whether that is education or other interventions. Perhaps we could start with Amy and Jennifer. It would be unfair to ask Danny Boyle to respond, if he has not heard the question.

Amy Allard-Dunbar

I am happy to start. That segues nicely on to what I wanted to ensure that we covered next, which is alternatives to the current systems. Although it seems a very idealistic notion, it would be great to defund and restructure the current systems in a way in which all protected characteristics in society and all groups that have faced significant oppression would adequately be supported by the systems in place. Our organisation has produced a number of reports—they are available online—that look at the relationship between young people, the current justice system and the police and the level of distrust. We find that the ability to understand and have trust in those systems is not there at all. We agree that moving to alternatives would move away from the need to criminalise everything when it comes to this bill.

If we move to alternatives such as restorative justice and a community support network that is run by people with lived experience of hate crimes, the benefit would be that, as well as not criminalising everything, we would pick up on everything, rather than ignoring the microaggressions, for example. We could work on it through education, and we have found that peer education works really well for incidents of racism because it enables people to understand and to put themselves in the victim’s shoes. We think that those means would deal with a lot of the issues that have been brought up with regard to that.

I hope that that answers your question.

Liam McArthur

That was helpful. Does Jennifer Galbraith want to say anything?

Dr Galbraith

Regarding the lowering of the thresholds, I can only speak about race and not the other characteristics, but insulting has in essence been part of the legislation for decades. If there was an issue with it, I am sure that we would have found out by now. With regard to the other characteristics, I meant to add earlier that, if other groups want the protections to be extended and there is evidence that they are needed, we would have no objection to that.

Liam McArthur

I see that Danny Boyle is back with us. My question was in response to something that you said earlier, Danny. Amy Allard-Dunbar picked up the point about the risk of escalation of the microaggressions that you talked about and where those can potentially lead if they are not addressed. My question was whether the criminal justice setting needs to engage with that or whether there should be other interventions that we hope would reduce the risk that you talked about, perhaps through education or, as Amy said, restorative justice options.

Danny Boyle

I am happy to respond to that. I do not know when I got cut off before so I will be brief. I am competing with my 18-month-old, who is doing a TinyTalk signing class at the moment, so I apologise for that.

The point about microaggressions is that we cannot completely ignore the issue. I clarify that I was not saying what Liam McArthur suggests. However, for the purposes of the committee and the bill, it sits separately from considering what our interventions need to be. As Liam McArthur summarised nicely, Amy Allard-Dunbar picked up on some of the non-traditional interventions that require to be taken forward.

I highlight two parallel issues, which are currently under review by the international United Nations Committee on the Elimination of Racial Discrimination and pertain specifically and directly to Scotland. There is a point about education and a point about racially aggravated hate crime data disaggregation. We need those two things to happen concurrently in order to have an understanding of where non-judicial interventions need to be prioritised and taking place.

On the curriculum, as the committee has identified, the acceptability of individuals’ behaviour with regard to microaggressions derives to a degree from a perception that is based on the experiences of communities—historically, past and present, in other jurisdictions as well as here in Scotland and the rest of the UK—of British colonialism, imperialism, the slave trade and other grave human rights violations. Those building blocks have enabled people over a sustained period of time to view people of colour or of different nationality or ethnic or national origin as somehow worthy of disdain based on those characteristics.

The on-going point in the Scottish education system is to unpick the legacy of colonialism in our devolved areas of governance and in education in order to understand the impact of that global vision on the different communities that exist in Scotland and the microaggressions—or other prejudice or inequalities—that might flow from it, which come from that hierarchy of understanding of different communities.

A full disaggregation of data on the nature of racist hate crime has to happen alongside that process. We need to know which people—black, white, Asian and other—are the targets of racially aggravated hate crime in Scotland in order to inform those non-judicial interventions, and a lot has to happen around that issue.

11:00  



Liam McArthur

I know that others want to come in, but I will leave them to do so at a later stage.

The Convener

The other witnesses want to come in, but Shona Robison can invite Jennifer Galbraith and Amy Allard-Dunbar to say what they want in addition to a response to her questions.

Shona Robison

I want to pick up on the provision in the bill for a general defence of reasonable behaviour along with protection for freedom of expression in relation to specific issues. We have received a fair amount of evidence that argues that those provisions need to be strengthened. What are the witnesses’ views on that point?

Dr Galbraith

With regard to freedom of expression, our view is that there will never be a situation wherein abusive or threatening language that is based on someone’s race is appropriate. I cannot address the other characteristics—I know that the bill largely discusses religion and sexual orientation.

What was the first part of your question?

Shona Robison

It was about the general defence of reasonable behaviour and your views on whether the provisions need to be strengthened.

Dr Galbraith

I am looking into that question at the moment, so I would be happy to send something to the committee afterwards if that would be useful.

If I am allowed, I would like to jump in on the point that I wanted to add earlier about other interventions. It is a two-way process: we need interventions to stop low-level racism—if we want to call it that—and also robust legislation to deal with the actual hate crime in order to communicate to society that that behaviour is not tolerable.

Amy Allard-Dunbar

With regard to the reasonable behaviour provision, I do not have much to add. Intercultural Youth Scotland was brought late into this process, so I did not have time to adequately prepare to give you our perspective on the issue.

On your other point, I agree with what Jennifer Galbraith has said on ensuring that every level is adequately covered in the bill. Nothing should be excused at this point.

Danny Boyle

I will make two brief points. We are not aware of the general defence of reasonable behaviour having been a problem in past years in relation to the prosecution of offences involving the stirring up of racial hatred.

However, I will make a general point about ECHR compliance. Although we can see no problems coming down the line as regards the bill’s provisions on stirring up racial hatred, there will have to be consensus on the other characteristics. Those will have to be watertight, because there is such significant interest in the legislation from so many different areas. We would not want to see the beneficial and positive aspects of consolidating hate crime law, which will make it much easier for people to access remedies, to be undermined by an ECHR compliance case that would put the bill’s whole approach in jeopardy. We therefore appeal for consensus in relation to the other stirring-up offences in the future.

The Convener

Liam Kerr will wrap up our questioning on that aspect of the bill, after which we will move to questions from John Finnie.

Liam Kerr

Several of our witnesses, including those on the earlier panel, have made points about training, especially for the police and for court staff. We have also talked about restorative justice and wider public education. Do any of you have a view on whether the bill’s financial memorandum or, more generally, the resources behind it make adequate provision for what needs to be done to make it work? I put that question first to Danny Boyle.

Danny Boyle

Thus far, we have not had an opportunity to review the full financial memorandum. However, I will make general points about what we would like to happen on resources.

I know that the Scottish Police Federation has identified concerns about the retraining of officers to cover all the different circumstances that might prevail, given the bill’s provisions. However, our position is that that is a fundamental responsibility of those who are here to serve law and order, be that the Crown Office and Procurator Fiscal Service or Police Scotland. Individual police officers should be given adequate training, and the financial support to progress it, to enable them to have a comprehensive understanding of the definitions for the different statutory aggravations.

I would like to think that we could support such aims not only for the police but for society more broadly. The story that I put forward earlier about where the whole approach derives from, such as the United Nations system that emerged at the end of the second world war and the global consensus on apartheid, is very interesting and is one that we should know, anyway. Why our hate crime law—

The Convener

I am sorry to cut across you but, with the greatest respect, we do not have time to go through all of that story this morning. You have already mentioned those aspects. Mr Kerr asked a specific question about the financial memorandum. I ask you to stay focused on that, which would very much help the committee in its deliberations.

Liam Kerr

Unless Danny Boyle has anything else to say, I will put the same question to Jennifer Galbraith.

Dr Galbraith

I do not have anything to say on the financial memorandum. I simply reiterate that we need additional investment in training, and more BME recruitment for the police force and for agencies in general. I would be happy to write to the committee on those aspects. I am aware that Her Majesty’s inspectorate of constabulary in Scotland is currently carrying out a thematic review of hate crime, which should also cover aspects of the subject.

Liam Kerr

Would Amy Allard-Dunbar like to comment?

Amy Allard-Dunbar

I also have not had time to go through the financial aspect adequately. I simply echo everyone else’s analysis that the police currently do not have adequate training. They do not have significant levels of anti-racism or cultural proficiency training; neither do many other people in our institutions that would deal with the processing of hate crimes. Therefore, currently, such institutions are not adequately prepared to deal with racism as a hate crime.

Liam Kerr

That is helpful—thank you.

John Finnie

As I did in the earlier evidence session, I want to ask about the aggravation of offences by prejudice. The continued use of aggravations as the core method of prosecuting hate crime in Scotland has been broadly welcomed. If any panel member has a specific comment on that approach, I would welcome it.

If not, I would like to come to Mr Boyle. If you were watching the previous session, you will know that I mentioned the call by BEMIS, which other organisations have joined,

“for a legal requirement to be integrated into the Bill that places a duty on the Scottish Government, Police Scotland, and ... other relevant duty bearers to develop a bespoke system of ... hate crime data collation and disaggregation”

across all characteristics that are covered by the proposed legislation. Will you comment on that, please?

Danny Boyle

I would be happy to. When the regional police forces were amalgamated into Police Scotland—it was in 2014, if memory serves me correctly—we lost the ability to have any disaggregation on the nature of the victim, complainer or witness of racially aggravated hate crimes and incidents in Scotland.

As I have mentioned, we have international oversight of that. In order to have a coherent response to disaggregated data on hate crime, rather than getting block figures of 4,500 in 2017-18 or whatever it might be, we need to know which ethnic groups are being targeted. As an example, the figures that we have available, which we have provided to the committee and which are from 2004-05 to 2013-14, show that, whenever there was an international terrorist incident, we saw a significant spike in victims, witnesses and complainers being of Pakistani ethnicity, which was likely linked to Islamophobia.

It is incredibly important that we have the data on a rolling basis, because the nature of racially aggravated hate crimes evolves in different circumstances and in different times. I will give an example of an issue on which we are dealing with Police Scotland and the community involved. As a result of the perceived origin of the coronavirus pandemic, we have seen an upsurge in racist incidents and hate crimes affecting east and south-east Asian communities.

It is important that we have an annual disaggregation of data not only to inform non-judicial interventions but to forecast potential vulnerabilities for different groups due to geopolitical situations.

John Finnie

Would either of the other two witnesses like to comment on that, and particularly on the benefit of the data for non-judicial interventions, as Mr Boyle highlighted?

Amy Allard-Dunbar

I echo what Danny Boyle said about the data allowing us to map which groups are being disproportionately targeted at particular times. As he highlighted, since the coronavirus, there has been a significant increase in racism towards south-east Asian and Asian communities. In addition, particularly after Brexit, there was a big increase in hate crime towards people who are—or are even perceived as being—from other parts of Europe. It is really important to map that, because that helps us to understand how society responds to events, which, in turn, reflects their general perceptions and views about those groups. As Danny Boyle said, it is important to understand that, not as one large number, but in terms of its individual parts.

Dr Galbraith

We included in our submission a proposal that there should be a reporting requirement on ministers, which was based on the provision in the Domestic Abuse (Scotland) Act 2018. We want an annual report to be produced, which would include a breakdown of statistics and disaggregated data on the ethnicity of the accused and victims, using the census categories.

I believe that having a requirement to produce data alone might not work in practice, because that requirement is already in place for the public sector equality duties and we already see that that does not work in practice. If there was to be a data requirement, it would have to be strict.

John Finnie

I recognise the wider benefits that could be delivered if that were included.

In line with existing legislation, the bill states that the court must make clear what difference an aggravation has made to the sentence that has been imposed. Lord Bracadale has recommended removing that requirement. Is the retention of that helpful, perhaps with regard to the transparency of sentencing?

Dr Galbraith

We believe that it is helpful, and we agree with keeping the transparency around additional sentencing that aggravation adds on, because it gives validation to victims that their complaints have been heard and that racism is being treated appropriately. It provides an important support for victims and gives them more confidence in the way in which the criminal justice system tackles racism.

11:15  



Amy Allard-Dunbar

Could you repeat the question? I think that I misinterpreted it slightly.

John Finnie

In line with existing legislation, the bill states that the court must make it clear what difference an aggravation has made to the sentence that has been imposed. Lord Bracadale recommended removing that requirement, and my question was whether you believe that the retention of the requirement is helpful, perhaps with regard to transparency and sentencing.

Amy Allard-Dunbar

Yes, and I would add that the retention of that requirement is necessary. As Jennifer Galbraith pointed out, it is essential to helping people understand that racism is being taken seriously and is being covered adequately. Additional provisions are always necessary when it comes to dealing with matters of race. Retaining the provision would provide a lot of clarity and transparency. I hope that that answers your question.

Danny Boyle

I concur with my colleagues. Someone on the previous panel talked about how important it is that individuals see themselves in the implementation of this legislation. For those reasons, we support the retention of that aspect.

The Convener

Fulton MacGregor and Annabelle Ewing have questions about hate crime characteristics.

Fulton MacGregor

I have a general question. Do you have any concerns about the way in which the various hate crime characteristics are defined in the bill, and are there any other characteristics that you think should be added? I would like Dr Galbraith and Amy Allard-Dunbar to answer that before Danny Boyle, because I have a wee additional question for him.

Dr Galbraith

This might be quite a predictable answer, but I can comment only on the race provisions. We are happy with how race is presented in the bill, and I cannot really comment on other characteristics, and there are no other characteristics that I can think of that should be added.

Fulton MacGregor

It is helpful to have that on the record.

Amy Allard-Dunbar

The issue of how age is understood in this regard is quite interesting. I think that, in terms of who is in a vulnerable group, that characteristic is usually understood to relate only to older age groups. I think that, if the issue of age is to be understood fully in this regard, it needs to be understood from the perspective of young people as well, because a lot of young people do not know their rights and it is difficult for them to have the necessary confidence to report or to feel supported when doing so. If age is to be included as a characteristic in the bill, the perspectives of older people and younger people should be considered.

Fulton MacGregor

We heard something similar in relation to young people from a witness on the previous panel.

Danny Boyle, I would like to ask the same question of you, but I would also like to give you an opportunity to put on record your view about whether sectarianism should have been addressed in the bill. Obviously, it has not been. Do you think that it should have been defined, or do you feel that a statutory aggravation or stand-alone offence relating to sectarianism should have been created and added? I asked panel members that question last week. I do not know whether you were following that discussion, but I thought that you might like to have an opportunity to address the issue of sectarianism.

Danny Boyle

I do not have anything to add to what my colleagues outlined in response to the first part of your question. On sectarianism, our position, based on the available statistics, is that the community most likely to be targeted as victims of what, in Scotland, we understand to be primarily the traditional issue of inter-Christian sectarianism—although that is evolving continuously and there is a link between ethnic and religious identities—is the Catholic community. That has been the case, by far, since devolution. There are also anti-Protestant issues as well as Islamophobia and antisemitism.

To take the Catholic example, as we said in our written submission, there is obviously a close link between the multigenerational Irish community and the Catholic community. There is case law on that. For example, the case of William Walls v procurator fiscal, Kilmarnock, reflected the issues of the singing of the lyrics

“the famine is over, why don’t you go home”,

as well as calling someone “a fenian” b-word. That was successfully prosecuted as both religious and racial aggravation. Therefore, we see no need to create a sectarianism aggravator, because the existing statutory aggravators cover the dynamics at play and give us clearer sight of what is going on. BEMIS is a membership organisation, with members from all these communities, and, from what we have heard from them, there is zero appetite for a sectarianism aggravator. That is the long and short of it.

Fulton MacGregor

It was helpful to give you the chance to put that on the record. I am happy with that, convener.

The Convener

Annabelle Ewing is next, before James Kelly wraps up the questions.

Annabelle Ewing

Thank you, convener. My question is directed to Danny Boyle, given the breadth of the background of the organisation that he represents. Do you have any comments on behalf of BEMIS on the issue of the non-inclusion thus far of the characteristic of sex in the bill?

Danny Boyle

I can respond to that only in the context of the intersection of race and sex. We see from a number of examples of individual cases that there is a misogynistic element that is linked to the racial aggravator. There will be a working group on misogynistic harassment, which will look at the nature of that hate crime. We agree with other witnesses that the work of that group should continue. We also agree that there should be clear parliamentary oversight and participation in that group and that a human rights-based approach would ensure that women’s groups are front and centre in that debate and in discussion in society more broadly. Our ask is that women from BME communities, who are protected on the basis of their colour, their nationality and their ethnic national origin, must be part of that conversation.

Annabelle Ewing

To clarify that, some people have suggested that the fact that, regardless of whatever is going to happen on any potential stand-alone offence of misogynistic harassment down the line, the lack of inclusion of the characteristic of sex now might risk sending a rather odd signal to the public. Do you have a response to that concern, which has been raised—[Inaudible.]

Danny Boyle

I missed the last part of your question as you cut out slightly. Could you repeat that, please?

Annabelle Ewing

I am sorry. Some people have raised concern that the lack of inclusion now of the characteristic of sex might risk sending a rather odd signal to the public. Do you have a particular response to that, in light of your previous comments on the issue?

Danny Boyle

We would need to consult our membership before I could put forward a definitive position on that.

Annabelle Ewing

Thanks, Danny. I have finished my questions, convener.

The Convener

Thank you, Annabelle—that was quicker than I had anticipated; you caught me unawares. James Kelly has the last set of questions for this panel.

James Kelly

I will concentrate on the issue of support for victims of hate crime, starting with a question for Jennifer Galbraith. Can any additional measures be taken in education or reporting in order to provide more support for victims of hate crime?

Dr Galbraith

Quite a few additional measures could be taken. CRER has previously called for the formation of advocacy groups to support victims all the way through the reporting process to prosecution. That ties in with the issue of underreporting.

In our submission, we advocate the inclusion in the bill of a duty on ministers to promote the reporting of hate crimes, similar to the duty in the Social Security (Scotland) Act 2018 to promote social security take-up. Such promotion could include the formulation of strategies to address specific areas of the hate crime reporting system, such as the provision of support, where improvement is needed.

James Kelly

Does Amy Allard-Dunbar have any comments?

Amy Allard-Dunbar

Your question segues nicely into what I had hoped to bring up. It speaks to the need for alternatives to the current system, because support for victims of hate crimes is not adequate at all. That applies in particular to victims of racial hate crimes. Much of the black and minority ethnic community does not have much trust in the criminal justice system, so people do not want to get involved in the first instance. If someone chooses to report a crime and follows the process through, it will often be an uncomfortable and mistrustful process in which they do not really want to be involved.

A way to better support victims would be to set up a community support and engagement network to act as a consultation space. People could go there to seek guidance and support when they had experienced a racist hate crime or incident, and from that consultation they would get help to determine what further support they might want. The network would run primarily on the basis of a restorative justice approach. It would also function as an education centre to educate the perpetrator on the harm that their crime has caused and look to continue their education along the way. The perpetrator of the offence might carry out peer education work with others if it is clear that the restorative justice process with the victim is not working. We would also need a helpline to allow people to call in with any concerns.

One of the main problems—and the main reason why race needs to be viewed separately, to summarise all the points that have been discussed—concerns the question of who is currently in charge of determining whether an incident is a hate crime. IYS believes that it needs to be people from the communities who determine whether an incident is in itself a hate crime. The only people who are able to make that determination are those with lived experience. It is not adequate for us to think that people who have no lived experience of racism have the right training, understanding or knowledge to understand the impact of hate crime and the trauma and racial trauma involved, and to determine the impact of what was said in an incident. That happens a lot with microaggressions. A considerable number of significant steps must be taken in order to better support victims. From the IYS perspective, that would look like a complete restructuring of how hate crimes are dealt with.

James Kelly

Thank you for laying out those steps. It is vital that we build trust and confidence at a community level in order to support victims.

Can I get Danny Boyle’s thoughts on that area?

11:30  



Danny Boyle

I would largely reiterate what has been said, and I will add one extra thing. We have done conferences over recent years on tackling prejudice that is motivated by racial and religious hatred, and the remedy of last resort that is provided by the law is incredibly important, but it is also about advocacy groups—as Dr Galbraith mentioned—education and restorative justice.

We have missed out something. I spoke earlier about the on-going conversation that is being conducted by Amy Allard-Dunbar from Intercultural Youth Scotland and some other brave young people who have experienced the sharp end of the wedge when it comes to racism in our schools. That dialogue is being held among institutions, duty bearers and society more broadly about the issue and its impact, and the International Human Rights Committee has also picked up on colonialism and imperialism and their impact on young people.

We as adults—and as political parties, the Scottish Government and society more broadly—also have a responsibility to take this discussion on. We have a national performance framework outcome in the Scottish Government to create an inclusive national identity. What does that actually mean, though, in the context of attending to all those issues?

An interesting observation was made earlier. During the first panel discussion, Rona Mackay asked why the stirring up of racial hatred offence has not been seen to be used as much in Scotland as it has in other parts of the UK. I offer three quick observations on that. Given the legislation, we may find that groups such as the National Front and the British National Party, which have a foothold across the UK, will be prosecuted in England or Wales, even though some of their activity might be taking place in Scotland. We are aware that there seems to be more of a prevalence of the use of counterterrorism legislation to tackle some of that activity. One of the groups that we have seen manifesting most recently is Generation Identity, off the back of National Action. It was targeted using that legislation.

We have not quite got to the point of really discussing Scottish far-right activism. We are good at identifying where it is manifesting in England, but we are not so good at identifying its Scottish-specific trends. We know about all the UK groups such as Combat 18, the National Front, the BNP and the Scottish Defence League—sorry; SDL is Scottish-specific. There are other examples, however, of where the far right coalesces in Scotland, but Scotland is not quite yet at the position of having a grown-up conversation about where and why that is taking place.

All the points that colleagues have raised and we have reinforced are incredibly important, but it is high time that Scottish society figures out for itself what we mean by an inclusive national identity. We should start to identify far-right organisations in Scotland and what they are orbiting around. It is not always football; actually, that is the least of it. Some of the best and most anti-racist actions are being taken by football clubs. The activity is occurring in different dynamics of society, be it through marching-band culture or whatever it might be. We are not quite there yet when it comes to having that discussion and those issues continue to manifest.

James Kelly

Thank you, Danny—those were points well made.

The Convener

I thank Danny Boyle, Amy Allard-Dunbar and Jennifer Galbraith for their evidence this morning. You have very much helped to put the specifics of the bill in a much broader context, which raises a whole host of questions, not only for the committee but for the Parliament and Scottish society generally. We are very grateful to you all for that.

As before, we will suspend the meeting to enable a changeover of witnesses.

11:34 Meeting suspended.  



11:38 On resuming—  



The Convener

I welcome our third and final panel today. With us are Claire Graham from dsdfamilies, Paul Dutton from the Klinefelter’s Syndrome Association UK, Lucy Hunter Blackburn from Murray Blackburn Mackenzie and Becky Kaufmann from the Scottish Trans Alliance. I welcome all four witnesses to the committee to help us to continue our consideration of the Hate Crime and Public Order (Scotland) Bill.

I open the questioning by asking our witnesses to reflect on the amendments that the Cabinet Secretary for Justice has already proposed to make to his bill. Are they necessary? Are they sufficient? Do they go too far or, indeed, not far enough? I will start with Lucy Hunter Blackburn and then bring in the other witnesses in turn.

Lucy Hunter Blackburn (Murray Blackburn Mackenzie)

Thank you for inviting us to give evidence today. I understand that there is only one amendment that it is absolutely clear that the Scottish Government has proposed, and it would remove likelihood so that there has to be intent. I know that the cabinet secretary has suggested that other provisions may need to be amended as a consequence—I think that he mentioned freedom of expression and reasonableness—but I am not sure that we have yet seen the detail on those aspects, so I cannot comment on them. I can comment only on intent.

The proposed amendment would improve the bill. We have highlighted our concerns about likelihood. However, as I will say later in my evidence, we have much bigger concerns about the long shadow, if you like, that the legislation will cast. By removing likelihood, you will slightly reduce the long shadow over freedom of speech, which we worry about, but it will remain. The proposed amendment represents an improvement—it would be wrong for me not to say that—but it far from answers all our concerns.

The Convener

What does the cabinet secretary need to do in addition to that, in your view?

Lucy Hunter Blackburn

If this is a chance for me to say up front where we are starting from, I want to make it clear that, for us, the issues are mainly around part 2 of the bill and the extent of the stirring-up offences. We are concerned that the extension of stirring up is underscoped. There is much work still to be done to make it work safely around freedom of expression.

We are comfortable with the precedent that we see in England for the extension to religion, belief and sexual orientation, because we know that that model has not caused trouble for freedom of expression there. We would support something that sticks closely to that, but we are concerned about the extension of stirring up beyond those characteristics.

Becky Kaufmann (Scottish Trans Alliance)

We broadly support the cabinet secretary’s proposed amendment to require intent. We feel fairly comfortable that the ability to prosecute something depending on evidence that a person intended to stir up hatred or be threatening or abusive is an appropriate and useful threshold, and we feel that it represents an appropriate protection for freedom of expression.

The Convener

Thank you, Becky. That is very clear.

Claire Graham (dsdfamilies)

We believe that a change to require intent is important, but we have reservations about who defines what is hateful in general for people who are intersex and the impact that it will have on our freedom of expression to talk about ourselves, but also to help to educate people. The issue for us is freedom of speech and how education regarding differences of sex development will be affected.

The Convener

I know that members will want to pick up on what you mean by the issue being freedom of speech, but we will come to that in due course.

Paul Dutton (Klinefelter’s Syndrome Association UK)

We broadly support the proposed amendment. I think that intent should be shown, as opposed to merely likelihood, so that will be an improvement to the bill. I have no further comment on that.

The Convener

Okay—thank you. I ask Rona Mackay to pick up the questioning.

11:45  



Rona Mackay

As I did with the previous witnesses, I will ask about the different approach to race hate crime. The proposals do not require intent to stir up racial hatred, and they include insult. In relation to your issues, do you think that that is how it should be? Does that approach create a hierarchy of characteristics? Are you happy that race crime is being treated separately in the bill?

Claire Graham

I am sorry, but I do not really understand the question.

Rona Mackay

Race crime accounts for two thirds of all hate crime, and the bill treats it differently in that it does not require intent, and insulting behaviour is the threshold. Do you agree with that? Does that approach set race crime apart from the issues that you are concerned with? If so, are you satisfied that that should be the case?

Claire Graham

I listened to the panel that discussed race, and the witnesses seemed to welcome that. Obviously, that is not really relevant to intersex issues. I do not think that it would be helpful for that approach to be extended to us because, even within intersex charities, we do not have an agreement on what is considered to be insulting.

Rona Mackay

That is absolutely fine. I ask Paul Dutton whether he has a view. You do not have to have a view, Paul, but, if you do, speak up about it.

Paul Dutton

I have to say that my main concern is that intersex and variations in sex characteristics are included. I understand that, if race accounts for two thirds of the reports, it probably requires a higher profile, but I would like to ensure that all the other characteristics are included.

Lucy Hunter Blackburn

I think that we said in our written submission—we have certainly said it since then—that we see exactly why race is being treated separately. It has a much longer history as a protected characteristic. The previous witnesses set out in detail the origins of that. It is not my area of expertise at all, but I can see why race is treated differently. To us, treating race separately, which includes deciding to stay where we are and to have stirring-up offences that are only for race and nothing else, seems justifiable, because of the scale and history of the issue and the political circumstances around racial hatred.

Becky Kaufmann

Although we broadly support the concept of a consolidated hate crime bill and we feel that it is the most effective improvement to the law, we recognise that historically marginalised groups are not homogeneous and that the experiences of hate crime within groups can vary from group to group. As was put forth far more eloquently by the race organisations, the current structure around race seems appropriate. Similarly, we think that the proposed stirring-up offences as they apply specifically to LGBT people, including trans identities, is appropriate for our needs as a community. We do not see anything particularly problematic in the fact that race is treated differently.

We are strong in our belief that we do not want anything in the law that would be an actual or perceived rolling back of protections that any community might have had in the past. Public confidence in hate crime legislation is particularly problematic, so it is really important that the bill does not give the impression that any previously existing protections are being taken away.

Rona Mackay

Thanks very much—that is helpful.

The Convener

Liam McArthur and Shona Robison have follow-up questions about those aspects of the bill.

Liam McArthur

I think that Shona Robison will touch on some of the points around freedom of expression, but I want to ask Lucy Hunter Blackburn about the broader concerns that she talked about in relation to part 2.

Obviously, the changes in relation to intent allay some of the concerns, but I think that Lucy Hunter Blackburn is on record as saying that the provisions as a whole are not necessary and that the approach that has been taken through legislation recently adopted in England and Wales might provide more of a blueprint, in that it provides the protections that Becky Kaufmann and others referred to, but in a way that perhaps impinges less on freedom of expression.

Lucy Hunter Blackburn

I will quote Lord Bracadale in relation to the fundamental principle that needs to be looked at. He said:

“In most cases it is likely to be quite obvious that the conduct is stirring up hatred of a group rather than contributing to meaningful public debate”.

That starting point—that there is a consensus around what is hateful—is very important. If you are going to legislate for stirring up hate, you really have to have a social consensus around what is and is not hateful, which has come up in earlier discussions today. We would suggest that it is very far from clear that there is anything like a public consensus around some of the extended characteristics. For example, today’s panel has been asked to talk about transgender identity. It is therefore very problematic to legislate around stirring up hate in that context. I can talk about our experiences there later; I will not do so now.

If you are going to legislate, the reason to look at what has been done south of the border is that there is a model whereby legislation has been taken forward with protections that have managed to form a reasonably consensual picture in the way in which they are framed. However, as soon as you start doing new legislation here, it is a new ball game in relation to how solid the consensus is around what it is that you are, in fact, trying to do. Some of the earlier witnesses talked a lot about relying on the training of the police and of prosecutors, but that has no democratic oversight. Parliament needs to know what exactly it thinks people should not be able to say and what counts as stirring up. If you start relying too much on extra-legal stuff such as training, you move out of that world. You need to be very clear—as the English legislation tries quite hard to do—about what is inside and what is outside of what counts as stirring up hate. Does that answer the question?

Liam McArthur

It does, although it perhaps raises another question—which we have heard from a number of witnesses—about the difficulties that can arise when you start to try and itemise what it is that you are trying to protect, discourage or even criminalise—not just on that issue, but more broadly. I suppose that the question is, in the absence of that social consensus around what is hateful, how do you try and grab a hold of it so that, in a legislative sense, you have something that is clear to the public, police, prosecutors, and everybody who will be touched by the legislation?

Lucy Hunter Blackburn

I would strongly suggest that, in the absence of that social consensus, you do not legislate, because you cannot compensate for the absence of the consensus.

The Convener

I will ask a follow-up question on that, because I am interested in the idea that there needs to be social consensus on a matter such as this before Parliament legislates. Stirring up racial hatred was first put on the statute book in the 1960s, and the offences that we currently have in the Public Order Act 1986 are consolidation offences from legislation that was passed in the 1960s. Do we really think that there was social consensus in the 1960s about race relations? Do we not rather think that Parliament was trying—perfectly appropriately, I would say—to reshape society so that there could become consensus, rather than responding to a consensus that existed? What do you think about that, Lucy?

Lucy Hunter Blackburn

That is a fair point; I would not dispute that there are points when the political world leads. However, it depends on the nature of the fractured consensus. The sort of things that are being raised as being hateful or transphobic around transgender identity particularly are things such as how we use the word “woman”, how we use the word “man” and whether you can talk about whether people can change sex, which are fundamental points.

The nature of the dispute around those elements at least seems to be quite different from the nature of the dispute you might have seen or the argument about race in the 1960s. The kind of things that I have positioned as hateful statements in the debate about sex and gender identity are very different in their nature. The argument around how we can describe what is real underpins an awful lot of that debate and the examples, and our experiences, are very much around that. For example, the accusations by MSPs that other MSPs have used the Parliament as a platform for transphobic hatred are about people coming in to talk about women as a sex class in terms of sex-based rights. Those are very different sorts of a lack of consensus.

A lack of consensus can operate in different ways and the tensions around the speech about race in the 1960s and 1970s are different from the tension that I am observing now, particularly around transgender identity. That is an important point, so I am not saying that there is no role for politics in giving a lead; I would not want to give that impression.

The Convener

Okay, thank you. Sorry, Liam—I cut across your questions there.

Liam McArthur

That is your prerogative, convener. On the back of that, it might be helpful to hear from other witnesses, starting with Becky Kaufmann.

Becky Kaufmann

It is really important that we focus the conversation on the fact that we are talking about a piece of legislation that talks about the tiny subset of behaviour that elevates to being something criminal. We have often shifted this conversation to a broader philosophical conversation about how different groups feel about the existence of other groups. There has been robust political debate for years and years about the roles that different groups play in society and we would never, ever support any legislation that would put any damper on those discussions.

What we are specifically talking about in the bill is behaviour that clearly elevates to the level of generating hatred or encouraging others to threaten or abuse other people. Those are widely accepted principles. The Law Society of England and Wales is reviewing the current legislation down there and one of the principles that it is looking at is about making sure that the legislation sufficiently captures threatening and abusive behaviour to different groups.

We submitted supplementary evidence in which we suggested a broad-based approach to reassuring the public. Let us be very clear that the parts of the bill that update the protections around freedom of expression are very important for the purpose of reassuring the public but the actual legal thresholds are established in other parts of the bill and those thresholds are, rightly, very high. For behaviour to be criminal, it would have to cross those thresholds.

I have been subject to a fair bit of debate that makes me extremely uncomfortable and which is often very disrespectful of my identity, yet I would not encourage that behaviour to be made criminal. What we would like to see—what we believe that the current structure, with the amendment to intent that has been proposed by the cabinet secretary, does—is for the legislation to capture the behaviour motivated by prejudice that is elevated to the level of threatening and abusive behaviour. That is where we think that the law belongs.

Liam McArthur

That is very helpful, Becky, thank you. I ask Paul Dutton to respond next.

Paul Dutton

As a society, we all understand that there are some limitations to our freedom of expression. Certainly, the law in England and Wales is very much predicated on what the person in the street would think, so there is a lot of reference in that legislation to a “reasonable person”. I think that a reasonable person would see that humiliation, ridicule, bullying and prejudice are all things that are, in effect, hateful. I am not necessarily advocating prosecution, but we as a society need a way to re-educate people that those behaviours are unacceptable, and I think that protecting people in law is a first step to that particular aim.

12:00  



Claire Graham

I want to go back to the comparison with race in the 1960s. We might not have understood what racial hate crime was, but we understood what we meant by different races. We have no clear understanding of what we mean when we talk about intersex. For example, the Scottish Government’s equality unit website describes intersex as being male, female, in-between or neither. There are intersex people who would find that offensive. Until the Government has a real, solid understanding of what intersex is, there cannot be an understanding of what hate crime or insulting behaviour towards intersex people might look like. I am worried that the bill so far and the people who have been spoken to have not addressed that and that there is no clear definition.

Liam McArthur

Thanks. That is very helpful.

Shona Robison

I want to focus on the general defence of reasonable behaviour along with the protection for freedom of expression in relation to specific issues. The committee has received a lot of evidence that those provisions need to be strengthened. What are the panellists’ views on that?

Lucy Hunter Blackburn

I do not have a great deal to say about the reasonableness defence. We said in our written submission that, for an ordinary member of the public reading that, it is not necessarily very straightforwardly worded, but I do not have a great deal to say about it.

On freedom of expression, I think that Lord Bracadale argued to the committee that everything that is included in part 2 and that is new compared to where we are now should be covered by freedom of expression. Earlier, people touched on the tension between having provisions in the law, as there are in England, that set out in detail what is not covered versus generic provisions. Generic ones are really hard to frame in a way that gives people immediate comfort and something to which they can point to say that what they have said is not hateful. I would like to come back at some point and explain why that matters so much in particular contexts.

I agree that the strengthening of freedom of expression protections should be part of any improvement process to the bill as introduced.

Claire Graham

On reasonable behaviour, I go back to the fact that variations in sex characteristics are badly understood. People might often say things just because they do not know. How do we judge what is reasonable? Who decides what is offensive? We would like people to be able to talk about variations in sex characteristics. If they have misconceptions, we could help to educate them. I am not sure how the reasonable person on the street would be able to judge that, because the issue is so complex.

Shona Robison

The term “reasonable” is used in other areas of the law. You are saying that, because of the complexity, using it in this context might be challenging. Is my understanding right?

Claire Graham

Yes. Because there is so little information out there and it is such a badly understood demographic, we do not know what reasonable behaviour is or what a reasonable person would be expected to understand.

Becky Kaufmann

Oftentimes, when we go off into discussions about the philosophical nuances of these things, we lose sight of the fundamental reason for having hate crime legislation. It is not about making sure that somebody meets a standard to fit into a category of victim; it is about categorising the sorts of prejudice that motivate people who commit such crimes. It is important that our understanding is framed in such a way that we do not create unnecessary loopholes.

The reasonableness defence is a very well established principle in law across the board. Basically, it is a requirement for the proof of intent. If a reasonable person would not have intended to stir up hatred or to motivate others to behave threateningly or abusively, the threshold for proving intent would not be met and, therefore, it would not be a criminal act under the bill. It seems to me that the reasonableness defence is an integral part of how a prosecutor would approach prosecuting intent.

Shona Robison

Thank you—that was very clear.

Paul Dutton

A reasonable person does not need a huge knowledge of intersex or variations of sex characteristics. We know that ignorance of the law is generally not a defence in prosecuted cases, but the reasonable person should know that their behaviour in society must meet certain standards. Although the information on intersex and VSC is not necessarily in the public domain, standards of people’s behaviour are in the public domain, and a reasonable person must know how to treat other people and what standards of behaviour are unacceptable.

If I set out to bully or humiliate somebody, or simply ridicule them because of what they look like, because they do not meet my standard of male or female, surely that would not be the behaviour of a reasonable person.

Shona Robison

I think that Claire Graham wants to come back in.

Claire Graham

I do not disagree with what Paul Dutton said. What concerns me is that there is not even consensus within intersex groups on how we talk about ourselves. I remember once reading an article that described intersex people as “queer bodied”. I find that offensive as a label for me, but other people with VSC do not like the way that I talk about myself as having a medical condition. If we, as the group that is being talked about, cannot agree on what is meant by “unreasonable” or “reasonable”, how will that be interpreted by other people?

Shona Robison

That is helpful. I am conscious of time, but Paul Dutton has a follow-up comment.

Paul Dutton

KSA works and collaborates with a vast number of IVSC organisations. As Claire Graham said, there are many ways in which people talk about their condition by name. Some will call it intersex and some will call it a variation of sex characteristics. Generally, we cannot list 40-odd different conditions in legislation. What we need is an umbrella term. A lot of us shy away from the term differences in sex development—DSD—because medics in particular interpreted it as a disorder of sex development, as outlined in the Chicago consensus statement of 2006. A lot of us are not happy with that and have come to the conclusion that IVSC is a better umbrella term than anything else that exists.

I merely want to say that I understand why we cannot list everything that we may have, but we need an umbrella term that tries to cover everybody.

Lucy Hunter Blackburn

When we are talking about reasonableness, it is important to remember that we are dealing with part 2 of the bill at this point, so we are talking about the reasonableness of the content of speech, not the reasonableness of behaviour in a more general sense.

I want to come back to the idea of intent. I could say things with intent and say that I just meant to communicate a message that I regarded as being okay, but other people might say that the content of what I was saying was hateful. I know that that is possible, because it is happening to me at the moment.

The limitation of the reasonableness defence arises when people do not agree on what is hateful. When a statement stirs up hate, there is a fundamental problem, in that your chain of thought breaks—a reasonable person could say, “Well, she certainly intended to say that and she certainly intended people to take that message.” At that point, the question of whether that message counts as stirring up hate becomes utterly crucial with regard to how helpful the defence of reasonableness is.

The Convener

I want to pick up on what Lucy Hunter Blackburn just said. It is important that we bear in mind that reasonableness in the relevant provisions of the bill does not speak to offensiveness. One of the first questions that the committee put to the cabinet secretary, right at the beginning of the inquiry, concerned whether he accepted that the right to freedom of expression includes the right to express yourself offensively, and he said that he accepts that.

Becky Kaufmann made that point earlier: we are not talking about expressing yourself offensively; we are talking about expressing yourself or behaving in a manner that is threatening or abusive, and the question of reasonableness goes to whether the behaviour is threatening or abusive. That is the level of criminality. I hope that I am just underscoring what I think that Becky Kaufmann said in evidence this morning, although please correct me if I have misrepresented that point, Becky.

With that slight caveat in mind, I invite Liam Kerr to wrap up this aspect of the questioning.

Liam Kerr

I have one question, which I will direct specifically to Lucy Hunter Blackburn, although others might want to come in.

Lucy, I understand that you research, write and publish stuff. I asked the previous panel about the fact that several people have expressed concerns that the stirring-up offence could be used to label something as hate speech and that, even if that does not lead to prosecution, the threat of the investigation and court action could lead the writer to self-censor. You have mentioned your experiences a couple of times, but I do not know whether this issue directly relates to them. Do you think that that is a danger with the current drafting of part 2? If so, what can be done? Are the thresholds that are in the legislation high enough to prevent those adverse effects?

Lucy Hunter Blackburn

It is important to distinguish between the thresholds that are likely to trigger a successful prosecution, or even an attempted prosecution, and the wider effects of the bill. I want to very much reinforce the evidence that you got from John McLellan about what he called the chilling effects of the law.

When you legislate in this regard, you are not just legislating for the very small number of people who will be prosecuted—I agree absolutely with Becky Kaufmann that the people who are likely to be successfully prosecuted under this law will have met extremely high thresholds—you are casting a long shadow, because people will worry about investigation. John McLellan spoke eloquently about the effect of the fear of investigation, or even just of being contacted by the police at that level, even if the charges are not pursued or are dropped before they come to court after the investigation.

I mentioned our experience of putting forward an article at the Edinburgh University Press, which was a discussion of the way that policy had been formed around transgender and women’s rights in prisons and in the census. When the article neared the point of publication, an internal memo at the EUP that discussed it said:

“It ... expresses anti-trans sentiment and also uses terms that are discriminatory and insulting towards trans women (for example, the use of the word ‘women’ as specifically excluding trans women).”

The memo went on to say that publishing would be

“morally wrong and socially irresponsible”,

and to compare the article to antisemitism and Islamophobia.

12:15  



In that context, the matter was dealt with as an internal publishing issue and the article was published. I am absolutely sure that, if the legislation that the bill proposes had existed, it is likely that the publisher would have had in front of it the potential of committing a stirring-up offence. Publishers will worry about that, and I know that writers will.

I believe strongly that John McLellan’s points need to be taken seriously. It is not just about how hard it is to get a prosecution, as the thresholds in the bill might be high enough in that regard; it is about the wider side effects on behaviour, which are important.

I noticed that when Michael Clancy talked to the committee about the private dwelling defence, he said that he does not think that

“there should be a sanctuary when it comes to hate speech.”—[Official Report, Justice Committee, 3 November 2020; c 9.]

He used the term “hate speech”, which struck me as interesting, because the bill does not consider hate speech; it refers to the “stirring up” of hate, which is a distinctive and different offence. Even in the context of the committee’s discussion of the bill with someone from the Law Society of Scotland, one begins to see a shading of the way in which the legal proposals are discussed.

The reliance on training of or guidance to prosecutors or police officers is not a strong protection for people in my situation and others who might be worried about being caught up in the wider shadow that the bill casts. Calum Steele from the Scottish Police Federation and witnesses on the committee’s religious belief and faith panel made those points, too, and I want to echo them.

To give another example from academia, we referred in our written evidence to stickers at the University of Edinburgh that said:

“Woman. Noun. Adult human female”.

The Scottish Trans Alliance suggested that people might want to refer those stickers to the police, and the university did so as potential hate incidents. We need to consider the level at which hate and the stirring up of hate, theoretically in that case, are perceived. We need to be careful to understand how widely the net is cast as hate—not just as offence, but specifically as hate.

I am conscious of your time; I hope that that is enough.

Liam Kerr

I am grateful, and I know that Becky Kaufmann would like to say something in response to that.

Becky Kaufmann

We have to realise that the premise of the question presumes the existence of a power relationship in hate crime law that just does not exist. The power relationship across hate crime law exists with the police and prosecutors, and not with the victim. Just because a victim feels offended by something, that does not mean that somebody will be prosecuted.

In my first-hand experience, I cannot name a person who was a victim of such offences that definitely crossed thresholds and should have been considered hate crimes under the existing legislation and who felt that the police overinvestigated. I have a lot of examples of people who feel that the police underinvestigated.

It is particularly important to talk about the reality of how hate crime works in practice. We have clear statistics that show that hate crime is massively underreported. Hate crime law does not capture the majority of hate behaviour. The new law is not likely to capture much more behaviour than the old ones have. I find it downright absurd that people are creating a theoretical bogeyman and saying that standing up for communities that, historically, have been marginalised in law will somehow undermine the fairly robust tradition of freedom of speech and expression that exists in this country. The actual, practical reality is that people do not report hate crimes and that hate crime legislation does not protect them from really distressing and harmful behaviour.

The Convener

I am sorry if Lucy Hunter Blackburn thinks that I am picking on her, but I would like to press her a little on what she said in response to Liam Kerr. The conversation between her and Becky Kaufmann goes right to the heart of the concerns and controversies that exist about the bill.

Lucy, I think that I heard you say that, if you had submitted your article to Edinburgh University Press after the bill had come into force, you think that it would not have been published. If I have heard and understood you correctly, how can that be anything other than a completely unreasonable interpretation and application of what the bill says? As I have already tried to emphasise in my questions, the bill seeks to criminalise behaviour that is threatening or abusive. How can it be even in the ball park of reasonableness to argue that submitting, to a journal published by Edinburgh University Press, an academic article that describes women in a certain way meets that threshold of criminality?

Lucy Hunter Blackburn

The way in which such things operate is not constrained by people making careful decisions about what might happen down the line in a court case or prosecution. As John McLellan has argued very strongly, from his experience in the world of journalism, the difficulty is the fear of criminal prosecution. People will go a long way to avoid the risk of being caught up in any kind of police investigation or other problem with the authorities. That is where the worry lies with the bill. It is not about who will end up being prosecuted; it is about how the bill will be interpreted.

There is caution among publishers. The publisher that I mentioned went to its lawyers to get a view on whether our article contravened university policy, although the only fact that it had about it was our use of the word “women”. People are being very cautious. Also, that is just one example, in the context of breaching university policy. Once you bring in the criminal law, people will become far more cautious again. I noticed that both Colin Macfarlane and Tim Hopkins said that they would expect the new law to be tested, and that it was normal for people to bring forward cases in order to do so. We will see that happening, and no one wants to be that test case.

I very much appreciate Becky Kaufmann’s points. I absolutely accept that, as regards what we might call part 1 hate crime that is directed at people, such matters will be underreported. However, once we start getting into the broader concept of stirring up hate, which is a different type of abuse and threat, the question of what is abusive in that context will need to be established in law and to involve precedent. We will not start from a baseline for the new characteristics of what counts in such contexts.

I raise the matter not because I think that it would be a reasonable judgment—I do not think that it would be, and nor do I think it a reasonable judgment on the part of the University of Edinburgh to have referred to the police the use of stickers that said, “Adult human female”. However, the STA itself encouraged that process. There is not a strong consensus about where the lines fall on what it is reasonable to say, and how.

The Convener

Thank you. Paul Dutton and Becky Kaufmann want to come in briefly on the issue, and then I will hand over to John Finnie, who is waiting patiently—I am sorry to delay you, John.

Paul Dutton

If how we look after minorities is a measure of our society, we must not avoid creating protections just because it makes academic publication difficult. I agree that academic study requires some protection—I say that not just out of concern for my published work—but the protection of minorities is surely a greater requirement.

Becky Kaufmann

I want to make a brief clarification of fact on the issue of the stickers. The STA was not approached, and nor did we give any advice to anybody as to whether they should be referred.

The Convener

Thank you—that is helpful.

John Finnie

I want to ask about aggravations. The general approach to dealing with hate crime is the continued use of statutory aggravations as the core method. That has been broadly welcomed. Do any of the witnesses disagree that that approach should continue? If not, I will move on to a supplementary question.

There seems to be consensus on that issue, as, indeed, there was with the other witnesses. I will ask the supplementary question that I put to the previous panels, and I ask Becky Kaufmann to respond first. The Scottish Trans Alliance supports the development of a code—a bespoke system of hate crime data collection that would facilitate disaggregation across the characteristics that are covered by the legislation. Will you comment on that aspect, please?

Becky Kaufmann

Certainly. As has been mentioned by a number of the race groups today, it is difficult to plan and build broader community programmes that encourage cohesion and ultimately get to the root cause of hate crime without having a reasonable picture of where the crimes are taking place. We are cognisant of the fact that updating data systems can be incredibly complicated and expensive, but we are aware that Police Scotland, unfortunately, does not have a particularly efficient method of collating, reporting and disaggregating data, which would be useful for equalities organisations.

I am aware that sometimes—I base this on a lifetime of working in various public bodies here and in the United States—it ultimately takes the placing of a requirement under a piece of legislation to get the ball pushed in the direction of improving data collection systems. Data is incredibly useful and powerful, and we would like to see an improvement in the data and its availability.

John Finnie

In one of your earlier responses, you used the term “underreporting”. If you have no confidence in the existing system, how is it that you believe there to be underreporting?

Becky Kaufmann

We carry out a wide range of community engagement activities. The most recent piece of hate crime research that the Equality Network and the Scottish Trans Alliance carried out identified that about 74 per cent of LGB people and 80 per cent of trans people have experienced a hate crime at some time in their lives, and nearly two thirds of those happened within a year of our research being conducted. However, the most troubling statistic in the research is that 71 per cent of our respondents said that they never report it—they have never gone to the police.

The feedback that I get—this is a huge part of the community engagement element of my role—is that there remains a fundamental need to improve the level of trust in the system within trans communities. We need to remember that it was less than 30 years ago that the police were in direct opposition with LGBT communities, and painful memories go back a long way.

There is a presumption among many of us who have the privilege of being more middle class and coming from more established societies that people wearing uniforms and badges and the criminal legal system are always the good guys, but that has not always been the case. We have seen that within the past year, when the Parliament passed legislation removing the felony convictions of gay men. The criminal legal system sometimes gets it wrong, and there is a lack of confidence. Therefore, there is a lot of underreporting, because there remains a lack of confidence.

12:30  



John Finnie

I am conscious of time, but I have a question for all the panel members. In line with existing legislation, the bill states that the court must make clear what difference an aggravation has made to the sentence that is imposed. There is an argument that that will lead to increased transparency in sentencing. Will the witnesses comment on that, please? In the first instance, I put that question to Claire Graham.

Claire Graham

Sorry, but can you repeat the question?

John Finnie

In line with existing legislation, the bill states that the court must make clear what difference an aggravation has made to the sentence that is imposed. There is a view that that can lead to increased transparency in sentencing. Will you comment on that?

Claire Graham

To be honest, I do not really have a comment on that. Our main concern is whether variations in sex characteristics should be included at all. We do not think they should be.

Paul Dutton

As Becky Kaufmann partly pointed out, because people like us do not exist in the protection legislation at the moment, there are basically no stats on how often we report crimes that relate to us as people. I have research from 2009 by the University of the West of England Bristol, which contains a lot of anecdotal evidence of behaviours being inflicted on people that might have resulted in court cases in other circumstances.

As far as aggravation and transparency in sentencing are concerned, I would like to think that, if those things reach into the public domain through the courts, there will be a degree of understanding in the community that such behaviours are unacceptable, and that will have a deterrent effect as people will think before they carry out such behaviour in future.

John Finnie

Does either of our other two witnesses wish to comment on that? I see that they do not. In that case, I thank you very much.

The Convener

Annabelle Ewing is next.

Annabelle Ewing

I will first go to Claire Graham on the issue of intersex and variations in sexual characteristics, which has been aired a wee bit already. In Claire Graham’s most recent response, she indicated that she does not think that the terminology should be included in the bill. I am thinking back to what we have heard in the session thus far. It might be helpful if, for the record, she could explain on that specific issue why she feels that the term should not be included in the bill.

Claire Graham

There are a few issues with it. First, there is no clear definition of what we mean by “variations in sex characteristics”, so who would be captured by that? I also think that there is not a strong evidence base. I agree that it needs to be separated out from trans in definitions, but there is no evidence base to show that it needs to be included as a separate characteristic.

The Equality Network conducted a survey of LGBTI people and there were 17 intersex respondents. Of those, 29 per cent said that they had experienced some form of hate crime—that boils down to five people who have said that this is something that they would need. The Equality Network has said that there is an issue with the survey in that it was self-selecting and was heavy on LGBT people—that is, it was perhaps not inclusive of people with variations of sex characteristics who do not identify as LGBT.

As I said, the biggest issue is that there is no understanding of what we mean by variations of sex characteristics. It is a broad and vague term and I do not think that its use necessarily protects the people who we intend to protect. Where people with variations of sex characteristics or a difference in sex development might experience discrimination, it could be covered by other hate crime legislation. For example, an offence against someone with a visible difference could be covered by disability legislation; it does not have to be dealt with on its own.

Annabelle Ewing

What do you see as the key disadvantage of including such an approach in the bill? On balance, do you think that it would cause harm rather than being neutral? Obviously, you do not think that it is positive. What do you see the consequences being?

Claire Graham

As I said earlier, there is an issue to do with the fact that, even in the intersex community, for want of a better word, there is no consensus about how it should be spoken about. I worry that the speech of people who have DSDs and want to talk about their bodies or medical conditions could be policed in a way that would make it difficult for them to do so, because the way in which they speak about themselves could be perceived as abusive or hateful by someone else. That could make it difficult to talk about variations of sex characteristics and to encourage greater public awareness.

Annabelle Ewing

Do you feel that you have had the opportunity to make your point in discussions with the Scottish Government? Have you had your shot in terms of consultation?

Claire Graham

Not really. We are grateful for the opportunity to speak to you today, but I think that we were left out of consultation in the lead-up to the publication of the bill.

One of the frustrations that charities such as ours have is that, when we talk to the Scottish Government, intersex is always taken as a political identity and we are directed towards inclusion. We feel that the places where improvements need to be made for people with variations of sex characteristics are in healthcare and peer support or psychological support. None of what is being done will address that. When we speak to people with DSDs, those are the areas of need that they highlight.

Annabelle Ewing

I do not see anybody else wanting to comment, so I will move on to my next question. Oh—I see that Paul Dutton wants to come in.

Paul Dutton

Apologies, Annabelle. I assumed that you were going to come to me and the rest of the witnesses.

I am afraid that I disagree with dsdfamilies. I think that there is a clear definition of intersex or variations of sex characteristics, which is given by the Office of the United Nations High Commissioner for Human Rights. It is quite a persuasive definition that covers gonads, genitals, sex chromosomes, body shapes and so on.

The KSA collaborates with many other support groups that cover more than 40 different conditions—we do not yet collaborate with dsdfamilies, but that can never be ruled out, of course. Our 2009 survey with the University of the West of England Bristol covered more than 300 people. From that, we can take it that this is not just a healthcare issue and not just a disability issue, although those things can apply, but that it is very much a social issue, because we all have to operate in a social world and a social community. That is not to say that we believe that this is a political matter, but, of course, politics is all about citizens, communities and society and, as a result, we operate in those areas.

Lucy Hunter Blackburn

I defer to the other members of the panel on the question of the terminology that people prefer, whether that is VSC, DSD or whatever. However, the inclusion of people with such characteristics raises another issue, which is why, when there is a clear consensus that we are talking about a physical, biological state, that particular group has been included, but not other groups who could also be vulnerable because of physical conditions.

I will give an example. I have a good, long-term friend with a serious facial injury. Facial injury is impossible to hide. I know from spending time with them that, if you go out on the street with a facial injury, it attracts attention, and the attention that having a serious facial disfigurement attracts is not always very welcome. That group has to shelter under disability.

I would ask the committee to think about what the evidence base is for pulling out particular groups on the basis of physical, biological characteristics and what that means for the consistency of the bill in its totality.

Annabelle Ewing

Thank you for that interesting comment.

I raised with previous witnesses the fact that, as the bill stands, it does not include sex as a characteristic that will benefit from particular protection. I would like to hear views on that, starting with Lucy Hunter Blackburn, who makes a number of points on the issue in her written submission. I am not sure that the other witnesses did that, but they will also be welcome to comment.

Lucy Hunter Blackburn

Tim Hopkins made a statement that I thought was very useful. He said that it is really important that people can see themselves in the bill. A group of people who cannot see themselves in the bill, as it stands, are those who are subjected to any kind of abusive behaviour or harassment—I am thinking of part 1 of the bill here—based on their sex. We know that people who are subjected to such behaviour based on their sex are almost entirely women. It is clear that women in public life attract a great deal more abusive comment based on their sex than men do.

Tim Hopkins also mentioned the annual “dear haters” campaign, in which women are not visible, and he spoke about the value of being able to see individual groups being discussed. We mention in our submission that, the more characteristics are covered in the hate crime legislation, the more obvious it is which characteristics are not covered. The issue becomes what forms of hate are and are not acceptable, and what messages we send. Bracadale believes that there is a strong symbolic quality to hate crime legislation, especially when it comes to stirring up, and I would not dispute that. Women are nowhere to be seen in the bill as it stands.

I have looked at and understand the arguments of those who argue for sex not to be included, which seem to be made mainly by Engender and a small group of organisations that specialise in domestic abuse, and sexual violence in particular. I do not dispute that they are important organisations that bring expertise to the table, but I do not find clear and compelling their arguments on why we should not, as a default, include sex as a characteristic that is covered. The misogyny working group could by all means continue and do the work that is planned, but that will take some time. All of us who have been involved in policy and law formulation will know that to get from where we are to law in this area could easily take two or three years.

Our strong view is that the default position should be for sex to be included. Unless someone can truly demonstrate that it would clearly be harmful to include sex—I did not hear any of the earlier witnesses provide a compelling reason why that would be the case—we think that there are strong arguments for including sex as one of the listed characteristics so that it is included in public information campaigns and we can gather statistics. Other witnesses talked eloquently in this and previous evidence sessions about the importance of statistics, but we have none.

12:45  



I want to pick up in particular on what Isobel Ingham-Barrow from Muslim Engagement and Development said. She made a point about the intersection between religion and sex. Earlier, Danny Boyle mentioned the intersection between race and sex. If sex is not covered, we will not see that. I am keen for the committee to interrogate why the default position is not to start with sex. If a working group comes up with a better option that will need primary legislation, sex could by all means be taken out at that point.

On the technical point, the most compelling reason that I have seen from Engender and others for their position is the interrelationship between domestic abuse and crimes of sexual violence. They are worried about the interaction of hate there. In our submission, we suggest that there may be ways to deal with that. It could be said that, if the domestic abuse aggravator is engaged, a sex-based one would not be used—it would be secondary—or it should not be used as an aggravation in cases of sexual assault and violence.

We can see the argument against going down the route of choosing between those and saying which cases are hate based and which are not. However, it seems to us that all the arguments for not including sex can be countered reasonably straightforwardly. The argument is that, if it is left out, the signalling of leaving it out becomes increasingly important. Other witnesses have mentioned that, particularly if stirring up is done and one half of a charged debate is protected but not the other, there will be another problem.

I hope that that is helpful.

Annabelle Ewing

That is very interesting. Thank you.

Paul Dutton

I have some sympathy with Lucy Hunter Blackburn over the inclusion of sex. When people have bad behaviour around intersex people—particularly my type of person—that is often because of perceived feminine behaviour by people who largely appear to be male. I am sure that, in the perpetrators’ minds, there are issues with sex, what males and females should look like, and how they should behave. There is a broader question to answer about whether there should be some overarching protection of sex.

Becky Kaufmann

I raised earlier the point that, although we broadly support the bill’s consolidation efforts and a degree of uniformity in the approach to hate crime, a variety of groups that experience negative societal behaviour do not do so uniformly and homogeneously.

Contrary to the assertion that Lucy Hunter Blackburn made, I believe that organisations such as Engender, Rape Crisis Scotland and Scottish Women’s Aid have done many years of research and engaged in the process quite well. We as an organisation are quite aware that we have not done that research but that there is an on-going discussion and debate. Personally and organisationally, we would like to see that conversation play out, as a fairly large number of women’s organisations have a range of opinions.

Ultimately, we would support any approach that, within the wisdom of the committee or the misogyny working group, will provide increased protection for women and society.

I hope that that is helpful.

Annabelle Ewing

One issue that has been raised already, among some others, is timing. However, that is something for our further deliberations. I thank the witnesses.

The Convener

One or two people have indicated that they want to come back in, but I have to move on to Fulton MacGregor and James Kelly, because we are rapidly coming up against 1 o’clock. Some members may have to leave for other engagements at that time and I want to ensure that all members get a chance to ask their questions.

Fulton MacGregor

I think that Annabelle Ewing covered the main issues in that line of questioning and most people had a good chance to answer so, with your permission, convener, I will ask a general question that will perhaps allow those who wanted to come back in to make a comment.

Do people have any concerns about the way in which the various hate crime characteristics have been defined? Are there any characteristics, other than the ones that we have already spoken about, that you believe should be added? I will leave it to the convener’s discretion to decide whether he is okay with people who have placed an R in the chat box coming back in.

The Convener

Let us go to Lucy first and then any other witnesses who want to come in.

Lucy Hunter Blackburn

An issue that Andrew Tickell raised—and we have raised it, too—is the approach whereby just a handful of characteristics are listed and those are the only people who are covered. We have mentioned homeless people, as he has, as a group who are often targeted. This is about an aggravator, so it is a part 1 type issue. People are targeted for violence on the streets for being homeless, and there are clearly other groups who are targeted.

If I may, I will take this opportunity to draw to the committee’s attention the alternative models that have been used in New Zealand and a couple of other jurisdictions, which start with a list but then you leave it open ended and say that it is about difference. I absolutely agree that we do not want people to be targeted for violence or abuse in the street or anything like that based on them being different from others, or how they are expected to be.

The New Zealand model offers a more open-ended way of thinking about the matter. It does not tie jurisdictions into having a single set of characteristics under which they have to list who is in and who is out, which can lead to the debates that we are having this morning. The New Zealand model leaves it more open ended. I understand that, under that model, people still have to worry about how to monitor things statistically, but I think that it is a worthwhile model. I hope that the committee will look at the scope for that as an alternative to arguing over precisely who is and is not on a list.

Given the time, I will leave it there.

Claire Graham

Something that keeps coming up this morning is that people should be able to recognise themselves in the legislation. I do not think that “variations in sex characteristics” is a common term among people with differences in sex development, and I am not sure that they would recognise themselves within that or within the definition.

The other point that I wanted to make is that Paul Dutton said that including sex as a protected characteristic might help to include people with variations in sex characteristics, and I think that it is worth exploring that avenue and whether we are protected anyway on the basis of our sex and our differences.

Paul Dutton

On that last point, I do not think that sex is sufficient to protect us, because it is usually assumed to be, in most people’s minds, typically male or typically female.

I wanted to comment on Lucy’s point that it is not necessary to say who is in and who is out. I think that, once people are in and are listed in legislation, we get statistics based on that, and statistics based on reports of crime. They can then also be included in equalities legislation, which at the moment is something of a blank for people like us.

The Convener

Fulton, is there anything else that you want to cover before we move on to James Kelly?

Fulton MacGregor

No, I am quite happy to leave it at that, convener, unless anyone else wants to come back in.

The Convener

Thank you very much, Fulton. James Kelly has the final set of questions.

James Kelly

I am conscious of the time, convener, so I will go straight to Claire Graham on the issue of support for victims of hate crime. Do other measures need to be taken on reporting and on education in order to give greater support to victims?

Claire Graham

That is not something that we have much experience of, because that issue does not seem to be commonly reported by the young people and families we work with.

Extra support for people with variations of characteristics is always welcome, and there is never enough support. That is the only answer that I can give to that.

James Kelly

Okay—thank you for that, Claire. Does anyone else want to come in?

Paul Dutton

It is important to have psychological support for victims. One of the people I was talking to at the weekend was part of the 2009 study. The study concluded that how people experience high levels of emotional distress can reduce psychosocial functioning. That person had cognitive behaviour therapy 35 years after the nightmare that they described they had experienced at school and in the scouts.

I think that psychological support is understated and underrated in a lot of circumstances. Rather than thinking of these as medical or disability issues, we need to take the social and psychological sides into account.

James Kelly

Thank you for bringing that practical example to the committee’s attention. Back to you, convener.

The Convener

I thank all four witnesses for sharing their time and experiences. These matters have obviously affected you all deeply and personally. My sincere thanks for the way in which you have helped the committee to understand the human implications of a number of the issues that we have been trying to talk about during recent weeks.

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Fifth meeting transcript

The Convener

Our second item of business is continued consideration of the Hate Crime and Public Order (Scotland) Bill. We will take evidence from two panels of witnesses. These will be our final evidence sessions on the bill.

Before I introduce the first panel of witnesses, I will say a few remarks to correct one aspect of the record of last week’s oral evidence session.

In evidence to the committee, Lucy Hunter Blackburn referred to stickers that had been displayed at the University of Edinburgh, which said:

“Woman. Noun. Adult human female”.

She told us:

“The Scottish Trans Alliance suggested that people might want to refer those stickers to the police, and the university did so as potential hate incidents.”

Later in her evidence, Lucy Hunter Blackburn said that the Scottish Trans Alliance “encouraged that process” of having the stickers referred to the police.

Responding to that, Becky Kaufmann, who was giving evidence to us on behalf of the Scottish Trans Alliance, said:

“The STA was not approached, and nor did we give any advice to anybody as to whether they should be referred.”—[Official Report, Justice Committee, 17 November 2020; c 58-60.]

The following day, Becky Kaufmann wrote to me via email to correct the record. She wrote in the following terms, which I will quote in full, rather than paraphrasing and risking misrepresenting her. She wrote:

“Since the session, I’ve discovered that I was wrong to say that Scottish Trans Alliance was neither approached, nor did we give any advice, as to whether or not stickers should be referred to the Police.

I am now aware that one of my colleagues was approached by a journalist at the Times on 22nd January 2019 asking for a comment on stickers that had been going up around Edinburgh University campus. My colleague emailed this quote to the journalist:

‘If people feel distressed or alarmed by transphobic stickers they see posted around Scotland, we do encourage them to report this to the Police. It is then a matter for Police Scotland to decide if they record this as a hate crime or not. The reason that we encourage people to report these sorts of incidents is simply that we want to improve trans people’s confidence in approaching the Police if they encounter something that they think may be a crime. Our Scottish LGBTI Hate Crime Report found that just 2% of trans people had reported all incidents they felt may be hate crime to the police—this is unacceptably low.’”

That is the end of the quotation that was given to The Times.

The email goes on to say:

“This comment was not included in the Times in full, and instead what was published was:

‘If people feel distressed by transphobic stickers, we encourage them to report [it] to police. We want to improve trans people’s confidence in approaching the police.’”

Becky Kaufmann concluded her email by saying:

“I apologise for this error yesterday, which was made in good faith—and just wanted to correct what I’d said”.

That is the end of the quotation from the email.

I am grateful to Lucy Hunter Blackburn and Becky Kaufmann for their evidence last week, and I am very grateful to Becky Kaufmann for writing to me to correct the record. The record has now been corrected and I consider the matter closed.

I welcome our first panel of witnesses. We have with us Emma Ritch from Engender, Susan Smith from For Women Scotland and Dr Marsha Scott from Scottish Women’s Aid. I thank the witnesses for their written submissions, which are, as always, available for the public to read on the committee’s web pages. I invite Annabelle Ewing to open the questioning.

Annabelle Ewing (Cowdenbeath) (SNP)

I would like to start our discussions on the non-inclusion in the bill of sex as a hate crime protected characteristic. It would be interesting to hear the views of our witnesses on that, and on whether the current proposed approach, which is to have a working group on misogynistic harassment, is the best way to go. In adopting that approach, could there be a gap in protection while the work of the group plays out?

10:15  



Dr Marsha Scott (Scottish Women’s Aid)

It is worth pointing out that I was instinctively in favour of adding the characteristic of sex as an aggravation when we first contemplated the possibility 10 or 15 years ago. As someone who has spent 35 years working in the women’s rights sector and on violence against women, my gut feeling was that anything that would help people to understand the enormous violation of human rights that violence against women represents was a good thing.

The committee will know from our submission that our assessment of the impact of adding sex as an aggravation for women who are experiencing violence and the more general population would not do those groups any favours. In fact, it might have unintended negative consequences. I have looked at the evidence; although there is not a huge amount of it, what we have indicates that adding sex as an aggravation is not likely to help; I think that it is likely to harm.

There is a gap in protection, but we all know—the committee will know better than I do, certainly in terms of expertise in the law—that an aggravation works only in the context of legislation in which something is against the law. Those laws are in place now; the aggravation will not fill an existing gap.

My biggest concern about adding sex as an aggravation is that we really struggle with women being treated as a minority. The reality is that something much bolder needs to happen in order to turn the very large ship of misogyny and misogynistic crime. If we introduce sex as an aggravation and do nothing else, there is a strong possibility that a lot of folk will tick the box and will say that they have added gender to the aggravation and so do not have to worry about women or the fact that it is theoretically impossible to put the aggravation in place in the context of their deeply safe policy.

We could go on, but we would be back here, at the same place, 10 years from now saying, “Well, that didn’t work.” I am too old for that. We need to do something different, because what we have been doing does not work.

Annabelle Ewing

I will pick up on two points to which Emma Ritch could try to respond.

First, that deals with the statutory aggravation issue, but there is also the issue of the stirring-up offence. In the light of Marsha Scott’s comments, what would be the problem with going ahead with including the characteristic of sex in the bill now, and having the working group look at it as a stand-alone offence?

Emma Ritch (Engender)

Engender and other national women’s organisations are used to working incrementally. I share Dr Scott’s view that when we came to the issue of hate crime, we were instinctively in favour of adding sex as an aggravation. Even if it gives women only a small measure of protection, surely it is worth doing now, rather than waiting for something better to come tomorrow. However, we see four critical risks with going forward with a “Let’s just do this now” approach, while having the misogyny working group, which we welcome and advocated for.

The first of those is the issue with violence against women. It is fundamentally contradictory, according to the analysis of violence against women that Scotland uses, to say that some incidents of violence against women are a product of discrimination or animus on the ground of sex, and some are not. That is just not how we understand violence against women, so such an approach has the potential to undermine equally safe, which is our world-leading violence against women strategy.

The second risk that we see is that Scotland is broadly committed to a bunch of human rights frameworks that are ambitious for women’s and girls’ equality and rights. They include the rights that are set out in the Convention on the Elimination of All Forms of Discrimination Against Women and in the Istanbul convention, which is the Council of Europe’s instrument on violence against women. They are crystal clear that the presumption should be against gender-neutral laws that protect men and women in exactly the same way, and are strongly of the view that a symmetrical approach to incidents of violence against women is likely to harm women and that states should review their practice in that respect.

So, in the absence of a particular purpose for the sex aggravation or sex-based stirring-up offence, we started to consider whether those two things would just be harmful. That leads on to what is, in our view, the third risk, which is legislative and policy inertia. Even when something is not an appropriate or relevant solution and will not do anything for women but symbolise the justice that remains functionally out of reach, it can be satisfying, particularly when we are dealing with things that are as complicated as hate crime and women’s equality and rights. Johann Lamont said something wise and prudent in the debate on the issue, which is that we should recognise the damage that is done if rights appear to exist but are not enforceable. That is so often the case when we look at misogynistic harassment, public sexual harassment and online harassment.

The final risk concerns the baseline position. The evidence from our review of how similar legislation operates around the world shows that hate crime and hate speech are poorly understood in the context of women. Hate crime is understood as being targeted at minority populations and is understood when it comes to race, religion and belief, and sexual orientation—but it is not understood when it comes to women. We think that rushing to legislate in a way that has not met women’s needs in other jurisdictions 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 and their lives. Symbolism cuts both ways.

Emma Ritch (Engender)

Engender and other national women’s organisations are used to working incrementally. I share Dr Scott’s view that when we came to the issue of hate crime, we were instinctively in favour of adding sex as an aggravation. Even if it gives women only a small measure of protection, surely it is worth doing now, rather than waiting for something better to come tomorrow. However, we see four critical risks with going forward with a “Let’s just do this now” approach, while having the misogyny working group, which we welcome and advocated for.

The first of those is the issue with violence against women. It is fundamentally contradictory, according to the analysis of violence against women that Scotland uses, to say that some incidents of violence against women are a product of discrimination or animus on the ground of sex, and some are not. That is just not how we understand violence against women, so such an approach has the potential to undermine equally safe, which is our world-leading violence against women strategy.

The second risk that we see is that Scotland is broadly committed to a bunch of human rights frameworks that are ambitious for women’s and girls’ equality and rights. They include the rights that are set out in the Convention on the Elimination of All Forms of Discrimination Against Women and in the Istanbul convention, which is the Council of Europe’s instrument on violence against women. They are crystal clear that the presumption should be against gender-neutral laws that protect men and women in exactly the same way, and are strongly of the view that that a symmetrical approach to incidents of violence against women is likely to harm women and that states should review their practice in that respect.

So, in the absence of a particular purpose for the sex aggravation or sex-based stirring-up offence, we started to consider whether those two things would just be harmful. That leads on to what is, in our view, the third risk, which is legislative and policy inertia. Even when something is not an appropriate or relevant solution and will not do anything for women but symbolise the justice that remains functionally out of reach, it can be satisfying, particularly when we are dealing with things that are as complicated as hate crime and women’s equality and rights. Johann Lamont said something wise and prudent in the debate on the issue, which is that we should recognise the damage that is done if rights appear to exist but are not enforceable. That is so often the case when we look at misogynistic harassment, public sexual harassment and online harassment.

The final risk concerns the baseline position. The evidence from our review of how similar legislation operates around the world shows that hate crime and hate speech are poorly understood in the context of women. Hate crime is understood as being targeted at minority populations and is understood when it comes to race, religion and belief, and sexual orientation—but it is not understood when it comes to women. We think that rushing to legislate in a way that has not met women’s needs in other jurisdictions 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 and their lives. Symbolism cuts both ways.

Annabelle Ewing

I thank Emma Ritch for that comprehensive answer. I see that Dr Marsha Scott would like to come back in, but I will go to Susan Smith first to get her view, then bring in Marsha Scott before going to my second and final question.

Susan Smith (For Women Scotland)

Thank you, and thank you for the question. The first point is that fundamentally we believe that as long as there is a statutory aggravation model, woman need to be protected, which can be done by adding the category of sex. An issue in recent conversations around transgender identity and women’s sex-based rights is the feeling that if there is no mirror aggravation for sex, women are left exposed.

What some women have described in conversations has been deemed to be hateful and has in some instances been reported as hate crime, but there is no equivalent protection for women. That is important in terms of the contested nature of what constitutes hate, which is a big conversation. I do not want to get stuck on the issue of the stickers, but it is pertinent here.

I am not sure what evidence there is that a stand-alone misogynistic offence would mitigate or reduce the harms that have been identified. The simple fact is that the conversation on this issue has been going on for a very long time. The need for an offence was first identified 17 years ago. Twelve years ago, people from the same organisations were giving the same evidence at committee, and nothing has moved on.

Even if the suggestion is not a perfect solution, it gets things started and gets the ball rolling, and it might well be that a stand-alone working group could come up with something far better, but there is a genuine risk that we will be here in another 12 years with nothing having been proposed or an unworkable proposal.

I note that Lord Bracadale did not think that there are any gaps in relation to offences that need to be covered. A lot of the objections that people have to the aggravation model are objections in general to hate crime using an aggravation model.

Among the issues that keep coming back are data and training. At the moment, there is neither the facility nor the capacity to collect data, and there is no will to collect it.

In the Nottingham trial that started in 2016, misogyny was listed as a hate crime and it was identified that there are issues around understanding of hate crime. Another issue was the definition of misogyny, which was felt to be elitist and academic, and was poorly understood. A lot of the women who were interviewed as part of the research felt that something clearer would have been more appropriate; terminology is critical. Sex as an aggravation is understandable and can be rolled out, and we can consider sexist abuse.

Another thing that came through clearly from the Nottingham trial was that there were pretty universal levels of support. Although it could have been better publicised and better education and a multi-agency approach were needed, victims felt that they had had better support from the police because some of the motivating factors were clearly understood.

In previous panels, witnesses have talked about the need for education and training, and that goes along with starting the ball rolling on legislation such as this. I know that Engender has picked up on the lack of policies around sexist bullying in school, but policies are in place for other forms of bullying. It all needs to be considered in a suite of legislation.

I understand the issue around the domestic abuse aggravator. We try to consult as widely as we can. We have a lot of people in our network from various organisations but, unfortunately, the situation being what it is, a lot of people are nervous about putting their name to anything, although I have some testimony from people in the domestic violence sector about current approaches.

The women whom we speak to feel that there needs to be consultation and that heed needs to be paid to ordinary women’s voices, but I agree that some people feel that that ignores some of the wider harms to women. I understand that. The matter could be covered by a working group that might look broadly at the issues.

One of the most compelling arguments was fed back to us from one of the networks that deal with abuse survivors, which felt that they have not been consulted; they said that

“We are shocked that given the prevalence of violence against women and in the time of the #MeToo movement and ‘The rapist is you!’ movement, we are still being denied the protections we so vitally need. We feel leaving us out will create a hierarchy of oppression, with us at the bottom and as the only oppressed group not included. It will also go against CEDAW. When gender identity is included but not sex, it puts our lives at risk by limiting our access to female-only safe spaces.”

They went on to say that they want guaranteed protection now, not possible protection in months or years that may never come to fruition.

Knowing as we do that hate crime is on the cards and that the Scottish Government wants to legislate in that area, we believe that it is very important that women are not ignored.

10:30  



Another important point is that a sex aggravation is a decision for MSPs as elected representatives; we concur with the Faculty of Advocates on that. The issue came up in a previous debate on the bill, and a number of MSPs—especially women MSPs—said that they strongly wanted to be able to discuss it. If sex is left out of the bill at this stage, MSPs will be denied the opportunity to explore that aspect. It is vital that the matter goes back to our elected representatives, rather than going to a working group of individuals who have been selected by ministers.

Annabelle Ewing

I thank Susan Smith for that long and comprehensive answer. I caution witnesses that each of my colleagues will have their own questions that they want to ask.

I will ask my second question, to which Dr Marsha Scott can respond, followed by Emma Ritch and Susan Smith. I also ask Dr Scott and Emma Ritch to outline the supplementary points that they indicated they wanted to raise. What involvement have you each had thus far with the working group on misogynistic harassment that is to be set up? Would you expect to be involved in its workings?

Dr Scott

We have not had any involvement. As far as I know, nothing has gone forward yet. There has certainly been discussion in round tables and as part of the original consultation process. We very much supported the establishment of a working group and are keen to see it go forward, and we would be happy to participate in the group if and when it is set up.

My supplementary point was that I had meant to mention a significant danger that may arise as a result of adding a sex aggravation. In our experience, there is no evidence that such an aggravation would work. We have strong concerns that, if a sex aggravation were added, it would be another tool for perpetrators of domestic abuse to use in their abuse of women. We are very familiar with perpetrators accusing women of abusing them as part of their controlling behaviour towards women.

We spend an enormous amount of time gathering and sharing evidence about the importance of not arresting a woman when she calls the police for help and a perpetrator has accused her of being the abuser. There are libraries of evidence about how that happens, and we can absolutely see it playing out. We have 36 services around Scotland, and we have heard a consensus of opinion that perpetrators of domestic abuse would use such an aggravation in that way. We are very concerned about the possibility that that would happen, and about the enormous amount of energy that would have to go into the system if we were even to have a chance of preventing it from happening should the aggravation be added.

Emma Ritch

My answer on the question about the misogyny working group is similar to the one that Marsha Scott gave. We advocated for it and are very keen to see its work go forward, and we would be pleased to engage with it. Our conversations with the Scottish Government have not been any more detailed than that. We have asked the Government several times what is happening with the group, and we look forward to the cabinet secretary’s announcement later.

With regard to my supplementary point, I was hoping to speak briefly about data. The Nottinghamshire example has given us some good detail on why some of this stuff just will not work. There has been a very favourable pilot of a hate crime approach in Nottinghamshire. Obviously, those involved were not empowered to change the law, but they treated misogynistic street harassment as important and encouraged women to report it. In the space of two years, in an area with a population of around 1 million people, there were 174 reports, only one of which led to a prosecution, and only 73 of which were categorised as crimes.

The Nottinghamshire example tells us that hate crime is not a concept that tracks easily across to women’s experience of harassment. Even when the police make good-faith efforts and have been trained by expert women’s organisations, that is still not enough to counteract the prevailing understanding of hate crime.

We have seen that in international jurisdictions, too. New Jersey has operated hate crime law for more than 20 years. In that time, there have been just 18 reports of sex-based hate crime, against a comparator of 6,810 for race-based hate crime. The model or concept does not really do anything to address gender-based violence—violence against women—so we need different approaches. That is why we are so pleased that the misogyny working group is going ahead.

Emma Ritch

My answer on the question about the misogyny working group is similar to the one that Marsha Scott gave. We advocated for it and are very keen to see its work go forward, and we would be pleased to engage with it. Our conversations with the Scottish Government have not been any more detailed than that. We have asked the Government several times what is happening with the group, and we look forward to the cabinet secretary’s announcement later.

With regard to my supplementary point, I was hoping to speak briefly about data. The Nottinghamshire example has given us some good detail on why some of this stuff just will not work. There has been a very favourable pilot of a hate crime approach in Nottinghamshire. Obviously, those involved were not empowered to change the law, but they treated misogynistic street harassment as important and encouraged women to report it. In the space of two years, in an area with a population of around 1 million people, there were 174 reports, only one of which led to a prosecution, and only 73 of which were categorised as crimes.

The Nottinghamshire example tells us that hate crime is not a concept that tracks easily across to women’s experience of harassment. Even when the police make good-faith efforts and have been trained by expert women’s organisations, that is still not enough to counteract the prevailing understanding of hate crime.

We have seen that in international jurisdictions, too. New Jersey has operated hate crime law for more than 20 years. In that time, there have been just 18 reports of sex-based hate crime, against a comparator of 6,810 for race-based hate crime. The model or concept does not really do anything to address gender-based violence—violence against women—so we need different approaches. That is why we are so pleased that the misogyny working group is going ahead.

Susan Smith

We have not had any interaction with the working group at all.

We have raised concerns with the Delegated Powers and Law Reform Committee. There was a suggestion that there might be a modification to add interpretive powers relating to the characteristic of sex. We were not entirely sure what that meant, and we wanted to be clear that the definition of sex could not be changed if that characteristic were added.

We also noted the mention of a different provision for different purposes. I do not know whether that could mitigate some of the concerns that have been raised or whether the committee could consider that.

Concerns about domestic abuse being used against victims have been raised in the domestic abuse consultation, but that has not prevented the court approach from being preferred, even though that was raised as a potential issue.

Many people have raised data issues at various committees and feel that there is underreporting. Perhaps that is a problem with hate crime per se, rather than with just one characteristic.

Annabelle Ewing

We have indeed been considering the issue of reporting, too. I thank our witnesses for their responses.

Bill Kidd (Glasgow Anniesland) (SNP)

You have covered a great deal, and it has been very helpful. How might a separate offence of misogynistic harassment work? How would that benefit cases being taken forward?

The Convener

Could you direct your question to a particular witness first?

Bill Kidd

I apologise.

The Convener

Perhaps Emma Ritch could respond first.

Bill Kidd

Yes, please—I was thinking that Emma would be most likely to be able to respond on that.

Emma Ritch

We certainly do not want to anticipate the work of the misogyny working group too much. We hoped that the group would first consider the evidence base. We think that there is some data out there that suggests that women are having an almost universal experience of public sexual harassment. We are also seeing a significant increase in online harassment.

When we were talking to male MSPs about hate crime and misogyny, we got a strong acknowledgement back that they saw the experience of their female colleagues as really significant, noting that there were threats on social media and elsewhere, with some very misogynistic expressions being directed towards female parliamentarians, which was very different from their own experience.

We are increasingly seeing some very serious links between misogyny and terrorism. Some of those have been picked up by expert bodies. In looking at terrorism, we have noted some murders in 2014, and there has been some tracking of the work that was done following the murder in Santa Barbara in 2014. It was identified that 90 murders and significant injuries were attributable to what are known as incel ideologies, which are a subsection of misogyny. This year, federal authorities in Canada have brought terrorism charges against a young man who murdered and injured women in a machete attack, which they also attributed to incel ideology. Therefore, there are real questions about whether we need to look at misogyny in the context of securitisation as well as at what might be seen as much lesser offences relating to police harassment.

It is also vital to consider the question of stirring up hatred and hate speech. In its analysis, the Council of Europe found that, despite the availability of civil, criminal or administrative penalties in member states, there are not many court cases dealing with sexist hate speech. Therefore, we hope that the working group on misogynistic harassment will look at the breadth of evidence across all these distinct experiences and consider where there are gaps in the law and then act to fill those gaps. That would be an evidence-based approach that would, nonetheless, tackle and challenge the most serious forms of misogyny that women face as a constraint on their lives and liberty.

Emma Ritch

We certainly do not want to anticipate the work of the misogyny working group too much. We hoped that the group would first consider the evidence base. We think that there is some data out there that suggests that women are having an almost universal experience of public sexual harassment. We are also seeing a significant increase in online harassment.

When we were talking to male MSPs about hate crime and misogyny, we got a strong acknowledgement back that they saw the experience of their female colleagues as really significant, noting that there were threats on social media and elsewhere, with some very misogynistic expressions being directed towards female parliamentarians, which was very different from their own experience.

We are increasingly seeing some very serious links between misogyny and terrorism. Some of those have been picked up by expert bodies. In looking at terrorism, we have noted some murders in 2014, and there has been some tracking of the work that was done following the murder in Santa Barbara in 2014. It was identified that 90 murders and significant injuries were attributable to what are known as incel ideologies, which are a subsection of misogyny. This year, federal authorities in Canada have brought terrorism charges against a young man who murdered and injured women in a machete attack, which they also attributed to incel ideology. Therefore, there are real questions about whether we need to look at misogyny in the context of securitisation as well as at what might be seen as much lesser offences relating to police harassment.

It is also vital to consider the question of stirring up hatred and hate speech. In its analysis, the Council of Europe found that, despite the availability of civil, criminal or administrative penalties in member states, there are not many court cases dealing with sexist hate speech. Therefore, we hope that the working group on misogynistic harassment would look at the breadth of evidence across all these distinct experiences and consider where there are gaps in the law and then act to fill those gaps. That would be an evidence-based approach that would, nonetheless, tackle and challenge the most serious forms of misogyny that women face as a constraint on their lives and liberty.

Bill Kidd

That is very helpful. Often, one of the worries is that, when a characteristic is included in such a large bill, it might turn out to be little more than symbolic. Therefore, it is important that it is covered in the manner that you have just described.

The Convener

I invite either Marsha Scott or Susan Smith to address that question. There is no obligation to answer.

Dr Scott

I will add—I mean this sincerely, and I am not buttering up the committee—that, if any body were capable of creating a misogyny offence that was sufficiently nuanced and sophisticated to make a difference to the women and girls of Scotland, it would be the Scottish Parliament. I say that because I was deeply involved, as you all know, in the development of the Domestic Abuse (Scotland) Act 2018, which is now being held up as the world’s gold-standard domestic abuse legislation. One of the reasons why it acquired that status was the collaborative work between victims organisations, such as Scottish Women’s Aid, and officials in Government and in the field of justice to understand survivors’ experiences of coercive control and to find a way to embed those in a very complex piece of legislation that reflects a very complex social phenomenon.

I do not know exactly what a misogyny offence should look like, and anybody who says that they do is wrong. However, we have another opportunity to lead the world, and we already have a bit of practice at doing something really difficult in a way that takes us all a step forward. It might sound slightly aspirational, but either we can be back here in 10 years from now, or we can take an uncertain but bold step forward.

The Convener

Susan Smith wants to come in on that. Please be brief, Susan.

Susan Smith

It is perfectly reasonable to have a working group to consider wider and deeper harms, because misogyny is endemic, and it is ignored, which is part of the problem. Finding patterns in behaviour means that you can disrupt those patterns more easily and earlier. It might not be perfect at the moment, but it could be a start in the interim.

Symbolism has been mentioned. If you are looking at symbolism, you must also consider the symbolic impact of saying that, at this point, even though we know that there is an epidemic of violence against women and harassment of women, as a Parliament or as a country, we are content to put off addressing that until an unspecified and, possibly, remote later date.

10:45  



The Convener

On the basis of what she just told the committee, I have one, very specific supplementary question for Emma Ritch. On 27 October, Lord Bracadale told the committee that it seemed to him

“that there was no gap in the law that required to be filled by an offence of misogynistic harassment”.

He went on to say that it was

“difficult to pin down a precise definition of misogyny laws”,

because

“different groups had different understandings of what the term meant.”—[Official Report, Justice Committee, 27 October 2020; c 38.]

Emma Ritch, will you respond quickly, but specifically, to those observations from Lord Bracadale?

Emma Ritch

When Lord Bracadale met Dr Scott and me, he was looking for evidence of gaps in the law, and we were obliged to tell him that we did not know, as there has been no systematic evaluation of that. I am not sure that Lord Bracadale has undertaken such a systematic evaluation, so that is something for the misogyny working group to pick up as a matter of urgency.

I read Lord Bracadale’s evidence to the committee, and I did not hear him speak about the potential links between misogyny and terrorism, specific sub-strands of misogyny or public street harassment. I think that he focused his remarks to the committee on the subject of online misogyny.

With all due regard to Lord Bracadale, I would dispute the extent to which the existing law is working for women. We see epidemic levels of online harassment that have a material impact on women’s lives and wellbeing. We see women experiencing anxiety and sleepless nights, deciding not to enter technology-related professions and choosing to study different subjects at school, not availing themselves of leisure opportunities that are open to them, and deciding to go to different places and do different things due to the fear of online attack and harassment. If the law is considered to cover those areas of life, I am not sure why it is not working for women. Therefore, the misogyny working group should look at the matter with some degree of urgency.

The Convener

All the members of the committee share that sense of urgency, and we will be putting questions about timing, among many other issues, to the cabinet secretary later this morning.

Liam Kerr (North East Scotland) (Con)

I have three quick questions on the definitions, particularly in part 3 of the bill, which have been raised in submissions. I will direct each question to a particular witness, but if anyone else wishes to comment, they can do so.

The first question is for Susan Smith, because there is a specific section on transgender identity in her submission. In a parliamentary question some time ago, I asked the cabinet secretary how gender identity was defined. I got what I felt was a slightly circular answer, which I did not really understand. Susan Smith, as you have referred to it in your submission, will you explain your thoughts on the definition of “transgender identity” in the bill?

Susan Smith

I will concentrate on one of the main concerns, which is the inclusion of cross-dressing in the definition. In preparing for today’s meeting, I came across an interesting freedom of information response that has just come out in relation to correspondence between the Equality Network and the Government on what the definition is. The correspondence says:

“A man who is not a trans woman but wears a dress for a drag performance, or a trip to the Rocky Horror Picture Show, or because he feels an emotional need to cross-dress occasionally”.

There are several points to make. First, the reference to cross-dressing is evidently there to protect men, because it is hard to think of circumstances in which a woman might be considered to be a cross-dresser. It is also setting up a scenario in which, if a man and a woman wear the same costume and go to see “The Rocky Horror Picture Show”, and the man is the victim of a crime, that would be a hate crime. However, when the case goes to court, the woman could potentially be asked what she was wearing. There is a bizarre and, frankly, sexist base to that.

Then there is the issue of why one set of people is being protected for what is essentially sartorial choice and others are not. There are plenty of examples of people being attacked for what they are wearing, such as Goths, and for having facial tattoos, body piercings, the wrong football strip or the wrong school uniform. Why is one dress sense being protected but not another? The rationale given was that it might be because those ways of dressing are assumed to be trends, but I think that that should be captured anyway so that somebody is assumed to have a protected characteristic and to have the protection of that law. I do not think that that is an excuse.

The other issue is that, at one extreme, cross-dressing can be dress sense and at the other it can be a paraphilia. It is listed as such in the Diagnostic and Statistical Manual of Mental Disorders. Sometimes it is accompanied by a crossover with other indicators for offences. Therefore we get the quite bizarre situation where something that might be done for purposes of arousal is being protected under a hate crime law.

Then there is Glasgow Life’s policy last year, which was quite an extraordinary situation. Glasgow Life was openly advocating that cross-dressers—who, as we have seen, the Equality Network says might just be dressed up to go to a party or a Rocky Horror Picture Show event—could access the female changing rooms at its facilities. The policy states that, if women objected to that—and I think we can all see quite good reasons why women might object—the policy should be explained to them and, if they continued to object, a hate crime report could be filed.

It is obvious that this can be used—it is how it is proposed that it can be used—as a weapon against women.

One of the other issues is the different—

Susan Smith

I will concentrate on one of the main concerns, which is the inclusion of cross-dressing in the definition. In preparing for today’s meeting, I came across an interesting freedom of information response that has just come out in relation to correspondence between the Equality Network and the Government on what the definition is. The correspondence says:

“A man who is not a trans woman but wears a dress for a drag performance, or a trip to the Rocky Horror Picture Show, or because he feels an emotional need to cross-dress occasionally”.

There are several points to make. First, the reference to cross-dressing is evidently there to protect men, because it is hard to think of circumstances in which a woman might be considered to be a cross-dresser. It is also setting up a scenario in which, if a man and a woman wear the same costume and go to see “The Rocky Horror Picture Show”, and the man is the victim of a crime, that would be a hate crime. However, when the case goes to court, the woman could potentially be asked what she was wearing. There is a bizarre and, frankly, sexist base to that.

Then there is the issue of why one set of people is being protected for what is essentially sartorial choice and others are not. There are plenty of examples of people being attacked for what they are wearing, such as Goths, and for having facial tattoos, body piercings, the wrong football strip or the wrong school uniform. Why is one dress sense being protected but not another? The rationale given was that it might be because those ways of dressing are assumed to be trends, but I think that that should be captured anyway so that somebody is assumed to have a protected characteristic and to have the protection of that law. I do not think that that is an excuse.

The other issue is that, at one extreme, cross-dressing can be dress sense and at the other it can be a paraphilia. It is listed as such in the Diagnostic and Statistical Manual of Mental Disorders. Sometimes it is accompanied by a crossover with other indicators for offences. Therefore we get the quite bizarre situation where something that might be done for purposes of arousal is being protected under a hate crime law.

Then there is Glasgow Life’s policy last year, which was quite an extraordinary situation. Glasgow Life was openly advocating that cross-dressers—who, as we have seen, the Equality Network says might just be dressed up to go to a party or a Rocky Horror Picture Show event—could access the female changing rooms at its facilities. The policy states that, if women objected to that—and I think we can all see quite good reasons why women might object—the policy should be explained to them and, if they continued to object, a hate crime report could be filed.

It is obvious that this can be used—it is how it is proposed that it can be used—as a weapon against women.

One of the other issues is the different—

Liam Kerr

Forgive me for interrupting, Susan—I am just aware of the time that we have. I will move on to my next question, which is for Emma Ritch. If you have something to say on the back of that, perhaps you can indicate that and come back in.

Susan Smith raised an interesting issue, which, in responding to this question, Emma Ritch might also look to respond to. In a parliamentary question some time ago, I asked the cabinet secretary where I could find the definitions of “non-binary persons” and “persons who cross-dress”, which is what the bill refers to. The cabinet secretary’s answer—I will paraphrase it, but anyone can look it up, as it is in a public document—was basically that definition was unnecessary. He said, “it is not ... necessary” to define those terms. Emma Ritch, do you have a comment on that? Is that a sufficient and fair answer or should there be a separate definition?

Emma Ritch

I cannot speak for the cabinet secretary. When there was a suggestion, in the context of the initial consultation on the Gender Recognition Act 2004 by the Scottish Government, that the term non-binary be in some way added to the Equality Act 2010, Engender’s view was that that needed very careful scoping out by the lawyers who worked on women’s equality and rights. We are very concerned that women’s protection from sex discrimination is not confused by any interjection around other protected characteristics.

The question about definition is a matter for my colleagues who work in LGBT rights organisations. Engender works around the issues of women’s equality and rights, and I will stay in our lane, if I may.

Liam Kerr

Of course. If no one else wants to comment on that, I will put the final question to Dr Scott. It is similarly on definitions. In section 14(6)(b) of the bill, there is talk of

“persons of a different sex”.

That differs from the definition of the reference to “sexual orientation” in the Offences (Aggravation by Prejudice) (Scotland) Act 2009—which refers to “the opposite sex”. I will put that to the cabinet secretary later, because I do not quite understand why a different term is being used, but do you take a view on the use of “a different sex” as opposed to “the opposite sex” or is that not a significant issue, Dr Scott?

Liam Kerr

Of course. If no one else wants to comment on that, I will put the final question to Dr Scott. It is similarly on definitions. In section 14(6)(b) of the bill, there is talk of

“persons of a different sex”.

That differs from the definition of the reference to “sexual orientation” in the Offences (Aggravation by Prejudice) (Scotland) Act 2009—which refers to “the opposite sex”. I will put that to the cabinet secretary later, because I do not quite understand why a different term is being used, but do you take a view on the use of “a different sex” as opposed to “the opposite sex” or is that not a significant issue, Dr Scott?

Dr Scott

Either all the implications of that are going completely over my head or it is not a significant issue. Those are my two choices at the moment.

Liam Kerr

That is a very fair answer, Dr Scott. Unless Emma Ritch or Susan Smith want to comment on that, I will hand back to the convener.

The Convener

Do the witnesses want to share any reflections with the committee about the way in which the bill tackles the stirring up hatred offences? Emma Ritch, I heard you say to Liam Kerr that you want to stay in your lane, so you might not want to say much about that. It is completely up to you. In particular, do you have any reflections on the relationship between tackling hate crime and protecting fundamental rights, such as privacy and freedom of expression?

Emma Ritch

We have a general interest, as all citizens do, in seeing the stirring up hatred offences in part 2 balance the need to protect minority groups from hate with the need for persons, especially those from marginalised groups, to articulate their views, including feminist speech. Organisations that advocate for equality and rights have all defended causes that are sometimes unfashionable, and, sometimes, offence is caused to some groups. We should not criminalise that or make a veiled threat of criminality. In our written evidence, we suggested that the bill be amended to replace the current freedom of expression provisions with a more generalist freedom of expression protection that is not absolute but which applies equally to all characteristics, which would be enabling.

There is potentially also a job of work for the Government to do to communicate the purpose of that part of the bill to the citizens of Scotland. Witnesses have talked about the language of the bill being clear, but normal people do not need to memorise the text of legal restrictions, so what the public understands by the bill will be critical. I will leave my comments there.

Dr Scott

I do not really have anything to add. We are so far from having a language, even in this setting, in which we can talk about many of these issues with shared assumptions and definitions. It is a long path to get to a place where the general public moves in the same direction and we have a law that is useful in people’s everyday lives. Beyond that, it is about finding a way to get there rather than saying that we know how to do it right now.

Susan Smith

We would prefer to see part 2, almost in its entirety, dropped, because it is hugely complicated to try to untangle some of the issues there. We see the case for a separate bespoke solution for racial hatred, because racism is and continues to be an animated force, and it is differentiated by a degree of political organisation. However, in some of the other categories, the nature of hate is contested. Accusations have been levelled at us for all kinds of reasons simply for talking about sex and biology. The problem is that those are sometimes given a degree of legitimacy by people, including MPs and MSPs.

Only this week, Amnesty International Ireland made a quite extraordinary comment about a group in Ireland. It objected to the fact that the group was defending biology and said that it should have no legitimate political representation.

At that point, the granddaughter of Seán MacBride, who won the Nobel prize and was one of the founders of Amnesty, heavily criticised the group and said that its comments were contrary to what Amnesty was supposed to do. That shows just how difficult it can be when people start throwing out accusations of hate, especially when those people are perceived to have authority. We think that there will be a chilling effect—there has been already.

11:00  



It does not have to come to trial. I take on board previous comments that if standards of evidence are high, a trial might not end in a conviction. However, that is not always the main issue. It is often about what happens way before people get to trial. There have been cases where women have been questioned away from young children and sometimes sick children. The first trial on transphobic hate in England was held last year and the case was against a transsexual person. Miranda Yardley, the person on trial, described it as 10 months of hell. The stirring up part of the bill has the potential to make life very much harder for many people and make it easier for others to use the law as a weapon.

An issue that is not particularly in our lane, but which came up in our consultation, is the need to consider learning difficulties in the disability section of the bill. There have been cases where people with Asperger’s have made comments. There was a case in North Wales last year in which someone with Asperger’s was fined for having committed a hate crime. Disability charities have said that sometimes people with Asperger’s can make blunt comments without really understanding that as hate speech.

When we are talking about inflammatory language, stirring up hatred and abuse, we have to be extremely careful that there is cover for categories including antipathy, dislike and ridicule, so that, in introducing the law, we are not potentially introducing a new blasphemy law and opening the door to the limitation of freedoms. Freedoms are so important.

The Convener

Thank you for those views, which the committee will take on board. We have about eight minutes left and there are two other members who wish to ask questions.

John Finnie (Highlands and Islands) (Green)

I will be very brief. I have asked about the use of statutory aggravations as the core method of prosecuting hate crime in Scotland. Do panel members have any views on that? The bill is consolidating legislation and, without revisiting some of the early discussion, can I ask whether there is anything that we are missing out?

Dr Scott

I am sorry, John, but I do not really understand your question.

John Finnie

I apologise. Are you content with the continuation of the statutory aggravation model as a form of prosecution? Are there any categories that we should be considering for inclusion in the statutory aggravations?

Dr Scott

Do you mean in addition to those that have already been raised?

John Finnie

Yes.

Dr Scott

First, it is clear to me that the aggravator model is not terribly effective. I have some concerns about the aggravator that we included in the Domestic Abuse (Scotland) Act 2018—that makes it sound as though I was the one who wrote it, but of course I did not. However, that discussion is probably for another day. I have big questions about how effective aggravations are as a tool in creating community change. Secondly, I only have an opinion about whether we add sex. I cannot think of another area that I would want to throw in.

Susan Smith

There clearly are some issues with the model and many people have raised them. The committee might consider whether we should keep those categories of aggravation or whether the bill should just cover any crime that can be proven to be motivated by prejudice or hatred. Broadly, there are a lot of issues with the aggravator model.

Emma Ritch

I have heard a number of witnesses talking about the inclusion of sex as though it is a matter of fairness or equality. I want to correct the misapprehension that equality involves treating all protected groups in the same way. In fact, even in the Equality Act 2010, which is standout, banner equality legislation, protected characteristics and protected groups are not all treated the same. Different provisions in that act relate to different groups, contingent on the experiences that they have. For example, the equal pay elements relate to sex, but not to other protected characteristics. There are protections for pregnancy and maternity, as well as for disabled people, that do not apply to other groups.

I urge the committee to resist the tempting narrative that sex should be included in the bill for equality reasons. A real equality approach would be to treat women and misogynistic harassment in the way that the evidence suggests that they should be treated, which is what we are advocating for.

I do not have any further comments on statutory aggravations. They are demonstrably not working for women in other jurisdictions around the world. I notice that they have not been tried and tested in a lot of other places because of that, per the excellent paper submitted to the committee by Professors Leverick and Chalmers. I urge the Scottish Parliament to align with other jurisdictions that have looked at statutory aggravations and seen how ineffective they would be for women and have gone in a different, and as Marsha Scott described it, bold and ambitious direction.

Rona Mackay (Strathkelvin and Bearsden) (SNP)

In addition to legislation, what more do the witnesses think needs to be done to support victims and tackle crimes that target women? I am thinking in terms of engagement with organisations such as those that the witnesses represent, resourcing support services and seeking to change attitudes in general. Are we progressing in changing those societal attitudes? If so, how?

Dr Scott

That is often the elephant in the room with these kinds of conversations. We all know that legislation is not a panacea and it is never a silver bullet. It is only as effective as the enabling environment in which it operates. The domestic abuse legislation is a good example of that.

To steal Bill Clinton’s phrase, “It’s the economy, stupid”—which will tell you how old I am—I would say, “It’s the gender mainstreaming, stupid.” There are still so many indications that officials and public sector professionals across Scotland do not understand gender inequality and women’s inequality. Dislodging and challenging gender stereotypes and holding ourselves and officials accountable for robust and confident equality impact assessments are the kinds of things that will help to create an enabling landscape that—should we have an effective misogyny law—would allow Scotland to leap forward. By themselves, none of those things will effect change.

Emma Ritch

I agree with everything that Marsha Scott said. I add that we have been talking about the issue of hate crime and women for about five years now, and we talked to women and women’s organisations a lot. I know that the Scottish Women’s Convention has run a programme of engagement on the issue with women across Scotland.

One of the messages that constantly comes back is that women do not think that decision makers and the criminal justice system understand the extent and level of sexism that women face in every aspect of their lives. Some of the bill feels as if it tinkers around the edges rather than engaging with the core issue.

Marsha Scott is quite right to point at gender mainstreaming. In Scotland, the public sector equality duty is supposed to really transform women’s lives, but it does not do so at the moment, and that is something for parliamentarians to keep an eye on in the next session.

I am heartened by the moves to incorporate CEDAW into Scots law. To have that minimum standard of women’s rights will be profoundly transformational if Scotland can make it work. I urge parliamentarians to keep their eye on that, too, as we move into a new session of Parliament.

Scotland can be hugely ambitious when it comes to tackling egregious forms of violence against women and sexism, as we have seen with the Domestic Abuse (Scotland) Act 2018, which gave Engender and other national women’s organisations hope that we could do something similarly transformational with misogyny offences. We could take bold steps that other nations have, as yet, failed to take and grasp the nettle of where harassment of women is at.

Susan Smith

There clearly need to be multi-agency approaches and more needs to be done on changing attitudes. We absolutely agree that CEDAW needs to be incorporated in, and put at the heart of, everything that is done in Government. However, when we talk about things such as the public sector equality duty or equality legislation, we have to be able to talk about women as a sex class and, unfortunately, we are currently prevented from doing so, and messages are coming from the top that make women’s lives extremely difficult.

One of the biggest reasons that women get attacked online is their standing up for their sex-based rights, and we are not seeing the support, either from Government or indeed from the national women’s organisations, to enable that conversation to take place. That needs to change.

The Convener

I thank Emma Ritch, Susan Smith and Dr Marsha Scott for their evidence. It has been genuinely helpful to all members of the committee to hear what you have shared with us. I thank you for your time, and your patience and forbearance earlier while we were trying to sort out our technical glitches.

11:13 Meeting suspended.  



11:15 On resuming—  



The Convener

I welcome our second panel: Humza Yousaf, the Cabinet Secretary for Justice, and two of his officials, Bill Brash and Philip Lamont, who are with him in person. Online, we are joined by a further four officials from the Scottish Government: Jo Gillies, Rachael Wilson, Clare McKinlay and Patrick Down. You are all very welcome.

Cabinet secretary, as usual, we will direct all our questions to you, but if you want to bring in your officials at any point, I will leave that to you. I understand that you want to make a short opening statement.

The Cabinet Secretary for Justice (Humza Yousaf)

I thank the committee for inviting me to give evidence for a second time on the Hate Crime and Public Order (Scotland) Bill. I have heard with interest the evidence that has been presented to the committee over the past four weeks. I remain committed to taking the opportunity to shape legislation so that it is fit for the 21st century and, most importantly, affords sufficient protection for those who need it.

It is clear that many of the committee’s witnesses focused on what the bill will mean for their continued right to free expression, whether through religious, artistic and cultural practices, public debate, or the simple expression of opinions or beliefs.

It is also clear that the vast majority of witnesses welcomed the changes that I outlined to Parliament in September, which will make intent to stir up hatred an essential part of the new stirring up hatred offences. However, a number of witnesses presented concerns. I have always said that I will listen to all voices that engage in the debate, and I have carefully listened to and watched the evidence that has been presented. I will set out a couple of my reflections on the evidence.

Section 4, on the performance of plays, clearly sets out when directors and presenters of plays can be held criminally liable if a performer commits an offence of stirring up hatred. I recognise the concerns of the performing arts community that the provision appears to single it out, and the anxiety that that has caused. The Public Order Act 1986 includes a similar provision and on that basis section 4 was included in the bill. However, the evidence that the committee heard has led me to conclude that section 4 can be removed from the bill. We also accept that neglect on the part of a director or presenter of a play is too low a threshold for criminal sanction in such a case.

You have heard evidence from, among others, the Law Society of Scotland, the Faculty of Advocates and Dr Andrew Tickell about general criminal law rules regarding criminal liability of those who aid, abet, counsel, procure or incite the commission of a criminal offence. I will seek to remove section 4 from the bill, and instead look to apply existing rules on aiding and abetting an offence.

My second point relates to section 11 and freedom of expression of religion. Many witnesses, including those from faith groups, have indicated that the current provision in section 11 should be more closely aligned with the equivalent provision in England and Wales under the 1986 act. We will propose amendments to the provision to cover the absence of religious belief, and to clarify that mere expressions of antipathy, dislike, ridicule and insult are not, on their own, criminal behaviour.

I am committed to working with Parliament to ensure that hate crime law is effective, while protecting freedom of expression, and I will continue to reflect on other areas of the bill as stage 1 reaches its conclusion.

Finally, I know that, before my appearance today, the committee took evidence from a range of women’s organisations. I am keen that we make progress on the working group that will advise us in relation to a potential stand-alone offence of misogynistic harassment, and the use of the power to add sex as a characteristic to the hate crime scheme. This morning, I am able to announce that the working group will be chaired by Baroness Helena Kennedy. Baroness Kennedy has extensive experience and knowledge in relation to women and the legal system and will provide a strong independent perspective for our important work in that area.

I have had an initial discussion with Baroness Kennedy—she is hugely enthusiastic and ready to start on that important work. I will be discussing further with her a detailed remit, membership and timescales for the group, so that that vital work can move at pace. I am delighted to have someone of Baroness Kennedy’s stature and integrity leading that important piece of work.

I am happy to conclude there and to take any questions that the committee might have.

The Cabinet Secretary for Justice (Humza Yousaf)

I thank the committee for inviting me to give evidence for a second time on the Hate Crime and Public Order (Scotland) Bill. I have heard with interest the evidence that has been presented to the committee over the past four weeks. I remain committed to taking the opportunity to shape legislation so that it is fit for the 21st century and, most importantly, affords sufficient protection for those who need it.

It is clear that many of the committee’s witnesses focused on what the bill will mean for their continued right to free expression, whether through religious, artistic and cultural practices, public debate, or the simple expression of opinions or beliefs.

It is also clear that the vast majority of witnesses welcomed the changes that I outlined to Parliament in September, which will make intent to stir up hatred an essential part of the new stirring up hatred offences. However, a number of witnesses presented concerns. I have always said that I will listen to all voices that engage in the debate, and I have carefully listened to and watched the evidence that has been presented. I will set out a couple of my reflections on the evidence.

Section 4, on the performance of plays, clearly sets out when directors and presenters of plays can be held criminally liable if a performer commits an offence of stirring up hatred. I recognise the concerns of the performing arts community that the provision appears to single it out, and the anxiety that that has caused. The Public Order Act 1986 includes a similar provision and on that basis section 4 was included in the bill. However, the evidence that the committee heard has led me to conclude that section 4 can be removed from the bill. We also accept that neglect on the part of a director or presenter of a play is too low a threshold for criminal sanction in such a case.

You have heard evidence from, among others, the Law Society of Scotland, the Faculty of Advocates and Dr Andrew Tickell about general criminal law rules regarding criminal liability of those who aid, abet, counsel, procure or incite the commission of a criminal offence. I will seek to remove section 4 from the bill, and instead look to apply existing rules on aiding and abetting an offence.

My second point relates to section 11 and freedom of expression of religion. Many witnesses, including those from faith groups, have indicated that the current provision in section 11 should be more closely aligned with the equivalent provision in England and Wales under the 1986 act. We will propose amendments to the provision to cover the absence of religious belief, and to clarify that mere expressions of antipathy, dislike, ridicule and insult are not, on their own, criminal behaviour.

I am committed to working with Parliament to ensure that hate crime law is effective, while protecting freedom of expression, and I will continue to reflect on other areas of the bill as stage 1 reaches its conclusion.

Finally, I know that, before my appearance today, the committee took evidence from a range of women’s organisations. I am keen that we make progress on the working group that will advise us in relation to a potential stand-alone offence of misogynistic harassment, and the use of the power to add sex as a characteristic to the hate crime scheme. This morning, I am able to announce that the working group will be chaired by Baroness Helena Kennedy. Baroness Kennedy has extensive experience and knowledge in relation to women and the legal system and will provide a strong independent perspective for our important work in that area.

I have had an initial discussion with Baroness Kennedy—she is hugely enthusiastic and ready to start on that important work. I will be discussing further with her a detailed remit, membership and timescales for the group, so that that vital work can move at pace. I am delighted to have someone of Baroness Kennedy’s stature and integrity leading that important piece of work.

I am happy to conclude there and to take any questions that the committee might have.

The Convener

Thank you for those opening remarks. As you noted, cabinet secretary, the amendments to the stirring up hatred offences that you proposed and announced in Parliament in September have been welcomed by most, although not by all, of our witnesses. However, the majority of our witnesses told us that, in addition, further amendments to part 2 of the bill, which deals with those offences, will be required. I will ask you some detailed questions about two of those suggestions.

Many witnesses have called for the word “insulting” to be removed from the bill. Having heard the evidence that we have been given, what are your thoughts on that?

Humza Yousaf

Thank you, convener. I did not get to listen to that evidence session, but I read the report afterwards. I continue to pay close attention. When I came to the committee’s first evidence session, I said that it is exceptionally important that we listen and give weight to all views but that it is important to give additional weight to those who are often the victims of a particular hate crime. There is a justification for treating the offence of stirring up racial hatred differently from the other offences. You are absolutely right that it goes against legal purity—I accept that. Some would suggest that it could create a hierarchy, and that is not an unfair suggestion. However, there is a justifiable case for treating race differently. Two thirds of all hate crime in Scotland is related to race. There is no denying the prevalence of racial hate crime in Scotland, let alone in other parts of the United Kingdom.

Removing the word “insulting” would mean that Scotland would then be the only legal jurisdiction in the UK that did not have “insulting” as part of the legal threshold. In England and Wales, “insulting” continues to be part of the legal threshold for the stirring up of racial hatred. In Northern Ireland, the word “insulting” is retained. Therefore, there would be the perception at least that Scotland had the weakest offence of stirring up racial hatred at the same time as racial hatred offences making up two thirds of all hate crimes.

I listened to the evidence and, as you say, there were many people, particularly from the legal fraternity, who raised concerns. On the flipside of that, given that I talked about giving weight to those most affected, it was significant and important to note that, when Danny Boyle from BEMIS, Dr Jenny Galbraith from the Coalition for Racial Equality and Rights, Kevin Kane from YouthLink Scotland and Amy Allard-Dunbar from Intercultural Youth Scotland gave evidence, they all supported the retention of “insulting” in the threshold. I am not quoting them verbatim but summarising their position.

The Convener

Yes, they did, and you are right to record that. I will put two particular pieces of evidence to you on that point and invite you to reflect on them. You said that the legal fraternity—I think that that is the term that you used—was strong on that point. Lord Bracadale himself is strong on that and Roddy Dunlop, speaking on behalf of the Faculty of Advocates, is strong on it. The two pieces of evidence that I want to put you were obtained from Assistant Chief Constable Ritchie and from Anthony McGeehan from the Crown Office and Procurator Fiscal Service. On the inclusion of the word “insulting” in the offence of stirring up racial hatred, ACC Ritchie said:

“It makes 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 37.]

Therefore, the inclusion of the word “insulting” on the criminal statute book makes the operational function of police officers enforcing the law more difficult. What are your thoughts on that?

Humza Yousaf

First, we always listen to the comments of Police Scotland because, from an operational point of view, of course, it is hugely important that we do not make life any more difficult for the police. What I would say to Police Scotland—of course, I will continue the conversation with it—is that the insulting threshold has been in law since 1986 and I have not, to this day, in my role as Cabinet Secretary for Justice, come across officers who have told me that they have found the application of that law challenging or difficult. Of course, what is in the bill is not an exact replication of what is in the Public Order Act 1986, because we have talked about—and I am sure that we will get into—issues such as the dwelling defence. However, it has been in operation for 34 years and Police Scotland has not expressed to me that it has encountered any difficulties from an operational point of view.

The Convener

I hear what you say about the fact that the word is in the 1986 act, but the committee has been told, as you will know, that just because something is in the 1986 act, that is no reason for it to be in the hate crime bill that is before us.

Just this morning, you pointed out that there will be yet more differences between the 1986 act and the bill, given that you now propose to remove the provision in section 4 of the bill regarding theatres, plays and public performances, even though it appears in the 1986 act. The fact that something is in the 1986 act is not, in itself, a good reason for putting it in the bill.

I put to you what Anthony McGeehan from COPFS said, which echoed what Lord Bracadale had already told the committee on 27 October. Mr McGeehan said:

“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.”—[Official Report, Justice Committee, 3 November 2020; c 39.]

The word “insulting” was removed from section 5 of the 1986 act, and Lord Bracadale recorded that that did not diminish the ability of prosecutors at all to act effectively and appropriately. If the removal of that word from the statute book would make no material difference to what the Crown can prosecute, why do we want to keep it in the bill?

Humza Yousaf

I have two points to make. I am not suggesting that, simply because something is in the 1986 act, it has to be in the bill. You asked me a question, based on a police officer’s evidence, about what difference it would make to the operation on the ground. My analysis is that, if it has not presented an operational problem so far, despite being an offence and a threshold for nearly 35 years, why would it suddenly present such a problem now? I am happy to take up that question with Police Scotland offline. The point is not simply that something that is in the 1986 act should be in our bill—it is an operational point.

On your second question, I do not disagree with the legal purity of the argument, nor do I disagree that it may not take away from the Crown’s ability to prosecute. I have always said that, at the very least, there is a perception among those who are targeted most by racial hatred that the bill would be weakened or diluted if the word “insulting” was removed. Those are not just my words. Dr Jennifer Galbraith from the Coalition for Racial Equality and Rights said:

“We, too, have significant concerns about that—we agree that its removal would dilute those protections, even outside the legal context. In reality, with regard to people’s everyday lived experience, it could have a potential harmful effect on black and minority ethnic communities in Scotland.”—[Official Report, Justice Committee, 17 November 2020; c 31.]

Danny Boyle from BEMIS—

The Convener

I understand that that perception is held, and I have no doubt that it is honestly and genuinely held. However, it is an inaccurate and incorrect perception. The prosecutors, and Lord Bracadale, have told us that the removal of the word would make no material difference to what the Crown is able to prosecute. Yes, the perception exists in the communities to which you referred, but it is inaccurate, is it not?

Humza Yousaf

I am sure that you would agree that public confidence in the law is hugely important. If those who have been afforded protection under the 1986 act for the best part of 35 years perceive that the law is being weakened in that regard, and that it is weaker than it is in England and Wales and in Northern Ireland, that perception alone could be damaging. I do not disagree with the legal purity of your argument that the removal of the word “insulting” may not have a material impact in terms of prosecution, but that is not the only factor to be considered. Public perception and confidence in the law are also exceptionally important.

The Convener

They are, but so is the confidence of the police that they know what they are doing when they enforce criminal offences that are passed in legislation by this Parliament.

Humza Yousaf

I agree. The police have enforced the provisions in the 1986 act for nearly 35 years without there having been—as far as I can tell, although I am happy to take the discussion with the police offline; I have spoken to them about the matter already—any significant operational issues on the ground during that time.

The Convener

I have asked about the word “insulting”, which I wanted to do. I will now move to the word “abusive” which, as you know, appears elsewhere in the bill. We have heard evidence on the term, suggesting not that it needs to be removed from the bill but that it at least needs to be defined in the bill, ensuring that it is an objective, not a subjective, standard. What is your position on the notion that the word “abusive” needs to be defined, to ensure that it is objectively understood in the context of the bill?

11:30  



Humza Yousaf

Taking a Scottish perspective, you know only too well that there has been an offence of threatening or abusive behaviour for the past 10 years. It has been prosecuted without much challenge as far as the definitions of “threatening” or “abusive behaviour” have been concerned—certainly, not that has come to my attention.

In your previous question, you referred to the Crown Office, and its evidence to the committee regarding the word “abusive” was that it was a very familiar, well-understood concept in Scottish criminal law—I am paraphrasing slightly. That was also the view of the Faculty of Advocates. I am not convinced that there has to be a definition of “abusive”. As you know, where there is not a definition, the ordinary meaning of the word is taken. I am not convinced that there is a need for such a definition.

Remember that there is a second part to the test, as we are all aware, particularly for the new offences, which will only be about intent. There is an additional safeguard there when it comes to the threshold for the offence. Having listened to the evidence thus far, I am not convinced that there is a need to define “abusive”.

The Convener

Would any harm be done by defining “abusive” in an objective way? For example, in oral evidence to the committee on 17 November, Tim Hopkins from the Equality Network suggested, in quite strong terms, that he thought that “abusive” must be interpreted in an objective way. He suggested that a way of doing that would be to amend the bill such that it said

“that behaviour or material is abusive if a reasonable person would, in all the circumstances of the case, consider it to be abusive.”—Official Report, Justice Committee, 17 November 2020; c 6.]

What harm would be done by an amendment such as that? If no harm would be done by an amendment such as that, why not lodge one?

Humza Yousaf

I would say a couple of things in response to that. First, as I should have said at the very beginning, we will of course continue to reflect on the evidence that was given, and on any recommendations for amendments.

This is the law of unintended consequences: if we have a definition, anything that falls outside that definition would not be included. Therefore, we must ensure that, if we are going to include a definition of “abusive”, it must absolutely capture all the behaviour that we want it to capture. That could be challenging, whereas I see no reason why the ordinary meaning of the word “abusive”—its dictionary definition—cannot be used or would not be well understood.

I will continue to reflect on the evidence, but I remain open minded about any amendments that are lodged regarding the word “abusive”. As I say, however, it has not seemed to cause a problem in relation to the Equality Act 2010, which has been prosecuted thousands of times by our courts over the past 10 years, and I am not sure that it would present a problem in the bill.

The Convener

We will move on to consider the free speech provisions in sections 11 and 12 of the bill, to which you referred in your opening remarks. Liam McArthur will pick up the questioning.

Liam McArthur (Orkney Islands) (LD)

Good morning, cabinet secretary. You referred to the subject in your opening remarks, and you gave some more detailed evidence on it last month. You have said that you are open minded about considering both a broadening and a deepening of the safeguards relating to freedom of expression under sections 11 and 12.

I am sure that you will have seen the evidence that we have received. It is fair to say that it was broadly supportive of the provisions, although some concerns were expressed by a number of witnesses about the practicalities of delivering them. Have you had an opportunity to reflect on the evidence? What are your intentions leading up to stage 2?

Humza Yousaf

I thank Liam McArthur for those questions. He will have heard my opening remarks, so will know that we are happy to deepen the freedom of expression provisions around religion, and I will lodge amendments at stage 2 to that effect.

The evidence that the Justice Committee took demonstrated the challenge that lies in widening the freedom of expression provisions: many different organisations and stakeholders came up with different formulations of freedom of expression provisions that they thought would satisfy them. That demonstrates the problem: many different approaches can be taken, and they all have their pros and cons.

The short answer is that we are still reflecting on the issue. I am certain that we will make further changes to the freedom of expression provisions, but at this stage I cannot tell you exactly how they will be formulated.

Humza Yousaf

I thank Liam McArthur for those questions. He will have heard my opening remarks, so will know that we are happy to deepen the freedom of expression provisions around religion, and I will lodge amendments at stage 2 to that effect.

The evidence that the Justice Committee took demonstrated the challenge that lies in widening the freedom of expression provisions: many different organisations and stakeholders came up with different formulations of freedom of expression provisions that they thought would satisfy them. That demonstrates the problem: many different approaches can be taken, and they all have their pros and cons.

The short answer is that we are still reflecting on the issue. I am certain that we will make further changes to the freedom of expression provisions, but at this stage I cannot tell you exactly how they will be formulated.

Liam McArthur

That is helpful—in a sense. I detect from your response that there is perhaps a cooling of the idea that broadening the protections is likely to form part of the Government’s thinking at stage 2. Obviously, it is up to members to lodge amendments, but at this stage you are looking only to deepen the provisions in relation to religion; you are not minded to go further in that regard or in relation to the broadening of the protection.

Humza Yousaf

I am not sure what gave Mr McArthur that impression—I would not describe it as a cooling at all. We are still very actively exploring how we might satisfy the concerns of the many stakeholders who want either further or expanded freedom of expression provisions. We have been able to do that with religion, because we can align it closely with the English and Welsh provisions. With regard to the other freedom of expression provisions that a number of organisations want, we just have to think a little more carefully about how to do that. I would definitely not describe it as a cooling; we are still very much actively exploring the issue.

Liam McArthur

Okay. I will move to section 4. There was a brief exchange earlier about some of the concerns that have been raised with us around the implications of the bill for plays and other public performances in theatres. Relevant witnesses have told us that they do not believe that there is any need for the bill to make separate provision in that regard. Do you agree that section 4 could safely be omitted, on the basis of what the committee has been told?

Humza Yousaf

I am not sure whether Liam McArthur was able to hear all my opening remarks, but I indicated that we will lodge amendments at stage 2 to remove part 4 of the bill, having reflected on the evidence—

Liam McArthur

Section 4.

Humza Yousaf

Section 4, not part 4—thank you. We definitely do not want to get rid of part 4 of the bill—that is staying.

It is a policy choice to remove section 4. Members might remember that, in my first evidence session, James Kelly asked me a question about section 4, and I tried to explain why I thought that it was important in terms of criminal liability. However, I also made the point that we might reflect further on the issue of neglect, because at that point the argument that the threshold was too low seemed persuasive.

I hope that removing section 4 will address the concerns of a number of those in the performing arts. In particular, we have reflected carefully on the evidence that was given by the legal and performing arts communities when they came before the committee.

Liam McArthur

I apologise for not picking that up. I am pleased that you have managed to resurrect part 4 of the bill, having inadvertently excised it.

The Convener

Thank you, Liam. Moving from one Liam to the other, I call Liam Kerr.

Liam Kerr

Good morning, cabinet secretary. I will take you to section 6, entitled “Powers of entry etc with warrant”. In our evidence sessions, you will have heard that some witnesses have concerns about the scope of police powers to investigate allegations of stirring up hatred. Having heard that evidence, are you satisfied that police powers of entry, search and seizure are appropriately circumscribed in the bill, or is there more to be done?

Humza Yousaf

I was interested in that discussion. I notice that Police Scotland felt that, from an operational perspective, the power to search under warrant was “fairly traditional”.

The committee took remarkably helpful evidence from the Crown Office, which went into detail around the application of the warrant. It is not simply a matter of a police officer saying that they need a warrant and the court granting it; much deeper consideration takes place. Police Scotland said in evidence that police officers will need to ensure that

“the evidence is compelling or convincing enough to take to”

a court

“in order to get a warrant in the first place.” —[Official Report, Justice Committee, 3 November 2020; c 42.]

I will not read it out in full, but the Crown Office’s evidence in the same session was exceptionally important in mitigating some of the concerns that have been raised. For example, the Crown Office dealt with the concern raised by the Scottish Police Federation around police staff, particularly in relation to forensics.

I am satisfied with the power that is set out in the bill. The question whether that power should be time limited is worthy of further consideration post stage 1.

Liam Kerr

That power of course operates in circumstances in which there has been a report and an investigation has taken place.

However, we have heard quite a lot of evidence about the chilling effect that could happen. Having heard the evidence, do you think that the bill could have a chilling effect on writers, journalists and artists, particularly given people’s fears about investigation, such that it might cast a long shadow?

Humza Yousaf

I certainly hope that that does not happen. To go back to the question of perception, I accept that there could be a perception that the bill restricts people’s freedom of expression or restricts journalistic expression, which is why we will move to make changes to restrict the new offences to “intent” only and remove the “likely” limb. The fact that there was, at the very least, a perception that the bill might infringe people’s freedom of expression persuaded me in that regard. We would not want people—particularly journalists and writers—to self-censor. That is not what the bill is about.

I hope that the changes that I propose to make at stage 2, including those that I announced today, will help to mitigate any concerns about there being a chilling effect on free speech.

Liam Kerr

My final question about section 6 relates to the point that you have just made. The bill contains a reasonableness defence. Having heard the evidence, what changes do you think still require to be made to the way that the bill provides for that defence? Such changes would perhaps reassure people in the way that you have just described.

Humza Yousaf

We will move to having intent only, so I am not sure that there is a need to make substantial changes to the reasonableness defence, although I again look forward to reading what the committee’s stage 1 report says in that regard.

I could flip the question and ask for an example of a case in relation to the new offences in which somebody’s behaviour was threatening or abusive and intended to stir up hatred in a way that was reasonable. I raised that in my first evidence session but, to this day, I have not been given a good answer.

I also noticed the evidence from the Faculty of Advocates in relation to the reasonableness defence. Roddy Dunlop, the dean of the faculty, said that

“the difficulty with non-exhaustive lists is where to stop before you become exhausted.”—[Official Report, Justice Committee, 3 November 2020; c 11.]

The dean has a good way of putting such matters, and I thought that his point was well made. That would be my concern about introducing a non-exhaustive list.

I will continue to listen to the evidence and will read the recommendations on the issue from the committee in its stage 1 report.

Annabelle Ewing

In relation to possible defences and exceptions, the issue of the dwelling house exception has been raised, with people citing the Public Order Act 1986. However, at the same time, we heard that the Law Commission of England and Wales is proposing the removal of the dwelling house exception.

We have heard evidence from both sides. Some folk are uneasy; in contrast, we heard evidence from Michael Clancy of the Law Society of Scotland who said that he thought that, for most aspects of the criminal law, there was no sanctuary in relation to what happens in a dwelling house—and nor should there be. He felt that that should be the case in regard to hate speech, too.

11:45  



We also heard from Dr Andrew Tickell, who made essentially the same point—that the criminal law does not stop at the doors of the dwelling house—although he recognised, for example, that common-law breach of the peace requires a public element. Taking that evidence into account, would the cabinet secretary be prepared to consider an amendment to the effect that, at the very least, there would have to be some sort of public element to the conduct at issue?

Humza Yousaf

I preface my remarks by saying again that I will give serious consideration to an amendment lodged by any member or a recommendation in the committee’s stage 1 report.

Listening to the evidence from the legal experts that Annabelle Ewing has just mentioned, and the evidence from the operational partners, I found that the majority of them were robust in relation to concerns about a so-called dwelling defence. Annabelle Ewing has quoted some of that evidence. It is also important to say that Police Scotland noted that it is not unusual to see crimes of such significance that although they occurred in the home, there could not be a dwelling defence. In Police Scotland’s view, a dwelling defence should not apply. There were a number of views from the legal fraternity as well as from the operational partners, and they did not agree with a dwelling defence.

However, I take the point that a number of stakeholders wish to see a dwelling defence. I have met many of them, including the Christian Institute. I will continue to listen to the arguments on the question of there being a public element to any offence. I would be interested to see how that could be defined. Annabelle Ewing mentioned breach of the peace as an example. If an amendment were lodged in that respect, I would consider it.

The area where I can see the most persuasive argument for some sort of safeguard would be around the offence of stirring up racial hatred, where the threshold continues to be “likely”; it does not require intent only. At the moment, the offence also has the “insulting” threshold—if that is how the bill ends up. If there was one area of the bill where there could be an additional safeguard that I would be open minded to, it would probably relate more to the offence of stirring up racial hatred.

Annabelle Ewing

It is encouraging to note that the cabinet secretary will reflect further on the issue should the committee wish to make a particular point. As a matter of information, in respect of the evidence given by Dr Tickell, the relevant case on the public element of common-law breach of the peace is Harris v HMA, which was decided in 2009. I am sure that the cabinet secretary’s officials are aware of that, but they might wish to study it in greater detail.

The Convener

I have a couple of supplementary questions before I bring in John Finnie, who has questions on a different area.

Cabinet secretary, the proposed amendments that you announced today were trailed in the Sunday press and, in particular, in an interview that you gave to Dani Garavelli in Scotland on Sunday. I hope that I am quoting from that article correctly. It said that the bill

“could not—as some have claimed—be used to target dinner table conversation”,

but it could be used in relation to events organised in a private home. I cannot remember now whether that is an exact quotation or a paraphrase of what the article said, but is it your understanding that the bill

“could not ... be used to target dinner table conversation”?

Humza Yousaf

It depends what is meant by “target”. Forgive me, but I would need to check whether that is a quotation.

For me, the bill is not about specifically targeting dinner table conversations. Of course, if someone sitting around the table with 10 mates stirs up hatred in a way that meets the threshold for the new offences—in that the behaviour is threatening or abusive, and is an attempt to stir up hatred—and that can be proven beyond reasonable doubt, they could be prosecuted under the offence. There is no dubiety around that.

The Convener

What you have just said is also my understanding of what the bill would entail, which is different from what was written about it in the papers on Sunday. Thank you for clarifying that. At least we understand the bill in the same way as far as that is concerned.

I have a final supplementary question on the stirring-up offences, which comes on the back of Liam Kerr’s question. As you know, the committee has heard evidence about the way in which those who want to argue about the meaning of the word “woman” have been brought to the attention of the police on the basis of that being a hate crime. I ask a straightforward question: could the bill, if enacted in its current form, be used to criminalise the expression of the opinion that biological sex is immutable?

The Convener

What you have just said is also my understanding of what the bill would entail, which is different from what was written about it in the papers on Sunday. Thank you for clarifying that. At least we understand the bill in the same way as far as that is concerned.

I have a final supplementary question on the stirring-up offences, which comes on the back of Liam Kerr’s question. As you know, the committee has heard evidence about the way in which those who want to argue about the meaning of the word “woman” have been brought to the attention of the police on the basis of that being a hate crime. I ask a straightforward question: could the bill, if enacted in its current form, be used to criminalise the expression of the opinion that biological sex is immutable?

Humza Yousaf

No. It may be an opinion that is offensive to some or controversial to others; for many others, it may be absolutely the mainstream view. However, simply expressing the opinion is not in itself criminal. If it is proved beyond reasonable doubt that the behaviour that accompanies that expression was intended to stir up hatred and was also threatening or abusive, a person may well face a criminal sanction. That would not be down to the perception of any particular victim or individual in society, but would follow an objective analysis by the courts. Therefore, expressing an opinion by saying that a trans woman is not a woman would not in itself lead to a prosecution under the legislation.

The Convener

What if someone was not merely expressing an opinion but campaigning for the position to be understood that biological sex is immutable? Are there certain circumstances in which you can imagine such campaigning being prosecuted? Unless we take great care to ensure that the term “abusive” is objectively and not subjectively understood—and you are resisting a proposed amendment at the moment—might campaigning on a position that says that biological sex is immutable be caught by the terms of the bill?

Humza Yousaf

I do not think that you are doing so intentionally, but you are not referencing the second part of the objective test, which is that there has to be an intent to stir up hatred. Even if someone could argue that a course of behaviour was abusive, under the bill, that in itself would not be enough to lead to a stirring-up offence. It would have to be proven beyond reasonable doubt in a court of law that the behaviour of that person or organisation was intended to stir up hatred. If someone is campaigning in a non-threatening and non-abusive manner, without the intent to stir up hatred, I do not see how that would be captured as an offence under the bill.

The Convener

Thank you—that is helpful. I will pass over to John Finnie, who has been waiting patiently, as he always does.

John Finnie

I want to ask about the continued use of statutory aggravations, which has been widely welcomed. We all want to do our very best, and we are keen to ensure that there are no unintended consequences and that we do not miss anything out. On the question of age, you might be aware of the generality, if not the detail, of work commissioned by the Justice Committee following our inquiry into elder abuse. The research was undertaken by Dr Hannah Bows of Durham law school. I will quote from it selectively. She says:

“There is insufficient evidence to support the introduction of a statutory aggravator of ‘age’ or ‘elder abuse’ ... absolutely no evidence that violence/abuse against older people is usually, often, or even sometimes committed by offenders who have a hatred of, or hostility towards, older people.”

In her report, Dr Bows gives examples from other jurisdictions where that aggravation is barely used at all, or is not used in some instances. Can you comment on that? Of course we want to do our very best, but we want evidence on why that aggravator is included.

John Finnie

I want to ask about the continued use of statutory aggravations, which has been widely welcomed. We all want to do our very best, and we are keen to ensure that there are no unintended consequences and that we do not miss anything out. On the question of age, you might be aware of the generality, if not the detail, of work commissioned by the Justice Committee following our inquiry into elder abuse. The research was undertaken by Dr Hannah Bows of Durham law school. I will quote from it selectively. She says:

“There is insufficient evidence to support the introduction of a statutory aggravator of ‘age’ or ‘elder abuse’ ... absolutely no evidence that violence/abuse against older people is usually, often, or even sometimes committed by offenders who have a hatred of, or hostility towards, older people.”

In her report, Dr Bows gives examples from other jurisdictions where that aggravation is barely used at all, or is not used in some instances. Can you comment on that? Of course we want to do our very best, but we want evidence on why that aggravator is included.

Humza Yousaf

Similar to my response to the question on race, I point out that the evidential base is incredibly important, but so, too, are the voices of those who are often impacted. Mr Finnie will have noticed that there was support for an age aggravator right the way through the spectrum of organisations that have an age concern, from Youth Scotland to Age Scotland. The calls and the voices of those who represent the real life experience of people on the ground must be given sufficient weight.

In the current climate in which we live, if we take into account a number of factors, such as the age demographics of how people voted in various referendums, including on Brexit and on Scottish independence, or how the virus and the global pandemic that we are in the midst of has affected younger and older people, unfortunately, it would not be hard to envisage that people could be targeted in an unpleasant or unsavoury way because of their age.

We will continue with an age aggravator in the bill for those reasons. Of course, that was recommended by Lord Bracadale, too. I am always happy to look at evidence papers, and the committee will make stage 1 recommendations, but I would be keen to keep the bill as it is in relation to an age aggravator at this stage.

John Finnie

I will raise another, linked issue. Lord Bracadale recommended that the Government consider the creation of an aggravation covering exploitation and vulnerability. His view is that that would not fit into the scope of hate crime and should be looked at separately. The policy memorandum says:

“In the longer term, the Scottish Government will consider whether there should be reforms to the criminal law to improve the protection available to people who may be at increased risk of becoming victims of crime because of their vulnerability”.

What gap are you trying to fill, or what gap would be filled by doing that? Can you give examples? Given that this is a consolidation bill, is it the vehicle to address any gap that you are seeking to fill?

Humza Yousaf

Forgive me if I am misunderstanding John Finnie’s view, but he and I perhaps have different interpretations of what Lord Bracadale said. My understanding on the question of vulnerability is that Lord Bracadale thought that the issue of people being exploited because of their vulnerability should be looked at, but not in the framework of hate crime—I see John Finnie nodding at that. Lord Bracadale did not view that as hate crime per se, but he believed that people can be targeted because of their perceived vulnerability. I would align myself with his opinion. He asked the Government to look at that outwith the hate crime framework. I am happy to do that. Vulnerability should be considered, but, frankly, I need to get this hate crime bill through the door and passed through the Parliament.

On the age aggravator, that is about prosecuting someone in relation to hatred because of a person’s age—perhaps because of their youth or because they are older. That is different to being targeted due to a perceived vulnerability, which might be because a person is frail, has a physical disability or some other impairment, or because of contextual factors that could make a person vulnerable. Vulnerability is different, which is why Lord Bracadale rightly suggested that that should be viewed outwith the prism of hate crime.

John Finnie

Will the cabinet secretary humour me with the argument that it could be said that age is about arithmetic and that it is a figure? We should be covering what Lord Bracadale talked about—exploitation and vulnerability—rather than something that is simply based on age.

12:00  



Humza Yousaf

I accept that some 80-year-olds might look 80 and that some might look a lot younger—or older—than that, and that they might be targeted in different ways because of how they look. However, that does not take away from the fact that there are a number of examples, as I know from speaking to relevant stakeholders, of people who are targeted because of their perceived age—if not their actual age—so it is important to add an aggravator in that regard.

I do not know whether Philip Lamont wants to add to what I said, particularly around the age aggravator.

Philip Lamont (Scottish Government)

I do not have much to add. I confirm that, when the vulnerability aggravation was suggested, Lord Bracadale was clear that that was not a hate crime, because it was opportunity, not prejudice, that motivated it—the doorstep scam is an example of that. He certainly recommended that the Government should consider it, but not in the context of this bill.

John Finnie

I commend to the cabinet secretary Dr Hannah Bows’ research, which is about that issue. If someone is going to snatch a person’s handbag, they might do it because of that person’s age or they might do it simply because of their propensity to commit a crime of that nature. In the examples of jurisdictions that have an age aggravator, it is not used; it is the principal offence that is dealt with, and age is a factor to be considered in sentencing.

I will leave it there, convener.

The Convener

Thank you, John. I want to pick up on this line of questioning. One of the characteristics that some witnesses have suggested should be considered for inclusion in the bill is that of homelessness. It is not clear to me whether offences against those who sleep rough on the street are offences that are motivated by prejudice or by vulnerability. It might be that categories exist wherein vulnerability and prejudice overlap and are not quite so clearly distinguished. Have you considered whether homelessness ought to be added as a hate crime characteristic?

Humza Yousaf

It was considered. Lord Bracadale refers to it in his report and he makes what I think is quite an important distinction. I do not disagree with what you say, convener—there can be characteristics wherein an overlap potentially exists in relation to vulnerability and other factors.

However, hate crime and the protected characteristics that we have are different to the societal or socioeconomic factors that can change over time—and we often hope that they do change over time. You and I, and all the other MSPs around this table—virtually or otherwise—have people who are homeless come to us regularly. We do our best to get them a house and a secure tenancy, so that, we hope, they can move on from that homelessness status.

I cannot do that with my race or religion; it is difficult to do so with a disability and so on. Socioeconomic factors will often change, so they are different to the protected characteristics that we have in place. I am again willing to take this conversation further if the stage 1 report and other stakeholders recommend that we do.

Rona Mackay

My line of questioning throughout these sessions has been on race, but I think that we covered that extensively at the start of the session. I agree with the cabinet secretary that the removal of the word “insulting” with regard to race would, in essence, dilute the bill and send out the wrong message.

Does the cabinet secretary agree that the purpose of the bill, despite a large amount of often misinformed hype around it, is to give reassurance to victims that hate crime of any kind is not acceptable in Scotland and that the law will always protect them?

Humza Yousaf

Ultimately, that is correct. However, I recognise that people have expressed concerns around how far the bill will go in relation to freedom of expression, which I do not dismiss. The bill is about protections from hate crime, but it is also about giving as much reassurance as we possibly can that people’s freedom of speech, expression and so on is protected.

I have often said that I do not think that there has to be conflict between the two ideas: they can work hand in hand and we can get the balance right. People could give few examples of legislatures with almost unfettered freedom of expression—the United States, with its constitution, is probably one of them. However, in many other countries across the world—in the western world and Europe in particular—there is hate crime legislation. It is absolutely vital to afford people protections in relation to hate crime, but I do not want to, nor would I, dismiss people’s concerns about getting the balance right in relation to freedom of expression.

The Convener

On the subject of race, if the existing offence of racially aggravated harassment is to be retained, why not consolidate it in the bill?

Humza Yousaf

I am open minded to looking again at section 50A of the Criminal Law (Consolidation) (Scotland) Act 1995. The questioning on that was helpful. Unless I am mistaken, and I am happy to look again at the transcript, I do not think that the question about section 50A was asked of the race groups that you had before you, because it would have been interesting to have heard their perspective.

The only reason that we would not consolidate racially aggravated harassment is because it would not fit in with the hate crime framework. Again, I am happy to pass over to Philip Lamont or Bill Brash to give more detail on that.

Philip Lamont

That is a stand-alone offence. As the cabinet secretary has indicated, if the committee was of the view that it should be retained as part of this set of hate crime laws, that can be considered as a stage 2 amendment.

The Convener

That is helpful.

As no other member wants to ask about race, or about that offence, we will move on to other hate crime characteristics.

Annabelle Ewing

I will turn to the issue that formed much of our discussion with our first panel of witnesses. I do not know whether the cabinet secretary had an opportunity to listen to all or part of that.

As the committee has noted over the weeks, notwithstanding Lord Bracadale’s recommendation that the characteristic of sex be included as a hate crime characteristic, thus far it has not been formally included in the scope of the bill. Could the cabinet secretary take the opportunity today to explain his rationale for that? Perhaps he could pick up on some of the points that were raised in our earlier evidence session, if he had an opportunity to listen to it.

Humza Yousaf

I hope that the member will forgive me, but I was at a different committee this morning. I caught some of the evidence session towards the end, but I probably missed the substantial part of the discussion.

In terms of my view on the matter, I hope that I gave an indication in my first evidence session before the committee that I would be open minded to hearing views from committee members, the committee and stakeholders, because I can certainly understand the concerns of a number of stakeholders about the omission of a statutory aggravator in relation to sex.

I could not say whether the committee has definitely heard this evidence, but I am certain that if Emma Ritch and Dr Marsha Scott were giving evidence, they would have pointed to what they believe to be some of the risks relating to such a statutory aggravator, such as how that might be misused by a domestic abuse perpetrator and how—this is a point on which Engender holds particularly strong views—the evidential basis for it is weak.

Ultimately, I have listened to the largest and most established stakeholders when it comes to women and women’s rights in Scotland—Scottish Women’s Aid, Rape Crisis Scotland, Zero Tolerance and Engender. They were pretty unanimous in their view that a statutory sex aggravator could potentially do more harm than good.

I could have just removed that aspect from the bill and not created an order-making power in that regard, but I was keen that that issue be revisited in greater detail, hence the committee’s evidence sessions and the work that the working group on misogynistic harassment will do. I would like the working group to look at that issue. Having spoken to Baroness Kennedy, I know that she is keen to make progress in that regard and to look at the issue. Of course, the order-making power in the bill would allow the aggravator to be added at any point in the future.

Annabelle Ewing

A lot of the evidence that we heard was interesting, particularly from Emma Ritch, who cited pieces of evidence that I would like to go away and have a look at in more detail in order to get a better handle on the risks that she raised, particularly those of unintended consequences. Of course, we would not want to do anything that would make the situation worse than it is for women. Obviously, the committee will reflect on all those matters.

On the proposed working group on misogynistic harassment, I welcome the announcement that it is to be chaired by Baroness Helena Kennedy. That is a great coup, if I may say so, on the part of the Scottish Government, because her track record speaks for itself.

Can the cabinet secretary share any information about the likely membership and remit of the group and, in particular, the timescale for its work? A point that emerged clearly this morning is that we do not want to be hanging around discussing the intricacies of the issue in 10 years’ time. We need to move forward with some urgency. With that in mind, is the cabinet secretary in a position to advise us on those matters?

Annabelle Ewing

A lot of the evidence that we heard was interesting, particularly from Emma Ritch, who cited pieces of evidence that I would like to go away and have a look at in more detail in order to get a better handle on the risks that she raised, particularly those of unintended consequences. Of course, we would not want to do anything that would make the situation worse than it is for women. Obviously, the committee will reflect on all those matters.

On the proposed working group on misogynistic harassment, I welcome the announcement that it is to be chaired by Baroness Helena Kennedy. That is a great coup, if I may say so, on the part of the Scottish Government, because her track record speaks for itself.

Can the cabinet secretary share any information about the likely membership and remit of the group and, in particular, the timescale for its work? A point that emerged clearly this morning is that we do not want to be hanging around discussing the intricacies of the issue in 10 years’ time. We need to move forward with some urgency. With that in mind, is the cabinet secretary in a position to advise us on those matters?

Humza Yousaf

I hope that Annabelle Ewing will forgive me, because I will be a little bit coy in that I have appointed Baroness Kennedy to take on the work and it is really important that she directs the work of the working group and that it is free from ministerial interference. Therefore, she should determine the membership.

We have certainly had initial discussions on the remit. I mentioned in my first evidence session with the committee some of the phasing of the working group and what I thought that it would need to consider with regard to the evidence base that it must gather and with regard to the detailed mapping of the law as it stands to determine whether there are any gaps in that area. Thereafter, it will make proposals. However, the detail of the remit and the membership are for Baroness Kennedy to decide.

On the timescale, I agree with Annabelle Ewing. I caught the latter bit of the evidence from the representative of For Women Scotland, when she said that discussions on the issue have happened over the past decade, or even longer, and that she does not wish for them to continue for another decade. That is a reasonable point to make. I can give Annabelle Ewing an assurance that, when Baroness Kennedy and I spoke yesterday afternoon, there was certainly no desire to dither or delay and that we were agreed that the work should progress at pace.

Annabelle Ewing

I thank the cabinet secretary for that answer. We hope—I imagine—that, in the weeks to come, further announcements will be made on all the issues that I have raised with him.

The committee has also heard evidence and differences of opinion on the best approach to variations in sex characteristics. Covid makes it difficult to remember which week is which, but I think that it was last week when we heard views expressed by dsdfamilies—“dsd” stands for differences of sex development—which did not seem convinced that the approach in the bill is the best one. I am sure that you have already seen reference to that in the Official Report of our evidence session. Furthermore, dsdfamilies also felt that it had not been given a fair hearing to ensure that its view was expressed. Can you respond to that?

Humza Yousaf

On the latter point, I am happy to continue to engage with any stakeholder, so if dsdfamilies does not feel that we have engaged with it, we can pick that up. I also note that dsdfamilies has provided a written submission, in response to the Justice Committee’s call for evidence, so I was very aware of its views on the back of that. Although I absolutely respect its opinion, it is fair to say that a number of stakeholders hold a different view and agree that “variations in sex characteristics” is the right term to use—terminology can be really difficult and challenging, and I have no doubt that we will have further discussions on that—and that there should be an aggravator that covers those variations in sex characteristics.

That does not take away from anything that dsdfamilies said about the need for greater physical and mental health support not just for the children who may be affected by variations of sex characteristics, but for their parents. The two things are not mutually exclusive. We can give that support as well as having an aggravator. We will continue to engage. There may be disagreement about our approach, but that will not prevent us from engaging.

12:15  



Humza Yousaf

On the latter point, I am happy to continue to engage with any stakeholder, so if dsdfamilies does not feel that we have engaged with it, we can pick that up. I also note that dsdfamilies has provided a written submission, in response to the Justice Committee’s call for evidence, so I was very aware of its views on the back of that. Although I absolutely respect its opinion, it is fair to say that a number of stakeholders hold a different view and agree that “variations in sex characteristics” is the right term to use—terminology can be really difficult and challenging, and I have no doubt that we will have further discussions on that—and that there should be an aggravator that covers those variations in sex characteristics.

That does not take away from anything that dsdfamilies said about the need for greater physical and mental health support not just for the children who may be affected by variations of sex characteristics, but for their parents. The two things are not mutually exclusive. We can give that support as well as having an aggravator. We will continue to engage. There may be disagreement about our approach, but that will not prevent us from engaging.

12:15  



Annabelle Ewing

I welcome the cabinet secretary’s comment that he will continue to engage with dsdfamilies Scotland, which raised issues that go beyond the scope of the bill. I hope that those issues can be given consideration because I am aware that the organisation has been raising them for quite some time.

The Convener

There are several members waiting to come in, but Liam Kerr has a brief supplementary question. Is it directly on the same topic, Liam?

Liam Kerr

Yes, it is about the terminology. You may have heard me ask this question earlier, cabinet secretary. Section 14(6)(b) of the bill talks about persons of “a different sex”, but the Offences (Aggravation by Prejudice) Scotland Act 2009 and the Equality Act 2010 refer to persons of “opposite sex”. Why is there a difference in terms? Would it be better to use “opposite” for consistency and to avoid the inevitable legal argument that something different is meant by the use of the word “different” as opposed to “opposite”?

Humza Yousaf

My officials will jump in and tell me if I am wrong, but “a different sex” was the term that was used in the Marriage and Civil Partnership (Scotland) Act 2014. I will double check that. As you say, terminology changes and evolves. The issue is that “opposite” would suggest that there are only two options—A and its opposite, B—but that might not fit people who are non-binary and who do not feel opposite to a male or opposite to a female. The term “different” is seen by equality organisations as being more inclusive, particularly of non-binary people. That is why we are using the term. I would be happy for any of my officials to come in to add to that point.

Bill Brash (Scottish Government)

What the cabinet secretary has said is correct. Rachael Wilson may want to come in on that.

Rachael Wilson (Scottish Government)

I do not have much to add. However, I would clarify that the Marriage and Civil Partnership (Scotland) Act 2014 uses the term “mixed sex” rather than “different sex”, although the principle is the same. I note that the Equality Network and Stonewall Scotland were supportive of the move away from the term “opposite sex” and towards a more inclusive approach, just as the cabinet secretary suggested.

Humza Yousaf

I am sorry—the term “mixed sex” was used in the Marriage and Civil Partnership (Scotland) Act 2014. Different terms are used in different acts, and I understand Liam Kerr’s concern about the potential for confusion, but the term “different” has been used because it is seen as being more inclusive of non-binary people.

Liam Kerr

I am grateful for that answer.

The Convener

Liam McArthur has a supplementary question on the appointment of Baroness Helena Kennedy.

Liam McArthur

I join others in welcoming the appointment of Baroness Kennedy. I have no doubt that she is absolutely the right person for the job and will pull together the remit and membership in a way that can give us confidence that the issues will be drilled into. The concern, which was raised with you when you last appeared before the committee, cabinet secretary, is the timeframe. I hear what you are saying about Baroness Kennedy getting things done without undue delay, but the concern across the committee is the level of oversight that the Parliament will have of any recommendations that are made. Although I am certain that those recommendations will be well founded, I am sure that you will accept the real need for Parliament to be engaged in robust scrutiny of the proposals, given their significance and potential ramifications.

Humza Yousaf

I completely accept the concerns that Liam McArthur raises. As the bill stands, we are proposing an affirmative procedure. We could possibly consider a superaffirmative procedure, whereby there would also have to be a consultation, if an order-making power were enacted. There is scope to consider the issue further, in order, I hope, to address concerns that members may have about parliamentary scrutiny.

Liam McArthur

The ability to take evidence and to test the proposition as fully as possible will be essential, so I welcome that assurance. We will probably have to return to that.

The Convener

Still on the topic of hate crime characteristics, John Finnie, Fulton MacGregor and Bill Kidd have questions. I will take them in that order.

John Finnie

Thank you, convener. As my colleagues have questions, I will ask just one specific question, on something that the cabinet secretary might be aware of. It relates to calls from the Equality Network, BEMIS and others 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 collation and disaggregation across all characteristics covered by the Hate Crime and Public Order (Scotland) Bill.”

We have heard about the importance of that throughout our evidence taking. Are you considering developing such a bespoke system?

Humza Yousaf

To answer briefly, I am very sympathetic to the proposal. However, as I have said before in response to questions from committee members, there could be an implication with regard to information technology systems for our stakeholders—Police Scotland and the Crown Office and Procurator Fiscal Service, in particular. That might come at some financial cost, which we would have to factor into any revised financial memorandum. Therefore, the implications of such a system for disaggregated data and the potential for a legal duty on disaggregated data in the bill are being discussed with partners, and I am open minded about further consideration of the matter.

Fulton MacGregor (Coatbridge and Chryston) (SNP)

The cabinet secretary will be aware that the Scottish Commission for Learning Disability has called for specific recognition of learning disability in the listed characteristics. What are your views on that? Have you heard the evidence that the committee received on that? On a similar point to John Finnie’s question, even if it is not listed as a separate hate crime characteristic, do you agree that disaggregated data for hate crime focused on different types of disability should be available?

Humza Yousaf

Learning disability is covered by the current definition of “disability”, so we do not need a separate category. The definition of “disability” in the bill includes

“a physical or mental impairment of any kind.”

Therefore, a separate category is not necessary. On the second point, I go back to what I said to John Finnie. We need a greater level of disaggregation, which should include, but not be limited to, disability. We will reflect on that and continue to have conversations with stakeholders.

Fulton MacGregor

I apologise for the wee bit of doubling up on the questions. On my second question, I asked you about this on your first appearance before the committee, cabinet secretary, and, now that we have heard all the evidence, I wonder whether your view is the same. Is the Government open to considering the possibility of adding further hate crime characteristics? The convener has already spoken about homelessness, but the committee has also been asked about refugees and asylum seekers. I will give you the opportunity either to reiterate your point from the first evidence session or to say that the Government is reconsidering the matter.

Humza Yousaf

My view on that is the same. Of course, we always continue to reflect on the evidence, but, as things stand—and Lord Bracadale referred to this in his report—the existing definitions cover asylum seekers and refugees. Therefore, at this stage, I do not see the need for a separate aggravator.

Fulton MacGregor

Thank you. I have no more questions, convener. I apologise to Bill Kidd if I have taken up time on issues that he wanted to speak about.

The Convener

Do you want to add anything, Bill?

Bill Kidd

No, that is fine—and there is no problem, Fulton. These are incredibly important issues and, whoever brought them up, what matters is that the committee got decent answers. Thank you.

The Convener

In that case, we will move on.

Liam Kerr

I want to turn to costs—something that I have explored throughout our evidence sessions. As a prelude to that, cabinet secretary, I noticed that, in your answer to John Finnie, you talked about a need to revise the financial memorandum.

You will recall that, the previous time that you appeared before the committee, I asked about the costs to the Scottish Courts and Tribunals Service. I understand that there was a meeting on 9 September between the SCTS and the Crown Office and Procurator Fiscal Service to resolve issues on recording offences aggravated by prejudice against particular characteristics. What are your thoughts on the outcome of the meeting? Are you content that costs are sufficiently accounted for?

Humza Yousaf

Let me make it clear that a revised financial memorandum is nothing unusual—for example, after stage 2 amendments have been passed that change the nature of a bill and increase the financial burden on organisations or, indeed, the Government. When I talk about a revised financial memorandum, it is in the context of the normal course of a bill’s passage, and particularly stage 2.

To answer your question I would need to look at the notes of the meeting, but I can tell you that I speak to the Scottish Courts and Tribunals Service at least every fortnight and that I raised those matters with the chief executive, Eric McQueen, earlier this month. He gave me a strong indication that they are being resolved well by the implementation team at SCTS and the Government and that he does not think that there are any significant issues. Clearly, everyone is waiting to see how the bill is amended at stage 2, which might have implications for that discussion, but Eric McQueen certainly seemed to be in a more positive place.

Liam Kerr

On a similar point, it is obviously important—regardless of how the bill is amended—that the police and others who apply the law get appropriate training. The other side of that, which I think came up earlier, is that the public need to understand what the bill says and what their rights and responsibilities are. What discussions has the Scottish Government been having with the various agencies in that regard?

Humza Yousaf

We speak extensively to Police Scotland about the implications of the bill, including for training and IT systems. Your point is well made, and it is worth reminding ourselves that the vast majority of hate crime will still be prosecuted under the statutory aggravations in various parts of the legislative framework—with the exception of age, which is the aggravator that we are adding. The vast majority of hate crime is investigated and prosecuted under the statutory aggravation model, so we would not see a need for particular additional training—although that is not to say that there will be no training; I think that there will be some.

I was persuaded by the answer that the committee received from Police Scotland on the matter and by Police Scotland’s evidence to the Finance and Constitution Committee when it said that it had had positive discussions. I am keen to speak again to the Scottish Police Federation. I spoke to the SPF shortly after I announced changes to the bill on 23 September, and I had a further conversation with it thereafter—forgive me, but I cannot remember the exact date. As the bill progresses and, potentially, is amended, I will be keen to continue conversations with trade unions and the SPF as well as with Police Scotland.

Rona Mackay

We know that the underreporting of hate crime is a problem. What is the Government doing to tackle that? Are there public awareness campaigns? Separately, what support is available for victims of hate crimes?

12:30  



Humza Yousaf

I have always accepted that legislation will not, in itself, rid Scotland of hate crime, which I hope is a goal that we would all associate ourselves with. Legislation is one part—albeit an important part—of a suite of measures that we can use to tackle it and build a much more inclusive and equal society. I am talking from personal experience as someone who has been the target of hate crime, against which there was a recent successful prosecution. Legislation is important but, in itself, it will not solve the problem.

Education is hugely important, and we need to continue with our marketing campaigns, which address people’s prejudices. Our letters from Scotland hate campaign was relaunched in October—you might have seen it displayed on the sides of bus shelters or on billboards. The money that we invest in education is hugely important. I have seen great examples in my constituency of a number of organisations such as Show Racism the Red Card going into primary school and high schools and making a big difference.

In short, legislation, in itself, will not resolve the issues or eliminate hate crime, so we will continue to invest in education programmes and marketing campaigns to raise awareness of the issue.

The Convener

I do not think that other members have any additional questions—those who are in the room should catch my eye, and those who are not should catch my attention via BlueJeans, should they wish to do so.

I will ask you a couple of questions about timetabling before we finish. There is huge public interest in the bill, which is understandable for all sorts of reasons. You have now twice come to Parliament to announce that you propose to make amendments to the bill at stage 2, and the committee is working as hard as it can to meet the Government’s preferred timetable for the bill. Given those three aspects, assuming that our stage 1 report is published by 11 December, can you commit today that the Government’s response to the report will be published in advance of the stage 1 debate in Parliament, which is scheduled for Tuesday 15 December?

I know that your officials will not thank me for asking that question, because it means that they will all have to work over the weekend to get that done. However, given how much the bill has changed—at your own hand—and the huge public interest in it, I do not think that it would be appropriate for Parliament to debate the bill until we have seen your response to our stage 1 report. I hope that you share that view and that you will commit to ensuring that your response is published in advance of the debate.

Humza Yousaf

Forgive me, but I do not have my calendar in front of me. However, judging from what you said, 11 December must be a Friday. That would leave us with one working day to respond to what I assume will be a substantial report, given the number of witnesses that you have—rightly—taken evidence from.

Today, you will have from now until 11 December, which is 13 or 14 working days, to draft the report, and we would have one working day to respond to it. I accept your general premise that a lot of the timetabling issues are because of the changes that have been proposed by the Government. However, if I may be so bold, I would urge the committee, if possible, to publish its report before 11 December. The Government’s team would be eternally grateful for any extra days that we were given to respond.

If we are given that one day to respond, I will ensure that there is a response. I cannot promise you that that response would be as detailed as it would be if we were given more time to respond. However, we will endeavour to get a response to the report even if we are given just one working day to do so.

I hope that there can be an element of close collaboration between the Government and the committee on the report. I do not doubt at all what you say about how hard you are working. I appreciate the effort that the committee has put in and the number of stakeholders from whom you have taken evidence, which has included indulging me twice. However, if the report can be published before 11 December, the more extra days that we can get, the better.

The Convener

The other way in which to create extra days would be to move the stage 1 debate to later that week.

Humza Yousaf

Yes. Again, we are happy to consider that with the Minister for Parliamentary Business and Veterans. The committee will be aware of my anxieties about the tight timetable, but it is a fair point and we will reflect on it. Even if the timetable is as you have articulated it and there is only that one day, we will provide a response and I will commit to that. It goes without saying that, if we had longer, we could provide a more definitive response.

The Convener

We will collaborate and co-operate where we can, and we will not try to surprise the Government at the last minute or anything like that. That is not part of the committee’s agenda. However, it would be inappropriate for the Parliament to debate the bill at stage 1 if it had not heard what the committee had to say and the Government’s response to that. We owe that to all the people who have given us both oral and written evidence over the past few months. We are working at breakneck pace because of the timetable that the Government has set down, so I am glad to have the cabinet secretary’s commitment on record that there will be at least some form of stage 1 response from the Government before the Parliament debates the bill at stage 1. Thank you for that.

Humza Yousaf

I am not sure that you have made me popular with my officials, but I am happy to commit to that.

The Convener

I am not sure that I have made myself popular with your officials either, cabinet secretary, but, with all respect to them, that was not my first consideration.

I thank the cabinet secretary and his officials for their time. We will move straight on to the next item of business.

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27 October 2020

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3 November 2020

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10 November 2020

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24 November 2020

Justice Committee Committee's Stage 1 report 

What is secondary legislation?

Secondary legislation is sometimes called 'subordinate' or 'delegated' legislation. It can be used to:



  • bring a section or sections of a law that’s already been passed, into force

  • give details of how a law will be applied

  • make changes to the law without a new Act having to be passed


An Act is a Bill that’s been approved by Parliament and given Royal Assent (formally approved).

Delegated Powers and Law Reform committee's Stage 1 report

Find out what else the Delegated Powers and Law Reform Committee is doing. 

Debate on the Bill

A debate for MSPs to discuss what the Bill aims to do and how it'll do it.

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Stage 1 debate on the Bill transcript

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.

16:02  



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.

16:17  



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.

16:28  



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.

16:39  



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.

16:48  



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.

16:55  



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