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Chamber and committees

Meeting of the Parliament [Draft]

Meeting date: Wednesday, April 17, 2024


Hate Crime and Public Order (Scotland) Act 2021

The Deputy Presiding Officer (Annabelle Ewing)

The next item of business is a debate on motion S6M-12855, in the name of Russell Findlay, on repealing the Hate Crime and Public Order (Scotland) Act 2021. I invite members who wish to speak in the debate to press their request-to-speak buttons.


Three years ago—

Keith Brown (Clackmannanshire and Dunblane) (SNP)

On a point of order, Presiding Officer. I wonder if it is possible for you to clarify, given the terms of the motion that we are about to discuss, which is on repeal of the 2021 act, that the actual effect of a majority vote for the motion—which I do not expect to happen—would have no impact on the 2021 act or on the law as it currently stands.

I thank the member for his point of order. That is the position as per the standing orders of Parliament, which I think that everybody is aware of.

Please resume, Mr Findlay.

Russell Findlay

Thank you. In the sweepstake, I had a Keith Brown intervention after 30 seconds, not three seconds.

Three years ago, Humza Yousaf was standing here in Parliament, lapping up applause and basking in adulation, having delivered the act. He described it at the time as being “truly transformative”, and he was right. It was transformative, just not in the way that he thinks it was. From April fools’ day, it has transformed Scotland into a place of international mockery. It has transformed the birthplace of the enlightenment into a place where free speech has been debased and devalued, where sinister police billboards instruct people to snitch on those who hurt their feelings, where contentious discussions and disagreements in one’s own home can result in a knock at the door from the police, and where every single complaint—no matter how groundless or absurd—is subject to police investigation, while despairing officers are being told not to pursue real crimes. Welcome to Scotland, home of Humza Yousaf’s hate crime law, AKA the “clypes charter”.

It seems that Mr Findlay has swallowed his own publicity on all of this. Does he think that the harassment and hate of disabled people is a real crime?

Russell Findlay

That is a preposterous intervention. I am talking about the many thousands of crimes that have been deemed not to have been crimes at all—that is, the vast majority of the 9,000 hate crimes that have been reported to the police. That is what we are talking about.

As the Scottish Conservative Party and many others warned that it would be at the time of its passage, the legislation is a disaster. It is a disaster on paper and in reality. The Scottish National Party backslapping of 2021 was crass and ill-judged. It was the celebration of bad legislation by a Government that specialises in bad legislation.

Liam Kerr and others worked hard on amendments to fix the worst elements of the bill. Back then, just two SNP members defied Nicola Sturgeon’s whips to abstain on it. How many will find the bravery and the steel to do the right thing today? How many will listen to senior nationalist figures who understand that freedom of speech is much more precious than party loyalty?

What of Scottish Labour? Former leader Johann Lamont tried to protect the rights of women and girls. The legislation protects men wearing women’s clothing, but not women. When Johann Lamont’s amendments failed, she voted against the bill, along with one other Labour member. As usual, Anas Sarwar sided with the SNP—not for the first or the last time. Will he repeat that same mistake today?

The chilling effect of the legislation is real. Some fear being subject to investigation and prosecution for stating the truth about biological sex. When J K Rowling put that to the test on social media, Police Scotland confirmed that she had not committed a hate crime, but what about those without her cash and clout? Even if prosecutions are unlikely, being subject to an investigation can be daunting, disruptive, humiliating and financially costly. Police arrive at a person’s home or workplace, the person is taken away in handcuffs, their phone is seized and they are forced to pay for a lawyer—that is stigmatising and damaging to personal reputations and employment prospects.

I am particularly struck by the phrase “the process is the punishment”. Anyone who has ever taken on Scotland’s powerful and unaccountable public bodies will know exactly what that means. Even before the act was enforced, a street preacher in Glasgow was wrongfully arrested over false hate crime allegations.

The Cabinet Secretary for Justice and Home Affairs (Angela Constance)

As a matter of factual accuracy, will Mr Findlay concede and put on the record that protection of freedom of expression is built into the legislation, including the point that criticism or commentary on any protected characteristic is not to be mistaken for hatred or abuse?

Russell Findlay

I will come on to that, but the cabinet secretary did not point out that there is no dwelling defence, which I will also come on to.

Even before the act was enforced, my colleague Murdo Fraser was reported to the police. His alleged crime was to make a light-hearted quip about Scottish National Party policy relating to people who say that they are non-binary. The complaint and the investigation were kept secret from him. He had no idea that the police had then recorded that as a non-crime hate incident. Police Scotland’s response to Murdo Fraser has been confused and confusing, and the justice secretary’s response to his question yesterday cast no light.

During yesterday’s proceedings, the justice secretary also made allegations about misinformation. There has been misinformation, but, from what I have seen and heard, it has come from the SNP Government and its agencies. The law states that the hate crime threshold is met if something would be deemed by a reasonable person to be “threatening or abusive”. My party tried without success to amend that to say “threatening and abusive”, which is a crucial distinction and would be a higher bar for prosecution. However, an SNP minister took to the airwaves to incorrectly state that the law says “threatening and abusive”. Yesterday, the cabinet secretary added to her Government’s catalogue of misinformation by telling Parliament that the threshold is now “threatening and/or abusive”, and she did so while railing against misinformation. I presume that that was through ignorance and not intent, but it misrepresents that critical point.

Then we have Police Scotland’s extraordinary output. Its website tells the public that a hate crime is

“Any crime which is perceived by the victim, or any other person, as being motivated, wholly or partly, by malice, ill will or prejudice against a social group.”

That is simply untrue. Something does not become a crime just because someone perceives it to be a crime. Such flagrant misinformation fuels public confusion. Moreover, it is fuelling the flood of complaints. The police website targets working-class white men, in effect telling them to watch their mouths. I ask whether Police Scotland, in citing so-called white male entitlement, has committed a hate crime.

Then, of course, we have the hate monster—a ridiculous cartoon character that would surely be deemed too silly for the scriptwriters of “Scot Squad”. Let us not forget the sinister Government billboards on the issue or that that campaign cost taxpayers at least £400,000 and generated even more nonsense complaints.

Should we be surprised by the creeping criminalisation of freedom of expression in Scotland? I am not, because that has been the direction of travel for years. As far back as 2016, Police Scotland told the public to consider whether their social media comments were “kind” or “necessary”. If they were not, Police Scotland warned that a visit from officers could be expected. Of course people should be kind, but who on earth decides what is “necessary”? What has any of this got to do with the police?

The law was not enforced for three full years because Police Scotland knew that the legislation was seriously problematic and that it would be inundated with complaints. It knew that the legislation would be weaponised, and that is exactly what is happening.

Humza Yousaf claims that there is a “rising tide” of hate crime in Scotland, contrary to the evidence. His Government is urging Scots to report hate crime while peddling misinformation about the definition of hate crime.

I am listening very carefully to your remarks. I am just waiting for you to come to the point at which you put on the record the existence of hate crime in this country and your condemnation of it.

Speak through the chair, please.

Russell Findlay

On the day in 2021 when the bill was enacted, the SNP Cabinet Secretary for Justice and Home Affairs was enjoying a nice jigsaw puzzle. Meanwhile, on our streets, overstretched police officers were dealing with a much harder challenge. Days ago, His Majesty’s Inspectorate of Constabulary in Scotland reported that Police Scotland officers feel unsafe and unable to do their jobs as they are constantly being told to do more with less, but those same exhausted officers are now being ordered by the SNP to police our speech. Hundreds of officers have still not been trained in the new law. Before the recess, the Criminal Justice Committee asked for the training material, but we were not given it—no wonder, as officers say that it is wholly inadequate.

The Scottish Police Federation deserves great credit for standing firm against the breathtaking Government spin. We keep being told that the tsunami of spurious complaints will have no detrimental impact on the investigation of real crimes. That is patently untrue, as federation officials have patiently explained. I despair at the Government’s sneering sense of moral superiority and failure to tackle the issues that truly matter.

Will the member take an intervention?

Russell Findlay

I am sorry, but I do not have time.

Never mind plummeting education standards and classroom violence; never mind the tragedy of record numbers of drug deaths; never mind a stagnant economy stymied by hostile ministers; never mind islanders being reliant on a fleet of decrepit ferries; never mind our national health service being neglected by a disgraced ex-health secretary who was more interested in keeping his job; and never mind the filth and squalor on our potholed streets. Nope, never mind the day job when the Government would rather virtue signal and preach to ordinary Scots about what opinions are deemed to be acceptable. That is pious, puerile and patronising.

MSPs should start listening to the majority of people in Scotland, who agree with the Scottish Conservatives. This is about freedom of speech. It is about bad legislation. It is about letting our police officers do their jobs. It is about rejecting division by turning Scot against Scot to clype on friends, colleagues and family. Based on the evidence, we were right to vote against the legislation three years ago and, based on the evidence, we are right to call for its repeal today. I urge all members to do the right thing and back the Scottish Conservative motion.

I move,

That the Parliament believes that the Hate Crime and Public Order (Scotland) Act 2021 should be repealed.


The Minister for Victims and Community Safety (Siobhian Brown)

The Hate Crime and Public Order (Scotland) Act 2021 will help us to target hate crime in Scotland and support those who are most affected by those crimes.

First, I will respond to some of the points that have just been made about the 2021 act. Over the past two weeks since its implementation, the Scottish Government has responded to numerous media statements in order to combat misinformation, which is still regularly regurgitated, including in this chamber. To dispel that misinformation, it would perhaps be beneficial for me to set out again what the 2021 act does. It is designed to consolidate existing legislative protections against offences that are aggravated by prejudice against the following five characteristics: disability, race, religion, sexual orientation and transgender identity. That is the exact same group of characteristics that are protected in England and Wales under the current hate crime legislation. This Parliament agreed to add the additional characteristic of age, which has been welcomed.

We know that the impact on those who suffer from hate crime can be traumatic and life changing, and we want to ensure that we can protect those who are affected. However, the Conservatives would have this Parliament remove those protections.

Hate crime, as set out under the act, is a behaviour that is both criminal and rooted in prejudice and where the offender’s action has been driven by hatred towards a particular group. However, the Conservatives would have this Parliament repeal the act.

Will the minister give way?

Siobhian Brown

I will come to Russell Findlay in a moment.

The 2021 act introduced new offences for threatening or abusive behaviour and for the communication of threatening or abusive material that is intended to stir up hatred against a group of people who possess or appear to possess particular characteristics. However, the Conservatives would have us take away such offences, which are perpetrated against people in our society.

I will take a brief intervention.

Russell Findlay

I thank the minister for allowing me to intervene. The minister began by saying that she was about to reveal some misinformation from members in this chamber. I have been waiting with bated breath, but I have still not heard any such specific allegations.

I apologise to Mr Findlay, but I am going through my speech. I am not actually sure what he just asked me for. [Interruption.]

The independent review—[Interruption.]


Siobhian Brown

—of hate crime by Lord Bracadale in 2018 that led to the act clearly stated the need for legislation in that it would help to recognise the impact of and harm caused by hate crime in saying that

“Stirring up of hatred may lead to violence or public disorder.”

The Conservatives want us to ignore that harm.

The act does not prevent people from expressing controversial, challenging or offensive views, as has clearly been demonstrated, nor does it seek to stifle criticism or rigorous debate in any way. The right to freedom of expression has been specifically built into the act.

The act also provides a high threshold for criminality. For the new offences, it has to be proven that the behaviour is threatening or abusive and that it has the intention to stir up hatred. That is a higher threshold for a crime committed under the act than for the offence of stirring up racial hatred, which has been in place since 1986 in Scotland.

Michelle Thomson (Falkirk East) (SNP)

On that point, I want to enable the minister to set the record straight. I am not sure what actions Police Scotland is taking to incorporate the precedent that was set in Miller v College of Policing in December 2021, which applies to England and Wales, where it was determined that the policy of reporting non-crime hate incidents breached article 10.

I understand that Police Scotland reported in its bulletin of April to September 2023 that it would adopt the policy, but to what extent has it done so? Will the minister set out the specific details of whether the policy has been fully incorporated or whether it is being incorporated through a staged process?

I will give you your time back, minister.

Siobhian Brown

First, non-crime incidents are not related to this act in any way. As we know, the recording of non-crime hate incidents is an approach across the whole of the United Kingdom. I am aware of the Miller recommendation that has been implemented in England and Wales. Police Scotland has indicated that it is currently reviewing it for implementation in Scotland.

Since 2014-15, an average of 6,700 hate crimes have been recorded by the police each year. In 2021-22, 6,927 hate crimes were recorded by the police. Of those, 62 per cent included a race aggravator, 27 per cent included one for sexual orientation and 8 per cent included one for disability, highlighting the clear need for hate crime legislation.

From research in 2020-21, we know that around a third of hate crimes involve a victim who has experienced an incident at their place of work or as part of their occupation. Most of those victims work in retail or service industries, and that does not include the police. The same research shows that almost a quarter of all victims of such offences that were recorded in 2020-21 were police officers.

We have worked closely with our justice partners, including Police Scotland, since the act was passed in 2021 to ensure that its implementation and delivery would be robust. I am grateful to Police Scotland for its outstanding dedication and professionalism since the act came into force.

Within the first week of the act’s implementation, Police Scotland received more than 7,000 reports of hate crime, of which the vast majority were assessed not to be criminal. Over the same week, 232 hate crimes and 30 non-crime hate incidents were recorded.

There have been reports of individuals and groups exploiting the new legislation to make vexatious complaints in order to overwhelm police systems. We must send a strong message to those making vexatious complaints that they must stop doing so. I hope that every member across the chamber, regardless of political affiliation, will stand united in that call.

Online reporting drastically decreased by 74.4 per cent during the past week to 1,832. That fall was not reflected in the number of recorded hate crimes, which further strengthens the Government’s position that the legislation is needed to support those who are the target of hate crimes. We have also seen the first recorded crimes using the new age aggravator, with 38 such crimes recorded in the first fortnight of implementation. Police Scotland has reiterated that, although the increase in reporting has been greater than usual, that is being managed by the contact centres and the impact on front-line officers has been minimal.

I turn to our plans on misogyny. Women, like everyone else, are already protected in law from threatening and abusive behaviour but are not specifically covered in the 2021 act, for well-known reasons. During the consultation on Lord Bracadale’s report, a number of women’s groups raised concerns that the proposed hate crime framework did not reflect the reality of the misogynistic harassment and abuse that is experienced by so many women.

For that reason, we established the working group on misogyny, led by Baroness Helena Kennedy, to consider in detail issues relating to misogyny and the criminal law and to make recommendations for reform. We consulted on draft legislation to implement the report’s recommendations in 2023. Those will inform a final bill, which we will introduce this year.

During the development of the hate crime strategy, we heard from people who felt unable to leave their homes due to the fear of being the target of hate crime. The 2021 act will go some way to providing those people with the confidence to carry out their lives in a safe manner.

Today, the Conservatives call for the repeal of the 2021 act. Let me be crystal clear: this Government has no intention of repealing the act. Repealing it in full would leave Scotland as the only country in the United Kingdom without specific legislation to protect communities from hate crime. Why would anyone not want our communities to be protected from hate and crime?

I understand that the Conservatives want the act to fail because they need to justify why they did not support it in 2021. They will therefore do everything that they can to discredit it. However, my message is that that will not work. Legislation that protects people from hatred is not new; it is still needed and the misinformation that has surrounded the act is irresponsible.

The 2021 act modernises and updates legislation—

Will the minister take an intervention?

Will the minister give way?

The minister is bringing her remarks to a close.

Siobhian Brown

—and, if it was repealed, as the Conservative motion calls for, it would put back in its place legislation that would, once again, make blasphemy a common-law offence. That is an offence that has not been prosecuted in Scotland for more than 175 years—once again, that is the Conservatives taking us backwards.

We are committed to providing people with the protection that they deserve. I say to those who have faced prejudice just because of who they are—due to their race, religion, disability, sexual orientation, transgender identity or age—that we stand with them, unlike the Conservatives, and that we will ensure that we have laws to protect them.

Let us all stop the gutter politics and the scaremongering and, as elected members, take responsibility to protect some of the most vulnerable people in our communities.

I move amendment S6M-12855.3, to leave out from “should” to end and insert:

“, as supported by the majority of the Parliament, will provide greater protections for those who are targeted victims of hate crime; notes that the Act was developed following a review into hate crime by senior retired judge Lord Bracadale, who recommended specific legislation to recognise the impact and harm caused by hate crime; further notes that around a third of hate crimes in Scotland involved a victim who experienced the incident at their place of work or whilst undertaking duties as part of their occupation, most of whom were working in retail or other service industries, and that a quarter of recorded hate crimes had a police officer victim, and recognises that the impact on victims of hate crime can be traumatic and life changing.”

The Deputy Presiding Officer

I take this opportunity to remind members that, using the new system, if a member seeks to make an intervention, they should press the relevant button on the console. In the course of the debate thus far, there has been increasing use of the button—well done to all those who have used it. However, I ask those members who are not yet familiar with the system to start to use the intervention button.

I call Pauline McNeill to speak to and move amendment S6M-12855.4.


Pauline McNeill (Glasgow) (Lab)

Scottish Labour voted for the Hate Crime and Public Order (Scotland) Bill in good faith, and we supported many of the amendments—especially the amendments that Adam Tomkins lodged to ensure that the bill as enacted would protect freedom of expression. We agree that we must have good, robust law on hate crime that is well understood by those who enforce it, but we also agree that there should be a high test for criminality.

Labour made it clear that a sex aggravator should have been included in the Hate Crime and Public Order (Scotland) Act 2021. Three years on, there is still no sign of the legislation that was promised within one year of that act being passed. In view of that, we call on the Scottish Government to reconsider and to bring in sex as an aggravator now.

Will the member take an intervention?

Pauline McNeill

I will—after I have made this point. The First Minister did not help to get the support of women who are trying to make sense of what has happened in the past few weeks when he refused to make the distinction between sex and gender in an interview on BBC Scotland this week.

Liam Kerr

I remember Pauline McNeill arguing strongly for a sex aggravator at stage 2 of the Hate Crime and Public Order (Scotland) Bill. The Scottish Conservatives voted with Labour to get such a provision inserted in the bill. However, under Humza Yousaf’s whip, the SNP, the Greens and the Lib Dems opposed it. Does she feel that she has been utterly let down by Humza Yousaf, the former justice secretary?

Pauline McNeill

I have been quite clear, as has Scottish Labour, that it was wrong not to include a sex aggravator in the 2021 act. What has been exposed over the past two or three weeks is that the Government should reconsider its position now that it knows that, although its proposed misogyny law will be a good law, it will be four years before it goes on to the statute book.

For Scottish Labour, the purpose of this afternoon’s debate is to test the Government’s ability to address some of the serious problems that have arisen over the past few weeks. The implementation of the 2021 act has been a shambles. In the first few weeks, there have been 8,000 reports of hate crimes, which has meant that officers have had to be brought back to do overtime shifts. The Scottish Police Federation has said that an extra 40 officers a day have been needed to deal with the responses to the legislation, not to mention the hapless hate monster campaign.

The Government will say that the situation will calm down in time, but the problem is that the public are already beginning to lose confidence in the legislation, which is why Scottish Labour is calling for urgent post-legislative scrutiny of the act to review the poor implementation and confused communication, and to address the significant issues that have arisen since 1 April.

The police are required to investigate all alleged offences, no matter how trivial or vexatious the reports are. Because of that requirement, Lord Hope, who used to be Scotland’s most senior judge, has commented that the act has placed an “extraordinary” burden on the police. The Government must address that important point. Fewer than 4 per cent of the 8,000 reports of hate crimes that were made in the first week went on to be assessed as actual crimes.

Michelle Thomson was right to raise the reporting of non-crime hate incidents, the policy on which was implemented following the Stephen Lawrence inquiry report. Following a successful legal challenge, that policy is no longer in place in England and Wales. I listened to what the Cabinet Secretary for Justice and Home Affairs said in response to Murdo Fraser yesterday, and I am still no clearer as to whether the non-crime hate incidents that are recorded by the police count in relation to disclosure certificates, for example. There must be a review of the recording of hate incident reporting. I know that that is not part of the legislation that we are discussing, but it has exposed the issue.

Why should anyone have on their record a matter that is deemed not to be criminal? Against the backdrop of the proportionate response to crime approach, that is a really important point. Michelle Thomson was quite right to ask whether the recording of non-crime hate incidents is truly compliant with the Human Rights Act 1998. Personally, I do not think that it can possibly be.

The Scottish Police Federation says that the biggest issue with the 2021 act is the amount of police time that is wasted and the irrationality of a situation in which the police now do not attend and deal with certain crimes. Police Scotland has been using overtime to cope with the online reporting, and that is not sustainable.

The cost of implementation of the ill-conceived 2021 act is already huge. It has been reported that nearly £500,000 has been spent on promoting the act, yet the majority of people are unclear as to how it differs from previous law. I dread to think how much the hate monster campaign has cost the taxpayer, but it has certainly cost the SNP credibility, and it needs to face up to that.

Ironically, the campaign was offensive; one point on which I agree with Russell Findlay is that it explicitly targeted young men aged between 18 and 30—particularly those from socially excluded communities—who, it said, were more likely to commit hate crime. Surely the Government must accept that, with all the good intentions, that is something that has gone horribly wrong.

Will the member take an intervention?

I am happy to hear from the cabinet secretary on that point.

Angela Constance

I point out to Ms McNeill that the public information campaign to which she has referred was not a Scottish Government campaign but a Police Scotland one that took place a year ago.

Ms McNeill asked for clarification, so I give her clarification that Police Scotland is reviewing its code and guidance in response to developments south of the border regarding non-crime hate incidents.

Pauline McNeill

I welcome that last point, but that is what I thought that the cabinet secretary would say. The Government has to take responsibility. As the Government, it has presided over the implementation of a very important act—we supported it on that—and it needs to take responsibility for the way in which the act has been implemented. It is not right to blame Police Scotland for a campaign that has gone horribly wrong.

The act has merit—that is where I agree with the cabinet secretary. Prosecutors can attach prejudice aggravators to crimes such as assault and threatening or abusive behaviour, and if the aggravator is proved, it can be taken into account in sentencing. However, as I argued strongly at the time, sex is a characteristic that matters when it comes to understanding levels of violence—Lord Bracadale described the omission of sex as a lost opportunity. I fully support the work of Helena Kennedy on misogyny but, understandably, women did not want to wait for the results of a working group, and they were proven to be right on that. Women are regularly the targets of offending behaviour that is based on hostility towards their sex.

Two weeks on from the act’s implementation, the public are none the wiser. The Scottish Government must take responsibility for the mess. I ask it to set out how it intends to address the questions of the roll-out and implementation of the act, to restore confidence by taking major steps if it thinks that public confidence can be restored, and to take the best elements of the law forward.

I move amendment S6M-12550.4, to leave out from “believes” to end and insert:

“recognises that the Hate Crime and Public Order (Scotland) Act 2021 was intended to improve protections for individuals and communities from hate, but has been let down by the chaotic implementation of it by the Scottish National Party administration; acknowledges the Scottish Government’s failure to properly communicate the changes in the legislation, or to give adequate training to Police Scotland; requests that the Criminal Justice Committee carry out an urgent review into the operation of the Act, specifically the new provisions, and calls on the Scottish Government to urgently address the flaws in its implementation of the Act, to use its powers under section 12 of the Act to add the characteristic of sex as an aggravator and protected characteristic under the Act, and to review the recording of hate incident reporting to make sure that it is compliant with human rights law and prevents the recording of vexatious complaints.”


Liam McArthur (Orkney Islands) (LD)

Given what the motion says, it is worth reminding ourselves that the Parliament has shown itself willing to repeal legislation when the need arises. It is certainly unusual—thankfully so—but not unheard of. I was a member of the Justice Committee in the previous session when we considered not just the Hate Crime and Public Order (Scotland) Bill but a member’s bill that was lodged by former Labour colleague James Kelly to repeal the discredited Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012.

Some members might seek to draw comparisons between the two pieces of legislation, but I believe that the differences are stark. The 2021 act emerged following a lengthy and detailed review by Lord Bracadale, which was set in the context of mounting public concern at the time about a rise in all forms of hate crime, particularly in relation to antisemitism and Islamophobia; the 2012 act emerged in the aftermath of an infamous old firm match, as a knee-jerk response by the then First Minister, Alex Salmond, to criticism of him and his Government for doing little or nothing to tackle the scourge of sectarianism. The 2021 act reflected the generally recognised benefit to be had from modernising and codifying existing laws while extending certain protections that were in place regarding race to cover other protected characteristics, namely,

“age, disability ... religion, sexual orientation”


“transgender identity”;

the 2012 act reflected a something-must-be-done panic in the Government, leading to a decision to use legislative levers to send a message, despite repeated warnings, not least from Police Scotland.

Those differences are crucial to bear in mind in the context of the debate. That is not to say that the bill that was presented to Parliament was not flawed—it was, and fatally so. The Government did itself and its case no favours by initially failing to include any reference to intent in relation to stirring-up offences or even a reasonableness test. Explicit freedom of speech protections were added at stage 3 but would have been helpful in the bill from the outset.

I am slightly confused. I was not here in 2021. The member talked about the legislation being fatally flawed, but his party voted for it. Is it now regretting that decision?

Liam McArthur

Russell Findlay should listen to what I am saying. The bill that was introduced was fatally flawed, which is why the Government had to come forward with an intent amendment ahead of stage 1, which is pretty unheard of in this place.

Of course, there was the question whether to include sex as an aggravator. At the time, Scottish Women’s Aid, Rape Crisis Scotland, Zero Tolerance and others all argued strongly against that; instead, they preferred a stand-alone misogyny offence, which Baroness Kennedy’s report subsequently endorsed. There is absolutely no doubt, though, that the continued absence of the misogyny offence leaves a gap in protections that is highly problematic and difficult to defend. Therefore, as I did following yesterday’s statement, I urge the cabinet secretary to publish the promised bill on misogyny without delay. Rather than belatedly adding sex as an aggravator, as the Labour amendment suggests, that remains the best way forward.

In her statement yesterday, the cabinet secretary also acknowledged failings in how the Government has communicated about and prepared for the introduction of the legislation—I think that that is fair. It is unfortunate that such an acknowledgement is absent from today’s motion, as the situation certainly contributed to some of the confusion around the issue.

It would be useful to understand what further steps the cabinet secretary and the minister believe that the Government can take to rectify the position and ensure that the law is applied sensitively, practicably and in ways that fully respect essential freedoms, such as freedom of expression. It was helpful to hear the minister respond to the point that Michelle Thomson and then Pauline McNeill made about the Miller recommendations and the hope that the recording of non-crime hate incidents may well be done differently going forward. However, whatever the failings around communication and preparation for the implementation of the legislation, Parliament needs to decide whether it still believes that robust action is required to tackle hate crime. I believe that it is.

As I said earlier, I served on the Justice Committee, which scrutinised the bill. I had the privilege of doing so alongside former Conservative MSP Professor Adam Tomkins, who proved to be a hugely effective convener. I still consider a couple of the speeches that he made during the stage 3 proceedings on the bill to be among the finest that I have heard in the chamber over the 17 years that I have been an MSP. In those speeches, he spelled out in terms that Parliament found compelling and persuasive the necessity of including robust and explicit freedom of speech protections in the bill. He also made the important point that such freedoms have never been wholly unfettered. As a result, although it will now be an offence to behave in ways that a reasonable person would consider threatening or abusive if, in doing so, the intention is to stir up hatred, the law also states that “particular regard” must be had to the rights to free speech, including the principle that that right protects communications or behaviours that others may find offensive, shocking or disturbing.

In my view, the debate would have benefited greatly from the presence and contribution of Adam Tomkins. I conclude with the words of Professor Tomkins, writing in The Herald earlier this month:

“If we focus on what the Act actually means, rather than on what intemperate voices on both the left and the right are falsely claiming it means, we might yet make a success of it.”

We move to the open debate.


Murdo Fraser (Mid Scotland and Fife) (Con)

Lord Hope of Craighead is the pre-eminent Scottish lawyer of his generation. He rose to the position of Deputy President of the UK Supreme Court and is widely respected for his experience and knowledge. Last week, in a newspaper article, he called for the 2021 act to be repealed. He is joined in his criticism of the act by a broad range of opinions, including those of the SNP’s Joanna Cherry MP, representatives from Alba, a wide range of academics, commentators and lawyers and, even significantly—as Russell Findlay reminded us—the police themselves. Representatives of the rank and file and senior police officers have expressed their serious concerns about the legislation. I make that point because it is not just the Scottish Conservatives who are calling for the act to be repealed. That might be the case in the chamber, but in wider Scottish society, our call has extensive backing.

I know that both Labour and the Liberal Democrats voted for the act in 2020. I say to them that there is no shame in accepting that that decision was a mistake, or—in the light of experience, and in particular the shambolic fashion in which the act has been implemented and the pressure that it is putting on an already hard-pressed police force—in reconsidering that decision and joining us in backing its repeal.

I will focus my remarks on non-crime hate incidents, to which a number of members have referred. The issue is not part of the 2021 act but is closely related to it, so I expect that we will see many more incidents being recorded as a result of the act’s introduction.

Last November, a social media post of mine that was critical of Scottish Government gender policy was reported by a trans rights activist to the police as a hate crime. The police determined that no crime had been committed but that the matter would be recorded as a non-crime hate incident.

I was not informed of that. Indeed, I would still be unaware of it had the activist in question not then reported me to the Ethical Standards Commissioner. The commissioner threw out the complaint but, at that point, I became aware of the recording of a hate incident. At that point, in December, I wrote to the chief constable of Police Scotland, asking for an urgent meeting to discuss the implications. I have still not had a reply from the chief constable, although I received a response from my local chief inspector in Perth three months later.

Having taken legal advice, with the support of the Free Speech Union, it is my view that the recording of non-crime hate incidents is unlawful in a number of respects. In particular, I believe it to be in breach of articles 8 and 10 of the European convention on human rights, which protect freedom of expression, particularly of political views.

It is significant that the police in England and Wales had to change their policy on recording of non-crime hate incidents based entirely on the perception of the complainer following the judgment of the Court of Appeal in the case of R (on the application of Miller) v the College of Policing, which Michelle Thomson and others have referred to. For reasons that are best known to itself, Police Scotland did not change its policy at that point. I believe that it will have no alternative but to do so. However, I cannot understand why it is dragging its feet.

The matter was made much worse when I discovered that numerous complaints that were made against both Humza Yousaf and J K Rowling two weeks ago as hate crimes were—in clear breach of stated Police Scotland policy—not recorded as non-crime hate incidents. I have been in correspondence with the police on the issue, but they have been unable to provide me with a satisfactory explanation of why, in my case, a different approach was applied from that which was applied in the First Minister’s case.

[Made a request to intervene.]

Murdo Fraser

I will give way in a second.

I sincerely hope that that is not an example of political bias on the part of Police Scotland. However, in the absence of any credible alternative explanation, that suspicion must remain.

I will happily give way either to the minister or the cabinet secretary if they can explain why Police Scotland took a different approach to my case from the approach that it took to Humza Yousaf’s case. Neither wishes to do so, so I give way to Mr Ewing.

Briefly, please.

Fergus Ewing

I share Mr Fraser’s and Jo Cherry’s concerns. Would one way to peruse the matter in a rational and considered way be for the Scottish Government to appoint a lawyer who is expert in human rights to consider and review the matter, after taking soundings from and consulting the Law Society of Scotland, the Faculty of Advocates and leaders of political parties in Parliament to ensure that the appointee is irreproachably independent? That would be a way to sort out what is a clearly serious matter in Scotland.

Murdo Fraser

Mr Ewing has made a sensible suggestion. Given the Government’s inability to explain what has been going on, any progress on that front would be welcome.

After three months of trying, I have secured a meeting with the police. I am meeting the deputy chief constable of Police Scotland and the chair of the Scottish Police Authority next week.

It cannot be acceptable that the police are treating opposition politicians differently from how they are treating members of the SNP Government. It is simply deplorable that they think that they can avoid providing an explanation to the public for their actions.

In a liberal democracy, we have a principle that must be applied: the principle is policing by consent. That means that the police must be answerable and accountable for their actions. I urge the minister, regardless of whether the motion is passed today, to ensure that the police are acting in a fair and balanced manner in application of their policies. We, as a country, will be in a very dark place if that does not happen.


Audrey Nicoll (Aberdeen South and North Kincardine) (SNP)

Hate crime has long been a scourge on Scottish society and we all have a responsibility to challenge it. The Hate Crime and Public Order (Scotland) Act 2021 was passed by a majority of MSPs in March 2021, following Lord Bracadale’s independent review of hate crime legislation. In his report, Lord Bracadale reminds us that legislation will not change attitudes on its own but that clearly defined legislation and well-developed procedures will increase awareness of hate crime and can contribute to attitudinal change.

I am drawn to the definition of hate crime that was used by Lord Bracadale, which is that offences

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

The then Justice Committee’s stage 1 report on what would become the 2021 act outlines that evidence was taken from 35 witnesses, that over 2,000 written submissions were received and that research was commissioned to assist scrutiny in relation to elder abuse and approaches in other jurisdictions. The bill was subjected to significant amendment, as has been acknowledged today. That, in my view, reflects a very robust scrutiny process.

The 2021 act consolidates existing protections against offences that are aggravated by prejudice against the five characteristics of disability, race, religion, sexual orientation and transgender identity—the same characteristics as are protected in England and Wales. The act also includes age as an aggravation and introduces the new offence of “stirring up hatred” against people by reason of their possessing particular characteristics. The 2021 act does not prevent people from expressing controversial or offensive views, nor does it seek to stifle criticism or rigorous debate—that simply cannot be part of modern-day society.

Many of us here, in the chamber, have come into politics having left behind a professional life. In my case, that included living through the introduction of many new and challenging pieces of legislation including the Adult Support and Protection (Scotland) Act 2007, the Mental Health (Care and Treatment) (Scotland) Act 2003, the Regulation of Investigatory Powers (Scotland) Act 2000 and hate crime legislation.

The reality is that legislation takes time to bed in and that it takes time for practice to adapt, for officers to build confidence and experience in using new laws, and for the public to understand what new laws mean for them. Not for one second can we diminish the importance of making good law that is effective in its purpose, or the importance of effective training and guidance, and not for one second can we underplay the need for a communication strategy that leaves the public in no doubt about what the new law means for them—a point that was acknowledged in the cabinet secretary’s statement earlier this week.

On the motion to repeal the 2021 act, there is no context, no detail or evidence, no proposal for a replacement and no acknowledgement of the consequences of repeal on legal practice and minority groups.

The Labour amendment does not acknowledge that it is a matter for not only Police Scotland but the Scottish Police Authority to ensure that officers are work ready, well trained and competent in their application of the law. The amendment also calls on the Scottish Government to urgently review the implementation of the act, but I am really not clear what that relates to. It possibly relates to the public education point that Katy Clark raised in her question to the cabinet secretary during yesterday’s statement.

On the point about reviewing the operation of the act, that fails to acknowledge the reporting requirement in Sections 14 and 15 of the act, which require the Scottish Government to publish reports on hate crime convictions and on hate crime recorded by the police. Neither the Tory motion nor the Labour amendment makes reference to the fact that Police Scotland is accountable to the Scottish Police Authority. Indeed, the SPA has been tracking and analysing reporting since 1 April. That is its role.

Of course, as has been previously mentioned, there is a mechanism embedded in Parliament for post-legislative scrutiny, which exists to consider the effectiveness, or otherwise, of law.

In the cloudy landscape of media discourse, there have been some glimmers of positivity. Professor Adam Tomkins, who was convener of the Justice Committee during the passage of the bill, has stated that

“the new hate crime act has been misrepresented by intemperate voices on the left and the right.”

James Chalmers, who is regius professor of law at the University of Glasgow, describes the act as providing

“a more accurate label for prosecuting serious cases of hatred.”

Earlier this week, Andrew Tickell, who is a senior lecturer in law at Glasgow Caledonian University asked:

“Can it really be Scottish Tory policy that harassing the disabled, assaulting ethnic minorities and daubing antisemitic abuse on synagogues should not be treated in Scots Law as aggravated by prejudice? Because that’s a big part of what repealing the Hate Crime Act would achieve.”

I sincerely hope not.

[Made a request to intervene.]

The member is about to conclude.

Audrey Nicoll

Hate crime is everyone’s business and it ruins lives. I hope that the motion is more about political gesture than it is about a serious proposal. I urge members to support the Scottish Government’s amendment.


Liz Smith (Mid Scotland and Fife) (Con)

It is the Parliament’s 25th anniversary year and the thoughts of many journalists and commentators are rightly focused on how well it is functioning and, in particular, on whether we are capable of passing good law. Now, good law is, as Adam Tomkins reminded us, the concept in jurisprudence that decrees that a legal action is both valid and able to hold legal weight—not a law that has had to be overturned or rendered obsolete. It is a law that is the basis for effective policy making and, as such, it requires clarity of purpose; to be understood in simple language; to be strong in its evidence base; to be workable; and, of course, to be accepted by the public. In short, it should balance the requirement for simplicity with legal precision. Those are surely the criteria against which we should examine the 2021 act.

I do not doubt for a minute that the basic intentions of the act were good ones. Who can argue against the fact that hate is an all-too-prevalent cancer in our society, and who can argue against protecting vulnerable minorities who tend, all too often, to be the victims? That is why, during stage 1 of the bill three years ago, those principles were supported by every party in the chamber. The problem is not the intention but, as only the Scottish Conservatives pointed out at the time, the fact that the act does not meet the thresholds for good law. Instead, it constitutes bad law, because it is based on unsound interpretation of the legal principles and on a proposition of law that is erroneous.

Now, the First Minister and the proponents of the act assure us that the bar for prosecution is set high, but we have found out that the police have been recording hate incidents even if they do not meet a criminal threshold. Worse still, individuals might not know that they are on the recorded list, as happened to Murdo Fraser. That assurance does not hold water.

Will the member take an intervention?

Liz Smith

I will not, if the member does not mind.

Nor does the fact that there is no clear distinction between private and public settings. It is rightly anathema to free-thinking Scots that, potentially, in the privacy of their own home they can commit a crime that will be reported on.

The real problem for the act is that it is attempting to crack down on a problem that is not clearly defined, thus muddying the waters about the right balance between freedom of expression and human rights. It goes well beyond Lord Bracadale’s review, because it is based on how you are perceived by someone rather than on your belief or action.

As the Law Society of Scotland reminded us at stage 1, all victims of whatever characteristics cannot by this act have the same expectation of what is offending behaviour. That means that there is no clear line between offensive behaviour that has been criminalised and that which has not, which is no doubt why the Scottish Police Federation is so concerned about the act being unworkable.

There is a wider issue here, too. Why is it that, when so many stakeholders raised concerns, they were not listened to by the Scottish Government? The First Minister tells us that the current controversy about the act is largely a result of misinformation and misrepresentation among what he described as the “Holyrood bubble”? How wrong he is if he thinks that it is just politicians making a fuss.

However, what bothers me more is the fact that this is by no means the only example of the Scottish Government’s unwillingness to listen in order to prevent the enaction of bad law. We saw it in gender recognition, in offensive behaviour at football, in railway policing and in named persons law, all of which failed to adhere to the principles of good law.

Despite the good intentions, part 2 of the 2021 act is illiberal, intrusive and deeply flawed, and just as for named persons law, it is deeply unpopular with the public because they can see those glaring flaws all too clearly. Just as for named persons, the legal responsibilities are confused. Just as for named persons, the Scottish Government does not appear to be listening to the legal advice, the police or the many stakeholders who feel that it will be an intrusion into privacy and personal choice. Just as for named persons, fair-minded people can see that the act as it currently stands is unworkable.

The Scottish Conservatives opposed the Hate Crime (Scotland) Act 2021, not to scaremonger or to incite fear, but because it was wrong. That is why it should be repealed. I finish by saying that not only should the Scottish Government be asking itself about why it fails to heed the right advice; so, too, should this Parliament be reflecting on why it ends up with too much bad law. That is a debate for another day.


Carol Mochan (South Scotland) (Lab)

Today’s debate is an important one, because we need robust good law and we must discuss things if they have not gone well. In my view, the SNP has yet again failed to effectively implement important legislation. Constituents are telling me that the SNP runs a Government that is founded on incompetence, and, in the past few days and weeks, the Government has been in denial about the strength of feeling across communities on the issue.

Poor governance and poor implementation of legislation will inevitably lead to challenge after challenge and struggle after struggle. For the First Minister, that has been the story of his leadership so far. Why is that important? It is important because people lose confidence.

Alasdair Allan

Will Carol Mochan acknowledge the point that the minister made some time ago that, regardless of what members’ views are about implementation, there have been orchestrated campaigns in this country to, I would go so far as to say, waste police time around the implementation of the act by what I think can only be called bad-faith actors.

Carol Mochan

I will go on to discuss the way in which we, as parliamentarians, need to be responsible in this area.

The implementation of the 2021 act and the subsequent reaction by the Government has shown that the Government is not performing. It is completely out of touch. Again, I want to make the point that the reason why that is important is that it causes our communities to lose faith.

As my colleague Pauline McNeill noted, the SNP had an opportunity to show that the act could be sensibly and correctly implemented, but instead we have ended up with a disastrous messaging system while completely failing to resource and train Police Scotland. It is not an issue on which the SNP can employ its usual dither and delay tactics; it needs urgent and purposeful action to correct things before our communities completely lose faith.

Siobhian Brown

It is important to highlight that, for the past year, I have regularly met justice partners, including Police Scotland, and we were not going to implement the 2021 act until Police Scotland was ready with the implementation of its computer system and with training. The date was, therefore, on Police Scotland’s terms.

Carol Mochan

If we are to have a mature debate about the 2021 act, we must acknowledge that we can see that Police Scotland is struggling. We know that it is underresourced and that the training that is in place consists of only a small two-hour package. Given the importance of this legislation, that is not enough.

I will not go back over the points that Michelle Thomson, Pauline McNeill and others have made about the legislation’s compliance with human rights law, because the minister has tried to address that issue, but I hope that the cabinet secretary will address it again in her closing remarks.

What is important is the way in which our communities are being failed. We are failing on the messaging front but, more importantly, we are failing on the promises that were made, which the minister reiterated in her opening remarks, on tackling hate crime in this country. It is important that we tackle hate crime in Scotland.

I cannot, in good conscience, sit back today and listen to the Conservative Party try to take the moral high ground. Conservative members in the chamber are part of a Conservative Party that tries to pit workers against workers, which politicises the most vulnerable in our society, including those who are seeking refuge, and which has fallen so far that it has no interest in fighting an election on its record, preferring to do so by dividing communities and creating tensions within them.

Will the member give way?

Carol Mochan

Not at this point.

I urge the public to see the motion from the Conservatives today not as a call in favour of freedom of speech or expression but rather as a further attempt to exploit those who are often the most vulnerable in our community. I maintain that there is nothing positive to say about the SNP’s implementation of the 2021 act, but the Conservatives’ approach is, in my view, opportunistic, and I am confident that the public will see that.

Will the member give way on that point?

Of course.

Liz Smith

I am not sure whether the member has been following what Conservative members have said in the debate. The reason why we oppose the 2021 act and want it repealed is that it is based on bad law. It has nothing to do with political opportunism or anything like that—it is based on bad law, and that is why so many people in Scotland object to it.

Carol Mochan

I always find the member’s contributions to be very reasonable, but in the context of this framework, I find that the Conservatives do not perform well.

I do not have much time left, so it is important that I turn to the Labour amendment, which calls for the use of section 12 of the 2021 act

“to add the characteristic of sex as an aggravator and protected characteristic under the Act”.

I have limited time, but I ask members to consider that. Why do I believe that? We only have to listen to some of the excellent speeches that were made by women at that time, including by my colleagues Johann Lamont and Pauline McNeill, who, along with others, contributed greatly to that debate. The minister and the cabinet secretary must accept that we cannot wait for four years and that continuing on the same path that they have been taking does not mean that the issue will disappear.

I do not have much time left, so I will close. I hope that the Parliament will support Labour’s amendment, because it sets out a balanced way to approach how we can implement this very important legislation.


Rona Mackay (Strathkelvin and Bearsden) (SNP)

I welcome the chance to speak in the debate both as a current member of the Criminal Justice Committee and as a member of the Justice Committee when the bill that became the Hate Crime and Public Order (Scotland) Act 2021 was passed.

This debate will, I hope, sort the fact from the fiction, of which there has been an abundance since the start of the month. In 2021, the Justice Committee was convened by a former Tory MSP, the professor of public law Adam Tomkins, who skilfully steered the bill through the various stages until it was passed by 82 members in the Parliament.

In recent weeks, Professor Tomkins has confirmed that some of the key pillars of the new law, such as its provision criminalising the stirring up of hatred, have been around for decades. Indeed, stirring up of racial hatred has been on the statute book in Scotland since 1986. Professor Tomkins explained:

“What the Hate Crime Act does is to take that core idea (stirring up racial hatred) and apply it to a range of ‘protected characteristics’: not just race”—

Will the member tell me how Professor Tomkins voted in relation to this legislation?

Rona Mackay

I am aware that he did not vote for it. I am not talking about that; I am talking about his recent comments and the process of the bill going through the committee. He had his own reasons for not voting for it.

Professor Tomkins said:

“What the Hate Crime Act does is to take the core idea ... and apply it to a range of ‘protected characteristics’: not just race, but religion, sexual orientation, transgender identity, age and disability”.

He went on to say:

“this idea is not new. In England it has been a crime to stir up hatred on religious grounds since 2006 and on grounds of sexual orientation since 2008 ... One of the things the new Hate Crime Act does is to bring that anomaly to an end.”

Crucially, Professor Tomkins confirmed that

“Offensive speech is not criminalised by this legislation”.

Let us be clear that hate crime has a hugely damaging and corrosive impact on victims, their families and communities. People are afraid to leave the house, are being bullied and harassed at work, and are living in a state of perpetual fear. I cannot imagine how difficult and distressing that must be.

The 2021 act is designed to protect people from the worst of that human behaviour and to give them greater protection. Who could argue with that? The Tories, apparently, with their ludicrous motion, which would leave Scotland the only nation in the United Kingdom with no protection at all for vulnerable groups.

Does the member not concede that, whatever the bill—which, at stage 1, she will recall, we all voted for—and the act were designed to do, it is the implementation that is fundamentally flawed?

Rona Mackay

I am not sure that it is reasonable to talk about implementation 17 days after an act has been introduced.

The Tories want to roll back on commonsense legislation that is designed to protect our citizens who need it most. It is incredible that a motion has been lodged that could roll back protection and give free rein to hate speech and abuse.

The 2021 act has been deliberately—and wrongly, in my opinion—conflated with the debate around transgender rights, despite disability, faith and sexual orientation also being protected characteristics. The fact is that the debate should not be so divisive. No one wants to curb free speech, and the act certainly does not do that. The right to freedom of expression is specifically included in the legislation. The act is also compatible with the European convention on human rights, including article 10, which protects everyone’s right to freedom of expression. There is also a defence available if

“the behaviour or communication ... was, in the particular circumstances, reasonable.”

The new laws were developed following Lord Bracadale’s independent review of hate crime legislation, which concluded that new specific offences relating to stirring up hatred were needed. The legislation was subject to extensive consultation and engagement throughout, including with communities affected by hate crime. It was widely amended on a cross-party basis and is probably the most amended bill that I have ever been involved in.

The act has a high threshold for criminality. For the new offences in the legislation, it has to be proved that the behaviour is “threatening” or “abusive” and intended “to stir up hatred”. If the act was repealed, as the Tories want, we would in effect be condoning the stirring up of hatred against minorities and vulnerable people.

Hate crime is behaviour that is criminal and rooted in prejudice. It can be verbal, online or physical. It is ugly and has no place in a modern Scotland where our police officers are trained to combat prejudice. The pity is that, such is the level of misinformation, Police Scotland has had to correct inaccurate media reports about training materials—a level of misinformation that has opened the doors to a flood of vexatious anonymous reports to the police. I am willing to bet that they come from people who complain that the police do not have time to fight crime. The irony is astounding.

I find it interesting, but probably not surprising, sadly, that the stooshie around the act did not take place in any other part of the UK or internationally where hate crime legislation is in place. The underlying reasons for that are, of course, open to debate.

I want my children and grandchildren to grow up in a Scotland without hate and prejudice and to know that everyone is equal, whatever their race, disability, transgender identity, sexual orientation or age. Repealing the act would do future generations a great disservice, and Scotland deserves better. I will not support the motion at decision time.


Jamie Greene (West Scotland) (Con)

I really need to clear something up. Having a problem with the act does not and never will mean that we condone hatred in any shape or form. I say that directly to the members who have stated that, because hatred in all its forms is wrong. Racism, antisemitism, Islamophobia, homophobia, transphobia and misogyny are all wrong. That is not up for debate with me.

The problem is that Lord Bracadale’s suggestion that Scotland’s hate crime landscape was confusing was probably correct. The early incarnation of the hate crime legislation was probably well meaning. We never disagreed that tackling hate crime was important, and we never disagreed that the bill improved as it went through the legislative process. However, we were also clear that our red lines had been crossed.

Much has been said about Professor Tomkins, who is not here to speak. However, what he said is a matter of record. He voted against the bill, and here is why, in his own words:

“Even as amended and after all the work that we have done, the bill continues to pose a real risk to our fundamental rights and liberties”.—[Official Report, 11 March 2021; c 47.]

It is there in black and white. He, I and eight others in the chamber did not support the final proposal. It is interesting that none of those eight is still in the Parliament today.

Liz Smith was absolutely right. Bad law with good intention was becoming the norm in the previous session of Parliament. Laws that created confusion rather than cleared it up were also becoming the norm. At least the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012, which was one such error, was repealed when the Parliament finally showed some grit and teeth. Those were the days.

Our red lines were unambiguous and clear. First, the bill was not, as has been claimed, directly comparable to legislation elsewhere in the UK. It clearly went much further. Secondly, the bill created offences that were vaguely worded, widely misunderstood and impossible to enforce. We now know that. Thirdly, and fundamentally, the act has fallen on its own sword of unnecessary intrusion into individuals’ rights, including their privacy in their own home. That is why we voted against the bill.

Yes, we tried to improve the bill. There was the dwelling defence in amendment 5 and the inclusion of sex as a protected characteristic in amendment 4. I voted for both amendments, but the Government did not.

It was clear back then that the bill was way more than a consolidation bill. It veered far into the territory of articles 8 and 10 of the European convention on human rights. Everything that we said would happen has happened. The act has become a vehicle for huge numbers of vexatious complaints to the police. A person can be accused of a hate crime with no means of finding out by whom or why, and they will have no idea if any record remains of that. That should be a concern to all of us, whatever our politics.

The question was never about whether we were for or against tackling hatred—that is a nonsensical argument. It is about whether this law was the right way to go about it. Is the legislation clear, proportionate and enforceable? If it failed those tests, I would not support it, and I did not support it.

Like many people—albeit for different reasons—I have experienced my fair share of bigotry over the years. My poor office staff have to delete most of that, and my poor mother reads the rest of it on Facebook. However, the question is how I choose to respond to it and, more importantly and philosophically, whether people hold the fundamental right to hold views towards me that I or others find offensive.

Back in 2021, Humza Yousaf, who was then the Cabinet Secretary for Justice, was clear. He stated that, if someone believes that

“sex is immutable”

or if

“they proselytise that same-sex relationships are sinful”—[Official Report, 11 March 2021; c 28]

they would not fall foul of the law. For the record, I disagree with both comments. Stating a belief is not what this law was about. Given that there have been 10,000 reported hate crimes since 1 April, the question that we must ask ourselves today is: how many of those were actually about what this law is about?

Of course, we need laws to protect people. I benefit from laws that protect me. People cannot discriminate against me because of my sexuality. I supported in the Parliament—perhaps not without consequence—reform to gender recognition, and I do not regret that. However, I struggle to see why it becomes a police matter if somebody holds a different view on that matter from mine and expresses it. That is the conundrum that I have grappled with all the way through the process, because I fundamentally believe in freedom of speech.

The bill ventured way into the territory that criminalises not just what a person says or what they do, but how they are perceived. Free speech does not mean carte blanche to say anything to anyone we want at any cost, with no recourse or consequence—I understand that. However, we do no justice to tackling hatred if people believe that their thoughts and views are being policed in the most granular and inappropriate way that a Government can police them. That was my red line back then, and it is still my red line today.

Sometimes Governments just make bad law—it is as simple as that. They make laws that do not eradicate hatred and do not inform the public discourse. I say to members that, if I thought that I had made a mistake by voting against the bill the first time around, trust me, I would say so. Today, we have the rare benefit of hindsight and today, I, too, will vote to repeal the act.


There has been a vast amount of misinformation about the act. That is why I wanted to speak today.

We have heard a lot about misinformation, but can Stuart McMillan point to one specific example of misinformation from members in the chamber?

Stuart McMillan

I have just started my speech. I will continue it. Let us see whether it answers Mr Findlay’s question.

At the outset, I put on record my disappointment at the way that the legislation has been conveyed publicly. Sadly, some media outlets have helped to peddle the narrative that the Hate Crime and Public Order (Scotland) Act 2021 is about limiting or removing free speech. That could not be further from the truth. Fundamentally, hate crime is behaviour that is both criminal and rooted in prejudice. It can be verbal, physical, online or in person. The act aims to tackle the harm that is caused by hatred and prejudice and to provide greater protections for victims and communities.

The legislation does not—I repeat, does not—prevent people from expressing controversial, challenging or offensive views, nor does it seek to stifle criticism or rigorous debate in any way. The right to freedom of expression is specifically built into the act.

It is the height of hypocrisy that the Conservatives are asking the Parliament to repeal the act, citing free speech limitations, when their Westminster colleagues are campaigning for the UK to leave the European convention on human rights.

Earlier, Audrey Nicoll spoke eloquently about the consequences that would result from repeal of the act.

Pauline McNeill

I quite agree with the member. The intention behind the act—and importantly, it was amended as such—was that people could express their views even if they were insulting or offensive. However, I wonder whether Stuart McMillan has given thought to what Murdo Fraser said. If there is a high bar for criminality, why are we experiencing issues with people being reported to the police for doing things that should not concern a police station?

Stuart McMillan

I know that Pauline McNeill poses a genuine question. Earlier, one of my colleagues spoke about some of the actors in society who do not want the act to succeed. Sadly, there are bad actors in our society, and we have to accept that there are. Not everyone is a bad actor, but there are bad actors. In my opinion, some of those bad actors will have had an effect on what has happened in the media over the past couple of weeks.

I go back to the point about the UK seeking to withdraw from the European convention on human rights. That is despite the UK having drafted the ECHR and being one of the first states to ratify it in 1951. The issue is important because the ECHR offers significant protections on the rights to life, liberty, a fair trial, freedom from discrimination, freedom of assembly and freedom of expression, among other legal safeguards. Despite some of the grandstanding by the Prime Minister, the UK remains a participating member of the convention, of the European Court of Human Rights and of the Council of Europe. Whereas the Conservative UK Government seeks to abandon human rights, the SNP Scottish Government seeks to further enshrine them through our proposed human rights bill.

Another crucial point that has been lost in some of the public discourse is that the Hate Crime and Public Order (Scotland) Act 2021 mirrors legislation in England and Wales. We would not believe that to be the case from reading some of the criticisms that the law has attracted online. That is an inconvenient truth for those who do not support the Scottish Government, devolution or the Scottish Parliament. The continual talking down of the Scottish Parliament and what it does has gone into hyperdrive in recent years. The criticism of the 2021 act is just the current manifestation of those actions.

Will the member take an intervention?

Stuart McMillan

I have already taken two interventions.

For clarity, the new offence—of threatening or abusive behaviour that is intended to stir up hatred based on prejudice towards characteristics, including age, disability, religion, sexual orientation, transgender identity and variations in sex characteristics—reflects the law in England and Wales, which recognises five types of hate crime based on race, religion, disability, sexual orientation and transgender identity. Any crime in England and Wales can be prosecuted as a hate crime if the offender has either demonstrated hostility based on those characteristics or has been motivated by hostility based on those traits.

As you know, Presiding Officer, and as members should know, the offence of stirring up racial hatred has been on the statute books in Scotland since 1986. Therefore, the stirring up of hatred provisions in the 2021 act are not new, and the new law implements a higher threshold for criminality than the long-standing stirring up of racial hatred offence.

As politicians, I am sure that we all recognise that hate crime does not just take place online. Sadly, we all know of colleagues in the chamber who have experienced threats. Sometimes, those threats have extended to our staff. That has been the case recently in my office. I mention that as a reminder to all MSPs of the role that we play in informing the public about legislation that has been passed in the Parliament. It is a simple law of physics that, with every action, there is a reaction. Whether or not it is intentional, misleading people is counterproductive and, in some instances, it can be dangerous.

I thank the cabinet secretary for her statement yesterday, although it is sad that it had to be made. Clearly, lessons have to be learned about how legislation is communicated to the public but, fundamentally, we as legislators must consider our language and our actions. Politics can be a robust business, and that is healthy in any democracy. However, we should not allow our criticism to cloud debate with misinformation, as I have regrettably found to be the case on too many occasions when discussing the act.


Maggie Chapman (North East Scotland) (Green)

It is clear that many Conservatives do not like the idea that victims and survivors of threatening or abusive behaviour on account of disability, religion, sexual orientation, transgender identity or age deserve the protection of the law. The Conservatives want to repeal the legislation that was passed by an overwhelming majority of this Parliament three years ago—a majority that included one of their members.

At a time when hate crimes have been increasing against, for example, disabled people and against people on the basis of their sexual orientation, and given the previously confusing hate crime legislation in Scotland, it is clear why Lord Bracadale considered such legislation necessary. If the Hate Crime and Public Order (Scotland) Act 2021 were to be repealed, we would have, at best, fractured and scattered protections against hate in Scotland, given that the act repealed previous hate crime legislation. If that is the intent of the Tory motion today—if the Tories really want us to have virtually no hate crime legislation in Scotland—it is a pretty damning indictment of what that party thinks of so many of the freedoms that are outlined in much of international and UK human rights law and other civil protections.

We have heard much in Tory contributions about how we must stop sowing division in Scotland, about the importance of freedom of speech and about the value of communities coming together. I do not disagree with those sentiments or intentions, but it is clear that the debate is in danger of being flooded with the crocodile tears of Conservatives, because they care not a jot about freedom of speech. Their party, which is in government at Westminster, is responsible for a series of authoritarian attacks on the rights of people to express themselves. If it is not curtailing the right to protest, it is supporting the police in arresting journalists who are covering those protests. All of that is served with a side of undermining workers’ rights to withdraw their labour.

Such restrictions, as contained in the Police, Crime, Sentencing and Courts Act 2022 and the Public Order Act 2023, to name but two, have been condemned as draconian and deeply concerning by UK and international human rights organisations. The UK Government cheerfully steers the country into the third tier of the index on censorship rankings for freedom of speech, while those in the chamber claim that the only important thing is that they or their pals get to freely misgender people, stir up hate and generally make people feel unsafe.

The UK ranks alongside Moldova in relation to freedom of expression in no small part because of UK Government policy. It is all of a piece with a broader Tory agenda to silence opposition. While universities in England are to be compelled to host hate speakers, Priyamvada Gopal was disinvited from a Home Office event for having the temerity to write about the failings of the British empire. If someone wants to promote sexism on campus, the Tories are all for it, but if someone wants to point out that British forces tortured Kenyans during the Mau Mau insurgency, they will be silenced. The Conservatives are interested not in free speech but in silencing opponents and giving a free platform to those who want to spread the sort of speech that they agree with. Given that, today, they are opposing measures against hate speech, I think that we can all see what the character of the speech that they support is.

The legislation, which was passed with cross-party support three years ago, does two main things. It requires courts that deal with existing crimes, such as assault and criminal damage, to consider aggravating hate factors, and it creates new offences of stirring up hatred. Neither of those things is entirely new or unprecedented. Scottish law already recognised that, when an offence is prompted by, for example, racial or religious hatred, the sentence should reflect our society’s shared belief that such bigotry is unacceptable. Similarly, we already had a long-standing law against stirring up racial hatred, while other parts of the UK also have laws against stirring up hatred based on people’s religion or sexual orientation.

The 2021 act brings those provisions together and extends protection to the characteristics of age, transgender identity and disability. It rightly retains the existing robust understanding of stirring up racial hatred but, in relation to the other characteristics, there are multiple safeguards to ensure the protection of free speech. It is only when someone intends to stir up hatred and is not acting reasonably—when a reasonable person would consider the behaviour to be threatening or abusive—that an offence might be committed. The 2021 act does not criminalise discussion of gender issues, criticism of policies or ridicule of religion. It also abolishes the outdated offence of blasphemy, as the minister outlined.

Contrary to what the Tories would have us believe, the 2021 act is not an act of censorship; it is one of protections—protections for people who should never have to face abuse, violence or hate, in person or online, just for being who they are.


Fergus Ewing (Inverness and Nairn) (SNP)

The life of the hate monster was a short but infamous one, because it became known all over the world, as I heard from friends in places as far away as New York and the far east. It achieved something that I did not really think was possible—for a short while at least, the hate monster became better known than the Loch Ness monster. I had not contemplated that that would be possible.

I hope that it is axiomatic—others have made this point—that everyone in the chamber must abhor hateful, abusive, horrendous and disgusting remarks and behaviour of a very serious nature. It is not helpful to the debate to suggest that some members in the chamber with whom we might happen to disagree politically somehow condone, permit or, in some way, favour the expression of hatred. Nobody does that here; we are a civilised chamber. That is not a sensible point to make in the debate, and it does not travel well.

Are we saying that people outwith the political bubble, class or whatever we want to call it—people such as Lord Hope, those in the Police Federation and J K Rowling, whose world is not of politics and who have other interests entirely—are in favour of condoning, permitting or encouraging hatred? Of course they are not. They are expressing legitimate criticisms.

As it happens, and not just because I voted for the bill when I was bound by collective responsibility, although I would have liked to have included women as a protected grouping and regretted that they were not included—that really must be put right—I will not vote for the Tory motion, because I do not believe that the act needs to be repealed, as Liam McArthur argued in his excellent contribution.

However, there is a strong case that the act should be reformed, in many ways. I do not have time to address all of the issues, so I will address just one, which is the issue of non-crime hate incidents, which is almost an oxymoron, actually. As a lawyer and someone who has studied the law almost every day, in one way or another, since 1979, and who studied before then at Gilmorehill, I remember attending criminal law classes and reading Gerald Gordon’s excellent text and studying crime; I do not remember the chapter about “non-crime hate incidents”. In fact, I do not remember any chapter about “incidents”. What are “incidents”?

In Scotland, if someone is charged with a crime, they have the right to defend themselves—the right to a fair trial. That is our system. However, that does not apply to these “incidents”. Mr Fraser’s experience is absolutely apt. I understand from discussion with him that he found out that there was a black mark against his name only because the complainant had made a complaint to the Ethical Standards Commissioner, who then informed Mr Fraser of it. It was thus only fortuitously that Mr Fraser even found out that there was a black mark against his name.

I should say that I have given notice to the justice secretary of this line of argument. Yesterday she dealt satisfactorily with many of the points that concerned me. I respect her efforts and appreciate her help, and I know that she advocates a review by the police and Martyn Evans.

Angela Constance

I am grateful to Mr Ewing for giving way. Obviously, I need to take some care when individuals have complaints and issues in relation to which they may or may not be seeking legal redress. I also need to be very careful not to step into operational matters. However, I want to put on record the conversation and exchange that I have had with Mr Ewing.

I have, indeed, discussed issues in and around the broad policy of non-crime hate incidents with the chair of the Scottish Police Authority, and very much intend to do so again. I accept that clarity on these matters is very important.

Fergus Ewing

I thank the justice secretary for the engagement.

I gather that, if I were to make a subject access request to the chief constable as to whether there are any marks against my name, I would get a blank sheet of paper. He would not tell me, because apparently the information is held on something called an interim vulnerable persons database. When have we debated that? I do not recall it.

Is it not even more insidious that you can have a black mark against your name without even knowing about it? In what sort of democracy are we living? I used to read serious novels. I do not any longer, but I remember reading Franz Kafka, and that is the name that springs to mind. This is not a feature of western democracy, where the right to a free trial is a cornerstone and a pillar of our system. It is an abnegation of that. Why are we tolerating it?

With respect, cabinet secretary, the role of this Parliament is giving a lead, not just leaving it to the police and sitting on the sidelines as a spectator.

You must conclude, Mr Ewing.

Fergus Ewing

The suggestion that I made—which is that there should be an independent expert human rights lawyer selected after agreement with all relative parties to ensure an irreproachable degree of independence—would be the right way to take that forward and end what I see as a perversion of our justice system in Scotland.


Liam Kerr (North East Scotland) (Con)

In looking at the amendments—both those selected and those not—and listening to the remarks of the parties that lodged them, it is striking how surprised they all seem at what has transpired, because everything that has happened since the act came into effect was warned about loud and clear during the bill’s passage.

Lucy Hunter Blackburn warned:

“The people this will get used against are much more likely to be working class”.

That was followed recently by the stupid, infantilising hate monster campaign, which says, utterly egregiously:

“We know that young men aged 18-30 are most likely to commit hate crime, particularly those from socially excluded communities”.

Police Scotland warned in its submissions at the time that the bill’s costs had been “grossly underestimated” and sometimes completely unaccounted for. That was followed last week by the SPF warning that the act will lead to front-line spending restraints and reduced ability to deliver effective policing.

Scott Wortley warned that the legislation

“leaves it open for pressure to be put on people through vexatious complaints which take time and energy to defend.”

Roddy Dunlop warned about potential “weaponisation” at the time of the bill. That was followed last week by a 74-year-old, mild-mannered pensioner being left traumatised, distressed and shaking, having been arrested for being—reportedly vexatiously—accused of a verbal hate crime.

The Society of Editors warned that

“the ‘reasonable person’ test stands every chance of being highjacked and used to silence free speech and penalise a free media.”

That was followed by Scottish PEN recently expressing “deep alarm” at police officers potentially questioning a comedian for making an offensive joke or an actor being reported for communicating threatening or abusive material.

Finally, the Law Society expressed concerns that

“the freedom of expression provisions ... lack a degree of clarity and send confusing messages”

such that people do not know what the boundaries are or might unintentionally commit a hate crime. We now see the pantomime hate monster telling us:

“before you know it, you’ve committed a hate crime”.

The minister, on national radio last week, and the cabinet secretary, just yesterday in this chamber, have wrongly stated that behaviour must be both threatening and abusive to be criminal. If even the Government that introduces the legislation cannot get it right, what chance do the public have?

Despite all the warnings, instead of doing their job and dispassionately and competently assessing the law and ensuring that the act turned basic principles and intentions—on which we were all agreed—into coherent, clear, workable law, supine MSPs from all parties bar the Scottish Conservatives voted through the act in the previous parliamentary session.

We cannot ignore the role and approach of the then Cabinet Secretary for Justice, a man who—the Official Report shows it—hid behind the shield of Government numbers while attacking with the sword of sarcasm and supposition to defeat sensible amendments from across the chamber and who set his face against the voices of civic Scotland, which warned him over and over that, although the principles of hate crime protection may be sound, the implementation would be exactly what we now see coming to pass. This is the author of what was, at the time, the most controversial bill in Holyrood history—the First Minister, who, on the act’s implementation, has not even bothered to come to the chamber today.

That suggests one of two things about the current First Minister: either he was so blinded by dogma and ideology that he was prepared to throw good law, good principles and workable protections against hate crime under the bus, or he was simply incapable of understanding how laws are drafted and operate. Perhaps both are true.

During the process of amending the bill at stage 3, I said:

“We must make law to protect people, but we must also make good law—law that does what it needs to do without unintended consequences.” [Official Report, 10 March 2021; c 82.]

The previous Parliament failed to achieve that, and Scotland has on its statute book an act that will not work, that will be counterproductive and that, in many respects, looks like being actively prejudicial. In the streets and in my inbox, people across Scotland are frankly shocked by how this unworkable legislation wormed its way into public life—rammed through by a group of craven SNP MSPs who were egged on by Labour and the Liberal Democrats.

Let this Parliament right the wrongs of the previous one by consigning the appalling Hate Crime and Public Order (Scotland) Act 2021 to history and, with it, the premiership of this incompetent First Minister.


Christine Grahame (Midlothian South, Tweeddale and Lauderdale) (SNP)

Well, I have been called craven now, which is news to me. I will put my cards on the table: I prefer light, not heat, and fact, not fiction, so here are some facts. Let us look at the hate crime statistics, which predate this legislation.

Since 2014-15, the number of hate crimes—I emphasise the word “crimes”—that have been recorded each year in Scotland has been between 6,300 and 7,000, so hate crime is not new, although perhaps the public, like many of us, were not aware of the extent of it.

Fact: just under a third of hate crimes in Scotland involved a victim who experienced the incident at their place of work or while undertaking duties as part of their occupation. Fact: most of those victims were working in retail or other service industries. Fact: in 2020-21, one in four recorded hate crimes had a police officer victim, with the figure rising to 37 per cent for religion and 45 per cent for sexual orientation-aggravated crimes. In January 2023, the police reported that nearly 7,000 hate crimes were recorded in 2021-22. So, such crimes have been being committed, perhaps without us realising or noticing.

What happened in the rest of the UK? Our legislation is not the same as, but is similar to, legislation in England and Wales, where the law recognises five types of hate crime on the basis of the characteristics of disability, race, religion, sexual orientation and transgender identity. However, we have introduced the characteristic of age, which is good and will, I hope, lead to older people reporting offences against them that have been committed, in part, simply because they are old.

Elsewhere in the UK, the stirring up of hatred on the ground of religion has been criminalised in England and Wales since 2007, and the stirring up of hatred on the ground of sexual orientation has been criminalised since 2010. In Northern Ireland, the law recognises the characteristics of disability, race, religion and sexual orientation.

Of course, our legislation follows the independent review that Lord Bracadale carried out in 2018. I will turn to a few of his recommendations. Recommendation 10 states:

“There should be a new statutory aggravation based on age hostility.

Where an offence is committed, and it is proved that the offence was motivated by hostility based on age, or the offender demonstrates hostility towards the victim based on age during, or immediately before or after, the commission of the offence, it would be recorded as aggravated by age hostility. The court would be required to state that fact on conviction and”—

I underline these words—

“take it into account when sentencing.”

We are talking about aggravations to crimes that have already taken place. That is what an aggravation is.

Recommendation 15 states:

“The current provisions in relation to stirring up racial hatred under the Public Order Act 1986 should be revised and consolidated in a new Act containing all hate crime and stirring up of hatred legislation.”

Recommendation 16 states:

“A protection of freedom of expression provision similar to that in sections 29J and 29JA of the Public Order Act 1986 and section 7 OBFTCA should be included in any new legislation relating to stirring up offences.”

What has followed—I am glad that the Government has admitted this—has been a failure to communicate adequately to the public that the offences in question are not new, with the exception of age as a characteristic, the inclusion of which I am sure that members welcome. However, in my view, that omission has been exacerbated by a deliberate Conservative campaign of disinformation—note that I use the word “disinformation”, not “misinformation”. In my opinion, that bare-faced opportunism probably fuelled the many spam complaints that were received in the first week of the legislation’s implementation. In the second week of implementation, that number dropped by 75 per cent.

I share Fergus Ewing’s concerns regarding Murdo Fraser’s experience and the experience of others, and I trust that the cabinet secretary will give Fergus Ewing’s full comments due consideration, because I think that he hit the nail on the head. I, too, will quote Adam Tomkins, the former Conservative MSP and professor of public law. In March, he stated:

“Offensive speech is not criminalised by this legislation: the only speech relating to sexual orientation, transgender identity, age or disability outlawed here is speech which”—

this is not mentioned in the quote, but I add that these tests are not alternatives but are cumulative—

“(1) a reasonable person (2) would consider to be threatening or abusive and which (3) was intended to stir up hatred and (4) was not reasonable in the circumstances.”

All of those tests must be met.

Unfortunately for me, the charge is led not by Liz Smith or Jamie Greene, who made considered contributions, but, as usual, by Russell Findlay, who is not known for forensic talents similar to those of Adam Tomkins with regard to legislation but has, apparently, an insatiable appetite for the next tabloid banner headline, with his self-indulgent, flamboyant and frequently reckless contributions here and, indeed, in committee. That might offend Mr Findlay, but I trust that he will appreciate that that is an example of my right to expression of free speech, which I know he will defend to the hilt.


Paul O’Kane (West Scotland) (Lab)

Although I was not in the Parliament at the time when the legislation was passed, I recognise, as colleagues have done, that it was accepted in good faith and that it sought to act on the findings of Lord Bracadale’s review, of which we have heard much this afternoon. We would all want to take a moment to recognise that hate crime is pernicious and deeply damaging. In his review, Lord Bracadale went out of his way to highlight the particularly challenging circumstances of growing Islamophobia and antisemitism in Scotland and, through his recommendations, he sought consolidation of the law to make things better around access to recourse in that regard.

However, the past fortnight, since the Hate Crime and Public Order (Scotland) Act 2021 came into force, must surely be instructive for the Government, because there has been a clear demonstration of how the chaotic implementation of a law that is intended to improve protections from hate for individuals and communities has actively undermined confidence in that law and in its operation more generally. Many colleagues, including Pauline McNeill in her opening contribution, have outlined that the principles of the act, which consolidates hate crime legislation into one body of law and seeks to tackle damaging hate crime incidents, have been weakened by the Government’s botched implementation. We need to reflect on a number of issues around that.

Pauline McNeill also highlighted that the omission of misogyny and sex-based hate crimes has left women feeling unprotected. There has been woeful communication, which has left people in the dark about what the act does and does not do, and implementation has been undermined by inadequate training and resourcing for Police Scotland. The Government has had three years since the bill was passed in which to ensure that the issues were dealt with—to ensure that the police were properly supported to train officers, to ensure that clear guidance was in place on practical implementation and interpretation, and to communicate clearly with the public about what was changing. We have heard about the three-year delay around the misogyny element, which could have been brought into the bill, and we are still waiting for progress on the stand-alone misogyny law. The inconsistent communication around the act has understandably confused matters.

Although we agree, on the whole, with the general principles of the law, we have to look at the serious problems that have been posed. A number of speakers have helpfully reflected on the challenges. Most notably, Liam McArthur and Fergus Ewing highlighted much that can be done to reflect on the legislation and improve it. It is also important to quote these words from Adam Tomkins, which we have heard many times:

“If we focus on what the Act actually means, rather than on what intemperate voices on both the left and the right are falsely claiming it means, we might yet make a success of it.”

That is where my contribution comes from today. The implementation of the act has not been a good example of how to go about introducing new legislation in Scotland.

I hope that the Government is in self-reflective mode, because it has to take stock of the challenges and problems that have been highlighted throughout the debate, such as the absence of clear communication and guidance and the need for the police to be well resourced and supported, and it has to ensure that progress is made on what is missing from the act. It is clear that a number of things must be done to reflect on the act and move forward, because we have to face the facts of where we are and what we can do.

Pauline McNeill’s suggestions and those in the Labour amendment point very clearly to what should be done. The Criminal Justice Committee should immediately undertake work to review the implementation of the act and look at the specific issues that I and colleagues have raised in the debate. In doing that, it should go into the level and nature of the complaints in the first week of implementation and what has happened with the drop in numbers. That important post-legislative scrutiny, which we are calling for today, should be undertaken by the Criminal Justice Committee, because it is crucial for moving forward.

It is also important that the Government reflects on the broader point of how we resource the police in Scotland. I am seriously concerned about the issues that have been raised by the Scottish Police Federation and others regarding how Police Scotland is resourced and supported. I ask the cabinet secretary to reflect in her summing-up speech on the cuts that have occurred in community policing across Scotland and the challenges that have been posed.

Will the member take an intervention?

Paul O’Kane

I am in my final 30 seconds. I am sure that the cabinet secretary will want to reflect on that issue in her concluding remarks.

I return to where I began. The intent of the law is right. I think that everyone in the chamber agrees that challenges exist in relation to pernicious hate, but it is clear to me that the Government has failed on the implementation of the law and on building public confidence. It must now act, as we ask in our amendment, to rectify the situation.

Keith Brown will be the final speaker in the open debate.


Keith Brown (Clackmannanshire and Dunblane) (SNP)

I will repeat a quote that Audrey Nicoll mentioned. She said that the senior law lecturer Andrew Tickell stated the following:

“Can it really be Scottish Tory policy that harassing the disabled, assaulting ethnic minorities and daubing antisemitic abuse on synagogues should not be treated in Scots Law as aggravated by prejudice? Because that’s a big part of what repealing the Hate Crime Act would achieve.”

Those were his words. However, during the debate, we heard the Tory spokesperson, when invited to do so, refuse to condemn hate crimes or even to acknowledge the existence of hate crimes in Scotland. Given that the Tory motion proposes no replacement for the act, we have to ask a different question: what is it about the absence of effective legislation on hatred against the vulnerable groups that are mentioned in the act that the Tories find so attractive?

The motion is performative. As I noted in my point of order at the start of the debate, it would have no effect on the law as it stands, so what underlies the Tory motive behind the motion? I think that Stuart McMillan was right—it is the latest iteration of the toxic elements of the Tory group trying to attack everything about this institution. There have been attacks on the police, on the judiciary, on the courts and on this Parliament. Of course, they could do what they usually do—they could go to big brother down south and say, “Why don’t you strike down this act of the Scottish Parliament?” I wonder whether any Tory MSP has asked the Tory Government or Alister Jack whether they would consider striking it down.

The trouble for the Tories is that, in a few months’ time, we will see the most venal Government that we have had in living memory thrown out. Who will they plead to then to beat down the Scottish Government?

I heard one Tory member refer to hiding behind the numbers. He was talking about the majority of this Parliament voting for the bill. That reveals the true nature of the Tories’ attitude towards democracy in Scotland. Of course, they have had a campaign with their usual friends. The reason why the Tories sometimes seem so certain of their case in the chamber is that every single word of it is parroted by their friends in the right-wing media.

Will the member give way?

I seem to have encouraged Douglas Ross to his feet. If he can be brief, I will take his intervention.

Does the member agree with Lord Hope, the former deputy president of the Supreme Court, who said that the legislation is unworkable and should be repealed?

Keith Brown

I can answer that very briefly by saying no. I do not agree with Lord Hope.

Over time, we will see, as we are starting to see, that if people act in good faith, the act can be effective in protecting the people that it seeks to protect. The reality is that the premise of today’s debate is the Tories’ objection to the policy. The level of misinformation about and mischaracterisation of the act that has, I am afraid to say, permeated the public discussion is really nothing to do with tackling hate crime but is actually a sad indictment of the political, media and online climate that we are living in today, in which outrage increasingly takes precedence over facts. As the cabinet secretary said yesterday, it therefore falls on all of us in the chamber to have a debate that is at least rooted in reality, respect and facts.

The climate that has been created has consequences, and the thousands of false complaints that have been made against people who obviously did not commit hate crimes are not only a huge waste of police time but a sad indictment of the misunderstanding of the act that has been peddled for all the wrong reasons. The fact that nothing has come out of many of the thousands of complaints proves that the fact that a person has discussed or criticised aspects of the protected characteristics and someone has been offended, shocked or disturbed does not make it a hate crime and that that is therefore—quite rightly—not criminalised by the law.

I was here during the passage of the bill. As we heard during that time, people of course have the right to be offensive to other people, including those in the protected groups. However, they do not have to do that; there is no obligation to be offensive to those people. Let us have a thought for the people in those groups, such as those who are suffering from antisemitism or Islamophobia. People are suffering if they are part of the groups that are characterised in the act because of the constant attacks on them, which are encouraged by the climate that we are now seeing. As has been said, they are very often fearful in their own homes, and that is largely to do with the public discourse around the legislation. Although we have the right to be offensive to people in those groups, we do not have an obligation to be so.

I, too, absolutely defend the right to be offensive. If that is what people want to do, they can, as part of free speech. However, the misplaced anger and frustration that have been generated by the reaction to the act is far too often channelled, not least online, towards the groups that the act seeks to protect.

Stuart McMillan mentioned the effect on many members. Like many members, I have had death threats—I think that I have had six now. I have had attacks in my constituency. My office manager was in the court all day yesterday trying to take forward a case against somebody who wanted to kill me. The abuse is constant. We all know that that is happening, but let us accept some responsibility when we feed that atmosphere, because it has real consequences. We have seen those consequences impact those down at Westminster; we do not want to see that happen here.

Will the member give way?

Keith Brown

I apologise, but I am in my last 30 seconds.

We have two different visions of Scotland, in my view. One is that we have a law that challenges hate and has the effect of protecting vulnerable communities. The other is the Tory vision for Scotland, in which such protections are no longer in place and there is no legal framework. Under that vision, we would not have the new provisions that the 2021 act has brought in, previous provisions would be removed and we would be the least protected part of the UK. That is the vision that the Tories have for Scotland, and we should reject it at decision time.

We move to winding-up speeches.


Katy Clark (West Scotland) (Lab)

I am pleased to close the debate on behalf of Scottish Labour. Hate and prejudice have no place in Scotland, and robust laws are needed. We know that the number of recorded hateful incidents has risen over a number of years, and it has been said in this debate numerous times that we already had hate crime legislation in Scotland. However, as Jamie Greene pointed out, the 2021 act is more than a consolidation.

I was interested in Audrey Nicol’s comment about the consultation process leading up to the legislation, which I believe shows again the inadequacy of processes that consult on general principles rather than on specific proposals and a draft bill. As Carol Mochan said, the Scottish Government has failed to recognise the strength of feeling on the issue in communities, and I believe that Murdo Fraser’s experience is one of the reasons why the act has been brought into disrepute. These are sensitive issues, and there has been a failure of leadership by the Scottish Government.

The debate in the previous session of Parliament highlighted the complexities of the provisions, and the first few days of the implementation of the act have been shambolic. As Russell Findlay said, the minister did not seem to understand the definitions of the offences created by the act, and there has been confusion about what is and what is not a hate crime. The police have been overwhelmed with complaints, and the Scottish Police Federation has complained about poor training. Yesterday, the Scottish Government’s response was to announce that it had published a fact sheet.

The chaos of the implementation of the act has led to a loss of public confidence. Siobhian Brown has said again today that there is a high threshold for criminality, but that point has not been part of the communications strategy. She also pointed to a fall in the number of complaints since the first days of the act. Today, however, she has again made ambitious claims about how the act will help marginalised groups. It is therefore hardly surprising that a large number of complaints have been made. The fact that Lord Hope has said that the act is unworkable shows the consequences of failures of communication.

As Pauline McNeill said, there is merit in some of the provisions in the act—for example, the aggravators. As has been said, Scottish Labour argued strongly during the passage of the bill that the characteristic of sex should be included in the legislation. We still believe that that characteristic should be added now, and it should not be necessary to wait for misogyny legislation.

Rachael Hamilton

Women were abused during the passage of the bill, and they are abused now. I believe that the SNP used the establishment of the working group on misogyny to address the concerns of Johann Lamont, whose proposed amendment at stage 3 sought to include sex as an aggravator. The SNP is using that work on misogyny as the justification for bringing that forward now, whereas it should have done it at the time. Is Labour going to call for a reform of the act or a repeal of it?

Katy Clark

I believe that the failure to include sex as a characteristic has been extremely damaging to the reputation of the act and indeed to the Scottish Government. We need to look at how this act has been implemented before we consider the misogyny legislation. As I said, our view is that sex should be added as a characteristic at this stage and indeed as an aggravator.

As the member knows, the Scottish Police Federation warned that training was just not going to be good enough to handle the inevitable surge in complaints and reported that officers had been allocated only a two-hour training course. We understand that one in five officers had still not completed the course a week after the legislation came into effect. The backlash against the hate monster campaign leads us to conclude that the communication of what the legislation means has been disastrous. Indeed, as has been flagged by the Faculty of Advocates and by many others, although the bar for prosecution remains high, many are concerned about how hate crimes are being recorded.

The Scottish Government has pledged to systematically collect data on hate crimes in line with United Nations recommendations. However, as my colleague Pauline McNeill has said, the Scottish Government must set out in its guidance the extent to which it believes the recording of non-hate incidents is human rights compliant, particularly given that, in England and Wales, vexatious complaints are no longer being recorded. It is for all those reasons that we believe the act needs to be reviewed. As we say, we recognise the need for strong and robust hate crime legislation, but guidance and training in relation to the act need to be urgently reassessed, and sex must be added as a characteristic.


The Cabinet Secretary for Justice and Home Affairs (Angela Constance)

The premise of the Conservatives today is that they are right and everyone else is wrong. I think that that diminishes their position and the propositions that they have put forward. It is, of course, important that none of us seeks to rewrite history—some members have spoken very well about the excellent cross-party collaboration as the hate crime legislation passed through Parliament. There were parliamentarians—the minority—who were fundamentally opposed to the legislation. Some members today, such as Liz Smith and Jamie Greene, have explained their position in a cogent and legitimate manner.

It is also to the credit of those who opposed the bill or who had concerns about it that they put aside their political affiliations and worked on a cross-party basis to amend the bill. Therefore, I am confident that we have robust legislation that will protect those who are vulnerable to the harm that is caused by hatred and prejudice, while protecting freedom of expression. It was Parliament at its best.

I pay tribute to Adam Tomkins, who has probably never been so widely quoted in the chamber. However, the fact that he voted against the bill gives extra credence to some of his remarks when he says:

“propagandists on both sides want to turn up the heat and, once again, much nonsense has been written about what the law will mean.”

Of course, Christine Grahame made a plea for more light and less heat—

Will the member take an intervention?

Angela Constance

Not just now.

In that regard, as I stated yesterday, I will own my responsibilities, but I will also challenge others to do likewise, because, Mr O’Kane, I think that the past few weeks have been instructive on a number of counts.

Will the member take an intervention?

Angela Constance

Not just now.

We know that misinformation and confusion such as people claiming that we have a law in Scotland that means that we cannot say anything derogatory about disabled people is a clear example of misinformation that fuels concern and will seek only to embolden the small minority of people who genuinely pose a threat of abuse and violence. I will not repeat everything that I said in my statement yesterday, because I very much want to help to move matters on and reflect on and address some of the substantive issues that members have raised.

I will come on to non-crime hate incidents and misogyny legislation in a moment but, before I do that, I want to emphasise that, in all this, we must not lose sight of those who experience hatred and prejudice every day. It is their voices that have been overshadowed and their voices that have not been heard. I think that Liam McArthur, Carol Mochan and Jamie Greene all spoke well to that in their own way. It was during a session that was conducted by Glasgow Disability Alliance to inform the hate crime strategy that an individual stated:

“the way it impacted on my health is, you get it so much that you just don’t want to live no more.”

I also have to acknowledge the correspondence that was sent to MSPs by 14 organisations such as Includem that are utterly supportive of the legislation and what it means to the communities that they represent.

Will the member take an intervention?

Angela Constance

Not just now.

To be fair to them, they have also made a plea, as have some members, for more accessible information. We will certainly act on that and pursue it. We will do that in collaboration, but it needs people to work together on a fair and equal footing.

The fact that there have been 445 police-recorded hate crimes in the first two weeks of the act reinforces the importance of the legislation and shows that it is working. Notwithstanding the high volume of anonymous online complaints, which have fallen by nearly 75 per cent, we know that not all hate crime incidents are reported. They do not all come to the attention of the police, and we still continue to have an issue with hate crime being underreported.

Will the member take an intervention?

Angela Constance

I am seriously running out of time, and there are some issues that I wish to address.

On police funding, £1.55 billion goes into policing in this country.

I will be quick, Presiding Officer.

On non-crime hate incidents, the purpose of that process is to focus on the vulnerability of complainers. I restate that it is important that policy is clear about what information is held about citizens, how it is used and in what circumstances. I have discussed that with the chair of the SPA, and I will do so again. I am more than happy to engage with MSPs on that. It is important to put on record that Police Scotland is looking at the guidance that came from the College of Policing and is reviewing its position, even though that guidance does not directly relate to Scotland.

In terms of misogyny legislation, we have a very clear programme for government commitment. It should come as no surprise. Our commitment was to implement the findings of the Baroness Kennedy review. At the time of the passage of the hate crime legislation, our commitment was that the Scottish Government would respond to the recommendations in that independent report after a year.

On Katy Clark’s very important remark, one of the reasons why we consulted on draft provisions for a misogyny bill was to get into the specifics and details early on. My plea to members across the chamber is that we should not start fighting about a bill that has not yet been introduced. Let us work together now for the sake of 51 per cent of the population, which is a majority, not a minority.

I end by saying that, if the 2021 act is repealed in full, Scotland would be the only country in the UK without specific legislation to protect communities from hate. How would that give the message to victims and perpetrators that hate crime will not be tolerated? So much for the party of law and order. Indeed, that sounds like soft justice to me.

I call Sharon Dowey to wind up the debate.


Thank you, Presiding Officer. The hate—

Will the member take an intervention?


Russell Findlay

Thank you—I apologise for the unorthodox approach, but it is because I could not intervene on the cabinet secretary. I whole-heartedly support Christine Grahame’s ability to make a flamboyant attack on me, but I was slightly disappointed at her refusal to take an intervention. She made the very serious allegation that our party is responsible for disinformation. Multiple SNP members have accused us of misinformation. I would like any SNP member to intervene on my colleague with one example—any example—of misinformation from me or my colleagues.

Sharon Dowey

Thank you for that.

The Hate Crime and Public Order (Scotland) Act 2021 came into force on 1 April. Already, as my colleagues have outlined clearly today, it has been a disaster, within just a few weeks of coming into force. My party warned that that would happen. We warned that it would risk free speech and overwhelm the police. We warned about that when the bill was first introduced, we reiterated it throughout the parliamentary process and we lodged amendments to prevent that from happening.

We have repeated the point countless times in the years since the Parliament voted for the law, and we have called for it not to go ahead. Just before it came into force, we again warned Humza Yousaf directly, in the chamber, that the law was unworkable. In just a fortnight, our criticisms have already been proved correct.

Before getting into the substance of our arguments, I will deal with the developments yesterday on the new law. Yesterday, seemingly in panic mode, the SNP gave a statement in the Parliament on the implementation of the new law. The Government barely accepted any responsibility for how badly the law has gone; it seemed to be blaming everybody else for its own mistakes. It is now desperately claiming that this highly controversial new law, which it used to hail as groundbreaking, is barely any different from older laws. It is still arrogantly dismissing almost all criticism. It is refusing to accept just how flawed the law is, even as it unravels day by day.

The Government’s response to the past fortnight of chaos was to issue a fact sheet about the act, so let me give the SNP a real fact sheet. This law is already overwhelming the police with complaints. It is already taking officers away from the front line.

Alasdair Allan

I hear what the member says about the number of complaints that were submitted in the first week. If it came to light that any groups or organisations were orchestrating what looks like an attempt to waste police time, would she condemn those groups?

Sharon Dowey

I do not condone any groups wasting police time, because the police are under enough pressure as it is. We have the lowest police numbers since 2008, so I would not condone that.

The act is already being misused by activists; it is already putting neighbours against neighbours and communities against communities; and it is already limiting free speech in Scotland. Those are the facts, whether the SNP likes them or not, and that is why my party brought forward the debate on repealing the law, because the longer that it continues, the worse the situation will get and the more damage the act will do.

Does Ms Dowey believe that hate crime laws in England and Wales should be repealed?

Sharon Dowey

There is a complete difference between the laws in Scotland and those in England and Wales, and that could lead to misinformation as well.

If the 2021 act is not removed immediately, the consequences for free speech in Scotland will grow more severe. The SNP—and every other party in this Parliament—needs to urgently find the nerve to admit its mistake in passing the law, hold up its hands and resolve to fix the mess. My colleagues have put forward that argument strongly and eloquently today.

In opening the debate, my colleague Russell Findlay said that the law has transformed the birthplace of the enlightenment into a place where free speech has been debased and devalued. He passionately outlined our concerns that this law, which is a clypes—or snitches—charter, will turn people against each other, not only neighbours against neighbours, but ordinary people against the police.

Russell Findlay highlighted our real fears that the SNP has put the police in an impossible position and is forcing officers to interpret the vague and poorly defined legislation. Humza Yousaf is in effect using our police force as a shield to deflect all the flaws in this law. Instead of being fixed before the law was passed, all the problems have been shifted to the police. Russell Findlay summed that up perfectly when he said that our opposition to the law is about letting our police officers do their jobs. The Government should listen and reflect on the fact that exhausted and overworked police officers are now being ordered by the SNP to police our speech.

I will focus briefly on the excellent contribution from my colleague Liz Smith on what makes good law and whether the 2021 act stands up to that test. Liz Smith asked whether the Parliament has shown itself capable of passing good law. In her speech, she dismantled any notions from the Government that the 2021 act represents good law. Her comparison of this flawed law to previous mistakes in the Gender Recognition Reform (Scotland) Bill, the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 and the Children and Young People (Information Sharing) Bill was fitting and appropriate.

As Liz Smith said, there are strong parallels between this hate crime law and mistakes that the SNP has made in the past. She underlined clearly that one of the central problems with this law is the murky and vague definitions that are littered throughout it. As a result, there is no clear line between merely offensive behaviour and offensive behaviour that is criminal. As she noted, and as the Scottish Police Federation has said, that means that there is potential for many people to come to the police’s attention who should not have a knock at their door from officers.

On that point, I will also comment on the speech from Murdo Fraser, who has seen personally—at first hand—how hate crime laws can be misinterpreted. He focused on his own experiences with the ridiculous enforcement in relation to non-crime hate incidents. What happened to him—when the police recorded his details despite there being no evidence of a crime—was unacceptable, downright wrong and should be called out by every party in the Parliament.

Murdo Fraser described the inconsistencies in how police deal with complaints. There seems to be one rule for some complaints and an entirely different rule for others, which seems to depend on the topic. There are obvious double standards that are certainly a consequence of the introduction of the 2021 act and the misunderstandings that it has created. Murdo Fraser gave SNP ministers a chance to intervene and explain how the police are using the recording of non-crime hate incidents, but nobody replied.

I will also mention the powerful speech from my colleague Liam Kerr. Throughout the parliamentary process, nobody did more than him to continually highlight the flaws in this law. He tried to be constructive, by lodging amendments to fix the worst aspects but, time and again, SNP ministers refused to listen. In her closing speech, Angela Constance made a comment about the Conservatives thinking that we are right and everyone else is wrong, but that is more reflective of SNP members, because they do not listen to the case for amendments from parties on other sides of the chamber.

Liam Kerr’s warnings have been proven right. He could be forgiven if he had stood up today and said, “I told you so,” but he did not. Once again, he made convincing arguments about why the act must go. As he said, this law will not work. It is counterproductive, ideologically driven and incompetent. The SNP Government should reflect on the many warnings that he cited today about things that have now come to pass.

I was going to mention other contributions, but I am running out of time. In conclusion, my party’s concerns about the act have already come to fruition in just a fortnight. It is having a detrimental impact on free speech in Scotland, it is stretching already overworked and underresourced police officers, and it is turning communities against one another. Far from limiting hate in Scotland, it seems to be increasing the divisions in our society.

Every party in the Parliament must stand up for the principle of free speech in Scotland. Labour and Lib Dem members must wake up and vote to remove this bad SNP law. I urge everyone across the chamber to support the Scottish Conservative motion.

That concludes the debate on repealing the Hate Crime and Public Order (Scotland) Act 2021.