Meeting of the Parliament (Hybrid)

Meeting date: Thursday, March 11, 2021

Official Report 1301KB pdf

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Hate Crime and Public Order (Scotland) Bill

I will go straight on. There is no time in hand; time is tight. I know that members will understand why.

The next item of business is a debate on motion S5M-24322, in the name of Humza Yousaf, on the Hate Crime and Public Order (Scotland) Bill, at stage 3. Members who wish to speak in the debate should press their request-to-speak buttons or, if they are joining us remotely, type R in the chat box.

13:33  

For the purposes of rule 9.11 of the standing orders, I advise Parliament that Her Majesty, having been informed of the purport of the Hate Crime and Public Order (Scotland) Bill, has consented to place her prerogative and interests, in so far as they are affected by the bill, at the disposal of the Parliament, for the purposes of the bill.

I have many thanks to give as I start—probably too many for the allotted time. I thank the people in the Scottish Government bill team, who have made a herculean effort with the bill, and I thank my special adviser John McFarlane, who is known to many people here. I also thank the parliamentary clerks, who have made an equally herculean effort.

I thank the many stakeholders with whom we have engaged, many of whom have given their time in evenings and at weekends. I also thank members across the chamber—back-bench SNP colleagues and colleagues in Opposition parties, who have, in the main, worked constructively on the bill.

Our Parliament has been in receipt of some criticism in recent weeks and months, and has been denigrated by some people, but I suggest that the Hate Crime and Public Order (Scotland) Bill has shown how Parliament can work at its best. If we, as legislators, seek consensus—not for its own sake, but to strive for an ideal that is far greater than us as individuals or political parties—we can create truly transformative law that protects the most vulnerable people in our society, as the hate crime bill will do.

I wonder what the cabinet secretary has to say about the fact that, in debating the hate crime bill, I am now being accused of hate crime and could expect to have the police at my door.

Ms Smith will not have the police at her door for anything that she has said on the hate crime bill. I am sorry to hear that she has been the victim of hate. I promise her that if she wants to see hatred, she can see it on my timeline on Twitter on any day of the week. I understand how pernicious hate crime can be.

I had a carefully crafted speech that I was going to use for the debate, but I changed it somewhat after the good stage 3 debate that we had yesterday. I want to share a personal anecdote that I hope will illustrate why I think that the hate crime bill is needed. I want to do so not because my experience is unique, but because it is the opposite; it is the experience of hundreds of thousands of our fellow Scots. I apologise in advance, Presiding Officer, because some of the language that I will use will be unparliamentary, but it will illustrate the point that I want to make.

As a young child, I was not aware that the colour of my skin made me different from the majority of Scots. That might seem to be unusual, but anybody who has young kids, nephews, nieces or grandchildren will understand that innocence. The first time I ever became aware of my race was when I was in primary school, in primary 2. My best friend since primary 1 came up to me one day and, completely out of the blue—we had not had a fight or disagreement of any sort—said in a very matter-of-fact voice, “I can’t be your friend any more.” I remember feeling quite stunned. As I said, it came completely out of the blue. Of course, I asked him why and he said to me—I will always remember it—“Because you’re a Paki.” I had no idea what the word meant. I remember skulking around the playground not really having a clue about what had just happened.

I went back home after school and I asked my mum, “Am I a Paki?” I remember my mum being quite visibly upset, and she explained to me how some people—“very rude people”, she said—sometimes made fun of us because of the colour of our skin, but that I had done nothing wrong. From being six years old to the present day, some 30 years later, not a day goes by when I am not conscious of the colour of my skin. I suspect that in the vast and overwhelming majority of my interactions with people, the first thing that they see or notice about me is the colour of my skin, and they probably form a judgment about me in relation to the colour of my skin, sometimes consciously and sometimes—I am sure—unconsciously.

I have told that story for two reasons, one of which is that my six-year-old friend did not just become a racist. I do not believe that we have racist six-year-olds. He undoubtedly learned that racism at home—probably from a parent or older sibling. I mention that because there are some people here who believe—even if they were to be the person towards whom the hatred was directed—that racism that is intentionally stirred up using threatening or abusive language, at home with a sibling, child or grandchild present, should not be prosecuted.

I contend that the impact is exactly the same, regardless of where—whether it is at home or outwith the home—hatred is intentionally stirred up, or whoever is the target of that stirring up. The outcome could lead to a person of colour, a disabled person, someone who is gay or lesbian, an older person, a trans woman or somebody with variation of sex characteristics being beaten up or threatened with violence or rape. Do we think that they would care whether that hatred was intentionally stirred up or took place at home?

The second reason why I told that story is to illustrate how strong the safeguards in the hate crime bill are. Let us hypothecate about what probably happened in relation to my six-year-old friend. Why did he use the word that he used? The chances are that my friend was at home and, back in the early 90s when it took place, probably heard a parent say, “I’ll go pick up a loaf and milk from the Paki shop.” Let us be honest: that was relatively common parlance in the 1980s and 1990s.

Let us assume that that same phraseology was used today in 2021, after the Hate Crime and Public Order (Scotland) Bill is—I hope—passed at stage 3. Even the use of that language—which, I suspect, we probably all agree is racist—in that scenario, by someone’s grandparent, whether at home or in public, would not be prosecuted under the new legislation and its stirring up of hatred offences or, indeed, under the previous racial stirring up of hatred offence. Why? It is because the threshold for offences is incredibly high.

Some people think that they might somehow accidentally fall foul of the law, even in relation to Elaine Smith’s point, because they believe that sex is immutable. They state that an adult man cannot become a female, they campaign for the rights of Palestinians, as Sandra White mentioned to me yesterday, or they proselytise that same-sex relationships are sinful. None of those people would fall foul of the stirring up of hatred offence for solely stating their belief, even if they were to do so in a robust manner. Why? It is because solely stating a belief, which might be offensive to some people, does not breach the criminal threshold.

Through the legislative process, we have created offences that—rightly—have a high threshold of prosecution.

How much time do I have left, Presiding Officer?

I will give you an extra minute for taking an intervention.

Thank you.

It is so important to recognise the safeguards in the bill; they are really strong safeguards. A necessary element of the new stirring up of hatred offences is that they will now require an intention to stir up hatred. That provision safeguards freedom of expression. Its being made clear in the bill that there is an objective test safeguards freedom of expression. The availability of a reasonableness defence safeguards freedom of expression. Requiring each element of the stirring up of hatred to be proved beyond reasonable doubt, with corroborated evidence, safeguards freedom of expression. At stage 3, amendments introduced a new freedom of expression provision for all characteristics except race. That safeguards freedom of expression.

In my closing speech, I will certainly address the issues that were raised about non-inclusion of the sex aggravator that Johann Lamont, Elaine Smith and a number of other members have raised, but I am out of time to do that now.

I will say simply that the bill makes it clear that we are listening to the victims of hate crime. We can hear that from any organisations that represent the many victims of hate crime. The bill has shown the very best of Parliament this year, and a number of changes have been made to it.

I am delighted that we have a bill that will strengthen the law to tackle hate crime in a way that protects the right of everyone to live their lives free of harm while, of course, it will also protect their right to freedom of expression.

I move,

That the Parliament agrees that the Hate Crime and Public Order (Scotland) Bill be passed.

Thank you very much. I am sorry, but I must be very strict with time, because we must go to portfolio questions at half past 2.

13:42  

All noted, Presiding Officer.

Today marks the end of a long and tortuous passage for a bill that was introduced almost a year ago. An unprecedented 2,000-plus individuals and groups felt compelled to respond to the request for evidence. Last autumn, I suggested to Parliament that, in the light of that, and given the responses, the pandemic and the disruption to everyday life, the sensible thing to do would be to take away the bill, rethink it and come back with a draft that definitively protected those whom it rightly sought to protect, while not attacking freedom of speech.

Only the Scottish Conservatives supported me on that proposition, so the bill progressed. At the stage 1 debate, I flagged that, notwithstanding the cabinet secretary’s stated intentions to remove some of the most illiberal and ill-thought-through sections, part 2 of the bill, concerning the stirring up offences, remained fundamentally flawed.

Despite the extensive amendments at stage 2, and at stage 3 yesterday, the bill is still fundamentally flawed. That is not simply my view. In its covering email for its submission, Victim Support Scotland said:

“Victims of hate crime in Scotland are relying on MSPs to pass robust legislation that will offer them the protection they need”.

There are many voices saying that the legislation is not robust and does not offer that protection. Indeed, Johann Lamont and others made powerful contributions yesterday, reminding us that there is a whole group of victims of hate crime who are specifically not covered by the bill.

There is inherent ambiguity. That is an issue because, as a Savanta ComRes survey shows, 75 per cent of Scots agree that

“The term ‘hatred’ means different things to different people.”

As Elaine Smith pointed out several times yesterday, so does a judgment about what is reasonable.

Amnesty International reminds us that

“The Scottish Parliament has a duty to ensure that the bill balances protection for freedom of expression with the obligation to prohibit incitement to discrimination, hostility or violence.”

The bill before us does not strike that balance. It contains a freedom of expression clause about which many groups with many different perspectives remain unhappy despite the cabinet secretary’s reassurances today.

Scott Wortley of the University of Edinburgh suggests that the formulation and structure of the clause could lead to problems with interpretation and precedent. In its briefing note, the Law Society of Scotland says:

“We also have concerns that the freedom of expression provisions will not now be as easily understood. They lack a degree of clarity and send confusing messages.”

Earlier this week, Hardeep Singh of the Network of Sikh Organisations said that if the bill is enacted,

“it will make Scotland one of the most hostile places for freedom of expression in Europe.”

Wow. Surely so many voices being raised from so many sides of the political spectrum should give us pause for thought.

Scott Wortley also suggests that

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

Roddy Dunlop QC agrees. Earlier this week, he tweeted that

“concerns will remain about weaponisation.”

Only a few weeks ago, the Scottish Police Federation wrote to the Justice Committee’s convener, saying:

“there is substantial potential for many more people coming to adverse police attention as a consequence of elements of this legislation regardless of potential ... freedom of expression provisions”.

If that is correct, there must be a risk that the bill, as it is currently drafted, could have a chilling effect on freedom of expression.

Furthermore, despite my and Adam Tomkins’s attempts, the bill contains no defence regarding private conversations in people’s own homes. The police could come to someone’s home, having received a report of their having stirred up hate around the dinner table, and could take witness statements from those present, which, presumably, could include their children.

I cannot vote for that, but nor do we need to. The Government’s financial memorandum states that those offences will “more accurately define” hate crime, but it adds that

“the conduct in question would already constitute existing criminal offences such as breach of the peace or threatening or abusive behaviour.”

Indeed, according to Murray Blackburn Mackenzie, it is not clear how

“expanding stirring up offences will fill a legislative gap on paper, or reduce in practice the number of hate-related attacks on individuals in particular groups”.

I remind members of the thoughtful intervention that was made yesterday by Neil Findlay, who said:

“I think that many of us, if we are being honest, believe that there should be a form of hate crime legislation but how it is being done in the bill is not it. Many people—out in the community and in here—would want the Government to withdraw the bill so that whichever party wins the election could come back with properly thought-out legislation that carries not only an overwhelming majority in this place but the confidence of the people who are victims of hate crime.”—[Official Report, 10 March 2021; c 90.]

He is right.

I ask members this. Will Labour really vote for a bill about which Lucy Hunter Blackburn has said:

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

Will the member take an intervention?

I really cannot, Mr Findlay—I am sorry.

Will James Kelly really vote for a bill that Free to Disagree points out has considerable parallels to the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012? Will the Scottish Liberal Democrats really back what many have described as an utterly illiberal bill? Will the Scottish National Party back what Jim Sillars said is

“one of the most pernicious and dangerous pieces of legislation ever produced by any government in modern times”?

I finish with a quote from Hardeep Singh, who said:

“for ordinary people there will be a serious ‘chilling effect’ on free speech. MSPs must therefore put free speech first when making the decisive vote on this ill-conceived legislation. The only way to do that is to vote against it.”

At decision time tonight, the Scottish Conservatives will do just that.

13:48  

I recognise the work of the Parliament’s Justice Committee, and in particular its convener Adam Tomkins and those members who participated in consideration of amendments to the bill yesterday and over the past few months. Whatever their perspective on each of those amendments, how we test arguments is critical to how the Parliament makes good law. When we are considering fundamental principles of equality, human rights and freedom of expression, that process is crucial. I acknowledge that there is concern about aspects of the bill. I also acknowledge the steps that have been taken to address those and make improvements to it.

Scottish Labour believes that hate crime should be dealt with by using the full force of the law. In our manifesto, we made a promise to take a zero-tolerance approach to hate crime. We believe that the law can and should be strengthened, and we have been engaging with stakeholders and other parties to find agreement on how to do that. Crimes that are rooted in prejudice and hatred of another based on any of the protected characteristics should offend and alarm us all. Victims should feel confident that they can come forward and that their doing so will make a difference.

We know that there has been an increase in the number of hate crime charges in recent years and that there is a range of factors behind that. Further analysis is clearly essential, which is why we welcome the new reporting obligations.

Nevertheless, we know from evidence that a lack of clarity around hate crime legislation disadvantages the victim. It is important to remember what Lord Bracadale’s review found, which was that there was confusion about what a hate crime is, language that was difficult to understand and a lack of clarity on what sort of behaviour makes something a hate crime. In that context, it makes sense that we should seek to consolidate, modernise and reform Scotland’s hate crime laws.

We need the bill because hate crime has become more widespread, and society has become more polarised and divided. All of us can see how raw and unpleasant some aspects of political debate have become and how easily hate can rear its head. Although social media has given old hatreds a new platform, we must remember that, in truth, prejudice and hatred in this country never went away. Scotland is no different from the rest of the UK or from many other countries in that regard.

At times, it feels as though the more we have advocated tolerance, the less tolerance there has appeared to be. The bill is necessary to ensure that there is accountability and to prevent unacceptable ill will and malice. The corrosive idea that someone needs to be blamed for societal problems has resulted in the most excluded and underrepresented members of society being targeted and becoming victims of crime. That cannot be allowed to continue.

As we debated yesterday, Scottish Labour believes that the protected characteristic of sex should have been included as an aggravator in the bill. It is deeply regrettable that it has not been, because it is clear that women are subjected to hate because of their sex. We believe that the bill is flawed because of that, and we want that gap to be addressed as soon as possible. We note that the enabling legislation, along with a commitment from the cabinet secretary on timescales, will make sex a protected characteristic more quickly than would the introduction of a totally new piece of legislation, so we will follow the work of Baroness Kennedy’s working group closely.

The bill’s long journey to stage 3 has caused controversy. A bill that aimed to provide clarity has constantly had to be clarified. A bill to consolidate hate crime laws has at times consolidated opposition among the unlikeliest of partners. When it was originally introduced, the bill was deeply flawed but, as the cabinet secretary said, during its progress, Parliament has tackled many of those problems and strengthened its protections. We believe that there are still flaws in the bill—those flaws are on the Government—but we must recognise that, ultimately, the bill will give important protections to minorities, who will welcome it.

The Government has given assurances that it will make the enacted bill work, and we will hold it to those assurances through post-legislative scrutiny. Scottish Labour will vote for the bill as amended but, before we do, we must reflect on how much more must be done to tackle prejudice and hate in Scotland; they cannot be legislated out of existence. Any action that we take must be accompanied by wider societal change in our communities and our workplaces, and an agenda for inclusion in education that tackles the prejudice that we are united against today.

13:53  

I start by again commending Parliament for the rigorous and passionate way in which it conducted its scrutiny of the bill at stage 3 last night. It was, as some said, the Parliament at its best.

At times, it was clear that colleagues found some of what was said uncomfortable, unsettling and, on occasion, deeply offensive. As we know, that is in the nature of the debate that we were having, but I do not believe that it could credibly be argued that any of what was said in relation to any of the amendments that we considered last night was either hateful or constituted hate speech.

It is invidious to pick out individuals, but I pay tribute to Johann Lamont for the force and conviction with which she argued her case. Regardless of whether members agree with her, hers is a voice that commands respect, which underlines what will be lost with her departure.

The same is true of Adam Tomkins, whose articulation of the arguments around freedom of expression was one of the best speeches that I have heard in this chamber. Indeed, it was enough for me to forgive him the intellectual contortion that enabled him to declare Johann Lamont’s and Joan McAlpine’s amendments unnecessary before promptly voting for them.

Last summer, the Scottish Liberal Democrats could not support the bill, but that was not because we believed that modernising and consolidating our hate crime laws was unnecessary. One has only to look at the rise in hate crime across all characteristics to see the need to give our police, prosecutors and courts the tools that they require. We shared the concerns of many, including faith groups, academics, the police, the Law Society of Scotland, actors, journalists and others about the drafting of the bill. A mix of vague language and expanded criminality saw the justice secretary being accused of his own stirring up offence.

To his credit, Mr Yousaf heeded the calls from myself and others to base the stirring up offences on intent only. He also sensibly agreed to a reasonableness test. Even so, concerns remained about the balance being struck between protecting those at risk of hate speech and safeguarding our fundamental right to freedom of expression.

As our convener was fond of reminding us, rights such as freedom of speech and privacy should be interpreted and applied generously, and restrictions legislated for narrowly and only when necessary in the public interest. Those rights and freedoms are not unfettered, of course, but as the oft-quoted Lord Justice Sedley reminds us:

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

It is not easy to strike an appropriate balance. Some will argue that it has not been achieved with the bill, but I disagree. We now have broad and consistent freedom of expression protections across all the new characteristics, with the exception of religion, where faith groups, the Humanist Society Scotland and others were unanimous in calling for more specific protections.

I recognise the rationale for making a distinction between the approach that we take to debate around ideas and beliefs on the one hand, and an individual’s innate identity on the other. Let us be clear, however, that no one—absolutely no one—should be required to hold any particular belief or express views to suggest that they do. However, nor should they be permitted to act in ways that, to any reasonable person, would be considered threatening or abusive and with the intention of stirring up hatred. I therefore welcome the combined change introduced courtesy of the cabinet secretary’s amendment and Adam Tomkins’s specific reference to the European convention on human rights. Together, they broaden and deepen the protections afforded.

Before closing, I want to reflect briefly on the non-inclusion of a sex aggravator in this bill. Looking back at my remarks at stage 1, I am reminded that I found myself largely in agreement with Johann Lamont. It seemed anomalous to leave out the characteristic of sex, especially given Lord Bracadale’s recommendation and the risk of laws being passed later without proper parliamentary scrutiny. I confess that those concerns have not wholly disappeared. Ultimately, though, I was persuaded by the evidence that the committee heard from Scottish Women’s Aid, Rape Crisis Scotland, Engender and Zero Tolerance that the issue would benefit from the expertise of Dame Helena Kennedy’s working group. Time will tell whether that is the right approach.

All the evidence is that societies and economies are stronger when every person can contribute, and that means stopping the discrimination that rules many people out of living their lives to the full. There should be equal opportunity for everyone, no matter what we look like, who we are or where we come from. On that basis, Scottish Liberal Democrats will support the bill at decision time.

13:57  

I thank everyone who has got us to this point: Lord Bracadale; the cabinet secretary and his team; the convener of the Justice Committee, Adam Tomkins, whose leadership throughout has been helpful in steering us through important issues such as freedom of speech and the threshold to trigger the offence, which a previous speaker referred to as a safeguard; our committee witnesses; and, as ever, our staff.

In his review, Lord Bracadale stated:

“Hate crime is the term used to describe behaviour which is both criminal and rooted in prejudice.”

We know that hate crime is about people, not about statistics. Sadly, the public scrutiny of the bill has exposed deep-seated prejudice that simply cannot be allowed to prevail. One of the policy objectives of the bill was that it would be user friendly, perhaps not in the precise wording of the legislation but more in the public discourse about the purpose and effect of the bill.

Training is important, and I have confidence in our police and the Crown Office and Procurator Fiscal Service when it comes to that.

We cannot forget that the Tories did not just want to prevent the updating of the statutory response to hate crime; they wanted to turn the clock back and remove existing protections. The Tories wanted Scotland to have weaker laws in respect of stirring up racial hatred than there are in other jurisdictions of the United Kingdom.

We have also seen some shameful misrepresentations suggesting that the bill has zero regard for freedom of expression and that family meals would be ruined by a flurry of arrests by police officers—crass nonsense! We also saw amendments that expressed gross indifference to those who do not conform to narrow prejudices, and not just from the Tories.

There were amendments that would have shamefully airbrushed intersex people from existence and amendments that would have undermined the existing protections for transgender people, which have been in place since 2004. The bill, like others, is about balancing human rights. I think that the balance between freedom of expression and the right to private life has been struck in the bill, and countless organisations agree.

George W Bush Jnr once challenged the world, “You’re either with us or you’re with the terrorists.” That was the approach that was taken by many in this debate. I would like to lay out very clearly where the Scottish Green Party is on these issues. We are with those who respect freedom of expression and understand its limits. We are with those, across the globe, seeking to tackle rising hate crime. We are with those who have no one and who only want to be themselves. We are with those who want their community to be rid of the scourge of hate crime. We are with sound parliamentary scrutiny and making good laws—and we will not be bullied by those with mild-sounding social media names and poisonous agendas.

We will stand with those who are abused because of the colour of their skin or their disability. We will stand with those who are subjected to physical and hateful verbal attacks from whatever quarter. We will stand with lesbian, gay, bisexual and transgender people, knowing that they consider hate crime one of their biggest concerns.

The One Scotland website promotes a Scotland that

“believes in equality for all.”

It goes on to state:

“No one should be denied opportunities because of age, disability, gender, gender identity, race, religion or belief, or sexual orientation.”

It is certainly my belief that the bill will play a part in the delivery of that entirely realistic goal. I hope that, after all that the bill has been through, it receives parliamentary backing. The Scottish Green Party will certainly support the bill at decision time tonight.

We move to the open debate with speeches of four minutes.

14:01  

We have reached the final stage of a bill that has generated more attention from the public and in the media than any other piece of legislation during my time as an elected representative. As deputy convener of the Justice Committee, I also thank the many witnesses who gave expert advice, the bill team and, as ever, our outstanding clerking team and SPICe for working so hard on this monumental task.

During this session of Parliament, we have passed important, groundbreaking legislation on many issues, some of which I was involved in and some of which I was not. However, I am very pleased to have been involved in the Hate Crime and Public Order (Scotland) Bill, despite its high-profile and often heated nature, because, if it is passed at decision time tonight, this bill will send a message to those who stir up hatred with intent to threaten and abuse minority groups that their behaviour has no place in Scotland.

Is it a regret to Rona Mackay that, at 5 pm this evening, no signal will be sent out about the hate crime that women face day and daily?

I am afraid that I cannot give you extra time, Ms Mackay. You will have to absorb that in your four minutes—please continue.

I will come to that in my speech, if Johann Lamont lets me proceed.

Who could argue with protecting minority groups? The bill consolidates and modernises existing hate crime legislation following the hate crime review that was undertaken by Lord Bracadale, for which there was cross-party support in June 2018.

The attention that has been given to the bill has brought home the importance of freedom of expression and why it must be protected. I fully understand the concerns in that regard. However, the freedom of expression amendments that were agreed to yesterday—particularly amendment 1, in the name of Adam Tomkins—should reassure people that the bill does not stifle discussion, opinion or challenging views. We witnessed that in the very passionate debate that was held in the chamber last night.

I thank Adam Tomkins for lodging amendment 1 and for the consensual way in which, as convener, he steered the committee through the bill. I also echo his comments from yesterday about the intensive scrutiny that that issue in the bill, and the bill in general, has been under. I am just sorry that the Tories have said that they will not support it tonight.

I also thank the cabinet secretary for his willingness to engage at every level of the bill—[Interruption.] I am sorry, but I do not have time to take an intervention. The cabinet secretary engaged not only with the committee but with an extensive range of stakeholders in order to take their advice and listen to their views.

It is crucial to remember that there is a reasonable person defence and a very high bar before conduct is criminalised. All alleged offences have to be proved beyond reasonable doubt in court. Some people will say that the amendments that were agreed to yesterday go too far, and some will say that they do not go far enough. This is a very subjective issue.

We know that hate crimes are on the rise. They threaten community cohesion and are an extremely distressing and pernicious form of criminality, ruining and endangering lives with their cruelty. The fact that minority ethnic groups experience two thirds of all race-related hate crime shows that we have much more to do to overcome prejudice. The cabinet secretary was persuaded that it was not necessary or appropriate to include race in the freedom of expression provision because, among other unintended consequences, that would leave Scotland with less protection than the rest of the UK. I fully support that decision.

There is a clear need to tackle misogyny and gender-based prejudice in Scotland. I have a lot of sympathy for Johann Lamont’s amendments, and I admire the passionate manner in which she has articulated them and in which she has fought for women’s rights over many years. However, I disagree with her for all the reasons that were outlined by my colleague Annabelle Ewing yesterday. Systemic misogyny needs more than a sex aggravator. All the measures to tackle misogyny in the past have not worked. The fact that the Government has set up the misogyny and criminal justice in Scotland working group, which is to be led by Helena Kennedy, is testament to the overriding importance that we put on tackling the issue. It is time to tackle misogyny once and for all.

I am afraid that you must conclude.

I firmly believe that we should let that group do that important work and come to its conclusions.

I am sorry, but you must stop. I take no pleasure in saying that, but the timetable has been set by the Parliamentary Bureau, and I must keep to it. Please accept my apologies. I wish that I could give you more time, but I cannot.

14:06  

One of the most disappointing aspects of the debate about the bill is that the fact that there is much in it with which everyone can agree often gets lost. We would all agree that hate crime should be deplored, that it makes sense to consolidate the existing law around aggravators, and that the blasphemy law is a historical anachronism that should be removed from the statute book. However, the debate about the bill has concentrated on part 2 and the creation of new stirring-up offences.

It is no surprise that we have seen heavily divided opinion on part 2, with a broad coalition of voices being raised against what the Scottish Government is proposing. We have seen faith groups, secularists, human rights campaigners, writers, comedians and academics all expressing serious concern about the impact on free speech from what is being proposed.

We know that there are people who want to use the law to close down debate. We saw that in the course of the debate yesterday afternoon. There is no more current example of that issue than in the dispute between trans activists and feminists over the definition of what is a woman or the need to protect women’s spaces. There is a real concern that the legislation that we will pass today will be weaponised by those who want to close down debate and silence those who simply have a different view.

We heard a flavour of that in the debate yesterday afternoon in a chilling contribution by Patrick Harvie in response to a series of speeches by women MSPs, who raised their legitimate concerns about issues in the bill. He seemed to suggest that they verged on the hateful.

We have to be extremely careful in proceeding with the bill. It is only by debating ideas and robustly challenging each other that society is able to advance and reform is achieved.

I think that Liam McArthur said that there is no need for legislation to defend popular opinions. It is opinions that are unpopular that need to be protected. Substantial concerns remain about the impact that the bill will have on those who express views that are not held to be part of the main stream. It seems extraordinary to me that we have got into the position in which, following the rejection of Johann Lamont’s amendments yesterday, the bill now gives more protection to men who dress as women than it does to women themselves.

I recognise that the Cabinet Secretary for Justice has gone to lengths to try to improve the bill. I pay tribute to the excellent work that my good friend Adam Tomkins and his colleagues on the Justice Committee did in the detailed scrutiny of the bill at stage 2. However, within the past few weeks, we have seen the justice secretary running around and convening sessions with stakeholders to try to reach agreement on the terms of free speech amendments to the bill. Amendments were lodged for debate yesterday with just a few days for external consultation and public scrutiny. That is not the way that legislation—particularly legislation that creates new criminal offences—should be introduced.

There is a broader debate about how the Parliament functions and how it can best hold the Executive to account. We have no revising chamber to act as a check on what we might vote for in here. The Justice Committee has done an excellent job with a strong convener, but even its role was limited after the bill passed stage 2.

It seems to me that this is no way to make law. I would have liked to see the Scottish Government withdraw part 2 in its entirety, as Liam Kerr suggested. We would have had unanimity in passing parts 1 and 3 and we would have got good legislation on to the statute book. Then, we could have taken back part 2, in a separate piece of legislation in the next session of Parliament, with time to properly build consensus. Instead we are rushing ahead to publish legislation that might well have deeply damaging unintended consequences, and that is not something that I can support.

I call Johann Lamont, to be followed by Shona Robison. Ms Robison will be the last speaker in the open debate.

14:10  

Thank you very much, Presiding Officer. I will bow to your discipline, although I am not convinced that my speech will be as disciplined as it should be. If I do not manage to finish it, please believe me when I say that this debate will continue.

I hear people say that this has been a good debate. From where I sit, it might have been interesting, but as I did not win the argument, what is left behind is a sense of grave disappointment that I could not persuade the chamber. I do not think that the people who disagreed with me believe that women should not be protected—I do not make that case—but I think that we made the wrong decision yesterday.

As someone who has been committed to equality all my life, I regret very much that I will not be able to vote for the bill at the end of the day. I hope that nobody, in this chamber or anywhere else, takes that to mean that I want anybody in our community to face hate, disadvantage or abuse, because it is not for that reason that I cannot support the bill; it is because it does not address a fundamental problem. In real time yesterday, as we were debating the legislation, we were hearing on the news of yet another victim of male violence. In real time, women were taking to social media to describe what we do every day to keep ourselves safe, whether we are walking in a park or running or getting a bus. That is the reality of women’s lives, and that is the reality that is not being addressed in the bill.

Instead, I was subjected again today to a lecture about how I do not care enough—about how women do not care enough about people who are the victims of abuse. I am told that denying a cross-dresser the protection of the bill is unacceptable. I say this: we know—even Tim Hopkins has said—that cross-dressing is a lifestyle choice, not a matter of identity.

The problem could have been solved by including women in the legislation. I am not saying that the sex aggravator would solve everything. We are women—we know that signals are not enough—but that would have been a starting point for the work that the working group would do.

We could not even agree on a definition of what “sex” is. That matters, because the truth is that there is now a live debate about whether, in fact, there are two sexes. I respect all sides of that debate, and I have to tell John Finnie that the term “intersex” is offensive to many people in the communities who suffer from difference in sexual characteristics. They do not regard themselves as “intersex”.

The more important point is that, if people believe that there are more than two sexes and they want to change the law, then change the law. Make the arguments. In the world that I inhabit, you do not both argue a position that is at odds with the law—and, I might say, the science—and resist having that debate in public and making a decision, and, without changing the law, denounce those who state what the current law is. That is why the amendment on defining sex mattered so much. Defining that is not a matter for the working group; it is for us to come together and have that debate as a community and a society.

I recognise the deeply held views of the cabinet secretary and his experience. I do not diminish that one bit. I do not diminish anyone who suffers disadvantage because of where they find themselves. I plead with him: if it is reasonable to pause on women, why are we not pausing on these other complex areas? He cannot argue that we can wait a year for women—who we know are experiencing violence and abuse today, precisely because of their sex—but that we cannot wait for others, and that those who will not vote for the bill will be guilty of encouraging racism and disadvantage. It is not possible to argue those two things at the same time.

We are dancing on all sorts of arguments here, but what is behind this is the fact that people in our communities now face discrimination, disadvantage and abuse. Women are part of that and there are other folk who understand what that is like. The bill will fail if we do not go beyond sending signals. I regret very much that it will not even signal support for women, but if we settle for the signal we will not be doing the heavy lifting of what Government is actually about, which is educating, challenging, supporting and working with people in our communities so that they might come together, and making real in law our aspiration to a fairer Scotland.

I regret very much that at the end of the day, when I vote with my absolute conviction that the bill does not address those problems, I have no doubt that I will be characterised as someone full of hate. Please believe me that the women who want the legislation to be changed—those who have highlighted their concerns—aspire to the same as those who will vote for it. We have to wrestle with the fact that, even as a signal, the legislation does not address even the lived experience of the women in this place.

I am sorry for and regret being so forthright, but it is not good enough to tell me that I spoke well. Women have spoken well through the generations and they are speaking now. They are telling us what their lived experience is and Parliament needs to tackle these problems. It needs to tackle the argument that is at dispute and highly contentious, not hide it away and denounce those who are not prepared to go along with that.

I respect everyone in the chamber. I trust that they will respect the women in the chamber and beyond who continue to say that the bill is not good enough. We need to think again, get our heads around the complexities and make legislation that genuinely protects all of those who experience hatred, disadvantage and abuse simply for being who they are.

Thank you. I know that members will understand why I extended the time for Ms Lamont, but for the rest of you—no. We move to closing speeches.

14:17  

I, for one, will support Johann Lamont’s position and I certainly support her right not to vote for the bill for the good reasons that she set out. I would support her if she is attacked in any way for that, because I do not believe for a second that Johann Lamont is against the bill for any other reason. I put that on the record.

The bill has, without a doubt, been on a journey. Those of us on the Justice Committee have spent many hours looking at the bill and trying to work together to improve it, and we have made significant progress on that. As has been said before, the law has protected people for decades from anyone stirring up hatred against them due to their race. The bill now extends that protection to people in relation to other characteristics and it is supported by dozens of organisations that support the victims of hate crime.

The consensus that has brought us to this point has been down to the Government listening to the concerns that have been raised and making changes to address them. Further changes were agreed yesterday. The concerns over freedom of expression were raised, listened to and acted upon to ensure that any successful prosecution for the new offences must prove that the person intended to stir up hatred. The bill includes the reasonable person test to ensure that an objective test is applied. It is a high threshold and the strengthening of the freedom of expression clauses yesterday by Adam Tomkins strengthens the position further, so that we now have very strong freedom of expression protections. That is right.

In its job of scrutinising the bill, the Justice Committee has taken extensive evidence on all related matters, and the bill now strikes the right balance between protecting groups that are targeted by hate crime and respecting people’s right to freedom of speech. Many of us on the committee wrestled with that, as it is not an easy balance to strike. We have got to the best place that we could have.

The debate has been dominated by the debate on whether, at this stage, to include a sex aggravator. I thought that Annabelle Ewing’s speech yesterday summed up matters rather well—I agree with her. It is not just that a number of women’s organisations raised concerns about the inclusion at this stage of a sex aggravator, for reasons that are well rehearsed. The events of recent days remind us of the deep-rooted misogyny and male violence in our society. I hope that, along with Johann Lamont, we all agree on the changes in our society that we want to happen. We might disagree on some of the processes to get there and we obviously disagree on aspects of the bill. What unites us is that, if we painted pictures of the type of society that we want, they would not differ very much.

The working group—although this is not just about the working group—has a job to look at whether a sex aggravator should be added to the proposed legislation at a later stage, and I would like it to do a root-and-branch investigation of what more can be done to tackle misogyny in our society, whether through legislation, policy, education or cultural and societal change. I like to think that not only the working group but all of us have a job to put that at centre stage in the work of the next Parliament, along with allies outside the Parliament, who I am sure will continue to work hard on the issue. I hope that we can unite on that, if on nothing else.

14:22  

As Neil Bibby and Liam McArthur have said, hate crime is, unfortunately, on the rise in Scotland. From that point of view, robust laws to tackle it are welcome.

It is important to examine the advent of the bill, the process that it has gone through, and why we have ended up, even at this stage, with people contesting some of its elements.

The Bracadale review was the route to the bill. When that was published, everyone across the parties agreed that there was a need for hate crime legislation that brings together all hate crime law into one place to make it more efficient and operate better, and to give adequate protection to victims of hate crime. However, once the bill was published, we found that the drafting was, at best, clumsy and, at worst, incompetent. That resulted in a host of organisations being critical of part 2 in particular. The provisions on theatre performances had to be withdrawn, and there was a controversy about the use of the phrase

“it is likely that hatred will be stirred up”.

The lack of interpretation around that was widely criticised, and the phrase was taken out.

There have been amendments to withdraw things and improve the bill. However, in reflecting on the debate last night, which was a high-quality debate with strong speeches from around the chamber, I was struck that, in debating a number of the amendments, a lot of members were still unclear about the interpretation of the law, which suggests that issues remain.

When the bill is passed and cases go to court, the test will be whether sheriffs, legal practitioners and the police can adequately interpret the law so that it can be used properly in the courts. The Parliament will have a crucial post-legislative scrutiny role. A lot of the aspects of the bill will have to be looked at closely in operation. If the bill is not operating correctly, it will need to be revisited in the next session of Parliament. I hope that the Government and the cabinet secretary will accept that.

Johann Lamont was right to say, in a speech that was strong on principle and conviction, that legislation on its own is not enough and signals are not enough. A lot needs to be done in education, working in communities and changing culture to ensure that those who are currently the victims of hateful abuse get proper protection not just in law but in society in general. There is a big task there.

Scottish Labour will support the bill at decision time, but let us be clear: it is not perfect, and there is much work to be done not just to make the legislation work but to tackle hate crime robustly.

14:26  

I thank Liam McArthur, John Finnie and Rona Mackay for their kind and generous remarks.

The Hate Crime and Public Order (Scotland) Bill is a much-changed piece of legislation compared with the bill that we first debated in the chamber last September. On that occasion, my Conservative colleagues sought to have part 2—the provisions that concern the stirring-up offences—removed from the bill entirely, on the basis that they constituted an unwarranted and dangerous attack on freedom of expression. Rightly or wrongly, the Conservative motion was heavily defeated and, ever since then, it has been clear that the bill would pass, despite the many criticisms that it has attracted from lawyers, faith groups, campaigners and—especially—women.

In the months since then, all my work on the bill has been designed to try to address those criticisms and to fix the bill. I wanted Parliament to learn the lessons of the named persons legislation and the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012, and not to repeat the experience of legislating in a way that breaches and fails to respect our fundamental rights.

So significantly and substantially amended is the bill that it is no longer the grave threat to freedom of speech that it once was. First, the stirring-up offences—other than with regard to race—can now be committed only when the accused intends to stir up hatred. Secondly, offences relating to theatres and public performances and possession of inflammatory material have been entirely removed from the bill. Thirdly, we have clarified in the bill that behaviour or speech is threatening or abusive only when a reasonable person would consider it to be threatening or abusive. Fourthly, we have said, in terms, that mere discussion or criticism of matters relating to the protected characteristics is not to be taken as threatening or abusive. Fifthly, we have emphasised that, just because someone feels offended, shocked or disturbed by what is said, that does not mean that the criminal threshold has been crossed.

Even those changes, welcome though they are, have not quelled the very real fear that continues to stalk this land because of the bill. As we heard yesterday, in terms as passionate, dignified and compelling as anything that I have ever heard in the chamber, people—in particular, women—are afraid. That the bill has induced such fear in the women of this country should make us all pause.

I hope that we have done enough to ensure that women’s fears about the bill are not realised in practice, but that will depend not on the words that we are writing into the law, but on the training that we give to our police officers and prosecutors, and on the way that we explain the legislation to the public. In particular, it must be widely understood that, just because one is offended, hurt or upset by something that someone has said about an aspect of one’s identity, that does not mean that a hate crime has been committed.

Even if the bill does not pose the grave risk to free speech that it once did, the same cannot be said for the equally worrying threat that the bill continues to pose for privacy and private and family life. We have tried. Conservative amendments at stage 2 and again yesterday at stage 3 tried to bring the bill into line with the way in which public order offences should respect the right to private and family life, but we have been thwarted and outvoted. I wish that I could say that the bill poses no threat to private and family life but, because I cannot say that, I cannot and will not vote for the bill at decision time today. 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, and that is a risk that the Parliament should not take.

For me, personally, the situation is a matter of deep regret. I do not want to live in a Scotland where people are free to threaten or abuse one another with the intention of stirring up hatred. However, when legislating in this area, or in any other area, Parliament must ensure that its legislation respects and does not infringe human rights. It is a matter of real regret to me that the bill does not meet that test, but that is why I will vote against it at decision time today.

14:30  

I thank members from across the chamber for their thoughtful speeches. I again thank the Justice Committee and its clerks, the Scottish Government team and others who have worked hard on the bill, including, of course, the stakeholders.

I will reuse a maxim that I have often quoted in the chamber. It is one that I think that all legislators should have at the forefront of their minds and that many members have referenced in other ways. It goes, what is about us without us is not for us.

I will come shortly to the point about women, but first I say to Liam Kerr that he should listen to the voices of organisations that represent victims and that believe that the bill is absolutely necessary. Victim Support Scotland, which Liam Kerr quoted, supports the bill. In fact, it says:

“If this Bill is not allowed to proceed through Parliament, it may be years ... before victims of hate crime have another chance to be given the protection they deserve.”

Will the member give way?

No, I will not. Forgive me, but the member got some extra time and I have only a few minutes to close the debate.

The Equality Network, Stonewall Scotland, the Muslim Council of Scotland, the Scottish Council of Jewish Communities and many other organisations—including Sikhs in Scotland, the organisation that represents Sikhs here—support the bill. Many racial equality organisations support the bill.

On the issues that have been raised by Johann Lamont and many other speakers, I do not doubt Johann Lamont’s sincerity. I have said that from the beginning and I put it on the record again. My concern with Johann Lamont’s statements is that she does not adequately recognise that a number of other women, ably represented by organisations such as Scottish Women’s Aid, Rape Crisis Scotland, Engender Scotland and Zero Tolerance Scotland, say that the addition of a sex aggravator could do harm for women. I completely accept that that is not the view of Johann Lamont, Elaine Smith and Joan McAlpine, but there is an opposing view.

Johann Lamont’s view is clearly not the only one that is held by women, because we have heard a different view from Annabelle Ewing and Shona Robison, as well as from the organisations that I mentioned. We have heard from people such as Dr Marsha Scott, Sandy Brindley and Emma Ritch. Like Johann Lamont, they are lifelong feminists, but they have a divergent view. Therefore, the argument that has been proposed and which has been accepted by the Justice Committee is that the right thing to do is to have a working group, led by the lifelong feminist and human rights campaigner Baroness Helena Kennedy, to explore the issues.

I do not have an in-principle objection to a sex aggravator. If the recommendation is to include one, it will be included. I have committed on the public record and written to every MSP to say that a draft order will be published within a month. The acceptance of that divergent view is extraordinarily important.

My concern about the Tories’ approach is that, if we had accepted their suggested amendments yesterday to remove the stirring up of hatred offences, we would have by far the weakest protections anywhere in the United Kingdom for those who are vulnerable and targets of hatred. I see someone shaking their head, but that is a fact. We would have the weakest laws to protect minorities.

As for Adam Tomkins, I align myself with the members who have praised his handling of the bill as convener of the Justice Committee. He will not put that on an election leaflet—of course, he will not have to, because he is departing this place. I hope that he can take pride in the role that he has played in, I think, improving the bill.

The trouble that I have with the argument about the right to privacy is that, as I am sure Adam Tomkins accepts, it is not an unfettered right. I have article 8 of the ECHR, on the right to respect for private and family life, in front of me. Paragraph 1 of article 8 says:

“Everyone has the right to respect for his private and family life, his home and his correspondence.”

That is correct. Paragraph 2 says:

“There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

That is crucial. Yes, we respect and must be compatible with all articles, including article 8, of the ECHR, but we must also respect the rights of those who are vulnerable to hate.

We all accept that we in this Parliament have a duty to be a voice for the voiceless—those who, too often, are left in the margins and on the sidelines, and who do not have anybody to speak for them. To every Jewish person who has suffered antisemitism, I say, “This bill is for you, and we are your voice”. To every black person who has been called the N-word, I say, “We are your voice, and the bill protects you”. To every lesbian, gay and bisexual person who has been threatened simply because of who they love, I say, “This bill is for you, and we are your voice”. To every person with a disability who has been mocked when getting on and off public transport, or going about their everyday life, I say, “We are your voice, and the bill is for you”. To every person in the transgender community who has been attacked for simply being who they are, I say, “The bill is for you, and we are that voice”.

I conclude by saying that I only feel disappointment and regret that the Conservatives and some Labour MSPs will not support the bill at stage 3. I know that they all stand unequivocally against hatred and hate crime. A mere nine months ago, we stood in solidarity in the chamber and said collectively that we will do everything that we can to tackle hatred. Therefore, it is a disappointment that the Conservatives will not join the other political parties in sending out that strong message.

To the victims of hate crime, I say, “The bill will protect you”. To wider society, I say, “Your freedom of expression and speech is also protected by the bill”. Today, we have listened and acted. I commend the bill to Parliament.

I thank members for their contributions in what was, unfortunately, quite a tight debate. That concludes the debate on the Hate Crime and Public Order (Scotland) Bill. There will be a short pause before we move to the next item of business.