Meeting date: Tuesday, December 15, 2020
Meeting of the Parliament (Hybrid) 15 December 2020
Agenda: Time for Reflection, Business Motion, Topical Question Time, Covid-19, Points of Order, Drug-related Deaths, Hate Crime and Public Order (Scotland) Bill: Stage 1, Hate Crime and Public Order (Scotland) Bill: Financial Resolution, Decision Time, No-take Zones
- Time for Reflection
- Business Motion
- Topical Question Time
- Points of Order
- Drug-related Deaths
- Hate Crime and Public Order (Scotland) Bill: Stage 1
- Hate Crime and Public Order (Scotland) Bill: Financial Resolution
- Decision Time
- No-take Zones
Hate Crime and Public Order (Scotland) Bill: Stage 1
The next item of business is a stage 1 debate on motion S5M-23682, in the name of Humza Yousaf, on the Hate Crime and Public Order (Scotland) Bill.
Members who wish to speak in the debate should press their request-to-speak buttons.16:02
I am pleased to open the stage 1 debate on the Hate Crime and Public Order (Scotland) Bill.
I intend to respond in my speech to a number of issues that were raised during the scrutiny process, but first I thank the members of the Justice Committee and the clerking team, and all those who gave evidence. Their evidence has helped to shape the comprehensive and helpful stage 1 report, and the majority of the recommendations in it have been accepted and welcomed by the Government.
Justice Committee members heard from Lord Bracadale at the start of their scrutiny of the bill. In 2018, Lord Bracadale published a report on hate crime that was commissioned by the Scottish Government. In commissioning that report, the then Minister for Community Safety—and now member of the Justice Committee—Annabelle Ewing, explained that
“racism, intolerance and prejudice of all kinds are a constant threat to society and, while Scotland is an open and inclusive nation, we are not immune from that threat … This review will help ensure that we have the right legislative protections in place to tackle hate crime wherever and whenever it happens.”
I could not agree more with that sentiment. It is as true now as it was when Annabelle Ewing made that statement.
I thank Lord Bracadale for his extensive report, on which the bill is based. The Scottish Government consulted on his recommendations in late 2018, and, informed by the views offered, developed and introduced the bill earlier this year.
I do not think that anyone disagrees with the need to address hateful behaviour. It is only by confronting such behaviour that we can collectively build the Scotland that we all want to see, where everyone can live free from hatred and prejudice.
The bill, which spent several years in development, through the independent review and the Scottish Government consultation, is designed to consolidate, modernise and reform hate crime law in Scotland.
Hate crime is not merely the use of unpleasant words that offend people; hatred has an insidious and corrosive effect on society. We often talk about that societal impact, and we are right to do so. We should also not lose sight of the impact that hate crime can have on the individual affected and on their family. I know that from personal experience, but so do many other victims who have been the targets of hate because of their sexuality, their race, their religion, their transgender identity or, indeed, any other characteristics, such as disability.
Does the cabinet secretary agree that significant numbers of women are targeted precisely because they are women?
Yes, I am certain that that is the case. I will come to a section later in my speech on the misogynistic harassment working group, which will look at the issue in greater detail. The Justice Committee took a great deal of evidence on that subject.
I make it clear from the outset—it is important to highlight and acknowledge this—that I know that members across the parties have expressed concerns about elements of the bill. I hope that I have demonstrated the conciliatory approach that I wish to take as the bill progresses through the parliamentary process. The Government has shown great willingness to compromise and address those concerns; I am certain that members will show the same willingness, so that, at the end of the process, we will have a bill that the entire Parliament can be proud of. Members might still have concerns about aspects of the bill, but I reiterate that I do not doubt their commitment to tackle hatred and that I will continue to have an open mind on amendments that may be proposed as we move into stage 2 of the parliamentary process.
I will move on to look at the stage 1 report in greater detail. A range of issues were aired during the committee’s scrutiny of the bill and I will touch on some of them. They include the distinct approach that the bill takes on race; finding the appropriate balance between protecting freedom of expression and protecting groups who are targeted by hateful behaviours and speech; and the importance of the working group on misogynistic harassment, which I just referenced to Johann Lamont.
The bill takes a distinctive approach in respect of race compared to that taken to other characteristics. The approach was the subject of considerable debate and discussion during stage 1, but that is a sign of a healthy and robust scrutiny process. That distinct approach means that, in relation to stirring up hatred, the offences for race carry different legal thresholds from those for the other characteristics, which is a situation that is replicated across the UK.
Two thirds of all recorded hate crimes in Scotland relate to race. In 2019-20, there were more than 3,000 charges relating to racial hate crime—eight times a day, every day, someone is targeted because of their race—and those are only the cases that we know about because they have been recorded.
Sadly, there is no denying the prevalence of racial hate crime offending in Scotland, so I believe that a distinct approach for race is needed—and is justified. We need an approach that recognises the seriousness of racial hate crime as well as the impact that it has on community and societal cohesion.
The removal of the word “insulting” from, or repealing, the existing stand-alone offence of racially aggravated harassment could be particularly damaging when it comes to tackling racial hatred in Scotland if doing so was perceived as weakening a criminal law protection in the area of race. If we removed the term “insulting”, we would be the only legal jurisdiction in the UK to do so. The committee heard compelling testimony from equality groups that supported the retention of that term. I am aware that, during its scrutiny of the bill, the committee asked whether the existing offence of racially aggravated harassment—which is also known as a section 50A offence—could be consolidated into the bill. I am pleased to confirm that the Scottish Government intends to do that by way of a stage 2 amendment.
The stirring up hatred offences in the bill prompted the greatest interest throughout scrutiny of the bill. As I said I would, I listened to the voices that expressed concerns in that area, and in September I announced fundamental changes to the operation of the new offences in the bill. I am pleased that the announcement of those changes before stage 1 scrutiny got under way allowed the Justice Committee to focus on the many important aspects of the bill.
The changes that I announced, which have been welcomed by almost all stakeholders, reflected the degree of concern that existed about the potential for the new stirring up hatred offences to lead to people self-censoring entirely legitimate activity. That was because if there was no requirement for there to be intent to stir up hatred in relation to the offence, there could have been at least the perception that the legislation might be used to prosecute legitimate acts of expression, which might have led to an element of self-censorship. It was never the intention for the new stirring-up offences to have that effect.
My proposed changes have allowed us to focus more on the corrosive effects of hate speech. As the committee heard, hate speech can leave entire communities feeling isolated, scared and vulnerable to attack. Although there might be—I accept this point—a relatively small number of prosecutions under the new offences, as has been the case under the existing provisions on race, stirring up hatred against a group of people is abhorrent, and the law must have the tools to address it when and where it occurs. I am pleased that the shift in policy that I announced has seemed to greatly ease the fears of a number of stakeholders.
A number of other issues relating to the operation of the stirring up hatred offences have been debated during scrutiny of the bill. At the Justice Committee last month, I announced that I proposed to remove from the bill specific provisions relating to theatrical performances, which some artistic stakeholders felt singled them out. Although those provisions were based on existing precedent contained in the Public Order Act 1986, I consider that they can be removed without significantly affecting the operation of the bill.
I have confirmed in my response to the stage 1 report that I will add a time limit to the police powers of search and entry in the bill—again, that was recommended by the committee.
I turn to freedom of expression, which I know has been an issue of some concern to members. I know that a frustration has been some people’s view that there is a binary choice between freedom of expression and hate crime law—that it is one or the other. That is not a view that this Government takes, and I know that it is not the view of a number of stakeholders.
Freedom of expression is not and has never been an absolute right, and most members probably accept that. Equally, it is important for the Government to recognise—I give an assurance that we do recognise this—that it is a fundamental freedom that is important to our democracy and the rule of law.
I say to all members that it does not have to be a binary choice between freedom of expression, which we all value, and ensuring that we have strong hate crime laws that afford protection to people who are most often the target of hate. It is not one or the other.
Does the cabinet secretary agree that hate crime can be tackled without violating the fundamental right of freedom of expression?
Absolutely—that is my entire point. The two do not have to be mutually exclusive. Liam Kerr will know that we have in the bill provisions on freedom of expression in relation to religion. I have given feedback to the committee on how I think that those provisions can be expanded to align better with the provisions on freedom of expression regarding religion in the English and Welsh legislation. I will, of course, be quite keen to hear from the committee what more we may be able to do.
On the other characteristics covered by the bill, I will continue to reflect on whether there is a compelling need to extend or strengthen the protections offered by provisions on freedom of expression. I am not persuaded that all characteristics need such a provision. Disability is one example—I would be curious to see whether anybody thinks that there has to be a freedom of expression provision in relation to people with a disability. However, I can see that there is merit in seeking to introduce such provisions in relation to some of the other characteristics covered by the bill and, indeed, in assessing the depth of what such provisions should be. In my response to the stage 1 report, I mentioned that I thought that there was merit in bringing forward freedom of expression provisions in relation to at least a couple of protected characteristics, namely transgender identity and age.
The process of scrutinising the bill—and, in particular, its stirring up hatred offences—has improved its quality. There has been effective and constructive parliamentary scrutiny, just as there should be.
I turn to the issue that Johann Lamont raised in her intervention: the characteristic of sex and how that is dealt with in the bill. I know that, for good reason, there are a range of very strong views on the matter. I reiterate that I do not doubt for a second that, regardless of which side of the debate a member is on, they believe very strongly in making sure that we have a bill that affords protection against hatred.
There is undoubtedly a pressing need to tackle misogyny and gender-based violence in Scotland. Through our work to implement the equally safe strategy and take forward recommendations from the First Minister’s national advisory council on women and girls, we understand the significance of how such behaviour can limit women’s and girls’ space for action, and we want to address that.
I was therefore delighted to announce Baroness Helena Kennedy as the chair of the working group, which will look to explore options around a potential stand-alone offence. Baroness Kennedy is well placed to take forward that work in the context of equality and human rights. She has indicated that Scotland is taking a pioneering position by exploring how the law can be harnessed to address conduct that is directly aimed at women.
I am sure that the cabinet secretary would recognise that hatred of women, which has been expressed through the centuries, is nothing new.
Last Thursday, I spoke in a debate in the Parliament, after which I was accused of transphobic hate. That accusation was not true. However, if I were to respond to my accusers by saying that they were expressing a hatred of women and of the rights for women that I sought in the debate, I would have no defence against that and no protection in the provisions of the bill. Is that fair?
I do not think that Johann Lamont is interpreting the legislation correctly at all. It does not concern subjective opinions in relation to, for example, the new offences regarding transgender identity. It would not be enough for someone to say, “I think that Johann Lamont is transphobic and therefore she should be investigated and prosecuted.” A high threshold would exist, and it would have to be proven beyond reasonable doubt, taking account of all the contextual factors, that she intended to stir up hatred against people because of their transgender identity. I am certain that it would not be possible to prove that.
However, even if it were to be proven that Johann Lamont’s behaviour had been intended to stir up hatred, the other legal threshold would also have to be met—that her behaviour was threatening or abusive. Again—I have no doubt that this will be covered in the debate—the test that would be applied by the courts is not a subjective one but an objective one. I therefore do not agree with Johann Lamont’s interpretation.
I understand that I am running out of time, so perhaps I could say more on the working group on misogynistic harassment in my closing remarks.
I know that members will wish to speak on many other aspects of the bill that I have not had time to cover—for example, I am sure that we will go on to debate the dwelling defence, the public element, the definition of “abusive” and the reasonableness defence. I will listen carefully to everything that members have to say.
In the meantime, I again thank the Justice Committee for its comprehensive and excellent report, which gives us a good basis for going on to stage 2. My plea is that, as we have done in advance of this debate, we should continue to work together to strengthen the law and to tackle hate crime in a way that will protect the rights of everyone to live their lives free from harm, while also protecting the important fundamental right to freedom of expression. I am certain that we can do so. I commend the general principles of the bill to the Parliament.
That the Parliament agrees to the general principles of the Hate Crime and Public Order (Scotland) Bill.
I call Adam Tomkins to open the debate on behalf of the Justice Committee.16:17
Our law reports are replete with resounding statements on the importance of free speech. In the case of R v Secretary of State for the Home Department, ex parte Simms, Lord Steyn said that
“freedom of speech is the lifeblood of democracy. The free flow of information and ideas informs political debate. It is a safety valve: people are more ready to accept decisions that go against them if they can in principle seek to influence them.”
In R (on the application of Animal Defenders International) v Secretary of State for Culture, Media and Sport, Lord Bingham said that
“Freedom of thought and expression is an essential condition of an intellectually healthy society. The free communication of information, opinions and argument about the laws which a state should enact and the policies its government at all levels should pursue is an essential condition of truly democratic government.”
In western liberal democracies, one of two approaches is taken to the problem of hate speech—that is to say, expression that is directed towards stirring up hatred. Most countries, including the United Kingdom, seek to regulate it, criminalising its worst excesses while bearing in mind the cardinal importance of free speech, as set out in the quotations that I have just cited.
The outlier is the United States, where the first amendment prohibits such regulation, with constitutional protection of speech that goes further than it does anywhere else. US critics of European, Canadian and New Zealand hate speech laws say that they suffer from two flaws, both of which are fatal from first-amendment perspectives—that they are vague and that they are overbroad. For the past two months, the Justice Committee, which I convene, has been poring over every line of the Hate Crime and Public Order (Scotland) Bill, anxious to ensure that it falls into neither of those traps.
As our unanimously agreed report makes clear, the aims of the bill are partly consolidation and partly expansion. Some of its provisions are based on existing offences that are found in the Public Order Act 1986, but others extend the reach of Scotland’s criminal law.
There is no disagreement between the committee and the cabinet secretary about how such provisions should be understood. We all accept that we have no right to criminalise speech just because we find it offensive—indeed, we have no right to do so no matter how offensive we find it.
Freedom of expression is not absolute in our law, but at the same time there is absolutely no doubt that it extends to the right to “offend, shock or disturb”.
“Freedom only to speak inoffensively is not worth having”,
as one judge put it.
The bill is about matters that are of fundamental importance, but it is also about balance. Which of us would want to live in a Scotland where people are free to threaten each other or to abuse each other on the basis of their race, their religion, or any aspect of their sexual identity? Getting that balance right is not easy—it is not a question of science, but is a matter of judgment.
In the committee’s judgment, the bill does not get that balance right, which is why—again, unanimously—we have recommended a series of amendments. Most, but not quite all, of our amendments have now been accepted by the cabinet secretary, so I thank him for his thoughtful and considered response to our report, which was published yesterday.
In our report, we welcome the amendments that were announced earlier in the autumn, but we say that they do not go far enough. The cabinet secretary said in September that the new offences of stirring up hatred on grounds other than race should be amended so that they could be committed only where such hatred is intended to be stirred up, and not merely where it is likely. In the committee’s view, that was a useful and helpful first step.
The cabinet secretary returned to the committee in November to say that, in addition, he would remove from the bill the provision that is targeted at theatres and public performance of plays, and that he would strengthen how the bill protects free speech in relation to religion. It is not just “discussion or criticism” of religion that should be protected; so, too, should ridicule and expressions of antipathy—and even of insult. Again, the committee welcomed all that.
Let me say, Presiding Officer, that the cabinet secretary’s constructive and pragmatic approach to the bill has been much appreciated by everybody on the Justice Committee, and has greatly helped to improve our scrutiny of the bill. That scrutiny has led us to conclude that, welcome as the cabinet secretary’s amendments are, we need to go further in order to ensure that the bill achieves its objectives without interfering with our fundamental rights.
For example, it is not just free speech with regard to religion that needs further protection; free speech with regard to other characteristics needs it, too. Police powers to enter and search premises need to be more tightly defined and further thought needs to be given to the extent to which we want to criminalise behaviour that takes place wholly in private but which would, nonetheless, be caught by the stirring-up offences.
On that point, I remind Parliament that the full title of the bill is the Hate Crime and Public Order (Scotland) Bill. Current stirring-up offences, as I have already said, are found in the 1986 act. We should bear it in mind that those offences are targeted at public disorder, not at private thought.
Among the suite of further amendments that we recommend, one, to my mind, stands out. Under the bill, it will become an offence to use threatening or abusive behaviour that is intended to stir up hatred. We must define what we mean by that. In particular, we must explain what we mean by “abusive”. That key term must have an objective meaning, such that—in the committee’s view—the Crown must show, in order to secure a conviction, that a reasonable person would have found the behaviour to be abusive. The cabinet secretary, in his response, has indicated his strong agreement with that sentiment and I welcome that, but he seems to think that the bill does not need to be amended to reflect it, so that is a matter that we are, clearly, going to have to come back to later.
I will illustrate what is at stake with a real example that touches directly on the questions that Johann Lamont has already asked this afternoon. It is a delicate matter that needs to be treated with care and sensitivity.
As we all know, there is at the moment in Scotland a robust and, sometimes, rather fraught live debate about women’s rights, about whether sex is immutable, and about the rights of transgender people. Some women who are campaigning on a certain view on these matters have been accused of transphobia.
The committee is absolutely clear that the bill is not intended to chill public debate on those matters or to lead to self-censorship in relation to them. However, the committee is anxious to ensure that those are not unintended consequences of the bill. That is why we need to ensure that a person can be charged with a stirring-up offence only if a reasonable person would have regarded their behaviour as abusive.
Tim Hopkins of the Equality Network and Becky Kaufmann of the Scottish Trans Alliance gave compelling evidence on that point. Becky Kaufmann said that aspects of the debate on women’s rights can make people—and, indeed, have made her—“extremely uncomfortable” and can be “very disrespectful” of people’s identities, but that, nonetheless, that is no business of the criminal law.
That brings me full circle. The bill is not about criminalising that which other people find offensive or disrespectful; it is about behaviour, including speech, that threatens or abuses, and that does so intending to stir up hatred.
I thank the convener of the Justice Committee for his thoughtful speech. I accept what he says, and I will go back and reflect further on whether we can give a definition of “abusive” in the bill and not just in the explanatory notes. I commit to doing that.
However, does he accept that, even if there is a discussion or debate on the definition of “abusive”, the second part of the legal test is crucial and that, to use his example, it would have to be proved beyond reasonable doubt that a person intended to stir up hatred against somebody else because of their transgender identity?
Absolutely—I accept that. However, the committee received a pile of evidence to the effect that we need to think not just about what happens in the criminal courts, but about what happens in police investigations. Speaking for myself, I say that I want to ensure that we do not have unnecessary police investigations on the basis of, for example, a flimsy allegation that somebody has engaged in transphobia when no reasonable person would have arrived at that conclusion. That is the force of my concern.
I am nearing the end of my remarks, and I have focused so far on only one aspect of the bill—namely, the stirring-up offences. Although that is the most contentious aspect of the bill, other provisions in the bill will have far greater practical effects. On that, we are all agreed. Offences that are aggravated by prejudice harm not only the immediate victim, but communities at large. As such, they should attract an aggravated-offence sentence. The committee agrees with the cabinet secretary that judges should be transparent about that in their sentencing decisions.
Hate crimes are better understood as focusing on the particular vice of prejudice, rather than on broader considerations of vulnerability, but it should be for Parliament in legislation, and not for ministers in regulations, to determine hate crime.
The bill does not include sex as a hate crime characteristic; sharply contrasting views about that were presented to the committee in evidence. On balance, we think it prudent to await the conclusions of the newly established working group on misogynistic harassment before legislating in the area. We warmly welcome the appointment of Helena Kennedy to chair that working group.
There is a lot more to be said, but the clock is against me. I hope that I have given a flavour of the committee’s work on the bill. Our report is lengthy and detailed, for which I make no apology. The 390 paragraphs of our report were designed with one objective in sight: to shine a light on the bill and on its strengths and its limitations, rather than to generate yet more heat about what has been a very contested measure.
The committee could not have done that without the open-mindedness and fair-mindedness that each and every member of the committee brought to the inquiry. We could not have done it without the extraordinary dedication, high standards and professionalism of the committee’s brilliant clerking team, which is led by Stephen Imrie and Katrina Venters. Most of all, we could not have done it without the help and support of the hundreds of Scots who engaged in the law-making process and who gave evidence. I thank them all.16:28
I am pleased to open for the Scottish Conservatives in the debate on whether the Parliament should agree to the principles of the Hate Crime and Public Order (Scotland) Bill. Before I address those principles, I will pick up on the closing remarks of the Justice Committee’s convener. The bill is the most controversial in the history of the Scottish Parliament. An unprecedented 2,000-plus people and groups felt compelled to respond to the request for evidence. That is extraordinary, and I think that it shows the best of civic Scotland. However, it also shows just how badly the Scottish Government got the bill wrong when it introduced it.
Following that, the Justice Committee took evidence from witnesses who presented themselves to scrutiny in very difficult circumstances and pursuant to a challenging timeframe. Every witness added considerable value to the inquiry, and that is reflected in the quality of the committee’s report. The report is a tribute to the professionalism, skill and patience of the clerks to the committee and other parliamentary staff. I know that I speak for everyone here when I acknowledge them.
Finally, I must acknowledge the MSPs on the committee. I approached the inquiry with a significant degree of trepidation. In September, I led a debate in which I asked the Parliament to reject the bill as drafted and invited the Government to come back with something workable that did not attack freedom of speech, and which could be scrutinised and implemented in the short time that was available to protect, via the aggravators, those we are all so keen to protect. That proposition was rejected by all parties, bar the Conservatives, so I worried about how the inquiry would go.
However, the committee was not only collegiate and courteous but forensic, and its evidence taking and the report showed the best of what parliamentary scrutiny can be. The committee came to the unanimous conclusion that the Parliament should approve the general principles of the bill only if the changes that were unanimously demanded in the report were made to it.
I turn to those principles. In the programme for government, the First Minister told us:
“we need to ensure that we have laws in this country that are capable of tackling hate crime because it is pernicious and horrible and we should have zero tolerance for it.”—[Official Report, 1 September 2020; c 46.]
She is right. There was widespread acceptance from witnesses that we must do all that we can to ensure that the first part of the proposed new law, which deals with the statutory aggravations, is not only capable of tackling hate crime but does so completely and unambiguously.
Few witnesses had any issue with the principles of part 1. Similarly, I do not think that anyone had any issue with the principles of part 4, on the abolition of the offence of blasphemy. Part 3, which deals with provisions around characteristics, was also accepted in principle, although, properly, there require to be further debates and amendments on that point. It is with part 2 that severe challenges arose.
As introduced, the bill poses a grave threat to freedom of speech. As drafted, it would outlaw speech even if it was plain that the speaker had no intention to express, never mind stir up, hatred. The offence could be committed even in a person’s own home—we would even have to watch what we said around our own dinner table. Under the bill as drafted, those who take a particular position on women’s rights risk being accused of transphobia and criminalised for hate crimes, as Johann Lamont mentioned.
Time and again, whether in written submissions or oral evidence, the committee heard from individuals and organisations as diverse as the Law Society of Scotland, the Faculty of Advocates, the Scottish Police Federation, the Scottish Newspaper Society, the Humanist Society Scotland and the Catholic Church that the draft provisions threatened freedom of expression.
Those are the challenges that I sought to resolve in September when I suggested that the Scottish Government take the bill as drafted off the table and come back with something that did not have the controversial stirring-up offences in it so that the provisions on the aggravation of offences by prejudice, which we all agreed were so vital, could proceed smoothly and promptly.
Parliament was not with me on that proposition, but the cabinet secretary was with me on the fact that the proposed extension of stirring-up offences raises questions about impacts on freedom of expression and citizens’ engagement in democratic debate. I say that because, in what I believe to be an unprecedented move, even before the Parliament had started to debate the bill and before the committee evidence-taking process had begun, the justice secretary announced that he would be making amendments to his own bill. He said that the new stirring-up offences would be amended at stage 2 so that they would be crimes of intention only. That was welcome but insufficient. We knew that it was insufficient because the pressure from civic Scotland did not relent.
Therefore, the justice secretary returned to the Justice Committee to acknowledge the fundamental flaws that are inherent in the part 2 principles and promised to lodge an amendment at stage 2 that would scrap the provisions on theatres, plays and live performances. Even so, the cross-party Justice Committee was unanimous in its view that that would still not right the wrongs of the bill, that further changes—those that are set out in the committee’s report—had to be made and that only if the justice secretary implemented its unanimously agreed recommendations would the bill be acceptable.
Yesterday, we received the Government’s response to the committee’s report. Encouraging amendments are proposed. Section 5, on the possession of inflammatory material, is to be removed; there is a proposal for time limits on the police powers of entry per section 6; and freedom of expression protections are to be strengthened. We have a third set of changes to the bill’s principles being proposed by the Government before we have even arrived at stage 2.
However, here is the rub. First, not all of the committee’s recommendations regarding stage 2 principles have been taken on board. The reasonableness defence is not to be added to—there is just consideration of adding to the explanatory notes. The term “abusive”, which we heard so much about from the convener of the committee, is not to be defined but, rather, will be clarified in the explanatory notes. The Law Society of Scotland says in its submission that came in last night that simply clarifying in the explanatory notes is unacceptable.
“The Bill must stand on its own so there is no role for ‘guidance to accompany the legislation’”.
There is still no protection in the bill for things that are said in the privacy of one’s home. Not only is that a violation of the right to privacy but, to paraphrase the convener, how can a public order offence be committed in private?
Does the member accept that there are other aspects of the criminal law that impact on what happens in one’s home?
I do. We heard about that in committee. However, I think that my point stands. We do not have protection in the bill for things that are said in the privacy of one’s home.
Other crucial problems remain unchanged. In the section 3 stirring up of hatred offences, the threshold for criminality is arguably too low, and the offences are still wider ranging than those in other jurisdictions in the UK. The freedom of expression protections will not cover all new characteristics and, even for the characteristics that are covered, the protections are arguably not sufficient.
The conditions that were imposed for support by the Justice Committee have not been satisfied, and we do not know today that the cabinet secretary’s promised amendments will be agreed to at stage 2. He can propose all that he likes, but it is for the Parliament to approve those things or not. Today, we will vote on the principles of the bill as drafted.
The convener said in his opening remarks that the bill is about matters of fundamental importance but that it is also about balance and that, in the committee’s judgment, it does not get that balance right. He is correct. The committee is correct. The bill, on the unamended principles of which we will vote tonight, does not get the balance right and, as drafted, it could criminalise that which other people find offensive or disrespectful.
Will the member take an intervention?
Do I have time, Presiding Officer?
Yes, if it is a quick one.
Thus far, Liam Kerr has not really mentioned the victims of hate crime. What does he say to the Equality Network, Stonewall, racial equality organisations, the Muslim Council of Scotland, the Scottish Council of Jewish Communities, Victim Support Scotland, HIV Scotland—all those who support the general principles of the bill?
I say that I thank them very much for their counsel in the committee sessions. I am not sure that this is the point that the cabinet secretary was making, but he will have read the Murray Blackburn Mackenzie submission that came in last night, which anticipates that concern, saying:
“Careful scrutiny of legislation does not mean lack of compassion for the groups it sets out to help. Effective legislation requires critical engagement.”
I know that the cabinet secretary will agree that that is what we are engaged in. I am very grateful to the groups that he mentioned. Their evidence was extremely important and I think that they will also appreciate that that is what we are doing.
As I said, the bill, on whose unamended principles we will vote today, does not get the balance right. I find support for that in the LGB Alliance submission that we received last night, which includes the words:
“We have serious concerns about the Bill in its present form, and ask that it be withdrawn and rethought.”
The bill is the most controversial in the history of devolution, but the cabinet secretary’s response has not reflected the avalanche of opposition that his bill has faced. Genuine hate crime must always be punished, but the bill goes too far. Our fundamental right to freedom of speech remains under threat, and accordingly the Scottish Conservatives will vote against the principles of the bill at decision time tonight.16:39
I start by echoing some of the comments that Liam Kerr made about the committee and the drafting of its report. I pay tribute to the clerks, to all those who gave evidence and to the committee members who took evidence, including my colleague James Kelly.
I joined the committee as the report was being drafted and, to be frank, I was expecting to join a bit of a rammy. However, that was not the case, and that is down to everybody who works with and in the committee. All worked hard to ensure that the committee could reach consensus and I believe that, by doing so, and if the cabinet secretary continues to work with us, we can pass good legislation that will stand the test of time. There are many complex points of law to be considered, but paramount is the balance between freedom of speech and protection from hate speech.
Scottish Labour is supportive of the overall principles of the Hate Crime and Public Order (Scotland) Bill and agrees that it is important to consolidate hate crime legislation. However, we have concerns about the way in which the bill has been drafted. It is welcome that the cabinet secretary has on several occasions listened to concerns, and I hope that he will continue to do so. Although the changes that he has accepted are welcome, I believe that he must go further to meet all the concerns that have been expressed about the bill.
There are concerns about whether to add sex as a characteristic in the bill. There is concern that leaving it out might give a signal that hate crime that is based on sex and misogyny is in some way of lesser importance than other hate crimes. There are also concerns that the promised legislation to deal with misogyny may never transpire.
In Scotland, we know that violence against women is not only about hatred; it is about control and inequality. Engender pointed out that both the Convention on the Elimination of All Forms of Discrimination Against Women and the Council of Europe’s Istanbul convention on preventing and combating violence against women and domestic violence suggest a presumption against gender-neutral laws that protect men and women in exactly the same way, because those seldom protect women, given that men and women are not equally empowered. That concern has been expressed by Engender, Zero Tolerance, Scottish Women’s Aid and Rape Crisis Scotland, which oppose a sex aggravator and support separate legislation that incorporates the societal issues that underpin misogyny and violence against women.
Scottish Labour welcomes the working group on misogynistic harassment, and agrees that provisions and protections must reflect the serious nature of violence against women. However, we share concerns about the delay, and we reserve our position on adding sex as an aggravator, in order to avoid a hierarchy of protections. We therefore agree with the committee that the working group should report within a year, in order to allow timely implementation of its recommendations, and we will reflect on what may be required between then and the finalisation of the bill.
I am grateful to Rhoda Grant for taking a very quick intervention. She knows that I share a lot of her concerns on that issue. Where is Scottish Labour at the moment on lodging an amendment at stage 2 to introduce sex as an aggravator?
Obviously, we are considering that as part of what we may do at stage 2. I am not saying that we will do it, but we are looking at it and we will look at the balance of evidence when we speak to stakeholders, because there is an issue about having protection in place while we wait for a working group to report. It may be that the bill could be amended to allow for that to happen, so that there is no gap between one protection and another. However, as I have said, we will be discussing that with stakeholders, so have not drafted anything at this point.
It is welcome that the Scottish Government has conceded that amendments are necessary in order to make part 2 of the bill fit for purpose, and we have already heard a fair amount about that. Requiring intent for the stirring-up offences will be an improvement to the provisions and will ensure that the bill includes adequate protections for freedom of speech and thought and does not criminalise legitimate views. The cabinet secretary’s proposed triple lock is welcome. The behaviour must be threatening or abusive, and intended to be so. As with all criminal law, the crime must be proved beyond all reasonable doubt, and the perpetrator must intend wrongdoing.
I believe that the amendments are welcome, but Ephraim Borowski of the Scottish Council of Jewish Communities still had concerns about online hate speech. He told the committee:
“having posted their hatred, people will then end their comments with ‘Just saying’ or ‘Just asking.’ They are now being given a get-out-of-jail-free card because they can say that they did not intend to cause offence, but that they were merely asking a question”.—[Official Report, Justice Committee, 10 November 2020; c 27.]
I would welcome clarification from the cabinet secretary that such an easy defence will not be possible under the bill. In that context, it is disappointing that the cabinet secretary has chosen not to clarify the operation of the reasonableness defence in the bill, as the committee recommended that he should do. Clarification could have provided reassurance about such a scenario. I hope that he will look at that again.
I will address Rhoda Grant’s point about there being an easy defence in my closing speech. On the reasonableness defence, I am struggling to understand how behaviour that is threatening or abusive and that is intended to stir up hatred could be justified as reasonable. I would be happy for any member to respond to that point in their speech or in an intervention; perhaps Rhoda Grant has an example of behaviour where the intention is to stir up hatred but for which there is a reasonableness defence because of X, Y or Z—if she does, I will be keen to hear it.
I do not have an example, but the law needs to take account of every possible scenario. We have to be careful not to do anything that impinges on people’s freedom of speech. Some of the language that is used on social media is pretty grim, and language that I think is reasonable might not be the same as language that someone else thinks is reasonable. I hope that the cabinet secretary will tell us whether there will be further amendment to the bill to provide comfort in that regard.
On freedom of expression, Tim Hopkins, from the Equality Network, said that the Law Commission for England and Wales talked about the English provisions that take a similar approach to that of sections 11 and 12. He quoted the commission’s clarification that
“the law applies to hatred against persons, not against institutions or belief systems”,
“criticism of behaviour is permitted”,
and that the provisions maintain
“a space for discussion of public policy on potentially controversial issues”.
Some people argued that article 10 of the European convention on human rights, which is set out in schedule 1 to the Human Rights Act 1998, provides those protections. However, article 10 says:
“The exercise of these freedoms ... may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society”.
Therefore, it would be better for the bill expressly to incorporate the protections, rather than depend on article 10. The cabinet secretary has shown willingness to improve the freedom of expression provisions in the bill; Scottish Labour thinks that he should set out how he intends to further amend the bill in that regard at stage 2.
I am running out of time, Presiding Officer. I will comment further in my closing speech.16:48
The bill has taken a rather unusual route thus far. It has certainly prompted a lot of debate. I thank the people who helped us to get to this point: the witnesses, our outstanding parliamentary staff and—although self-praise is faint praise—my colleagues on the Justice Committee, because we have worked collaboratively to produce the report that we are discussing.
It became very apparent that words and phrases are important. I am thinking of words and phrases such as “stir up”, “likely to”, “insulting”, “abusive”, “reasonableness”, “dwelling”, “freedom of expression” and “freedom of speech”.
We know that freedom of speech is not an absolute right. The committee explored how far that right extends, and in particular whether it extends into a right to offend. A similar issue arose in the context of the Defamation and Malicious Publication (Scotland) Bill, when we considered freedom of expression versus the right to defend one’s reputation. Concerns were voiced about the bill’s potential to have a chilling effect. In written evidence, the Law Society cited with approval Lord Justice Sedley, who said:
“Freedom only to speak inoffensively is not worth having”.
Likewise, the Faculty of Advocates cited Lord Rogers, who said that freedom of speech applies to
“‘Information’ or ‘ideas’ that … ‘offend, shock or disturb’”.
Words, and the weight that is attached to them, have become very important. In paragraph 44 of its stage 1 report, the committee agreed that
“the right to freedom of speech includes the right to offend, shock or disturb.”
It went on to say that it
“understands that this Bill is not intended to prohibit speech which others may find offensive, and neither is it intended to lead to any self-censorship.”
However, it was
“anxious to ensure ... that these are not unintended consequences of the Bill.”
There is no single definition of hate crime. Lord Bracadale used the following definition, which is that
“Offences which adhere to the principle that crimes motivated by hatred and prejudice towards particular features of the victim’s identity should be treated differently from ordinary crimes.”
We know that existing arrangements for hate crime deal with it as an aggravator to an existing offence, such as robbery, assault or breach of the peace, and that a lesser degree of proof is required to prove that aggravation.
The consultation on the bill generated a lot of interest. A substantial portion of the responses expressed concerns about freedom of speech and religious expression. However, that has to be countered by the need of vulnerable groups for protection and
“sending out a message about the unacceptability of prejudice-based content.”
There was a constant tension about freedom of speech, freedom to offend and the state’s obligation to ensure that that does not tip over into hate. That led to some lobbying, with some intemperate language from some people and some emotive imagery about constabularies invading churches. That has to be set against concerns about the bill attacking existing protections if there were to be further dilution.
As others have said, the cabinet secretary’s approach is to be commended. The letter in September and the indication in October about changes to exclude the likelihood provisions is very welcome. It is, I hope, a signal of the way in which we will continue. Thinking of the response yesterday, it seems that, for my colleagues, there is still a way to go on some aspects. The bill and the way that it has been dealt with send an important signal. It is an emotive subject, and we all want it to be properly addressed.
The cabinet secretary defended the retention of the word “insulting”, saying that it had been in legislation for 34 years. The Law Society said that
“it lowers the bar for criminality a bit too far.”—[Official Report, Justice Committee, 3 November 2020; c 4.]
The issue of a hierarchy of discrimination and inconsistency in relation to race has been mentioned. However, the committee rightly agreed that there are unique features in the pernicious nature of race crime. Race organisations strongly argued in favour of retaining the word “insulting”, suggesting that removing it would create a perception of dilution. Amy Allard-Dunbar of Intercultural Youth Scotland said:
“Microaggressions are daily instances of racism that add up to cause significant racial trauma. A lot of them come under the term ‘insulting’, and it would be hard to understand their impact if the term was not included in the bill. That provision needs to be kept.”—[Official Report, Justice Committee, 17 November 2020; c 33.]
There has been a lot of discussion, including about the term “abusive”, which the Crown Office tells us is a concept well understood by Scots prosecutors. There are people in favour of the decision. Discussions on that should continue. Similarly, I do not think that we are done with the dwelling defence yet. It is welcome that the cabinet secretary proposes to remove the provisions on public performances; likewise the time limit on police powers.
There were polarised views in relation to the working group on misogynistic harassment. I feel that there is a gap, and I am delighted that Baroness Helena Kennedy is to carry out an investigation.
Victim Support said that the impact of hate crime
“is frequently more devastating and longer lasting than that of other types of crime because an aspect of an individual’s core identity and sense of belonging is attacked.”
In its view,
“abusive behaviour forms part of a number of microaggressions that not only negatively impact individual victims, but whole communities and marginalised groups.”
For that reason, we need to keep discussions going, but at decision time, the Scottish Green Party will vote for the general principles of the bill.
Liam Kerr please, for up to six minutes—sorry, Liam McArthur.16:55
You are not the first and you will not be the last, Presiding Officer.
In normal times, this would have been a complex and sensitive bill with potentially far-reaching consequences. During a pandemic, with evidence taken in virtual meetings and under enormous time pressures, the task of scrutiny has been made immeasurably harder. Like others, I pay tribute to all those who played their part: to witnesses, who responded in their thousands and had to adjust oral evidence to take account of the shifting sands of the Government position; to committee colleagues, not least our convener, who have been diligent, forensic and collaborative throughout; and to our clerks and the Scottish Parliament information centre, who have provided exceptional support.
I also thank the cabinet secretary, who recognised the hole that he had dug for himself and sought a ladder rather than a shovel. He is not out the hole yet, but he is a good deal closer than he was when we last debated the bill back in September. In that debate, the justice secretary accepted the ladder that I offered him when he acknowledged the serious concerns around part 2 of the bill—the so-called stirring-up offences—and agreed to set out ahead of stage 1 evidence taking how he proposed to address them.
That resulted in those offences being made intent only. It was a small but significant shift that left a great deal still to be reviewed, repaired and removed, but it allowed the committee to begin hearing evidence in a very different atmosphere, on a bill that was salvageable as opposed to one in need of being put out its misery.
We should not underestimate how problematic that latter outcome would have been, because our hate crime laws need modernising and consolidating. Hate crime for all protected characteristics is on the rise, and although the culture shift required to reverse that ugly tide will take time, our police, prosecutors and courts need the tools to deal with it when and where it occurs. At the same time, of course, we must be alert to the impact on other fundamental freedoms.
Our report asks whether rights such as freedom of speech and privacy should be interpreted and applied generously and restrictions to those rights legislated for narrowly and only where necessary in the public interest. To that question, as a liberal, I believe the answer is yes—even if those freedoms are not unfettered.
Again, I quote Lord Justice Sedley, who has been anonymously cited by others, who argued that
“Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative ... Freedom only to speak inoffensively is not worth having”.
That is why, during our stage 1 evidence, I focused my questioning on how those freedoms might be afforded greater protection in the context of the bill, and that is where I intend to concentrate my energies during stage 2.
I welcome the justice secretary’s earlier commitment to enhancing protections in relation to religion and his willingness to go further in broadening and deepening the protections relating to other characteristics. I look forward to seeing the detail of any such amendments and remain happy to work with the justice secretary, as well as those who gave evidence on those issues in developing options for the committee to consider.
Although it is important to stress that each characteristic is equally deserving of protection, as John Finnie said, those protections need not be equal. As the committee recognised, the history, nature and prevalence of hate crimes differ, and that justifies taking different approaches. In passing, and as the convener very ably laid out, particular attention will be needed for protections in relation to transgender identity. As witnesses observed time and again, in an already combustible debate there is a risk of making it even more explosive.
However, race clearly stands out, not least given its significantly higher prevalence; it is right, therefore, that we do nothing that dilutes or appears to dilute protections that currently exist. That makes the case for retaining both the current threshold for stirring up hatred and the reference to “insulting”. It is also why bringing the stand-alone offence of racially aggravated harassment into the scope of the bill is the right thing to do.
Consolidation helps to make law more accessible and thereby more effective. In the same way, updating the language to replace “evincing” with “displaying” malice or ill will addresses concerns that we heard about accessibility.
Although most of the attention around the bill has focused on part 2, as Tim Hopkins of the Equality Network reminded us, part 1 on aggravators is far more important. The Scottish Law Commission found that, in England and Wales, where a stirring-up offence covers race, religion and sexual orientation, stirring up is infrequently used in comparison with aggravated charges. That reinforces Lord Bracadale’s conclusion that basing our hate crime laws on an aggravator model remains the right approach.
At this stage, sex is excluded from the bill as an aggravator. I very much understand the rationale for exploring a stand-alone misogyny offence, but that leaves a glaring omission. There is also the risk that any future provision will be made under secondary legislation, which inevitably limits scrutiny by the Parliament, even under the super-affirmative procedure. Baroness Kennedy’s appointment as chair of the working group on misogynistic harassment is a coup, and I can think of no better person to take on that role. However, if that work delays by years any meaningful change to the law, the impeccable qualifications of the person who kicks the can down the road will come as cold comfort.
As BEMIS made clear and as the latest hate crime statistics bear witness,
“Scotland is not immune to racism or prejudice”,
so we should ensure that our laws are fit for purpose. At the same time, we must avoid doing anything that undermines our fundamental freedoms, which makes the task of tackling hate crime more difficult.
That is the challenge for the committee at stage 2. The cabinet secretary has undertaken to perform major surgery on his bill, but more will be needed if it is to gain the Parliament’s approval. With those caveats, the Scottish Liberal Democrats will vote for the bill’s principles.
All the opening speeches went over time, so we will be strict with the open debate. Members have six minutes for speeches, which must include any interventions.17:01
I am pleased to speak in the stage 1 debate on the bill, whose general principles I will support today. As the Justice Committee’s deputy convener, I add my thanks to the clerking team and the bill team for the fantastic support that we received throughout scrutiny of the bill, which was a big job that they made immeasurably easier. They enabled the committee to deal with the bill’s many aspects reasonably and consensually.
I am sure that the many victims of hate crime are even more disappointed than I am that the Conservatives will not back the general principles—those victims must feel severely let down. The cabinet secretary gave evidence to the committee twice, which absolutely demonstrates his willingness to engage and listen to all concerns. He has accepted the overwhelming majority of the committee’s recommendations and is willing to engage further on other matters. Given that hate crime numbers in all categories are rising, it is imperative to hold to account those who spread hatred of minority groups.
The first recommendation in the committee’s report says:
“The Committee agrees that the right to freedom of speech includes the right to offend, shock or disturb. The Committee understands that this Bill is not intended to prohibit speech which others may find offensive, and neither is it intended to lead to any self-censorship. The Committee is anxious to ensure, however, that these are not unintended consequences of the Bill.”
That is a good place to start. The bill has achieved huge media and public attention because of fears that freedom of speech might be restrained, but that categorically is not and never has been the bill’s intention. The bill is intended to show that Scotland does not endorse the freedom to abuse or to threaten minorities.
In 2018, Lord Bracadale undertook a hate crime review with a view to consolidating various provisions on hate crime, some of which have existed for decades, and to making the existing fragmented legislation fit for the 21st century by putting it in one bill. The bill implements most of Lord Bracadale’s recommendations, and the legal profession and stakeholders have overwhelmingly welcomed the consolidation.
Recommendations that the Government accepted include those on strengthening protection of freedom of expression provisions and on having an objective test for applying the term “abusive”. On that test, it should be noted that the existing law under section 38 of the Criminal Justice and Licensing (Scotland) Act 2010 is widely used, and that any clarification must not restrict the definition in relation to domestic abuse cases, for example, which could have damaging unintended consequences. For that reason—I note what the cabinet secretary said in his intervention on the committee’s convener—I believe that putting clarity in the explanatory notes, rather than in the bill, is the correct decision.
Including the existing offence of racially aggravated harassment in the bill was also accepted, as were new limits on police powers of search and entry.
Some faith groups, artists, authors and others raised concerns about section 4, which was removed entirely. Section 5 of the bill, which deals with possession of inflammatory materials, will be removed by amendment at stage 2.
One of the most important amendments was made by the cabinet secretary even before scrutiny began. As we have heard, it related to part 1 of the bill, on stirring up hatred. The cabinet secretary introduced the requirement to show intent to stir up hatred, which has to be proved beyond reasonable doubt in a court of law. The amendment was universally welcomed by all witnesses and stakeholders during evidence sessions and is, I believe, the right thing to do.
Each member of the committee followed a specific line of questioning with witnesses. My line of questioning was on the different approach that is taken in the bill to racial hatred, by retaining the “insulting” and “stirring up” elements that have been present in current legislation under the Public Order Act 1986 for 34 years. There was a—[Inaudible.] I do not support that view. Racial hatred accounts for two thirds of all—[Inaudible.]
Excuse me, Ms Mackay. When you move backwards from your screen, we lose your voice. Please can you lean in?
I apologise, Presiding Officer.
To remove the word “insulting” would dilute the message that racial hatred is abhorrent. It would also mean that there would be a lower threshold for racial hatred in Scotland than there is in England and Wales. Groups that deal with racial hatred, including BEMIS, the Coalition for Racial Equality and Rights, and YouthLink Scotland, told us that they support the inclusion of “insulting”. Unlike the cabinet secretary, I have never been targeted in that way, so their evidence is good enough for me.
The so-called dwelling defence has been much debated—often, fuelled by misinformation. There should be no sanctuary, in a home or other closed space, for intent to stir up hatred. Other crimes that take place in the home do not have that defence. Any allegation of that nature would have to be proved beyond reasonable doubt—it is not about restricting discussion around the kitchen table.
Misogyny in Scotland must be tackled. I welcome the setting up of a misogyny working group to be headed by Dame Helena Kennedy QC. The group will consider whether the characteristic of sex as an aggravator ought to be added by regulation to the list of characteristics. However, leading women’s organisations, including Engender and Scottish Women’s Aid, articulated strong arguments against including a sex aggravator.
I am pleased that the cabinet secretary has said that he intends to lodge amendments at stage 2 to add freedom of expression provisions for the protected characteristics of transgender identity and age.
It would take more than six minutes to cover just one aspect of the bill. In conclusion, I ask everyone who had preconceived notions about the bill to listen to the detail and to understand that it is not about curbing freedom of speech. All of us—not just members of the Scottish Parliament, but the people of Scotland—who want to live in a country that is inclusive and has zero tolerance for those who stir up hatred with intent to abuse and discriminate against minorities, should get behind the bill.
I am proud to support the general principles of the bill today.
We have absolutely no time left. If members go over time, either we will end up with an even later decision time, or I will have to cut off speeches before they end.17:08
Crimes that are driven by prejudice and hatred have deep social consequences. There is not just physical and psychological damage to the victim of the crime, but damage to the group to which the victim belongs and to our wider community, as a whole. As parliamentarians, we have a duty to work together to ensure that we do our utmost to protect, so that they can live their lives freely, those who are most vulnerable and who are targeted with hate. The volume of interest in and engagement with the bill from diverse stakeholders reflects not only the importance of the issue, but of cross-party committee scrutiny and the bill process as a whole.
I am grateful to the Justice Committee for all its work at stage 1. I commend the cabinet secretary for his approach in listening to concerns that have been raised and acting on them. Having the debate in advance of stage 1 was extremely helpful in that regard. I appreciate that the Scottish Government accepts the overwhelming majority of the Justice Committee’s recommendations, including on strengthening of protection for freedom of expression, ensuring that the test of the term “abusive” is objective and removing from the bill section 5, on possession of inflammatory materials.
While we do everything that we can to ensure that Scotland is a place where there is zero tolerance of hate crime, we must ensure that we strike the right balance between respecting, protecting and upholding all rights, including the right to free speech.
Freedom of speech, of course, carries with it duties and responsibilities, and it can be legitimately subject to conditions, restrictions or penalties in the interests of, among other things, public safety and prevention of disorder or crime. The bill cannot, and does not, prevent people from expressing controversial, challenging or offensive views, nor should it seek to stifle criticism or rigorous debate in any way.
The bill includes explicit provisions on freedom of expression, but the bill’s provisions are required to be interpreted in accordance with the European convention on human rights, anyway. The ECHR guarantees us all the right to protest and to express views, even if they shock, offend or disturb others, although I acknowledge Rhoda Grant’s point about whether we should have to rely on the ECHR for judgments.
I welcome the Scottish Government’s movement around the stirring up provisions. I note the positive reception that was given to that by many organisations that were concerned initially. Lisa Clark, from Scottish PEN, stated:
“the cabinet secretary’s amendment to focus on the requirement to prove intention to stir up hatred is welcomed and has eased ... our anxieties about the potential for a chilling effect on writers”.—[Official Report, Justice Committee, 10 November 2020; c 2.]
I want to talk about misogyny, which is not covered by the bill but which, nonetheless, requires urgent attention. The cabinet secretary highlighted the impact that hate crime has on individuals who are targeted and on their wider group. The impact of misogyny on the lives of women and girls should not be underestimated. We, of course, account for more than 50 per cent of the population, so the women and girls who experience misogyny make up a sizeable proportion of our citizens.
Having reflected on the evidence that was provided to the Justice Committee, I agree with it that it is wise to wait until the working group on misogynistic harassment has reported before Parliament considers legislating to add sex as a hate crime characteristic. The matter is undoubtedly complex, and there are many differing views on how best to approach it from a criminal justice perspective. There is no single definition in law that is commonly used in a criminal context to encapsulate the breadth of behaviours that come under the umbrella term “misogyny”.
Evidence from Engender on international examples concluded that, in relation to other states and the current work on tackling violence against women and on criminal justice systems in Scotland and Europe, a sex aggravator not only would do nothing to make women safer, but might have unintended and harmful consequences. I understand why women would be instinctively drawn to a sex aggravator—as Engender was, and as I certainly was—but it is crucial that we legislate in a way that best protects women and girls. At the moment, it looks as though the addition of a sex aggravator is not the way to go, but we will, of course, have to wait to see the working group’s conclusions.
The appointment of Baroness Kennedy and the Scottish Government’s commitment, in principle, to developing a stand-alone offence of misogynistic harassment are welcome. I acknowledge that it will be up to the group’s chair to agree the overall timescale in which to deliver what is being asked of it, but I press the cabinet secretary to say a little more on that front. At a time when it feels as though misogyny is at epidemic levels, it would be helpful to women and girls in Scotland to hear the Government reaffirm that misogyny is taken just as seriously as other hate crimes are, and that effective action will be taken as soon as possible. In Baroness Kennedy’s words,
“The law has often failed to provide adequate remedies and justice for the harassment, assault and sexual violence experienced by women. Women have had to fight hard to properly criminalise such behaviour. The everyday abuse of women too often involves verbal degradation of the darkest and most threatening kind.”
Confronting all hate crime is central to building the safer, stronger and inclusive Scotland that we all want.
I will be proud to support the bill at stage 1.17:14
I thank the Justice Committee’s clerks, who always do a superb job in compiling stage 1 reports but who, together with the Scottish Parliament information centre, have performed a herculean feat in analysing the staggering 2,000 responses to the committee’s call for evidence and compiling the stage 1 report on what is one of the Scottish Parliament’s most contentious bills in its 21 years of existence.
Hate crime is vile and should and must be acknowledged, recognised, addressed and dealt with proportionately, fairly and effectively in a number of ways through training, education, awareness raising and—yes, where necessary—the rule of law. However, legislation in itself is not a panacea for tackling hate crime; it might, where appropriate, be another tool in the box to address it.
The Hate Crime and Public Order (Scotland) Bill was introduced by the Cabinet Secretary for Justice, Humza Yousaf, on 23 April 2020. It seeks to consolidate all existing Scottish hate crime legislation into one new hate crime statute and to modernise and extend existing hate crime legislation in Scotland by including age as an additional characteristic and creating a new offence of stirring up hatred.
I want to focus on the age provision in the bill. According to Dr Hannah Bows’s research on age, which the Justice Committee commissioned, seeking to recognise and respond to elder abuse through specific criminal offences or by widening access to the hate crime framework to include older age will neither reduce violence and abuse nor improve prosecution and violence rates, but it
“may exacerbate inequalities and potentially facilitate further cultural devaluation of older people.”
“there are significant issues with extending legislation to older people based on the ‘vulnerable older adult’ arguments.”
The Justice Committee noted Dr Bows’s conclusion that the approach to elder abuse should be based on vulnerability, not age. It is significant that the committee further noted Lord Bracadale’s recommendation that
“the Scottish Government should consider the introduction, outwith the hate crime scheme, of a general aggravation covering exploitation and vulnerability.”
The bill has five parts. Part 2 creates the new offence of stirring up hatred, which is the most controversial aspect of a deeply flawed bill. The part 2 stirring up hatred provisions are misguided and have attracted justified criticism from numerous and various contributors. Police Scotland stated that the provisions create a “hierarchy of discrimination” that could bring the justice system into disrepute—for example, through the inclusion of the word “insulting” in respect of one set of characteristics but not another set. The Scottish Police Federation said that the provisions could move policing away from criminalising deeds and acts to policing what people think and feel as well as criminalising what is said in private.
Freedom of speech is one of the fundamental freedoms in any civilised democracy. The Law Society of Scotland has warned that the bill lacks clarity and could threaten freedom of speech. For example, religion and sexual orientation are protected, but those protections do not exist for other characteristics. The Sheriffs Association stated the bill created the possibility of exposing
“artists, performers and academics ... to potential criminality”.
The actor Rowan Atkinson and the crime writer Val McDermid have stated that the bill could result in stifling free expression. [Interruption.] Will I get time back if I take an intervention, Presiding Officer?
No, you will not get time back.
I apologise, then—I cannot take an intervention.
Despite the cabinet secretary’s intention to remove section 4, which is on theatre and public performances, it seems to me that the context in which remarks are made and thoughts develop has not been properly considered. Furthermore, in the jurisdictions in the rest of the UK, private conversations in the home are excluded, but they would not be in Scotland under the bill. Prosecutions for stirring up hatred require the permission of the Attorney General or the Director of Private Prosecutions. In Scotland, the Lord Advocate’s consent would not be required under the bill.
It is unprecedented that, before beginning its scrutiny of the bill, the Justice Committee took evidence from the cabinet secretary to allow him to state what amendments and substantial changes he proposed to make to the bill at stage 2. Crucially, if legislation is to be fit for purpose, it must be drafted with care and precision. Words and their meanings matter. The fundamental changes that have already been proposed and the necessary further ones being discussed today are evidence that the bill is rushed and flawed. Given that, the bill should be withdrawn now and considered properly so that it can be brought back in the next session of Parliament.17:20
As a member of the Justice Committee, I record my particular thanks to the clerks for their tireless work on the scrutiny of the bill, which has been an effort by all. I also pay tribute to all committee members from all parties for the collaborative nature of the scrutiny.
There has been a lot of publicity about the bill, with the media saying that it is controversial, flawed or contentious. We have heard some of those words today. It is easy to get sucked into all that, but it is not what we found in the committee. Witnesses were generally supportive of the principles of the bill, although some had concerns that I will come to and which we have already heard about. Members worked together to improve the bill and our stage 1 report is a fair reflection of that process.
The main issue is that we all want to tackle the plague of hate crime in our country. It is real. We all know that and we in the committee and in Parliament have heard it many times. A few weeks ago, the cabinet secretary came to the cross-party group on racial equality, which I chair, to talk about the bill. Many of the organisations that support those who are affected by such crimes were positive about the principles of the bill and agreed to write to the Government to say that following the cabinet secretary’s presentation.
There is no committee member or party that is not committed to tackling hate crime. We worked from that platform. We want to work in a way that does not impinge on freedom of speech and the bill does that.
It is perhaps our first recommendation from the stage 1 report that best sums up the bill. Rona Mackay read it already but I will do so again because it is important:
“The committee agrees that the right to freedom of speech includes the right to offend, shock or disturb. The committee understands that this bill is not intended to prohibit speech which others may find offensive, and neither is it intended to lead to any self-censorship. The committee is anxious to ensure, however, that these are not unintended consequences of the bill.”
That final part, about unintended consequences, is important, because all parliamentarians have a duty to ensure that there are no such unintended consequences. Part of that involves helping the public to understand what the bill does and does not do.
That said, the committee has done its job. The evidence clearly led us to aspects of the bill that needed to be changed. The cabinet secretary has already spoken about those and about the amendments that he will lodge at stage 2. As others have said, he came to the committee early in the process. We heard significant concerns about the stirring up of hatred. Even if some of those were exaggerated, it is right to address that issue head on. Our report welcomes the cabinet secretary’s proposal that the bill be amended at stage 2 so that, with the exception of race, the stirring-up offences will apply only to intent.
We received a lot of evidence voicing concerns about section 4, which deals with offences that are committed as part of a public performance. It is right that the cabinet secretary has committed to removing that section from the bill.
We also heard a lot of concerns about section 5, which deals with offences of possessing inflammatory material. The committee’s report made suggestions about providing more clarity that might ease those anxieties. The cabinet secretary went further in his response and will be seeking to remove that section from the bill.
Those are all indicators of a Government working collaboratively to bring forward the best legislation possible.
I welcome the Government’s agreement to deepen the freedom of expression provision for religion and also welcome the cabinet secretary’s intentions, raised today, to lodge amendments at stage 2 that will add freedom of expression sections for the protected characteristics of transgender identity and age. Those are welcome additions to the bill.
Regarding the individual hate crime characteristics, I agree that race should be treated differently and that there should be an offence of stirring up racial hatred. The history and volume of such crimes point to the need for that outcome, which is also what the stakeholder groups would expect.
We heard strongly held views about whether sex should be included as a hate crime characteristic. Ruth Maguire summed that debate up well. Dr Marsha Scott of Scottish Women’s Aid worried that such a move
“might have unintended negative consequences”.
Engender agreed, commenting that
“rushing to legislate ... runs the risk of entrenching that misunderstanding further in criminal justice bodies and public understanding, and in women’s perception of what the state will or will not tolerate for them”.—[Official Report, Justice Committee, 24 November 2020; c 3, 5.]
However, there were strong arguments on the other side of the debate, including from Lucy Hunter Blackburn, who told us that
“it is really important that people see themselves in the bill. A group of people who cannot see themselves in the bill ... are those who are subjected to any kind of abusive behaviour or harassment ... based on their sex”.—[Official Report, Justice Committee, 17 November 2020; c 65.]
Ultimately, the committee unanimously came to the same place on the issue as the Scottish Government: that both cases were strong and that we need the working group that has been established to do its work and report back to Parliament on the issue. We suggested a timescale of a year for that, but I accept that that is ultimately for the group to decide.
This is a good bill. It will not solve every problem or do everything, but it has the potential to change lives and help tackle hate and prejudice. I hope that this debate has tackled some of the myths around the bill and demonstrated that the committee is working to improve it and make it as good a piece of legislation as possible. I am disappointed to hear—I heard it only today—that the Conservatives will not vote in favour of the bill’s general principles, but I will certainly do so and I encourage others to do so.17:26
First, I pay tribute to the Justice Committee, and particularly the clerks, who have done an outstanding job in getting the evidence considered by the committee, bearing in mind the huge volume of written submissions and the fact that we were dealing with a complicated bill in difficult circumstances because of the pandemic.
Hate and prejudice have no place in a modern progressive society. From that point of view, anything that can be done through legislation and other means to root out perpetrators of hate and prejudice and provide proper protection for victims has to be very much welcomed. The context for the bill’s introduction was the Bracadale review. There was broad agreement that legislation that tidied up the legal process, made it more efficient and provided more clarity was welcome.
However, it is fair to say that, when the bill was published, it ran into areas of difficulty. In getting legislation through Parliament, aside from the parliamentary process, there are two areas that need to be considered. First, does the legislation have public support? Secondly, does it provide legal clarity? When the Justice Committee ran its consultation, there were a vast number of responses that raised concerns. It takes a great deal to get the Police Federation of Scotland, the Catholic Church and the Law Society of Scotland on the same page, criticising the bill. The bill as published failed to get public support.
The Law Society said in its submission that the bill lacked legal clarity and that it would potentially run into the same difficulties as the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012, meaning that, whether someone was a football supporter, a police officer or someone with a role in the judiciary, there was a lot of confusion as to what constituted a legal issue under the legislation.
Mr Kelly makes a reasonable point. Does he agree with the Law Society that putting things in the explanatory notes is not a sufficient substitute for putting things in the bill?
I take that point, and I will come on to the Law Society’s substantive written submission for this debate.
The bill as published clearly had issues and was flawed. In that regard, the committee has done an excellent job in interrogating the bill. The committee has also done the cabinet secretary a favour in relation to its interactions with him. It shows how badly drafted the bill was that the cabinet secretary had to come back to the committee on three occasions with clarifications and commitments as to what amendments would be required. Fair play to him—at least he has interacted with the process and has proposed amendments.
There are clearly a number of issues with the bill. Much of the debate has concentrated on part 2, on the stirring up hatred offence, on which Liam Kerr raised a specific point. Even the fact that the cabinet secretary has said this afternoon that he will consider putting in the bill a definition of “abusive behaviour” in terms of stirring up hatred shows how far he has come.
Issues of freedom of expression have been raised by religious groups, and we have heard about the problems that theatres and theatrical groups have had in relation to performances. A lot of issues that the committee considered in its report require further attention.
Part 1, which consolidates offences, is well drafted, and that is welcome. However, in its submission, BEMIS raised the point that the lack of disaggregated data does not allow us to properly interrogate the statistics on hate crime. That should be addressed at stage 2.
The bill, in its initial draft, is flawed and has difficulties. The committee has done an excellent job in flushing out some of those difficulties and suggesting improvements. The cabinet secretary has interacted with that process, but there is still a good way to go. The amendments will have to be thoroughly and robustly tested at stage 2 to ensure that the concerns that people have raised about part 2 have been addressed. For us to do that, we need the appropriate balance between correctly tackling hate crime and protecting freedom of speech. There is still a job to do on that at stage 2.17:32
I am pleased to have been called to speak in the stage 1 debate on the Hate Crime and Public Order (Scotland) Bill. As the cabinet secretary mentioned in his opening remarks, I have a particular interest in the subject. As a newish member of the Justice Committee, I, too, pay tribute to the significant work carried out by the clerks and SPICe. I also thank everybody who took the time to make a submission. I remind members of my entry in the register of interests, wherein they will note that I am a member of the Law Society of Scotland and hold a current practising certificate, albeit that I am not currently practising.
There has been a lot of noise surrounding the bill, but a lot of studious and diligent work has been pursued out of the glare of tabloid newspaper headlines and Twitter. It is that studious and diligent work that I wish to focus on. We are all engaged in a very serious undertaking, which is to ensure that every citizen has confidence that the criminal justice system works for them and is not beyond their reach. Indeed, as has been pointed out, there is a risk that some people are focused on the theoretical impact of the bill rather than on the actual impact of actual hate crime on real people.
That is not to say that we are not duty bound to do our utmost to get the balance right. Of course, that is, in essence, the balance that is set out in article 10 of the European convention on human rights: on the one hand, the freedom of expression and, on the other hand, the recognition that such a freedom carries with it duties and responsibilities. That is the key point that I would submit.
In that regard, I am pleased to note that the cabinet secretary has listened to the concerns that have been raised and is considering addressing those concerns by strengthening the freedom of expression provisions in the bill. Obviously, we wait to see the detail, but it is very encouraging indeed that the cabinet secretary has signalled his intentions. I believe that the strengthening of the freedom of expression provisions in the bill will secure the requisite balance that we need in law.
In the limited time that I have left, I wish to focus on an issue that I highlighted during the committee’s deliberations: the characteristic of sex, which is a protected characteristic under the Equality Act 2010. As we have heard, the bill as it is currently drafted does not include that characteristic within its scope. I understand that its omission reflects a long-standing debate about how best to tackle the scale of the problem that women face in that area.
I was particularly struck by, among the evidence that the committee received, the detailed arguments advanced by Engender and other organisations to the effect that, to date, symmetrical approaches to the issue have demonstrably not worked. In that regard, the Istanbul convention on preventing and combating violence against women and domestic violence was cited, as it has been in the debate. It was recalled that the convention provides for a presumption against gender-neutral laws. I understand that it is on that basis that the Scottish Government proposes to set up a working group—which, as we have heard, is to be chaired by Baroness Helena Kennedy—to consider two issues: whether, in due course, the characteristic of sex should be included in the bill and whether, in addition, there should be a stand-alone offence of misogynistic harassment.
Having considered the matter very carefully indeed, and having taken into account the important point that the working group will also address the addition of the characteristic of sex in the bill—of course, I do not wish to prejudge the detailed analysis that the working group will carry out, which is much needed—and given the scale of the problem that affects women in that area, I support that approach. However, I add the caveat that the working group should complete its report within 12 months, as those key issues must be addressed and they cannot be kicked into the long grass, even inadvertently. I am reassured in that regard by the evidence of the Crown Office and Procurator Fiscal Service that, in the absence of a statutory aggravator, there would be nothing to prevent prosecutions from taking place in relation to cases that are reported at present.
Nevertheless, I have to say that, at this time, I am not persuaded by the submissions that the committee received from some organisations, which tended to suggest a conflation of the motivation for the working-group approach with other debates currently being had on the immutability of sexual dimorphism and the importance of not conflating sex and gender. Those are important issues, and they will be debated as the months go by, but I am not convinced that having a working group is in any way intended to impact negatively on the current debate.
Presiding Officer, I have been timing myself on my phone, from which I note that my time is just about up. I will conclude by quoting Lord Bracadale, who, when giving evidence to the committee on his review of hate crime, said:
“I identified a number of functions that make hate crime legislation necessary. It marks and undermines the additional harm that hate crime causes to the victim, other members of the protected group and wider society. It has an important symbolic function in sending out a message that such behaviour will not be tolerated.”—[Official Report, Justice Committee, 27 October 2020; c 34.]
[Interruption.] I agree entirely with that statement.17:38
There was a challenge there, I think, Presiding Officer.
First, I record my thanks to the members of the Justice Committee and its convener, my colleague Adam Tomkins, for what is, without doubt, an extremely thorough, thoughtful and well-balanced report. Given the nature of the subject, it cannot have been an easy task to grapple with such complex legal issues, including disputed definitions, such as those of “abusive action”, “inflammatory material” or the word “insulting”.
Although the committee took the view that Lord Bracadale’s distinction between hate crime and other crimes is helpful, there remained the hugely complex and, at times, controversial task of striking the right balance between allowing extensive freedom of expression and the need to punish hateful action, thereby protecting the public. Paragraph 38 of the report sets out that challenge in a nutshell in saying:
“Legislating on hate crime inevitably touches on fundamental rights”,
which, of course, include the right to free speech. Indeed, in recent weeks, for us to recognise just how difficult that is, we need only have listened to the passionate and, at times, bitter debate within the University of Cambridge as to what free speech actually constitutes, and by whom it should be safeguarded.
Neither can it have been easy for the committee to deal with such a large volume of submissions and witness statements, which is always a sign that there is not only a high degree of public interest in the bill but a wide variety of views to be represented.
Back in September, when we debated the bill in Scottish Conservative business time, I began my speech by pointing out the need to be mindful of the meaning of “good law”—the concept in jurisprudence that law
“decrees that a legal decision is both valid and able to hold legal weight,”
and that it is not a decision
“that has to be overturned or rendered obsolete.”
As I explained,
“Good law is the basis for effective policy making and, as such, it requires ... a clarity of purpose; to be understood in simple language; to be strong in its evidence base; to be workable; and to be accepted by the public.”—[Official Report, 9 September 2020; c 55.]
In short, good law should strike a balance between simplicity and legal precision, and should adhere to the highest standards of drafting and clarity of language. I think that the Justice Committee has largely succeeded in agreeing that those are the most important principles for good law making, so it has to be against those criteria that we examine the bill at stage 1.
Also in the September debate, my colleague Liam Kerr set out exactly why the Scottish Conservatives had real objections to some key sections of the bill, particularly in relation to part 2. He did so because those sections would not do what the bill said it would do on the tin. Despite the good intentions, part 2 of the hate crime bill has been seen as illiberal, intrusive and deeply flawed. It is deeply unpopular with a wide range of stakeholders and with the public, because they can see those glaring flaws, which mean that part 2 is all too ready to be misinterpreted. In short, that part of the bill in particular was not, in its intentions, striking the balance that the committee set out.
Once again, I draw the comparison with the named person legislation. Despite the benign intentions that were acknowledged by the Supreme Court, it was so full of problems—perhaps unintended consequences—that it would be deeply intrusive into private family life at the same time as giving unacceptable powers to the state and to those who would administer the scheme. Of course, we all know that when it came to the data-sharing aspect of that legislation, which was covered in part 4, it was struck down by the Supreme Court. It was bad legislation that was likely to give rise to illiberal action and confusion over legal responsibilities, and to undermine fundamental freedoms and personal choice.
There is another parallel to draw. Just like the hate crime bill, the named persons legislation brought together unlikely bedfellows from a wide range of backgrounds. That, in itself, should give members pause for thought. In my extensive parliamentary experience, that is usually a sign that something is wrong or deeply flawed.
The legislative debacles that were the named persons law and the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 must not be repeated.
There are some good intentions behind the hate crime bill, but as it stands, it is badly in need of reform. There are still debates to be had at stage 2—about tightening up language so that there can be no misinterpretation or ambivalence about the proposed law, about strengthening the free speech provisions and about whether there is a need to create a prosecution lock when it comes to stirring-up offences. There is also a debate to be had about how to ensure that there is better recording of hate crimes.
Of course, legislative changes will not do everything. I was struck by the committee’s view that there is an important role for education in all this. I whole-heartedly agree. Although that will be a matter for another committee, we must not lose sight of its importance.
The process of scrutiny has been increasingly under the spotlight in this session of Parliament, and not always for good reasons, so we must not repeat past mistakes. I have been here 14 years, and they have certainly become more frequent in recent times.
We owe it to our constituents to ensure that bad law has no place in Scottish politics, which is why the Cabinet Secretary for Justice must listen carefully and respond to the concerns of the committee—most especially, in my view, in relation to part 2.
I thank the committee again for its excellent work. It has been no easy task, but I respect the committee members and the committee convener—my colleague Adam Tomkins—for all that they have achieved.17:44
I appreciate being given the opportunity to speak, Presiding Officer.
As members know, I am not a member of the Justice Committee, but I have taken an interest in the bill—not least, because a number of faith groups have taken strong lines on it. Also, I am convener of the cross-party group on freedom of religion or belief, at which we spend a lot of our time considering hate crime in other countries and the need for freedom of expression in those same places.
I guess that there will always be a tension between freedom of speech and expression on the one hand, and protecting vulnerable and potentially vulnerable groups from verbal and other abuse, on the other. As someone who broadly seeks to adhere to biblical or traditional Christianity, I very much want the freedom of speech that allows us to go out into the marketplace, to share our faith and to encourage people of all faiths and none to see that following Jesus Christ is the only way to God.
People might strongly disagree with what I have just said, but I hope that no one would suggest that it is inherently hateful. Logically, I must then be happy to allow other groups to be critical of Jesus and of Christians, and to encourage us to follow a secular or other path. After all, the person who is at the centre of our faith was insulted and was killed on a cross, so being insulted from time to time does not come as a huge surprise to followers of Jesus. To an extent, we expect it.
Freedom of speech and expression is hugely important. With my CPG hat on, I see very well the need for protecting vulnerable groups, which is the reason for the bill. That is certainly the case in Scotland and the UK, but it is even more the case in a number of other countries. It seems to me that, if similar legislation were to be passed in China, Pakistan and India, it would be a huge help and encouragement to minority groups there—those who practise Falun Gong, the Uighur and Tibetans in China, Muslims and Sikhs in India or Christians in Pakistan.
I accept that we are trying to get the balance right between different values—freedom of speech and protecting some of the most vulnerable sections of our community. As Rhoda Grant mentioned, it is worth noting the warning from Ephraim Borowski of the Scottish Council of Jewish Communities not to go so far the other way that freedom of expression takes over and we give a “Get out of jail free” card for any kind of hate speech.
The bill has always been clear in sections 11 and 12 that freedom of expression is protected and that we can criticise each other’s views on religion or sexual practices. The European convention on human rights also guarantees the right to protest and to express views, even if they shock, offend or disturb others. Therefore, I think that the bill is acceptable in that regard. However, there is clearly a feeling that freedom of speech needs more underlining, and I have no problem with that. I understand that the Government proposes a widening and deepening of the freedom of expression provisions, which is to be welcomed.
It was suggested by some that there should be a blanket guarantee of freedom of expression to replace sections 11 and 12. However, I agree with the Government’s response that that is not desirable or required for race and disability. As Scotland and the UK become increasingly secular, some religious people certainly feel that they and their beliefs are under threat. There is a suggestion that religion is a private affair and that it has no place in the public square. I therefore think that the bill can help to protect religious people from overly aggressive hard-line secularists.
From that perspective, it disappoints me that some religious groups appear to oppose the bill per se. I thought that Inclusion Scotland made a good point when it said that it is
“concerned that consideration of the Bill has been overly focussed on the theoretical impact of the Bill on freedom of expression rather than the actual impact of hate crime on real people, including disabled people.”
There had been concern about whether the provision on possessing inflammatory material might cover even owning religious scriptures such as the Bible or the Qur’an. I have to say that I did not feel that there was a problem with the provision, but it sounds as though the Government’s proposal to remove section 5 would be a positive step to reassure people.
I am wary of the suggestion that private dwellings should be removed from the criminal law. As Michael Clancy of the Law Society of Scotland said,
“There is no sanctuary, in that sense, for most aspects of the criminal law and I do not think that there should be a sanctuary when it comes to hate speech.”—[Official Report, Justice Committee, 3 November 2020; c 9.]
We pretty well know that much racism and sectarianism stem from the home and the family so, ultimately, in extreme cases, we need to be willing to tackle that.
We received a fair number of briefings in preparation for today’s debate, in which a number of points particularly struck me. For example, the Equality Network and the Scottish Trans Alliance emphasise the importance of non-legislative action, and BEMIS has spoken about that, too.
Training for the police, appropriate treatment for victims and public awareness campaigns are all vital. We know that organisations such as Show Racism the Red Card and others are doing valuable educational work with young people on sectarianism. We certainly want to see more of that kind of thing.
Overall, I very much support the bill and am pleased that the Justice Committee was able to recommend that its general principles be approved, subject to appropriate amendments being lodged. Humza Yousaf has been very proactive in proposing amendments to alleviate many of the concerns that have been raised, and I welcome that.
I certainly hope that Parliament will support the bill at stage 1.17:50
In opening my remarks, I must make the point that the way in which the cabinet secretary and the Scottish National Party Government introduced the bill left a lot to be desired. The policy memorandum that accompanies the bill states:
“This Bill provides for the modernising, consolidating and extending of hate crime legislation in Scotland. Legislation in this area has evolved over time in a fragmented manner with the result that different elements of hate crime law are located in different statutes, there is a lack of consistency, and the relevant legislation is not as user-friendly as it could be. The new hate crime legislation will provide greater clarity, transparency and consistency.”
That seems like a good objective but, as we know and as the Government has acknowledged, the bill as drafted is pretty poor and, rather than offering answers, it has simply raised more concerns.
I note that, in its report, the Justice Committee states:
“A substantial proportion of respondents (including most individuals) had concerns about the impact of hate crime laws on freedom of speech and religious expression and about laws designed to protect specific groups. Many called for the repeal of hate crime laws, or, at least, did not want such laws to be extended. These views shaped their responses to the consultation”.
That reflects much of the contact that I have had from individuals, who have raised their concerns and called for parts of the bill to be scrapped, as they believe that the bill threatens freedom of speech and freedom of expression.
Although some have praised the cabinet secretary for being willing to compromise, I believe that it was a major folly to bring forward such an ill-considered and ill-drafted bill. The danger of such an approach is that it has allowed the bill to be politicised in a way that it should not have been, with the result that, despite the committee’s hard work and the fact that most organisations have said that they support the principles of the bill, the Tories are not even prepared to allow it to go forward to the next stage. The danger of the bill becoming politicised is that people use it for political gain in order to get votes. That is the problem. The cabinet secretary made a major mistake when he introduced a piece of proposed legislation that was simply not fit for purpose, and he should acknowledge that.
I am clear that hate and prejudice have no place in Scotland and that it is important to have clear and robust laws to deal with hate crimes that are committed in our society. I am equally supportive of the overall principles of the Hate Crime and Public Order (Scotland) Bill and agree that it is important to consolidate hate crime legislation in one body of law. I believe that the evidence that we have received from various organisations over the past week or so and the work of the Justice Committee indicate that there is support for the principles of the bill.
It is welcome that the Scottish Government has conceded that amendments are necessary to make part 2 of the bill fit for purpose. Requiring intent for the new stirring-up offence will be an improvement to the existing provisions. However, Scottish Labour still has concerns about the bill as it is currently drafted and agrees that further improvements to part 2 are needed to ensure that it includes adequate protection for freedom of speech and thought, and that it does not criminalise legitimate views. It is encouraging that the cabinet secretary has shown willingness to improve the freedom of expression provisions in the bill, but we believe that he should set out how he intends to further amend that aspect both generally and in section 12.
Public understanding of the bill will rely on clarity about the terms that are used. That is why we support the committee’s recommendation that improvements be made to the definitions so that the language is up to date and the application of provisions on reasonable defence, for example, is clear.
I urge the cabinet secretary not to take an arrogant view and not to fail to acknowledge the failures in introducing the bill in the way that he did, but to work together with others. The committee has done a great deal of work to try to bail him out. I also urge the Tories not to play politics, because the bill is a key piece of legislation and, done right, it will be good for Scotland.17:55
The debate on the bill has been one of the most intense that I can remember. In the past six months, strong views have been expressed by a huge range of people—lawyers, police officers, academics, journalists, actors, writers, women’s campaigners and faith groups. The bill has generated hundreds of newspaper headlines, thousands of submissions to Parliament and—colleagues will attest to this—a great deal of correspondence from constituents.
The people of Uddingston and Bellshill have been vocal on the bill, and I owe it to them to raise their concerns today. I have received many emails about the bill, and I will read from a few of them. Mari said:
“Please take a stand and require amendments to protect freedom of speech and private conversations.”
That constituent is concerned that speaking from the comfort of her own home will be turned against her.
If people are plotting a hate crime or indeed a terrorist crime, they should face the full force of the law. This may just be newspaper hype, but it needs to be explained.
“People must be allowed to express their views in their own home without the threat of police intervention.”
She asks for a dwelling defence, saying that, otherwise, innocent remarks could and will be blown up. She asks:
“Do we really want to interfere in people’s private lives?”
Thomas asked the same, and those questions must be answered.
I want to ask, and try to answer, two questions today. First, why has the bill received such a strong reaction from the public? Secondly, how should we proceed in the light of that? There is no doubt in my mind that the aims of the bill are laudable. Crimes that are motivated by hatred and prejudice are a blight on society, and the Government, like me, wants them to be punished. I support that intention, but any law must be measured and be supported by the general public. Good intentions are not enough in and of themselves.
Many bills that have been discussed in this Parliament were well motivated but had to be improved at their various stages, and the bill that we are discussing today is a prime example of that. We have to ensure that it meets the test of ridding us of hate, whether that hate arises because of race, religion or sexual orientation. No self-respecting person should hate another person just because of their race, colour, sexual orientation, religion or even their politics. We all occupy a small planet and we must rise above that and learn to live and work with one other.
However, the consequences of well-motivated but poorly executed legislation are serious. We are talking about new offences that will bring citizens into contact with the criminal justice system, and we have to ensure that they tackle hate and bigotry in a measured way. The proposals in the bill may have significant, far-reaching consequences for individuals, families and communities. It is crucial that we get the legislation right the first time instead of having to pick up the pieces later, after the damage has been done.
I think that that concern about the detail of legislation answers my first question, which was why the Hate Crime and Public Order (Scotland) Bill has caused such concern. The stirring up hatred offences in part 2 are highly subjective and their scope has not been defined. I am sure that, after today, they will be defined and, as the bill progresses, that will be resolved. I am grateful to the Government for promising to lodge amendments at stage 2 that will provide more clarity.
There is still wide concern about the definitions in the bill. What does the term “hatred” mean? In today’s world, merely disagreeing with certain ideas is considered hateful by certain people. That is the world we live in and that is what we have to deal with. Vague stirring up hatred laws could give people a tool with which to punish their political opponents and pursue personal grievances through the courts.
Members may recall that my second question was about how we should proceed. If we were being asked to support the mere consolidation of laws, all members would be on board. However, part 2 of the bill presents a problem. Given the concerns that I have expressed on behalf of my constituents, I ask the Government to try to resolve many of the questions that are being asked and which have been asked in the debate. Associated with the bill are risks that need to be discussed and resolved, and I, for one, think that the cabinet secretary is trying to do that.
As I have already said, hate and bigotry have no place in modern society. I welcome the intentions of the bill and will support it tonight.18:00
Like others, I begin by thanking in particular the Justice Committee clerks, who have done a tremendous job; my colleagues across different parties who have worked in a very constructive and consensual way; those who have given evidence; and, of course, Lord Bracadale, whose report lies behind what is an important bill for modernising hate crime law.
I also want to thank the cabinet secretary for his approach to the bill. That has been very important in getting us to where we are, in that the Scottish Government has so far accepted 33 of the 39 recommendations—about 85 per cent. That shows his willingness to reach compromise and consensus. So far, there has been huge movement on the stirring-up offences, which has been welcomed by stakeholders; on the strengthening of freedom of speech, which has also been welcomed by stakeholders; and on the removal of the reference to theatrical performances. Now there has been further movement on police powers of entry and on freedom of expression and other characteristics. All that is very welcome and is in line with the committee’s recommendations.
The cabinet secretary has also made clear that the terms “threatening” and “abusive” must have an objective test. The question is how that is best expressed. The cabinet secretary has left the door open on that, including the possibility of further exploration of whether it might be included in the bill.
In addition, the defence of reasonableness is, I think, difficult, and the cabinet secretary has outlined the difficulty of finding an example. I think that the committee acknowledged that in its report, and it is something for further consideration.
I turn to a couple of the comments that have been made during the debate. Margaret Mitchell seemed to be suggesting that one of the reasons for not supporting the bill was the retention of the term “insulting” in relation to race, and I have a couple of things to say about that. It is very important that we recognise the distinct approach to race and the fact that there is a different legal threshold, which is due of course to the prevalence of racial hatred as an issue. I do not want the term “insulting” to be removed, as I think that that would weaken existing legislation and send out a really bad message. I hope that members agree with me on that.
Given all the movement that I outlined at the beginning of my speech, it is disappointing that Liam Kerr has said that the Tories will not support the principles of the bill at stage 1. That is not in keeping with the tone and consensual nature of the way in which the committee has worked or that of the report.
I have some sympathy for Rhoda Grant’s point about the omission of sex as a protected characteristic. However, there is now a working group to look at the need for a stand-alone offence of misogyny, under the very expert chairing of Helena Kennedy. As she and the expert group have been asked to do that job, we ought to allow them to get on with it, albeit that I think that we need to keep a watching brief in order to make sure that that is done within a reasonable timeframe.
I want to end my speech on this point. We must always remember that at the heart of this are the victims of hate crime. That sometimes gets lost in the legal detail in debates about the bill, but we must remember that that is what the bill is about. That is crucial if we are to create the inclusive Scotland that we all want.
Without doubt, the bill has been on a journey. I think that we have reached a large degree of consensus. I am pleased to support the principles of this important bill and I hope that the consensual approach will continue as it enters its next stage.
We move to the closing speeches.18:05
This has been an interesting debate. I think that everyone agrees that we need to strike a balance between protecting freedom of speech and dealing with hate speech, and that the bill should not chill debate or stop disagreement and argument, because we can reach consensus only if we are allowed to express our opinions freely.
I think that every member agreed that, as James Kelly put it, hate crime has no place in a modern Scotland or any modern society, so we should do everything in our power to stop it. James Kelly, Margaret Mitchell, John Mason and other members talked about what we need to do not just through legislation but by other means to educate people about hate crime and ensure that it is not part of our modern society. If hate speech no longer happened, we would not need the bill at all.
A lot of speakers talked about the lack of clarity in the bill. James Kelly quoted the Law Society on that point. The cabinet secretary has clarified on three occasions that there will be changes to the bill. Those changes are welcome, but, as Alex Rowley pointed out, a bill that should have been universally supported by members of this Parliament and, indeed, people outside the Parliament did not get that support because of the very poor quality of the drafting. As Richard Lyle said, the backlash against something that we should all support was unexpected; it happened because of the poor drafting.
We need to be careful, because, as I think Liz Smith said, making bad law is worse than not making law at all. It is a sad fact that, towards the end of a parliamentary session, bills have often been pushed through without time being taken to give them proper scrutiny or to pause for thought, and the legislation has subsequently been found to be flawed and has had to be revisited. I make a plea for time to be provided for reflection on whether the proposed amendments at stage 2 will get it right. We need to get the bill right, and I echo the points that Richard Lyle made to that effect. The cabinet secretary has accepted changes; I urge him to go further and accept more change, because that will be important if we are to get the law right.
Adam Tomkins highlighted the committee’s concerns about the terminology in the bill. Terms such as “abusive” need to be explained in the bill; people need to understand how they will be interpreted, so that there is no doubt about what they mean. Behaviour that is abusive or threatening must be believed to be so by reasonable people. It is important that we put that in the bill, because the meaning must be clear, so that we do not chill debate and disagreement, as Alex Rowley said.
In an intervention during the cabinet secretary’s speech, Johann Lamont showed how accusing someone of hatred can be a means of trying to silence the person’s voice and prevent them from expressing their views and opinions. We need to take care that the bill does not allow that to happen.
Members talked about the aggravators of sex and misogyny. Ruth Maguire talked about the increasing misogyny in society, which concerns us all. It is more complex than hate crime in that it involves power relationships. Women are not a minority—indeed, they are probably the majority—but the way that they are treated because of misogyny makes their place in society unequal.
It is a shame that the bill will be passed before the working group reports—it should have been the other way round. We should have had a crime of misogyny. Had that been done first, it would have dealt with the arguments. The fact that there will be a gap in which people are not protected by sex as a characteristic is really not good enough. Again, it highlights some of the faults in how the bill has been introduced, which might have been rather rushed and without consideration having been given to what we are trying to achieve by it.
A number of speakers, including Liam McArthur and John Finnie, talked about insulting behaviour, which they explained had been included in racial hatred offences for some time. That is retained separately in the bill. Many have argued that it is not used with reference to racial hatred prosecutions, but the point was made strongly to the committee that taking it out of the bill might signal a watering down of racial abuse protections. I do not think that that would be supported on any level.
Some members talked about theatres. Liam McArthur, Rona Mackay and others welcomed the removal of section 4, and I fully agree with them. It is difficult to understand why theatres and the acting profession were singled out in the bill. Anyone who has watched “Small Axe”, a series by Steve McQueen on the BBC, will have seen a portrayal of racial hatred that is sometimes difficult to watch, although it is important to do so.
We all believe that hate crime has no place in a modern Scotland, and we want to get the bill right. Labour will support the bill at stage 1, but we will look for further amendments to ensure that it does what it is supposed to do without chilling debate in our society.18:12
I refer to my entry in the register of members’ interests, as I am a member of the Faculty of Advocates.
I welcome the opportunity to close for the Scottish Conservatives in this important debate on a bill that, as many members—including Richard Lyle, Adam Tomkins and others—have stated, is one of the most disputed pieces of legislation ever brought before Parliament.
I join others in thanking the Justice Committee for its considered and thorough report, which I will refer to. I particularly thank my friend—and the convener of the committee—Adam Tomkins for his remarks at the beginning of the debate, in which he set out some of the changes that have taken place during the committee’s deliberations on the bill.
From the outset, I reiterate the views of all my colleagues on the Conservative benches and, indeed, across the chamber. We all abhor intolerance, bigotry, racism and prejudice of any kind. We all recognise the profound harm that hate crime causes to the victim and the community to which they belong. However, we, on these benches, profoundly believe that the bill still goes too far.
In the debate in September, I referred to the right to freedom of expression and the importance of preserving that right, notwithstanding the necessary constraints that have always applied to that right. It is a qualified right; there are no absolutes.
I repeat what I said in September about the justice secretary’s own perspective on the bill. I have never doubted his personal commitment to the bill, in the light of his own experiences, or his good faith in attempting to make changes to it, or the sincerity with which he has approached the significant, difficult and thorny issues that arise. However, despite the well-intentioned moves by him and his Government to amend the bill, it unfortunately still falls short of what we and many people in Scotland are calling for.
We have stated that there are elements of the bill that we agree with. As my colleague Liam Kerr noted in his opening remarks, few—if any—witnesses to the committee had any issues with parts 1 and 4 of the bill, and many agreed with part 3, while recognising that some amendments were needed. However, it is clear to us that part 2 simply goes too far, and we remain unconvinced that the Scottish Government properly recognises that. Colleagues across the Parliament will have received hundreds of emails from constituents about the bill and, truth be told, very few—if any—of the people who have contacted me have been vocal in their support.
Many people are concerned that, if the bill is passed, it could have the potential to criminalise acts that may be considered inconsequential or acts that cause only minor offence. For instance, the National Secular Society argued that, despite amendments to the bill, it felt that it would not provide comfort to
“writers, artists or playwrights who anticipate lengthy, expensive, stressful, sleepless months before court cases.”—[Official Report, Justice Committee, 10 November 2020; c 32.]
The Scottish Newspaper Society argued that it knows from the
“number and nature of referrals to the Independent Press Standards Organisation many complaints are lodged on the basis of offence being taken and this legislation creates the conditions for such grievances to move through the criminal justice system.”
One of the most profound interventions was that of BBC Scotland, which stated that it
“strongly shares the concerns expressed by the Scottish Newspaper Society as to the impact on freedom of expression”.
Those are significant and stark comments from diverse and differing quarters of Scotland, and they are not alone. As I noted in my remarks to the chamber in September, and as others have noted, valid and deep concerns have been expressed by Police Scotland, the Scottish Police Federation, the Faculty of Advocates and the Law Society of Scotland, to name but a few organisations.
As Liam Kerr pointed out earlier in the debate, there is also strong public opposition to the bill. Although it should come with the usual caveats, a poll by Savanta ComRes found that 87 per cent of Scots say that free speech is an important right in our society and 63 per cent think that disagreement and debate are beneficial to society. It also found that only 29 per cent of people feel that the law should criminalise offensive words.
As others have noted previously, opposition to elements of the bill has come from people across the political spectrum, which is remarkable. It is clear from the significant opposition from individuals and organisations that the Scottish Government should go back and think again, and I urge it to do so.
I will turn briefly to the committee’s report. The committee concluded that
“support for this Bill will depend on whether the Scottish Government makes the further changes to the Bill needed to bring it into line with the recommendations we have agreed unanimously”.
I acknowledge that the Government has taken on board several of the committee’s recommendations, including the strengthening of freedom of expression protections and the strengthening of section 6 in relation to warrants. As others have noted, it has also gone further than the committee’s recommendation to provide clarity to the provisions in section 5 by removing that section altogether, which we welcome—[Interruption.] I am sorry, but I do not have time. I normally would, but I am constrained.
We welcome that, but it is not enough. The Scottish Conservatives believe that there remain elements of the bill that we cannot support. There is still no protection in the bill for things being said in the privacy of one’s home, and the section 3 stirring up of hatred offences are still wider ranging than in other jurisdictions of the UK. We also remain worried that Lord Bracadale’s recommendation to remove the word “insulting” from section 3 has not been taken up. That, along with other vague concepts such as the word “abusive” and the reasonableness test, mean that numerous flaws remain. To take issue with the point that has been made about the definition of “abusive” appearing in the bill, criminal courts applying the legislation day to day are far more likely to have the legislation to hand than the explanatory notes.
Although the Scottish Government has accepted the committee’s recommendation that free speech protections need to be strengthened, it has also indicated that it does not intend to cover all new characteristics that are introduced in relation to the stirring-up offences.
Several months ago, I called on the Government to pause, think again and come back to Parliament with a new bill that did not risk criminalising the freedom of expression. We made numerous suggestions about how the bill in its current form could be strengthened, but, regrettably, the Government has ignored several of those calls. We are being asked to support a bill that, at its heart, seeks to stamp out the scourge of hate crime but that also attacks the freedoms that our society holds dear. On that principle, the Scottish Conservatives—with deep regret—cannot support the bill at stage 1.18:19
The debate has been constructive and has generated more light than heat. I do not agree with everything that has been said, but arguments have been articulated in a constructive way to progress the bill. I repeat that, as I said in my opening speech, although members might disagree about the bill and although the Conservatives will not vote for its general principles, I do not doubt the commitment of any member of the Conservative group to stand against hatred, bigotry and prejudice. I have been the victim of those things on many occasions, and many Conservative colleagues have messaged me and come up to me to provide their support. I have no doubt about their intentions, but I will come back to why I am disappointed by their stance on the bill.
Many members, if not all, said that freedom of speech is a crucial cornerstone of our democracy, and I could not agree more. I also agree that the law must not criminalise that which is purely offensive or shocking or can be described as disturbing. I was keen to stress during the committee’s scrutiny that the word “offensive” is not mentioned anywhere in the bill. The new offence of stirring up hatred will criminalise behaviour that is threatening or abusive and is intended to stir up hatred, which must be proven beyond reasonable doubt. I will come back to some of those concepts.
I will address key issues that members across the chamber have raised. Many members, including Rhoda Grant, Ruth Maguire, Annabelle Ewing and Shona Robison, referred to the misogynistic harassment working group, on which I welcome the committee’s recommendation. When we first considered drafting the bill, I was probably in the same space as the committee and many members have been in—I thought that it was wise to accept Lord Bracadale’s recommendation of what he called a gender aggravator, which we called a sex aggravator to align the provision with the Equality Act 2010.
As with all the bill’s provisions, I listened to those who are most affected. When I met the largest national organisations that represent women and tackle violence against women—Engender, Scottish Women’s Aid, Rape Crisis Scotland and Zero Tolerance—they presented a strong, united front that a sex aggravator could do more harm than good. I had not considered that until I spoke to those groups. Engender then released a report, which many members have read.
It is important to reflect on the unintended consequences. If we include a sex aggravator, which could still come from members’ stage 2 amendments, we will have to ensure that it does not fall foul of unintended consequences. Scottish Women’s Aid made the strong point that a perpetrator of domestic abuse could use a sex aggravator to continue to abuse the victim or survivor. How would we guard against that? Like all the aggravators, a sex aggravator would be neutral—it would apply to men as it did to women, just as a race aggravator applies to a white person as much as to somebody of colour. That is hugely important to consider.
I appreciate very much the fact that the issues will be considered further. Perhaps I have missed this. Will the cabinet secretary explain why that problem applies uniquely to hatred of women and not to other ways in which people are targeted with hatred?
I commend the Engender report to Johann Lamont, because it goes into detail about how there is not a good evidential basis for a sex aggravator being used effectively to deal with misogynistic harassment. Johann Lamont might take a completely different view, and she and her party have every right to lodge stage 2 amendments, but it is hugely important to consider the unintended consequences.
That is not to say that a sex aggravator will not be added to the bill. I have accepted the committee’s recommendation that, if the enabling power is used to make an order, the instrument should be subject to the super-affirmative procedure, to allow for further parliamentary scrutiny. We are not saying that there should not be a sex aggravator; we are taking a moment to allow the misogynistic harassment working group, which Baroness Helena Kennedy is chairing, to take its time—but not too much time, as I will say shortly—to do the work and ensure that no unintended consequences will arise.
I will be speaking to Baroness Helena Kennedy about the committee’s recommendations. She has indicated that she is aware of the committee’s recommendation for a 12-month timescale and we will have a discussion about whether she will be able to carry out the broad area of work that she is being asked to do, which is pioneering and potentially world leading, within 12 months. If she is able to do that, we would want to see that work being done in that timescale.
I want to touch on a few more issues that members have raised. I should caveat everything that I say by noting that the Government and I will give serious consideration to any amendments that are lodged at stage 2. We will go in with an open mind. There is nothing that has been suggested thus far, either by the committee in its report or by members today, that I would be completely closed to and say was completely off the table.
The reasonableness defence remains in the bill. However, for those who have asked us to expand on that, with a non-exhaustive list of factors, I repeat the challenge that I put to the Justice Committee twice and that I have repeated today, without receiving a satisfactory answer. If someone can give me an example of behaviour that was intended to stir up hatred, and the defence was that it was reasonable, I would be extremely keen to hear it. I have put that to law experts. We have many members who are non-practising solicitors and lawyers, including a law professor. If they can think of an example where the reasonableness defence is needed in that regard, I would be all ears. I look forward to hearing about that in advance of stage 2.
A third area that has been raised by members from all parties, but particularly by the Conservatives, is the issue of a public element and protecting conversations that take place in private or in the home. I noted that it was the unanimous recommendation of the committee—forgive me if I am incorrect—that there should not be an absolute dwelling defence in the bill. That was mentioned by legal experts; many legal experts and Police Scotland agreed with that point. The Law Society of Scotland was very strong on that point and the Crown Office agreed. I assume that because the recommendation was unanimous, the Conservatives are not pushing for an absolute dwelling defence. However, they are perhaps suggesting that we consider a public element.
In all sincerity, I would be keen to understand what is meant by a public element. I will give one hypothetical example—I am more than happy, if time allows, to take an intervention on the point or we can discuss it post-stage 1. Let us say that someone invited five friends to the house, they locked the doors and closed the curtains so that there was no public element whatsoever, and they stirred up hatred towards Catholics. Those five friends then went out and desecrated chapels and assaulted priests. Those five individuals could be prosecuted for a variety of offences, but is it genuinely the Conservatives’ position that, because the doors were closed and the curtains were drawn, the instigator—the person who stirred up that hatred—should face immunity from the criminal law? They do not need to answer that right now, but I would be keen to understand what they mean by a public element.
Could a public element mean that someone could hire a community hall and bring people in by invitation only, close the doors and stir up hatred, but because there was no public element—it was by invitation only—that person should be immune from prosecution? I genuinely do not understand what is meant by the public element and greater clarity from the Conservatives on that point would be most welcome.
Briefly, members articulated themselves clearly on the freedom of expression provisions. The Justice Committee made some important recommendations that I was pleased to accept and welcome. I accept Liam McArthur’s interest in that in particular and I would be happy to work with him in advance of stage 2 and hear his views on how the Government could go further and how the bill could go further.
There are two issues: broadening and deepening. On the deepening aspect, I would be keen to hear from members where they think that the freedom of expression provisions could go further. We have gone further on the freedom of expression provision in relation to religion. Can we go further on the freedom of expression provision on sexual orientation? If anyone holds that view, I would be keen to engage on that front.
I have said that we will broaden, extend and expand the freedom of expression clauses. We will introduce new freedom of expression clauses for transgender identity and for age. I will keep an open mind if someone says to me that we need one for disability, a variation of the sex characteristic, race and so on, but I am not convinced that they are needed for other protected characteristics.
On the term “abusive”, I reiterate what I said in my intervention on the convener: I will give further consideration to providing clarity in the bill. Rhoda Grant, James Kelly and others made the point about the definition of “abusive”. As I articulated in the Government’s response, my concern is that we do not fall foul of adverse unintended consequences. I am concerned that we might end up creating confusion in criminal law if we include a definition of “abusive” in the bill while other legislation—for example, the Criminal Justice and Licensing (Scotland) Act 2010, which deals with threatening or abusive behaviour, or the Domestic Abuse (Scotland) Act 2018—does not contain such a definition. That might not be the case.
I am grateful to the cabinet secretary for taking an intervention. It is late in the day, but this is a really important matter. In the 2018 act and in the 2010 act, under the offence in section 38, “abusive” is objectively defined. It is defined differently in those statutes, but it is objectively defined. What harm would be done by an amendment that simply said that, for the purposes of the stirring-up offences, “abusive” means that a reasonable person must have found the behaviour abusive?
I know that I am going up against a law professor, but the difference in interpretation is that Adam Tomkins considers that to be a definition whereas we consider that to be a different legal test. If we were to introduce a reasonable person test, that would be another legal test. The threshold would become that behaviour needed to be threatening or abusive and cause fear and alarm, for example, and such behaviour had to be proven to be intended.
I am not taking the proposal off the table. It is worthy of consideration. I am talking to our legal advisers, as members would expect. I would like to have a discussion with the convener in advance of stage 2 about whether we can provide clarity to the definition in the bill without there being adverse negative consequences. I make that commitment.
I will end—forgive me, Presiding Officer; I know that I have gone over my time—by saying that I am disappointed in the Conservatives’ position. I reiterate that I do not doubt that they are sincere in wanting to tackle prejudiced behaviour and discrimination, but I am disappointed, because the Government has engaged in good faith and we have found common ground. I am sure that they have done so, but I say to the Tories that it is important that they engage further with victims organisations and those who are most impacted by hate crime.
If the Conservatives were to vote against the bill’s general principles, they would be voting against the general principles, not the minutiae of particular provisions or amendments that might be lodged. I can see them shaking their heads, but that is what they would be doing. They would be voting against the general principles of a hate crime bill that is supported by the Equality Network, Stonewall Scotland, racial equality groups, many faith groups, Age Scotland and Victim Support Scotland.
I know that there are genuine concerns that aspects of the bill could have what is described by many people as a chilling effect on freedom of speech. We should also all bear in mind, as I am sure that we do, the chilling effect of hate crime. Ask any gay person, any lesbian, any bisexual, any person with a disability, any black or Asian person who has been racially abused, any Muslim, any Jew, any Sikh, any Christian, any Catholic or anybody who has been the victim of hate crime about the chilling effect that hate crime has had on them.
I will end on this quote, which Victim Support Scotland sent in a briefing to MSPs. They spoke to a user of their service who is continually physically and verbally threatened in their own community due to both their race and sexual identity. That individual said:
“He’s attacking me and my family because of who we are and what we look like. It hurts. I can’t change who I am.”
That goes to the very root of hate crime; you cannot change who you are.
I commend the motion in my name and I hope that the Parliament will allow the bill to proceed to stage 2.