Meeting of the Parliament (Hybrid)

Meeting date: Wednesday, September 23, 2020

Official Report 1055KB pdf

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Hate Crime and Public Order (Scotland) Bill

The next item of business is a statement by Humza Yousaf on the Hate Crime and Public Order (Scotland) Bill. The cabinet secretary will take questions at the end of his statement, so there should be no interventions or interruptions.

14:50  

Two weeks ago, I promised that I would return to the chamber to outline changes that I look to make to the Hate Crime and Public Order (Scotland) Bill. Those changes are in response to the very genuine concerns that I have heard from a number of stakeholders and members over the past few months.

In particular, the operation of the “stirring up hatred” offences has been the subject of considerable attention. I want to remind members of one of the key underlying principles of the bill. At its most simple, it is tackling hate crime, which is a principle that the vast majority of key stakeholders and members share and applaud. Confronting of hate crime is central to building the Scotland that we all want. Two weeks ago, members overwhelmingly voted for that, and we promised to work together as parliamentarians to achieve it.

We cannot let down victims of hate crime. We must take forward our plans to legislate in order that we ensure that our hate crime legislation is fit for the 21st century and, most important, that it affords sufficient protection to those who need it.

I highlighted in Parliament two weeks ago how hate crime remains a significant issue that we must tackle. More than 5,600 hate crimes were reported to the Crown Office and Procurator Fiscal Service last year, but they are only the tip of the iceberg, because we know that much hate crime is not reported at all. We cannot afford to be complacent. Effective hate crime legislation makes it clear to victims, perpetrators, communities and wider society that offences that are motivated by prejudice will be treated seriously.

I have listened to the voices that have expressed concerns about the bill, and I have reflected on the agreement that was made in the chamber to seek common ground and compromise. I have spoken to a number of stakeholders to seek their views on the areas of the bill that I committed to considering. I have spoken to the Faculty of Advocates, the Law Society of Scotland, the Humanist Society Scotland, the Roman Catholic Church, the Scottish Police Federation, a number of people in the creative industry, a range of equalities organisations and many others. I thank them all for their time and, which is most important, for their trusted advice.

I am also mindful of the request by a number of members from across the chamber, in particular the Liberal Democrats, that any proposed changes that the Government was willing to make be announced as soon as possible in order to give the Justice Committee time for due consideration. I hope that my making this statement a month before the Justice Committee is due to take oral evidence is an indication of my respect for the parliamentary process and of how important I think scrutiny of the proposals is.

The operation of the new stirring up hatred offences has raised concerns that the offences can be committed where behaviour is “likely” to stir up hatred, whether or not the accused intended to stir up hatred. Stirring up hatred offences are not new and have, in relation to race, existed across the countries of the United Kingdom for decades. The bill introduces new offences of stirring up hatred that cover the characteristics of age, disability, religion, sexual orientation, transgender identity and variations in sex characteristics. That is a significant expansion of the offence of stirring up of hatred, which aims to ensure that people who stir up hatred in respect of various characteristics can be held to account under the criminal law for their actions.

We must acknowledge, as many stakeholders do, why the bill provides for additional offences of stirring up hatred in the first place. Behaviour that stirs up hatred is corrosive. It can incite people to commit offences against individuals in the targeted group, and it can contribute to an atmosphere in which prejudice and discrimination are accepted as normal. It can leave entire communities feeling isolated, scared and vulnerable to attack. In the most serious cases, it can directly encourage activity that threatens or endangers life.

Parliament should protect people from that distinct harm by legislating for new offences of stirring up hatred. I have, however, reflected carefully on the operation of the new offences—in particular, on the fact that the new offences of stirring up hatred would not require that the accused intended to stir up hatred. People are concerned that the offence could be committed by people who are expressing controversial views but have no intention of stirring up hatred against any group.

The bill contains some protections against that, and the offences themselves set a significant threshold for criminal sanctions. Behaviour must be threatening or abusive and must be likely to stir up hatred, and not merely dislike, disapproval or disrespect. There is also a defence that the accused’s behaviour was, in the particular circumstances, reasonable.

However, having heard the views that have been expressed in Parliament and by a range of key stakeholders, I recognise that even with the protections that I have just outlined, there is a real risk that if the offences do not require intent to stir up hatred, there could be uncertainty and a perception that operation of that aspect of the offences might be used to prosecute entirely legitimate acts of expression, which might lead to an element of self-censorship.

That is not the aim of the legislation. The bill does not seek to stifle robust debate, public discourse or artistic freedoms. Instead, the bill seeks, while respecting freedom of expression, to offer greater protection to those who suffer from this particularly damaging type of offending behaviour.

I want members from across Parliament and people across Scotland to come together so we can ensure that hate crime law can deal effectively and appropriately with the problem of stirring up hatred. That is why it is important to allay, beyond doubt, concerns about operation of the new offences.

I can advise that the Scottish Government will lodge stage 2 amendments to the bill to make the new offences of stirring up hatred based on intent only. I hope that that fundamental change will provide the necessary reassurance that the new offences of stirring up hatred strike an appropriate balance between respecting freedom of expression and protecting people who are affected by those who set out to stir up hatred.

In making the change, I will maintain the distinct approach of the bill to the stirring up racial hatred offences, which will continue to apply as they do at the moment, and as they have done for the past 34 years. Stirring up racial hatred offences in the form that they take in the bill have existed across the United Kingdom, including in England and Wales, for decades. I see no reason to fundamentally adjust a long-standing approach and protection that has worked well in practice. I would be concerned about community cohesion were to there to be any weakening of the existing protections in respect of race.

The change to the offences being intent only for the additional characteristics will have direct implications for other ancillary aspects of the new offences of stirring up hatred. I am open to considering matters such as the operation of the “reasonableness” defence and the provisions concerning freedom of expression, in the light of my intention to lodge amendments to make the new offences intent only.

I am committed to continuing to engage with Parliament and stakeholders as the bill undergoes the scrutiny process, and to considering whether further amendments should be made in those ancillary areas.

There is one further specific area in which we particularly want to hear Parliament’s voice through the scrutiny process: use of modernised language in the bill. Regarding the part of the bill on statutory aggravations, support has been expressed for considering again whether the test of “evincing malice and ill-will” could be changed to “demonstrating hostility”, as Lord Bracadale recommended. I am committed to further engagement to consider the effect that that would have, and whether such changes might beneficially be introduced at stage 2.

I am aware that other views and concerns have been expressed. An effective scrutiny process will ensure that those are all aired during healthy and robust debate. I wanted to ensure, however, that Parliament was advised in good time of the Scottish Government’s responses to the key concerns that have been expressed about the bill.

I know that hate crime is an emotive subject; I know all too well that it is a deeply personal one, too. I want to give this criminal law legislation the best chance of affording protection to those who need it. I look forward to working with members on the bill, and I thank the stakeholders with whom I have engaged for allowing me to make this announcement.

I also want to reiterate that I will make myself available if I have to appear in front of committees or Parliament during the recess or on weekends—whatever it takes. I am happy to do so, because the bill is needed for protection of people who are vulnerable to the stirring up of hatred. Any attempts to filibuster or delay the bill should be thwarted.

Finally, I want to reassure members that the misogynistic harassment working group remains a priority. We will set out our plans for it next month.

I have taken numerous bills through Parliament and have always believed that scrutiny can only strengthen legislation. I hope that I have demonstrated willingness to listen and act when concerns exist. I reiterate that although there will undoubtedly be concerns about other parts of the bill, I will continue to listen to members and key stakeholders throughout the Parliamentary process.

I am confident that the debate around the bill will help to build consensus on how we can effectively tackle hate crime, and on how we keep working together to build an inclusive and just Scotland for all.

The cabinet secretary will now take questions on his statement.

I thank the cabinet secretary for advance sight of his statement and for coming forward with it today. We now know that the Hate Crime and Public Order (Scotland) Bill has received more written responses than any other bill in the history of the Scottish Parliament. In our recent debate, the Scottish Conservatives warned about the avalanche of opposition to the bill and remain really worried that sufficient scrutiny is not given to the rest of the bill because of its controversial part 2. That scrutiny would ensure—in the cabinet secretary’s words—that the bill is “fit for the 21st century.”

The amendments that the Cabinet Secretary for Justice proposes do not begin to go far enough and respondents will note that the cabinet secretary has not admitted that the first draft of the bill is a threat to free speech. He makes no mention of the threshold for criminality, with regard to “threatening or abusive” behaviour or communication, which represents a significant difference to the legislation south of the border. There is still no protection in the bill for anything that is said in the privacy of one’s own home and the bill’s vague clauses on “inflammatory material” are not mentioned.

In the face of such outrage over part 2 of the bill, why has the Cabinet Secretary for Justice committed only to the consideration of amendments for the protection of freedom of speech, rather than lodging them now, as the Parliament demanded two weeks ago? What amendments will he lodge to protect people from prosecution for things that are said in the privacy of their own home? Why did he refuse to listen to the unprecedented backlash against the new stirring up of hatred offences, and why did he not simply scrap part 2 to allow the rest of the bill to proceed to full scrutiny and swift enactment?

Dealing effectively with the new stirring-up offences by changing them to intent-only offences will mitigate and ameliorate the vast majority of concerns that a number of stakeholders have expressed. I referenced a number of stakeholders in my opening remarks, who told me that a change to intent-only offences would mitigate the vast majority of their concerns—for example, the reasonableness defence might not be needed.

I have now made that change, so we can concentrate on some of the other parts of the bill that the member mentions, such as the freedom of expression clauses or part 1 of the bill, on statutory aggravations.

The other areas of the bill—freedom of expression, private dwellings—are all things that we as parliamentarians and legislators should be capable of discussing, taking evidence on and lodging amendments on at stage 2 if necessary. I said in my opening remarks that I will make myself available to work over the recess if necessary and I hope that others are equally willing to work as hard as we possibly can to progress the legislation.

The final point I will make to Liam Kerr is that simply scrapping the stirring-up offences is not an option, because those offences are corrosive to society. Victim Support Scotland rightly said a fortnight ago that those who are the targets of hatred cannot afford to wait years and years for the vital protections that they require. The statutory aggravations already exist, with the exception of the one that we are adding for age. The stirring-up offences are corrosive to society and we should not shy away from that vital protection.

I thank the cabinet secretary for prior sight of his statement. All of us in the Parliament find hate crime absolutely unacceptable, so this change of heart is welcome and it is useful to have the changes announced prior to scrutiny of the bill, so that they can be tested properly by the committee. When stakeholders say that the changes largely meet their needs, do they still want further protections in the bill for freedom of speech? There is a great deal of interest from stakeholders about the misogyny working group; can the cabinet secretary tell us who will sit on that group and when will it first meet?

I thank Rhoda Grant for the tone and substance of her questions. In relation to the direct question that she asked about freedom of expression clauses, the short answer is yes—a number of stakeholders raised that concern, from the Roman Catholic Church to the Equality Network and many in between, so I will give further consideration to that area, as I mentioned in my statement.

As I said in my statement, we should be able to update the Parliament next month on the misogynistic harassment working group. Rhoda Grant may have seen that the Law Commission in England and Wales has produced some work today—around 500 pages—on that issue and I will be looking at that. I should be able to update members next month on that vital piece of work.

I thank the cabinet secretary for advance sight of his statement, which does not, however, deal with the fundamental challenges of proving intent. Why has the cabinet secretary not chosen to take a similar approach to that taken in the Public Order Act 1986 in relation to stirring up racial hatred, where intent or likelihood are both covered? Where intent is not proved, it is a defence that the accused was not aware that their behaviour might be threatening or abusive. Surely, if we do not take that approach, we will risk a situation in which very extreme actions that clearly stir up hatred will be legitimised on the basis that an accused can merely argue that their intention was something else.

I thank Patrick Harvie for his question and I put on record his steadfast support in relation to tackling hate crime in all its forms. The concerns that Patrick Harvie articulates are the very concerns that I had at the beginning of the bill process—that if we created the new stirring-up offences as intent only, a simple defence for an accused would be, “I didn’t intend to do X, Y or Z”. I tested that proposition with the Faculty of Advocates, the Law Society of Scotland and some lawyers and solicitors that I know. They provided me with a significant degree of reassurance that it is not simply a case of the accused saying that they did not intend to do something and that therefore a judge, jury or sheriff would accept that as the word of the accused. The judge, jury or sheriff would look at all the contextual factors surrounding an incident and determine whether there was an intent to stir up hatred or not. It is not simply the case that an accused could say, “I did not intend to do that.” Further, of course, intent has to be proven in relation to a number of offences, if not most of them.

I accept the point that Patrick Harvie is making, which is that we have to give those who will be affected by the new stirring-up offences confidence that they are still significant and can be prosecuted, and I am more than happy to work with Patrick Harvie on that.

The cabinet secretary reminded members that the key underlying principle of the bill is tackling hate crime. I whole-heartedly agree that we should not lose sight of that aim. Does the cabinet secretary agree that we now owe it to victims of hate crime to work together to create world-leading legislation that we as a Parliament can be proud of?

Yes, in short. Rona Mackay asks an important question, because we sometimes forget that it is not the loudest voices that are always the ones that we should listen to. We should of course listen to people who raise concerns about freedom of expression—those concerns are legitimate, and we have demonstrated that we have listened to them—but we must also listen to those who are the most affected, the most targeted and the most vulnerable when it comes to hate crime, and that means that we should not delay the bill or attempt to thwart it in any way, but should work as hard as we can between now and the end of the parliamentary session to ensure that we have an absolutely effective piece of legislation that protects the most vulnerable in society and, at the same time, gives people absolute confidence in relation to freedom of expression. The two factors are not mutually exclusive, and I have every confidence that we can do that.

I, too, thank the cabinet secretary for early sight of his statement and for responding positively to my call earlier this month for the proposed changes to part 2 of the bill to be brought forward well ahead of the committee beginning to take oral evidence at stage 1.

As he said, the proposed stirring-up offence in the bill has led to serious widespread and legitimate concerns about the consequences for freedom of expression, and the “intent to” safeguard is a welcome step in the right direction. However, Lord Bracadale said:

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

Can the cabinet secretary offer examples of behaviour that would be caught by a stirring-up offence but would not be caught by the bill’s aggravation provisions?

If the member refers to my statement, he will see that I made the point that it is important that the criminal law appropriately prosecutes offences and records them in a way that gives confidence to the public. The member is absolutely right to say that, under current law, there are a number of pieces of legislation that could be used to prosecute offences in relation to the stirring up of hatred. However, stirring up hatred is a corrosive behaviour that not only affects an individual but could involve an entire community, and it is important that is prosecuted in that context.

The member asks for an example. The reason why a stirring-up offence is needed is because it does not require an individual to be on the receiving end of it; it could be an entire community, such as the Muslim community, the gay community or people who have disabilities, that is affected by a stirring-up offence, whereas the statute of aggravators in part 1 of the bill—as far as I know; I will have to look into this in more detail—generally involve offences that are attached to an individual. That is why it is important that, although behaviours related to stirring up hatred may well be capable of being prosecuted in some other way, they are recorded in the correct way. That is important not only for the purposes of the bill but because, hopefully, that will give confidence to those communities that are targeted by that hatred.

I welcome the fact that the Scottish Government has listened to people who raised concerns about the bill and that it has acted. As the cabinet secretary mentioned, the Law Commission in England and Wales has today published a report on hate crime. On the issue of stirring up hatred, it proposes that the focus should be on the deliberate incitement of hatred, which provides greater protection for freedom of speech where no intent can be proven. What is the cabinet secretary’s response to the report’s recommendations?

I hope that Ruth Maguire will forgive me, but I think that the report is just shy of 500 pages, and I have briefly skimmed its headlines. I will, however, take time to look at it tonight and over the coming days.

I hope that I have been able to address the general point that Ruth Maguire raises. For the new offence of stirring up hatred, we are moving to intent only. I think that that will help to give some assurances.

With regard to the concerns that she raised about a fortnight ago, if I remember correctly, she highlighted specifically the concerns of the Humanist Society Scotland. It was one of the stakeholder organisations with which I have engaged since then, and I am sure that it will articulate, if asked, that it was very positive about the change.

I will look at the Law Commission report, but I think that the change that I have announced will go a long way to reassure those who, like Ruth Maguire, had concerns about the bill’s drafting.

Is the cabinet secretary now confirming that he recognises that there are serious flaws in several key sections of the bill, including wording that is open to misinterpretation, and that, notwithstanding what he has announced today, he will address those other concerns before the scrutiny by the Justice Committee takes place, so that there is no hint of our making bad law?

I disagree with Liz Smith’s characterisation of the bill. I do not accept that there are key, fundamental flaws in the bill, although there are proposed amendments that we should consider. All of us, as parliamentarians, have a responsibility. Liz Smith has been a parliamentarian for longer than I have, and she has—no doubt very effectively—scrutinised bills over the years. We should be able to do that as a Parliament.

The change that I have announced—to an intent-only offence—will have an ancillary effect on a number of other areas of the bill. I will give that consideration, as I mentioned in my remarks.

It is incumbent on each of us, as parliamentarians, whether in opposition or in government, to make sure that we engage in the process constructively and with an open mind. I will listen with an open mind to proposals for change, as I have done thus far, but I do not think that there are fundamental flaws in the bill. Concerns can be addressed through the normal parliamentary process.

The cabinet secretary will recall my specific concerns about the use of the term “stirring up” in hatred offences without the necessity of proving intent or mens rea, for which there is a plethora of case law. I therefore welcome the measured move to requiring intent or mens rea. That endeavours to strike a balance between freedom of speech and expression—which is, of course, not absolute—and incitement to criminal acts.

I thank Christine Grahame. She has raised the issue with me both publicly, in the Parliament, and privately. I appreciate her experience and knowledge of the law.

As I have said, a number of people had key and genuine concerns that the offences of stirring up hatred were about intent and likelihood. I am pleased that, by moving them to intent only, a number of stakeholders and, indeed, members of all parties, will—it seems to me—have greater confidence in the legislation. I hope that we will also be able to strengthen the bill so that it gives to the most vulnerable in our society the protections that we all want it to give.

It is welcome that the cabinet secretary has spoken to key stakeholders, and I hope that he is committed to continuing to do so as the bill progresses.

Beyond the amendments that are proposed today, the Faculty of Advocates has suggested that some of the definitions in the bill—for example, those that concern perceived religious affiliation—are too broad and too vague. To avoid a repeat of the problems of the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012, is the cabinet secretary considering amendments that would tighten the definitions in the bill?

My answer is similar to that which I gave to Liz Smith: yes, of course, the Government will keep an open mind. I have done that—I have taken numerous bills through the Parliament, and I think that I accepted every Opposition amendment on the Scottish Biometrics Commissioner Bill. I cannot promise that I will do exactly the same with this bill, but I will approach it with an open mind.

I take very seriously what the Faculty of Advocates has to say, which is why I went back to take a view from it before making my statement. The dean and the vice-dean, who are both new in their roles, have been exceptionally helpful, and I thank them for that.

In short, my answer is yes—if there are amendments or proposed amendments on the issues that Alex Rowley has mentioned, they will absolutely get a fair hearing and I will give them due consideration.

I call Donald Cameron.

Oh! We seem to have lost Donald Cameron. No—there he is.

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

As the cabinet secretary will be aware, the references to freedom of expression in sections 11 and 12 are controversial, because they relate only to two protected characteristics: sexual orientation and religion. Why is that?

The Faculty of Advocates said of those provisions:

“The current wording does not appear to afford any significant protection”.

What is the cabinet secretary’s response to that?

I thank Donald Cameron for his important question. I reassure him that the point that he made about the specific nature of the freedom of expression provisions was made to me by the Equality Network, the Faculty of Advocates, the Roman Catholic Church and the Scottish Council of Jewish Communities, and my answer was that I absolutely will look again at the provisions.

As I said in my statement, we can consider whether we can have a more general freedom of expression provision and whether we can restate the freedoms that people have under article 10 of the European convention on human rights, for example. Those are considerations that I will look to include; in short, my answer to the member is yes, we will look at the provisions.

The reason why the provisions are so specific is that specific freedom of expression provisions were asked for by particular stakeholders at the time when we were consulting on the bill—through roadshows and the Government consultation. I accept the member’s general point that we should see whether we can have a broader freedom of expression provision as opposed to the more limited and specific ones that are in the bill as it is drafted.

This follows on from Patrick Harvie’s question. Can the cabinet secretary reassure us that the bar will not be raised too high, such that it will become too difficult to get a conviction? Can he also reassure us that there will not be confusion if race is treated differently from other protected characteristics?

I am not sure whether John Mason can hear Christine Grahame, who is behind me, shouting, “There is plenty of case law!” I hope that I can provide some reassurance on that point, because I tested it. I had exactly the same concern about a move to intent only; I did not want an offence that, frankly, could not be prosecuted or that would be extremely difficult to prosecute.

The assurances that I got from the Faculty of Advocates and the Law Society of Scotland, in particular, were extremely helpful in that regard. Of course, it is for the Justice Committee to decide from whom it wants to hear oral evidence, but if it chooses to hear from the Faculty of Advocates and/or the Law Society, I think that members will want to test the area, and if they hear what I heard from those organisations I hope that they will have the necessary assurance that the new intent-only stirring-up offence will be effective in protecting the most vulnerable in our society while not impinging on people’s freedom of expression.

That concludes questions on the cabinet secretary’s statement. I apologise to Fulton MacGregor, Claire Baker and Elaine Smith for not being able to take their questions. I remind members to take care to maintain social distancing, please, when they are leaving the chamber.