The debate is on a motion that opens by acknowledging that we, as a Parliament, must address the pernicious and vile hate crimes that remain all too prevalent, and which closes by proposing one possible solution that seeks to ensure that Parliament can pass robust and unambiguous law that will achieve what we all want it to achieve without serious unintended consequences.
The Government finds itself in something of an invidious position, having proposed a bill and—no doubt in good faith—having sent it out for consultation with a view to improving and amending it before introducing an effective and clear proscription on hate crime. The bill has been proposed by the Cabinet Secretary for Justice, whom I believe when he says that he understands the lived experience of hate crime, and that he has a deep desire to change that. I know that he wants to get this right, as we all do.
Around 2,000 people have responded to the consultation. That is the highest number of responses in this session of the Scottish Parliament. Although not all the responses have been published yet, it is clear that a significant number of them have raised serious concerns about the stirring-up offences and the potential chilling effect on freedom of speech—but not about those exclusively. There are concerns about other aspects of the bill, some of which I will flag up shortly. Those concerns are all equally deserving of being aired, scrutinised and interrogated, if we are to make good law that will protect those who are impacted on by hate crime.
In late October, the Justice Committee will commence taking evidence from witnesses on their views of the bill, with members seeking to inform themselves on the key issues and likely amendments. It is intended that the committee will have interrogated all the points and issues that are raised in order to bring us to stage 1 by late December. That is an extraordinary timetable for a bill that has produced an unprecedented number of responses.
As Fergus Ewing just said in the previous item of business, we are in the middle of a pandemic. Faced with the biggest crisis since the war, the Scottish Parliament is making unprecedented decisions daily, and we do not know how the pandemic will impact on our operations over the next four months.
I am not sure that we did know that. We do not know exactly how many submissions there are yet because of the sheer volume of them. I understand that a number of the individual ones might be collated because they say similar things, so we do not know the exact volume of responses that we will be dealing with.
My point, which I will make more fully later, is that with such a heavy focus on part 2 of the bill, there is a serious danger that we will not do justice to the other parts of bill, or ensure that they receive effective scrutiny. I listened to the cabinet secretary on “Good Morning Scotland” this morning, when, perhaps inadvertently, he made my point for me. He was interrogated about the bill and ended up spending most of the time, for understandable reasons, talking about the chilling effect of the stirring-up offences in part 2. Later, I will make the point that that is a real risk that arises from the bill.
Given the context that I have set out—the burden on the committee—that weighs heavily on my mind, as I consider the bill. In the programme for government, the First Minister told us that
“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.”—[
, 1 September 2020; c 46.]
She is right, so we must do all that we can to ensure that part 1, which deals with statutory aggravations, is not only
“capable of tackling hate crime” but does so completely and unambiguously. That means subjecting the bill to intense scrutiny.
We need to ask whether simply consolidating is the right approach, and whether there would be merit in adopting the approach that has been adopted in New Zealand and Canada, which is concerned with forms of hatred that are based on any differences in characteristics.
We need to ask about the exclusion of sex. It is worth exploring the suggestion that that exclusion could be seen as sending the message that sex-based hatred is of less importance than that which is based on the other characteristics.
We need to ask whether the working group to consider an offence of misogynistic harassment is the best way to proceed on that because, for example, the Law Society of Scotland says that
“if the policy intention is for the list of characteristics to mirror those in the Equality Act 2010, there is merit in including
”sex at this stage”, and also to ask whether issues of misogyny and, indeed, misandry are too important to be left to secondary legislation. It has been suggested that substantive changes to criminal law must be included in primary legislation, through which the policy intentions can be fully and publicly debated.
Yes, I do. From what I have seen, there is a broad range of opinion on the matter, as I am sure Rona Mackay will agree. That is exactly my point. We need to have the debate and consider what is the right thing to do in relation to a sex-based aggravator. Should that be part of the bill—should it be considered by a working group, brought back later or dealt with now in primary legislation?
Similar concerns have been raised on the definitions, such as those in part 3 on the inclusion of “variations of sex characteristics”. DSD Families, which is a charity that supports children and families with difference of sex development, states:
“Singling out a biological condition in this way reinforces stigma rather than working towards understanding and societal acceptance.”
That is a highly sensitive area involving rare medical conditions and its consideration must not be rushed.
Finally, despite the stated aim of clarifying and modernising legislation, and despite Lord Bracadale’s recommendation, part 1 uses archaic language such as “evinces malice and ill-will”. The Law Society specifically suggests that the argument that that wording is needed to ensure that there is no change to the aggravation threshold is “not particularly convincing”. Is it right? I do not know—but that is why parliamentary scrutiny will be so important.
The bill contains welcome and important proposals, but those are not without potentially serious challenges that must be aired, debated and amended if we are to ensure proper protections against hate crime. If we look at the published submissions, the articles written on the bill and the commentary, we see that the overwhelming focus is on the offences of stirring up hatred, which many groups and individuals across Scotland have said will have a chilling effect on freedom of speech.
I know that colleagues across the chamber will express their concerns about that area, so I will not explore them in depth at this stage. Suffice it to say that there seems to be a very real concern, which is held by a significant number of those who have made submissions to the consultation, including the Law Society, the Faculty of Advocates, the Scottish Police Federation, the Scottish Newspaper Society, the Humanist Society Scotland and the Catholic Church, that the provisions threaten freedom of expression. They have raised issues about the vague language of the provisions, the fact that one does not need to prove intent to show that a crime has been committed, and the low threshold of behaviour or communications being threatening or abusive, with the Association of Scottish Police Superintendents suggesting that
“it may capture people expressing relatively mainstream views”.
Will Liam Kerr at least acknowledge that pro-equality organisations are largely arguing in favour of the provisions and that nobody has, as far as I am aware, argued that the existing stirring up hatred offence in relation to racism should be repealed? Why should we allow an unlevel playing field when the pro-equality organisations are asking for promises to consolidate the legislation to be kept?
Of course I acknowledge that, because there are all their submissions. My point is very clear: those are all opinions and views that have been very carefully thought through and deserve airing and consideration. I take Mr Harvie right back to the point that I made at the start of my speech: we are on a very tight legislative programme, and the committee has to produce a stage 1 report by late December.
I was talking about part 2, and the issues that had been raised in summary. I will give one example. Forwomen.scot said:
“Had the Bill been law during the period of consultation on reform of the Gender Recognition Act 2004 ... Many women would have been terrified to voice their concerns under threat of possible prosecution”.
The justice secretary’s stated position is that
“it will rightly be a matter for our independent courts to determine whether an offence has been committed on the basis of an independent, objective assessment of the available evidence.”
However, it is not good enough to say that the courts will decide, without any case law, where the threshold for criminality is. There is no basis on which judges can take such decisions, unless and until people find themselves in court having to prove their innocence.
Roddy Dunlop QC is right to question whether, for example, comedians will feel comfortable telling jokes that some people might find offensive. In relation to whether a person’s behaviour would have been likely to stir up hatred, the Sheriffs Association concluded that
“It will be exceptionally difficult to direct a jury on these matters.”
All that is before we even have a full investigation of the costs. I know that the justice secretary is well aware that the Scottish Police Federation has said that the financial memorandum’s estimated cost of the bill is grossly underestimated. It also said that several policing costs are unaccounted for in the memorandum, including the costs of investigating complaints against officers.
All that gets us to the final part of my motion, and the solution for which I seek Parliament’s support today. The justice secretary states that he wants to create
“robust laws” that
“will ensure action can be taken against perpetrators and send a strong message ... that offences motivated by prejudice are not tolerated.”
However, the bill is not robust; it is vague in the extreme. I have a real concern that properly investigating, scrutinising and making these complex changes in the context of there being 2,000 written submissions is not possible in a crowded parliamentary timetable. The situation has been further complicated by the coronavirus pandemic.
The bill has been introduced with the best of intentions—to address a pernicious and malevolent presence in society—but as drafted, it risks undermining those intentions. I desperately want to ensure that the committee has the time to scrutinise the bill properly, but the unprecedented response to it means that time is not on our side.
The MurrayBlackburnMackenzie collective says that we have barely begun to work through the evidence and do not know what further points relating to part 1 have been made. I fear that part 2 will suck all the oxygen out of the debate and will polarise us, thereby stifling debate around the real and difficult challenges in other parts of the bill.
The Faculty of Advocates said that, in light of the difficulties that exist in the current text, it
“considers that there is no alternative but to reconsider the draft bill”.
That is the solution that I propose in my motion: to withdraw the bill and immediately begin work with stakeholders and others to draft and bring forward as quickly as possible the legislation that is needed to tackle hate crime in Scotland, without threatening freedom of speech.
The legislation is far too far-reaching and important to risk getting it wrong. Bad legislation is not the way to stop bad behaviour. By pushing ahead with the bill as drafted, the Government might lose the chance to achieve an updated and fully modernised approach to legislating for hate as an aggravator, which people on all sides of Parliament could pass with pride, and which would command strong public support and the support of those who would be putting the law into practice.
For all those reasons, I move,
That the Parliament believes that hate crimes are a blight on society in Scotland and must be dealt with robustly; notes that the right to freedom of expression is the cornerstone of democracy and must never be compromised; believes that the significant number of responses to the Scottish Government consultation on its proposed Hate Crime and Public Order (Scotland) Bill highlight the significant and valid concerns that the Bill would be an attack on free speech, and urges the Scottish Government to accept these criticisms, remove its proposed Bill and immediately begin work with stakeholders and others to draft the legislation that is needed to tackle hate crime in Scotland, while not threatening to make free speech a crime.
Even though I know there will be disagreements around the bill, its interpretation, what it seeks to do and its possible unintended consequences, I do not doubt for one second the sincerity of every member—those I know well and have dealt with and those I do not know so well—in their desire to tackle hate crime. We have demonstrated time and again in this Parliament that we stand united as one against that pernicious crime.
The Scottish Government will work tirelessly to engage with colleagues across the chamber, external stakeholders and anyone else who wishes to contribute to the bill and the debate, and, if necessary, we will amend and improve it. What we cannot do—I am not suggesting that anyone is doing this—is be complacent about the nature of the challenge. In 2017-18, more than 5,600 hate crimes were reported to the Crown Office and almost 7,008 hate crimes were reported to Police Scotland—I emphasise the word “reported” because, as all of us recognise, hate crime is not always reported to the police, often out of fear. Being a victim of hate crime is undoubtedly a dreadful experience for anyone.
Let me again reflect on the fact that it was less than three months ago that this Parliament came together to debate the Black Lives Matter movement, to speak in solidarity and to rededicate ourselves to taking a stand against hatred.
Although legislation in itself is not enough to build the inclusive and equal society that Scotland aspires to, hate crime legislation is a vital component of that society. In particular, it makes it clear to victims, perpetrators, communities and wider society that offences that are motivated by prejudice will not be tolerated.
The need for modernised legislation has only become more apparent as social media has continued to permeate our daily lives. The internet has brought with it challenges that we did not have in the past, by providing a platform for people who wish to share hateful abuse. I am not talking only about unsettling words, although, of course, words can have an impact. Members will be aware that, as Liam Kerr noted in his opening remarks, I have received hateful abuse throughout my life, and particularly during my political career. Most recently, that abuse took the form not just of harmful words but of threats to me and my family—threats to fire bomb my house, to stab me and to kick me in the face until I bled—all because of the colour of my skin. I am afforded protection in law from people stirring up hatred against me due to the colour of my skin—my race. Should the same protection not be afforded to other people due to protected characteristics? Should someone who is disabled, gay or Jewish not be afforded the same protection in law and have the law recognise an offence of stirring up hatred against them in the same way as I am protected?
The cabinet secretary is absolutely right—of course, those protections should be in place. The Parliament respects him as an individual for the way that he has handled the many horrible things that have happened to him and his family.
At the base point of the debate is language—the words that matter in a bill and the interpretation of that wording in law. The concern on this side of the chamber is that that interpretation is open to so much chance and dispute that the bill as it stands—particularly part 2—is in danger of inciting some of the worst aspects of human behaviour. Is it not right that we remove the bill and start again?
The racial stirring-up offence has existed since 1986—for 34 years. In my reading of it—I am happy for anybody to challenge me—I have not been able to find a single case in which there has been a controversial prosecution of that stirring-up offence. All that we are doing, in essence, is replicating the language, although we are actually not quite replicating the language, because we are making the threshold even higher. We are removing the insulting threshold that currently exists. I see Liz Smith shaking her head, but that is what we are doing.
If that protection has worked for 34 years without much controversy as far as I can see—as I say, I am happy to be challenged on that—why would it suddenly become controversial if it applied to someone because they were disabled or because of their sexual orientation, for instance?
I do not dispute that the Parliament should have time to debate the bill. It has been three years in the making, from when Lord Bracadale began his review. He spoke to many stakeholders, there was a Government consultation and roadshows went across the country—I attended a number of them myself. We now have six months of this parliamentary session remaining, with three months until we are due to have the stage 1 report. I think that that is enough time.
However, I put on record that, if we have to work during the recesses, I will make myself available during the recesses and that, if it means working at weekends, I will make myself available to work at the weekends. We should not delay the bill any further, because the vital protections that it will guarantee and afford people in law are not something that can be waited for.
One particularly powerful contribution that I read in preparing for today’s debate came from Kate Wallace, the chief executive of Victim Support Scotland. She has said clearly that victims who are targeted by hate cannot afford to wait another parliamentary term for those protections. That is hugely important.
As well as victims and potential victims of hate crime wanting that clarity, there is a good argument that everybody who fears that they might be accused of the offence also needs clarity. Does the minister agree that the stirring-up offence, which has been used for more than 30 years, gives clarity whereas aggravated breach of the peace, which is the only way—at least, the main way—to prosecute such offences at the moment is much vaguer than what is in the bill?
There is certainly an argument to be made to that effect. I say to all members that I am not attempting to rush the parliamentary process. I think that the timetable for the Justice Committee is a very good one, and it has been agreed by all members. From all the commentary that I have seen, I would say that the stirring-up offences are gaining the most attention, and they will probably gain the most scrutiny in the course of the Justice Committee’s oral evidence sessions.
I do not doubt that there are some legitimate concerns. There has been some incredibly sensational reporting about the offences, too, but, putting that aside, people clearly have legitimate concerns about the stirring-up offences. I will absolutely listen to the evidence that the Justice Committee produces in that regard, and I will listen to external stakeholders. I am constantly engaging with stakeholders, and I give an absolute assurance for the record that I am actively looking to see where we may be able to find compromise.
I do not accept that. There is enough time for us to give due attention to the stirring-up offences and to some of the other points that the member has legitimately raised.
I am aware of the time, so I will end by saying to the Liberal Democrats and the Greens, in particular, that I will listen. Their amendments to the motion make some valid points, and, as I have said, I intend to come back to Parliament before the oral evidence sessions take place at the Justice Committee, to give further details of how I wish to take the bill forward.
To the Conservatives, I simply say that, as parliamentarians and legislators, we have an important job to do in scrutinising the bill, debating it and amending it when necessary to improve it. I hope that they will not attempt to torpedo the bill during the current parliamentary session but that they will instead work with the Government. If we have to put extra sessions on, let us do that.
Let us send a strong message to the victims and targets of hatred that we will not abandon them or walk away from the bill. We are looking to get a robust piece of legislation that will protect them.
I move, as an amendment to motion S5M-22636, to leave out from second “believes” to end and insert:
“agrees that tackling hate crime is central to building the Scotland that all people want to see, a Scotland free from hatred, prejudice, discrimination and bigotry; acknowledges the importance of ensuring that hate crime legislation in Scotland affords sufficient protection for those that need it; agrees with the unanimous decision of the Justice Committee to afford the Bill rigorous and detailed scrutiny over the coming months; recognises that there are concerns about aspects of the Bill, including in relation to the stirring up of hatred offence provisions, which will benefit from further engagement with stakeholders and Parliamentary scrutiny; further recognises that there is a clear need to tackle misogyny in Scotland, and that the Scottish Government is committed, in principle, to developing a standalone offence of misogynistic harassment and is establishing a working group to take this forward, and agrees to seek common ground and compromise to ensure that effective legislation can be agreed that protects those affected by hate crime and prejudice in Scotland while respecting freedom of expression.”
Hate crime has no place in a modern Scotland; it is simply wrong. No one should be subject to hatred. To subject people to hatred because of their race, gender, sexuality, disability, or indeed some of the other characteristics, is wrong. However, these are some of the things that people choose to use to single out others and to subject them to hatred. It is absolutely senseless.
Sadly, hatred seems to have been unleashed by social media— the cabinet secretary made that point in his opening remarks. Hatred has always been there, but there has never been a platform that gives the haters so much protection and allows them to spread their bile unchallenged.
As a woman, I know what hatred looks like. Most women have been subject to misogyny, and have been disregarded, ignored, demeaned, and hated just because they are a woman. Because of that, violence against women is endemic. I welcome that the proposals for a separate offence of misogyny have been accepted, but why do women have to wait for so long for that? Bracadale published his review more than two years ago and we are getting to legislation only now. The Scottish Government is only setting up a working group to look at misogyny, and it is taking far too long.
Being a woman and being subject to misogyny does not lead me to hate or even resent other groups who face similar abuse; it makes me want to make common cause to work with them to stand up against hate crime. That is what we in this Parliament should be doing. We should be trying to build consensus against hatred and promoting tolerance. I believe that we all welcome the Bracadale review and want it to tackle hate crime in our society, but we cannot breed tolerance without knowledge and debate, and freedom of speech must therefore be protected. How else can we debate issues and see each other’s points of view? That is how we find common ground, but we must do it without hatred.
Inciting someone to hatred is altogether different from debate. We all recognise incitement to hatred when we see it. We do not want to shut down debate and simply hear whoever shouts the loudest; rather than creating greater understanding, that closes off other people’s positions.
Those of us who have been subject to hatred have a duty to come together and fight it, and that is where the legislation is welcome. However, as it stands, it is not fit for purpose. It will pitch the very people it sets out to protect against each other.
Part 2 of the bill is where the greatest concern lies. The language and terminology stray into covering behaviour and material that is merely insulting, contrary to the Bracadale review and contrary to what is the case elsewhere in the United Kingdom. It will catch much more than hate crime, and it will breed intolerance and resentment, which is the opposite of what it aims to achieve.
When forming new laws and criminal offences, the Government and Parliament have a duty to ensure that the law is clear and fair, and that it is not open to abuse or manipulation.
Serious concerns have also been raised about the threshold for criminal liability—namely, the lack of intent required for criminalising behaviour or material.
Lord Bracadale’s review recommended extending the “likelihood test” to stirring-up offences related to protected groups other than race.
I thank the member for giving way. Would she accept that, first, intent is extremely difficult to prove and that, secondly, there is room to improve the wording with alternatives, such as “significant risk” , suggested by the Law Society of Scotland?
As I was saying, Lord Bracadale stated that
“Stirring up hatred is conduct which encourages others to hate a particular group” and that
“the intention of the perpetrator is that hatred of the group as a whole is aroused in other persons. Hate is primarily relevant, not as the motive for the crime, but as a possible effect of the perpetrator’s conduct.”
The need for intent is an important principle in criminal law and it cannot be easily cast aside, especially in such serious matters as these. In England and Wales, there must be an intention to stir up hatred in offences relating to religion and sexual orientation.
Under the Criminal Justice and Licensing (Scotland) Act 2010, the general offence of “threatening or abusive behaviour” requires both that “a reasonable person” would “suffer fear or alarm” and that the person must intend the behaviour to cause that fear or alarm or “be reckless” as to whether it would do so.
Under the current drafting, part 2 of the bill includes a general defence of reasonableness. However, contrary to specific defences previously provided for in the Public Order Act 1986, the bill has only a general defence of reasonableness, which is more wide ranging and open to interpretation.
Part 2 also contains provisions for the protection of “freedom of expression” with regard to religion and sexual orientation, although some people have pointed out that needing to reference that protection says more about the potential impact of the bill than it offers reassurance.
Where the door is left open to use the law to stymie debate, the law will not protect those who it is meant to protect. We need not just a law on hate crime but a good law on hate crime.
I welcome the cabinet secretary’s commitment today that he will work with others, because the Scottish Government cannot dig its heels in. It must listen to concerns and act on them.
The checks and balances in this Parliament must be used to the full in order to scrutinise the legislation and make sure that it works for all Scots. It will be unacceptable for the Government simply to use its committee members to nod through legislation; to do so does us all a disservice.
Government back benchers have a job to do and they have to get it right. Their job is not to defend defective drafting; it is to defend the national interest. They must listen to the concerns expressed and find ways of making the legislation work. If they cannot do that, we will withdraw our support; if the bill proceeds, there are two further occasions when the Parliament can vote it down. It would be our duty to do that if the legislation was defective.
I move amendment S5M-22636.3, to leave out from “, remove” to end and insert:
“; has serious concerns about Part Two of the Bill as currently drafted and considers that it will require substantial revision if it is to be fit for purpose, and urges the Scottish Government to work with stakeholders and the Parliament throughout the legislative process to amend the Bill so that it does deal robustly with hate crime, protect individuals while protecting the privileges that people enjoy with regard to free speech and builds consensus that prejudice and hatred have no place in Scotland.”
I will talk about the specifics of the amendment in my name, such as the “piecemeal” nature of
“ the development of hate crime law”, which has resulted in “fragmented legislation”. It is a simple matter of fact that, for more than a decade, there have been calls for consolidation. The principle of consolidation seems to be widely welcomed and has benefits, as we have seen with legislation on sexual offences.
The amendment refers to the belief that
“freedom of expression is a critically important human right”.
That is a fundamental human right but, of course, it is not an unqualified one. It also says that
“within the context of factors such as the prevention of crime and protecting the rights of others”.
The amendment also recognises that
“stirring up racial hatred has been the basis of criminal offences since 1986.”
We have heard that a couple of times and, as is reiterated in our amendment, that is “clearly compatible with ECHR”. As the Scottish Parliament information centre briefing says, paragraph 5.28 of Lord Bracadale’s report concludes that
“extending the stirring up offences in Scotland would not infringe the article 10 right to freedom of expression”.
That is a very important point. I hear what John Finnie says about Lord Bracadale’s report, but does he not accept that, in the implementation, there is a danger that there could be an infringement of human rights? If there is, is its practical impact not that we will end up with a bill that does not work, so we should take a step back?
I am grateful to the member for the intervention. I will come on to that, and I will cover the competing arguments on the issue.
As far as we are concerned, there is unfinished work on misogynistic harassment. Toxic masculinity must be addressed, and we look forward to that work progressing.
As the amendment says, we commit to listening to
“all serious views on ways to improve” the bill. We will do that
“as part of the normal process of parliamentary scrutiny”.
We will also consider
“how best to ensure that all forms of hate crime are taken seriously.”
I agree with the cabinet secretary in thinking that all members are behind the thrust of wanting to address such pernicious crime.
The bill seeks to modernise the system, and we welcome the proposals in section 14 to update and improve the definition of transgender identity. The issue of sex has been raised, which is important, and Lord Bracadale made proposals in that regard. We will also come to the issues of age and consolidation.
In relation to consolidation and the extension of hate crime provisions, sections 3 and 5 relate to stirring up hatred and the possession of inflammatory material. The existing offences, in sections 18 to 23 of the Public Order Act 1986, apply to race only. Is it the view of those who do not support the proposals that the provisions should not be extended to include religion, despite the support of Jewish faith groups and Interfaith Scotland for the bill? Is it their view that the provisions should not be extended to include disability? Inclusion Scotland tells us that there are a million disabled people in Scotland today, and that there has been a steady increase in the number of reported hate crimes against disabled people in Scotland in recent years. Is it their view that the provisions should not be extended to include sexual orientation, transgender identity and variations in sex characteristics? The Equality Network tells us that
“Hate crime is part of the wider societal issue of marginalisation and it good to see that ... the Scottish Government recognises that tackling this problem needs to include both legislative and non-legislative solutions.”
An important aspect of the bill is the strengthening of protections for people who might be a victim of hate crime because of their association with others, perhaps as the partner of a disabled person; we all know of such issues from our casework.
The court has an important role in stating and recording offences and taking the aggravation into account, which will help statistically. That is a minor detail, but it has been alluded to.
I come to Mr Kerr’s point. The SPICe briefing tells us that
“The Bill includes specific provisions seeking to protect freedom of expression in relation to religion and sexual conduct or practices.”
Police Scotland tells us that
“The inclusion of a freedom of speech provision is to be welcomed ... The absence of such a clause could result in Police Scotland being burdened with vexatious reports of ‘crimes’”.
I am grateful to all the organisations that have provided submissions, including the Faculty of Advocates, which takes a slightly different approach. It says:
“The Scottish Government acknowledges the existence of concern about the impact on Article 10 ... which guarantees freedom of expression. The Faculty has reservations about the position of the Scottish Government that the proposed sections 11 and 12 meet those concerns.”
The faculty goes on to say:
“It is accordingly for the Government to justify any interference with freedom of expression under reference to Article 10(2).”
Very helpfully—someone with Mr Kerr’s legal background will appreciate this—the faculty points us in the direction of guidance that is set out by Lord Rodger. At paragraph 25 of its submission, the faculty asks:
“a) Is Article 10 engaged? b) If so, what is the basis for the interference under Article 10(2)? c) What is the ‘legitimate aim’ being pursued in restricting freedom of expression? d) Does that pass the test of necessity? e) Is the restriction proportionate to achieving the legitimate aim?”
Those are not the faculty’s sole concerns; there are others.
Where is the locus for airing, scrutinising and interrogating—I think that those were the terms that Mr Kerr used—those concerns? In a unicameral set-up such as ours, it is the committee. I have every confidence that the Justice Committee will look at the issues.
We know from past experience that deficiencies in legislation have always been highlighted in stage 1 reports and have always been responded to. If the Government does not lodge amendments, I assure members that I—and, I suspect, Mr Kerr—will do so. We know the competing interests that exist when we consider legislation. That is the case with the Defamation and Malicious Publications (Scotland) Bill, which is about balancing increased freedom of speech against the legal profession wanting to retain the position of people whose reputations might be damned. I have every confidence in our system of parliamentary scrutiny, and I hope that Mr Kerr eventually will, too.
I move amendment S5M-22636.2, to leave out from “notes” to end and insert:
“considers that the development of hate crime law in Scotland has been carried out in a piecemeal fashion, resulting in fragmented legislation; notes that calls have been made for the consolidation of hate crime law for more than a decade; believes that freedom of expression is a critically important human right, and that Article 10 of the European Convention on Human Rights (ECHR) protects it within the context of factors such as the prevention of crime and protecting the rights of others; recognises that stirring up racial hatred has been the basis of criminal offences since 1986 and is clearly compatible with ECHR; welcomes the Scottish Government’s commitment to examine the development of an offence on misogynistic harassment and looks forward to the working group on misogynistic harassment’s output on this matter, and commits to listen to all serious views on ways to improve the Hate Crime and Public Order (Scotland) Bill as part of the normal process of parliamentary scrutiny and to consider how best to ensure that all forms of hate crime are taken seriously.”
I, too, welcome today’s debate on the Government’s Hate Crime and Public Order (Scotland) Bill. I thank Liam Kerr for enabling it, although I regret the Tories’ last-minute decision to move to a position that is more intemperate and, I believe, wrong. However, I hope that the amendments to the motion reveal a growing acceptance that the bill needs urgent and, in places, radical surgery.
When we see debate in the political and social sphere being dragged to the extremes, when we consider the extent to which social media and the internet empower individuals and groups to reach ever-wider audiences with whatever hateful views they may hold and as we reflect on all forms of hate crime appearing to be on the increase, I think that it is fair to conclude that now is not a bad time to be checking whether our laws in this area are fit for purpose, not least in protecting the rights and freedoms that we hold to be most important. As BEMIS points out,
“Scotland is not immune to racism or prejudice”.
As legislators, we must tread with care. After all, without freedom of speech—what philosopher, John Milton described as
“the liberty to know, to utter, and to argue freely according to conscience”— our other fundamental freedoms are devalued and diminished.
Of course, freedom of speech is not and should not be an unfettered right; indeed, it would be irresponsible to act as if it were. Therefore, in the bill, as with so much else we do in Parliament, balances must be struck.
Hate Crime and Public Order (Scotland) Bill
. He 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.”
However committed I am to measures that robustly confront and tackle hate crime—and I most certainly am—I agree with Lord Justice Sedley.
I do not take issue with the need to update the law in relation to hate crime, nor the motivation of the Scottish Government in wanting to do so.
I agree with the sentiment that the member has expressed. However, does he also accept that freedom of speech does not include the protection of threatening or abusive behaviour, which the bill is explicitly aimed at? Article 10 of the ECHR clearly says that freedom of expression comes with “duties and responsibilities”.
That is a fair comment. However, we need to take seriously the concerns that have been expressed about the way that part 2 of the bill engages with those freedoms.
I will come on to the point about the timetable in a second. We cannot afford to make the moves that will be required to deal with part 2 through the stage 2 process. I welcome what I thought I heard the cabinet secretary say about introducing proposals ahead of our taking evidence at stage 1, so that we can test them as part of our scrutiny at stage 1.
The process has exposed the difficulties and risks, despite the best efforts of Lord Bracadale in laying the foundations for legislation that we want to see. Unfortunately, what has emerged since Lord Bracadale produced his report has not done justice to his efforts or, I believe, to the collective desire within and outwith the Parliament to update our laws in such a way as to provide legitimate and proportionate protections against the worst examples of hate crime.
Anything that manages to unite in common cause the Humanist Society of Scotland, the Catholic church, Police Scotland and the great and good of our arts and cultural community boasts impressive powers of cohesion. That is the claim that the justice secretary can now make of his bill. Indeed, the response to the Justice Committee’s call for evidence—some 2,000 submissions—lays bare the extent of the concerns felt by an impressively wide cross-section of stakeholders, many of whom made the same points in response to the Government’s earlier consultation.
The criticisms are largely focused on the impact that part 2 of the bill would have on freedom of expression. Few, if any, back the Tories’ calls for the bill to be ditched entirely. Indeed, I am not even sure that that position is backed by all those on the Tory benches who will speak in today’s debate.
How has the Government managed to antagonise so many so profoundly? It has done so by presenting to Parliament a bill that combines vagueness with mission creep. That bears uncomfortable echoes with what we saw at times with the now repealed Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012, in which the Government blundered into a complex area of law with an apparent lack of either care or understanding about the pitfalls and consequences. The intentions in the
Hate Crime and Public Order (Scotland) Bill are undoubtedly more laudable, but the outcome could be even worse.
The Law Society of Scotland has expressed alarm at the creation of “unduly wide” new offences that will “restrict freedom of expression” and that lack clarity or “policy justification”. Scottish PEN warns of a
“substantial expansion in the criminal law.”
.] No, thank you. In addition, the Scottish Police Federation has deep misgivings at the prospect of officers having to police speech.
Introducing stirring-up offences without any requirement to prove intent, unlike with similar laws elsewhere in the UK, risks creating a catch-all offence with the genuine potential to catch all. It is little wonder that artists, authors and journalists are so dismayed and warn that the bill risks “stifling freedom of expression”. They argue that
“The right to critique ideas, philosophical, religious and other must be protected to allow an artistic and democratic society to flourish.”
That theme is repeated by the Scottish Newspaper Society and the Humanist Society Scotland.
The justice secretary insists that he hears the concerns, and I believe him, but he must do more than that. I see him nodding. I think that I heard him commit earlier to come back to the Justice Committee before it begins its stage 1 oral evidence to set out his proposals in response to the objections. We need those proposals so that the committee can take evidence from witnesses—witnesses who have made plain what they consider must change and who expect changes to be made.
Yes, the Government could lodge amendments at stage 2, but by that point it will be too late to take the detailed evidence that we need. The matter is too important to shoehorn into a process that is already tight for time.
Unless we see substantive changes to part 2 in the coming weeks, the Scottish Liberal Democrats cannot support the bill. However, unlike the Tories, I believe that changes are possible—there are ways to provide more clarity of language and purpose, while removing the elements in part 2 that pose unnecessary risks. That would help to preserve the elements of the bill that are welcome and deserve to be passed into law.
In the recent words of one recent commentator: in an attempt to make bad people nicer, we should not risk making good people villains.
I move amendment S5M-22636.1, to leave out from second “believes” to end and insert:
“recognises the significant number of responses to the Justice Committee’s call for evidence on the Scottish Government’s proposed Hate Crime and Public Order (Scotland) Bill highlighting serious and substantial concerns in relation to its potential impact on free speech, and calls on the Scottish Government to set out the steps that it plans to take to address these concerns, specifically in relation to Part 2 of the Bill, in time for the Committee to hear evidence and give them due consideration.”
I welcome the opportunity to speak and to address the Conservative motion, which makes it clear that the Conservatives believe that hate crime should not be tolerated in a modern, inclusive nation like Scotland. That is agreed across the chamber.
The motion proposes working with stakeholders and organisations to draft alternative legislation. I am puzzled as to why that should be the route that we take. Why can we not make an immediate start by working with the Government to amend the existing bill?
The bill should be no different from any other. It should, and will, be subject to rigorous scrutiny and will be amended if there are concerns. This debate is the start of that process. I hope that it can be carried out in a respectful and meaningful way as we try to resolve some of the issues causing concern that we have heard about. We can do that only by working together, as the cabinet secretary has said, not by instigating sweeping measures to scrap the bill, as the Conservative motion calls for.
Figures show that the number of hate crimes is rising. Doing nothing cannot be an option in a modern and civilised nation such as Scotland. The bill will bring Scotland’s hate crime legislation into one statute, making the law easier to understand and more user friendly. It will implement the findings of the extensive and independent review of hate crime that was carried out by Lord Bracadale two years ago.
The final part of the Conservative motion asserts that the bill would “make free speech a crime”. I do not believe that that is the case. We will always be free to disagree. The bill does not seek to stifle rigorous debate or criticism or to inhibit freedom of expression, which is a human right. The bill does not say that an insult constitutes a hate crime.
Liam McArthur’s amendment calls on the Government to set out its plans to address concerns about free speech. I understand that the cabinet secretary has agreed to do that. We have heard concerns about the definition of stirring up hatred. The courts will decide whether someone has behaved in a threatening or abusive manner. That must be proved beyond reasonable doubt in court. If that definition requires improvement, that area can be focused on.
Does the member not see that there is an issue on that point? If she were a comedian, actor or some such person, would she not be concerned that the words that she spoke might result in her ending up in a court environment having to defend herself on issues that we are looking at in this debate?
T he point is that a court would take into account the context in which someone was accused of stirring up hatred. Comedians should not be inhibited in what they say and do—that has always been the way. The bill’s provisions would not affect that.
“stirring up racial hatred has been the basis of criminal offences since 1986 and is clearly compatible with” the European convention on human rights. The bill simply highlights that expressions of hate against people on the basis of religion, age, disability, race, religion, sexual orientation, transgender identity and variations of sex characteristics are simply not part of a tolerant society.
I will quote some experts and various stakeholders on the bill. The Equality Network says:
“We agree with those who say that it is important that these offences do not impinge on legitimate free speech ... the existing stirring up racial hatred offence has not done that and neither have, in England and Wales, the offences there of stirring up hatred on grounds of religion or sexual orientation.”
The Equality and Human Rights Commission Scotland welcomes
“the bill and the Scottish Government’s aim of ensuring Scotland’s hate crime legislation is fit for the 21st century.”
There are many more endorsements but, frankly, I do not have time to go through them, as I have just looked at the clock.
I am extremely pleased that the principle of a stand-alone offence of misogynistic harassment will be developed, which is widely supported by women’s equality groups. A working group will be established to take that forward and consider how the criminal justice system deals with misogyny, including whether there are gaps in the law that could be filled with a specific offence of misogynistic harassment.
Scotland is a place where there must be zero tolerance of hate crime—I think that we all agree on that. The bill, after consultation and negotiation, will aim to strike the right balance between respecting freedom of speech and tackling the scourge of hate speech.
Right now, while we are meeting in this chamber, in a courtroom in Paris 14 people are on trial over the deadly attack on the satirical magazine
. In January 2015, the world was shocked when 12 people were brutally shot dead in and around
’s Paris office. The attack followed the publication by the magazine of satirical cartoons of the Prophet Mohammed, which caused great offence in the Muslim world.
Following that horrific attack, there was an outbreak of mass solidarity, with millions of people across the world taking part in support marches. They—and we—were proud to display the slogan “Je suis Charlie” in defence of the principle of free speech. The French President, Emmanuel Macron, has been absolutely clear in his defence of the freedom of the press and, indeed, the freedom to blaspheme, which is linked to freedom of conscience.
Those incidents are relevant to us today in our consideration of the Scottish Government’s Hate Crime and Public Order (Scotland) Bill. I believe that there is much in the bill that is worthy of support. I have written for years about why I believe the blasphemy law in Scotland, which has fallen into disuse and was last prosecuted in Scotland in 1843, should be abolished. As a church-goer, it has always seemed to me bizarre that the power of the Christian message would require man-made laws to protect or defend it. However, there is a huge concern that part 2 of the bill would, in effect, try to reintroduce a blasphemy law under a different guise with its provision that it will be a criminal offence
“to stir up hatred against” a protected group, that being any group “defined by reference” to race, age, disability, religion, sexual orientation, transgender identity and variations in sex characteristics.
Crucially, for any prosecution to succeed, it would not be necessary to prove that there was an intent on the part of an accused person to stir up hatred; rather, it would be necessary only to prove that, having regard to all the circumstances, hatred in relation to a particular characteristic is “likely” to be stirred up thereby. That is where the real problem arises. [
.] I will not take an intervention at the moment.
Charlie Hebdo case is relevant to the bill.
Charlie Hebdo produced a series of satirical cartoons, which were offensive not just to those of the Muslim faith, as there were depictions of the father, son and holy ghost that were crude, appalling and likely to cause outrage among Christians. Many commentators have made the point that it is entirely conceivable that, if the
Charlie Hebdo magazine were to be published in Scotland once the proposed law came into force, it could face prosecution—and, undoubtedly, a police inquiry—for stirring up hatred against a protected group, namely, the followers of a particular religion. [
.] I will not take an intervention just now.
Indeed, under section 5(2), it would be an offence simply to be in possession of inflammatory material, so having in one’s home a copy of an offensive publication could lead to prosecution.
It would be a rich irony if, just five years on from us marching in solidarity with the
Charlie Hebdo victims and proudly proclaiming, “Je suis Charlie”, we introduced a law that could result in a prosecution in Scotland for publication of the same material.
I am listening carefully to what Murdo Fraser has to say. Why does he think that the racial stirring-up offence, which has largely the same thresholds—some argue that it has lower thresholds, because it includes the insulting threshold—has not caused the mass jailing of journalists or comedians over the course of 34 years? Why would extending protection to other protected characteristics do that?
The cabinet secretary will know that there are debates around other issues—gender, for example—that are likely to provoke responses that we do not see around racial issues. That is the difference.
There is a fundamental issue here of free speech. In any open, liberal and democratic society, citizens should have the right to discuss, criticize and refute ideas, beliefs and practices in robust terms. Some of that might lead to individuals being offended, but there should not be in law a right not to be offended.
I have grave concerns about what is now termed “cancel culture”, which is the attempt to close down debate and to silence those whose views are deemed unacceptable. [
.] Thank you, but I will not give way.
We see feminists such as Germaine Greer and J K Rowling becoming victims of a mob that is not prepared to permit debate, even when what they are saying is simply a biological fact on the question of gender.
Free speech is important, not least because society will advance only if it can openly discuss ideas. The views that we hold today in society on a range of issues—human rights, the rights of women, human sexuality, animal welfare and a host of other topics—would be regarded as outlandish, if not offensive, to those who lived 100 years ago. Societal change came about only because people were prepared to champion, and openly debate and discuss, what were, at first, heresies and ideas that caused offence at the time.
George Orwell famously wrote:
“If liberty means anything at all, it means the right to tell people what they do not want to hear.”
The freedom to hear only opinions with which we agree is no freedom at all. As parliamentarians, policy makers and leaders of public opinion, we must be prepared to defend the right to express unpopular opinions, whether we agree with them or not.
“Freedom of thought, articulated by one’s speech, is so fundamental to the civic and intellectual life of our nation that any attempt by the Government to restrict that freedom has to be robustly opposed.”
He is right, and a host of other voices—those of academics, writers, comedians, faith groups and human rights campaigners—agree with him.
For all those reasons, the Scottish Government needs to think again when it comes to this bill. If “Je suis Charlie” meant anything more than empty words, we should support the motion in Liam Kerr’s name.
We can all agree that there is no room in 21st century Scotland for prejudice, hatred, discrimination or bigotry. Like my colleague Rona Mackay, I am a wee bit puzzled by the Tory motion, because it comes at the issue from the wrong angle.
I know that individual Tories are very much committed to tackling prejudice, but I cannot help but question their position when they lodge a motion that seeks to take the bill out, which no other party is recommending. I cannot say that I am not puzzled by that.
We can all acknowledge that there are concerns regarding the bill. However, following due parliamentary process will enable us to debate those. As a member of the Justice Committee, which will examine the bill, I am looking forward to hearing and scrutinising the evidence that will come before us. I assure my constituents who have been in touch with me, and also my colleagues from across the chamber, that I will work to make changes to the proposals where there are concerns. I will also help to deliver legislation that the whole Parliament can have faith in—legislation that is strong and will help to prevent members of our society from being subjected to hate based on their race, disability, gender, religion or sexual orientation.
I thank all those who have made the great number of submissions to the Justice Committee that we have heard about. Meeting stakeholders at stage 1 will allow the committee to understand their concerns better and to seek common ground. It is clear that the creation of a new offence of stirring up hatred is proving to be the most controversial aspect of the bill. However, as other members have said earlier in the debate, long-standing offences on stirring up racial hatred have operated effectively in Scotland since the mid-1980s, and England and Wales have equivalent laws.
I do not believe that the bill is an attack on free speech. As we have heard, even with the bill in place, it would still be acceptable to express controversial, challenging or even offensive views as long as that was not done in a threatening or abusive way that was intended or likely to stir up hatred. A high bar would have to be reached before conduct would be criminalised. However, as Patrick Harvie mentioned, with our right to free speech comes responsibility. In order to protect that powerful right we must also allow the passing of specific laws to ensure that it is used responsibly. As most speakers have already said, none of us should seek to politicise the subject; instead, all members of the Parliament should come together to make the legislation workable and as good as it can be.
I cannot begin to imagine the physical and mental distress that victims of hate crime have to go through—many on a regular basis—on which we heard the cabinet secretary’s own powerful testimony in his opening remarks. We must show that crimes that are motivated by hatred will not be endured in our modern Scotland.
However, sadly, research shows that such crime—particularly racial crime—is on the rise. Such behaviour is not the norm and should never be accepted as such. By updating our existing laws and ensuring that they are made more cohesive, by combining them in one statute, the bill would send a clear message to society that hate will not be tolerated. Whatever deficiencies might be in the bill, surely all of us can agree on that.
Although it is important to consider and take into account the submissions that raise concerns about the bill—I reiterate that there were a lot of them, and I say well done to the Justice Committee’s clerks for bringing them together—we must also be mindful that the bill is supported by a large number of stakeholders, many of whom support vulnerable groups day in, day out. They include the Equality and Human Rights Commission, YouthLink Scotland and Age Scotland, to name but a few. The Equality Network has also welcomed the bill: it does not believe that it infringes the right of free speech, and it asserts that existing offences on the stirring up of racial hatred have not done so.
Victim Support Scotland has made the important point that the bill now makes hate crime and its impact visible and that passing it would form part of a zero-tolerance approach. I take this opportunity to wish that organisation a happy 35th birthday, which it celebrated recently. I also thank members who supported my motion on that subject, which reflected the fact that the organisation was born in Coatbridge in my constituency.
Many racial equality organisations—including BEMIS Scotland, which was mentioned earlier in the debate—say that killing the bill would be a retrograde step, but they have raised concerns. The Coalition for Racial Equality and Rights has stated that the bill would send a clear message regarding what society finds to be intolerable attitudes and beliefs, and would provide consistency across the legislation. Such organisations are working day in, day out to tackle prejudice, so we should listen to what they say. The parliamentary process will allow us to do that.
The Scottish Conservatives’ motion does not seem to be in line with what every other member who has spoken in the debate has said. Is the bill perfect? No—we all agree on that, and the cabinet secretary has said as much. I guarantee to my colleagues and constituents that I will work to improve it. Let us hope that if their motion is defeated tonight, the Tories will respect that result and will do all that they can to improve the bill through the parliamentary process and will not spend that time trying to wreck it or undermine it.
Let me be clear from the outset that hate crime must be tackled and that, along with my Scottish Labour colleagues, I am supportive of the overall principles that are contained in the Hate Crime and Public Order (Scotland) Bill. Minority and protected groups have been facing growing attacks year on year and it is right that we say loudly and clearly today that an attack based on someone’s race, religion, sexuality, disability or gender identity is unacceptable and abhorrent.
It is an important step in tackling hate crime that we consolidate hate crime legislation into one single act of Parliament. However, as it stands, the bill is far from ready for enactment in this Parliament. With that in mind, I must say that the Scottish Conservatives’ proposal to scrap the bill is unwarranted. It is up to this Parliament to amend and improve legislation. The Scottish Conservatives must engage properly with the parliamentary procedures to amend and scrutinise the bill and the Scottish Government must listen to and work with stakeholders who share the concerns of many regarding part 2 of the bill.
As with any legislation of this scope, there must be a balance—in this instance, a very careful balance—with regard to safeguarding protected groups from hatred, abuse and discrimination while also safeguarding the right to freedom of speech. Sadly, as currently drafted, the bill is unbalanced. However, it should not be confined to the bin just yet.
I understand the support that the bill has received from organisations such as BEMIS, Victim Support Scotland, Stonewall Scotland and the Equality Network. I want to see a modern, effective and single piece of legislation that protects people from hatred. The modernising of the language around protected groups and the addition of age as a characteristic are welcome. I support those additions, as well as the overall principles of the bill, and I support those changes, as do a variety of equality organisations, yet those changes are not what this debate is about.
Negatively impacting the right to free speech is a line that no democratic government should cross. Part 2 of the bill appears to create more problems than it tries to solve. Criticisms are vast and wide ranging, and critics must be listened to. Academics, the Scottish Police Federation and the Law Society of Scotland are just some of the voices highlighting the problems with part 2. The bill also unites religious, humanist and secular groups in opposition to it.
There are many groups and individuals with whom I share concerns. However, there are also a small minority of views that I cannot agree with. I do not believe the bill to be “sinister” or “illegal”, as some have suggested to me. It is simply open to misinterpretation. No bill that is going through this Parliament should be open to misinterpretation. We have already seen that happen with the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012. I do not want to see a repeat of that, but I fear that we may be seeing that. The Scottish Police Federation has warned that the bill would force officers to police
“what people think or feel”.
Police officers were routinely criticised for enforcing the 2012 act. We must not place them in a similar situation now.
In closing, I repeat Scottish Labour’s call that the Parliament must use its procedures to effectively scrutinise and amend the bill. Our amendment is justified, and it is considered.
In my time as an MSP for West Scotland and throughout my working life, I have stood up and campaigned for equality and social justice. If the bill progresses, as my time in the Parliament comes to an end, I want to ensure that one of my last votes will be to enact legislation that protects people effectively from hatred based on who they are or what they believe, and which does not impede legitimate freedom of speech.
While doing everything that we can to ensure that Scotland is a place where there is zero tolerance of hate crime, we must strike the right balance in respecting, protecting and upholding all rights, including the right to free speech. That is not an easy or simple task, but the bill provides us with the opportunity to do that by consolidating, modernising and extending hate crime legislation in Scotland.
Given the complex problems and contentious issues and challenges, it is helpful to start with principles and areas of agreement. I do not think that any member would disagree with the statement that hate crime is a blight on our society that requires a criminal justice response. Crimes that are driven by hatred and prejudice have deep social consequences, causing physical and psychological damage not just to the victim of the crime but to the group to which the victim belongs and to our wider community as a whole.
For example, when disabled people do not feel that they can go out at all, or when they avoid places such as town centres, leisure facilities or public transport, that seriously impacts on their physical and mental health and wellbeing and, in turn, on our wider community, as their talents and contributions are missed.
I agree that freedom of expression is a cornerstone of democracy and that we should not be complacent about its protection. Freedom of expression is protected by article 10 of the ECHR. As John Finnie said, that freedom
“carries with it duties and responsibilities”, and it can legitimately
“be subject to ... conditions, restrictions or penalties ... in the interests of”, among other things, public safety and the prevention of disorder or crime.
A number of my constituents have raised concerns about freedom of expression, particularly in relation to their faith. I understand their anxiety, as there are those who consider themselves to be progressive and inclusive yet who appear to be entirely intolerant of those with different faith and beliefs. Nevertheless, with regard to the stirring-up provisions, I agree with the Humanist Society Scotland, which says that charges for stirring up that were brought under the bill as it is currently drafted would not take into consideration intention. Consequently, behaviour that should be protected under the right to free expression could unintentionally be criminalised, which could seriously hinder important discourse about emotive subjects such as religion, race and sexual identity, halting progress and stifling free expression.
In order to progress as a country, we must have that discourse. At present, women who are campaigning to uphold their sex-based rights are routinely accused of hate and told that their words are violence. As the bill progresses, they will require reassurance that their right to organise, gather, speak and campaign will not be criminalised.
Sex-based hate is excluded from the bill. I appreciate the complexity and differing views around how best to approach misogyny from a criminal justice perspective, and I welcome the Scottish Government’s commitment to the principle of developing a stand-alone offence of misogynistic harassment. However, it would be reassuring for women if the cabinet secretary could say, in his closing speech, when the group will begin its work and who will be on it. How long will female victims need to wait for that?
“The priority for the Scottish Government at this time is to respond to the Covid-19 pandemic, therefore the work to establish the working group is currently paused.”—[
, 27 August 2020; S5W-31270.]
Does that not make my case that very important issues are being postponed, which we need to get back to dealing with here and now?
Human rights are not a hierarchy. They can and do come into conflict, and it does no one—let alone those who are at risk or vulnerable—any favours if we try to pretend otherwise. When and where that happens, we, as parliamentarians, have a duty to do the difficult and sometimes uncomfortable work to ensure that we have legislation that protects all our citizens and upholds rights. Our parliamentary process is the place for that to happen. I do not accept that the large number of responses to the Justice Committee’s consultation is a sign that we should abandon that work. To do so would be a dereliction of duty. It is quite the opposite: the volume of interest and engagement is an indication of the importance of the bill, cross-party committee working and the bill process. All members of all parties need to put their shoulder to the wheel and do the work that we are sent here by our communities to do.
Last year, when this Parliament marked its 20th anniversary, several political commentators focused on how well they felt that the Parliament had functioned in its short life. Generally, but by no means universally, it was a good report, but l remember one particularly interesting debate between journalists and academics about whether the institution had delivered good law.
In jurisprudence, good law is the concept that decrees that a legal decision is both valid and able to hold legal weight, and not one that has to be overturned or is rendered obsolete. Good law is the basis for effective policy making and, as such, it requires certain fundamental principles: a clarity of purpose; to be understood in simple language; t o be strong in its evidence base; to be workable; and to be accepted by the public. In short, it should balance the requirement for simplicity with legal precision. Those are surely the criteria by which we should be judging the Hate Crime and Public Order (Scotland) Bill. l ask members to cast their minds back to 2013, when the Children and Young People (Scotland) Bill was presented to Parliament. The bill was generally popular because it was doing so many good things—for example, in relation to kinship care, by improving children’s services and in introducing a presumption against the closure of rural schools. At its core, the bill’s central principle was getting it right for every child, which was a concept with which no parliamentarian or right-thinking member of the public could possibly disagree. However, the bill, which later became an act, had one central problem: the named person policy. Whatever people think about the named person policy—whether it was right or wrong—the real problem was that it was not workable. At the time, stakeholders told us, very forcibly, that it would not be workable. Teachers, people in the health service, the Law Society of Scotland and advocates all told us that it would not work.
The legislation was passed, and, after six whole years and at great expense in civil service time and taxpayers’ money, it was proven that the named person policy was not workable. In fact, it had to be struck down by not only the people who had said that it would not be workable but—due to one legal principle—by the Supreme Court, which ruled that it was against article 8 of the ECHR. That was a very specific point that was made by the Supreme Court, which otherwise said that the proposal to have a named person was benign. However, the proposal turned out not to be workable. [
.] I will not take an intervention, if the member does not mind.
I draw members’ attention to the comparison between the named person proposals and the Hate Crime and Public Order (Scotland) Bill. The bill will not do what it says on the tin.
Despite all the good intentions, part 2 is illiberal, intrusive and deeply flawed. It is not intended to be that way, but, because of the way in which it is structured and the language that is used, it is open to misinterpretation, just as was the case with some aspects of the Children and Young People (Scotland) Bill. Just like the named person policy, the bill is deeply unpopular with the public because they can see those glaring flaws all too clearly. Just as with the named person policy, the legal responsibilities are confused and unclear. Just as with the named person policy, the Scottish Government does not appear to be listening to the legal advice, the police or the many stakeholders who feel that it will be an intrusion into privacy and personal choice as well as against free speech.
Those things all matter desperately, because, if we proceed with the bill as it is, we will be making bad law, and it is bad law that we cannot accept. That is why we, on the Conservative benches, would like the bill to be withdrawn and to start again, so that we are fully listening to what the vast majority of stakeholders are saying.
We need to have something that is not only good law but that is workable and accepted by the public. That is the key thing, and that is the message that the Scottish Government needs to take to its heart very quickly. I support the motion in the name of Liam Kerr.
Thank you for the opportunity to speak on this subject, Presiding Officer.
From a Christian perspective, we have a lot in the Bible about God’s love for us, and it says that we should reflect that by loving each other. Ultimately, that requires our hearts and attitudes to change on the inside, but I believe that we as a Parliament and as parliamentarians have a duty at least to restrain hatred in society, even if we cannot actually force anyone to love their enemy.
Loving each other does not mean that we are expected to agree with each other all the time, but God does want us to love each other, and that means that we should want the best for the other person. That certainly includes, for example, Catholics and Protestants, who believe 95 per cent of the same things as each other. They are two parts of the one Christian faith. Jesus prayed that his followers would all be one, but sadly we have not always seen that.
For me, one of the saddest aspects of modern Scotland is the continuing level of sectarian hatred, especially in Glasgow and the west of Scotland. We see a considerable level of hatred around Rangers and Celtic football matches, as well as connected to the many orange or loyalist and similar marches and the smaller number of Irish republican marches. Some of those appear to me to be attempting to stir up hatred against Catholics, the Irish and other communities.
Sectarianism is a mixture of religion, race, history, politics and culture. I am comfortable enough that the bill does not use the word “sectarianism” but deals with the characteristics of race and religion separately rather than together. However, this is a real and present-day area of hatred in our society and we need to tackle it.
I find it slightly disappointing that some Christian organisations seem to be more concerned about vague potential threats to their own rights somewhere in the future than about helping to tackle expressions of actual hatred that we are seeing in our society today.
Having said that, it seems to me that much of the bill is more about consolidating the existing law and does not change things very much. As has been said, phrases such as “stirring up” have been in the law since at least 1986 and they do not seem to have caused a problem.
I think that having to prove intent to stir up hatred is far too high a bar, but the Law Society of Scotland has suggested a possible improvement that involves the use of words such as “significant risk”, and that would seem to be a positive way forward.
I agree with the proposed abolition of the offence of blasphemy. The church and the state should be separate, in my opinion. They should each have respect for the other and they should not seek to interfere in each other’s affairs.
Looking specifically at the Conservatives’ motion, I struggle to see what they actually want. They say that
“hate crimes are a blight on society”, but also that
“freedom of expression ... must never be compromised”.
Surely that is self-contradictory. At some time, there has to be compromise on freedom of expression. Surely they are not saying that it is acceptable for someone to stand up in our public square, state how much they hate black people, Jews, Muslims, Catholics or Gypsy Travellers and demand that those people be removed from our country, or something worse than that. That is freedom of expression taken to an extreme, and it must surely be curtailed.
Other countries have made denying the Holocaust a crime. We have not gone that far, but the point is that we have to draw a line somewhere between, on the one hand, protecting freedom of expression and, on the other, restricting expressions of hatred that go too far.
In sections 11 and 12, the bill specifically protects freedom of expression, so Patrick Harvie and I can continue to debate who should or should not have sex with whom. We can discuss and criticise each other’s ideas even though we strongly disagree with each other. That is a sign of a healthy society and a healthy democracy. What we must not do is seek to have the other and their views removed from the public square.
There has to be compromise on both sides of the issue. We need to protect freedom of expression, but we need to protect our vulnerable minorities. That is what the bill tries to do and the cabinet secretary has repeatedly said that he is open to improvements and amendments, so I am left to wonder what the Conservatives actually want. How do they envisage this
“legislation that is needed to tackle hate crime in Scotland”?
I do not have time to take any interventions, sorry.
Is it legislation that allows anyone to say anything? We need to hear more detail of what they actually want.
I believe that we have to tackle some of the extreme hatred that we see in our society today and that we also need to protect freedom of expression. The bill makes a fair attempt to get the balance right; therefore, I am more than happy to see it progress, because its removal would send a signal that hatred is acceptable in modern society.
We are well under way in this Parliament with stage 1 scrutiny of an important piece of legislation that seeks to both protect and limit free speech. That legislation is the Defamation and Malicious Publication (Scotland) Bill, which poses a question that it is not at all easy to get right: to what extent should we protect the freedom to speak in such a way as damages another’s reputation?
Freedom of expression is a monumentally important value, but it is not the only one that we need to hold dear and cherish. The right to privacy is likewise core to our sense of human dignity.
The law of defamation deals with one aspect of what happens when those two fundamental values clash. Where does my right to free speech end and where does your right to protect your reputation begin?
I have not long been a member of the Parliament’s Justice Committee, but since I became its convener last month, I have been hugely impressed—if I can say this without embarrassing them—with the way in which the committee members have been going about their job of scrutinising the
Defamation and Malicious Publication (Scotland) Bill
. Their questioning of witnesses has been forensic, diligent, informed and has been designed throughout to shine light on the issues that the bill raises, rather than to generate heat about them.
I say all that for reasons that I hope are obvious. As with the
Defamation and Malicious Publication (Scotland) Bill
, the Hate Crime and Public Order (Scotland) Bill raises extremely sensitive questions about where and how the Parliament wants to set the limits on freedom of expression.
The Justice Committee will commence its stage 1 scrutiny of the Hate Crime and Public Order (Scotland) Bill after the October recess, once we have completed our work on the defamation bill. I hope that the committee and indeed the whole Parliament will consider and debate the issues of free speech in that bill in exactly the same spirit as we are doing with the defamation bill. Let us be forensic, diligent and informed and try to shine light on the issues rather than simply turn up political heat. I will certainly take that approach on the Hate Crime and Public Order (Scotland) Bill.
I want to make two further points. The first is a general one about how we should legislate on rights. Rights should be broadly and generously construed and limitations on the exercise of our rights should be narrowly and tightly construed. The burden of the argument always rests on those who wish to curtail rights and the test is one of necessity.
Unless and until it can be shown that it is necessary to restrict our fundamental liberties, that restriction should not be enacted. The Human Rights Act 1998 and the European convention on human rights demand that approach, and that is the one that we, as responsible lawmakers, should take to the Hate Crime and Public Order (Scotland) Bill.
That leads me to my final point. If we fail to adopt that approach of putting rights first and insisting that any curtailment of our rights is as narrowly confined as possible, we will find that our legislation on hate crimes suffers the same fate as the previous Parliament’s legislation on named persons and offensive behaviour at football. The named persons law was killed off in the courts and this Parliament reversed and repealed the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012.
Let that not be the legacy that we bequeath to our successors. Should the Hate Crime and Public Order (Scotland) Bill fail to give sufficient protection to the fundamental right of freedom of expression, it will fail in the end—either being quashed in the courts or repealed by a more enlightened Parliament in the future. We can do better than that and get it right the first time.
Let us learn the lessons of named persons and offensive behaviour at football, and let us bring to the Hate Crime and Public Order (Scotland) Bill the same open-minded but clear-headed, robust and forensic scrutiny that we are already bringing to the Defamation and Malicious Publication (Scotland) Bill. That way, we can do what we have all been sent here to do—make good laws for the people of Scotland.
As a member of the Justice Committee, I am pleased to be able to take part in this debate on the
Hate Crime and Public Order (Scotland) Bill.
It is important to remember the origins of the bill: it is a response to the recommendations that were made in Lord Bracadale’s “Independent Review of Hate Crime Legislation in Scotland”. The Scottish Government consulted the public on Lord Bracadale’s recommendations. It is worth noting that, at that point, none of the concerns that are being raised today were raised—in particular, they were not raised by Conservative members. I wonder why that is.
“He makes 22 recommendations, many of which the Scottish Conservatives are pleased to endorse”, and that he agreed absolutely that
“‘All Scottish hate crime legislation should be consolidated.’”
He also said that
“many crimes currently fall into the category of hate crime and there are some overlaps—but there are also some gaps.”—[
, 7 June 2018; c 63.]
We have gone from a position of fairly broad consensus to where we are in this debate, and that puzzles me, somewhat. The Conservatives are, in effect, calling for the scrapping of the bill, which is a very great a pity.
I do not agree with that. If Conservative members had concerns, they should have been expressed at the beginning of the process. They seem to have suddenly developed concerns. I wonder whether that is not more of a reaction to some of the publicity around the bill, and whether it has seemed somewhat convenient to jump on that bandwagon.
Having said that, I say in a spirit of consensus—there has been a large degree of consensus in the debate—that there are problems with the bill. No one is saying otherwise, and it has been acknowledged not least by the Scottish Government. It has engaged extensively with more than 45 organisations, and it has said that it will pay close attention to the responses to the Justice Committee’s call for evidence.
That is how legislation has always been dealt with in the Parliament. There is nothing new or different about the bill. Many bills have gone through a process of quite extensive revision. That is what we are here to do, is it not? That is what the Justice Committee is here to do.
The Scottish Government has said that it will reflect on whether changes to the bill are required and that it wants to
“seek common ground and compromise” to ensure that effective legislation can be agreed that protects those who are affected by hate crime. Given that, why would it be necessary to remove the bill? Are we not able to do that work collectively and make the bill one that we can all agree with? I think that we should do that, because there is enough collective expertise in the Parliament to do it.
I agree with the sentiments that Shona Robison has laid out. Does she agree that it would be helpful for the committee if those changes were laid out before we embark on oral evidence at stage 1, so that we can test the proposals to destruction, along with what is already in the bill?
I think that the Cabinet Secretary for Justice has said all along that he is very prepared to engage with the committee at all the bill’s stages. It is in no one’s interests not to try to build consensus on the bill. However, we must remember that at the heart of the matter is a debate about hate crime. The cabinet secretary reminded us that hate crime is on the rise and that there is an expectation outside Parliament that we do something about that.
That is the responsibility that we carry and we need to remind ourselves, when we get into some of the technical detail of the bill, that what lies behind it is people suffering from hate crime day in and day out, here in Scotland.
What should we do, going forward? We should do what happens with any piece of legislation in this Parliament. Our job as legislators and parliamentarians is to get on with scrutinising the detail and to listen to all sides of the debate—not just to the voices that happen to be louder than others. We need to listen to all the voices in the debate—not least, those of people who are at the receiving end of hate crime, here in Scotland.
I end with the comment that was made by Kate Wallace of Victim Support Scotland, who said:
“If this bill is scrapped and is not allowed to proceed through Parliament, it may be years before victims of hate crime have another chance to be given the protection that they deserve.”
We cannot allow that to happen. That would be us failing in our duty as legislators and parliamentarians. Therefore, I speak in favour of Humza Yousaf’s amendment.
I welcome the opportunity to contribute to the debate. The bill is clearly contentious, and we should acknowledge that serious people have looked at it and have serious concerns. I am pleased that the cabinet secretary resisted the temptation to focus simply on parliamentary concerns and to suggest that those are motivated entirely by party-political considerations—perhaps Shona Robison did not get the memo. It is important that he did not go to the comfort zone of supporting the bill by saying that people who are raising concerns should be delegitimised. The reality is that the concerns go way beyond Parliament and are not so easily dismissed.
I urge the cabinet secretary to resist the people who are framing the debate on the bill as a false binary by saying that people who oppose the bill oppose equality and support hate crime. If the bill falls, it would not be beyond the wit of Parliament to produce another piece of legislation that would address the concerns of Victim Support Scotland. To create that false binary closes down the debate on some very significant issues and insults many people who are committed to a fairer society, but are concerned about the unintended consequences that might well result from the bill.
I trust that the Scottish Government will, during scrutiny of the bill, allow its back benchers to follow the evidence and to recognise that the role of the Opposition is to be challenging. There is no shame in getting a proposal wrong, but there is shame in digging in when problems are highlighted, as we saw so clearly in the past, with the way in which the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 was dealt with.
In this Parliament, we have a long history of passing legislation to “send a message” or “give a signal”. That is not good enough. We should recognise the damage that is done if rights appear to exist but are not enforceable. Legislation might be one part of changing lives, but a bill on its own will never be a substitute for education and investment in community organisations and support that can challenge attitudes, create community safety and allow people to live free from fear, while supporting people to have their voices heard. Sadly, many of the organisations at local level that support the victims of hate crime are disappearing. I ask the cabinet secretary to consider the budget choices that have led to that problem.
I note the argument about the exclusion of misogyny from the bill. As someone observed, if it was in the bill the courts would be overrun. However, that quip is underpinned by a fundamental truth: here and across the world, women continue to experience violence and the denial of their rights to education, employment and far more. We would be deluding ourselves if we were to believe that a working group or an amendment to the bill at stage 2 will address the continuing inequality that women face in all aspects of their lives.
The concerns around the bill about stirring up hatred are in the real world and in real time. I shall give one example. Women MSPs from across the parties gathered in Parliament to host meetings to discuss the implication for women’s sex-based rights—as enshrined in the Equality Act 2010—of proposals to reform the Gender Recognition Act 2004. I was proud to be involved in that. Those meetings were conducted inclusively and with the greatest civility, thoughtfulness and respect.
“used as a platform for transphobic hatred and bigotry”.
Being lectured by a man is not unusual for a woman of my age, but in those circumstances a fellow MSP sat as judge and jury on our actions. I presume that his perception of our actions would, under the bill, be sufficient for their investigation—and people wonder why the stirring up hatred provisions create anxiety, and why women feel silenced in the face of potential court action. It is not good enough to say that those women would be able to make their case in court.
I fear that Johann Lamont has listened to the people who lodged spurious complaints accusing me of inciting violence against lesbians, when I made that speech at the Pride Edinburgh event. There are absurd arguments on both sides of the debate. Let us dismiss all of them and listen only to those who bring sensible arguments to bear, not those who make such spurious allegations.
It was not just a spurious allegation to be accused of “transphobic hatred and bigotry”. If this bill was an act, I might have been facing a charge in that regard.
The fact is that the matter is not so simple. When does legitimate debate, disagreement and robust exchange of views become hatred? It cannot be sufficient to assume that there is a commonsense view that is self-evident. The law must be precise, if we are not to see the very engine of change—the ability to debate and argue—being silenced.
Yes—the bill has problems. There are huge things that need to be addressed. The main message that we should understand is that addressing hate crime in our community is about far more than passing a bill. It is about ensuring that support exists in our community for the people who live with such things daily.
I would not say that I am delighted to speak in this debate, but I am fortunate to speak in it. I have listened carefully to all the contributions, which have covered a fair amount. On the whole, it has been a pretty good debate. No matter what political party we belong to, I genuinely believe that we all agree that legislation needs to be brought together to reflect the kind of Scotland that we all want to live in: one that is free from hatred, bigotry, discrimination and prejudice.
Many of my fellow MSPs have quoted various agencies that have said that they are supportive of the bill. Various organisations and individuals whole-heartedly agree with the measures being proposed, such as Inclusion Scotland, which kindly prepared a briefing—I think that all members got it—laying out the stark reality for people who have been victims of hate crime. It stated:
“Hate speech is not free speech. It has consequences for people who share the characteristics subjected to it.
It impacts on their health and wellbeing and their human rights, including being able to go about their daily life to participate in society safely, without fear of intimidation or harassment, in the same way as everyone else.”
I do not believe that anybody here can argue with that statement.
I do, however, have great sympathy with those individuals and groups who fear that, as it stands, the bill does not provide clarity in certain areas. I have had many constituents email and write to me to raise concerns, as I am sure that other members have. It is my duty as an MSP and my constituents’ representative to raise those concerns in the Parliament today. I will read you some of the views that they have sent me. One said:
“Although the bill is probably well intentioned, I believe in its current format it is flawed. According to this bill, one could easily be accused of stirring up hatred with absolutely no intention of doing so.”
“I have no doubt that the legislation is well intentioned, but its attempt to criminalise the use of words that could be deemed abusive and likely to stir up hatred would have a chilling effect on free speech.”
I take on board what John Finnie has said, and I am sure that my constituents who are listening to the debate or who have written to me will also take what he has said on board.
I have genuine concerns about the bill. I have listened to what has been said and asked questions of various ministers. My concern is about who defines stirring up or intention. I have a lot of problems with that particular issue. I know that other members have also mentioned the fact that it would be a judge and the matter would go to court. However, nobody has said what would happen to somebody who is accused of that offence but is innocent. It is not a matter that is over in a couple of days; it can take months.
Those are my concerns, as well as those that I have read out from my constituents. I thank the cabinet secretary for listening to the concerns that have been raised by every party and by me, particularly about the intention to stir up hatred and respecting freedom of speech. It is mentioned in the Government’s amendment, which
“recognises that there are concerns about aspects of the Bill, including in relation to the stirring up of hatred offence provisions, which will benefit from further engagement with stakeholders and Parliamentary scrutiny”.
That is a pretty honest statement, and I look forward to that parliamentary scrutiny, during which issues that my constituents have raised and questions that I have asked can be put to the test in the committee and Parliament.
We are at the early stages of the proposed legislation. I believe that the Scottish Government genuinely wants to work with the other parties to find consensus to provide robust legislation that protects us against hate crime. We all need to come together to ensure that we produce legislation that is fit for purpose. There is one thing that we should not do—we should not ditch the bill.
As a former journalist I am extremely alarmed by the bill. My view is that, as the Scottish Newspaper Society says, it
“poses a serious threat to freedom of expression.”
Parts of the bill are fine. The section removing the blasphemy offence from the statute book is sensible, but the overall direction of travel in the bill is troubling.
Let us be clear: hatred is wrong and hate crime is wrong. However, we cannot legislate for what people feel or think. We can legislate for their actions, their spoken or written words and their deeds. We cannot take away the fundamental right to express our opinions, even if it offends some people.
I believe that we should be free to say and write pretty much what we like and be dealt with by the law if we defame someone or stir up hatred. People have prejudices; it is part of being human. We like some people; we dislike others. Some people are to your liking and others are not. Sometimes, we might tell someone what we think of them. The right to insult people and to be insulted is surely something to hold on to but, under the bill, a really good insult could see someone jailed.
Under the section 3, “Offences of stirring up hatred”, the bill says:
“A person commits an offence if—
(a) the person—
(i) behaves in a threatening, abusive or insulting manner, or
(ii) communicates threatening, abusive or insulting material to another person”.
We could safely shut down the comedy sector in that case, because I am afraid there is no such thing as woke comedy and, if there was, I would not like to see it.
The bill is an attack on what people can say and what they can write. It is an attack on free speech, and that is sinister. We are in danger of heading towards an Orwellian state in which everyone has to think the same. As Murdo Fraser said, we saw that recently with the attacks on J K Rowling just for daring to express her view on gender issues. Well, good for her. That is why I believe that the bill should be scrapped and the Government should go back to the drawing board.
Humza Yousaf has achieved the extraordinary. He has managed to get lawyers, judges, the police, journalists, actors, writers and even the broadcasters of the First Minister’s daily party-political sermon, BBC Scotland, against the bill. He has produced a deeply illiberal bill, using woolly words such as “abusive”, “inflammatory” and “insulting” which, as the Media Lawyers Association points out, are open to wide and subjective interpretation.
When I worked in newspapers, everything that I wrote was, rightly, subject to legal restrictions. The Scottish Newspaper Society gives an example of how the bill could be used. The society refers to a column written about 10 years ago by Jan Moir in the
, which referred to the death of Boyzone singer, Stephen Gately. The Press Complaints Commission rejected 25,000 complaints on the basis of freedom of expression. Miss Moir’s views that day were undoubtedly offensive, but they should not have resulted in her being hauled before the courts, as could be the result of the bill before us.
I agree with the Scottish Newspaper Society when it says:
“Only with absolute exemptions can legitimate journalism escape the scope of this legislation and even then there are no guarantees. Even if absolute exemptions created loopholes, we believe they would not outweigh blocking a legal route to close down controversial or unpopular opinions.”
I agree that the bill represents a clear threat to the freedom of the press. Newspapers should be free to publish without fear or favour. Columnists have to be free to offend, and editors have to be free to upset people, especially politicians, to get things wrong and to publish headlines—you would not do this now—such as
’s “Hop Off You Frogs” in a row with the French over British lamb.
It is time to call a halt to the bill and go back to the drawing board. I support the motion in Liam Kerr’s name.
Before we move on to the closing speeches, I should remind members that I said earlier that it would be necessary to move decision time, as the debate was oversubscribed. I would therefore like to take a motion without notice, under rule 11.2.4, to move decision time today to 5.30 pm.
That, under Rule 11.2.4 of Standing Orders, Decision Time on Wednesday 9 September be taken at 5.30 pm.—[
Motion agreed to.
Thank you. We now move to the closing speeches, starting with Willie Rennie.
The professor—Adam Tomkins—set us the test. He said that, unless and until necessity is proven, rights should not be curtailed. For most of the afternoon, we have been considering that point seriously. Actually, it has been quite an enlightening debate. It could have been divisive, but I think that it has brought the chamber together in many ways.
The issue is not really about the proposition to scrap the bill altogether, which, I suspect, was mostly for headlines. I think that there is now a consensus on amending the bill, which is a good thing.
BEMIS summed up the position well when it said that we should not be complacent and that
“Scotland is not immune to racism or prejudice.”
It should be clear that, if anybody wants to indulge in hateful speech to incite those things, they should not draw comfort from this debate. There are no excuses in Scotland for such activity: those people should stop it, and they should know that the Parliament is united against it.
“free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative”— and he was not talking about Mike Rumbles by himself. Lord Justice Sedley continued:
“Freedom only to speak inoffensively is not worth having.”
Liam McArthur summed up the issue well when he said that,
“in an attempt to make bad people nicer”, we should not make good people criminals. That sets the context for the debate.
I must give the cabinet secretary credit, as I think that he deserves it. He has come to the chamber today accepting that his bill might not be perfect and that people have “legitimate concerns”, as he said. He is right to acknowledge that, as there have been 2,000 submissions on the bill—a humongous number of people have made submissions. If, as been said, the bill can unite the humanists with the church and comedians with the Faculty of Advocates and the Scottish Police Federation, the Parliament must sit up, pay attention and acknowledge that the bill might not be right and that we might need to seek to change it.
Humza Yousaf said that the bill represents a simple transfer to hate crime of a provision that has been in law in relation to the issue of race for some time. However, we heard that a number of organisations have deep concerns about how that transfer is happening, so we need to scrutinise that in much greater detail. Although it is right to try to consolidate all the various pieces of legislation in regards to hate, something is obviously concerning a considerable number of people.
Murdo Fraser made a good and considered speech. He contrasted proving intent with proving the likelihood to stir up hate. That contrast is another thing at the heart of this debate that we need to consider seriously. John Mason, in an intervention, highlighted that there are possible ways of dealing with the issue, and talked about using the term “significant risk” instead of the terminology in the bill, and that might be something that the committee needs to consider.
Rhoda Grant talked about the possibility that using loose or vague language might be result in the law catching more than just hate crime. Again, that was a good contribution and a point that needs to be considered. The Law Society has said that the provisions are unduly wide with regard to the consideration of new offences, potentially restrict freedom of expression and lack clarity and policy justification. Those are specific concerns that we should address. Further, Scottish PEN said that the bill represents a substantial expansion in the criminal law. Therefore, it seems that this is not a tidying-up exercise and is more a major change in the law.
The debate is about the way forward. I do not think that Liz Smith was right: the fact that we got it wrong on the named person legislation does not mean that we will get it wrong on every other law. We can get it right—we can actually use the committee process to improve bills. I do not think that, because we got it wrong on something that could be seen as being similar, we are going to get it wrong on the bill as well.
My point was that one of the reasons why we got the named persons legislation wrong was that we did not listen to the advice that we were given at the time. I am advising that, this time, we listen properly to the advice, so that we do not make bad law.
I absolutely agree with that, but that does not mean that we have to scrap the whole bill.
I think that we can use the committee process to improve it. I do not think that the proposal to dump the bill would be a constructive way ahead, because it would be years, not months, before we returned to the issue. The bill has been years in the making, through the Lord Bracadale process. Are we going to wait even more time in order to try to get it right?
John Mason and Sandra White gave me some inspiration, because they made suggestions about how to improve the bill. They had an open mind about changing the bill to make it better. We should take encouragement from the fact that the misogyny provisions might come forward in a standalone proposition and offence.
Our party supports changing part 2 substantially, and we want that to be done before stage 1 concludes, because such a major change to the bill would require substantial scrutiny before we go forward to the other stages. It cannot be shoehorned into stage 2. My final plea to the cabinet secretary is that he address that in his summing up.
The Conservative position today is clearly contradictory. Liam Kerr talks about the volume of submissions that have been made on the bill and says that they deserve proper scrutiny, while Douglas Ross has been quoted as saying that he wants the bill to be scrapped “once and for all”, which would not give us the opportunity to take any of the submissions seriously. Further, of course, that comes from a party leader who is notorious for having said that, if he were Prime Minister for a day, getting tough on Gypsy Travellers would be his top priority. Let us just recognise where some of these arguments are coming from.
I do not have much interest in hearing Murdo Fraser’s concerns about others being silenced when, just this week, he has been questioning the funding of pro-equality organisations in Scotland—the same organisations that have campaigned for my human rights and equality, which he has consistently voted against, pretty much every time those matters have come up in the chamber. I have no more interest in hearing that argument than I do in having a debate with John Mason about whom consenting adults should or should not have sex with. That is not my business; nor is it John Mason’s—and thank goodness for that.
The Labour position goes slightly too far. The Labour amendment says that “substantial revision” is necessary for the bill to be “fit for purpose”. There is scope for constructive amendments to the bill, but I contrast that with the position taken by James Kelly when he was Labour’s justice spokesperson. He said that the bill was an “attack on free speech” and that it was more of a threat than a benefit to society. He also promoted absurd
Daily Mail claims that a US religious right lobbyist was a United Nations human rights expert commenting on the bill. I am glad that today some Labour members took a different position in their speeches, including Mary Fee, whose excellent speech struck the right, nuanced approach that we should all bear in mind.
Of course, there are areas in which the bill can be improved, of which the issue of misogynistic harassment is an obvious example. For many years, as Rhoda Grant and Liam Kerr acknowledged, there has been a wide range of views about misogynistic harassment or misogyny as aggravated grounds in relation to other offences—indeed, there are other approaches. For many years, the range of views, including those from the women’s and feminist movement in Scotland, has been broad, but that has not prevented us from legislating with consensus on hate crime. If we are now moving towards a consensus, with those organisations supporting a standalone offence, I welcome that, but killing off the bill would close down the opportunity that we have to debate that.
The language in the stirring-up offence has been subject to a lot of debate—members including Liz Smith mentioned that issue. Some members suggest that the language in the stirring-up offence is new but, as my colleague John Finnie made clear, it is not new; it is decades old. If we are going to use as a model legislation that clearly works, has not been overused or misused and is ECHR compliant, I think that we are on broadly safe ground. We can look at varying how the wording is set out and at caveats that might be debated, but it is not reasonable to suggest that the wording is a radical departure from what we have already been doing for decades.
The point that came from almost every speaker and certainly from every political party was a general statement to the effect that we all take hate crime seriously and we all want to tackle and challenge it. We also need to recognise and acknowledge that that consensus is not universal. There are people who perpetrate racism, misogyny, religious hatred, homophobia and transphobia. Those phenomena are real and there are organisations that actively seek to propagate them.
It has been said that some of this is open to misinterpretation; perhaps it is, but perhaps some of that is wilful misinterpretation. In relation to Johann Lamont’s comments, if we are concerned with freedom of speech and someone—who has already been excluded from social media platforms for hateful conduct—is called out for transphobia, both parties have exercised their freedom of speech. As others have said, freedom of speech is a democratic cornerstone, but is it absolute? No—it never has been. In any case, article 10 of the ECHR protections will still be there. I do not expect this to happen, but if we pass the bill—or something like it—and it is found in future to breach the ECHR, it can be struck down, because this Parliament has the protection, which Westminster does not, that we cannot pass legislation that is unlawful. I hope that we would not have a Government that sought to introduce legislation that was unlawful, even if in only a specific and limited way. I remind colleagues that it is the UK Government—not the Scottish Government or the Scottish Parliament—that, in the past week, has been subject to a level 2 alert on press freedom.
This has been a long story, from pre-devolution legislation to the sectarianism work in session 1; the working group on hate crime in session 2; my bill on aggravated offences in session 3; the Offensive Behaviour at Football and Threatening Communication (Scotland) Act 2012 in session 4, which was rushed and not subject to consultation and which left a cluttered and fragmented landscape even more cluttered and fragmented; and, finally, the Bracadale review in session 5, which did the consolidation work that is now more than a decade overdue. It is important that we take forward that scrutiny.
The bill is overdue already. Douglas Ross might want to kill it off for shallow, partisan reasons, but we should not. I support the amendment in my colleague John Finnie’s name.
Despite the difficulties with the bill, the debate has been fairly positive. There is consensus in the chamber that our country is no place for hate, and we should work towards being an inclusive and welcoming nation to all races, religions, genders, sexualities and abilities.
Prejudice has no place in 21st century Scotland, and we all need to work together to play our part and to educate current and future generations on why it is wrong to discriminate. The Labour Party has always been at the forefront of making our country a more equal place, and we will continue to support measures that highlight inequality and tackle discrimination in all forms.
However, although we are in agreement that there is no place for hate in society, the bill in its current form is not fit for purpose. We welcome the commitment to consolidate hate crime offences but, in our view, part 2 of the bill will require substantial revision before being acceptable. I hope that the Government and the cabinet secretary will take on board the many concerns, some of which I will highlight.
We support the principle of the bill, but we urge the Government to get back to the table and involve all the stakeholders that have raised concerns, in order to fix the many problems that have come to light during the passage of the bill so far.
Although we want the bill to deal robustly with legitimate hate crime, it must protect the right to free speech that we enjoy; that has been highlighted by a considerable number of members and in the submissions received following the call for views on the bill.
“It is currently inconsistent, with less protection for some groups of people who face hate crime than others, and in places, the language and definitions are outdated.”
Bringing together the various offences and updating the language into a modern working piece of legislation must be welcomed. The bill should not have become so controversial and, had the Government listened to the many stakeholders who expressed deep concerns, we might not be in the position that we are in today.
The problematic areas in the bill are casting a shadow over the good elements that it contains and that, in turn, is creating confusion around the commitment to tackle hate crime, with which I am sure we all agree. For example, the Law Society of Scotland has raised concerns about the new offences that the bill will create. It stated:
“These provisions seem unduly wide without any specification provided as to the actual type of offending conduct that is intended to be criminalised. Criminal law must have certainty about the offending conduct it prohibits and intends to sanction by way of penalties. That is because the effect of a criminal conviction regarding any individual’s life such as career and plans to travel may be significant.”
The Scottish Police Federation said:
“We are concerned the Bill seeks to criminalise the mere likelihood of ‘stirring up hatred’ by creating an offence of threatening, abusive or insulting behaviour, such offence to include both speech and conduct. This complicates the law and is in our opinion, too vague to be implemented.”
The National Secular Society has simply called the new law on stirring up hatred “unnecessary.” I urge the Government to listen to all the views that are being expressed on the bill and to be open to making amendments so that the legislation can be considered fit for purpose and achieve support across the country. The useful parts of the bill that have support from most organisations should not be lost as a result of the poorly worded and poorly conceived elements.
I hope that the bill, once amended, can achieve the support that a bill on tackling hate crime deserves. However, that will not happen unless the Government makes considerable changes and helps to alleviate the genuine concerns that are being raised. I also pick up on a point that Liam McArthur made, and ask the cabinet secretary to consider when he will propose the changes so that the committee can consider them.
I close by quoting from the Equality Network briefing, which I think sums up the position fittingly. It states:
“Now is the time for MSPs of all parties, who agree that hate crime needs to be addressed, to use the process of debating and amending this bill, so that we end up with an act that deals with the blight of hate crime while preserving our freedom of speech. Freedom, and protection from hate crime, are not opposites; they can and should go hand in hand.”
With the spirit that is in the chamber today, I hope that that is what we can achieve.
When I learned that Opposition business today would be on hate crime, I was afraid that there would be more heat than light, and I am pleased that those fears were unfounded. It has been a very good and illuminating debate, during which we have discussed some very lofty principles of legal jurisprudence—inspired by Liz Smith—and some very important philosophical principles, raised by a number of members across the chamber. That is right during such debates.
My other concern when I heard that the debate would be on hate crime was that there would be a lot of division. Again, I am pleased to say that those fears were unfounded; there has been a huge degree of consensus. Members can challenge me if they think that I am wrong, but there are some areas on which I feel that there is consensus. One of those is that, by and large, we agree with the need for hate crime legislation to protect those who are often the target of hate. Therefore, we agree generally with the principles of the bill.
We all agree that challenges and concerns have been expressed about the bill, most of which focus on the stirring-up offences; however, that is not exclusively the case, therefore there is an onus on the Government to express and articulate what it can do to try to mitigate some of those fears. Although there may not be unanimity, I think that there is general consensus that the Government should come forward and articulate the areas on which it is prepared to compromise, and that it should do so before the committee takes oral evidence. I am happy to give that commitment.
Again, there is general consensus—but not unanimity, because the Conservatives are not quite in this space—that we should absolutely not withdraw the bill and that ultimately we have faith in ourselves as parliamentarians and legislators to work through those difficult challenges and stakeholder contributions, and to come out at the end of that with a bill that will protect both the cornerstone of democracy that is freedom of speech and people’s right not to be the target of hatred. The two are not mutually exclusive.
The cabinet secretary touched on a point that I was going to touch on, which was to point out—as he will be aware from his time as Minister for Transport and the Islands—how important religion is to many of my constituents. Can he give an assurance that the bill, in its final form, can and will protect people from hatred and also protect their rights to hold and express differing religious views?
I can give a categorical assurance. Alasdair Allan is right. The last time that I was in his constituency, he and I travelled to the first mosque to be built on a Scottish island. I know the importance of the many religions that are practised on our islands. I am a person of faith.
Nobody should be criminalised for their religious beliefs. That is why the tests for the stirring-up offences in the bill are very high. The behaviour or communication must be threatening or abusive. That does not apply to the racial stirring-up offence, which has been around since 1986, but it applies to the other offences that we intend to create. The behaviour must be threatening or abusive and must have the intention or likelihood of stirring up hatred.
That brings me to the idea of likelihood. A number of members have raised concerns about the “likely” threshold. Stakeholders, too, have raised concerns about that. It is not unique in the United Kingdom. Although Liam McArthur suggested that it is not used in the UK at all, the threshold is used in Northern Ireland, where, if my memory serves, there are stirring-up offences in connection with race, religion, sexual orientation and disability.
I recognise that there are concerns about the threshold for “stirring up”. John Mason pointed out that it can be challenging for a court to prove someone’s intent. I give a clear indication: I will reflect on that area and see whether I can provide some assurances.
I am working on that at pace. I have had a number of discussions with stakeholders. I will do that as soon as I can and before the committee takes oral evidence. I promise the member that I will do that.
It is also important to give some assurance regarding the points made by Ruth Maguire, Johann Lamont and others about the issues raised by a potential sex aggravator. We use the term “sex aggravator” because that aligns with the Equality Act 2010. There were strong representations from national women’s organisations, for which I have great respect, and from some local feminist organisations and groups that work with women. They held the view that the best way to address the issue of misogynistic harassment was not through an aggravator or a summing-up offence but through a standalone offence.
I say to Johann Lamont and Ruth Maguire that simply to express a view that some people may find offensive or insulting would not meet the threshold for prosecution. To meet the test for a stirring-up offence, behaviour would have to be threatening or abusive and would also have to have the intent or likelihood to stir up hatred. The behaviour would have to meet both those tests. All of us have engaged in robust debate during our time in Parliament. Most of us would recognise whether our behaviour was threatening or abusive, or if it had the intent or likelihood of stirring up hatred. I give Johann Lamont and Ruth Maguire, and the others who have raised that point, a clear assurance that I will reflect further on that issue.
I am almost out of time. We have had an excellent debate. I say to the Conservatives that it is barely three months since we stood here, united, and rededicated ourselves against racism and prejudice. It is important that we do not withdraw the bill. I believe in our ability to scrutinise the bill, to amend it where necessary and to bring forward a piece of legislation that will protect freedom of speech and also protect those who are often the targets of hatred.
I refer members to my entry in the register of members’ interests, which notes that I am a member of the Faculty of Advocates.
The phrase “freedom of expression” is used the world over. Like many well-worn phrases, it perhaps suffers from overuse, with its meaning sometimes being lost. Freedom of expression is something that we all support but do not often debate. What does it mean? I would say this, but in my view the best exposition is a legal one and is found in article 10 of the European convention on human rights, which says this:
“Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.”
It is not an unlimited right—Patrick Harvie was right to say that—because, like many fundamental rights, it is qualified and there are circumstances in which the state can impose restrictions. In short, there is a balance to be struck between allowing free expression and constraining it at certain moments. However, the right’s purity as both a guiding principle in any democracy and an essential liberty that we all enjoy is paramount. It is a human right in the original, basic sense of those words and a fundamental freedom to be cherished by every human being. Given that, we have to be cautious and careful about legislating in that area, as it is difficult territory.
In recent years, there have been a number of public protests in Scotland that illustrate those difficulties, whereby the conduct of protesters might have been abusive or threatening and intended or likely to stir up hatred. For example, we have seen banners at the border saying “ENGLAND get out of Scotland” and banners at independence marches saying “Tory Scum Out”. The former example could, arguably, be caught by the bill, given that it is related to race. However, the latter example would not be caught because, as I would be the first to accept, the bill does not seek to criminalise conduct by reference to political opinion. I, for one, would defend to my dying day the right of those people to carry that banner without threat of criminal sanction, notwithstanding the offensive message that it contains to someone of my political persuasion. However, they are examples that reveal not just the importance of freedom of expression but the complexities of the legislation when it is applied to real life. The problems of enforcement that they would bring make it clear that we are sailing close to the wind here.
The strength of feeling about the bill is palpable, and we have heard criticisms of it from many. The free to disagree campaign has conducted opinion polling on the bill and says that over two thirds of Scots agreed that, for a criminal offence to be committed, there must be a proven intention to stir up hatred, which is a point that I will return to shortly. As others have noticed, there are widespread concerns among many in civic society about the impact of the bill. The Faculty of Advocates, a body whose detailed response on the bill I commend—I note that John Finnie quoted from it—has warned that the bill will restrict freedom of expression and might cause the invasion of privacy and domestic life. The Scottish Police Federation has said that the bill could affect the legitimacy of the police in the eyes of the public. That is a stark comment. Those are not anxieties from the fringe and they are not minor worries; they are serious, legitimate, credible concerns posed by many in society.
As others have said, there are some parts of the bill that are not objectionable. The bill attempts to consolidate the plethora of hate crime offences into one act and seeks to abolish the common law of blasphemy, which are sensible measures. However, the issues in part 2 of the bill are many and, in our view, are fatal to the bill’s prospects. They fail the test of being simple and clear; they are, instead, vague and confusing.
Forgive me for veering into some of the more technical legal issues, the first of which is that the offence can be committed by intention but also if it is likely that hatred can be stirred up. In other words, it is an offence that can be committed without the requisite mens rea: the mental element that the criminal law usually requires. That is not terminal, because Scots criminal law contains several offences that have no mental element. However, given the absence of the statutory defence that the 1986 act contains, it is a concerning omission. Both Willie Rennie and Murdo Fraser made that point, and I note the cabinet secretary’s commitment in that regard. [
.] I am sorry, but I am already limited in my time.
Secondly, there is the fact that stirring up hatred in terms of race includes the word “insulting” but stirring up hatred in terms of other characteristics does not include it. The bill must be consistent; that is one of the Bracadale review recommendations that, I regret, the Government has ignored.
Thirdly, the reasonableness defence reverses the burden of proof, which is a significant step in terms of the criminal law because the onus is placed, albeit partially, on the accused to prove that they acted reasonably. As others have said, that is inappropriate.
Fourthly, the references to freedom of expression in sections 11 and 12 are insufficient. Why are only two protected characteristics—sexual orientation and religion—singled out? Why does the Faculty of Advocates say:
“The current wording does not appear to afford any significant protection”?
I take entirely at face value the Scottish Government’s motivation behind the bill. I have read carefully what the Cabinet Secretary for Justice has said and written about his own experiences, and I acknowledge that, above and beyond his personal experiences, he rightly sees hate crime as a blight that exists across wider society—as do we all.
Willie Rennie said that hate is poisonous and that hate crime is pernicious and intolerable and causes deep harm to its victims and the wider communities that are indirectly affected.
I have never doubted the sincerity with which Humza Yousaf has pursued the issue, and I have never questioned his commitment to wanting to eradicate hate crime from Scotland. It is in that spirit that members on the Conservative benches make the appeal for the Scottish Government to reconsider at this stage, before we enter the mechanics of parliamentary process, which, as Liam Kerr pointed out, might be rushed and affected by a number of external factors. It might simply be that the time left before dissolution is inadequate.
We appeal to the cabinet secretary to pause, draw breath and pull back from the brink, because, as drafted, the bill goes too far. It is, undoubtedly, an attack on free speech. The bill is too broken to fix. Public confidence in it is critical, and a damaging narrative has built up around it that, sadly, has obscured the good intentions behind it. Ultimately, the bill has lost the confidence of the public, which is why we must start again.