Hate Crime and Public Order (Scotland) Bill

– in the Scottish Parliament on 16th September 2020.

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Photo of Christine Grahame Christine Grahame Scottish National Party

4. To ask the Scottish Government, in light of concerns regarding the term “likely” in relation to hatred being stirred up in section 3 of the Hate Crime and Public Order (Scotland) Bill, whether it is reviewing that phrase. (S5O-04584)

Photo of Humza Yousaf Humza Yousaf Scottish National Party

Christine Grahame will have heard last week’s very good debate. I thought that the tone of the debate, across the chamber, was good. Before the debate, I promised to listen to all the stakeholders involved, including those who are critical of the bill and who want to see the bill amended. Those people are being listened to and will continue to be listened to.

I am looking at all sections of the bill and I can confirm that I am of course looking at the stirring-up offences, which include the “likely” threshold in regard to the stirring up of hatred. That is one area that is being explored. I hope to come to the Parliament with an update shortly.

Photo of Christine Grahame Christine Grahame Scottish National Party

The cabinet secretary is right to say that there is broad support across the chamber for the principles of the bill. However, that phrase causes concern. Will the cabinet secretary consider the essential requirement for, or ingredient in a crime, which is intent, or mens rea? In my view, “likely to” does not meet that test.

Photo of Humza Yousaf Humza Yousaf Scottish National Party

I am listening carefully to the comments that have been made about the stirring-up offence. If I may make a counter-argument, we have had a racial stirring offence for almost 35 years. The threshold for that offence is behaviour that is threatening or abusive or insulting—there is that additional threshold—but it is based on not only intent, but the potential for or likelihood of stirring up hatred.

That law has operated in Scotland for nearly 35 years with almost no controversy. We can look to that example. The protection that we hope to provide for other vulnerable groups with other protected characteristics is broadly based on the racial stirring-up offence. It is not a mirror, but it is based on that.

Notwithstanding all that I have said, I am exploring that area. The Liberal Democrats in particular pushed me on that and I have committed to come to the Parliament well in advance of the Justice Committee taking oral evidence. I will do that, and I will look closely at that issue.

Photo of Liam Kerr Liam Kerr Conservative

I agree with the cabinet secretary that we had a good debate last week. Following revelations at the weekend that the Hate Crime and Public Order (Scotland) Bill has received the largest number of written responses in the history of devolution, and that the Justice Committee was not aware of that when it agreed its timetable for the bill, does the cabinet secretary now consider that it would be sensible to rethink the approach to the stirring-up part of the bill? That would ensure that the other parts could be sufficiently scrutinised and legislated on to tackle the pernicious hate crime that we all wish to address.

Photo of Humza Yousaf Humza Yousaf Scottish National Party

I thank Liam Kerr for the tone of his question. I understand his arguments about timing. I hope that he will understand the counter-argument, which was best articulated by Victim Support Scotland. If we delay the bill beyond this parliamentary term, those who need its protections the most—at a time when the atmosphere for minority groups can be febrile and hostile—will wait even longer.

My commitment is to come to the Parliament as soon as I can, and before the oral evidence stage at the Justice Committee, with some proposed changes. It is for the Parliament to decide the timetable for the bill. I am beholden to the Parliament.

The first part of Liam Kerr’s question was about this being the most controversial bill, and about the 2,000-plus submissions on the bill. It is not my job to avoid criticism; my job is to make decisions that can be extremely difficult and to ensure that we have legislation that is both effective and protects people’s rights. I go back to the quote by the American author Elbert Hubbard:

“To avoid criticism, do nothing, say nothing and be nothing.”

Our job is not to avoid criticism. Our primary aim as legislators is to pass good legislation that protects people and also protects their freedom of speech.

Photo of Liam McArthur Liam McArthur Liberal Democrat

I thank the justice secretary for that confirmation that he has responded to my call in last week’s debate for him to come forward ahead of the Justice Committee’s stage 1 oral evidence with proposed changes to the Hate Crime and Public Order (Scotland) Bill, and particularly to part 2 of the bill.

The cabinet secretary has referred on a couple of occasions to coming to the Parliament as soon as possible. When and how does he intend to come back to the Parliament with those proposals?

Photo of Humza Yousaf Humza Yousaf Scottish National Party

Those are decisions for the Parliamentary Bureau to take. I suggest that the correct approach would be for me to make another ministerial statement. That would give as many members as possible the opportunity to ask questions and to scrutinise what I propose. If the Justice Committee wished me to come to the committee thereafter, I would be more than happy to do that.

I would have to speak to the business team, who would speak to the Parliamentary Bureau, and get agreement from parties across the chamber. I intend to do that as soon as I can, to give the Justice Committee as much time as possible in advance of its taking oral evidence.