– in the Scottish Parliament on 10th March 2021.
The next item is stage 3 proceedings on the Hate Crime and Public Order (Scotland) Bill. In dealing with the amendments, members should have with them the bill as amended at stage 2, the marshalled list and the groupings of amendments. I remind members that I will sound the division bell for the first division and proceedings will be suspended for five minutes for the first vote of the afternoon. The period of voting for each division will be one minute. Members who wish to speak in a debate on any group should press their request-to-speak button as soon as I call that group.
The Presiding Officer:
Group 1 is on characteristic of sex. Amendment 4, in the name of Johann Lamont, is grouped with amendments 17, 21 and 26.
I have issued a detailed letter to all MSPs, outlining the thinking behind all my amendments, and I trust that colleagues have found that useful. I place on record my thanks to all those groups and organisations, women, and colleagues in the Parliament who have given me support in producing my amendments, and I hope that members will reflect on them positively.
We are dealing with a contentious piece of legislation, and I am happy to participate in debates in a serious way that, I trust, matches the seriousness of the challenges across our communities, which are confronted by hate, hostility, aggression and inequality. I am content to recognise that not everyone will agree with me, and that I shall be persuasive to some and not to others. What I shall not be is hateful—and I do not think that that is the motivation of anyone in this chamber.
Why am I arguing for my amendments? One view, of course, is that I am driven by transphobia—an accusation that has been levelled at some women MSPs, in the past, by fellow MSPs. Patrick Harvie MSP confirmed such a view last week, in a reaction to a Twitter comment about my speech last week on international women’s day in which I sought to highlight the suffering, discrimination and violence that women suffer globally because of their sex. Patrick Harvie agreed with a comment that I had displayed
“a vicious bit of transphobia” and added,
“I’m sorry to say we can expect more of that when it comes to stage 3 of the Hate Crime Bill.”
Perhaps we should forgive Patrick Harvie for letting his sense of male entitlement show. However, to foreshadow a debate in the Parliament by ascribing the motive of hatred to me or to any others who want to participate in the debate but who have the audacity to disagree with him, frankly, says a great deal more about his lack of self-awareness than about how we make good law.
I would defend to the death Patrick Harvie’s right to make those comments about me, but we should remember that the challenge in this Parliament is to have a serious debate about the impact on our communities. Of course, it is easier to silence people for being full of hatred than it is to address their concerns.
The cabinet secretary has said that there is a very high bar to reach before anyone can be accused of threatening or abusive behaviour, but the truth of the matter is that Patrick Harvie regards what I said in the international women’s day debate about the discrimination that women face because of their sex as reaching that bar. Would it not be an irony if I were to become the subject of a report, on the basis of what I said in a debate about the hate crime bill’s provisions? That must trouble anyone who wants a serious discussion across our communities about what hatred means.
I am here to speak up for my constituents and for women with whom I have worked for many years, who understand the scale of hatred and violence that women face and have no well-funded lobbying groups to press the case to the Government on their behalf. Lobbying has been an issue in this Parliament—my colleague Neil Findlay has highlighted that—but most people have to put their hands in their own pockets if they want to lobby and push their case.
When it comes to this bill, however, the truth is that the key lobbyist, to whom the Scottish Government has responded at every turn, and who has not stood with women or argued for women to be included in the bill, has operated at the expense of the public purse. The organisation has argued against women being included in the bill without actually speaking to the women who fund it through their taxes.
I have been patronised by many people over the years. We learn to live with that, but it has been taken to new levels by organisations that speak of equality and the needs of women but never think to test their views against the women in our communities.
Let me move on to the specifics of the amendments in my name and for which I seek support. I want to include sex as an aggravator and to define “sex” in the terms of the Equality Act 2010. The proposals are simple. They are supported by Lord Bracadale, who described the omission of sex as a lost opportunity. They are supported by many, many women and by men who stand with them. At heart, the proposition is very simple. If the bill sends a message about the unacceptability of hate crime and offers protections to potential victims of hate crime, as it should do, we might reasonably expect that the group that suffers most as a consequence of hatred—women—would be included.
Hatred of women is so commonplace that it is barely remarked on. A cursory glance at the news any day of the week will show it, not lurking but clear and brutal. Today, we saw a report that shows that the scale of the abuse of women across the world is massive and has not changed over time. Women being murdered by men who have gone on the rampage is upsetting but it is never a surprise. Men do these things; we know it. We see the tragedy and know that behind it is an angry man and a terrorised woman and her family. We see it in domestic abuse. We see it in crimes of sexual abuse. We see it in routine behaviour that means that, for women, whether we are walking or running in a park or going to work, anxiety about male violence is our constant companion, from our youth.
When we ask, out loud, the commonsense question of why women, who understand hate crime more than any other group does, are excluded, it is clear that there is no answer that can make sense of the decision. We are told that the issue is complex—so is the bill. We are told that men are manipulative. We have no doubt that there are men who will manipulate any provision in the bill, including those that relate to other protected characteristics that are identified in the bill.
Huge issues arise for women, but we are content to outsource our thinking to a working group, rather than wrestle with the issues of principle here in the Parliament. We have been given no evidence of the scale of the problem that has been identified by the people who want the working group to consider it. I do not doubt that the working group can do very significant work, but the principle of whether women should be a protected group should be decided here, because it means that when we campaign and have a national push to discuss hate crime, women will be at the centre of the discussion and will not be ignored.
I will finish on these points. I believe that the case for including women is undisputable, but if members are not persuaded, I urge them to at least support amendment 17, which provides the definition of “sex” as outlined in the Equality Act 2010. The cabinet secretary said clearly that the sex aggravator should align with the provision in the 2010 act. Even if people accept the outsourcing of work on that huge decision to a working group, with no evidence of why, it is essential that the Parliament defines the work of the group. The amendment makes clear what the definitions of “men” and “women” are. If members think that those definitions are wrong or are up for debate, say so, and we can have that debate. It should not be for the working group that is being asked to look at the sex aggravator to come back with a new definition of “sex” and new definitions of “men” and “women”. Those are big decisions that should be taken by the Parliament.
I trust that members will support my amendments, so that women, who are at the front line of crime that is driven by hatred, are included. As Tim Hopkins of the Equality Network said,
“it is important that people can see themselves in the bill.”—[
Official Report, Justice Committee,
17 November 2020; c 22.]
Well, women are people, too, and they should be seen in the bill and should be included.
I move amendment 4.
I will speak to the amendments in Johann Lamont’s name in group 1, and I thank Johann Lamont for lodging them so that we can debate what I and many women regard as a very serious omission from the bill.
Sex is a characteristic that matters when it comes to understanding levels of violence, which is why hundreds of women have written to me and pleaded for the inclusion of sex as an aggravator in law. Many women constituents are not prepared to wait three years for a working group, and I wonder why the Scottish Government is so convinced of that route in the midst of daily reports of male violence against women.
According to the World Health Organization, one in three women have faced physical or sexual violence in their life. That is why we have 16 days of action for women and girls who face human trafficking, female genital mutilation, rape, murder, forced prostitution and sexual intimate partner violence. The Parliament has involvement in 16 days of action to amplify the voices of women.
I wonder why Scotland is not leading on the issue. Women are regularly the target of offending behaviour based on hostility towards their sex, and it is now well established that women in public life face much higher levels of online abuse than men, which has consequences for their participation. The proposal to add age to the hate crime protected characteristics leaves sex as the main characteristic that would not be protected but is included in the 2010 act. It is a glaring omission and I do not understand why the Scottish Government is asking women to wait for three years. The longer the law is unchanged, the more the message is reinforced that this is not something that is a priority for the Parliament, and it perhaps reinforces fears that women have.
If it was the committee’s view and Lord Bracadale’s view—and, as I have said, the view of hundreds of women—that sex as an aggravator should be included in the hate crime bill, why is that not good enough? I do not understand that, either. Why is Lord Bracadale not good enough but Helena Kennedy and the working group are? It does not make any sense to me to that one legal opinion is rejected as the one that is not wanted. That concerns me deeply.
I have two questions for the cabinet secretary. It would be helpful to know what kind of new law he thinks would include a standalone crime of misogynistic harassment. What would that look like and how would it differ from domestic violence and all the violent crimes that I have outlined? I am genuinely struggling to see what such a crime would look like, since women are already the victims of a range of crimes.
Why can the Scottish Government not put sex as an aggravator in the bill, but still have a working group three years later? If the argument is that if the working group thinks that it should go in the legislation, the Government will include it at that point, surely it could put it in now. If Helena Kennedy takes a different view, we could then change the law. I urge the Parliament to think seriously about omitting sex as an aggravator in a bill about hate crime.
The bill is one of the last pieces of legislation to be dealt with in this parliamentary session, and I urge members to seriously consider voting in favour of the amendments in this group.
A YouGov poll for UN Women UK that was published this week found that nearly every young woman in the United Kingdom had suffered sexual harassment. Claire Barnett, executive director of UN Women UK, pointed out that it is a human rights issue. As Ms Barnett said,
“It’s just not enough for us to keep saying, ‘this is too difficult a problem for us to solve’—it needs addressing now”.
It does need to be addressed now, and that is why putting off the issue until the next parliamentary session is not convincing. That is why I will vote against the Government whip to support Johann Lamont’s amendments on the issue today. Initially, I did not take that view, because I understand that the proposed sex aggravator is gender neutral. I preferred the idea of an offence of misogyny, or even a female sex aggravator, which was never on the cards—although, given that the hate crime protections in the bill extend to characteristics that do not exist in the Equality Act 2010, perhaps there is really no reason why that could not be the case.
I became convinced that the scale of the sexist violence that women experience at male hands, including the two women a week who are killed by men in the UK, meant that it would be bizarre to exclude them from at least part 1 of the bill. The thing that finally turned me to my current position was the Government’s decision to expand the definition of transgender identity to include cross-dressers who are not trans identified. That is not the definition of gender reassignment in the Equality Act 2010. It will seem bizarre to many people that men who enjoy cross-dressing are protected from hate crime, but women are not.
When we last debated violence against women last November, several members, including ministers, praised the femicide census, which documents the killing of 1,425 women by men in the UK last year, yet we seem to be saying that femicide is not hate. I know that a sex aggravator would protect men, but that is already the case under the 2010 act. In the 2010 act, sex is the characteristic, but it mainly protects women. In the bill, as in the 2010 act, the protected characteristics of race and sexual orientation also protect straight people and white people but would be applied most often in crimes against gay people and black people, who face the most oppression. Therefore, why not also include sex, which would protect women more than men?
A number of official women’s organisations, which have been mentioned by Johann Lamont and which work closely with and are funded by central Government, have backed the decision not to include a sex aggravator. However, as the ForWomen Scotland briefing points out, none of those organisations did any research, even in their own networks, before getting to that position. Those organisations suggest that men could weaponise hate crime in domestic violence cases, but our domestic violence laws are already gender neutral.
Members should be aware that there is a reason why funded organisations take such a view. In the past few years, a major ideological schism has opened up in feminist thought, which has its roots in university gender and so-called queer studies courses, in which it is argued that gender is a personal choice and that sex is an identity. That view is taken by the leadership of most Government-funded organisations. However, it is increasingly being challenged by a growing number of grass-roots feminist movements, which argue that gender roles are oppressive and that women face discrimination, violence and subjugation due to the sex that they were born.
The debate is polarised, but it is dynamic and changing. Only yesterday, one of the grass-roots feminist groups succeeded in a legal challenge to the UK census, which will force the Office for National Statistics to collect only sex at birth and legal sex information in the census. Just two years ago, when my committee took evidence on that issue for our census, the public authorities and some of those funded women’s organisations told us that it was not possible to do so.
Those organisations also opposed Johann Lamont’s amendment 28 to the Forensic Medical Services (Victims of Sexual Offences) (Scotland) Bill, which ensured that rape victims were able to choose the sex, not just the gender, of their medical examiner. Make no mistake—such positions are as ideological as they are absurd and they have nothing to do with protecting women. I am therefore proud to support Johann Lamont’s amendments today.
I will make a short intervention in support of the amendments in group 1 that have been lodged by Johann Lamont.
Over the past few weeks, members from across the chamber have spoken up against the growing inequalities that women in our society face; they have all expressed concerns about the unacceptability of continuing violence and abuse against women and the urgent need to take action, which Johann Lamont, Pauline McNeill and Joan McAlpine have just outlined in their contributions.
However, today, when we are discussing measures to tackle hate crime, the cabinet secretary proposes to refer the inclusion of the characteristic of sex as an aggravator to a working group. It is not just Johann Lamont who is concerned about that. Women across Scotland are asking whether that is really the best that this Parliament can do.
This is not a new discussion. Thirteen years ago, in 2008, my colleague Marlyn Glenn raised the same point when the Parliament was considering the Offences (Aggravation By Prejudice) (Scotland) Bill. However, violence against women, misogyny and hatred of women were not included. During the evidence sessions on this hate crime bill, voices from the Muslim community called for support for mechanisms to measure hate crimes that are perpetrated against Muslim women.
I agree with all those grass-roots women’s organisations that spoke up during evidence sessions and with all those who cannot understand why we would effectively exclude women in this piece of legislation.
As the working group gets on with its work, additional measures to tackle misogyny can, of course, be considered although, when the cabinet secretary rises, a response to Pauline McNeill’s question on that would be most welcome.
For the legislation to be meaningful and understood, we have a responsibility to be very clear on what this Parliament means when defining men and women as two sexes. From the correspondence that I have received, I know that the people of Scotland, in the great majority, understand that, too. We cannot put women’s concerns and fears to one side, and I was shocked by the lack of serious consultation with the women of Scotland, as well as the number of men who are queueing up to tell women what we should think and how we should feel and, frankly, trying to stop our voices from being heard.
I support the amendments in the name of Johann Lamont.
This is an important debate and I do not wish to silence anyone’s voices. There are important issues at stake here and it is right that that is reflected in the debate.
Like many men—I know that people would say that that is a privileged position—I have frequently spoken about women’s experiences of sexism, misogyny, harassment and abuse. There is no acceptable level of toxic masculinity.
Like everyone on the Justice Committee, I warmly welcome the appointment of the distinguished human rights campaigner Helena Kennedy QC and, more recently, I have commended the strong and talented group of women who were appointed to her working group. There is no doubt that progress in dealing with sexism, misogyny, harassment and abuse has been slow, as we have heard from the previous speakers. However, with this working group, it will gather pace. I want the world to be a better place quicker. I am not sure where some of the contributors get a figure of three years from; perhaps we will hear from the cabinet secretary about that.
However, the misrepresentation that is endemic in much of the discourse around this debate is, at best, disappointing, sometimes mischievous and, on some occasions, simply malicious. Some of the horrendous circumstances that women face, which we have heard about, are already covered by legislation, but we need to look at the concerns that have been highlighted.
However, one might reasonably anticipate the furore that would follow if a male politician such as me said, “Let’s disregard this working group, with its distinguished woman leader. It doesn’t matter that the group’s work, with all these talented women, is under way. I want to put in the legislation what I want at this time, regardless of what they might plan.” Words, tactics and intent are important. As before, I will not support amendments of that nature because, as before, I am not prepared to pre-empt or jeopardise the important work of Dame Helena Kennedy’s group.
On a point of order, Presiding Officer. It is unfortunate that, given the way in which the Parliament has to operate during the Covid pandemic, there is no way of intervening on members to clarify points. I do not hear anyone in the chamber saying anything about the membership of the misogynistic harassment working group. As women, we are quite happy to support the group and to see what happens at the end of its work, but we have waited 13 years for legislation. We do not see why we should wait any longer and why a sex aggravator should not be included in the bill. The working group, with its distinguished members, can, of course, continue with its work.
The Presiding Officer:
Thank you, Ms Smith. The point of order relating to proceedings is accurate, in the sense that debates and discussions in which members participate online are very restricted, and it is not possible for those members to take interventions. I recognise that, but I am afraid that all members have to work with the current system.
However, the point of argument that Ms Smith raised has now been put on the record.
Labour will support all the amendments in the group. As Johann Lamont and Pauline McNeill said, in his review of existing hate crime legislation, Lord Bracadale recommended that we introduce sex as a protected characteristic in the bill, and he said that the decision not to include it was “perhaps a missed opportunity.”
I note the concerns of many, including the Scottish Government, on the issue, and that the Justice Committee, in its stage 1 report, said that the arguments are “finely balanced”.
The establishment of the working group on misogynistic harassment, chaired by Baroness Helena Kennedy QC, is important, and we will follow its work closely. We welcome the commitment to publish a report within 12 months, and we hope that it will not take three years. However, as Pauline McNeill said, we worry that there will be a gap in the legislation for those 12 months if we do not include a sex aggravator in the bill, and we worry about the time that it will take for further legislation to be enacted.
As others have said, women are subjected to hate because of their sex, and I am concerned, as other members are, that not only is there a gap in the legislation, but that we might send the message that women are less deserving of the protections that are afforded by the bill from the hate crimes that they experience.
The Government suggests that a sex aggravator can be added later, pending the working group’s conclusions, but the reverse is also true. Any primary legislation that results from the working group’s conclusions could remove or replace the sex aggravator if consensus on a preferred alternative can be found.
Amendment 4 would add sex as an aggravator and would allow courts to record offences as having been aggravated by “malice and ill-will” towards the victim because of their sex.
Amendment 17 provides the definition of sex, as it is defined in the Equality Act 2010, for the purposes of amendment 4. Amendments 21 and 26 are incidental to amendments 4 and 17.
For those reasons, Labour will support all the amendments in the group, and I urge the cabinet secretary and other members to support them, too.
As a member of the Justice Committee—
I should say that I am also a member of the Law Society of Scotland—
I have had the opportunity to consider the copious amount of written and oral evidence that the committee received. We received a lot of evidence from a lot of different people, who had a lot of different perspectives on a lot of different issues.
On the issue at hand, and further to consideration of the evidence, it is clear to me that, through the approach that is proposed, we have the opportunity to do something different, substantial and meaningful in relation to the abuse that women suffer day and daily. I have to ask myself the question: what is the point of pursuing the same legislative approach that we have seen decade after decade? That approach has not produced any better results for women; it has not delivered for women. The term “gender neutral” does not deliver for women. Provisions of the Istanbul convention lend support to that.
Does Annabelle Ewing agree that the women’s groups that argue against the sex aggravator on that basis welcomed the Domestic Abuse (Scotland) Act 2018, which was gender neutral, as being the gold standard?
I think that we all welcomed the 2018 act, which is, indeed, the gold standard and something that the Parliament and the Scottish Government can be very proud of. On the specifics, I do not think that we can make quite the same analogy.
However, as I said, after decade after miserable decade of the abuse that every woman in this chamber will have suffered at some time—while it will perhaps have been, in the main, verbal abuse, for some women it will have been more than that, and I would include myself in that category—I think that it is time to try to do something different.
What is proposed here is a working group that is to report within 12 months, which is from an amendment that I proposed and to which the committee agreed in terms of the principle of a time limit being put in place. The working group will look at the misogynistic harassment issue, but it will also look at the issue of a sex aggravator. The group will report to the Parliament, and it will therefore be the Parliament, as the democratic Parliament of our country, that will consider the issues and take decisions.
Colleagues will know that I very much recognise the importance of the principle of the immutability of sexual dimorphism and the importance of not conflating sex and gender, and that I have argued for that in the Parliament and in the committee on the Census (Amendment) (Scotland) Bill, to which my colleague Joan McAlpine referred. I therefore very much recognise the concerns about those issues, but I feel that, having studied the evidence and as a lawyer, the concerns about that debate are becoming part of the debate on the bill before us. I do not necessarily see the two issues as being contemporaneous in that regard.
The Equality Act 2010, which has been mentioned, remains part of the legislation that governs our activities, and we cannot act ultra vires of the 2010 act. Therefore, inserting into the bill before us definitions from the 2010 act and other pieces of legislation seems to me, from a legal perspective, not to make much sense. The Equality Act 2010 is on the statute book and it governs everything that we can do. For the reasons that I have stated, I will not support the amendments in group 1.
I start by thanking Johann Lamont and all those members who have spoken to her amendments. Although I am about to explain in detail why the Government will not support her amendments, I state for the record that I have known Johann Lamont for quite a few years. We were political opponents in Glasgow Pollok during the most recent election and for years before that. For all the disagreements that I have with her, I do not doubt for one second—not for one millisecond—her commitment to tackling hatred. I have known her to stand on the same platform and denounce hatred in all its forms. Although our debate will be robust—we have heard much of that robustness already—I state for the record that I do not doubt at all her intentions in relation to her proposed amendments. I welcomed the respectful but robust manner in which issues were debated at stage 2, and I am certain that contributions throughout today’s proceedings will be made in a similar manner.
There remains a pressing need, as members have already stated, to tackle misogyny and gender-based violence in Scotland, and the Government is committed to doing so. Indeed, it is clear that there is a shared ambition across the Parliament to doing so. However, it is also clear that there are strong but often diverging views on how that important issue should be tackled. Johann Lamont’s amendments would result in the characteristic of “sex” being added to the list of characteristics in section 1 of the bill and would add a provision to define sex. She is right that, in principle, I do not oppose the intention behind the inclusion of sex in the hate crime legislative framework. I said publicly on the record, when Lord Bracadale’s report came to me, that my initial view was to include a sex aggravator.
As I outlined at committee during stage 2, I know that, on the face of it, including “sex” in the bill seems appealing. To exclude the category of sex, as members have said, seems counterintuitive. However, we also heard during the committee’s oral evidence sessions and know from its written evidence that a number of organisations that have decades of experience of standing up for women’s rights, such as Scottish Women’s Aid, Engender, Rape Crisis Scotland and Zero Tolerance Scotland, expressed concerns that a neutral sex aggravator could do harm to women. I will come to some of the reasons why that is shortly.
However, there is a concerning element in the remarks that have been made. We can accept that there are differences of opinion, but I am deeply disturbed by the insinuation that a few members have made about organisations such as Scottish Women’s Aid, Rape Crisis Scotland, Engender and Zero Tolerance Scotland. Members have every right to disagree, but we should recognise not only that those groups provide a life-saving service for many women but that they have decades of credibility in this area. It is absolutely true that they are Government-funded, but the dangerous insinuation behind labelling them as such is that they are simply doing what the Government wants. Anybody who has had any dealings with Dr Marsha Scott, Sandy Brindley or Emma Ritch knows that they are no Government patsies. When they need to challenge the Government, they do so strongly. Therefore, although we are right to disagree, I plead with members not to denigrate those organisations that have done so much to advance women’s rights over the years.
I was struck by a number of the concerns that Women’s Aid organisations raised regarding the introduction of a neutral sex aggravator that would apply to men just as it would to women. They said that it could become another tool for domestic abuse perpetrators to use as part of a wider pattern of coercive control. We know that perpetrators of abuse often use the criminal or, indeed, the civil justice process to perpetuate that abuse.
I want to read a quote from Grampian Women’s Aid. Some members have talked about national organisations and have made an insinuation—in fact, not an insinuation but a direct accusation—that those organisations have not spoken to women on the ground. This is what Grampian Women’s Aid said:
“we see time and time again, attempts by perpetrators to use elements of the criminal and civil justice system to enforce or extend control and abuse of children and women ... including calling the police and claiming to be victims when they are in fact abusers ... We of course can only speculate about the impact of a gender aggravation for hate crime laws. However, it is our understanding that there is no evidence that such an aggravation has helped protect women where it has been used elsewhere, and we are absolutely confident that perpetrators will attempt to use it to their own benefit should it be introduced in Scotland.”
In her intervention on Annabelle Ewing, Johann Lamont made a point about the domestic abuse aggravator being neutral. Given what Grampian Women’s Aid said, why would we want to give perpetrators a potential additional tool to use in the perpetuation of their abuse?
That is not the only argument that women’s organisations have used. Engender has a 35-page report. I will not go into the policy detail of that, but it is worth recognising that serious concerns have been raised by serious organisations that have a pedigree, a credibility and an integrity when it comes to standing up for women’s rights.
Therefore, it makes perfect sense to me to ask experts—as we have done with the working group, chaired by Baroness Helena Kennedy, who is a lifelong feminist and a human rights lawyer—to look at where there might be gaps in the law and to examine a stand-alone offence of misogyny, but also to examine the issue of the inclusion in the bill of a sex aggravator.
Johann Lamont referred to that a couple of times as outsourcing that work. I happen to disagree. As legislators, we are at our best when we ask experts such as Baroness Kennedy to look at issues in great detail. She has a panel of experts with specialisms in Scots law, human rights and women’s equality, and she has managed to bring in advisory counsel from the Office of the United Nations High Commissioner for Human Rights to support the working group. That group had its first meeting on 12 February and the next one is scheduled for later this month.
Pauline McNeill kept referring to a period of three years. I have no idea where that number has come from. She joined us online, so she might not be able to intervene, but I would be happy to take an intervention because, as I have already set out in writing to every member, and as the working group has confirmed, the group will conclude its work within 12 months of 12 February. I have also confirmed that if, after exploring all the arguments that have been raised by Engender, Rape Crisis Scotland, Scottish Women’s Aid and members of this Parliament, it concludes that a sex aggravator should be included, the Scottish National Party Government, if we are re-elected, will include a sex aggravator. I would bring forward the draft order to do that within a month. That work is continuing at pace. It will not take three years, and I am not sure where that figure has come from.
Regarding a definition of sex, as I have said previously, I do not have an in-principle objection to alignment with the Equality Act 2010. What I will not do, though, is prejudge the work that Baroness Helena Kennedy is undertaking in that regard. I do not have a fundamental, in-principle objection to what Johann Lamont is suggesting or doing; it is simply the case that I recognise what has been said by organisations that have decades of credibility in standing up for women’s rights. They have expressed very serious concerns, many of which were articulated very well by my colleague Annabelle Ewing.
I ask members to give the working group the time that it needs—12 months, as the committee asked—to explore the issue, come forward with recommendations and create, potentially, a world-leading approach. Therefore, I ask members to vote against Johann Lamont’s amendments 4, 17, 21 and 26.
The Presiding Officer:
Before I invite Johann Lamont to wind up on the group, I notice that Pauline McNeill has requested to speak, so I will bring her in.
Thank you, Presiding Officer. I asked the cabinet secretary a number of questions. Many commentators have concerns about the length of time that his approach would take. Whatever commitment the cabinet secretary gives, he will have to allow some legislative time and the committee will have to pursue the matter, so many people think that it will take at least a few years. I will not be tied to the three years, but there are certainly concerns about the timescale.
I also note the extraordinary times that we are in.
The cabinet secretary might not be able to reply to this, but I asked a question about what a crime looks like. He did not answer that, nor did he answer another question that I put. If he is not against a sex aggravator, which is what he said at the beginning, and given that Helena Kennedy is going to look at the matter, what would be the problem with inserting it now and then revising it in the future? He could have done that, and it seems to me that he has got into an argument for no reason.
I thank Pauline McNeill for that and I thank you, Presiding Officer, for facilitating that intervention.
On the reason why we should not include a sex aggravator now, I note that Rhoda Grant, who might take part in the stage 3 proceedings later on, suggested that we should include it now and then remove it later if the working group says that it should not be in the legislation. However, a concern is held by Scottish Women’s Aid and many others that a sex aggravator, which could apply to men as much as it would apply to women, could do harm. If the suggestion is that we should include it, allow it to do harm to women and then remove it because the expert working group has said, “Yup—it has done harm”, I would ask how many women would be harmed in that process. To me, that seems the wrong way to go about it.
Forgive me—I did not understand Pauline McNeill’s question about what would be a crime, but I am happy to take that away and perhaps address it in writing to her.
Thank you, Presiding Officer. You will appreciate that there are quite a significant number of areas that I want to get through.
I have asked why we would ask the question out loud and then not include women in a hate crime bill when we all know that women are the most serious victims. People have said, “Well, it’s all a bit complicated”, but people have been saying that to women since I was a child. They have said that it is too difficult to get women into public spaces or to deal with difficult behaviour and that women have caring responsibilities. If we had taken that attitude, we would never have changed anything.
I commend Pauline McNeill, Joan McAlpine and Elaine Smith for their contributions, which proved that there are a lot of talented women who have something to say about the issue. We should listen to them, because those women are speaking up on behalf of women across the country who have lobbied the Government on the matter.
I very much respect Annabelle Ewing for what she has said and done, particularly around the issue of not conflating sex and gender. I recognise that, but I think that she is wrong in the conclusion that she has come to. She understands that there is a problem for women in relation to hate crime, but says that it should not be central to any strategy or Government legislation, or the campaign around it that says that women should be part of that work.
A number of arguments have been made on the subject. We are told that it is very complex, but I make the point again that hate crime legislation in its entirety is complex. It is our job to work our way through complex legislation.
We are told that a sex aggravator might work against women because of manipulative men. Therefore, because the perpetrators are ultra-manipulative, we have to pull back. That, again, is a counsel of despair; if we had listened to it in the past, we would never have legislated on rape, coercive control or domestic abuse. I make the point again that although the domestic abuse legislation is gender neutral, it protects women, who overwhelmingly are the victims of domestic abuse.
We are also told that women can wait. It might only be a year—we are a bit vague about how long it will take—but women can wait until we make sure that we get this absolutely right. On the other hand, when people have said, “Given the complexities of the bill as a whole, perhaps it might be better to try to bring people together and get our communities to understand what we are doing, pause the bill and build consensus,” we have been told, “No—we cannot wait.” Let the women wait, but not every other issue in relation to the bill. That does not make sense.
In his contribution, John Finnie said that he was not willing to jeopardise the talented group of women, at least one of whom will be representing a group that is actively opposed to the sex aggravator being in legislation. I accept that it is a very talented group of women, but our point is that there are a lot of very talented women right across our communities who understand exactly what hate crime is, and we should be talking to them about what protections they should have.
It is ludicrous to say that the only way forward to address the needs of women is to set up a working group. I am sure that the working group can do a lot of really good work; they are very talented people. However, there is no reason to prevent the sex aggravator from being put into legislation and then let the group work on the detail. If there are unintended consequences, the group can address them.
A lot has been made of the evidence that manipulative men would make things more difficult for women, but, of course, we are talking about an aggravator. The men are already manipulating the initial charge of violence—we know that, and we need to deal with it. The argument does not make any sense.
I want to talk briefly about what the cabinet secretary has said. Let me be clear: I have a lot of respect for the groups that are opposed to the position that I have taken. Indeed, when I was a minister, I funded those organisations to ensure that women were protected in the justice system and given refuge and support, so I have no problem with them whatsoever.
My argument is not that those groups are silenced by their connection to funding from the Scottish Government; it is that the Scottish Government overwhelmingly listens to them above any other groups. Indeed, we found out this week that the Scottish Government does not have a list of groups of women to test its ideas against. The only people that they have are the four groups that they fund. That is a closed circle, and we want to break into that circle and say that there is another set of ideas and arguments: that women need protection in the law. That can be done in principle; afterwards, let the working group do its very best.
I commend Joan McAlpine in particular, partly for her fantastic speech making the case, but also for having the courage to indicate that she will support my amendments against the position of her own Government. I am absolutely confident that if the cabinet secretary allowed his back benchers to do what they know is right, they would support the sex aggravator, support the working group doing the detailed work and definitely support the definition of sex that is in current legislation.
It is clear that this Government has form on changing definitions. It is in the courts at this very moment, defending a change in definition regarding the legislation on gender representation on public boards. That has been changed. Joan McAlpine was the person who took to the Scottish Government the attempt to change the Census Act 1920 and redefine the question on sex; she has informed a lot of the work around what is now in court.
I will finish on this point. If we listen to women and look at women’s experience, it is self-evident that women should be covered by the bill. Women would not argue for something that would make their lives worse. I urge the Scottish Government to listen to women and to what Tim Hopkins said. People need to see themselves in the legislation. Women are people, and they, more than anyone, know that they need the protection of the law.
I urge members across the chamber to support my amendments. If they feel that they cannot, they should at least ensure that we do not have a working group coming back in a year’s time having redefined behind our backs the meaning of sex and men and women and, when people ask about it, saying, “Why are you moving against that change?” Let the working group do its best, but we make the decisions on that.
Fundamentally, as we all know, women face hate, violence and abuse, and they deserve the protection of the law as much as anyone else.
The Presiding Officer:
There will be a division. As this is the first division of the afternoon, I will suspend the meeting for five minutes to summon members to the chamber and to allow members, including those who are offline, to access the voting app.
16:51 Meeting suspended.
17:00 On resuming—
We come to the division on amendment 4, in the name of Johann Lamont. Members may cast their votes now.
The vote is now closed. Please let me know if you had any difficulty in voting.
The Presiding Officer:
The result of the division on amendment 4, in the name of Johann Lamont, is: For 53, Against 68, Abstentions 0.
Amendment 4 disagreed to.
Group 2 is on the threshold for and operation of offences relating to stirring up hatred. Before I call the first amendment, in the name of Liam Kerr, as we are already nearing the agreed time limit, I am prepared to exercise my power under rule 9.8.4A to allow the debate on group 2 to continue beyond the limit in order to avoid the debate being curtailed unreasonably.
Amendment 32, in the name of Liam Kerr, is grouped with amendments 33, 5 to 10, 15, 30 and 31.
My amendments in group 2 are split into two broad principles, and I will speak to each in turn.
Amendments 32 and 33 try to protect the right to private and family life, but in slightly different ways. At stage 2, I lodged an amendment to provide a defence for words that are spoken in a private dwelling and that are not heard by any other person except those within the dwelling. The defence is similar to those in public order laws in England, Wales and Northern Ireland. My intention was to reflect the fact that, as the committee unanimously agreed, the proposed legislation describes itself as being concerned with “public” disorder. Under stirring-up laws, prosecution over private conversations in the home must surely constitute a violation of privacy and the human right to a family and private life.
During its evidence taking, the committee heard concerns that allegations could be made by individuals after an argument at a dinner party or similar social event and could then be investigated by the police. Calum Steele of the Scottish Police Federation warned us that conversations on contentious issues could be repeated innocently by children at school, which could then lead to reporting. The police would have no choice but to investigate and take witness statements from others present at the time of the speech, which could presumably include one’s own children.
Without a private and family life defence, the bill could lead to a scenario in which parents censor themselves in their own homes because they are anxious that their children might repeat, out of context, something that they have said. We must not make it the job of the police to investigate private disputes and to use the criminal law to set the parameters of acceptable opinion, even in the private sphere.
At stage 2, the cabinet secretary expressed concerns about people stirring up hatred in the home and folk then going out and expressing that. I heard his argument on that, so I have drafted my amendments specifically to address those concerns.
Amendment 32 makes it clear that, if a person is in their usual residence and behaves in a way that could constitute stirring up hatred, or communicates material that could constitute that, but no one outside the dwelling hears or sees it, they do not commit an offence. However, the caveat that I have added is that that defence is applicable only if the other people in the house at that time are either their family or people with whom the house is shared, plus another person from a different household. The beauty of that clause is that it entirely addresses the cabinet secretary’s concerns while ensuring that people can speak freely, without fearing an investigation or prosecution.
I have a simple question for Mr Kerr. If I were to be beaten up because of the colour of my skin, does he think that I would care whether that hatred had been stirred up within a stranger or, for example, his own brother? It would not make a difference to me, as the victim of such a hate crime, whether I had been beaten up by a relative of his or by a stranger.
No—of course it would not. However, here we are talking about the dwelling defence and how we protect people from hate speech that might happen around their dinner table. I will address the cabinet secretary’s point as we move through the debate.
I have lodged a further amendment, just in case members remain concerned about the reference to an extra non-family person. Amendment 33 provides a defence if
“the only people present when the behaviour or communication of material occurs” are the family of or those who live with
“the person engaging in the behaviour or communication”.
None of what I propose is ground breaking. There is precedent for a family and private life defence. Section 18 of the Public Order Act 1986 provides that an offence is not committed if the accused’s behaviour takes place inside a dwelling and is not seen or heard by others. Interestingly, the Law Commission in England recently reviewed whether such a dwelling defence should remain in public order laws. Just last month, it announced that the mechanism should stay to ensure a proper balance between tackling vile behaviour and respecting privacy.
Since the bill that is before us seeks to increase the coverage of the stirring-up offence, it makes sense to import a similar dwelling defence, to protect the right to a private family life and ensure that the public order element of the bill’s title remains pertinent. I therefore intend to press amendments 32 and 33.
Amendments 6 to 10, 15 and 31, in my name, all go towards the same point. From the start of the bill process, I have argued that part 2 needed to be removed and rethought, because we have to get this right. On this—the most controversial bill in the Scottish Parliament’s history—most of the concerns have centred on part 2. In a truncated timetable, and extraordinarily difficult and unprecedented circumstances, parliamentarians and the committee have worked well, and vital changes have been made. However, despite all the evidence taking, all the amendments at stage 2 and all the committee’s emergency sessions, significant concerns remain.
The bill, as amended, requires that behaviour must be judged abusive or threatening by a “reasonable person” and must be
“intended to stir up hatred”, which is a considerable improvement. However, those terms are not further defined. Although it has been argued that their meaning will be obvious and that they will set a high bar, there is no doubt that the meaning of what is hateful, abusive or reasonable is contested.
Even should some of the many further amendments be agreed to today, huge questions will remain around, for example, what the police could be dragged into adjudicating under part 2. Murray Blackburn Mackenzie warned:
“if the Bill is passed in the form the government is seeking ... the freedom to ... make certain types of statements ... without risking at least serious disruption to life will now rest wholly on what front-line police officers decide in practice a ‘reasonable person’ might judge ‘abusive’”.
On the freedom of expression provisions, which we will consider shortly, although the Scottish Government has lodged an alternative section, which may still be further amended in the next group, we will all have had extensive representations suggesting that it might still not be quite right.
Members will have seen recent representations from many reputable organisations this week raising concerns that the wording is not wide enough to put it beyond doubt that merely offensive or controversial speech is not grounds for a stirring-up hatred prosecution to take place. The Society of Editors illustrates my point, saying:
“The SoE fears that unless there are safeguards put in place the ‘reasonable person’ test stands every chance of being highjacked and used to silence free speech and penalise a free media.
At the very least, the definition stands the chance of creating a chilling effect of the UK’s media.”
Is the society right? I do not know, but what if it is?
Much more thought needs to be given to the content and compass of the stirring-up offences. The cabinet secretary, the Parliament and hundreds of groups have tried for a year now to find the solution, but too many people think that the solution may not have been found. I therefore offer my solution to Parliament. If part 2 is removed from the Hate Crime and Public Order (Scotland) Bill, it will allow the bill to proceed, to consolidate existing provisions, to add a new statutory aggravator on age and to remove the blasphemy offence. We can then come back in the next parliamentary session, and a new Administration can look afresh at this disputed area.
I can anticipate the worry that people will have that, if part 2 were to be removed, it could leave people unprotected. Let me allay those fears, as I have also lodged amendment 31, which reinstates the existing protections provided by the Public Order Act 1986, ensuring that there is no reduction in existing protection should my amendments be accepted.
I will move amendment 6, and its consequentials, to remove part 2, so that the Parliament can be secure in the knowledge that there will be no reduction in protections, so that it can pass the rest of the bill and so that, in the next session, it can allow more time for renewed scrutiny and stakeholder engagement on the stirring-up offences to ensure that we get them right in order to protect what must be protected and who must be protected, while not infringing rights that must not be infringed.
I move amendment 32.
It has been clear for months that, notwithstanding all the criticisms that have been made about the
Hate Crime and Public Order (Scotland) Bill, a majority of MSPs support the proposed legislation, it will pass at stage 3 tonight and it will be enacted into law.
In all my involvement with the bill, I have sought to improve it. Of course, I could have spent the past few months simply trying to obstruct the bill, but it has been clear for a long time that it will pass, so what would have been the point of that? I want to ensure that the Parliament passes good law. My amendments—both those in this group and those in the next group to be debated—are designed not to thwart the policy objectives of those whose bill it is but to improve the delivery of those policy objectives in the law that we make.
I am in favour of hate crimes being crimes. I do not want to live in a country where people are free to threaten or abuse one another with the intention of stirring up hatred against them. I am also passionately in favour of individual freedom and liberty. When we are seeking to criminalise behaviour that stirs up hatred, we must do so with extreme care and caution. In particular, we must guard against two vices, either one of which could hole the good intentions of the bill below the waterline. We must guard against vagueness, and we must guard against overbreadth. We must specify, as precisely as we can, exactly what it is that we are seeking to criminalise, and we must ensure that we do not inadvertently catch within the web of our criminal law behaviour that ought properly to be left free.
That is what my amendments, both in this group and in the next, are designed to achieve. They do it by remembering this: that when we legislate, as we do here, on the terrain of fundamental human rights, our rights and liberties should be interpreted and understood expansively, and restrictions on our rights and liberties should be contemplated only where necessary, in the public interest, to safeguard a legitimate aim.
Stirring-up offences are not new. The bill does not invent them, although it expands them considerably. We have had stirring-up offences with regard to racial hatred since the 1960s, and they are found now in the Public Order Act 1986. The full short title of the bill is the Hate Crime and Public Order (Scotland) Bill. That is no accident, yet it seems to have been overlooked in much of the debate on and commentary about the bill. The stirring-up offences are offences against public disorder, and they sit alongside other public order offences such as riot, affray, violent disorder and breach of the peace.
One does not need to be a lawyer to understand that, in order to commit a public order offence, there needs to be a public element to what one does. One cannot commit riot in private, and nor should it be possible for someone to be convicted of stirring up hatred if what they have done occurred only in private and there was no public element to it. That is the effect of the law at the moment. Section 18 of the 1986 act, which criminalises the stirring up of racial hatred provides that the offence is not committed if the accused’s behaviour takes place inside a dwelling and is not seen or heard by others.
It is, of course, the case that the criminal law does not stop at the threshold of one’s home. Our domestic abuse statutes are just one example of that. If I were to invite half a dozen pals to my home and treat them to a rant of antisemitic bilge, and they were to go off and desecrate the nearest synagogue, I should, of course, be liable for a hate crime. I would have invited people into my home and used it as a platform for sharing my racist, bigoted views. Such behaviour would be caught by the bill as it is presently drafted, and my amendment 5 would do nothing to alter that.
Let us consider a different example, however. Let us imagine that I have a family gathering—a Friday night supper—at which my unreconstructed and somewhat embarrassing elderly uncle makes disparaging remarks about a same-sex couple and my somewhat oversensitive 15-year-old daughter, offended at what she has heard, tells her best friend about what has been discussed at my family dinner table. Her friend’s father is a police officer, and the next thing we know is that there is a knock at the door and my elderly uncle is under criminal investigation. Is that really where we want the hate crime bill to go? Do we really want it to deal with family dinner table conversations that take place only in private, with no public element at all? I do not think so, and the Justice Committee did not think so, either.
In its stage 1 report, the committee reached the following unanimous conclusion:
“The Committee believes that there should not be an absolute defence against prosecution based on whether someone was inside a dwelling or not when it comes to words expressed, behaviour or the display of written material. However, care also needs to be taken that people are not investigated for, charged with, or prosecuted for, offences based on their personal views, however abhorrent others may consider them to be, if the expression of those views took place in a private space, such as their own house, and there was no public element.”
That was the unanimous, all-party conclusion of the Justice Committee, which took extensive evidence on that point. Giving effect to that conclusion is exactly what my amendment 5 would do.
We all need a safe space where we can let off steam. The right to respect for private and family life and for home is a fundamental human right. If we abuse our homes, inviting others into them and converting them into platforms for threatening or abusive behaviour that is intended to stir up hatred, of course, the criminal law should apply. Therefore, my amendment is not a dwelling defence: it does not exclude everything that happens inside the home from the criminal law. It is a criminal defence. It protects the privacy of wholly private family conversations, and it reminds us that offences against public order need a public element.
If there was any public element, of whatever nature, my amendment 5 would not apply. It would apply only to wholly private behaviour. That zone of privacy, as it were, is defined expressly by reference to the right to respect for private and family life in article 8 of the European convention on human rights. There is a realm of personal liberty that the Government may not enter. Existing stirring-up offences recognise that, and so should the new stirring-up offences that we are creating in the bill. For those reasons, I urge the Parliament to support amendment 5.
I will speak to the amendments in group 2, beginning with amendment 6. However, I will start in the same place as I did in my response to Johann Lamont’s amendments. I suspect that many Conservative members and I will disagree on a number of amendments, but not for one second do I doubt the commitment of Liam Kerr, Adam Tomkins or any Conservative MSP to tackling inequality or hatred in any form. I think that it is important to state that— although I will not do so in every contribution that I make—because the debate has been heated at times, not just in the Parliament but outwith it. I certainly know about that, because I have been the victim of hatred, as many know, and I have had messages of support from members of all parties, which I greatly appreciate.
I turn to the amendments at hand, starting with amendment 6. I confess that I am somewhat surprised that Liam Kerr chose to lodge amendment 6, which would, effectively, strike out the stirring-up offences. It was only a few weeks ago that he lodged an absolutely identical amendment at stage 2 and then, after listening to my very persuasive speech, which it must have been, he was so convinced by my arguments that he voted against it. I very much hope that this will be a case of history repeating itself. Although I commend Liam Kerr’s persistence, if not his confusion, on the issue, I cannot support what I consider to be quite a regressive amendment.
I urge members to wholeheartedly reject amendment 6. I believe that our criminal laws should provide comprehensive protection for our most vulnerable groups in society from the very damaging effects of behaviour that stirs up hatred, through a stand-alone offence that reflects the precise nature and gravity of those effects. The bill’s provisions make it clear that that type of behaviour attracts the particular condemnation of society and that it simply will not be tolerated. Liam Kerr’s amendment 6, unfortunately, disregards the recommendations of the Justice Committee in that area. It would result in Scotland having the weakest protections in the UK in the area of stirring up hatred. In debate, we sometimes forget that stirring-up offences exist across the UK—in England and Wales and in Northern Ireland. If we were to accept Liam Kerr’s amendments, Scotland would have the weakest protection in law, by quite some distance, for those vulnerable communities.
Supporting Liam Kerr’s amendment 6 would send a very damning message to all victims of hate crime. As has been recognised time and again, through the very compelling testimony of stakeholders who represent victims and of victims themselves, behaviour that stirs up hatred can have a really corrosive effect. It can result in entire communities feeling isolated, scared and vulnerable to attack. In the most serious cases, it can directly encourage activity and assault that threaten or endanger life.
Members may well remember the so-called punish a Muslim day in 2018. If I remember correctly, Anas Sarwar raised the issue in the chamber with the First Minister. Leaflets were distributed in schools and workplaces and were put through the doors of mosques, all in order to threaten an entire community. People were to be “awarded points” for pulling off the hijab of a Muslim woman or for pulling the beard of a Muslim man. That was with the intent of frightening, scaring, intimidating and, at its worst, assaulting and endangering the lives of the Muslim community. Muslims were frightened; I know that not just from my personal experience but from speaking to that community often. They feared for their safety. Some of them took a day off work; some felt that they had to keep their kids off school; some did not attend their university or college—all because they feared attack for no reason other than their faith. If we accepted Liam Kerr’s amendment, we would not be giving the protection in law that an entire community—such as the Muslim community during punish a Muslim day—so well deserves.
In short, I hope that members will stand shoulder to shoulder with victims of hate crime and will vote against amendment 6, which, if agreed to, would send a very harmful message to the people of Scotland.
Amendments 7 to 10, 15 and 31, in the name of Liam Kerr, are largely consequential to amendment 6, so I ask members to reject those amendments, too.
I turn to the various amendments that would introduce a dwelling defence or public element to the offences of stirring up hatred. Amendment 5 was lodged by Adam Tomkins. I appreciate the Justice Committee convener’s engagement with me on the bill and in particular on this issue, which has genuinely exercised him since the bill’s introduction. Amendment 5 would introduce a statutory defence for people who commit offences of stirring up hatred under section 3, where such offending behaviour occurs “wholly in private” and there is “no public element” to it. Similar amendments were lodged by Liam Kerr at stage 2 and heavily defeated; all members, with the exception of the Scottish Conservatives, voted against them.
I listened carefully to what Adam Tomkins said. He rightly highlighted the dangers of vagueness and the bill not being specific enough about how the criminal law would operate. However, I take issue with the characterisation that somehow the offences as they are provided for in the bill—much improved as they have been during the scrutiny process—are vague.
The cabinet secretary will be aware that Lord Bracadale supported the inclusion of a dwelling provision when he gave evidence to the Parliament. Precisely why, in legal terms, is the cabinet secretary not going for that? Has he had legal advice on the issue?
Yes, of course. I have had advice from the Scottish Government legal directorate and from my officials. I will explain why I do not agree with Lord Bracadale. I did not accept all his recommendations, such as those on the race and gender aggravators.
It is entirely clear that the new stirring up hatred offence could be committed only where a reasonable person—that is the common law term, and the reasonable person test is an objective test—would consider behaviour or communication of material, wherever that took place, to be threatening or abusive and intended to stir up hatred, and where the behaviour or communication of that material was not reasonable.
Amendment 5 creates the same, entirely artificial, distinctions as were created by the amendments that were roundly rejected at stage 2. Fundamentally, it fails to recognise that the fact that an offence of stirring up hatred occurs within a private space does not mean that the wider harmful impacts that such offences seek to prevent are avoided. Let us all be clear: the effects of behaviour that stirs up hatred can and will be felt well beyond the four walls of the private space or dwelling in which the behaviour occurred. There are potentially life-threatening implications for members of the targeted group if the incitement of acts of violence through threatening or abusive behaviour that is intended to stir up hatred are acted upon.
I am firm in my view that if someone engages in threatening or abusive behaviour or communication with the intention of stirring up hatred, the criminal law should be capable of addressing such conduct, regardless of where it occurs.
It is also important to ask ourselves what is meant by behaviour that occurs “wholly in private” with “no public element”, which is the wording in amendment 5. I am afraid that the amendment is not at all clear and provides very little guidance. Wholly private from whom? Members of the public? People who do not live at the address at which relevant behaviour might have occurred? Amendment 5 provides no definition in that regard.
Amendment 5 refers to
“the right to respect for private and family life by virtue of Article 8 of the European Convention on Human Rights.”
That right does not preclude the application of the criminal law in private spaces. If it did, laws that protect people from assault, domestic abuse, threatening or abusive behaviour or sexual offences, to name but a few, would not apply if the conduct occurred in private. Why should stirring up hatred be any different?
The effect of the proposed defence in amendment 5 and the behaviour that it seeks to exclude from the scope of the stirring up hatred offences is therefore, potentially, far reaching. It appears to me that amendment 5 would mean that if a large group of people were invited to meet in a private space for the purpose of stirring up hatred against a group—for example, Catholics attending their local parish church or Jewish people attending their local synagogue—and words or materials were exchanged during that meeting that were threatening or abusive and intended to stir up hatred, and were seen or heard only by people within that private space, no “public element” would have occurred and no offence of stirring up hatred would have been committed.
Instead, for an offence to be committed it would seem to require people in public places—for example, on a street pavement—to see or hear the abusive or threatening behaviour or material. That ignores entirely the point that private stirring up of hatred can still inspire equally harmful acts of hatred outside that private space.
I fear that the cabinet secretary, no doubt inadvertently, is mischaracterising the nature of amendment 5. It is perfectly clear from the wording of the amendment that if anybody invites members of the public who are not members of their family into their home for a meeting about anything, that is not a wholly private event and is an event with a public element. The cabinet secretary says that the amendment lacks definition, but I say to him that “public element” is a phrase that is drawn directly from Scots law on breach of the peace and “wholly in private” is expressly defined in the amendment by a reference to the fundamental human right to respect for private and family life. None of the cabinet secretary’s criticisms of the wording of my amendment 5 are, with respect, justified.
I will come to that point. MSPs will be well aware by now that the first element of the threshold of the new stirring up of hatred offence is a requirement for behaviour or communicated material to be threatening or abusive. For me, that is the same threshold that has existed in Scots criminal law since 2010 with the statutory offence of threatening or abusive behaviour, but that offence, which has been prosecuted thousands of times over the past decade, does not have a defence if it occurs in private for very good reason: why should threatening or abusive behaviour be treated differently depending on where the conduct may have occurred?
It would mean that Scots law operated so that threatening or abusive behaviour without the intention to stir up hatred is an offence when committed wholly in private while threatening or abusive behaviour with the intention of stirring up hatred would not be an offence if committed wholly in private. That does not appear to be a sensible approach for Parliament to adopt.
I note that Mr Tomkins suggests that one does not need to be a lawyer to understand that a public order offence requires a public element. I should say that the public order element of the long title is to do with the repeal of the blasphemy law. I may not be a lawyer and I do not claim to have the expertise that Adam Tomkins does as a professor of law, but I fundamentally disagree with that statement on a point of principle. The very purpose of the offence is that hatred is stirred up in others, so comparisons about being able to riot in private completely miss the point of the offence. If a person stirs up hatred in others and those others attack, for example, Catholics, Protestants or Sikhs as a result of hatred being stirred up in them, it should not matter at all where the hatred was stirred up. The effect is the same—groups being singled out for hatred and attacked for who are they are.
I thought that Dr Kayembe, the newly elected rector of the University of Edinburgh, who was on BBC “Reporting Scotland” last night responding to Adam Tomkins’s amendments, made a very persuasive case when she talked about her children having been racially abused by other children and said that, no doubt, a lot of that hatred came from the family home, probably in a private space and possibly from the parents or an older sibling. That is worth listening to.
On Adam Tomkins’s example of an unreconstructed uncle, who we all have in our families, saying something perhaps unacceptable or offensive to a same-sex couple, that would not be prosecuted. That is because it would not meet the threshold that a reasonable person would view that as threatening or abusive. However, let us say for the purpose of his hypothesis that it did—do we genuinely think that it would reach the threshold of being intended to stir up hatred and be proven beyond reasonable doubt in a court? I do not believe that to be the case.
Similarly, amendments 32 and 33 by Liam Kerr are a further attempt to introduce a dwelling defence. I do not think that I have to go into too much detail on that, as I have taken a fair bit of time on Adam Tomkins’s amendment. As I said before, simply creating an artificial distinction whereby if hatred is stirred up in one’s sister, brother, child, step-child or grandchildren, somehow that should not be prosecuted, is a misunderstanding.
It is a misunderstanding to suggest that when hatred is stirred up in an individual, and they go and beat up or threaten somebody due to their sexual orientation, transgender identity, disability, faith or colour, the individual should not be prosecuted simply because the person who instigated that hatred was their brother, uncle, father or mother. To me, that makes no sense whatever. I ask members to oppose amendments 32 and 33.
Amendment 30, in my name, makes a change to schedule 1, which deals with the treatment of offences in the bill in relation to providers of “information society services”. The inclusion of provisions in schedule 1 follows the requirements of certain articles in the European e-commerce directive, and is commonly done in legislation. In accordance with the e-commerce directive, paragraph 1 of schedule 1 provides that proceedings for such offences
“may not be instituted against a non-UK service provider” that is established in the European Economic Area, unless it is necessary and proportionate in the public interest. The change in relationship between the UK and the EU arising from the EU exit and the end of the transition period has given rise to a concern that paragraph 1 of schedule 1, as currently framed, makes an unjustifiable distinction in that context between non-UK service providers that are established in the European Economic Area and those that are established elsewhere, including in the UK. Such a difference in treatment could conflict with rights under the European convention on human rights. Amendment 30 simply seeks to rectify that.
I ask members to support amendment 30 and oppose all other amendments in the group.
I will try to be brief. It is important to say that the extension of the existing offence of stirring up racial hatred to cover other characteristics is to be welcomed. It seems to me that it does not matter how mildly Mr Kerr wants to revisit the matter, the idea—particularly coming from a unionist—that our communities would have less protection from elsewhere in the United Kingdom is at best confusing, which I think is the word that the cabinet secretary used.
In relation to the dwelling offence, I will not reiterate what the cabinet secretary said. Of course, there is the sanctity of a dwelling, but that does not mean that there cannot be state intrusion when that is appropriate. If a local family of neo-Nazis are getting together to discuss their vile deeds, the location is irrelevant—it is about how the hatred manifests. We must protect our communities.
We have heard various examples of what could happen if Mr Kerr’s amendments to remove the stirring-up provisions were agreed to. In a briefing that we have been given, there is the example of leaflets being put through doors. On one side of the leaflet was an image of a mannequin being hanged; the other side said that the only debate about homosexuality was about how to carry out the execution. The leaflet also called for the death penalty. That was clearly threatening and intended to stir up hatred. We need to be cautious of whom we are pandering to.
I am grateful to Adam Tomkins and Liam Kerr for allowing Parliament as a whole the opportunity to consider the so-called dwelling defence, or as Adam Tomkins referred to in with regard to his amendment, a privacy defence.
I am afraid that, in pursuing their objective, amendments 32 and 33 get rather lost down a rabbit hole. However, amendment 5, in the name of Adam Tomkins, better reflects the point of principle that is at stake. He has talked with great force and some persuasiveness about how the bill should not engage with discussions that take place around the family dinner table. As a liberal, I tend to agree with that sentiment, which—as he reminded us—is reflected in one of the recommendations that the committee reached unanimously.
However, I do not think that amendment 5 would give effect to what Adam Tomkins is seeking to achieve. To avoid the rabbit hole down which Liam Kerr’s amendments have disappeared, Adam Tomkins has opted for a broader definition of the protection that he seeks to afford. Unfortunately, that leads to the opposite problem of vagueness, which opens up the potential for unintended consequences and loopholes that could be exploited for all manner of behaviour that I know Adam Tomkins would be the first to condemn and abhor.
In the digital age, the effects of actions and speech that take place behind closed doors can be more far-reaching than was the case when such a dwelling defence might have been more reasonably argued. Moreover, it is worth bearing it in mind that the right to privacy under article 8 of the European convention does not preclude the application of criminal law in private spaces, as the cabinet secretary reminded us. If that were the case, laws that protect people from assault, domestic abuse, threatening or abusive behaviour or sexual offences would be hard to prosecute if the conduct occurred in private. Why should stirring up hatred be different?
I recognise and respect the genuine and legitimate concerns that Adam Tomkins seeks to address through his amendment 5. Liam Kerr’s motivations, as evidenced by his amendments, 6, 7, 8, 9, 10, 15 and 31 appear to be rather different. On balance, the changes would risk doing more harm than good. The idea that private places should be sanctuaries for harmful behaviour requires to be challenged. On that basis, the Scottish Liberal Democrats cannot support amendments 5, 32, 33 or amendments, 6, 7, 8, 9, 10, 15 and 31, from Liam Kerr.
Part 2 of the bill has been one of its most controversial elements. We acknowledge and welcome the significant amendments that the Justice Committee made at stage 2 to strengthen the provisions in the bill. By introducing the reasonable person test and a requirement to prove intent to stir up hatred, the provisions are now stronger and have a higher legal threshold than the current stirring up hatred offences in the Public Order Act 1986.
However, we have carefully considered additional amendments at stage 3 to provide further clarity and reassurance. There has been much debate around the decision not to include a dwelling defence, as is currently provided for in the 1986 act. As Liam Kerr said, there are real questions about enforceability.
We understand the evidence, which was brought forward and reiterated by the cabinet secretary and Liam McArthur, that a dwelling defence does not exist for other criminal acts in Scotland, but as Adam Tomkins believes, we believe that there must, in criminalising speech in particular, be due regard given to the rights that are afforded under the ECHR.
I note the view of Dr Andrew Tickell, who told the Justice Committee that although he was not convinced of the need for a dwelling defence, consideration might be needed for “a requirement of publicity” to comply with the ECHR, as is now required for common-law breach of the peace. I am persuaded that Adam Tomkins’ amendment 5 strikes that balance to ensure that there must be a public element to the offence and to clarify the right to a private life under article 8 of the ECHR. Therefore, we will support amendment 5, although we will not support amendments 32 or 33.
There were significant amendments at stage 2, with further amendments being determined today at stage 3. We believe that part 2 of the bill is necessary and that it provides the legal protections that are required, so we will not support amendment 6—or the other amendments from Liam Kerr—to remove it from the bill. We will also support amendment 30 in the name of the cabinet secretary.
I thank members for their contributions to the debate and I associate myself with the cabinet secretary’s opening remarks about respectful debate.
I will quickly address some of the points that have been raised. On the dwelling or privacy defences, the cabinet secretary raised the concern, which he expressed at stage 2 and in response to Adam Tomkins, that people could be invited into a home and hatred could be stirred up, with no criminality attaching to the home owner. I do not think that that stacks up, because I have drafted my amendments, as has Adam Tomkins, precisely to ensure that the home owner cannot do that. MSPs will have noted Adam Tomkins’s intervention on that matter to the cabinet secretary.
The cabinet secretary also said that he is concerned about people intentionally stirring up hatred from the privacy of their house, perhaps through remarks made in the media and on the internet, because that defence would potentially protect them. Again, I do not think that that stacks up because, as the cabinet secretary will have noted, Free To Disagree pointed out that people who publish vile statements online could already be committing a crime, so I cannot see that that is an argument against a dwelling defence.
In any event, I remind the cabinet secretary and the chamber that Lord Bracadale, whose review formed the basis of the bill, told the Justice Committee that concerns about extending public order offences into purely private settings are “well founded”.
Adam Tomkins reminded us that the all-party committee was unanimously clear in its stage 1 report, which says:
“care also needs to be taken that people are not investigated for, charged with, or prosecuted for, offences based on their personal views, however abhorrent others may consider them to be, if the expression of those views took place in a private space, such as their own house, and there was no public element.”
The committee was unanimous, and it was correct.
Adam Tomkins hit the mark. The bill is called the Hate Crime and Public Order (Scotland) Bill; there has to be a public element. Without it, we will be policing private thought. That is precisely what the bill should not be doing.
Finally, on the dwelling or privacy defence, given that Lord Bracadale, the Law Commission in England and distinguished legal experts support such a provision, and given that existing laws catch harassment, threatening or abusive behaviour and breach of the peace, I cannot understand why the cabinet secretary is so opposed to it. His arguments do not defeat theirs, so I will press the amendments.
On removal of part 2, I have listened carefully to the points that have been made across the chamber. I readily acknowledge how far the bill has come in its development. However, the bill—even in amended form—does not allay the concerns that have been raised by many people.
I listened to the concerns that several members raised about the protections if part 2 was not there, but none of what we heard changes the fact that something is already there, as Adam Tomkins said. I lodged amendment 31, which would reinstate the existing protections that are provided by the Public Order Act 1986, precisely to ensure that there would be no reduction in existing protections should my amendments be agreed to.
The Criminal Justice and Licensing Act (Scotland) 2010 covers “threatening or abusive” conduct. Statutory aggravators already attach greater severity to crimes that are motivated by hatred against others. By way of example, I note that support for my position comes in the Government’s financial memorandum, which states:
“the conduct in question would already constitute existing criminal offences such as breach of the peace or threatening or abusive behaviour.”
We must make law to protect people, but we must also make good law—law that does what it needs to do without unintended consequences. That is what I seek to do through my amendments.
I press amendment 32.
The Presiding Officer:
There will be a division. Members may exercise their vote now.
The vote is now closed. Please let me know if you were not able to vote.
On a point of order, Presiding Officer. I was unable to vote. I would have voted no on amendment 32.
The Presiding Officer:
Thank you, Ms Johnstone. I will make sure that your vote is added to the vote list.
The Presiding Officer:
The result of the division is: For 30, Against 89, Abstentions 1.
Amendment 32 disagreed to.
Amendment 33 moved—[Liam Kerr].
The question is, that amendment 33 be agreed to. Are we agreed?
The Presiding Officer:
The result of the division is: For 30, Against 90, Abstentions 1.
33 disagreed to.
Group 3 is on freedom of expression. Before I call amendment 1, in the name of Adam Tomkins, I highlight to members that we are exactly 45 minutes behind where we thought that we would be at this stage and that we are already scheduled to run until 8 o’clock. I recognise that these are important matters about which members feel strongly, but if members could curtail their remarks slightly, that would be helpful.
Amendment 1, in the name of Adam Tomkins, is grouped with amendments 2, 3, 11, 11G, 11B, 11C, 11D, 11E, 11F, 13, 14, 34, 16, 18, 19, 20 and 22.
We come now to the core issue that the bill confronts. I fear that, despite what you have just said, Presiding Officer, my remarks might take some time. However, I hope that members will feel that they can speak freely about the issue.
The core issue is how to legislate effectively against hate crime while at the same time protecting freedom of speech. That is a dilemma on the horns of which the bill has been caught since it was first introduced, and it is still not resolved. We have, however, come a long way and, in order to set the debate on this group in context, I will briefly remind the chamber of the moves that have already been made to bring the bill into line with freedom of expression.
First, all the stirring-up offences, other than with regard to race, can be committed only intentionally. If someone is merely reckless as to whether hatred will be stirred up, that will not be enough to trigger the criminal law; they must intend it. Secondly, specific offences relating to theatres and public performances have been removed from the bill entirely. Likewise, the offence of possessing inflammatory material that may stir up hatred has been removed from the bill. All those changes were made because of the huge volume of concerns about free speech that the bill as introduced generated.
At stage 2, a further and, to my mind, critical change was made. All the stirring-up offences were amended so that they can be committed only where a reasonable person would consider behaviour to be threatening or abusive. From a free speech perspective, that is the single most important change that the bill has undergone. Just because someone feels threatened or abused will not be enough to trigger criminal liability, unless a reasonable person would find the behaviour to be threatening or abusive.
Does Mr Tomkins accept that, in some contexts, the “reasonable” person would be directed by an institutional drive to have a particular attitude and that, for some women, the idea of the test of a reasonable person is not sufficient?
I certainly accept that some women have forcefully expressed that view on social media and elsewhere, and I will go on to address it directly in my remarks.
Essential though that change of reasonableness is, and welcome as it is, even that does not go far enough to ensure that the bill can operate in a way that fully respects freedom of speech. There has been much to-ing and fro-ing about how the bill should reflect and incorporate that all-important free speech principle.
Some commentators have quite wrongly said that this aspect of the bill has been rushed. That could not be further from the truth. The Justice Committee took extensive evidence on the free speech implications of the bill at stage 1 and wrote about that evidence at length in the stage 1 report. At stage 2, although most of the amendments relating to free speech were not pressed to a vote, there was a very full and open debate on the issues. That debate, as ever in the Justice Committee, was conducted both robustly and respectfully. After stage 2 was completed, the cabinet secretary published a number of options for a free speech provision to be added to the bill. We published a full and open call for evidence on those options and we were delighted to be able to host a public round table with a broad range of stakeholders and expert witnesses to discuss those with the cabinet secretary.
I do not know of any issue, relating to any bill passed in this session, that has been subject to more scrutiny—and to more detailed and expert scrutiny—than the free speech implications of this bill.
That brings me to the substance of the amendments before us. I welcome amendment 11, in the name of the cabinet secretary, and will vote for it, but on its own and in the context of this particular bill, it does not go quite far enough. I shall explain why.
Amendment 11 provides that, as regards the protected characteristics of age, disability, sexual orientation, transgender identity, and variations in sex characteristics, behaviour or material is not to be taken as being threatening or abusive if it involves discussion or criticism of matters relating to those characteristics. To be clear, and coming to the point that was raised by Johann Lamont, it will not be a hate crime to criticise aspects of policy relating to transgender identity and it will not be a hate crime to discuss whether marriage, or the adoption of children, should be extended to same-sex couples.
So much fear has been stoked in relation to those matters that it is important to set that out. Criticising policy relating to transgender identity is not a hate crime under the bill. Even if you express yourself in a manner that others find transphobic, it is not a hate crime to discuss or to criticise matters relating to transgender identity.
For clarity on that point, would your amendment mean that a woman could be sure that she would not be treated as being abusive or threatening solely for saying things such as the following: “There are two sexes, and people can’t change sex.” “A woman is an adult human female.” “Male people shouldn’t play women’s sports.” “Access to single-sex spaces like changing rooms should be based on sex, not gender identity.” “Women’s prisons should only be used for biological women.” Those are just a few examples. I would be grateful if the member could be clear about what amendment 1 means.
Those questions go to the heart of the issue and I very much welcome the fact that we are having the debate here today. I want to address those questions.
If you want to argue—or even to campaign robustly—for women’s sex-based rights, or to argue that sex is immutable or is binary, you are not committing a hate crime, even if someone else is offended, shocked or disturbed by what you say. Even if someone else is very upset by what you say and accuses you of transphobia, you are not committing a hate crime unless you cross that threshold of saying something that is not merely offensive but is something that a reasonable person would hold to be threatening or abusive in a manner that intends to stir up hatred. That will be the effect of the bill if the cabinet secretary’s amendment 11 is accepted by the Parliament and if my amendment 1, which I am now speaking to, is also accepted. I will turn to the detail of those amendments.
Amendment 11 makes additional provision relating to religion. It provides not only that “discussion or criticism” of religion is not to be taken as threatening or abusive behaviour but that
“expressions of antipathy, dislike, ridicule or insult” are not to be taken as threatening or abusive as regards religion. With that, the bill will bring into Scots law the free speech safeguards as regards religion that already exist in the law of England and Wales.
However, it is to be noted—this goes directly to the point that Elaine Smith makes—that, under amendment 11,
“expressions of antipathy, dislike, ridicule or insult” are protected as free speech only as regards religion, and not as regards any of the other protected characteristics. Therefore, speech that is so critical of, for example, policy relating to transgender identity that it crosses the line and may be regarded as an expression of antipathy or dislike will not be protected by the cabinet secretary’s amendment.
That is where my amendments 1, 2 and 3 come in. My amendments, which are not probing amendments—I intend to press them—are designed to sit alongside and complement the cabinet secretary’s amendment 11. There is nothing in any of them that cuts across his policy intentions or objectives. They represent three different ways of seeking to achieve the same thing. We do not need them all; we need only one of them. If amendment 1 is agreed to, I will not move amendments 2 or 3. If amendment 2 is accepted, I will not move amendment 3.
The aim of all three amendments is to clearly distinguish in the bill the threatening or abusive behaviour that we are seeking to criminalise from speech that is, as it were, merely offensive, shocking or disturbing, which should not be caught by the criminal law.
Let me explain a little more about that distinction, Presiding Officer. My right to free speech extends to and includes speech that you might find offensive, shocking or disturbing. I do not have the right to express myself in a way that threatens or abuses you, but if, short of that, I choose to speak in a way that upsets, shocks, disturbs or offends you, that is too bad.
Those principles are fundamental to the way in which the European Court of Human Rights understands the right to freedom of expression in article 10 of the ECHR. Indeed, the words “offend, shock or disturb” in my amendments are lifted directly from that court’s case law, which has been endorsed and read into our law by the courts here in Scotland, as has happened elsewhere in the United Kingdom. This could not be more important. As the English judge Lord Justice Sedley said in one of the leading cases, the right to speak only inoffensively or in a manner that the state approves of is not worth having. That is not free speech at all. It is controlled speech, or licensed speech.
Happily, in the context of the bill, those principles have been uncontroversial, uncontested and accepted by all. The cabinet secretary endorsed them when he gave evidence to the Justice Committee in October, and the committee, in turn, did likewise, again unanimously.
However, it is not enough that we all think and say that the bill does not seek to criminalise speech that others may find offensive, shocking or disturbing but which does not meet the threshold of being threatening or abusive. It would not even be enough to say that in the bill’s explanatory notes. We need to write it into the bill, and I am offering Parliament three different ways of doing that. The first—amendment 1—is based on wording in the Human Rights Act 1998, the second is based on wording in the European Communities Act 1972 and the third is based on wording in the Public Order Act 1986.
The member is making an excellent speech. I have said very little on the bill as it has gone through Parliament, and that is why I am in the chamber to listen to stage 3 today. However, the more I have heard, the more concern it has caused me. I think that many of us, if we are being honest, believe that there should be a form of hate crime legislation but how it is being done in the bill is not it. Many people—out in the community and in here—would want the Government to withdraw the bill so that whichever party wins the election could come back with properly thought-out legislation that carries not only an overwhelming majority in this place but the confidence of the people who are victims of hate crime.
That is exactly the position of the Scottish Conservatives—I welcome Mr Findlay aboard. That would be the effect of amendment 6, which was moved by my friend and colleague Liam Kerr and was debated in the previous group.
Amendments 1 to 3 are three different ways of achieving the same policy ambition. My preference is for the first formulation, which provides that when considering whether behaviour was reasonable, as the bill requires the courts to do, the courts must have regard to the right to freedom of expression, including the general principle that that right extends
“to the expression of information or ideas that offend, shock or disturb.”
The formulation in amendment 1 has been carefully drafted. Its language is drawn directly from, and mirrors, the Human Rights Act 1998, article 10 of the ECHR itself, and the European Court’s key case law on free speech. As I said, the amendment is designed to sit alongside and to work with the cabinet secretary’s amendment 11. It writes into our law core principles of free speech that were unanimously accepted and endorsed by this Parliament’s all-party Justice Committee in its stage 1 report on the bill. I very much hope, therefore, that Parliament will be able to accept both my amendment 1 and the cabinet secretary’s amendment 11.
It boils down to this: what is a reasonable person? Could the member perhaps answer that? It may be that an MSP is a reasonable person but they objected last week to speeches as being transphobic that other members thought were reasonable. That is the first thing. Would the principal of the University of Edinburgh be considered a reasonable person? He has reported stickers that say “adult human female” to the police. We have to understand what a reasonable person is.
I completely agree, which is exactly why I am moving my amendment. Relying on the idea of a reasonable person is essential, but it is not enough. In addition to that, we need to specify in the bill exactly what we mean. What we mean is that, just because someone is offended by what I have to say with regard to transgender identity or any of the other protected characteristics, that does not mean that I am committing a hate crime. Yes, they can go off and call me transphobic if they want, but that does not mean that I am committing a hate crime. Someone’s sense of being offended, shocked or disturbed by what I have said might very well upset them, but it does not trigger the criminal law. Relying on a test of reasonableness alone—important and essential though that is—does not do the job, which is why I am saying that, in addition to that, we need to legislate expressly to say that speech that is offensive, shocking or disturbing does not meet the criminal threshold. The criminal threshold is threatening or abusive speech that intends to stir up hatred and in the circumstances is not reasonable.
If the cabinet secretary’s amendment 11 and my amendment 1 are both accepted by the Parliament, there will, with respect, be no need for any of the amendments to amendment 11 that have been lodged by Joan McAlpine and Johann Lamont. The substance of what Joan McAlpine wants to do in her amendment 11G will be done by my amendment 1, but in a manner that works with, rather than cuts across, what the cabinet secretary is seeking to achieve. The specific examples of speech that ought to be permitted that are in Johann Lamont’s amendments, which Elaine Smith has put to me during the course of this speech, will not need to be written into the law, because it will be clear in each case that the combination of amendments 1 and 11 already have the effect that Johann Lamont is seeking to achieve.
I urge the Parliament to accept my amendment 1, the cabinet secretary’s amendment 11 and the consequential amendments in our names: amendments 13, 14, 34, 16, 18 to 20 and 22. If those amendments are accepted, it follows that amendments 11G, 11B, 11C, 11D, 11E and 11F, in the names of Joan McAlpine and Johann Lamont, do not need to be pressed.
I move amendment 1.
I will speak to amendment 1 and all the other amendments in the group, but
I would not mind addressing Neil Findlay’s point first—and I am happy for him to come back in an intervention. He said that he has spoken to victims of hate crime and that they do not want the bill. I have no idea who on earth he has talked to. BEMIS, which is one of the national racial equality organisations, sent round a letter that said that it supports the bill, and 20 organisations signed up to that. The Muslim Council of Scotland, the Scottish Council of Jewish Communities, the Humanist Society Scotland, Scottish Women’s Aid, Victim Support Scotland—
On a point of order, Presiding Officer. We have a duty to be accurate in the Parliament. I never said what the cabinet secretary has just accused me of saying. I say to him: please correct the record.
I would have given way after I finished my point. I am happy to look back on what Neil Findlay said, but he said, in a way, that the bill is not supported by victims of hate crime, and I tell him that it is supported by victims of hate crime. I have just read out a list, and I could go on. I gently suggest to him that, when he is purporting to speak on behalf of victims of hate crime, he should speak to the organisations that have represented victims of hate crime for many years.
I agree with many members who have spoken about the issue that we are discussing during the parliamentary process. Some have argued that there is a tension between hate crime law and freedom of expression, but I am not persuaded by that. I do not think that the two have to be mutually exclusive, and I think that there can be strong protections in law against hate crime and strong freedom of expression provisions.
Let me state very clearly that the bill has never been about prosecuting the offensive. In fact, the word “offensive” does not appear in the bill. I and others might find a person’s speech to be distasteful, abhorrent and deeply offensive, but that in itself is not a ground for prosecution under the bill.
The bill is fundamentally different from what it was when it was introduced to the Parliament. Many changes have been made; Adam Tomkins articulated some of them well, particularly in relation to the stirring up of hatred offences in part 2. The bill now requires the following: that there is an intention to stir up hatred; that the court will objectively assess whether behaviour or material is threatening or abusive; that each element of the stirring up of hatred offences is to be proven beyond reasonable doubt with corroborated evidence; and that there is the availability of a reasonableness defence.
The convener of the Justice Committee articulated things well when he said:
“The way in which the scope of those offences has been narrowed and sharpened will do much more to protect and reassure than any formulation of words about freedom of expression”.—[
, 22 February 2021; c 29-30.]
I agree. The amendments in my name in the group will complement those safeguards. I agree with Adam Tomkins’s point. We need to have words on the face of the bill that give reassurance to people who have genuine and legitimate concerns about the impact of legislation—particularly, of course, this legislation—on their free speech and freedom of expression.
Amendment 11 was one of the four options that I provided to the Justice Committee for the round-table session. I agree that that was a very good session. The issue has had a lot of scrutiny. I was quite persuaded by what Danny Boyle of BEMIS—an organisation that many members know—said about the harm that could be caused if race were included in any freedom of expression provision. He essentially argued that that freedom of expression provision does not exist in other stirring up of racial hatred offences across the UK, so why is race being included in our discussion? I was convinced by that argument.
Amendment 11 will tie the freedom of expression provision to the operation of the stirring up of hatred offences. It does that by indicating whether certain types of expression used in behaviour or material could in themselves meet the thresholds of the offences. For example, the amendment makes it very clear that criticism of matters relating to transgender identity are not solely to be taken to be threatening or abusive. However, if the criticism was expressed in a way that a reasonable person would consider threatening to trans people or that threatened trans people with violence, that could, of course, still amount to behaviour that is threatening or abusive.
I say to Elaine Smith, who intervened on Adam Tomkins, that none of the statements in the list that she articulated would be prosecuted if they were simply made in a chamber or in discussion, even if that discussion were robust. By the way, the reasonable person test is commonly used in many pieces of legislation; I can write to Elaine Smith with a list of a number of pieces of legislation that use that test.
For such statements to be prosecuted, it would have to be proven that they were made in
“a threatening or abusive manner”.
Even if that test were met—let us say that there was some dubiety about the test—it would still have to be proven, beyond reasonable doubt, that those statements were intended to stir up hatred. Someone who simply and solely—I think that Elaine Smith used the word “solely”—articulated those statements would not be prosecuted, regardless of the robust nature of the discussion.
Amendments 13, 14, 16, 18 to 20 and 22 are consequential to amendment 11.
Before I discuss further amendments in the group, I will reflect on the Justice Committee’s round table on 22 February. We heard very powerful evidence from Iain Smith of Inclusion Scotland. Many colleagues will recall him from his service as a Liberal Democrat MSP. I thought that he spoke incredibly eloquently at the round table on the importance of our freedom of expression provision. He said:
“it important that the bill should send out a clear message about what is and is not acceptable. In that regard, we do not think it appropriate that the bill should list behaviour or language that is acceptable. As I have mentioned, expressions of antipathy, dislike, ridicule or insult are not without consequences for those who are subjected to them. They can legitimise prejudice and lead to more serious consequences, even if that is not intended. ... do we want to say that it is acceptable to ridicule a disabled person who finds it difficult to get on to a bus thereby causing it to be late, or who is prevented from doing their daily shopping because they are subjected to expressions of dislike or insult? I do not think that the Parliament will want to say that for disabled people. Why should it want to say so for any other group in society? We ask members to think very carefully about that.”—[
, 22 February 2021; c 11-12.]
Amendment 11B, from Johann Lamont, would insert new wording into the freedom of expression provision. It would have the effect of adding new, specific wording on the operation of the provision, so that certain matters that are asserted, and the advancement or rejection of propositions that follows from those assertions, would be explicitly referred to in the provision.
All of the matters that are listed in amendment 11B are covered by the wording of amendment 11, which captures discussion or criticism of matters relating to each of the characteristics, except—crucially—race, which I have already mentioned. I do not think that there is a need to include a laundry list of specific wording, as is suggested. My worry is that, if we do that, we run the risk of suggesting that
“discussion or criticism of matters”— which is a wide category—somehow does not already encapsulate the matters that are listed by Johann Lamont. If we create a non-exhaustive list, the problem is that it is, by definition, non-exhaustive, so there can be confusion over what is not included in the list. Therefore, I ask members to oppose amendment 11B.
I also agree with Adam Tomkins that, if his amendment 1, which I will speak to shortly, is accepted, there is no need for the other freedom of expression provisions that are being advanced by Joan McAlpine and Johann Lamont. I will explain that Adam Tomkins’s approach in amendment 1, which has regard to freedom of expression—including with respect to the effects of behaviour and material as part of the operation of the reasonableness defence—is a better approach to the issue.
Amendment 11G, from Joan McAlpine, is similar to elements of amendment 11F. It would add wording to the freedom of expression provision in amendment 11, such that, with regard to “discussion” and “criticism” being covered, it would make clear that that included when such discussion or criticism was “perceived as offensive”.
Although I understand what Joan McAlpine is trying to do with her amendment, my concern has always been that such an approach could have the unintended consequence of implying that criticism that is offensive could never be considered abusive, no matter how extreme the offensive nature of that criticism. If behaviour was, by a reasonable person’s definition, threatening or abusive, and it was intended to stir up hatred, it may not be prosecutable because it would also—in most cases, I suspect—be perceived to be offensive.
I turn to Adam Tomkins’s amendments. The Government will support amendments 1 and 34.
Amendment 1 would apply to all the offences of stirring up hatred when a person has been found to have behaved in a way, or communicated material, that was threatening or abusive and that was intended to stir up hatred, and claims that such behaviour or communication of material was reasonable in the particular circumstances. For the offences of stirring up racial hatred, the additional threshold of being insulting and likely to stir up hatred is also covered.
The effect of amendment 1 is that a court would be required to have particular regard to the importance of freedom of expression under article 10 of the ECHR when determining whether a reasonableness defence was made out. In so doing, the court must have particular regard to the general principle that the right to freedom of expression applies to the expression of information or ideas that offend, shock or disturb. It is right for the bill to give that reassurance. A number of stakeholders have expressed concern that their right to shock, offend or disturb might be compromised by the bill. Amendment 1 puts that beyond reasonable doubt and does it by tying it to the reasonableness defence, so that it does not have unintended adverse consequences.
I note that Adam Tomkins said—if I heard him correctly—that if amendment 1 is accepted, he will not move amendments 2 and 3. Therefore, in the interests of time, I will not go into the details of my concerns about those amendments.
Given the concerns that I have expressed, I cannot support amendments 2, 3, 11G, 11B, 11C, 11D, 11E and 11F. I will support amendments 1 and 34 in the name of Adam Tomkins and ask MSPs to support my amendments 11, 13, 14, 16, 18 to 20 and 22.
The Presiding Officer:
Before I call the next speaker, I should say that we have just gone past the deadline for group 4 amendments. I invite the Minister for Parliamentary Business and Veterans to move a motion to extend the time limit.
That, under Rule 9.8.5A, the second time limit (and, as a result, subsequent time limits) be moved by up to 30 minutes.—[
Motion agreed to.
We might have to revisit that. [
I call Joan McAlpine to speak to amendment 11G and the other amendments in the group.
I welcome the cabinet secretary’s freedom of expression amendment and will of course support it. I also support amendment 1 in the name of Adam Tomkins. However, I do not think that either amendment goes far enough to protect people from vexatious complaints of hate crime. Adam Tomkins’s amendment might offer a defence in court, which is welcome, but it will not necessarily prevent arrests, accusations or investigations. Both amendments fall short of implementing Bracadale’s recommendation that there need to be clear lines in law between what is criminal and what is not.
I totally oppose threatening and abusive behaviour that stirs up hatred: I am in full agreement with the cabinet secretary on that. It is very clear, however, that many individuals and organisations are concerned that citizens could be falsely accused of such crimes.
The bill’s “reasonable person” safeguard is welcome and will work well in most instances, but it will not work where views are polarised. In particular, the debate around women’s rights and trans identity means that views that might be considered inoffensive and factual by some people will be perceived as hateful and abusive by others. My amendment 11G seeks to address that problem without extending the freedom of expression given to religion to other characteristics, as I am also aware of the unintended consequences that that might have, particularly for the protected characteristic of disability.
I know that it is not the cabinet secretary’s intention to see people falsely accused. He told the Justice Committee:
“People should have the right to be offensive and to express controversial views.”—[
, 27 October 2020; c 4.]
Amendment 11G puts that reassurance into the bill, within the cabinet secretary’s freedom of expression provision, in a way that is crystal clear and which will help law enforcement. I do not agree with the cabinet secretary’s suggestion that amendment 11G will allow anyone who has been accused of stirring up hatred somehow to get away with it by using the defence that what was said was only perceived to be offensive. In his amendment 11, the words “solely ... involves or includes” would still stand, leaving wide scope for genuine hate crime to be prosecuted even if my amendment 11G were to be agreed to.
Members will have seen from their inboxes that many people share my concerns about the need to strengthen freedom of expression. In particular, women who are concerned about calls that anyone who identifies as female must be accepted as such—“without exception”, to use the words of campaigning groups—have been accused of hate speech, including by people in positions of authority such as politicians. Here I associate myself with Johann Lamont’s earlier remarks about comments made by Patrick Harvie.
Women who have been branded hateful include sportswomen such as Martina Navratilova and Sharron Davies, after they raised concerns about female sports; Jenni Murray, the former presenter of “Woman’s Hour”, who is often considered a national treasure; Germaine Greer; and even J K Rowling, after she disclosed details of her own domestic abuse. They have all been no-platformed and accused of hate. Lesbian feminist philosophers such as Professor Kathleen Stock OBE of the University of Sussex have been subjected to terrible abuse, and the human rights lawyer Professor Rosa Freedman, of the University of Reading, had urine smeared over her office and was followed home.
Even doctors who express concerns about the significant rise in children being medicalised through approaches such as the use of puberty blockers, such as Marcus Evans and David Bell of the Tavistock clinic, have been accused of hate. In England, the criminal defence barrister Allison Bailey, a black lesbian feminist, is currently challenging a very well-known, publicly funded charity that had pressed her employer to take action against her. Some women have already lost their jobs for talking about such issues.
There is absolutely no doubt in my mind that the individuals who have no-platformed, bullied and tried to silence those respected men and women will use hate crime legislation against them—and in doing so they will consider themselves to be perfectly reasonable. Many will be in influential senior positions in public bodies.
A couple of years ago, a spokesperson for Scottish Trans Alliance urged supporters to report as a hate crime the use, in public places in Edinburgh, of feminist stickers opposing the Gender Recognition Act 2004.
Many public authorities, including the police, receive training from trans rights organisations whose definition of hateful behaviour is very wide indeed. In England, groups of police officers have taken public positions on such matters, including some on Merseyside who recently displayed on social media a poster that said:
“Being offensive is an offence”.
The chief constable there later apologised, but clearly there are people in law enforcement and in other senior positions who share such views, all of whom would consider themselves to be reasonable. It would be nice to think that Police Scotland would take a more sensible view—I hope that it will—but good laws should not be made by crossing our fingers.
I believe that my amendment 11G will give clarity to the police and protection to members of the public. For those reasons, I encourage members to support it.
I recognise that we are under pressure of time, but unless some members have been absent for the past couple of years they might not have noticed that this is a very serious debate, which is highly contentious. If they are fed up about having to sit and listen to it, perhaps they should not be in the chamber at all, especially if they do not recognise the significance of what we are doing here.
] I am sorry if we are boring those members, but I remind them that, as members of the Parliament, it is our responsibility to address such serious questions.
I am happy for members to stay and listen, and perhaps to contribute, but I resent in the strongest terms the implication that we are wasting people’s time by considering the bill. The minister is not saying that, but from their reaction to what the Presiding Officer said earlier it was clear that some members were concerned that we might be taking too long over this. Forgive me, but I am not going to take—[
I thank Johann Lamont for taking this intervention.
I am listening carefully to all the contributions on these amendments, and I greatly value and appreciate them. I am not always agreeing with everything that is said, but I am finding the debate informative and helpful. I would not want Ms Lamont to suggest that I am somehow not engaged with this; I promise her that I am.
I apologise for having been rather broad-brush, particularly given the bill. We heard groans at the idea that we might be kept here a bit longer. This is a serious matter for all of us. I very much appreciate what Bob Doris said.
I will not go through all the amendments in the group; members will have read my letter already, of course. However, I will talk quickly about some of them and I will make some important points about the whole question of freedom of expression.
Of the amendments in this group, amendment 11B most fully implements Lord Bracadale’s recommendation that the bill should include provisions that help to clarify the line between the criminal and the non-criminal. It puts in the law a range of statements that should not be deemed abusive just in their own right. We have never really had an explanation from the cabinet secretary for his rejection of a number of Lord Bracadale’s recommendations, but that amendment is one of them.
Amendment 11C adds a subsection to the new section contained in amendment 11 on the protection of freedom of expression in relation to religion, expanding it to cover non-religious “beliefs or practices”.
Amendment 11D comprises a new free-standing section that provides that
“Nothing in this Act shall be taken as requiring a person to profess any belief or to use language as if they held any belief.”
It is remarkable that we might feel that we need to put that in legislation.
Amendment 11E adds two new subsections to the section contained in amendment 11. Taken together, those subsections allow
“examples of behaviour or material which is not to be taken to be threatening or abusive” to be added to that proposed new section, using
“Regulations ... subject to the affirmative procedure.”
Amendment 11F introduces a definition of “discussion or criticism” to make it clear that it
“includes the expression of opinions which have the capacity to offend, provoke, discomfort, shock or disturb, including those expressed as antipathy, dislike, ridicule or insult, and includes the rejection of any belief.”
I recognise that this is a very difficult debate, and I agree with the cabinet secretary, in particular, that the comments by Inclusion Scotland have force, but we should be ensuring that the law does not allow somebody to berate anybody or to deny people their rights. It is not just about speech; that, in my view, would constitute a breach of the peace. Behind that, we should of course have a whole series of measures to address why on earth somebody thinks that that is acceptable behaviour.
I do not want to do anything in particular around the rights of disabled people. I know that they can be targeted and can suffer all sorts of disadvantage. That is the dilemma: it is about finding the balance in ensuring that people are protected from hateful and terrible behaviour while we also have the right to debate ideas.
I sometimes think that folk have now got to a place where they think that demands for freedom of expression are for people on the right or for people who are conservative in their views—socially conservative or whatever. Clearly, some people are making that case on the basis of their particular views at a particular time, which some people may regard as being on the right of the political spectrum. The truth is that we all need protection when it comes to freedom of expression. My party was founded on saying and believing things that, at the time, were regarded as out there or unacceptable.
The women’s movement knows that women had to break barriers and to say things that were seen as unacceptable, that the establishment did not regard as reasonable and that would have been regarded at the time as beyond the pale. We can see in more recent history how social movements—lesbian, gay, bisexual and transgender communities themselves—have said and challenged things that people would have regarded as being beyond the pale. We know that it is necessary for us to have freedom of expression.
I note Adam Tomkins’s amendments. I feel that he is being optimistic in his interpretation of what they would do. A number of tests would still need to be passed, and people would need to be persuaded that someone was being reasonable. They might end up in court, even if they had done something entirely reasonable and even if they were exonerated. People might end up having to face challenges in court, which I do not think it is reasonable to expect from people who are simply expressing a view.
The cabinet secretary talks about the important work that was done at stage 2, and I recognise that. However, even at the round table, where the level of response on freedom of expression was massive, the truth is that, in the positions that were taken by some witnesses, particularly members of the women’s organisations, there was no evidence of a shift.
The cabinet secretary was very good about meeting me and listening to my views, but it did not shift his position. There is a difference between facilitating a debate and moving the debate on as a consequence of what people have said, and I do not think enough has been done in that regard. Therefore, my amendments try to test what it is reasonable for people to be able to say.
I must underline the points that were made so effectively by Joan McAlpine about what the debate is and what the challenges are for many women just now. There are issues about what is regarded as reasonable and acceptable, about what is losing people their jobs and about what is silencing many of our young women, some of whom contact me privately and say, “I cannot do that or say that because, in my work community or social circles, it is utterly unacceptable, and there would be consequences.”
A couple of years ago, I went to a meeting at the University of Edinburgh. I have been going to political meetings for a very long time, and I cannot remember ever being at a meeting that was so conscious of the need for security. It was a women’s meeting, to talk about these issues, and we needed security of a level that I do not recall ever before seeing. That tells us what it is like for a woman who wants to express the views that are set out in the amendments that I have spoken about today. The scale of the challenge, the silencing and the chilling effect is real. It is not that real for me, because I am old, but it is real for younger people who feel that they cannot freely express their views, and I think, with respect, that Adam Tomkins is offering hope but no guarantees.
I will finish on a point on amendment 11B. It provides a clear point of reference in the face of the law for those taking part in debates on sex and gender identity. It puts beyond doubt that asserting, advancing or rejecting certain things should not be treated as being abusive or threatening under the law, based simply on their content. Those things are:
“that ... sex is a physical, binary characteristic that cannot be changed ... that the terms ‘woman’, ‘man’ and related terms refer to sex as such a characteristic” and
“that a person’s sex may be relevant to that person’s experience or relevant to other persons.”
Members have had a briefing about amendment 11B from the Equality Network, which calls that an “unnecessary laundry list”—what are we women like, with our laundry lists?—of matters relating specifically to transgender identity that
“includes propositions that fundamentally undermine trans people’s long-established right ... to be legally recognised in their transitioned gender.”
It says that it is
“a list of ‘approved’ statements that include attacks on the fundamental rights of one group of people” and that
“trans people’s rights are open season for attack.”
That is the Equality Network’s interpretation of what other people would regard as an entirely reasonable, legal, logical and sensible thing to say: that there are two sexes. The call for us to be entitled to say that is described as a fundamental attack on the rights of one group of people. Well, I say that sex is a physical, binary characteristic that cannot be changed; that the terms “woman” and “man” refer to sex as such a characteristic; and that a person’s sex may be relevant to that person’s experience or relevant to other persons.
Colleagues, we have a choice: we can give women the protection that they need to talk about their reality in ordinary words safely, or we can endorse the view that just talking about that reality and what it means to them in their own words is, of itself, some form of attack and something to be condemned. I know what my choice is. It is the one that will let me leave this Parliament knowing that I fought right to the end for women’s rights, including the most basic right of all: the right for women to name those rights in their own terms.
I urge members to support the amendments in my name and particularly to support the amendment in Joan McAlpine’s name.
I want to touch on amendments 1, 34 and 11. The speeches from Johann Lamont and Joan McAlpine were absolutely excellent. Freedom of expression is for everyone—that is an important part of the bill.
I, too, was a bit concerned about judicial issues and going to court. However, having listened to members’ contributions—Adam Tomkins’s, in particular—I feel that amendment 1 covers most of the issues about which I had a bit of concern. I thank Adam Tomkins for amendment 1 and the cabinet secretary for amendment 11 and others—I am going to support all of those as well as Adam Tomkins’s amendments.
I have two wee questions. First, will the amendments to the bill apply to someone who happens to communicate or say something about a Government in another country and cover that against being a hate crime? That is very important to me, because I look at things internationally, not just in Scotland.
Secondly—perhaps the cabinet secretary will answer this—in talking about the bill and about how it is going to go through, members have raised the issue of people knowing about the bill. I suggest—I am sure that it will be in the bill—that, if we are going through with the bill, and particularly when it comes to freedom of expression, we need to ensure that Police Scotland officers are trained and told about the legislation and how they should approach it. I also think that the Crown Office and Procurator Fiscal Service has to be trained and educated about it. Most important, the general public has to be educated on what exactly the bill means—in particular, for freedom of expression.
I will leave it at that—whether the bill covers the two things that I have asked about.
There has been widespread concern and debate about the potential effects of part 2 of the bill on freedom of speech. Although there are strong protections against hate crime in the bill, it is important that there is clarity about what sort of speech is protected.
Scottish Labour welcomes amendments that seek to provide such clarity and that provide further reference to existing protections on freedom of speech that are afforded by the ECHR—by article 10, in particular.
We support the Government’s amendment 11, which provides for general freedom of expression whereby
“discussion or criticism” of any of the protected characteristics is not in and of itself to be taken as
“threatening or abusive.”
It is important that there is a general provision for that, rather than specific provisions that are aimed at specific groups—other than for religion, the provision for which is slightly different but widely accepted.
We also support the technical and consequential amendments in the name of Humza Yousaf, which replace the existing freedom of expression provisions and clarify the language in the bill.
We also support Adam Tomkins’s amendment 1 and his consequential amendment 34. Amendment 1 provides further clarity on rights under article 10 of the ECHR and reminds the police and the courts that, in the enforcement of the provisions, due regard must be had to those rights. Those rights under the ECHR are well established and well understood by the courts. They apply to
“information or ideas that offend, shock or disturb.”
I welcome the clarity that amendment 1 provides, and it is important that Parliament supports it.
In confirming our support for amendment 11, I noted that we believe that there should be a general freedom of expression provision. In general, it is bad law for legislation to be so prescriptive about what is allowed, as any text cannot cover every eventuality. We believe that general provisions such as those in amendment 1 better protect freedom of expression than non-exhaustive lists, which might be relevant only in the context of current political debate, so we cannot support amendments 11B and 11E. We accept that there will be deeply held or contested views on some of the characteristics that are protected under the bill, but we are not certain that that will be the case for all—for example, for age and disability. For that reason, we cannot support amendment 11C.
Finally, we will support amendment 11G, in the name of Joan McAlpine, and amendments 11D and 11F, in the name of Johann Lamont. Although those amendments may not be strictly necessary—especially should amendments 1 and 11 be agreed to—we believe that they will provide additional clarity and reassurance in the bill.
I thank Adam Tomkins. I am a member of the Justice Committee, and Mr Tomkins gave a very accurate résumé of the progress—yes, the progress—that has been made on the bill. I am sure that he will confirm that absolutely no one has been in touch to say that they were not in favour of freedom of expression, and he has rightly identified that fear has been stoked about the issue. I ask his colleagues to reflect on any role that they may have played in that stoking.
What we have is a threshold and a high bar, which has been raised as we have gone along. I perhaps have more confidence than some of my colleagues in the police’s judgment in dealing with reported incidents and in the Crown Office and Procurator Fiscal Service’s approach to prosecution.
It is disappointing that some people characterised the everyday operation of our legislature, with on-going talks between parties and the Government to resolve issues, as sinister. The convener and the cabinet secretary are to be commended for their work. There was extensive consultation and additional evidence was taken.
The Scottish Greens will be happy to support amendment 1, in Adam Tomkins’s name, and amendment 34, which will provide additional assurance. It is important that the court will have “regard” to the provisions. Likewise, we support amendment 11, in the name of the cabinet secretary, which is a product of the engagement to which I referred and which makes it clear that legitimate comment or criticism—including opposition to proposed reforms to gender recognition law—will not fall foul of the law.
The purpose of a freedom of expression provision is to provide the assurance that means that self-censorship is avoided when it comes to legitimate free speech, but that is not to carve a hole in the stirring-up offence. Should amendments 1 and 11 be agreed to, they will cover all discussion and criticism of any matters that relate to any characteristic.
Amendment 11B would add a list of matters that relate specifically to transgender identity. A previous speaker used a quotation, but it was not a complete quotation, so I will add an important word: it was about the inclusion of provisions that fundamentally undermine transgender people’s longstanding “convention” right to be legally recognised in their transitioned gender. Gender recognition has enabled trans women to be legally recognised as women for all purposes since 2004. Recognition has been in place longer when it comes to many areas, such as for the purpose of passports, driving licences and medical records.
Of course, people should be free to discuss and criticise that fundamental human right without being criminalised, unless they do so in a way that is objectively threatening or abusive and intended to stir up hatred. Amendment 11 already provides that reassurance. As the Equality Network said,
“to add into legislation a list of ‘approved’ statements that include attacks on the fundamental rights of one group of people is entirely wrong.”
The Presiding Officer:
I apologise for interrupting the flow of the debate on this group, but we are again up against the time limit that has been set for the debate. Let me explain what has to happen. Normally, we can allow only an extra 30 minutes for a debate, so we have to suspend the standing orders and then ask for another 30 minutes.
On a point of order, Presiding Officer.
Can you advise us about timings? Some members are not allowed to stay over and must take public transport, and the trains are running on a limited timetable. If we are going to stay late, that is fine. We just need to know that very early, so that we can arrange accommodation or whatever.
The Presiding Officer:
We are not at that stage at all, Mr Findlay. We voted this afternoon, before we started to consider the amendments, on a timetable for the debates at stage 3 that anticipated that we would finish considering the amendments at around 7 o’clock and then finish the subsequent debate at around 8 o’clock. We are running roughly 45 minutes behind, and we have extended for half an hour, but I am going to ask the Minister for Parliamentary Business and Veterans to move a motion to extend the debate for a further half hour.
I implore members to try to curtail their remarks a little so that we can catch up, but I recognise that this is an important debate and I want to allow time for it.
Minister, I am minded to accept a motion without notice to suspend the final sentence of rule 9.8.5A.
That the last sentence of Rule 9.8.5A be suspended.—[
Motion agreed to.
I am now minded to accept another motion without notice to extend the time limit by a further 30 minutes.
That the second time limit (and, as a result, subsequent time limits) be moved by up to a further 30 minutes.—[
Motion agreed to.
On a point of order, Presiding Officer. I seek guidance on timings. This is one of the best debates that I have heard in the Parliament, and it is important that members are allowed to have their say on these important issues. I foresee several extensions to the timings. Can some guidance be provided on what the finish time might be?
The Presiding Officer:
It is very difficult to say. The group that we are on now is perhaps one of the most contentious; others may not be quite as robustly debated, but we will see. Like you, Ms Smith, I recognise the need to debate these matters properly and fully, allowing members the chance to express themselves. I therefore ask that members try to do so concisely, if they can. I am not asking members not to speak, just to do so concisely.
On a point of order, Presiding Officer. As someone who is perhaps one of the culprits, I wonder whether it is possible for you to take soundings about moving the debate after the stage 3 amendments to tomorrow or to a point that parties could agree. That would mean that we could concentrate on the amendments without feeling that the last bit would be rushed or that it would be keeping people back.
I appreciate that people have caring responsibilities.
The Presiding Officer:
I recognise that point of order. I have already taken soundings on the issue and, at that stage, business managers were not minded to move the debate.
However, things might change as the evening progresses, so I will take soundings again on the issue. I stress again that these technical matters about process should not get in the way of the debate. It is very important that members have the confidence to express themselves and feel satisfied with the nature of the debate. As far as I am concerned, that is what is happening at the moment.
We move back to the debate, and I call Jenny Marra to be followed by Patrick Harvie.
I am glad that the Presiding Officer said that, because I am keen to express myself as fully as I feel is necessary. Amendment 1 in the name of Adam Tomkins is helpful, but it does not go far enough. I speak in support of the amendments that have been lodged by my colleague Johann Lamont.
Hate is now such a contested term, and I am worried that members of the Parliament are complacent about the atmosphere in which women are currently arguing that sex continues to matter in shaping their experiences of the world. I know that from my experiences over the past two years. I was branded online as hateful for questioning NHS Scotland’s policy that stated that a baby’s gender was assigned at birth. I know that not to be true and that my son’s own sex was clearly observed and recorded at birth, but for that to be branded as hateful is perhaps an example of the atmosphere that we are operating in.
The campaign group Women’s Place UK, which submitted written evidence on the bill at stage 1, told us about the violent threats and protests that it has faced at almost all of its 27 public meetings, including a bomb threat. I was at the meeting that Johann Lamont talked about, as were many colleagues in the chamber, and never in more than 25 years of going to political meetings have I felt the intimidation that I felt then.
That was at the University of Edinburgh and, just yesterday, its student newspaper reported that “transphobic stickers” had been found on campus. Those stickers included one that said:
“Do you believe that male-sexed people should have the right to undress and shower in a communal changing room with teenage girls?”
When similar stickers were found on campus previously, an activist group encouraged people to report them to the police. The university principal was reported to have said that the perpetrators would be traced via closed-circuit television footage and he reported the stickers to the police.
Adam Tomkins told us that the test is that the person shows that they were being reasonable in the circumstances. I ask him about the sticker posters and the University of Edinburgh principal—were they being reasonable in the circumstances? I do not think that the Tomkins amendment is clear enough. Professor Tomkins knows as well as I do that, over the years, the courts have been biased in relation to women. Indeed, a book, which draws on Scottish examples, was written about the matter by Helena Kennedy, the very person who is heading up the working group.
We know that there has been bias over the years. It was just about two years ago that a dental student in Scotland got off with sexually abusing a young girl because the male sheriff said that it would be harmful to that student’s dental career to have the crime against his name. The bias is apparent, so I ask Professor Tomkins, does his amendment not require the more specific detail that Johann Lamont has provided? His contribution in the group 2 debate, in which he said that more specifics are required in the legislation, suggests that perhaps it does.
I will draw to a close by saying that, in such an atmosphere, anything short of a provision that puts beyond doubt that basic statements about sex are not of themselves abusive under the bill will leave women exposed to unpredictable judgments by front-line police officers and the courts, and, before that, maybe even their employers. The only safe option for women will be constant self-censorship, which will have an invisible corrosive effect that is antithetical to healthy democratic debate. The Parliament should not be so complacent about setting up such a situation.
I draw members’ attention to my entry in the register of members’ interests, which shows that I am a member and supporter of a number of equality groups that, for decades, have fought for not only my human rights, but the human rights of many others.
I certainly do not intend to speak in the debates on all the groups today, but I feel the need to contribute to the debate on this group, especially given the extraordinary personal comments that were made about me earlier.
We all know that legislation that we pass in the Parliament cannot breach the ECHR. If it attempts to do so, it can be struck down by the courts. We also know that a stirring up hatred offence has been in operation for decades without having been found to breach freedom of expression rights. However, not everybody knows that such a protection exists; therefore, if there is a need for reassurance in the bill that does not undermine the operation of the offence, which has been agreed though cross-party discussions and led to amendment 11, so be it. However, some members have instead sought, either directly or tacitly, to have the bill endorse behaviour that is prejudiced, even if it is not in the scope of the offence.
We have already seen attempts to secure explicit legal protection in the bill for practices such as deadnaming and misgendering. Although it might be possible for such expressions to be made in ways that do not meet the tests of the offence, nobody should be in any doubt that they very frequently form the basis of abuse that is directed against trans people in our society. Now, among other troubling amendments, amendment 11B seeks specific legal protection, not for all views on a contentious topic, but solely for the expression of three beliefs, which, taken together, represent a position that is incompatible with the Gender Recognition Act 2004 in any form. That act has been in place for more than 15 years precisely because its absence was ruled a breach of trans people’s human rights.
Although some people seem unwilling to acknowledge the existence of transphobia, and even seek to defend its proponents, recent years have seen the growth of an extraordinary wave of hostility to trans people in politics and in the media, and promises made to them by all five parties here in this Parliament have been broken. Attacks against their equality and human rights and their access to healthcare are routine, as are attempts to claim that everyone who supports trans equality is a misogynist.
Of course, I am not referring just to the spurious and absurd allegations that have been made against me; that claim also ignores the fact that so many of Scotland’s women’s and feminist organisations are intersectional and trans inclusive, which rejects the idea that trans people’s rights and women’s rights are in conflict. Even well respected organisations such as Rape Crisis Scotland and Glasgow Women’s Library have been denounced as misogynist, simply because they do not discriminate against women who are trans.
Of course, all that is deeply harmful to trans people, and the situation would be made far worse today if Parliament agreed to amendments that seem to legitimise such attacks against them. However, we should also be clear about the deeper threat. Anti-trans campaigners are openly working with religious far-right organisations from the US, which, in turn, are open about their strategic goal of using trans equality as a wedge issue, in order to fragment the equalities movement. At least one such organisation is already active in Scotland and has been quoted approvingly by members of this Parliament. Let us not kid ourselves that, if they succeed in opposing trans people’s equality and human rights, they will be satisfied with that. Their next target might be sex education, equality in family law, HIV drugs on the national health service or abortion rights. We do not need to look far to find anti-trans activists arguing against all those things.
I was elected to this Parliament in 2003 in the wake of the defeat of the appallingly hostile and prejudiced campaign to prevent the repeal of section 2A of the Local Government Act 1986. That issue was a test case and, since then, this Parliament has never voted directly to oppose the equality and human rights of Scotland’s queer community, although there have been some close calls. It is dismaying to see amendments today that would end that proud track record.
I hope that the Parliament will reject the hostile amendments in this group, which are designed not to improve the treatment of hate crime in our society but to further an agenda of fragmenting the equalities movement because, whether in the remaining days of this parliamentary session or in the years ahead for the next, that is an agenda that threatens not only trans people; ultimately, it will threaten any and every marginalised group whose rights have been won by solidarity and are opposed by those who seek to fragment us against one another.
I think that we are now quite clear about Mr Harvie’s views and motivations. I had remarks that I wanted to make, so I was not going to do this, but I will read out a tweet about last week’s international women’s day debate. The tweet said:
“Oh there’s a bit of vicious transphobia in the #IWD2021 debate. Thanks Johann.”
The reply from Mr Harvie said:
“I’m sorry to say we can expect more of that when it comes to stage 3 of the Hate Crime Bill.”
I ask everybody in the chamber to look at those international women’s day speeches last week then tell me where the transphobia was in any of them.
Presiding Officer, I rise to support the amendments in the name of Johann Lamont and Joan McAlpine. I will also support amendment 1, which is in Adam Tomkins’s name.
Many grass-roots women’s groups, some religious bodies and many constituents have expressed concern to me about freedom of expression. They are concerned that the Government’s amendments do not go far enough to protect free speech. Women are particularly concerned that the Government’s amendments will not be enough to prevent the chilling effect on women’s ability to discuss and debate their rights.
We are seeing that being played out just now. If anyone wants to go on to Twitter to see what people are saying about me and Johann Lamont, they will find that there are some chilling effects already. The rights that we want to discuss—the rights that exist in law—are protected for good reason and are based on the United Nations Convention on the Elimination of All Forms of Discrimination Against Women.
I have to say that I am now extremely careful about what I say about rights that I have taken for granted in the past. I cannot believe that that is what women face in 21st century Scotland. It is shocking that they are being silenced from speaking about rights that are protected by law—they are self-censoring, as Jenny Marra said.
I am conscious that any reference to sex-based rights, sex discrimination and sexism—not gender—will immediately attract accusations that I am being hateful or transphobic. My carefully drafted factual speech, much of which was based on my lived experience as a woman, for last week’s international women’s day debate, was attacked in that way. As I said, we see such attacks right now all over Twitter.
Therefore, I will support the amendments from Johann Lamont and Joan McAlpine, which will give clarity to those, including the police, who will have to interpret the legislation.
I echo Liz Smith’s earlier comments. Contributions that we have heard on this group of amendments have probably seemed shocking, disturbing and offensive to some, but everything that has been said needed to be said, in the context of the debate.
Johann Lamont spoke very passionately on the issue from her perspective, and her voice needed to be heard in the debate, as did Patrick Harvie’s. Although I cannot necessarily support Johann Lamont’s amendments, I thank her for pursuing the matter through stage 2 and stage 3, and for providing colleagues with very detailed and cogently argued evidence to support her amendments.
I also thank Adam Tomkins for the way in which he initiated the debate on the group, which is the way in which he has stewarded the committee through the scrutiny process. He laid claim to having helped to secure the reasonableness test. I merely claim to have pushed the cabinet secretary towards making the stirring up offences intent only, on the back of the debate that we had in September. I certainly agree with him that, even in combination, those two changes were insufficient, which is why we are back here considering stage 3 amendments.
The amendments are at the crux of the debate on the bill. The Justice Committee has faced a fairly remarkable challenge in how to strike an appropriate balance between, on one hand, protecting those who might be vulnerable to hate speech and, on the other, protecting our fundamental right to freedom of expression. Of course, that right is not unfettered, but nor should it be unduly constrained by a requirement to be polite or respectful. In the words of Lord Justice Sedley, who is the unofficial patron saint of the bill, so frequently has he been prayed in aid:
“Freedom only to speak inoffensively is not worth having”.
However, striking the appropriate balance by turning intention and aspiration into black-letter law has proved to be enormously challenging.
At stage 2, various amendments were lodged that sought to provide protections in relation to speech and debate around various protected characteristics, but none was entirely satisfactory. My attempt involved adopting a broader catch-all provision, rather than applying different thresholds for different characteristics. That approach, if not the precise wording of my amendment, seemed to attract majority support, and it has formed the basis of amendment 11, which has been lodged by the cabinet secretary.
Amendment 11 offers reassurance on freedom of expression for each of the new characteristics that are added in the bill. It avoids singling out and reflects the fact that freedom of expression is a general right that should apply across all subjects. The exception, of course, relates to religion, which reflects the pretty much universal support that the committee heard from representatives of faith groups, the Humanist Society Scotland and other key stakeholders, for the bill to go further in that area. That can be justified in making a distinction between, for example, the right to ridicule or express hostility towards ideas and beliefs, and hostility that is directed towards an individual’s identity, which would be more problematic. Others have reflected on that, particularly in relation to disability.
Amendments 13 and 14, which will remove sections 11 and 12, are also sensible and to be welcomed. Nothing here, though, requires anyone to subscribe to any particular belief or to express themselves in ways that suggest that they do—which I hope helps to address the point in Johann Lamont’s amendment 11D—nor do any of the provisions in the bill cut across an individual’s rights under the ECHR. However, I accept that, as Adam Tomkins set out, amendment 11 on its own is insufficient. In that light, I very much welcome amendment 1, which makes explicit reference to the ECHR. Importantly, it would put in the bill the general principle that the right of freedom of expression applies to
“the expression of information or ideas that offend, shock or disturb.”
As Adam Tomkins suggested, that perhaps renders Joan McAlpine’s amendment 11G redundant. My sense, too, is that amendment 1 would meet with Lord Sedley’s approval.
Although I am nervous about the regulating powers that Johann Lamont seeks to introduce under amendment 11E, there is no doubt that there is merit in the argument that future Parliaments will need to keep the issues under review. We do post-legislative scrutiny far too rarely in the Parliament, but the bill is perhaps an obvious example of where it could usefully and sensibly be deployed.
I will try, Presiding Officer, but this is a helluva debate to try to respond to and to wind up. It has been an extraordinary and outstanding debate. As everybody knows, I am shortly to leave the Parliament and am not seeking re-election. I have had my criticisms of things that have been going on in this place in the past few weeks and I have no doubt expressed myself sometimes in a manner that has offended, shocked and disturbed others. However, the treatment of the bill and, indeed, the debate this afternoon have shown the Scottish Parliament at its best, which is not to say at all that I agree with everything that has been said.
I will start with something that Patrick Harvie said: that he found aspects of Johann Lamont’s amendment 11B “troubling”. I have to say that I am deeply troubled by that remark, because there should be nothing troubling about an amendment—it is not my amendment—that simply seeks to set out what speech in the context of the debate around transgender identity is lawful and acceptable, even if it upsets people, and what speech is not. Saying or even arguing robustly that sex is a physical binary characteristic that cannot be changed is not a hate crime under this legislation and there should be no doubt about that. Saying that the terms “woman” and “man” and related terms refer to sex as such a characteristic is not a hate crime under this legislation and there should be no doubt about that.
Whichever side of the argument one is on, is it not going into too much detail in the legislation to have that kind of thing in it?
Yes, I think that it is, but that is not my amendment. However, I have to say that, as I leave the Parliament, I am troubled that members of the Parliament are themselves troubled by amendments that seem to me to be innocent, such as Johann Lamont’s amendments.
To answer Mr Mason’s question, I do not think that we need to go there if we accept amendment 11, in Humza Yousaf’s name, and amendment 1, in my name. I thank the cabinet secretary for his support for amendment 1 and I also thank Joan McAlpine, Sandra White, Neil Bibby and Elaine Smith for voicing their support for amendment 1. More broadly than that, I thank John Finnie and Liam McArthur for their kind words, not just about amendment 1 but about my role in the making of the legislation more generally.
The cabinet secretary came to give evidence at the beginning of the Justice Committee’s discussions of freedom of speech and the hate crime bill. He said that he recognised that we in Parliament must do two things about freedom of speech in the bill: we must both broaden and deepen the protection of free speech.
The cabinet secretary’s amendment 11 broadens the protection of free speech and my amendment 1 deepens it. The combination of those two amendments, with no conflict between them, will achieve that aim of broadening and deepening the protection of free speech.
Joan McAlpine, Johann Lamont, Jenny Marra and Elaine Smith voiced sincere and deep concern about whether even that combination of amendments goes far enough. Johann Lamont said that my amendment 1 offers hope but no guarantees. Joan McAlpine said that good laws should not be made by crossing our fingers. I do not often agree with Joan McAlpine, but I absolutely agree with her on that point.
I agree with Johann Lamont that amendment 1 does not offer guarantees, because I do not think that we can do so. What we can do when we make criminal law is offer clarity. My concern from the beginning has been to guard against vagueness in the hate crime bill by offering clarity as a solution and to guard against overbreadth by narrowing the scope of the offences as a solution to that. As Neil Bibby said, that combination of amendments delivers the clarity that we need in our criminal law.
I say respectfully that women who have faced this may strongly feel the need for more than Adam Tomkins’s perception of what clarity is. We heard a speech from a colleague who made very clear that what I had put in amendment 11B was hate speech. What assurance and clarity can Adam Tomkins give to me and to the women who want to express their views in this regard that our words will not end up being reported as a hate crime? There is evidence in front of him—we have been told that what is said in amendment 11B is hateful. What consequence comes from that for us? What clarity do we have in that regard?
What is in the amendment is hateful in that member’s subjective opinion, but that does not make it a hate crime or make it criminal. Any of us can throw around accusations or allegations of transphobia or of any other kind of phobia, but that does not make it criminal.
In order for a point of view to be criminal, if amendments 1 and 11 are accepted, it must be not merely hateful, transphobic or offensive but threatening or abusive. There is nothing threatening or abusive in anything that anyone has said here. It would have to be intended to stir up hatred and the Crown would have to prove that on corroborated evidence. It would have to be unreasonable in the circumstances and, if amendment 1 is accepted, it would also have to be proved to be speech that is more than merely offensive, shocking or disturbing.
No one of the amendments offers the guarantee or the clarity that Johann Lamont is looking for, but they do when taken together.
Part of the problem that we have wrestled with throughout the process is the risk or threat of people bringing complaints. There seems to be no way of writing something into law that will remove that risk. This point might be better directed to the justice secretary than to Mr Tomkins as convener of the Justice Committee, but is there anything that can be done to provide some assurance about the way in which the police would respond to any complaints that are made?
That is the point that I was going to close on. It was addressed very powerfully by someone else with whom I do not always agree, Sandra White. She said that much of the answer to this will depend on police training. The police must be appropriately trained about the parameters of the criminality that we are setting down. I believe that that must happen not only with regard to freedom of speech but with regard to privacy, although I will not reopen that debate. If the police are well trained, we can get a long way there.
I just want to make the point that there is one way of making it clear in law that it is entirely reasonable for anybody to make these points, and that is to put it into the law. The only reason why I am asking for it to be put into the law is precisely because folk have complained that they are hate speech. Frankly, it is not a comfort for me to know that I am going to have a good case when I get to the court. I would quite like to be told that I am allowed to say that without any danger of being reported to the police.
There are two things that we can do. The other thing, of course, is to do what Neil Findlay suggested, which is the same as what Liam Kerr suggested all the way back in September, and take the bill off the table. We will all have a choice, whether it is tonight or tomorrow, to vote for or against the bill at stage 3. If members do not believe that the bill is fit for purpose, they should not vote for it. We could then invite the next Scottish Parliament, which will soon be elected, to revisit the issues in the light of all the debate that we have had. We have been trying to put forward that proposition for some months, but we have not yet had any support from anybody in other parties.
Presiding Officer, what do I have to do now? I think that I need to press amendment 1.
The Presiding Officer:
That was a successful conclusion, Mr Tomkins. Thank you. [
] Unanimity has broken out.
Amendment 1 agreed to.
Amendment 5 moved—[Adam Tomkins].
The question is, that amendment 5 be agreed to. Are we agreed?
The Presiding Officer:
There will be a one-minute division.
Voting is now closed. Members should let me know if they were unable to vote.
Presiding Officer, I was unable to access the system. I would have voted no.
Presiding Officer, I was unable to access the app. I am still struggling to do it now. I would have voted no.
The Presiding Officer:
Thank you, Mr Paterson. I will make sure that your name is added to the tally.
The Presiding Officer:
The result of the division is: For 53, Against 69, Abstentions 0.
Amendment 5 disagreed to.
Amendments 2 and 3 not moved.
Amendment 6 moved—[Liam Kerr].
The question is, that amendment 6 be agreed to. Are we agreed?
The Presiding Officer:
There will be a division.
The vote is now closed. Please let me know if you were unable to vote.
On a point of order, Presiding Officer. I am afraid that I was unable to tune in again. I would have voted no.
On a point of order, Presiding Officer. I would have voted yes on amendment 6.
The Presiding Officer:
The result of the division is: For 30, Against 91, Abstentions 1.
Amendment 6 disagreed to.
The Presiding Officer:
There will be a division.
The vote is now closed. I ask members to let me know if they were not able to vote.
On a point of order, Presiding Officer. I am sorry about this, but again I was unable to vote. I would have voted no.
The Presiding Officer:
Thank you, Mr Paterson. You would have voted no. I will make sure that your vote is added.
The Presiding Officer:
The result of the division is: For 51, Against 70, Abstentions 0.
Amendment 11G disagreed to.
Amendment 11B moved—[Johann Lamont].
The question is, that amendment 11B be agreed to. Are we agreed?
The Presiding Officer:
There will be a division.
The vote is now closed. Please let me know if you were not able to vote.
On a point of order, Presiding Officer. I was not able to vote. I would have voted no.
The Presiding Officer:
Thank you, Mr Paterson. You would have voted no. I will make sure that that is added.
The Presiding Officer:
T he result of the division is: For 36, Against 84, Abstentions 1.
Amendment 11B disagreed to.
Amendment 11C moved—[Johann Lamont].
The question is, that amendment 11C be agreed to. Are we agreed?
The Presiding Officer:
There will be a division.
The vote is now closed. Please let me know if you were not able to vote.
On a point of order, Presiding Officer. I was unable to vote yet again. I would have voted no.
The Presiding Officer:
Thank you, Mr Paterson. You would have voted no. I will make sure that that is added.
On a point of order, Presiding Officer. My app seems to have frozen again. I would have voted no.
The Presiding Officer:
The result of the division is: For 34, Against 86, Abstentions 1.
Amendment 11C disagreed to.
Amendment 11D moved—[Johann Lamont.]
The question is, that amendment 11D be agreed to. Are we agreed?
The Presiding Officer:
There will be a division.
The vote is now closed. Please let me know if you were unable to vote.
The Presiding Officer:
Thank you very much. I will make sure that that is added. You would have voted yes.
On a point of order, Presiding Officer. I am afraid that I could not vote again. I would have voted no.
On a point of order, Presiding Officer. My vote has not registered, and I would have voted yes.
The Presiding Officer:
The result of the vote is: For 52, Against 69, Abstentions 0.
Amendment 11D disagreed to.
Amendment 11E not moved.
Amendment 11F moved—[Johann Lamont.]
The question is, that amendment 11F be agreed to. Are we agreed?
The Presiding Officer:
There will be a one-minute division.
The vote is now closed. Please let me know if you were unable to vote.
On a point of order, Presiding Officer, yet again. I would have voted no.
The Presiding Officer:
Thank you, Mr Paterson. You would have voted no. I will make sure that that is added.
The Presiding Officer:
The result of the division is: For 52, Against 69, Abstentions 0.
Amendment 11F disagreed to.
Amendment 11 moved—[Humza Yousaf]—and agreed to.
Section 11—Protection of freedom of expression: religion:
Amendment 13 moved—[Humza Yousaf]—and agreed to.
Section 12—Protection of freedom of expression: sexual orientation:
Amendment 14 moved—[Humza Yousaf].
The Presiding Officer:
The result of the division is: For 93, Against 29, Abstentions 0.
Amendment 14 agreed to.
Section 13—Interpretation of Part 2:
Amendment 34 moved—[Adam Tomkins]—and agreed to.
Amendment 15 not moved.
Section 14—Meaning of the characteristics:
Amendment 16 moved—[Humza Yousaf]—and agreed to.
Amendment 17 moved—[Johann Lamont].
The Presiding Officer:
There will be a division.
That vote is now closed. Please let me know if you were not able to vote.
The Presiding Officer:
The result of the division is: For 51, Against 67, Abstentions 0.
Amendment 17 disagreed to.
We have reached the end of voting on group 3. We will now have a short suspension.
I am not sure whether members will consider this good news, but business managers have agreed that we will postpone the debate on the bill until another date, which will probably be tomorrow. However, there are still four groups of amendments to get through, so I would like to consult business managers and any of the main participants in the debate who might wish to join us. I ask them to come down to the well of the chamber in a few seconds to discuss how much progress, or otherwise, we can make tonight.
However, we must still have decision time tonight, because a number of important votes must take place.
I suspend the meeting for at least five minutes, after which I will summon members back to the chamber.
19:46 Meeting suspended.
19:56 On resuming—
We are now back in session. I will just update members on where we are. Business managers have agreed to postpone the debate on the bill until tomorrow.
However, we think that we can make progress through the remaining four groups. It is slightly difficult to time things exactly, but we think that we will be able to get through those groups and have decision time before 9 o’clock—that is what we hope. There will be a five-minute pause between the end of consideration of amendments and decision time, to ensure that members are available, because decision time is now quite delayed.
Group 4 is on the characteristic of sexual orientation. Amendment 35, in the name of Johann Lamont, is grouped with amendments 36, 39 and 40.
Before I speak to the amendments, I note that Patrick Harvie was concerned that there had been an “extraordinary personal” attack on him. For the avoidance of doubt, I point out that I literally quoted his own words and said that I defended his right to say whatever he wished to say.
Also, in the context of the bill, it is important to note that he is quite right to say that Parliament has a proud record of action on LGBT issues. I recall that when section 2A was debated in the chamber, there were, among those who fought hardest for its repeal, some very brave women, including Wendy Alexander, who was pilloried for her troubles. Therefore, the idea that the group of women whom I represent are funded by the alt-right or conservative American groups is ludicrous. I respect anyone who disagrees with me, but the idea that I or the women whom I speak for are funded by some mysterious deep-state conservative group could not be further from the mark.
Amendments 35 and 36 would amend two of the three definitions in section 14(6), which defines sexual orientation. They would amend subsections (b) and (c), which describe those who are not exclusively same-sex attracted as having a sexual orientation towards people of “a different sex”. The amendments would change “a different sex” to “the other sex”.
Amendments 39 and 40 are consequential, and would make the same change in a proposed new section on police recording. The effect of the amendments would be to put beyond doubt that the legislation is based on the understanding that there are only two sexes. When I raised the issue at stage 2, the cabinet secretary argued that the term “different sex” is needed in order to be inclusive of non-binary persons. That argument concerns me—although, of course, it is essential that we are respectful and inclusive in our legislation.
Section 14(7) of the bill provides that “non-binary” is a “transgender identity”—not a sex.
My amendments in group 4 would therefore make sure that we do not legislate in a way that would confuse sex with gender identity. As we have debated previously—it is a distinction that the cabinet secretary and many of his Cabinet colleagues have made and recognised—we ought not to conflate gender and sex. The cabinet secretary has been clear that he does not want to do that, so I was surprised by his argument at stage 2. I hope on this occasion to hear that the official understanding of sex in Scotland remains that female and male are the only ones that we have.
I move amendment 35.
The existing bill language—“persons of a different sex”—is consistent with other Scottish legislation over the past decade, including the Marriage and Civil Partnership (Scotland) Act 2014 and the Civil Partnership (Scotland) Act 2020.
As I said at stage 2, I was a member of what was then the Equal Opportunities Committee, which scrutinised that legislation, and I do not recall that the issue was a feature in what many will recall was a very rigorous debate. Changing the language would be inconsistent.
I am particularly concerned about unintended consequences, so I will relay the information that the Equality Network and Scottish Trans Alliance have shared with members about that. They said:
“It is likely also to mean that the statutory aggravation could not be applied where a sexual orientation hate crime was committed against a person because they are in a relationship with a non-binary person (that is, because their partner is presumed to be neither of the same sex nor of the other sex to them, but of a different sex). It is important to bear in mind that what matters for the application of the statutory aggravation is the motivation of the attacker, and what the attacker presumes the sexual orientation of the victim is. The actual identity or legal sex of the victim or their partner is not relevant.
Non-binary people are explicitly included in the transgender identity characteristic in the bill, and it is consistent, and important, that their relationships are also included in the sexual orientation characteristic.”
I hope that colleagues will resist Ms Lamont’s amendments in group 4.
Amendments 35, 36, 39 and 40 in the group aim to alter the definition of sexual orientation in the bill. I know that members of the Justice Committee discussed that at stage 2 and, as John Finnie said, the language that is currently included in the bill, which refers to “persons of a different sex” is in line with other Scottish legislation such as the Marriage and Civil Partnership (Scotland) Act 2014 and the Civil Partnership (Scotland) Act 2020. As others do, I understand the concerns that have been raised about the need for consistency with other Scottish legislation.
As John Finnie also said, concerns have also been raised that the amendments could lead to unintended legal consequences, whereby some people could, through a narrow change in wording, find themselves losing the protections that are afforded by the bill. That could lead to a situation in which a victim who is in a relationship with a non-binary person, who identifies as being neither male nor female, would not be caught under the proposed new definition. It is important that the bill provides clarity on who is covered by it and what obligations it is placing on people’s speech. By changing the wording as is proposed in the amendments in group 4, we might, unfortunately, lose that clarity.
Presiding Officer, I will be equally brief.
I agree with and associate myself with the comments of Neil Bibby and John Finnie.
That is not to dismiss the concerns that Johann Lamont has raised. However, our two arguments have always been about precedent and inclusivity. The point has already been made that precedent is in Scottish legislation that has been passed by the Parliament and which was, in fact, voted for by Johann Lamont.
We have used the term that is used in the bill: “different sex”. The reason why we have done that is to be more inclusive. The term has done, and will do, no harm in legislation. That is not just my view; it is the view of those who support equality—our stakeholders including the Equality Network and Stonewall Scotland. Although I do not dismiss the points that Johann Lamont made, we believe that the bill is using the most inclusive term that includes non-binary people.
Of course we wish to be inclusive. Who would not want to be inclusive? However, it is clear in the legislation that non-binary is a transgender identity, not a sex.
If we want a debate in the Parliament about whether there are two sexes, we should have that debate. I am aware that that is a live debate in parts of our community. People believe that sex is on a spectrum and that sex is assigned at birth, not observed. Those are entirely legitimate things for people to argue, but if we want to have that debate we should have it and we should vote on it, so that it is clear.
What is happening here is that we are creating the impression that there are more than two sexes without having the debate on whether that is the case. There is language creep in the bill. When it talks about
“persons of a different sex”, it means that there are more than two sexes. We know that—yet we know that non-binary people regard themselves as having a transgender identity. That should be respected.
The case of a person who is targeted for having a preference for non-binary sexual partners has been raised, but section 1(5) already covers that, by providing that an aggravator applies when a person is targeted for offending because of their association with any person with any protected characteristic. Any offending that the person in that case suffered would be recorded as being motivated by prejudice against transgender identity. That would be right. Therefore, we do not need to confuse sex and gender identity to provide for any such case.
I repeat that we do not require to conflate the two terms. The language that I have used is consistent with that of the Equality Act 2010, but since stage 2, to try to be helpful, I have said “the other sex”, rather than what the Equality Act says, which is “the opposite sex”. The same point remains. The fundamental question of whether there are two sexes or whether sex is a spectrum is something that we have to decide. We do not decide it by putting it in a bit of legislation, which will be referred to later.
The minister could have settled the point for me if he had simply said that there are two sexes.
I agree with the member’s fundamental argument that there are only two sexes, but I wonder whether this is the best bill to put that in and whether we should put it somewhere else.
I think that I made that point. If people think that sex is on a spectrum, they should introduce a bill in that regard and we can vote on it. What is currently happening is that language is being imported into legislation without our having that discussion. Members say that the language is reasonable and sensible and all the rest of it, but then they will discover that people are arguing
, “You have already conceded the argument that sex is a spectrum, because—look—here it is in that legislation.”
I emphasise that non-binary people themselves regard themselves as having a transgender identity. We have to respect that.
If a Government minister is not happy saying, in the Parliament, that there are two sexes, how does he expect a high school biology teacher to feel safe doing so? What about a modern studies teacher who is trying to help her class to explore the issues?
It comes back to the point about confusing sex with gender identity. In that confusion, some of the argument about transphobia and hatred emerges. As Adam Tomkins said, the law should be clear. It should not signal; it should be clear. If we want to make that decision, we should do so. As the law stands, there are two sexes, but people are finding themselves caught up in being reported to the police for saying so.
That is why we need to make laws that are clear and not set precedents that are ambiguous. The language should put beyond doubt that, as a Parliament, we understand that there are only two sexes. I urge members to support amendment 35.
The Presiding Officer:
There will be a division. This is a one-minute division.
That vote is now closed. Please let me know if you were not able to vote.
On a point of order, Presiding Officer. I was unable to vote and I would have voted yes. [
] I got carried away.