Hate Crime and Public Order (Scotland) Bill: Stage 3

Part of the debate – in the Scottish Parliament at on 10 March 2021.

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Photo of Johann Lamont Johann Lamont Labour

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.