Meeting of the Parliament (Hybrid) 09 September 2020
Of course I acknowledge that, because there are all their submissions. My point is very clear: those are all opinions and views that have been very carefully thought through and deserve airing and consideration. I take Mr Harvie right back to the point that I made at the start of my speech: we are on a very tight legislative programme, and the committee has to produce a stage 1 report by late December.
I was talking about part 2, and the issues that had been raised in summary. I will give one example. Forwomen.scot said:
“Had the Bill been law during the period of consultation on reform of the Gender Recognition Act 2004 ... Many women would have been terrified to voice their concerns under threat of possible prosecution”.
The justice secretary’s stated position is that
“it will rightly be a matter for our independent courts to determine whether an offence has been committed on the basis of an independent, objective assessment of the available evidence.”
However, it is not good enough to say that the courts will decide, without any case law, where the threshold for criminality is. There is no basis on which judges can take such decisions, unless and until people find themselves in court having to prove their innocence.
Roddy Dunlop QC is right to question whether, for example, comedians will feel comfortable telling jokes that some people might find offensive. In relation to whether a person’s behaviour would have been likely to stir up hatred, the Sheriffs Association concluded that
“It will be exceptionally difficult to direct a jury on these matters.”
All that is before we even have a full investigation of the costs. I know that the justice secretary is well aware that the Scottish Police Federation has said that the financial memorandum’s estimated cost of the bill is grossly underestimated. It also said that several policing costs are unaccounted for in the memorandum, including the costs of investigating complaints against officers.
All that gets us to the final part of my motion, and the solution for which I seek Parliament’s support today. The justice secretary states that he wants to create
“robust laws”
that
“will ensure action can be taken against perpetrators and send a strong message ... that offences motivated by prejudice are not tolerated.”
However, the bill is not robust; it is vague in the extreme. I have a real concern that properly investigating, scrutinising and making these complex changes in the context of there being 2,000 written submissions is not possible in a crowded parliamentary timetable. The situation has been further complicated by the coronavirus pandemic.
The bill has been introduced with the best of intentions—to address a pernicious and malevolent presence in society—but as drafted, it risks undermining those intentions. I desperately want to ensure that the committee has the time to scrutinise the bill properly, but the unprecedented response to it means that time is not on our side.
The MurrayBlackburnMackenzie collective says that we have barely begun to work through the evidence and do not know what further points relating to part 1 have been made. I fear that part 2 will suck all the oxygen out of the debate and will polarise us, thereby stifling debate around the real and difficult challenges in other parts of the bill.
The Faculty of Advocates said that, in light of the difficulties that exist in the current text, it
“considers that there is no alternative but to reconsider the draft bill”.
That is the solution that I propose in my motion: to withdraw the bill and immediately begin work with stakeholders and others to draft and bring forward as quickly as possible the legislation that is needed to tackle hate crime in Scotland, without threatening freedom of speech.
The legislation is far too far-reaching and important to risk getting it wrong. Bad legislation is not the way to stop bad behaviour. By pushing ahead with the bill as drafted, the Government might lose the chance to achieve an updated and fully modernised approach to legislating for hate as an aggravator, which people on all sides of Parliament could pass with pride, and which would command strong public support and the support of those who would be putting the law into practice.
For all those reasons, I move,
That the Parliament believes that hate crimes are a blight on society in Scotland and must be dealt with robustly; notes that the right to freedom of expression is the cornerstone of democracy and must never be compromised; believes that the significant number of responses to the Scottish Government consultation on its proposed Hate Crime and Public Order (Scotland) Bill highlight the significant and valid concerns that the Bill would be an attack on free speech, and urges the Scottish Government to accept these criticisms, remove its proposed Bill and immediately begin work with stakeholders and others to draft the legislation that is needed to tackle hate crime in Scotland, while not threatening to make free speech a crime.