Meeting of the Parliament (Hybrid)10 March 2021
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.