Meeting of the Parliament (Hybrid) 09 September 2020
I welcome John Mason’s intervention and I hope that that is a sign that Government back benchers are looking to amend the legislation.
As I was saying, Lord Bracadale stated that
“Stirring up hatred is conduct which encourages others to hate a particular group”
and that
“the intention of the perpetrator is that hatred of the group as a whole is aroused in other persons. Hate is primarily relevant, not as the motive for the crime, but as a possible effect of the perpetrator’s conduct.”
The need for intent is an important principle in criminal law and it cannot be easily cast aside, especially in such serious matters as these. In England and Wales, there must be an intention to stir up hatred in offences relating to religion and sexual orientation.
Under the Criminal Justice and Licensing (Scotland) Act 2010, the general offence of “threatening or abusive behaviour” requires both that “a reasonable person” would “suffer fear or alarm” and that the person must intend the behaviour to cause that fear or alarm or “be reckless” as to whether it would do so.
Under the current drafting, part 2 of the bill includes a general defence of reasonableness. However, contrary to specific defences previously provided for in the Public Order Act 1986, the bill has only a general defence of reasonableness, which is more wide ranging and open to interpretation.
Part 2 also contains provisions for the protection of “freedom of expression” with regard to religion and sexual orientation, although some people have pointed out that needing to reference that protection says more about the potential impact of the bill than it offers reassurance.
Where the door is left open to use the law to stymie debate, the law will not protect those who it is meant to protect. We need not just a law on hate crime but a good law on hate crime.
I welcome the cabinet secretary’s commitment today that he will work with others, because the Scottish Government cannot dig its heels in. It must listen to concerns and act on them.
The checks and balances in this Parliament must be used to the full in order to scrutinise the legislation and make sure that it works for all Scots. It will be unacceptable for the Government simply to use its committee members to nod through legislation; to do so does us all a disservice.
Government back benchers have a job to do and they have to get it right. Their job is not to defend defective drafting; it is to defend the national interest. They must listen to the concerns expressed and find ways of making the legislation work. If they cannot do that, we will withdraw our support; if the bill proceeds, there are two further occasions when the Parliament can vote it down. It would be our duty to do that if the legislation was defective.
I move amendment S5M-22636.3, to leave out from “, remove” to end and insert:
“; has serious concerns about Part Two of the Bill as currently drafted and considers that it will require substantial revision if it is to be fit for purpose, and urges the Scottish Government to work with stakeholders and the Parliament throughout the legislative process to amend the Bill so that it does deal robustly with hate crime, protect individuals while protecting the privileges that people enjoy with regard to free speech and builds consensus that prejudice and hatred have no place in Scotland.”
15:38Motions, questions or amendments mentioned by their reference code.