Hansard

I am grateful to the member for the intervention. I will come on to that, and I will cover the competing arguments on the issue.

As far as we are concerned, there is unfinished work on misogynistic harassment. Toxic masculinity must be addressed, and we look forward to that work progressing.

As the amendment says, we commit to listening to

“all serious views on ways to improve”

the bill. We will do that

“as part of the normal process of parliamentary scrutiny”.

We will also consider

“how best to ensure that all forms of hate crime are taken seriously.”

I agree with the cabinet secretary in thinking that all members are behind the thrust of wanting to address such pernicious crime.

The bill seeks to modernise the system, and we welcome the proposals in section 14 to update and improve the definition of transgender identity. The issue of sex has been raised, which is important, and Lord Bracadale made proposals in that regard. We will also come to the issues of age and consolidation.

In relation to consolidation and the extension of hate crime provisions, sections 3 and 5 relate to stirring up hatred and the possession of inflammatory material. The existing offences, in sections 18 to 23 of the Public Order Act 1986, apply to race only. Is it the view of those who do not support the proposals that the provisions should not be extended to include religion, despite the support of Jewish faith groups and Interfaith Scotland for the bill? Is it their view that the provisions should not be extended to include disability? Inclusion Scotland tells us that there are a million disabled people in Scotland today, and that there has been a steady increase in the number of reported hate crimes against disabled people in Scotland in recent years. Is it their view that the provisions should not be extended to include sexual orientation, transgender identity and variations in sex characteristics? The Equality Network tells us that

“Hate crime is part of the wider societal issue of marginalisation and it good to see that ... the Scottish Government recognises that tackling this problem needs to include both legislative and non-legislative solutions.”

An important aspect of the bill is the strengthening of protections for people who might be a victim of hate crime because of their association with others, perhaps as the partner of a disabled person; we all know of such issues from our casework.

The court has an important role in stating and recording offences and taking the aggravation into account, which will help statistically. That is a minor detail, but it has been alluded to.

I come to Mr Kerr’s point. The SPICe briefing tells us that

“The Bill includes specific provisions seeking to protect freedom of expression in relation to religion and sexual conduct or practices.”

Police Scotland tells us that

“The inclusion of a freedom of speech provision is to be welcomed ... The absence of such a clause could result in Police Scotland being burdened with vexatious reports of ‘crimes’”.

I am grateful to all the organisations that have provided submissions, including the Faculty of Advocates, which takes a slightly different approach. It says:

“The Scottish Government acknowledges the existence of concern about the impact on Article 10 ... which guarantees freedom of expression. The Faculty has reservations about the position of the Scottish Government that the proposed sections 11 and 12 meet those concerns.”

The faculty goes on to say:

“It is accordingly for the Government to justify any interference with freedom of expression under reference to Article 10(2).”

Very helpfully—someone with Mr Kerr’s legal background will appreciate this—the faculty points us in the direction of guidance that is set out by Lord Rodger. At paragraph 25 of its submission, the faculty asks:

“a) Is Article 10 engaged?

b) If so, what is the basis for the interference under Article 10(2)?

c) What is the ‘legitimate aim’ being pursued in restricting freedom of expression?

d) Does that pass the test of necessity?

e) Is the restriction proportionate to achieving the legitimate aim?”

Those are not the faculty’s sole concerns; there are others.

Where is the locus for airing, scrutinising and interrogating—I think that those were the terms that Mr Kerr used—those concerns? In a unicameral set-up such as ours, it is the committee. I have every confidence that the Justice Committee will look at the issues.

We know from past experience that deficiencies in legislation have always been highlighted in stage 1 reports and have always been responded to. If the Government does not lodge amendments, I assure members that I—and, I suspect, Mr Kerr—will do so. We know the competing interests that exist when we consider legislation. That is the case with the Defamation and Malicious Publications (Scotland) Bill, which is about balancing increased freedom of speech against the legal profession wanting to retain the position of people whose reputations might be damned. I have every confidence in our system of parliamentary scrutiny, and I hope that Mr Kerr eventually will, too.

I move amendment S5M-22636.2, to leave out from “notes” to end and insert:

“considers that the development of hate crime law in Scotland has been carried out in a piecemeal fashion, resulting in fragmented legislation; notes that calls have been made for the consolidation of hate crime law for more than a decade; believes that freedom of expression is a critically important human right, and that Article 10 of the European Convention on Human Rights (ECHR) protects it within the context of factors such as the prevention of crime and protecting the rights of others; recognises that stirring up racial hatred has been the basis of criminal offences since 1986 and is clearly compatible with ECHR; welcomes the Scottish Government’s commitment to examine the development of an offence on misogynistic harassment and looks forward to the working group on misogynistic harassment’s output on this matter, and commits to listen to all serious views on ways to improve the Hate Crime and Public Order (Scotland) Bill as part of the normal process of parliamentary scrutiny and to consider how best to ensure that all forms of hate crime are taken seriously.”