Meeting of the Parliament (Hybrid) 09 September 2020
Yes, I do. From what I have seen, there is a broad range of opinion on the matter, as I am sure Rona Mackay will agree. That is exactly my point. We need to have the debate and consider what is the right thing to do in relation to a sex-based aggravator. Should that be part of the bill—should it be considered by a working group, brought back later or dealt with now in primary legislation?
Similar concerns have been raised on the definitions, such as those in part 3 on the inclusion of “variations of sex characteristics”. DSD Families, which is a charity that supports children and families with difference of sex development, states:
“Singling out a biological condition in this way reinforces stigma rather than working towards understanding and societal acceptance.”
That is a highly sensitive area involving rare medical conditions and its consideration must not be rushed.
Finally, despite the stated aim of clarifying and modernising legislation, and despite Lord Bracadale’s recommendation, part 1 uses archaic language such as “evinces malice and ill-will”. The Law Society specifically suggests that the argument that that wording is needed to ensure that there is no change to the aggravation threshold is “not particularly convincing”. Is it right? I do not know—but that is why parliamentary scrutiny will be so important.
The bill contains welcome and important proposals, but those are not without potentially serious challenges that must be aired, debated and amended if we are to ensure proper protections against hate crime. If we look at the published submissions, the articles written on the bill and the commentary, we see that the overwhelming focus is on the offences of stirring up hatred, which many groups and individuals across Scotland have said will have a chilling effect on freedom of speech.
I know that colleagues across the chamber will express their concerns about that area, so I will not explore them in depth at this stage. Suffice it to say that there seems to be a very real concern, which is held by a significant number of those who have made submissions to the consultation, including the Law Society, the Faculty of Advocates, the Scottish Police Federation, the Scottish Newspaper Society, the Humanist Society Scotland and the Catholic Church, that the provisions threaten freedom of expression. They have raised issues about the vague language of the provisions, the fact that one does not need to prove intent to show that a crime has been committed, and the low threshold of behaviour or communications being threatening or abusive, with the Association of Scottish Police Superintendents suggesting that
“it may capture people expressing relatively mainstream views”.