Hansard

Yes, I am certain that that is the case. I will come to a section later in my speech on the misogynistic harassment working group, which will look at the issue in greater detail. The Justice Committee took a great deal of evidence on that subject.

I make it clear from the outset—it is important to highlight and acknowledge this—that I know that members across the parties have expressed concerns about elements of the bill. I hope that I have demonstrated the conciliatory approach that I wish to take as the bill progresses through the parliamentary process. The Government has shown great willingness to compromise and address those concerns; I am certain that members will show the same willingness, so that, at the end of the process, we will have a bill that the entire Parliament can be proud of. Members might still have concerns about aspects of the bill, but I reiterate that I do not doubt their commitment to tackle hatred and that I will continue to have an open mind on amendments that may be proposed as we move into stage 2 of the parliamentary process.

I will move on to look at the stage 1 report in greater detail. A range of issues were aired during the committee’s scrutiny of the bill and I will touch on some of them. They include the distinct approach that the bill takes on race; finding the appropriate balance between protecting freedom of expression and protecting groups who are targeted by hateful behaviours and speech; and the importance of the working group on misogynistic harassment, which I just referenced to Johann Lamont.

The bill takes a distinctive approach in respect of race compared to that taken to other characteristics. The approach was the subject of considerable debate and discussion during stage 1, but that is a sign of a healthy and robust scrutiny process. That distinct approach means that, in relation to stirring up hatred, the offences for race carry different legal thresholds from those for the other characteristics, which is a situation that is replicated across the UK.

Two thirds of all recorded hate crimes in Scotland relate to race. In 2019-20, there were more than 3,000 charges relating to racial hate crime—eight times a day, every day, someone is targeted because of their race—and those are only the cases that we know about because they have been recorded.

Sadly, there is no denying the prevalence of racial hate crime offending in Scotland, so I believe that a distinct approach for race is needed—and is justified. We need an approach that recognises the seriousness of racial hate crime as well as the impact that it has on community and societal cohesion.

The removal of the word “insulting” from, or repealing, the existing stand-alone offence of racially aggravated harassment could be particularly damaging when it comes to tackling racial hatred in Scotland if doing so was perceived as weakening a criminal law protection in the area of race. If we removed the term “insulting”, we would be the only legal jurisdiction in the UK to do so. The committee heard compelling testimony from equality groups that supported the retention of that term. I am aware that, during its scrutiny of the bill, the committee asked whether the existing offence of racially aggravated harassment—which is also known as a section 50A offence—could be consolidated into the bill. I am pleased to confirm that the Scottish Government intends to do that by way of a stage 2 amendment.

The stirring up hatred offences in the bill prompted the greatest interest throughout scrutiny of the bill. As I said I would, I listened to the voices that expressed concerns in that area, and in September I announced fundamental changes to the operation of the new offences in the bill. I am pleased that the announcement of those changes before stage 1 scrutiny got under way allowed the Justice Committee to focus on the many important aspects of the bill.

The changes that I announced, which have been welcomed by almost all stakeholders, reflected the degree of concern that existed about the potential for the new stirring up hatred offences to lead to people self-censoring entirely legitimate activity. That was because if there was no requirement for there to be intent to stir up hatred in relation to the offence, there could have been at least the perception that the legislation might be used to prosecute legitimate acts of expression, which might have led to an element of self-censorship. It was never the intention for the new stirring-up offences to have that effect.

My proposed changes have allowed us to focus more on the corrosive effects of hate speech. As the committee heard, hate speech can leave entire communities feeling isolated, scared and vulnerable to attack. Although there might be—I accept this point—a relatively small number of prosecutions under the new offences, as has been the case under the existing provisions on race, stirring up hatred against a group of people is abhorrent, and the law must have the tools to address it when and where it occurs. I am pleased that the shift in policy that I announced has seemed to greatly ease the fears of a number of stakeholders.

A number of other issues relating to the operation of the stirring up hatred offences have been debated during scrutiny of the bill. At the Justice Committee last month, I announced that I proposed to remove from the bill specific provisions relating to theatrical performances, which some artistic stakeholders felt singled them out. Although those provisions were based on existing precedent contained in the Public Order Act 1986, I consider that they can be removed without significantly affecting the operation of the bill.

I have confirmed in my response to the stage 1 report that I will add a time limit to the police powers of search and entry in the bill—again, that was recommended by the committee.

I turn to freedom of expression, which I know has been an issue of some concern to members. I know that a frustration has been some people’s view that there is a binary choice between freedom of expression and hate crime law—that it is one or the other. That is not a view that this Government takes, and I know that it is not the view of a number of stakeholders.

Freedom of expression is not and has never been an absolute right, and most members probably accept that. Equally, it is important for the Government to recognise—I give an assurance that we do recognise this—that it is a fundamental freedom that is important to our democracy and the rule of law.

I say to all members that it does not have to be a binary choice between freedom of expression, which we all value, and ensuring that we have strong hate crime laws that afford protection to people who are most often the target of hate. It is not one or the other.