Hansard

Our law reports are replete with resounding statements on the importance of free speech. In the case of R v Secretary of State for the Home Department, ex parte Simms, Lord Steyn said that

“freedom of speech is the lifeblood of democracy. The free flow of information and ideas informs political debate. It is a safety valve: people are more ready to accept decisions that go against them if they can in principle seek to influence them.”

In R (on the application of Animal Defenders International) v Secretary of State for Culture, Media and Sport, Lord Bingham said that

“Freedom of thought and expression is an essential condition of an intellectually healthy society. The free communication of information, opinions and argument about the laws which a state should enact and the policies its government at all levels should pursue is an essential condition of truly democratic government.”

In western liberal democracies, one of two approaches is taken to the problem of hate speech—that is to say, expression that is directed towards stirring up hatred. Most countries, including the United Kingdom, seek to regulate it, criminalising its worst excesses while bearing in mind the cardinal importance of free speech, as set out in the quotations that I have just cited.

The outlier is the United States, where the first amendment prohibits such regulation, with constitutional protection of speech that goes further than it does anywhere else. US critics of European, Canadian and New Zealand hate speech laws say that they suffer from two flaws, both of which are fatal from first-amendment perspectives—that they are vague and that they are overbroad. For the past two months, the Justice Committee, which I convene, has been poring over every line of the Hate Crime and Public Order (Scotland) Bill, anxious to ensure that it falls into neither of those traps.

As our unanimously agreed report makes clear, the aims of the bill are partly consolidation and partly expansion. Some of its provisions are based on existing offences that are found in the Public Order Act 1986, but others extend the reach of Scotland’s criminal law.

There is no disagreement between the committee and the cabinet secretary about how such provisions should be understood. We all accept that we have no right to criminalise speech just because we find it offensive—indeed, we have no right to do so no matter how offensive we find it.

Freedom of expression is not absolute in our law, but at the same time there is absolutely no doubt that it extends to the right to “offend, shock or disturb”.

“Freedom only to speak inoffensively is not worth having”,

as one judge put it.

The bill is about matters that are of fundamental importance, but it is also about balance. Which of us would want to live in a Scotland where people are free to threaten each other or to abuse each other on the basis of their race, their religion, or any aspect of their sexual identity? Getting that balance right is not easy—it is not a question of science, but is a matter of judgment.

In the committee’s judgment, the bill does not get that balance right, which is why—again, unanimously—we have recommended a series of amendments. Most, but not quite all, of our amendments have now been accepted by the cabinet secretary, so I thank him for his thoughtful and considered response to our report, which was published yesterday.

In our report, we welcome the amendments that were announced earlier in the autumn, but we say that they do not go far enough. The cabinet secretary said in September that the new offences of stirring up hatred on grounds other than race should be amended so that they could be committed only where such hatred is intended to be stirred up, and not merely where it is likely. In the committee’s view, that was a useful and helpful first step.

The cabinet secretary returned to the committee in November to say that, in addition, he would remove from the bill the provision that is targeted at theatres and public performance of plays, and that he would strengthen how the bill protects free speech in relation to religion. It is not just “discussion or criticism” of religion that should be protected; so, too, should ridicule and expressions of antipathy—and even of insult. Again, the committee welcomed all that.

Let me say, Presiding Officer, that the cabinet secretary’s constructive and pragmatic approach to the bill has been much appreciated by everybody on the Justice Committee, and has greatly helped to improve our scrutiny of the bill. That scrutiny has led us to conclude that, welcome as the cabinet secretary’s amendments are, we need to go further in order to ensure that the bill achieves its objectives without interfering with our fundamental rights.

For example, it is not just free speech with regard to religion that needs further protection; free speech with regard to other characteristics needs it, too. Police powers to enter and search premises need to be more tightly defined and further thought needs to be given to the extent to which we want to criminalise behaviour that takes place wholly in private but which would, nonetheless, be caught by the stirring-up offences.

On that point, I remind Parliament that the full title of the bill is the Hate Crime and Public Order (Scotland) Bill. Current stirring-up offences, as I have already said, are found in the 1986 act. We should bear it in mind that those offences are targeted at public disorder, not at private thought.

Among the suite of further amendments that we recommend, one, to my mind, stands out. Under the bill, it will become an offence to use threatening or abusive behaviour that is intended to stir up hatred. We must define what we mean by that. In particular, we must explain what we mean by “abusive”. That key term must have an objective meaning, such that—in the committee’s view—the Crown must show, in order to secure a conviction, that a reasonable person would have found the behaviour to be abusive. The cabinet secretary, in his response, has indicated his strong agreement with that sentiment and I welcome that, but he seems to think that the bill does not need to be amended to reflect it, so that is a matter that we are, clearly, going to have to come back to later.

I will illustrate what is at stake with a real example that touches directly on the questions that Johann Lamont has already asked this afternoon. It is a delicate matter that needs to be treated with care and sensitivity.

As we all know, there is at the moment in Scotland a robust and, sometimes, rather fraught live debate about women’s rights, about whether sex is immutable, and about the rights of transgender people. Some women who are campaigning on a certain view on these matters have been accused of transphobia.

The committee is absolutely clear that the bill is not intended to chill public debate on those matters or to lead to self-censorship in relation to them. However, the committee is anxious to ensure that those are not unintended consequences of the bill. That is why we need to ensure that a person can be charged with a stirring-up offence only if a reasonable person would have regarded their behaviour as abusive.

Tim Hopkins of the Equality Network and Becky Kaufmann of the Scottish Trans Alliance gave compelling evidence on that point. Becky Kaufmann said that aspects of the debate on women’s rights can make people—and, indeed, have made her—“extremely uncomfortable” and can be “very disrespectful” of people’s identities, but that, nonetheless, that is no business of the criminal law.

That brings me full circle. The bill is not about criminalising that which other people find offensive or disrespectful; it is about behaviour, including speech, that threatens or abuses, and that does so intending to stir up hatred.