Hansard

I am pleased to open for the Scottish Conservatives in the debate on whether the Parliament should agree to the principles of the Hate Crime and Public Order (Scotland) Bill. Before I address those principles, I will pick up on the closing remarks of the Justice Committee’s convener. The bill is the most controversial in the history of the Scottish Parliament. An unprecedented 2,000-plus people and groups felt compelled to respond to the request for evidence. That is extraordinary, and I think that it shows the best of civic Scotland. However, it also shows just how badly the Scottish Government got the bill wrong when it introduced it.

Following that, the Justice Committee took evidence from witnesses who presented themselves to scrutiny in very difficult circumstances and pursuant to a challenging timeframe. Every witness added considerable value to the inquiry, and that is reflected in the quality of the committee’s report. The report is a tribute to the professionalism, skill and patience of the clerks to the committee and other parliamentary staff. I know that I speak for everyone here when I acknowledge them.

Finally, I must acknowledge the MSPs on the committee. I approached the inquiry with a significant degree of trepidation. In September, I led a debate in which I asked the Parliament to reject the bill as drafted and invited the Government to come back with something workable that did not attack freedom of speech, and which could be scrutinised and implemented in the short time that was available to protect, via the aggravators, those we are all so keen to protect. That proposition was rejected by all parties, bar the Conservatives, so I worried about how the inquiry would go.

However, the committee was not only collegiate and courteous but forensic, and its evidence taking and the report showed the best of what parliamentary scrutiny can be. The committee came to the unanimous conclusion that the Parliament should approve the general principles of the bill only if the changes that were unanimously demanded in the report were made to it.

I turn to those principles. In the programme for government, the First Minister told us:

“we need to ensure that we have laws in this country that are capable of tackling hate crime because it is pernicious and horrible and we should have zero tolerance for it.”—[Official Report, 1 September 2020; c 46.]

She is right. There was widespread acceptance from witnesses that we must do all that we can to ensure that the first part of the proposed new law, which deals with the statutory aggravations, is not only capable of tackling hate crime but does so completely and unambiguously.

Few witnesses had any issue with the principles of part 1. Similarly, I do not think that anyone had any issue with the principles of part 4, on the abolition of the offence of blasphemy. Part 3, which deals with provisions around characteristics, was also accepted in principle, although, properly, there require to be further debates and amendments on that point. It is with part 2 that severe challenges arose.

As introduced, the bill poses a grave threat to freedom of speech. As drafted, it would outlaw speech even if it was plain that the speaker had no intention to express, never mind stir up, hatred. The offence could be committed even in a person’s own home—we would even have to watch what we said around our own dinner table. Under the bill as drafted, those who take a particular position on women’s rights risk being accused of transphobia and criminalised for hate crimes, as Johann Lamont mentioned.

Time and again, whether in written submissions or oral evidence, the committee heard from individuals and organisations as diverse as the Law Society of Scotland, the Faculty of Advocates, the Scottish Police Federation, the Scottish Newspaper Society, the Humanist Society Scotland and the Catholic Church that the draft provisions threatened freedom of expression.

Those are the challenges that I sought to resolve in September when I suggested that the Scottish Government take the bill as drafted off the table and come back with something that did not have the controversial stirring-up offences in it so that the provisions on the aggravation of offences by prejudice, which we all agreed were so vital, could proceed smoothly and promptly.

Parliament was not with me on that proposition, but the cabinet secretary was with me on the fact that the proposed extension of stirring-up offences raises questions about impacts on freedom of expression and citizens’ engagement in democratic debate. I say that because, in what I believe to be an unprecedented move, even before the Parliament had started to debate the bill and before the committee evidence-taking process had begun, the justice secretary announced that he would be making amendments to his own bill. He said that the new stirring-up offences would be amended at stage 2 so that they would be crimes of intention only. That was welcome but insufficient. We knew that it was insufficient because the pressure from civic Scotland did not relent.

Therefore, the justice secretary returned to the Justice Committee to acknowledge the fundamental flaws that are inherent in the part 2 principles and promised to lodge an amendment at stage 2 that would scrap the provisions on theatres, plays and live performances. Even so, the cross-party Justice Committee was unanimous in its view that that would still not right the wrongs of the bill, that further changes—those that are set out in the committee’s report—had to be made and that only if the justice secretary implemented its unanimously agreed recommendations would the bill be acceptable.

Yesterday, we received the Government’s response to the committee’s report. Encouraging amendments are proposed. Section 5, on the possession of inflammatory material, is to be removed; there is a proposal for time limits on the police powers of entry per section 6; and freedom of expression protections are to be strengthened. We have a third set of changes to the bill’s principles being proposed by the Government before we have even arrived at stage 2.

However, here is the rub. First, not all of the committee’s recommendations regarding stage 2 principles have been taken on board. The reasonableness defence is not to be added to—there is just consideration of adding to the explanatory notes. The term “abusive”, which we heard so much about from the convener of the committee, is not to be defined but, rather, will be clarified in the explanatory notes. The Law Society of Scotland says in its submission that came in last night that simply clarifying in the explanatory notes is unacceptable.

“The Bill must stand on its own so there is no role for ‘guidance to accompany the legislation’”.

There is still no protection in the bill for things that are said in the privacy of one’s home. Not only is that a violation of the right to privacy but, to paraphrase the convener, how can a public order offence be committed in private?