Meeting of the Parliament (Hybrid) 15 December 2020
Obviously, we are considering that as part of what we may do at stage 2. I am not saying that we will do it, but we are looking at it and we will look at the balance of evidence when we speak to stakeholders, because there is an issue about having protection in place while we wait for a working group to report. It may be that the bill could be amended to allow for that to happen, so that there is no gap between one protection and another. However, as I have said, we will be discussing that with stakeholders, so have not drafted anything at this point.
It is welcome that the Scottish Government has conceded that amendments are necessary in order to make part 2 of the bill fit for purpose, and we have already heard a fair amount about that. Requiring intent for the stirring-up offences will be an improvement to the provisions and will ensure that the bill includes adequate protections for freedom of speech and thought and does not criminalise legitimate views. The cabinet secretary’s proposed triple lock is welcome. The behaviour must be threatening or abusive, and intended to be so. As with all criminal law, the crime must be proved beyond all reasonable doubt, and the perpetrator must intend wrongdoing.
I believe that the amendments are welcome, but Ephraim Borowski of the Scottish Council of Jewish Communities still had concerns about online hate speech. He told the committee:
“having posted their hatred, people will then end their comments with ‘Just saying’ or ‘Just asking.’ They are now being given a get-out-of-jail-free card because they can say that they did not intend to cause offence, but that they were merely asking a question”.—[Official Report, Justice Committee, 10 November 2020; c 27.]
I would welcome clarification from the cabinet secretary that such an easy defence will not be possible under the bill. In that context, it is disappointing that the cabinet secretary has chosen not to clarify the operation of the reasonableness defence in the bill, as the committee recommended that he should do. Clarification could have provided reassurance about such a scenario. I hope that he will look at that again.