Meeting of the Parliament (Hybrid) 15 December 2020
I am pleased to speak in the stage 1 debate on the bill, whose general principles I will support today. As the Justice Committee’s deputy convener, I add my thanks to the clerking team and the bill team for the fantastic support that we received throughout scrutiny of the bill, which was a big job that they made immeasurably easier. They enabled the committee to deal with the bill’s many aspects reasonably and consensually.
I am sure that the many victims of hate crime are even more disappointed than I am that the Conservatives will not back the general principles—those victims must feel severely let down. The cabinet secretary gave evidence to the committee twice, which absolutely demonstrates his willingness to engage and listen to all concerns. He has accepted the overwhelming majority of the committee’s recommendations and is willing to engage further on other matters. Given that hate crime numbers in all categories are rising, it is imperative to hold to account those who spread hatred of minority groups.
The first recommendation in the committee’s report says:
“The Committee agrees that the right to freedom of speech includes the right to offend, shock or disturb. The Committee understands that this Bill is not intended to prohibit speech which others may find offensive, and neither is it intended to lead to any self-censorship. The Committee is anxious to ensure, however, that these are not unintended consequences of the Bill.”
That is a good place to start. The bill has achieved huge media and public attention because of fears that freedom of speech might be restrained, but that categorically is not and never has been the bill’s intention. The bill is intended to show that Scotland does not endorse the freedom to abuse or to threaten minorities.
In 2018, Lord Bracadale undertook a hate crime review with a view to consolidating various provisions on hate crime, some of which have existed for decades, and to making the existing fragmented legislation fit for the 21st century by putting it in one bill. The bill implements most of Lord Bracadale’s recommendations, and the legal profession and stakeholders have overwhelmingly welcomed the consolidation.
Recommendations that the Government accepted include those on strengthening protection of freedom of expression provisions and on having an objective test for applying the term “abusive”. On that test, it should be noted that the existing law under section 38 of the Criminal Justice and Licensing (Scotland) Act 2010 is widely used, and that any clarification must not restrict the definition in relation to domestic abuse cases, for example, which could have damaging unintended consequences. For that reason—I note what the cabinet secretary said in his intervention on the committee’s convener—I believe that putting clarity in the explanatory notes, rather than in the bill, is the correct decision.
Including the existing offence of racially aggravated harassment in the bill was also accepted, as were new limits on police powers of search and entry.
Some faith groups, artists, authors and others raised concerns about section 4, which was removed entirely. Section 5 of the bill, which deals with possession of inflammatory materials, will be removed by amendment at stage 2.
One of the most important amendments was made by the cabinet secretary even before scrutiny began. As we have heard, it related to part 1 of the bill, on stirring up hatred. The cabinet secretary introduced the requirement to show intent to stir up hatred, which has to be proved beyond reasonable doubt in a court of law. The amendment was universally welcomed by all witnesses and stakeholders during evidence sessions and is, I believe, the right thing to do.
Each member of the committee followed a specific line of questioning with witnesses. My line of questioning was on the different approach that is taken in the bill to racial hatred, by retaining the “insulting” and “stirring up” elements that have been present in current legislation under the Public Order Act 1986 for 34 years. There was a—[Inaudible.] I do not support that view. Racial hatred accounts for two thirds of all—[Inaudible.]