Meeting of the Parliament (Hybrid)10 March 2021
My amendments in group 2 are split into two broad principles, and I will speak to each in turn.
Amendments 32 and 33 try to protect the right to private and family life, but in slightly different ways. At stage 2, I lodged an amendment to provide a defence for words that are spoken in a private dwelling and that are not heard by any other person except those within the dwelling. The defence is similar to those in public order laws in England, Wales and Northern Ireland. My intention was to reflect the fact that, as the committee unanimously agreed, the proposed legislation describes itself as being concerned with “public” disorder. Under stirring-up laws, prosecution over private conversations in the home must surely constitute a violation of privacy and the human right to a family and private life.
During its evidence taking, the committee heard concerns that allegations could be made by individuals after an argument at a dinner party or similar social event and could then be investigated by the police. Calum Steele of the Scottish Police Federation warned us that conversations on contentious issues could be repeated innocently by children at school, which could then lead to reporting. The police would have no choice but to investigate and take witness statements from others present at the time of the speech, which could presumably include one’s own children.
Without a private and family life defence, the bill could lead to a scenario in which parents censor themselves in their own homes because they are anxious that their children might repeat, out of context, something that they have said. We must not make it the job of the police to investigate private disputes and to use the criminal law to set the parameters of acceptable opinion, even in the private sphere.
At stage 2, the cabinet secretary expressed concerns about people stirring up hatred in the home and folk then going out and expressing that. I heard his argument on that, so I have drafted my amendments specifically to address those concerns.
Amendment 32 makes it clear that, if a person is in their usual residence and behaves in a way that could constitute stirring up hatred, or communicates material that could constitute that, but no one outside the dwelling hears or sees it, they do not commit an offence. However, the caveat that I have added is that that defence is applicable only if the other people in the house at that time are either their family or people with whom the house is shared, plus another person from a different household. The beauty of that clause is that it entirely addresses the cabinet secretary’s concerns while ensuring that people can speak freely, without fearing an investigation or prosecution.