Hansard

The bill has taken a rather unusual route thus far. It has certainly prompted a lot of debate. I thank the people who helped us to get to this point: the witnesses, our outstanding parliamentary staff and—although self-praise is faint praise—my colleagues on the Justice Committee, because we have worked collaboratively to produce the report that we are discussing.

It became very apparent that words and phrases are important. I am thinking of words and phrases such as “stir up”, “likely to”, “insulting”, “abusive”, “reasonableness”, “dwelling”, “freedom of expression” and “freedom of speech”.

We know that freedom of speech is not an absolute right. The committee explored how far that right extends, and in particular whether it extends into a right to offend. A similar issue arose in the context of the Defamation and Malicious Publication (Scotland) Bill, when we considered freedom of expression versus the right to defend one’s reputation. Concerns were voiced about the bill’s potential to have a chilling effect. In written evidence, the Law Society cited with approval Lord Justice Sedley, who said:

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

Likewise, the Faculty of Advocates cited Lord Rogers, who said that freedom of speech applies to

“‘Information’ or ‘ideas’ that … ‘offend, shock or disturb’”.

Words, and the weight that is attached to them, have become very important. In paragraph 44 of its stage 1 report, the committee agreed that

“the right to freedom of speech includes the right to offend, shock or disturb.”

It went on to say that it

“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.”

However, it was

“anxious to ensure ... that these are not unintended consequences of the Bill.”

There is no single definition of hate crime. Lord Bracadale used the following definition, which is that

“Offences which adhere to the principle that crimes motivated by hatred and prejudice towards particular features of the victim’s identity should be treated differently from ordinary crimes.”

We know that existing arrangements for hate crime deal with it as an aggravator to an existing offence, such as robbery, assault or breach of the peace, and that a lesser degree of proof is required to prove that aggravation.

The consultation on the bill generated a lot of interest. A substantial portion of the responses expressed concerns about freedom of speech and religious expression. However, that has to be countered by the need of vulnerable groups for protection and

“sending out a message about the unacceptability of prejudice-based content.”

There was a constant tension about freedom of speech, freedom to offend and the state’s obligation to ensure that that does not tip over into hate. That led to some lobbying, with some intemperate language from some people and some emotive imagery about constabularies invading churches. That has to be set against concerns about the bill attacking existing protections if there were to be further dilution.

As others have said, the cabinet secretary’s approach is to be commended. The letter in September and the indication in October about changes to exclude the likelihood provisions is very welcome. It is, I hope, a signal of the way in which we will continue. Thinking of the response yesterday, it seems that, for my colleagues, there is still a way to go on some aspects. The bill and the way that it has been dealt with send an important signal. It is an emotive subject, and we all want it to be properly addressed.

The cabinet secretary defended the retention of the word “insulting”, saying that it had been in legislation for 34 years. The Law Society said that

“it lowers the bar for criminality a bit too far.”—[Official Report, Justice Committee, 3 November 2020; c 4.]

The issue of a hierarchy of discrimination and inconsistency in relation to race has been mentioned. However, the committee rightly agreed that there are unique features in the pernicious nature of race crime. Race organisations strongly argued in favour of retaining the word “insulting”, suggesting that removing it would create a perception of dilution. Amy Allard-Dunbar of Intercultural Youth Scotland said:

“Microaggressions are daily instances of racism that add up to cause significant racial trauma. A lot of them come under the term ‘insulting’, and it would be hard to understand their impact if the term was not included in the bill. That provision needs to be kept.”—[Official Report, Justice Committee, 17 November 2020; c 33.]

There has been a lot of discussion, including about the term “abusive”, which the Crown Office tells us is a concept well understood by Scots prosecutors. There are people in favour of the decision. Discussions on that should continue. Similarly, I do not think that we are done with the dwelling defence yet. It is welcome that the cabinet secretary proposes to remove the provisions on public performances; likewise the time limit on police powers.

There were polarised views in relation to the working group on misogynistic harassment. I feel that there is a gap, and I am delighted that Baroness Helena Kennedy is to carry out an investigation.

Victim Support said that the impact of hate crime

“is frequently more devastating and longer lasting than that of other types of crime because an aspect of an individual’s core identity and sense of belonging is attacked.”

In its view,

“abusive behaviour forms part of a number of microaggressions that not only negatively impact individual victims, but whole communities and marginalised groups.”

For that reason, we need to keep discussions going, but at decision time, the Scottish Green Party will vote for the general principles of the bill.