Hansard

You are not the first and you will not be the last, Presiding Officer.

In normal times, this would have been a complex and sensitive bill with potentially far-reaching consequences. During a pandemic, with evidence taken in virtual meetings and under enormous time pressures, the task of scrutiny has been made immeasurably harder. Like others, I pay tribute to all those who played their part: to witnesses, who responded in their thousands and had to adjust oral evidence to take account of the shifting sands of the Government position; to committee colleagues, not least our convener, who have been diligent, forensic and collaborative throughout; and to our clerks and the Scottish Parliament information centre, who have provided exceptional support.

I also thank the cabinet secretary, who recognised the hole that he had dug for himself and sought a ladder rather than a shovel. He is not out the hole yet, but he is a good deal closer than he was when we last debated the bill back in September. In that debate, the justice secretary accepted the ladder that I offered him when he acknowledged the serious concerns around part 2 of the bill—the so-called stirring-up offences—and agreed to set out ahead of stage 1 evidence taking how he proposed to address them.

That resulted in those offences being made intent only. It was a small but significant shift that left a great deal still to be reviewed, repaired and removed, but it allowed the committee to begin hearing evidence in a very different atmosphere, on a bill that was salvageable as opposed to one in need of being put out its misery.

We should not underestimate how problematic that latter outcome would have been, because our hate crime laws need modernising and consolidating. Hate crime for all protected characteristics is on the rise, and although the culture shift required to reverse that ugly tide will take time, our police, prosecutors and courts need the tools to deal with it when and where it occurs. At the same time, of course, we must be alert to the impact on other fundamental freedoms.

Our report asks whether rights such as freedom of speech and privacy should be interpreted and applied generously and restrictions to those rights legislated for narrowly and only where necessary in the public interest. To that question, as a liberal, I believe the answer is yes—even if those freedoms are not unfettered.

Again, I quote Lord Justice Sedley, who has been anonymously cited by others, who argued that

“Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative ... Freedom only to speak inoffensively is not worth having”.

That is why, during our stage 1 evidence, I focused my questioning on how those freedoms might be afforded greater protection in the context of the bill, and that is where I intend to concentrate my energies during stage 2.

I welcome the justice secretary’s earlier commitment to enhancing protections in relation to religion and his willingness to go further in broadening and deepening the protections relating to other characteristics. I look forward to seeing the detail of any such amendments and remain happy to work with the justice secretary, as well as those who gave evidence on those issues in developing options for the committee to consider.

Although it is important to stress that each characteristic is equally deserving of protection, as John Finnie said, those protections need not be equal. As the committee recognised, the history, nature and prevalence of hate crimes differ, and that justifies taking different approaches. In passing, and as the convener very ably laid out, particular attention will be needed for protections in relation to transgender identity. As witnesses observed time and again, in an already combustible debate there is a risk of making it even more explosive.

However, race clearly stands out, not least given its significantly higher prevalence; it is right, therefore, that we do nothing that dilutes or appears to dilute protections that currently exist. That makes the case for retaining both the current threshold for stirring up hatred and the reference to “insulting”. It is also why bringing the stand-alone offence of racially aggravated harassment into the scope of the bill is the right thing to do.

Consolidation helps to make law more accessible and thereby more effective. In the same way, updating the language to replace “evincing” with “displaying” malice or ill will addresses concerns that we heard about accessibility.

Although most of the attention around the bill has focused on part 2, as Tim Hopkins of the Equality Network reminded us, part 1 on aggravators is far more important. The Scottish Law Commission found that, in England and Wales, where a stirring-up offence covers race, religion and sexual orientation, stirring up is infrequently used in comparison with aggravated charges. That reinforces Lord Bracadale’s conclusion that basing our hate crime laws on an aggravator model remains the right approach.

At this stage, sex is excluded from the bill as an aggravator. I very much understand the rationale for exploring a stand-alone misogyny offence, but that leaves a glaring omission. There is also the risk that any future provision will be made under secondary legislation, which inevitably limits scrutiny by the Parliament, even under the super-affirmative procedure. Baroness Kennedy’s appointment as chair of the working group on misogynistic harassment is a coup, and I can think of no better person to take on that role. However, if that work delays by years any meaningful change to the law, the impeccable qualifications of the person who kicks the can down the road will come as cold comfort.

As BEMIS made clear and as the latest hate crime statistics bear witness,

“Scotland is not immune to racism or prejudice”,

so we should ensure that our laws are fit for purpose. At the same time, we must avoid doing anything that undermines our fundamental freedoms, which makes the task of tackling hate crime more difficult.

That is the challenge for the committee at stage 2. The cabinet secretary has undertaken to perform major surgery on his bill, but more will be needed if it is to gain the Parliament’s approval. With those caveats, the Scottish Liberal Democrats will vote for the bill’s principles.