Meeting of the Parliament (Hybrid)10 March 2021
It has been clear for months that, notwithstanding all the criticisms that have been made about the Hate Crime and Public Order (Scotland) Bill, a majority of MSPs support the proposed legislation, it will pass at stage 3 tonight and it will be enacted into law.
In all my involvement with the bill, I have sought to improve it. Of course, I could have spent the past few months simply trying to obstruct the bill, but it has been clear for a long time that it will pass, so what would have been the point of that? I want to ensure that the Parliament passes good law. My amendments—both those in this group and those in the next group to be debated—are designed not to thwart the policy objectives of those whose bill it is but to improve the delivery of those policy objectives in the law that we make.
I am in favour of hate crimes being crimes. I do not want to live in a country where people are free to threaten or abuse one another with the intention of stirring up hatred against them. I am also passionately in favour of individual freedom and liberty. When we are seeking to criminalise behaviour that stirs up hatred, we must do so with extreme care and caution. In particular, we must guard against two vices, either one of which could hole the good intentions of the bill below the waterline. We must guard against vagueness, and we must guard against overbreadth. We must specify, as precisely as we can, exactly what it is that we are seeking to criminalise, and we must ensure that we do not inadvertently catch within the web of our criminal law behaviour that ought properly to be left free.
That is what my amendments, both in this group and in the next, are designed to achieve. They do it by remembering this: that when we legislate, as we do here, on the terrain of fundamental human rights, our rights and liberties should be interpreted and understood expansively, and restrictions on our rights and liberties should be contemplated only where necessary, in the public interest, to safeguard a legitimate aim.
17:15Stirring-up offences are not new. The bill does not invent them, although it expands them considerably. We have had stirring-up offences with regard to racial hatred since the 1960s, and they are found now in the Public Order Act 1986. The full short title of the bill is the Hate Crime and Public Order (Scotland) Bill. That is no accident, yet it seems to have been overlooked in much of the debate on and commentary about the bill. The stirring-up offences are offences of public disorder, and they sit alongside other public order offences such as riot, affray, violent disorder and breach of the peace.
One does not need to be a lawyer to understand that, in order to commit a public order offence, there needs to be a public element to what one does. One cannot commit riot in private, and nor should it be possible for someone to be convicted of stirring up hatred if what they have done occurred only in private and there was no public element to it. That is the effect of the law at the moment. Section 18 of the 1986 act, which criminalises the stirring up of racial hatred, provides that the offence is not committed if the accused’s behaviour takes place inside a dwelling and is not seen or heard by others.
It is, of course, the case that the criminal law does not stop at the threshold of one’s home. Our domestic abuse statutes are just one example of that. If I were to invite half a dozen pals to my home and treat them to a rant of antisemitic bilge, and they were to go off and desecrate the nearest synagogue, I should, of course, be liable for a hate crime. I would have invited people into my home and used it as a platform for sharing my racist, bigoted views. Such behaviour would be caught by the bill as it is presently drafted, and my amendment 5 would do nothing to alter that.
Let us consider a different example, however. Let us imagine that I have a family gathering—a Friday night supper—at which my unreconstructed and somewhat embarrassing elderly uncle makes disparaging remarks about a same-sex couple and my somewhat oversensitive 15-year-old daughter, offended at what she has heard, tells her best friend about what has been discussed at my family dinner table. Her friend’s father is a police officer, and the next thing we know is that there is a knock at the door and my elderly uncle is under criminal investigation. Is that really where we want the hate crime bill to go? Do we really want it to deal with family dinner table conversations that take place only in private, with no public element at all? I do not think so, and the Justice Committee did not think so, either.
In its stage 1 report, the committee reached the following unanimous conclusion:
“The Committee believes that there should not be an absolute defence against prosecution based on whether someone was inside a dwelling or not when it comes to words expressed, behaviour or the display of written material. However, care also needs to be taken that people are not investigated for, charged with, or prosecuted for, offences based on their personal views, however abhorrent others may consider them to be, if the expression of those views took place in a private space, such as their own house, and there was no public element.”
That was the unanimous, all-party conclusion of the Justice Committee, which took extensive evidence on that point. Giving effect to that conclusion is exactly what my amendment 5 would do.
We all need a safe space where we can let off steam. The right to respect for private and family life and for home is a fundamental human right. If we abuse our homes, inviting others into them and converting them into platforms for threatening or abusive behaviour that is intended to stir up hatred, the criminal law should of course apply. Therefore, my amendment is not a dwelling defence: it does not exclude everything that happens inside the home from the criminal law. It is a criminal defence. It protects the privacy of wholly private family conversations, and it reminds us that offences against public order need a public element.
If there was any public element, of whatever nature, my amendment 5 would not apply. It would apply only to wholly private behaviour. That zone of privacy, as it were, is defined expressly by reference to the right to respect for private and family life in article 8 of the European convention on human rights. There is a realm of personal liberty that the Government may not enter. Existing stirring-up offences recognise that, and so should the new stirring-up offences that we are creating in the bill. For those reasons, I urge the Parliament to support amendment 5.