Hansard

All noted, Presiding Officer.

Today marks the end of a long and tortuous passage for a bill that was introduced almost a year ago. An unprecedented 2,000-plus individuals and groups felt compelled to respond to the request for evidence. Last autumn, I suggested to Parliament that, in the light of that, and given the responses, the pandemic and the disruption to everyday life, the sensible thing to do would be to take away the bill, rethink it and come back with a draft that definitively protected those whom it rightly sought to protect, while not attacking freedom of speech.

Only the Scottish Conservatives supported me on that proposition, so the bill progressed. At the stage 1 debate, I flagged that, notwithstanding the cabinet secretary’s stated intentions to remove some of the most illiberal and ill-thought-through sections, part 2 of the bill, concerning the stirring up offences, remained fundamentally flawed.

Despite the extensive amendments at stage 2, and at stage 3 yesterday, the bill is still fundamentally flawed. That is not simply my view. In its covering email for its submission, Victim Support Scotland said:

“Victims of hate crime in Scotland are relying on MSPs to pass robust legislation that will offer them the protection they need”.

There are many voices saying that the legislation is not robust and does not offer that protection. Indeed, Johann Lamont and others made powerful contributions yesterday, reminding us that there is a whole group of victims of hate crime who are specifically not covered by the bill.

There is inherent ambiguity. That is an issue because, as a Savanta ComRes survey shows, 75 per cent of Scots agree that

“The term ‘hatred’ means different things to different people.”

As Elaine Smith pointed out several times yesterday, so does a judgment about what is reasonable.

Amnesty International reminds us that

“The Scottish Parliament has a duty to ensure that the bill balances protection for freedom of expression with the obligation to prohibit incitement to discrimination, hostility or violence.”

The bill before us does not strike that balance. It contains a freedom of expression clause about which many groups with many different perspectives remain unhappy despite the cabinet secretary’s reassurances today.

Scott Wortley of the University of Edinburgh suggests that the formulation and structure of the clause could lead to problems with interpretation and precedent. In its briefing note, the Law Society of Scotland says:

“We also have concerns that the freedom of expression provisions will not now be as easily understood. They lack a degree of clarity and send confusing messages.”

Earlier this week, Hardeep Singh of the Network of Sikh Organisations said that if the bill is enacted,

“it will make Scotland one of the most hostile places for freedom of expression in Europe.”

Wow. Surely so many voices being raised from so many sides of the political spectrum should give us pause for thought.

Scott Wortley also suggests that

“criminalisation of hate speech leaves it open for pressure to be put on people through vexatious complaints which take time and energy to defend.”

Roddy Dunlop QC agrees. Earlier this week, he tweeted that

“concerns will remain about weaponisation.”

Only a few weeks ago, the Scottish Police Federation wrote to the Justice Committee’s convener, saying:

“there is substantial potential for many more people coming to adverse police attention as a consequence of elements of this legislation regardless of potential ... freedom of expression provisions”.

If that is correct, there must be a risk that the bill, as it is currently drafted, could have a chilling effect on freedom of expression.

Furthermore, despite my and Adam Tomkins’s attempts, the bill contains no defence regarding private conversations in people’s own homes. The police could come to someone’s home, having received a report of their having stirred up hate around the dinner table, and could take witness statements from those present, which, presumably, could include their children.

I cannot vote for that, but nor do we need to. The Government’s financial memorandum states that those offences will “more accurately define” hate crime, but it adds that

“the conduct in question would already constitute existing criminal offences such as breach of the peace or threatening or abusive behaviour.”

Indeed, according to Murray Blackburn Mackenzie, it is not clear how

“expanding stirring up offences will fill a legislative gap on paper, or reduce in practice the number of hate-related attacks on individuals in particular groups”.

I remind members of the thoughtful intervention that was made yesterday by Neil Findlay, who said:

“I think that many of us, if we are being honest, believe that there should be a form of hate crime legislation but how it is being done in the bill is not it. Many people—out in the community and in here—would want the Government to withdraw the bill so that whichever party wins the election could come back with properly thought-out legislation that carries not only an overwhelming majority in this place but the confidence of the people who are victims of hate crime.”—[Official Report, 10 March 2021; c 90.]

He is right.

I ask members this. Will Labour really vote for a bill about which Lucy Hunter Blackburn has said:

“The people this will get used against are much more likely to be working class”?