Meeting of the Parliament (Hybrid) 11 March 2021
I thank Liam McArthur, John Finnie and Rona Mackay for their kind and generous remarks.
The Hate Crime and Public Order (Scotland) Bill is a much-changed piece of legislation compared with the bill that we first debated in the chamber last September. On that occasion, my Conservative colleagues sought to have part 2—the provisions that concern the stirring-up offences—removed from the bill entirely, on the basis that they constituted an unwarranted and dangerous attack on freedom of expression. Rightly or wrongly, the Conservative motion was heavily defeated and, ever since then, it has been clear that the bill would pass, despite the many criticisms that it has attracted from lawyers, faith groups, campaigners and—especially—women.
In the months since then, all my work on the bill has been designed to try to address those criticisms and to fix the bill. I wanted Parliament to learn the lessons of the named persons legislation and the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012, and not to repeat the experience of legislating in a way that breaches and fails to respect our fundamental rights.
So significantly and substantially amended is the bill that it is no longer the grave threat to freedom of speech that it once was. First, the stirring-up offences—other than with regard to race—can now be committed only when the accused intends to stir up hatred. Secondly, offences relating to theatres and public performances and possession of inflammatory material have been entirely removed from the bill. Thirdly, we have clarified in the bill that behaviour or speech is threatening or abusive only when a reasonable person would consider it to be threatening or abusive. Fourthly, we have said, in terms, that mere discussion or criticism of matters relating to the protected characteristics is not to be taken as threatening or abusive. Fifthly, we have emphasised that, just because someone feels offended, shocked or disturbed by what is said, that does not mean that the criminal threshold has been crossed.
Even those changes, welcome though they are, have not quelled the very real fear that continues to stalk this land because of the bill. As we heard yesterday, in terms as passionate, dignified and compelling as anything that I have ever heard in the chamber, people—in particular, women—are afraid. That the bill has induced such fear in the women of this country should make us all pause.
I hope that we have done enough to ensure that women’s fears about the bill are not realised in practice, but that will depend not on the words that we are writing into the law, but on the training that we give to our police officers and prosecutors, and on the way that we explain the legislation to the public. In particular, it must be widely understood that, just because one is offended, hurt or upset by something that someone has said about an aspect of one’s identity, that does not mean that a hate crime has been committed.
Even if the bill does not pose the grave risk to free speech that it once did, the same cannot be said for the equally worrying threat that the bill continues to pose for privacy and private and family life. We have tried. Conservative amendments at stage 2 and again yesterday at stage 3 tried to bring the bill into line with the way in which public order offences should respect the right to private and family life, but we have been thwarted and outvoted. I wish that I could say that the bill poses no threat to private and family life but, because I cannot say that, I cannot and will not vote for the bill at decision time today. Even as amended and after all the work that we have done, the bill continues to pose a real risk to our fundamental rights and liberties, and that is a risk that the Parliament should not take.
For me, personally, the situation is a matter of deep regret. I do not want to live in a Scotland where people are free to threaten or abuse one another with the intention of stirring up hatred. However, when legislating in this area, or in any other area, Parliament must ensure that its legislation respects and does not infringe human rights. It is a matter of real regret to me that the bill does not meet that test, but that is why I will vote against it at decision time today.
14:30