Hansard

As you say, this is a large grouping, but I will try to be succinct. I will start with amendments 1 to 4, in my name. As members know, the bill creates a new stirring up of hatred offence, which applies to the characteristics of age, disability, religion, sexual orientation, transgender identity and variations in sex characteristics. Those characteristics do not currently have a stirring up hatred offence associated with them in Scotland; amendments 1 to 4 relate to those new stirring up of hatred offences. Expanding the offences of stirring up hatred to cover those further characteristics caused concern about the inadvertent impact that such offences could have on people’s right to freely discuss controversial ideas, for example about religion. In light of the concerns that have been raised, I made the decision that I announced in Parliament in September 2020 that amendments would be lodged to seek to make the stirring up offences for all characteristics except race require an intention to stir up hatred as an essential element of the offence. Amendments 1 to 4 make good on that commitment, so I ask members to support them. Amendments 2 and 4 remove the likely to stir up hatred limb of the new stirring up hatred offences in sections 3(2)(b) and 5(2)(b). Amendments 1 and 3 are consequential. I will be supporting Liam Kerr’s amendment 19, which seeks to remove section 5. Therefore, amendments 3 and 4, which adjust section 5, are relevant only if amendment 19, which is to be debated in a future grouping, is not agreed to. Amendments 34, 36 and 38 to 40, in my name, ensure that it is clear that there is an objective standard against which behaviour or material must be assessed for the purposes of the stirring up hatred offences. For an offence to be committed under section 3, a person requires to have engaged in conduct or to have communicated material that is threatening or abusive or, in the case of characteristics relating to race, insulting. There has been public and stakeholder concern as to who gets to decide whether something is abusive under the bill. I know that you in particular have pressed the Government on the issue, convener. There may be a perception that reliance will be placed on the subjective views of individuals, which could result in people being investigated for criminal prosecution for very spurious allegations that do not, in any sensible view, amount to abusive behaviour. Similar concerns could equally apply to what amounts to threatening or insulting behaviour. For that reason, I agree with the committee, and indeed with the convener, that it is best to include provisions in the bill to clarify and put beyond doubt the nature of the test to be applied when interpreting those terms. The best way to do that is by reference to the objective standard of a reasonable person test. That is what amendments 34, 36, 39 and 40 seek to do. In addition, amendment 38 adds a reasonable person test to the likely effects of a person’s behaviour or communication for the stirring up racial hatred offence. That applies an objective standard as to whether the effect of a person’s behaviour or communication is likely to result in hatred being stirred up against a group defined by race, which includes colour, nationality, citizenship or ethnic or national origins. Amendments 42 and 45, in the name of Liam Kerr, pick up the same issue about objectivity within the stirring up hatred offences. Although those amendments are well intentioned, they are more limited in scope than my amendments in this area, as they do not relate to behaviour or material that may be insulting or likely to stir up hatred. In addition, I decided that clarity in the bill would be best achieved at the place where the thresholds of the offence are provided, so my amendments are made directly to sections 3(1) and 3(2), whereas Liam Kerr’s amendments are added to the ends of sections 3 and 5. The overall policy aims for my amendments and Liam Kerr’s amendments are broadly the same, but I suggest that my amendments go further in terms of policy and that they are more transparent and consistent with the reading of the bill, so I ask members to support my amendments. Liam Kerr lodged amendments 39A and 40A, to remove the term “abusive” from amendments 39 and 40. Those are consequential changes, which are required if his amendments 9 and 10 are agreed to. I will shortly explain my position on his substantive amendments 9 and 10 but, for the reasons that I will give, I ask members to oppose amendments 39A and 40A. In a similar vein, Dean Lockhart lodged amendments 34A and 36A. Those amendments are consequential to his amendments 35 and 37, which remove “insulting” from the threshold of the stirring up racial hatred offences. Again, for the reasons that I will give shortly in discussing his substantive amendments 35 and 37, I ask members to oppose amendments 34A and 36A. Amendment 17, in the name of Liam Kerr, would entirely remove section 3 from the bill. When read together with schedule 2, amendment 17, if agreed to, would result in there being no offences of stirring up hatred—including the stirring up of racial hatred—in Scots law. That is not what the stage 1 report recommended. I ask members to reject amendment 17. The amendment disregards the existing legal landscape in Scotland and across the UK, where offences of stirring up hatred are not new. It would remove long-standing, UK-wide laws that protect people from suffering racial hatred in Scotland and would result in Scotland having the UK’s weakest protections against the stirring up of hatred. Behaviour that stirs up hatred is corrosive. It can result in entire communities feeling isolated, scared and vulnerable to attack. In the most serious cases, it can directly encourage activity that threatens or endangers life. Amendment 17 turns its back on all victims of hate crime. I hope that members will vote against it, because agreeing to it would set a harmful precedent for Scotland. Liam Kerr has also lodged amendments 9, 10 and 18, which seek to remove the threshold of “abusive” from the operation of the new offences relating to the stirring up of hatred. Amendments 25 and 27 are consequential to those amendments. Amendments 9, 10 and 18, if agreed to, would mean that new offences relating to stirring up hatred would be restricted to “threatening” behaviour or material intended to stir up hatred, or to the possession of threatening material with a view to communicating it to stir up hatred. Abusive behaviour would therefore never be subject to criminal sanction under part 2 of the bill, even if such abusive behaviour or material was intended to stir up hatred. I cannot support amendments 9, 10, 18, 25 or 27, which do not take account of Scotland’s legal context or of the Justice Committee’s unanimous recommendations on that issue. As a matter of criminal law policy, it is appropriate to include abusive behaviour as part of the offences relating to stirring up hatred. Scotland has had a statutory offence of threatening or abusive behaviour since 2010; the offence has been prosecuted thousands of times in our criminal courts. The police, Scottish courts and legal practitioners are used to considering what constitutes abusive behaviour. That has been affirmed during scrutiny of the bill by those representing the legal profession and by Police Scotland. It is important to balance protecting people from hate crime with respect for freedom of expression. We all agree on that. Removing “abusive” conduct from the scope of the new offences relating to stirring up hatred does not achieve that balance. I urge members to vote against amendments 9, 10, 18, 25 and 27. Amendments 35 and 37, in the name of Dean Lockhart, seek to remove the threshold of “insulting” from the operation of the offence of stirring up racial hatred, as provided for in section 3(1) of the bill. That threshold has operated in Scotland, England, Wales and Northern Ireland for more that 30 years. Removing it would leave Scotland with the weakest protection against the stirring up of racial hatred in the UK. We cannot deny the prevalence of racial hatred in Scotland. I know that from personal experience and the committee heard about it from a number of racial equality groups during its oral evidence sessions. The sad reality is that two thirds of all recorded hate crime in Scotland relates to race. The bill recognises the damaging impact of racial hate crime on community cohesion. That could be worsened if there was a perception that the protections in hate crime law that relate to race were being weakened. Members who spoke on the previous group of amendments made it clear that they would not want to give any impression that the law on racial hatred was being diluted. There is a distinct approach for race, which is also reflected in the English and Welsh stirring up hatred provisions, as set out in the Public Order Act 1986. Any changes that give rise to a perception that long-standing protections in that area are being weakened must give us pause for thought. A number of the groups that spoke to the committee gave compelling testimony that there is a justification for taking a distinct approach to the stirring up of racial hatred offences and for retaining the existing threshold of “insulting”. I firmly believe that, if there were perceived to be a weakening of the offences of stirring up racial hatred, that could cause difficulty in that there would also be at least a perception of weakening of the criminal law. That is not a risk that I would be willing to take. I therefore ask members not to support amendments 35 and 37. 10:30 Amendments 41, 44 and 84 have been lodged by Liam Kerr. Amendments 41 and 44 appear to add the requirement of a public element in order for an offence to be committed under sections 3 and 5 where the offending conduct takes place in a private dwelling. Amendment 84 is consequential. The public element that is provided for by amendments 41 and 44 does not extend to what people in other dwellings might see or hear. If words were to be written where they could be seen or heard by, say, neighbours within their dwellings in an upstairs or downstairs flat, that would not constitute a public element, which means that no offence of stirring up hatred would be committed. Instead, the public element seems to require people in public places, such as on a street pavement, to see or hear the words or behaviour before an offence can be committed. In my view, those are entirely artificial distinctions, which fail to recognise that, when the offence of stirring up hatred occurs within a dwelling, that does not avoid the potential wider harmful impacts that such offences seek to prevent. For example, damage to local community cohesion, feelings of victimisation by neighbours and the incitement of acts of violence might occur in a dwelling, but such effects can be felt by behaviour taking place in public, to the detriment of the targeted group. We must also be very careful of the potential unintended adverse consequences of such amendments. The effect of Liam Kerr’s amendments 41, 44 and 84 is that a person using some sort of video, teleconference, internet live stream or chat room function might be able to escape criminal liability if it were not possible to prove that anyone who saw or heard the communication was outside a private dwelling at the time. Amendments 41 and 44 would create an obvious, glaring omission in law by allowing people to continue to stir up hatred from the confines of their own homes to a wider audience, whether members of that audience were in their own dwellings or even another person’s dwelling at the time of viewing. If someone behaves in a threatening or abusive manner or communicates threatening or abusive material with the intention of stirring up hatred, I consider that the criminal law should be capable of addressing such behaviour, whether it takes place within a private dwelling or outwith it. As has been recognised by legal and academic stakeholders, the criminal law is often concerned with what goes on inside people’s homes—and rightly so. At stage 1, the committee heard oral evidence from Michael Clancy, who said: “There is no sanctuary, in that sense, for most aspects of the criminal law and I do not think that there should be a sanctuary when it comes to hate speech.”—Official Report, Justice Committee, 3 November 2020; c 9. I very much agree with him. I urge members to vote against amendments 41, 44 and 84. Amendment 55, in the name of Liam Kerr, seeks to insert in the bill a requirement that any prosecution in respect of the offences of stirring up hatred in section 3 or section 5 must be instituted by or consented to by Crown counsel. The Lord Advocate has written to the committee, explaining his views on why amendment 55 should not be agreed to. It seems to draw on a provision of the Public Order Act 1986, which applies to England and Wales and which states that proceedings for an offence of stirring up hatred may be instituted there only by or with the consent of the Attorney General. Of course, the crucial point is that that provision applies only to England and Wales and not, as it stands, to Scotland. That is because fundamentally different systems of prosecution apply in Scotland compared with those in England and Wales. In practice, all prosecutions in Scotland are brought by public prosecutors who operate within the system of prosecution for which the Lord Advocate is responsible and they are subject to direction from the Lord Advocate. A private prosecution may be initiated only with the concurrence of the Lord Advocate or the approval of the court. In practice, private prosecutions are practically unknown. In contrast, in England and Wales prosecutions can be brought by a range of agencies. The practical availability and prevalence of private prosecutions and prosecutions brought by public bodies other than the Crown Prosecution Service justifies control, in certain cases of sensitivity, through the imposition of an explicit requirement for consent by the Attorney General. As explained, the situation does not arise in Scotland, because all public prosecutions are brought by prosecutors within the system for which the Lord Advocate is responsible. The Lord Advocate’s powers of legal direction combined with his ministerial oversight of the system of prosecutions in Scotland make it unnecessary—indeed, I would suggest constitutionally inappropriate—to prescribe the operation of the decision-making processes of the Crown in that way. I know that the Lord Advocate has made that entirely clear. Amendment 6, in my name, removes section 4 from the bill. Section 4 concerns the culpability of directors and presenters of plays where a performer commits an offence of stirring up hatred under section 3 during the public performance of a play. That change was welcomed by the committee in its stage 1 report. Having listened carefully to the evidence during the scrutiny of the bill, I decided that the provision does not serve a useful purpose in singling out directors and presenters of plays in a way that is not done for other similar categories. In particular, I consider that there is no need to legislate that neglect could be sufficient to lead to criminal liability for a director or presenter of a play if a performer commits an offence of stirring up hatred under section 3. On that basis, I am satisfied that the general criminal law rules on part liability can instead be applied to ensure that, where any person commits a stirring up hatred offence under section 3 of the bill, any other person who, for example, participates or assists in the committing of that stirring-up offence may also be held criminally liable. I therefore ask members to support amendment 6. I turn finally in this group to amendment 8, which is also in my name. Where an organisation has committed an offence under section 3 or 5, section 9 makes provisions for certain persons who are involved in the operation of organisations to be held criminally liable for committing an offence under section 3 or 5. That is a normal feature of criminal legislation. However, following further policy consideration since the introduction of the bill, I consider that culpability of responsible individuals on the basis of neglect where an organisation commits an offence is too low a threshold in the context of offences relating to stirring up hatred. Accordingly, amendment 8 removes neglect from the scope of the provision in section 9. The amendment has the effect that section 9 will apply only when an offence under section 3 or 5 is committed by a relevant organisation and the commission of the offence “involves consent or connivance on the part of a responsible individual”. I move amendment 34.