Free speech campaigners have urged MSPs to vote down a bill characterised as the “most controversial in the Scottish Parliament’s history”.
The Hate Crime and Public Order (Scotland) Bill has generated “heated debate” since it was introduced to Holyrood in April, with concerns raised over the potential “chilling effect” on freedom of speech.
The bill would consolidate a number of laws into one piece of legislation, but would also add the offence of “stirring up hatred” on the grounds of religion, sexual orientation, age, disability and transgender identity.
The offence already exists for race under the 1986 Public Order Act.
Following a backlash over the perceived impact on freedom of speech, the draft legislation has already been repeatedly amended, including changes that would only make stirring up hatred an offence if there was intent to do so.
Recognising the concerns in this area, Justice Secretary Humza Yousaf and Justice Committee convener Adam Tomkins proposed amendments to the legislation which were both unanimously backed by MSPs on Wednesday.
The most fierce debate of the night occurred over amendments to include sex as a protected characteristic under the bill, following concerns women have been offered no protection under the the draft legislation.
After five hours of debate, the parliament suspended proceedings at around 9pm on Wednesday, with a final vote on the bill to be put to MSPs on Thursday, if approved by the parliamentary bureau.
‘Hatred of women is commonplace’
Labour MSP Johann Lamont lodged an amendment to add sex as a protected characteristic under the bill but this was narrowly defeated 68 votes to 53.
The Scottish Government has rejected the addition of sex to the bill and has instead established a working group to look at whether a separate criminal offence of misogyny could be introduced.
Ms Lamont said the case for including women is “indisputable” and that the hatred of women is “commonplace”.
She added: “If this bill sends a message about the unacceptability of hate crime and offers protections to victims, as it should, you might reasonably expect that the group that suffers the most as a consequence of hatred, women, might be included.”
However, Mr Yousaf said it’s clear they are “strong but often divergent views on how this important issue should be tackled”.
His initial view was to include sex but the justice secretary said a number of women’s organisations – with “decades of experiences” – expressed concerns that a neutral sex aggravator would “do harm to women”.
The justice secretary quoted a submission from Grampian Women’s Aid which said it was “absolutely confident perpetrators will attempt to use it for their own benefit should it be introduced in Scotland”.
He said the working group will conclude its work within 12 months and if their recommendation is that a sex aggravator should be included then the government will do so, if re-elected in May.
Scottish Labour MSP Jenny Marra said it was “shocking and absurd” that women will not be covered by the bill.
Shocking and absurd that @Scotparl and @theSNP have just narrowly rejected the sex aggregator in the #HateCrime Bill. Women’s lives are determined by their sex. Hate against women is rife and needs protection in law. That @theSNP don’t realise this is deeply worrying.
— Jenny Marra (@JennyMarra) March 10, 2021
Freedom of expression
Mr Tomkins’ amendment sought to enshrine in the Bill the right to “offend, shock or disturb” in line with article 10 of the European Convention on Human Rights, while Mr Yousaf’s meant that simply criticism or discussion of the protected characteristics could not solely be taken as threatening or abusive.
Mr Tomkins said: “You are not committing a hate crime unless you cross that threshold of saying something that is not only offensive, but saying something that a reasonable person would hold to be threatening or abusive in a manner that intends to stir up hatred.”
MSPs also rejected an amendment by Scottish Conservative justice spokesman Liam Kerr for a so-called ‘dwelling defence’.
This provision – which was rejected 60 to 53 – would mean the stirring up hatred offence could not be committed within someone’s home.
However, concerns have been raised the defence could be used by organised hate groups to meet in someone’s home where they could escape prosecution.
Calls for ‘renewed scrutiny’
Jamie Gillies, spokesman for the Free to Disagree campaign, said the debate was “robust, at times heated and much longer than MSPs had anticipated”.
He added: “It demonstrated just how contentious the stirring up hatred proposals are, even at this final stage of parliamentary scrutiny and after significant changes.
“These proposals clearly aren’t ready to become law. As drafted, they could chill free speech, lead to malicious complaints and leave the police and the courts mired in confusion.
“MSPs should vote down Part 2 of the Hate Crime Bill down on Thursday and allow renewed scrutiny to take place in the next parliament.”