LAST THURSDAY I led Scottish Conservative opposition to the SNP’s Hate Crime Bill and called on fellow MSPs to reject this illiberal attack on our human right to free speech.
The Bill has had a troubled passage since being presented almost a year ago.
More than 2,000 people and groups from across the political spectrum felt compelled to respond to the consultation including faith groups, secularists, writers, academics, comedians and human rights campaigners.
I called a debate in the autumn and suggested that the sensible thing to do, given the responses, the pandemic, the disruption to everyday life, would be to take the Bill away, rethink it, and come back with something that definitively protected those it sought to yet would not attack freedom of speech.
We were the only party to vote for that proposition and to stand up to these dangerous plans throughout.
At the stage one debate, I flagged that notwithstanding the justice secretary’s stated intentions to remove some of the most illiberal and ill-thought through sections, Part 2 – the stirring-up of hate offences – remained fundamentally flawed.
And, despite the extensive amendments at both stage two and prior to the final debate, the Hate Crime Bill is still fundamentally flawed.
This is not only my view.
MSPs have heard time and again, whether by written submission or by oral evidence, from individuals and a hugely diverse array of organisations that the Bill is not sufficiently precise.
Victim Support Scotland provided a briefing prior to the debate, stating: “Victims of hate crime in Scotland are relying on MSPs to pass robust legislation that will offer them the protection they need.”
However there were many voices both during the process and the final debate, saying this Bill is neither robust nor will offer that protection.
Despite fervent and passionate attempts to amend it, the Bill does not give the same protections to women as it does to other groups who are specifically referenced. Women are not a “protected group” under the legislation.
It is difficult to fathom, given the tragic events of last week and the voices raised about the lived experience of women, why women are not included in a Bill that says it is about protecting people from hate.
Susan Dalgety in last Saturday’s Scotsman said:
“We are now in the astonishing position where Scots law offers protection against the “stirring up of hatred” on the basis of someone’s race, religion, disability, transgender identity (including a person who cross-dresses), sexual orientation and age. But not on the basis of sex. Not women. Not girls.”
In a further submission, Amnesty International reminded MSPs:
“…the Scottish Parliament has a duty to ensure the Bill balances protection for freedom of expression with the obligation to prohibit incitement to discrimination, hostility or violence”.
This Bill does not get that balance right.
In many respects, that’s not surprising because we know from research that most Scots agree that ‘hatred means different things to different people’.
And so does a judgement about what is “reasonable” when assessing whether the “reasonable person” test has been met.
In its final form the Bill contains a Freedom of Expression clause which many groups, from many different perspectives, remain unhappy with despite Justice Secretary Humza Yousaf’s increasingly desperate attempts to find a formulation which would appease everyone.
But the criticism continued.
The Law Society says in its briefing note:
“We also have concerns that the freedom of expression provisions will not now be as easily understood, lack a degree of clarity and send confusing messages.”
Last week Hardeep Singh of the Network of Sikh Organisations said:
“if enacted it [this Bill] will make Scotland one of the most hostile places for freedom of expression in Europe”.
An incredible statement about a law being introduced in modern Scotland.
And who will arbitrate this? Logically, it will be the police who at first instance will have to decide the parameters of the “reasonable person” test of being “abusive” or “threatening”?
Will it happen? Only a few weeks ago the Scottish Police Federation wrote to the justice committee convenor 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 under consideration”.
And Roddy Dunlop QC agrees, tweeting last week: “…concerns will remain about weaponisation”.
All of which means there must be a risk that this Bill will have a “chilling effect” on freedom of expression.
It gets worse. I made several attempts to amend in what has been referred to as a “dwelling defence” or “private and family life defence”.
My intention was to reflect the fact, as the Committee unanimously agreed, that this legislation is supposed to be concerned with public disorder.
So prosecution under these stirring-up laws over private conversations in the home must surely constitute a violation of privacy and the human right to a family and private life.
During evidence taking, the Committee heard concerns that allegations could be made by individuals after an argument at a dinner party, or similar social event, and investigated by the police.
The SPF warned us that conversations on contentious issues could be repeated innocently by children at school and lead to reporting.
The police would have no choice but to investigate and take witness statements from others present at the time of the speech, including someone’s own children.
Without a “private and family life” defence, this Bill could lead to the scenario where parents are censoring themselves in their own homes because they are anxious their children might repeat out of context something they’ve said.
I argued we must not make it the job of the police to investigate private disputes and to use the criminal law to set the parameters of acceptable opinion even in the private sphere.
There is precedent for such a private and family life defence: Section 18 of the Public Order Act 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.
Interestingly, the Law Commission in England recently reviewed whether this dwelling defence should remain in public order laws. It concluded that it should.
But again, MSPs from all parties bar the Scottish Conservatives voted against this, so the “dwelling defence” does not appear in the final Bill.
The irony of all this is that, even by the Scottish Government’s own admission, we were voting to introduce something that’s already in place.
Its own financial memorandum, which accompanies Bills, to explain how much they might cost, states that these offences will “more accurately define” hate crime but adds that “the conduct in question would already constitute existing criminal offences such as breach of the peace or threatening or abusive behaviour”.
This was a point reinforced by Murray Blackburn MacKenzie’s submission which says: “[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”.
So why did it pass?
The Labour Party voted for the Bill despite Lucy Hunter Blackburn warning: “The people this will get used against are much more likely to be working class”.
James Kelly MSP, who campaigned with me to get the Offensive Behaviour at Football Act taken off the statute book, an act which Free to Disagree bears huge similarities to this one, swung firmly behind the the Bill.
The supposedly “Liberal” Democrats unanimously backed what many have described as an utterly illiberal Bill.
And the SNP, with its ridiculous Green colleagues in its pocket, backed what Jim Sillars described as: “…one of the most pernicious and dangerous pieces of legislation ever produced by any government in modern times”.
Is this the end of the story? No.
The possibility of a legal challenge as we saw with the SNP’s appalling Named Person legislation cannot be ruled out.
And the Scottish Conservatives will pledge in our manifesto to bring forward a ‘Freedom of Speech’ Bill to repeal every part of the Hate Crime Bill that contains threats to our free speech, and we would amend the other parts of the Bill so that women would be protected from crimes motivated by misogyny under the separate aggravators section of the Bill.
As I made clear over and over again during the debates on this Bill, the SNP has made a mess of this legislation. I look forward to the election in May, so the Scottish Conservatives can clean it up.
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Liam Kerr is Shadow Justice Secretary and a Conservative & Unionist member of the Scottish Parliament for the North East. @LiamKerrASNK
Photo By Alik Mulikov from Adobe Stock
