Prosecution for what you say in your own home remains likely in Scotland

Prosecution for what you say in your own home remains likely in Scotland

by Liam Kerr
article from Thursday 18, February, 2021

PRESUMABLY, when the SNP Government set out to toughen up the law in relation to hate crime, it wasn’t the intention to criminalise conversations over the dinner table. 

Just like it probably didn’t mean, in its quest to assign a named person for every child in Scotland, to propose extraordinary intrusions into the right to a private family life. 

And I don’t imagine the SNP, through its botched Offensive Behaviour at Football legislation, thought its measures would result in the persecution of ordinary sports fans. 

But that’s the problem with the SNP when it comes to legislation, as evidenced by its actions over a long number of years. 

It sets out grand plans, doesn’t think them through, then when the flaws are exposed and the drafting interrogated, it adopts a pig-headed stance and attempts to force them through regardless. 

And so we are seeing such a pattern emerge again with the latest instalment of the justice secretary’s Hate Crime Bill. 

In fairness to Humza Yousaf, my opposite number, my observation is that he knows more than most in Scotland what it is like to be on the receiving end of hate crime. The racist abuse he’s received since coming to office has been absolutely appalling and unforgivable.  

It would have been easy to throw in the towel in the face of such assaults and the fact he has stood up to it and refused to let the bigots and bullies win is an example for us all. 

But his government’s unrelenting determination to force through aspects of these laws is wrongheaded and dangerous. 

All parties agree the law needs a mechanism to punish those who engage in hate crimes, and whip up those capable of committing extremely serious acts. 

But it’s a tricky area, and bad law will be the result without the correct scrutiny and attention, and without taking note of the extraordinary response to the consultation on the Bill.  

We mustn’t ignore the continuing representations made by groups with much to add, nor the attempts by MSPs to amend the Bill to try to improve it and prevent the worst of the unintended consequences. 

Last week, during the Committee stage of this Bill (where, according to our Parliamentary process, MSPs are supposed to propose amendments and debate them to try and improve the Bill) I attempted to insert a “dwelling defence”, to ensure that the SNP’s plans – that someone could be arrested, prosecuted and convicted for remarks made around their own dinner table – would not come to fruition. 

In short: committing a public order offence, but in a private setting. 

I was outvoted 7-2 by all other parties (the only support coming from my Scottish Conservative colleague Adam Tomkins). My “dwelling defence” is not therefore currently in the Bill.  

What does that matter in practice?  

Well, imagine the circumstances where two individuals were having a meal in one’s home, and one made a remark the other found offensive or even just disagreeable. 

This legislation would enable that remark to be reported to the police as a potential hate crime, and for officers to visit the home of the host who made the comment. 

Given that the only witnesses at the dinner table might be other family members in the house – including children – presumably the police would have to interview them to establish whether a crime may have been committed. 

It is extraordinary and terrifying. 

Yet when I cited this potential example at the Scottish Parliament’s Justice Committee last week, I was criticised by the very MSPs who are giving this chaotic legislation the green light. 

One said I was engaging in “hyperbole bordering on nonsense” with another suggesting it was a “completely artificial distinction”. 

Really? Well these aren’t just my fears. 

That same committee heard, during its evidence taking, from the Scottish Police Federation’s general secretary Calum Steele, who knows policing in Scotland inside-out. 

He told MSPs that conversations on contentious issues in the home could be repeated innocently by children in the playground, which in turn may result in a report to police being made. 

That would then leave hardworking officers with no choice but to investigate and, in the process of building a case for prosecution, they would have to take statements from those who were in the house. 

That could well be the very youngsters who initially made the playground remark. 

Last week, I was pleased to see that law chiefs in England have seen sense on this. 

When faced with the same scenario, they decided proposals to extend hate crime laws into private households should not be granted. 

As MPs in the UK Parliament pointed out, the police have enough on their plate without having to investigate the content of dinner party chit-chat. 

We all recognise the risk of public disorder at a rally or set-piece speech, or even at an informal gathering, where feelings can be inflamed by rabble-rousing public speakers. 

Often, it is their intention to evoke such emotions in those listening, and if those people go off and commit a serious offence, they would simply wash their hands of responsibility. 

But this simply does not apply to a family home, whereby its very definition the risk to public order cannot be present. 

Criminalising discussions round the dinner table would be a violation of privacy, and a very serious body-blow to the concept of free speech. 

That concept isn’t always an easy thing to protect. 

There is a little part within most of us which bristles when we hear something we disagree with passionately, and wish that person or that view didn’t enjoy the platform from which it was said. 

It can be tricky to draw the line between free speech and hate speech – we will never arrive at a point that pleases everyone. 

But other parties who voted to exclude a “dwelling defence” from the Hate Crimes Bill need to think again. 

I will seek to give them the opportunity to do so at stage 3 (the final stage of a Bill’s progress in Holyrood) when I shall try to persuade Parliament to insert a dwelling defence. 

Not to put it in would lead to truly Orwellian outcomes which – even if it was never the intention at the outset of this process – is a very real danger now. 

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Liam Kerr is Shadow Justice Secretary and a Conservative & Unionist member of the Scottish Parliament for the North East.

Photo by Monkey Business from Adobe Stock

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