Analysis: What can we expect at Stage 2?

Jamie Gillies, campaign spokesman

The debate surrounding the Hate Crime Bill petered out over the Christmas period but it’s still very much a live issue. On 2 February, MSPs on Holyrood’s Justice Committee will begin detailed, Stage 2 scrutiny of the bill. So what can we expect?

Qualified support

A majority of MSPs supported the ‘general principles’ of the Hate Crime Bill in a Stage 1 debate at the end of last year. They recognise that some aspects of the bill are uncontroversial. However, many MSPs remain unconvinced by the controversial ‘stirring up hatred’ offences.

These offences would criminalise speech and writing that is ‘abusive’ and intended to ‘stir up hatred’ against certain groups. Free to Disagree and others are concerned that they could inadvertently undermine freedom of expression and chill debate on contentious issues.

In Scotland, the wider political atmosphere is increasingly censorious. Offence is readily taken, and ‘hatred’ is readily alleged. What’s to stop people who feel offended accusing their political or philosophical opponents of ‘stirring up hatred’ in order to shut them down?

MSPs in every party have cited free speech concerns. If significant changes to the ‘stirring up’ offences are not agreed, they may oppose the Hate Crime Bill outright. Support for the bill is still highly qualified.


Changes to the stirring up offences have already been promised. Last year, Justice Secretary Humza Yousaf pledged to limit the offences to ‘intent’ only, remove provisions covering public performances and ‘inflammatory material’, and widen a free speech clause covering religion.

Further amendments can also be expected. Critics still believe free speech protections are inadequate and argue that vague language in the bill could create far too low a threshold for offending. Mere arguments about contentious issues could lead to police investigations. 

One of the flash points in the debate has been how the new offences will relate to arguments over transgender issues – perhaps the most contentious political debate in society today. At present, there is nothing in the bill protecting speech and writing on ‘transgender identity’. Failing to include a free speech provision could cause serious problems.

Critics will also want to see the scope of the stirring up offences limited to public behaviour. A ‘dwelling defence’ protecting words spoken in private has been mooted in previous parliamentary debates.

A resolution?

As a campaign, we still believe that scrapping the stirring up hatred offences is the only way to safeguard free speech. Existing laws already punish crimes motivated by hatred and it has not been shown how the offences would bring additional protection to victims. The risks posed to freedom of expression by the offences outweigh any perceived benefits.

If MSPs are to support the offences, there are four, vital, additional changes to be made. We hope that the Justice Committee will implement these in the coming weeks. Please do consider writing to MSPs on the committee. Their contact details are available on the Scottish Parliament website.

  1. Trans free speech clause: There is no free speech protection at all for discussion of trans issues. This is especially concerning given that the debate around trans issues and women’s rights is currently so controversial.
  2. Removal of ‘abusive’: ‘Abusive’ is vague – Part 2 of the bill would criminalise ‘threatening and abusive’ behaviour. But the term ‘abusive’ is too vague and subjective – especially when coupled with the equally vague idea of ‘stirring up hatred’. People often falsely label the opinions of others ‘abusive’ and ‘hateful’ just to try to silence them. ‘Threatening’ is a high test and easily understood, but the lower threshold of ‘abusive’ should be ditched.
  3. ‘Dwelling defence‘: The existing racial hatred law contains a ‘dwelling defence’. It protects words spoken in the privacy of your home if no-one outside can hear you. Part 2 contains no such defence. You could be prosecuted for making contentious remarks in your own living room. We should not be asking the courts to adjudicate on what opinions people can express in the privacy of their homes.
  4. ‘Prosecution lock’: A ‘prosecution lock’ should be included in the bill to require the consent of a senior public prosecutor before a prosecution can go ahead. The stirring up hatred offences carry a maximum 7-year sentence. The presence of a ‘prosecution lock’ would reflect the seriousness of this. It would give opportunity to weed out prosecutions that infringe on free speech.

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