Analysis: What’s next for the hated Hate Crime Bill?

Jamie Gillies, Free to Disagree spokesman

The Scottish Government’s contentious Hate Crime Bill cleared its first hurdle last night in a Stage 1 debate at Holyrood. A majority of MSPs – 91 to 29 – backed the ‘general principles’ of the bill, meaning it will proceed to Stage 2 scrutiny by the parliament’s Justice Committee. After the colossal stooshie of recent months, Ministers will be breathing a long sigh of relief.

Despite the wide margin in last night’s vote, it’s fair to say that support for the bill remains qualified. Some elements of the bill are uncontroversial, as is the laudable intention to protect victims. However, MSPs from every party stressed that more changes are required before the controversial stirring up hatred offences are fit for purpose. There were several, impassioned speeches on the threat these provisions pose to freedom of expression.

The best performance was undoubtedly from Tory MSP and Convener of Holyrood’s Justice Committee Adam Tomkins. Quoting a series of seminal legal judgments, he argued that “freedom of speech is the lifeblood of democracy” and “an essential condition of an intellectually healthy society”. In his view, the bill does not achieve the right “balance” between protecting free speech and punishing crimes motivated by hatred.

Tomkins thanked Cabinet Secretary for Justice Humza Yousaf for promising several amendments on the ‘stirring up’ offences, including revised free speech provisions and further definition of key terms. However, he added that “welcome as the cabinet secretary’s amendments are, we need to go further in order to ensure that the bill achieves its objectives without interfering with our fundamental rights”.

Freedom of speech is the lifeblood of democracy

Adam Tomkins MSP

Labour MSP Rhoda Grant echoed Tomkins’ comments, saying: “Scottish Labour still has concerns about the bill as it is currently drafted and agrees that further improvements to part 2 are needed to ensure that it includes adequate protection for freedom of speech and thought, and that it does not criminalise legitimate views.”

Notably, a number of SNP MSPs also spoke up from the backbenches. Richard Lyle MSP commented: “There is no doubt in my mind that the aims of the bill are laudable… but any law must be measured and be supported by the general public. Good intentions are not enough in and of themselves. Many bills that have been discussed in this Parliament were well-motivated but had to be improved at their various stages, and the bill that we are discussing today is a prime example of that”.

He added: “There is still wide concern about the definitions in the bill. What does the term “hatred” mean? In today’s world, merely disagreeing with certain ideas is considered hateful by certain people. That is the world we live in and that is what we have to deal with. Vague stirring up hatred laws could give people a tool with which to punish their political opponents and pursue personal grievances through the courts.”

If the Hate Crime Bill is to continue its journey through Holyrood and become law, a number of serious issues will need to be resolved. The government has pledged amendments to strengthen free speech protections in the bill, including on the crucial point of debate around women’s rights and transgender identity. Free speech clauses must be robust, or legitimate debate on various issues could be chilled.

Vague stirring up hatred laws could give people a tool with which to punish their political opponents and pursue personal grievances through the courts

Richard Lyle MSP

The government has also promised to further-define the term ‘abusive’ in the stirring up hatred offences. There is concern that his term is vague and subjective. It could create a low threshold for offending, catching behaviour that is insulting and offensive but not a matter for the police and the courts. Further definition of this term must be included on the face of the bill, to avoid uncertainty. It remains to be seen whether or not the government will do this.

One issue raised in last night’s debate that could be a sticking point is the idea of a ‘dwelling defence’, protecting words spoken in the privacy of the home. This protection is written into parallel hate crime laws in England and Wales. The Justice Committee notes that the Hate Crime and Public Order Bill should primarily be concerned with behaviour in public. But the government seems to disagree with this. Achieving consensus on the issue will be a challenge.

Taking a step back from the detail of the bill, it must be said that the precise purpose of the stirring up hatred provisions has still not been explained. The government has not specified what behaviour they would catch that is not already caught by existing laws. If the rationale and the scope of these offences is not articulated, surely there is no real argument for them? Particularly given the concern over an erosion of other, vital liberties.

It remains to be seen whether or not the stirring up hatred offences can win the support of Parliament and the public. If fears about these controversial proposals persist, MSPs must act decisively and see them scrapped.

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