English law chiefs say dinner table chats should not come under hate crime laws as Scot Gov takes opposite approach

The case for a ‘dwelling defence’ in Scottish Government hate crime proposals has been bolstered after English law chiefs abandoned a plan to scrap a similar provision in laws south of the border.

The Law Commission is currently consulting on plans to extend the reach of hate crime legislation in England and Wales and is due to present a 500-page review of existing provisions to the UK government. The Commission had suggested scrapping a ‘dwelling defence’ in the Public Order Act which protects private conversations in the home that are not heard by any other person outside the property. However, after criticism by civil liberties groups, it has u-turned and said that the safeguard should remain in place.

Lord Justice Green, Chairman of the Law Commission, acknowledged concerns that its proposed plan to include comments made in private homes in the scope of new hate crime laws could result in people being prosecuted for ‘the mere giving of offence’. He wrote: “The criminal team is looking at alternative ways in which the law might be reformed in order to ensure that these laws, which criminalise only the most serious forms of incitement, are compatible with both the right to freedom of expression and respect for one’s home and private and family life.”

In Scotland, the SNP have come under pressure to include a dwelling defence in its controversial Hate Crime and Public Order Bill, viewed by many groups as a threat to freedom of expression. The bill would create new ‘stirring up hatred offences’ in Scotland covering age, disability, religion, sexual orientation, transgender identity and variations in sex characteristics.

This week, an amendment to add a dwelling defence defence to the bill was rejected by MSPs on Holyrood’s Justice Committee by a margin of 7 to 2, with only Scottish Conservative MSPs backing the move.

Commenting on the Law Commission’s decision, spokesman for the Free to Disagree campaign Jamie Gillies said:

“The opinion of eminent figures like Lord Justice Green should be taken into account as MSPs continue scrutiny of the Hate Crime Bill. A dwelling defence has existed in public order laws south of the border for many years and has worked well. Now law chiefs have confirmed that it should remain in place in future, if a proposed extension to the hate crime laws goes ahead. This safeguard helps provide an appropriate balance between tackling hate crimes and respecting the privacy of citizens. The Scottish Parliament must ensure that it is adopted in Scottish legislation.”

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