Dear Committee members,
Thank you for the time you have spent scrutinising the Hate Crime and Public Order Bill over the last ten months. It has, evidently, been a challenging task. In order not to overburden you, I will endeavour to keep my submission on the proposed Freedom of Expression (FoE) provisions short.
I represent the Free to Disagree campaign, a coalition of various groups formed out of concern that the draft legislation could undermine freedom of expression. The danger of this was particularly acute when the bill was first introduced. We commend the Scottish Government’s move to restrict the stirring up offences to ‘intent’ only and remove provisions on theatre performances and ‘inflammatory material’. While we still think free speech would be safer if Part 2 was dropped, we recognise these concessions were made in good faith in response to the many concerns that have been expressed.
We also welcome the move to insert a ‘reasonable person test’ in relation to the term ‘abusive’. This clarifies what abusive is taken to mean and brings the proposed offences in line with the characterisation of that term in the Criminal Justice and Licensing Act. The police and prosecutors asked for further clarity and this change gives them the clarity they need. In turn, this will aid the public’s understanding of the thresholds involved in the stirring up offences and decrease the likelihood of improper or vexatious reporting.
Free to Disagree has expressed concerns, most-recently in a letter to parliamentarians, that the shape of a new, ‘catch-all’ FoE provision could fall below what is necessary to safeguard democratic freedoms. We urged caution and suggested that more parliamentary time be afforded to this aspect of the proposals. Unfortunately, the shape of the proposals leaves these concerns undiminished. Options 1 and 2, which allow ‘expressions of antipathy, dislike, ridicule and insult’ towards religion and belief, but only ‘discussion and criticism’ of the other characteristics listed. Robust free speech should be allowed when it comes to religion and belief but why not also other topics that are the focus of robust debate?
Over the last few months, I have met several women who have faced shameful abuse and vitriol for venturing opinions on transgender issues and policy proposals such as reform of the Gender Recognition Act. It seems unlikely to me that protecting mere ‘discussion and criticism’ of transgender identity would afford the degree of free expression necessary to allow people to oppose such policy proposals and question the safety and efficacy of certain beliefs and practices pertaining to transgender identity.
Trans people are, of course, entitled to the same rights and protections as anyone else in society. However, beliefs and practices associated with transgender identity must be open to scrutiny and debate – even if this is uncomfortable. That is the price of living in a free society – accepting the right of others to rail against one’s own most-cherished beliefs.
Options 3 and 4 suggest allowing ‘discussion and criticism’ of all the characteristics listed under the stirring up offences. Whilst this wording would work for characteristics such as race, age and disability, it would not be robust enough to protect debate around other characteristics.
On religion, people have very strong views which must be protected. The right to proselytise and urge others to cease holding certain beliefs is also an historic right. ‘Discussion and criticism’ is not a suitable articulation of these freedoms.
On the characteristic of sexual orientation, faith communities have strong views about marriage and sexual conduct outside the confines of traditional marriage. These views are undoubtedly offensive to some groups. ‘Discussion and criticism’ is, again, an inadequate threshold if the expression of such views is to be properly protected.
Finally, on transgender identity, many women have strong views about the practical and political implications of the demands of activists. There is a risk that these views will not be protected by the terms ‘discussion and criticism’.
To be clear, I agree, of course, that individuals must be protected from harassment and abuse. However, beliefs and ideas should be open to strong debate and even derision. As Lord Justice Sedley famously said:
“Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it does not tend to provoke violence. Freedom only to speak inoffensively is not worth having.”
I have heard MSPs on every side of the chamber articulate a similar understanding of free speech and I would ask you to consider carefully – ‘are the free speech provisions before us today truly in keeping with this?’
In order to solve the problems with these provisions, and ensure that no one characteristic is ‘singled out’, I suggest the wording below would make clear that robust expression about beliefs and practices (and therefore not attacks on individuals) is acceptable under Part 2.
Free to Disagree
Freedom of expression clause:
(1) This section applies for the purposes of sections 3(2) and 5(2).
(2) Behaviour or material is not to be taken to be threatening or abusive or intended to stir up hatred solely on the basis that it involves or includes –
(a) discussion, criticism or rejection of or expressions of antipathy, dislike, ridicule or insult towards any beliefs or practices relating to any characteristics, or any propositions or proposals based on such beliefs, or
(b) urging of persons to cease any practices or to cease to hold any beliefs, or
(c) discussion or criticism of other matters relating to any characteristic
(3) Ministers may by Order make further provision setting out behaviour or material that is not to be taken to be threatening or abusive or intended to stir up hatred