Jamie Gillies, Free to Disagree spokesman
The debate over the Hate Crime Bill resumed this week as Justice Secretary Humza Yousaf gave evidence to MSPs on Holyrood’s Justice Committee.
Yousaf struck a gracious tone. At the outset of the meeting he stressed that following a recent change in direction, he will continue to “seek common ground, consensus and, where necessary, compromise” as the bill moves through the legislative process.
As a campaign we welcome this stance. A change around ‘intent’ announced earlier this month was crucially important. The Minister has also alluded to further changes that will “broaden and deepen” free speech protections in the bill. We look forward to seeing the substance of these in the weeks ahead.
The stand-out concern in this week’s evidence session was an issue that hasn’t been touched on much in the debate over the bill – the inclusion of a ‘dwelling defence’. Critics of the bill argue that an exception should exist in stirring up laws for words spoken exclusively in the privacy of the home. This exception exists in parallel legislation in England and Wales on the ‘stirring up of religious hatred’. The Scottish Government takes a different view.
“An exception should exist in stirring up laws for words spoken exclusively in the privacy of the home”
During the evidence session, Mr Yousaf was asked why provisions in the Hate Crime and Public Order Bill should apply to private dwellings. He replied: “if you’re stirring up religious hatred against Jews, with the intent of stirring up hatred in your private dwelling with your children in the room, with friends you’ve invited over for a dinner party, if they then act upon that hatred and commit offences…should that person not be culpable? Should they not receive criminal sanction?”
His point is clear: why should people who behave threateningly or abusively with the intention of ‘stirring up hatred’ evade prosecution simply because they have done so in a living room or during a private “dinner party”, rather than at the pub, for example? The argument does sound logical. However, it fails to take into account the wider and more significant issues that would arise in the absence of a dwelling defence.
The first is an issue of principle. In liberal democracies, there has long been a Rubicon that cannot be crossed in terms of state interference in the lives of citizens. It might be argued that establishing state-monitored CCTV in the living room of every home in Scotland would radically reduce crime. It probably would. But this would be a gross violation of privacy. Apprehending a small, bigoted number of individuals through this method would necessarily transgress the right of all citizens not to be supervised in their own homes.
The same principle should apply to the Hate Crime Bill. It is doubtless true that vile, hateful speech does occur in a small minority of homes in Scotland. However, extending criminal legislation to cover conversations on various matters in every home in the country is not the solution to tackling it. This approach would unjustly dilute the free speech rights of millions of Scottish citizens who wish no harm towards others.
“In liberal democracies, there has long been a Rubicon that cannot be crossed in terms of state interference in the lives of citizens”
This isn’t to say that perpetrators should be let off the hook. Existing legislation already catches catches abusive behaviour and harassment, for example. And Legal expert Lord Bracadale QC, who led a review of Scotland’s hate crime laws, has been clear that the substance of stirring up legislation is not affected by a dwelling defence. Appearing after Mr Yousaf this week, he told MSPs that the inclusion of a defence in existing ‘stirring up’ legislation has not “inhibited the use of the provision”.
A further issue relates to the scope of stirring up hatred offences. Mr Yousaf used the example of guests at a dinner party being stirred up to “commit offences”. However, the bill goes much further than this. The new provisions cover ‘intent’ to ‘stir up hatred’, not ‘intent’ to stir up others to commit criminal acts. What the court thinks ‘hatred’ means and what it thinks ‘intent’ looks like will be the determining factors.
You can imagine a judge peering over his spectacles at the accused, who has just desperately pled his innocence: ‘It was a bad joke My Lord.’ ‘Ah, you say that Mr Smith but you must have known that your comment could stir up hatred in the hearts of the other guests’. This is an Orwellian scenario.
Establishing an evidential burden would also be difficult to say the least. If a stirring up offence occurred at a dinner party, as Mr Yousaf alluded to, the guests in attendance, including the spouse or children of the accused, could be asked to give evidence in court. Do we really want to see fathers, mothers and children forced to give evidence that would lead to serious criminal sanctions against a family member?
“The spouse or children of the accused could be asked to give evidence in court”
Perhaps the most pertinent concern in the current context is the focus of the stirring up offences. The offences cover speech on contentious issues like religion and transgender identity. People should be allowed to speak strongly about these things – especially in the safety of their own homes. The idea that private arguments on these matters could result in allegations of a stirring up hatred offence is chilling. And it would provide a tool for activists who wish to attack their political opponents.
In order to respect democratic principles, and avoid these negative outcomes MSPs must back the inclusion of a dwelling defence at the earliest possible stage.