Serving police officers and legal experts have highlighted their concerns with the Scottish Government’s embattled Hate Crime and Public Order (Scotland) Bill.
Earlier today, senior representatives of the Faculty of Advocates, the Law Society of Scotland, the Crown Office and Prosecution Service, Police Scotland and the Scottish Police Federation gave evidence to MSPs on Holyrood’s Justice Committee.
The groups expressed gratitude for a recent concession by Cabinet Secretary for Justice Humza Yousaf relating to draft stirring up hatred offences in Part 2 of the bill.
However, they stressed that more needed to be done to allay public concerns over a potential impact on free speech, and said the costs of the legislation for policing are undefined.
Free to Disagree comment
Jamie Gillies, spokesman for the Free to Disagree campaign, said:
“The overall impression from today’s proceedings is that more action is required to allay concerns about the Hate Crime Bill.
“The Cabinet Secretary’s recent announcement on ‘intent’ was widely welcomed. However, questions over the vague wording of the ‘stirring up’ provisions and their potential reach remain unanswered.
“It’s perfectly possible to construct legislation that deals with crimes motivated by hatred robustly whilst also respecting fundamental freedoms. With thorough scrutiny and additional amendments in the coming months, we are optimistic that this can be achieved with the Hate Crime Bill.”
Asked about the costs of the legislation for policing, Mr Steele added that it “creates a fairly hefty administrative burden on the police service” that is not reflected in the financial memorandum accompanying the Hate Crime Bill. He added that the costs of new legislation are often “grossly underestimated” by MSPs.
‘Abusive’ not well defined
Critics of the bill have expressed concerns that the term ‘abusive’ is too subjective and could lead to merely offensive speech being caught by the ‘stirring up’ provisions.
Asked if the term ‘abusive’ can be described as an objective test, the Faculty of Advocates and the Law Society stressed that more clarity is required.
Roddy Dunlop QC, Dean of the Faculty of Advocates, argued that if there is “any doubt” about the meaning of the term, there “couldn’t be any objection to an amendment to make it clearer”.
Michael Clancy, Director of Law Reform at the Law Society of Scotland, added: “If we leave this bill without any specific definition there might be a question as to why.”
Police representatives echoed their concerns. Gary Ritchie Gary Ritchie, Assistant Chief Constable of Partnership and Community and Wellbeing at Police Scotland said that further clarification is “always welcome”.
And Callum Steele, head of the Scottish Police Federation, said it would probably be helpful if an “objective test” was written into the legislation. He warned that in current, febrile political climate there will be a “clamour” for the police’s reach to go much further than the original offence intended, saying “things that are insulting could easily be redefined from insulting to abusive to meet the criminal test”.
Mr Steele said that the Police Federation’s concerns largely relate to “grey areas” in the legislation, noting that conversations in the home on contentious issues could be repeated innocently by children in the classroom and lead to a report to the police.
Freedom of expression clauses too narrow
Panellists were asked for their views on free speech provisions accompanying the ‘stirring up’ offences which the Scottish Government is actively considering. Last week, Humza Yousaf expressed a willingness to “broaden and deepen” the free speech protections listed in Part 2 of the bill.
One idea mooted is to adopt the wording of free speech provisions in parallel ‘stirring up’ legislation in England and Wales which protects expressions of antipathy, dislike, ridicule, insult and abuse”.
Commenting on the current provisions, which protect “discussion and criticism” of religion and sexual orientation, Michael Clancy said that “criticism and discussion are very wide concepts”.
Assistant Chief Constable Gary Ritchie said it is “helpful for police officers to have that freedom of expression provision in there” but said detailed provisions are more important for a public understanding of what offending involves.
Mr Ritchie said it’s “always more helpful to us if the people we’re policing understand the legislation”. “If it’s laid out in clear terms about what is permitted and what’s not that’s helpful just purely in terms of engagement with people.”
Callum Steele added that the absence of clear freedom of expression provisions will be “utilised as a means to levy criticism at the police service that certain behaviour is not acted on”. “Extending a list would be helpful from a policing perspective.”
Police powers of search and seizure problematic
Both legal representatives and members of the police service criticised new police powers outlined in the draft legislation.
Describing the powers as “unduly oppressive”, Michael Clancy said: “We would look to tightening the terms of the provisions in Section 6 to make it clearer and more effective.”
Callum Steele said MSPs must remember that police officer are not detached from issues in politics and public debate, saying officers could use “enforcement powers on matters they have taken public positions on”.
Provisions on plays should be scrapped
The Law Society Scotland and the Faculty of Advocates argued that controversial provisions on the public performance of plays are undemocratic and wholly unnecessary.
Michael Clancy said the provisions are “much more stringent” than existing legislation and present a “threat to freedom of expression in the arts”.
“It’s not really clear what mischief the provisions are seeking to constrain. We’ve got to be looking closely at what this legislation is actually trying to deal with and whether we need to revisit the wording”.
Roddy Dunlop questioned why the legislation is addressing plays in particular. “Nowadays a far more pressing concern would be things said on social media…I wonder whether it’s not appropriate to leave section 4 out.”