Jamie Gillies, Free to Disagree spokesman
One year after the government published its contentious Hate Crime Bill, the clamour over these plans shows little sign of abating.
Many groups still have serious concerns about proposed “stirring up hatred” offences. This is why a number of critics are now urging MSPs to take a breath and defer scrutiny of these proposals until after the May election. A joint letter signed by civil liberties groups, secular and faith groups, women’s groups and the Society of Editors last week warns that the offences need more work to ensure that free speech is not inadvertently undermined.
We all condemn crimes motivated by hatred and prejudice. In modern Scotland, you’d hope that would be a given. The difficulty with the ‘stirring up’ offences, in their current form, is their potential to have a wider, negative effect on freedom of expression. Last year, the police, the legal profession, academics, civil liberties groups and others cautioned that the offences could criminalise speech and writing on hot button issues like religion and trans rights, and place a chill on free expression in the arts, the media and the public square.
The Scottish Newspaper Society summed up concerns well: “In these times of increasingly bitter division over Brexit, Scottish independence and the environment, as well as gender politics, it is not too far-fetched to see the possibility of the police being drawn into political disputes because they would have to investigate complaints and be used as a tool to attack media organisations and close down debate. It could be used by those who attacked JK Rowling for her views on gender to instigate a police investigation which could lead to conviction and it’s clear that plenty of her critics would like to see that happen.”
Concern about the scope of the stirring up offences gave rise to an unlikely alliance of secularists, Christians, LGBT campaigners and women’s groups – people who profoundly disagree with one another on many issues but who are nevertheless united in the belief that their philosophical opponents should have the right to criticise, attack and ridicule their own stance without being accused of ‘hate speech’. The Free to Disagree campaign, for which I am a spokesman, includes the National Secular Society and The Christian Institute – enemies on a number of issues but friends on free speech.
After a sustained backlash, the government made several concessions. Most significantly, Ministers agreed that offending should be limited to ‘intent’. They also committed to ‘broadening and deepening’ a free speech clause covering religion and inserting a new clause on transgender identity. Cabinet Secretary for Justice Humza Yousaf lodged amendments to effect these changes ahead of Stage 2 deliberations, which began on 2 February 2021. However, the Cabinet Secretary, in agreement with other MSPs on the Justice Committee, decided to withdraw free speech amendments at the eleventh hour, saying he would seek ‘consensus’ on a ‘catch-all’ free speech clause, to be drafted ahead of Stage 3.
This move undermined the whole process of scrutiny to date and broke trust with the many stakeholders. Amendments to safeguard freedom of expression on religion, sexual orientation and transgender identity – topics that are subject to strong and often controversial debate – were vitally important and agreed upon by the majority of groups who have engaged with parliament over the last 12 months. Providing separate and robust freedom of expression provisions on these topics was also the approach advocated by Lord Bracadale QC in evidence to the Committee last year. He said: “Such amendments to the bill would be an expression of the kind of line that we want to identify between ‘offensive behaviour’ on one side and ‘threatening and abusive behaviour’ on the other”.
The idea that a workable ‘catch-all’ provision covering these topics, as well as the characteristics of age, disability, and variations of sex characteristics can be agreed upon by the government and other parties before final, Stage 3 proceedings take place is untenable. Manufacturing such a clause over the next few weeks, behind closed doors, will also necessarily preclude the views of parliament, stakeholders and the public from being taken into account.
The stirring up hatred proposals could impact upon the most precious liberties in any democratic society: freedom of speech, freedom of expression, freedom of conscience and religion. They must be handled with the utmost care. With great uncertainty about the content of free speech protections and only weeks until a final Stage 3 vote on the plans, it’s hard to see how they can get the care they deserve. Add to this the incredible workload MSPs are facing, and the wider challenges of coronavirus and the idea of a suitable resolution being found feels very unlikely indeed.
MSPs in every party should oppose Part 2 of the Hate Crime Bill and allow other, non-contentious aspects of the bill to proceed without it. New proposals on the stirring up of hatred could be brought forward in the next parliament, where they would be scrutinised thoroughly over time, with renewed input by a wide range of stakeholders.