Justice Committee backs Hate Crime Bill, if amended

The Scottish Government's Hate Crime Bill should be supported if it is amended to set clearer tests and to safeguard free speech, Holyrood's Justice Committee has concluded.

In a unanimous report ahead of the stage 1 debate, the all-party committee of MSPs recommends an objective test for behaviour to be considered "abusive” under the bill, with prosecutors being required to show that a "reasonable person" would consider the behaviour to be abusive.

The report follows an "unprecedented" response to the call for evidence, with almost 2,000 submissions, and the committee heard oral evidence from almost 40 stakeholder organisations.

Much of the bill, which follows a report by retired judge Lord Bracadale, consolidates and restates existing law, but controversy has centred mainly on new offences relating to stirring up hatred, which at present apply only in relation to race but which the bill would extend to all listed characteristics, including age, disability, race, religion, sexual orientation, transgender identity and variations in sex characteristics. Justice Secretary Humza Yousaf has already committed to amending the bill at stage 2 to require intent for the stirring up offences, except in relation to race. 

As to whether "insulting" behaviour should be retained as part of the stirring up offence relating to race (Lord Bracadale recommended it should be removed), the committee says it heard strongly expressed views on both sides of the debate and members were "persuaded differently": it expresses no conclusion or recommendation.

It wants stronger provisions to safeguard freedom of expression in relation to religion, sexual orientation and sexual conduct and practices, and clarity over the "reasonableness" defence available to a person charged with a stirring up offence, to avoid the law having a "chilling effect" on free speech. 

After discussing the debate over transgender rights and allegations of transphobia, the report observes: "Parliament will have to judge whether, in its view, these safeguards are sufficient to ensure that public and vigorous debate on matters such as gender recognition and women’s rights can take place untouched by this bill."

It also agrees that while there should not be an absolute defence against prosecution for acts in private homes, people should be allowed to express their own, perhaps offensive, views within their own home or other private space without fear of investigation or prosecution, if there is no public element to the offence. They call on the Scottish Government to find a way to amend the bill that better reflects this view.

The MSPs said their recommendations build on, but go further than, the commitments already made by Mr Yousaf to make changes to the bill. 

Among their more general conclusions they state: "The committee believes that it is important that people with protected characteristics can 'see themselves in this bill' and be clear how the provisions improve their situation. Whilst we have some sympathy with the idea of consistency of approach, we do not believe that all characteristics must be treated in exactly the same way."

In particular, the historic nature of racial hate crime and the volume of offences justifies treating race differently in relation to stirring up hatred.

In response Mr Yousaf tweeted his welcome for the report, saying he had already agreed to many of the amendments proposed. He would give the Government's formal response on Monday, ahead of Tuesday's debate on the bill.

The committee welcomes the appointment of Baroness Helena Kennedy QC to chair a working group on misogynistic harassment, and calls on the working group to report within a year to avoid further significant delay. However, any legislative change it recommended should be subject to the fullest possible parliamentary scrutiny.

Speaking as the report was published, committee convener Adam Tomkins MSP said: "Balancing freedom of expression and legislating to ensure hateful actions can be prosecuted is a difficult task.

"The committee is grateful for the wealth and variety of evidence we heard, and hope we have reflected, in our report. We also welcome the Cabinet Secretary taking the unusual step of accepting that his bill required amendment before we began our scrutiny.

"We believe that, if amended in line with our unanimous recommendations, this bill should be fit to protect the communities it affords extra protections to, without encroaching on the ability of citizens to have robust debates, hold views others find unpalatable, and express themselves freely."

He added: "It is a testament to the openmindedness of all members to have found such consensus on what has undoubtedly been a contentious piece of legislation."

Click here to view the report.