Ministers propose amendments to Hate Crime Bill
Proposed changes to its controversial bill to streamline the law on hate crime, in order to safeguard freedom of expression, have been announced by the Scottish Government.
Justice Secretary Humza Yousaf told the Scottish Parliament today that he would bring forward amendments to the Hate Crime and Public Order (Scotland) Bill in relation to the new offences of "stirring up" hatred, the drafting of which has alarmed interest groups ranging from churches to stage performers.
Under the amendments, a conviction would be possible only where it was shown that someone intended to stir up hatred through their actions or behaviour. The lower threshold for the offence in the bill as presented – that someone’s behaviour was "likely to" stir up hatred – would be removed.
There will be no change to the threshold for the existing offences relating to stirring up racial hatred, which have been part of Scots law since 1986.
Mr Yousaf told MSPs that he had listened to the concerns expressed and and "reflected on the agreement that was made in the chamber to seek common ground and compromise".
He recognised that "there is a real risk that if the offences do not require intent to stir up hatred, there could be uncertainty and a perception that operation of that aspect of the offences might be used to prosecute entirely legitimate acts of expression, which might lead to an element of self-censorship".
Insisting that the bill did not seek to stifle robust debate, public discourse or artistic freedoms, he added: "I can advise that the Scottish Government will lodge stage 2 amendments to the bill to make the new offences of stirring up hatred based on intent only. I hope that that fundamental change will provide the necessary reassurance that the new offences of stirring up hatred strike an appropriate balance between respecting freedom of expression and protecting people who are affected by those who set out to stir up hatred."
In addition the Government will look at other areas of the bill for possible reform, engaging with stakeholders and opposition parties.
The Law Society of Scotland and Faculty of Advocates, which had both criticised the drafting of the bill, have each welcomed the announcement.
Amanda Millar, President of the Law Society of Scotland, said: "We welcome the Cabinet Secretary’s willingness to listen and respond to the genuine concerns that we, and many other groups and individuals, have raised about the bill.
"Much of our concern has been about vagueness in the bill and the resulting lack of certainty for the public. We are pleased this has been recognised and that the Cabinet Secretary is actively seeking common ground and compromise to ensure Scots law is fit for the 21st century and there are sufficient protections for those most vulnerable to prejudice in our society."
She added: "We are also pleased to see the Cabinet Secretary will consider amendments regarding clarification of reasonable defence and freedom of expression. We would support his aim of reviewing the use of archaic language which should not be a part of modern consolidated legislation.
"We understand the current approach to race will be maintained, but think that there will be need to assess the impact of maintaining 'likely' as the standard to be applied to race-related hate crimes. It may be more appropriate to require that there is a 'significant risk', a term which is already used in relation to vulnerable witnesses in legislation.
"We also think the bill should avoid creating a hierarchy of victims and that this should be considered further in the overall context of the policy objectives of the bill."
Dean of Faculty Roddy Dunlop QC welcomed the change to the "stirring up" offences, but commented: "It does not address all of the Faculty’s concerns about potential impact on freedom of expression, and Faculty will continue to work with Government to address those other concerns.
"This change, however, will ensure that criminalisation applies only to intentional behaviour, which is consistent with the policy aims of the bill that Faculty has always supported."
For the Conservatives, justice spokesperson Liam Kerr said the proposed amendments "do not begin to go far enough" to protect free speech, particularly in relation to "threatening or abusive" behaviour or communication, and "inflammatory material", but Mr Yousaf said that dealing with the stirring up offences would mitigate the "vast majority" of concerns raised by a number of stakeholders, and other areas of the bill should be capable of being dealt with in the normal manner at stage 2.