Children (Care and Justice) Bill: SNP look set to drop plans for Draconian controls on media freedom – John McLellan
With all the justifiable concern about the impact of the Hate Crime Act on freedom of expression, relatively little attention has been paid to two sections of the Children (Care and Justice) Bill which threatened two years in the slammer for identifying anyone under 18 involved in a crime or court case, be they victim, perpetrator or witness.
Maybe because those most likely to end up in chokey were reporters (everyone hates journalists, don’t they?), the alarm bells were not ringing as loudly as they were for the establishment of the new thoughtcrime regime some senior Police Scotland officers still insist they are determined to enforce, despite yesterday’s claims that a third of officers have yet to receive training. However, the implications were no less serious and not just for reporters, but for the basic right of people to know what is going on in their neighbourhoods without those keeping them informed facing the threat of lengthy investigation at the very least.
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Hide AdThe other reason there hasn’t been such a head of steam about sections 12 and 13 of the Children Bill is that, apart from MSPs and the charities and youth organisations consulted on the bill’s provisions, no one in the direct line of fire of these sections knew anything about it until it was almost too late to do anything before it became law. As I’ve argued in this column before, it had the potential to spark criminal investigations into the reporting of incidents like the Dunblane Primary school shooting, if a parent complained their child had been identified as a victim or witness. Even parental permission would not have sufficed because as originally framed the new law required a judge’s approval.
Running the Scottish news publishing trade association, I should have known about it. To my embarrassment, I only found out through a chance conversation the same day as it was going through the Scottish Parliament’s education committee where the legislation was supposed to be receiving line-by-line scrutiny. Media law specialists had heard about it a couple of weeks previously but had no idea the sections were about to clear the committee stage.
As few problems had been raised, the sections went through, and by the time committee members realised there was an issue it was too late. Ironically, concerns were flagged by children and young people minister Natalie Don, who accepted the sections perhaps went too far in inhibiting individual right to speak about their experiences and told the committee they would be fixed through amendments at stage three, the last chance for alterations before being passed into law.
Of the many criticisms of the hate crime legislation, the SNP cannot be accused of failing to consult on its proposals – I gave evidence on behalf of newspaper publishers to the Justice Committee – which made the absence of consultation about the plan to criminalise the reporting of what until now would have been standard crime and court cases all the more extraordinary. It doesn’t take much to come up with a conspiracy theory when it comes to Scottish Government legislation − like the destruction of the property markets looking very like an intended consequence of Greens co-leader Patrick Harvie’s Heat in Buildings Bill − but on this occasion, it does appear to be a good old-fashioned cock-up. Nobody had thought through the implications, until, late in the day, letters started arriving in Ms Don’s inbox from media lawyers and journalists. Out of nowhere, it threatened to become another front on what was beginning to feel like total war on Press freedom.
Like the Hate Crime Act, the impact of sections 12 and 13 was minimised by some who should have known better, forgetting, or ignoring, that inserting protections and exceptions into legislation does not mean there will be no investigation, with all the stress and cost that mounting a defence entails. Having been on the end of spurious allegations myself because someone didn’t like the way I spoke, it is extremely unpleasant to say the least and cost me thousands of pounds to see off. This is what the Hate Crime Act threatens, and the Children Bill was going to make matters worse.
It is human nature to want to avoid such trouble, which is the whole purpose of the Hate Crime Act, but the Scottish Government has brushed aside fears about this chilling effect, pointing to the defences for freedom of expression written into the legislation, and we should know soon enough if those fears are justified. The 250,000 recorded hate incidents over the past decade in England and Wales, according to the Free Speech Union, suggests they will be. Judging by her social media post yesterday, author JK Rowling is determined to test it to the full.
But as far as the Children Bill is concerned, there is good news! The Scottish Government can listen, even late in the day. Whether because of the hate crime furore or not, senior figures within the Scottish Government recognised the lack of consultation meant the implications hadn’t been fully appreciated and that carrying on regardless with the Children Bill’s problem sections might just be stoking up even more trouble it could do without. Only the past fortnight, it was decided to withdraw the two sections from the bill and put them into a wider consultation about victim anonymity and an explanatory letter is being sent to education committee members.
So withdrawn for now but, like the total ban on alcohol marketing, not gone away, and there are still questions about how such Draconian legislation could get so far as stage three of the parliamentary process with no official notification to those about to be criminalised. Maybe not quite a screeching U-turn, but no wonder the emergency brakes have been applied. From the car-crashes that were offensive behaviour at football, named persons, gender recognition reform, deposit return and now hate crime, the SNP’s scrapyard was getting full.