THE Lord Advocate has taken the rare step of setting out the acceptable limits of the debate on same-sex marriage, warning that those whose views might spark violence or hatred could be prosecuted.
Frank Mulholland, QC, issued the guidance to prosecutors as the historic bill to legalise gay marriage was published in the Scottish Parliament yesterday.
The legislation aims to give gay and lesbian couples the same right to marry as heterosexuals, while at the same time protecting church leaders who do not want to carry out such services.
But the debate has already proved to be extremely divisive.
Mr Mulholland said it was important people were able to express their opinions freely without fear of prosecution. He went on: “Criticism of same-sex marriage or sexual orientation is not in itself an offence and people have the right to express their own opinions, particularly during the passage of the bill through the Scottish Parliament.
“Legitimate comment is part of the democratic process. The prosecution service recognises that freedom and also the sensitivity of the issues and the strength of opinion surrounding same sex marriage.
“I have therefore decided to publish brief guidelines for the Crown Office and Procurator Fiscal Service to ensure a consistency of approach by prosecutors across Scotland in deciding whether it is in the public interest to prosecute a case.”
He called for a “measured and proportionate approach” that would encourage “legitimate comment without fear of prosecution”. But he said the guidelines should “make it clear that when comments are made in relation to same-sex marriage that incite hatred or violence that the rights and freedoms of victims are protected”.
In Scots law, incitement is influencing the mind of another person to commit a crime, regardless of whether or not the crime is carried out. The Lord Advocate’s wording is reminiscent of the legislation introduced to tackle sectarianism and bigotry at football matches.
Mr Mulholland’s full guidance says views “which do not cause or intend to cause public disorder will not be the subject of criminal prosecution” – indicating that those that do, might.
One minister, who was referred to police after comments made in a radio debate, admitted he feared prosecution.
The Rev James Gracie, of the Free Church of Scotland (Continuing), caused outrage in 2011 after comparing homosexuality to paedophilia and polygamy on BBC Radio Scotland’s Call Kaye.
His comments were referred to police but were not pursued by prosecutors.
Yesterday, he said: “What happens, once this bill has become legal, to people who say it is a sin and should not be there? If I go out into the streets and preach that this is against God’s word, what will happen to me?
“I will do that with my congregation. I will go outside with leaflets. If I am called upon to do that, I will do it.”
He added: “Would I be prosecuted if my children came home and told me that a book they have been given was full of homosexuality? I would gladly go to jail rather than let my children be taught that stuff.”
Free-speech campaigners say people should be able to make controversial arguments without fear of prosecution.
Padraig Reidy, of one such group, Index, said: “Equal marriage is a contentious issue, which is exactly why it’s important that everyone feels free to discuss this issue properly.
“We hope that prosecutors will allow people on all sides to speak freely and without fear.”
However, Tom French, policy co-ordinator for the Equality Network, does not expect the debate to stray into the realms of criminality.
“There are some things that people say that are offensive, but that’s freedom of speech,” he said. “The only comments that should be illegal is where they are specifically inciting violence, and I don’t think that territory has been strayed into.
“We would be very clear that we support freedom of speech. People have the right to say they oppose same-sex marriage. There may be a society reaction to that if the language they choose is offensive, but there should not be legal action.”
John Scott, QC, a human rights lawyer, said defining what is offensive, and what is offensive and likely to incite violence, would be a test for police and prosecutors. “I think it’s important to have the right to offend people – that’s an important part of free speech,” he said. “As to whether the balance is struck correctly here, it’s probably a good thing the Lord Advocate has stepped in, and people are aware of it, but we should be careful.
“It’s got to be interpreted by police officers and there’s been questions raised about the interpretation of football laws by police and prosecutors.”
A spokesman for Scotland for Marriage, a coalition that includes the Scottish Catholic Church, said the Lord Advocate’s guidance wasn’t enough. He said: “We need specific and unambiguous protections written on to the face of the bill which will stop people like teachers getting fired just because they support traditional marriage.”
Alex Neil hails plans as ‘historic’
THE plans for a change in the law to allow gay couples to marry were hailed as “historic” by health secretary Alex Neil.
The controversial proposals have met with fierce opposition. Both the Catholic Church and the Church of Scotland are against them, and tens of thousands have signed a petition trying to block the move.
The issue had also split the parties at Holyrood, although a majority are expected to back the change.
The Scottish Government insists the change offers protection for religious bodies, individual ministers or priests, and makes it clear that freedom of speech is unaffected.
Mr Neil said: “This is a historic moment for Scotland and for equal rights in our country.
“We are striving to create a Scotland that is fairer and more tolerant, where everyone is treated equally. That is why we believe that same-sex couples should be allowed to marry.
He added: “A marriage is about love, not gender. And that is the guiding principle at the heart of this bill.”
Under the plans, religious groups that wish to perform same-sex marriage will have to opt in. If a group does decide to perform same-sex marriages, protection will be in place for individual celebrants who consider such ceremonies to be contrary to their faith.
First Minister Alex Salmond has already indicated he is supportive, although the bill with be the subject of a free vote at Holyrood. A review will be undertaken into whether heterosexual couples can enter civil partnership, which is so far restricted to gay couples.
The bill was lodged on the last day of business before the summer break at Holyrood. It is likely to be passed by a majority in parliament next year, although some MSPs have indicated they will vote against the plans.
Tom French, policy
co-ordinator for the Equality Network, said: “We hope that our MSPs will stand by the values of equality and social justice that the Scottish Parliament was founded on and vote to pass this bill with the strong majority it deserves.”
Marco Biagi, MSP, who is gay, also welcomed the bill, saying: “Marriage is a recognition of love and commitment between two people. Whatever their gender, they deserve equality before the law.”
But another Nationalist MSP, John Mason, said it was “highly unlikely” he would vote for the bill, adding he was unsure if protections promised by the government could be guaranteed.
Mr Mason, who sits on the equal opportunities committee said: “It’s pretty clear from the parliamentary arithmetic that this bill is likely to pass.
“However, it is highly unlikely I will vote for the bill.”
Labour MSP and Deputy Presiding Officer Elaine Smith has also indicated that she will vote against the bill, but it is supported by Scottish Labour leader Johann Lamont.