Draft Scottish Hate Crime Bill 'poses clear dangers' to media and theatre

The Scottish Government’s draft legislation to tackle hate crime has “unintended consequences and poses clear dangers” for news organisations and creates a problem for theatres where none currently exists, MSPs have been told.

Justice Secretary Humza Yousaf is piloting the Hate Crime Bill through Holyrood.

Holyrood’s justice committee heard that changes made to the draft Bill by Humza Yousaf were welcome, but more was required to protect freedom of expression in Scotland.

Mr Yousaf is piloting the new hate crime legislation through the Scottish Parliament, and recently said he would bring forward amendments to ensure “intent” would be needed to be proved for an offence to be committed.

However, the justice committee was told there were other concerns with the Bill, and that exemptions were needed if the law was not to have “unintended consequences”.

John McLellan of the Scottish Newspaper Society said the problem with the Bill was “its implications and application haven't been thought through”.

He said: “It's the unintended consequences of it that concern me. The problem, as I see it, is there's a catch all for newspaper publishers, and it poses clear dangers for us and that's why I’m seeking an exemption for legitimate news publishing.”

Asked about the potential impact on writers, he said: “It would be a brave person who would risk going to jail for seven years for something they had written, but the problem here is they wouldn't necessarily know they had committed an offence when they wrote the piece and when it was published.

“It may be their view that it’s balanced, but if someone takes offence and believes it's in breach of the law and raises a complaint, the police would have to investigate.

"Most publishers would seek to avoid a situation where they were repeatedly involved in lengthy and costly investigations, the cost of proving you had not committed an offence is just as big a danger as the sentences themselves.”

Lisa Clark, project manager with Scottish PEN, said there should be a new clause in the Bill “taking account of the literary, artistic, journalistic, columnist and scholarly character of communication, on the face of the Bill, to provide assurance to writers that those considerations will be made by the court and they’re not necessarily a target of the Bill”.

She said: "We recognise the need for writers to hold power to account and be provocative in their art and literature, and the reasonable cause defence needs strengthened as well as more clarity about the Bill and what it's trying to achieve."

On the impact on theatres, David Greig, artistic director of Edinburgh’s Lyceum, said that a “solution was being looked for a problem that doesn't exist” and the section in the Bill highlighting plays and public performance should be “struck out”.

He said: "I worry that a very deep problem is created, because the nature of it [theatre] is people standing on stage representing points of view we're expected to challenge and disapprove of very wholeheartedly."

He said theatres had been picketed in the past by organisations looking to get plays shut down, and it would be “incredibly easy” for these to be supported “with a claim that the play sought to promote hatred against a group, which is another reason why putting theatre in in its own category makes it a target.”

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