In a major climbdown, Justice Secretary Humza Yousaf told MSPs he had listened to the many concerns about a new offence of “stirring up hatred” within the Bill, which would not have required proof of "intent” for an offence to be committed.
As a result he said, the Scottish Government would make changes to the Hate Crime and Public Order (Scotland) Bill to “balance protection of vulnerable groups affected by hate crime with people’s rights to freedom of expression.”
The consultation on the controversial legislation saw the highest ever number of responses to a Scottish Government Bill in the current parliamentary session, with many organisations, including the Law Society of Scotland, the Scottish Police Federation, the National Secular Society and the Catholic Church, raising fears about its impact on freedom of expression.
It also prompted concerns that comedians, actors in plays or even panelists on shows like Question Time could fall foul of its provisions which were branded vague and open to abuse.
Mr Yousaf has backed the Bill for months, claiming it would not prevent people “expressing controversial or offensive views” and was heavily criticised on social media for describing concerns about the "stirring up hatred” wording as “daft takes” and “absolute baloney”.
However today he said he would now bring forward amendments to the Bill to ensure a conviction of ‘stirring up’ hatred would be possible only where it was shown that someone intended to do so “through their actions or behaviour".
He stressed there would be no change to the threshold for the existing stirring up of hatred offence for racial hatred, which has been in Scots Law since 1986.
Mr Yousaf said: “Confronting hate crime is central to building the safer, stronger and inclusive Scotland that we all want to see – free from hatred, prejudice, discrimination and bigotry. Our plans to legislate will ensure hate crime law is fit for the 21st century, giving sufficient protection to those who need it.
“I have listened to and reflected carefully on concerns raised over the Bill, particularly over the operation of the new stirring up hatred offences and concerns that these offences do not require that the accused intended to stir up hatred.
“I recognise that there is a real risk that if the offences don’t require intent to stir up hatred, people may self-censor their activities through a perception that the operation of this aspect of the offences may be used to prosecute what are entirely legitimate acts of expression.
“The Scottish Government will therefore lodge Stage 2 amendments to the Bill to make the new stirring up hatred offences ‘intent only’. I hope this fundamental change will provide necessary reassurance that the new stirring up hatred offences strike an appropriate balance between respecting freedom of expression while protecting those impacted by people who set out to stir up hatred in others."
Mr Yousaf also said he would update Holyrood next month on the government's plans to add misogyny to the list of hate crimes, which has been expanded in the new Bill to include age, disability, religion, sexual orientation and transgender identity.
Despite the shift by government, Jamie Gillies, spokesman for the Free to Disagree Campaign – a coalition of civil liberty groups and free speech proponents set up to oppose the ‘stirring up’ provisions – said there were other "seismic issues" in the Bill which needed to be resolved.
"There’s still too low a threshold for offending, the wording is hopelessly vague, free speech provisions are inadequate, there is no ‘dwelling defence’, and people outside Scotland could be caught," he said. “Withdrawing the ‘stirring up’ offences wholesale is the only way to resolve these complex issues and ensure that other, vital civil liberties are upheld. The fact that the government hasn’t done this means opposition to the Bill will continue for months to come. It’s a missed opportunity.”
He added: “Crucially, the government and other proponents have not demonstrated how these specific proposals would reduce hate-related crimes, or lend greater protection to citizens. Existing laws already catch violence, harassment and abuse. The Criminal Justice and Licensing Act criminalises those who intentionally or recklessly cause fear or alarm. And there are aggravated offences for crimes motivated by hatred and prejudice.
“Tackling hatred and prejudice can be achieved by other means – good education and support for families and communities and training for public bodies, rather than punitive measures. In championing these things, the Scottish Government can help to engender an atmosphere of kindness, tolerance and respect in Scotland, without undermining other important rights. We call on Mr Yousaf to reconsider and take this better approach.”
Last year there were more than 5,600 hate crimes reported to the Crown Office and Procurator Fiscal Service in Scotland, with race the most commonly reported, followed by sexual orientation aggravated crime.
The Hate Crime Bill is the latest in a series of “unworkable" Bills put forward by the Scottish Government, including the Names Persons Bill which was scrapped, and the Offensive Behaviour at Football Act, which was repealed after a civic campaign.
Holyrood's Justice Committee convener, Adam Tomkins said that Mr Yousaf's “willingness to reflect” was welcome, but added: “However, effective Bill scrutiny requires detail. The Justice Committee and its witnesses should know exactly what the government is proposing before it begins scrutiny.
“We would like to see the text of any proposed amendments as soon as possible, and I expect we will take up the Cabinet Secretary’s offer to appear before us at the earliest opportunity.”
Scottish Liberal Democrat justice spokesperson Liam McArthur MSP also said that the amendments were a “step in the right direction” but “did not mean “problem solved for the Scottish Government”.
“In light of a marked rise in all forms of hate crime, it is right that Parliament takes steps to ensure our legislation is fit for purpose. But this is a complex area of law and Ministers and Parliament need to be alive to the risks,” he said.
Mr Yousaf added: “I am keen to find common ground and will look at other areas of the Bill for possible reform, in doing so we will of course engage with stakeholders and opposition as the Bill goes through the usual Parliamentary scrutiny. I am confident that, going forward, the debate around the Bill will help build consensus on how we effectively tackle hate crime and how we can keep working together to ensure Scotland is an inclusive and forward thinking society.”
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