Mr Yousaf will also drop a section of the Bill which would have criminalised the carrying of “inflammatory material”, which some critics feared could include religious texts.
A day before the Scottish Parliament is scheduled to debate the Bill, he also confirmed his intention to retain the word “insulting” in reference to race hate crimes, and agreed to add explanatory notes on what the word “abusive” would mean in the law.
The changes come after months of rising concerns that the Bill would criminalise freedom of speech and create a “chilling effect” on media, theatre and academia in the discussion and criticism of certain protected characteristics.
The justice secretary had already agreed to amend the legislation to include “intent” as a threshold for prosecution in new “stirring up hatred” offences and scrap a section which would have impacted on the freedom of expression of plays and performers on stage.
Mr Yousaf said he had now accepted the “overwhelming majority” of the recommendations from Holyrood’s Justice Committee, and would bring forward amendments which would “among other matters, strengthen protections for freedom of expression.”
He added: “Through the whole process I have listened to concerns raised and proposed amendments to address these concerns. That approach will not change. I will continue to listen to concerns members may have about any aspect of the Bill and, where possible, will try and reach common ground.
“Confronting hate crime is central to building the safer, stronger and inclusive Scotland that we all want to see. Our plans to legislate will ensure the law is fit for the 21st century and [tomorrow’s] debate will provide the opportunity for MSPs to come together to support the general principles of this legislation to tackle hate crime, giving sufficient protection to those who need it.”
Mr Yousaf said that the freedom of expression provisions in the Bill “have a key role to play in providing clarity and reassurance as to what will continue to be behaviour that is not criminal once the offences in the legislation are in force."
He added: “I intend to bring forward amendments to add freedom of expression clauses for the protected characteristics of transgender identity and age. These amendments will add reference to clarify that mere expressions of antipathy, dislike, ridicule and insult are not, on their own, criminal behaviour.”
More detail on the provisions, he said, would be laid out during the next stage of the Bill’s progress through Parliament when amendments can also be lodged by opposition parties.
On removing the section dealing with “inflammatory material”, he said he had “listened carefully to the evidence presented by the Committee and note concerns from a number of stakeholders, ranging from Faith Groups to authors and playwrights… after careful consideration… it is my intention to lodge Stage 2 amendments to remove section 5 from the Bill. I consider there is no longer a need for such an offence… I have taken the view that the conduct which is criminalised by section 5 of the Bill can be covered to a significant extent by application of the general criminal law.”
MSPs on the justice committee had also asked Mr Yousaf to consider when a warrant would be granted for police to enter and search a person’s premises under the Hate Crime Bill and had suggested “attaching a time limit on any warrants provided for.”
Mr Yousaf said he accepted the recommendation and “a time-limit of 28 days will be added to the Bill by way of Stage 2 amendment. If this is agreed, a time-limit of 28 days within which the warrant has effect after being issued would be added… the effect of this will be that if a warrant granted under these powers was not enforced within 28 days, it would no longer be valid.”
The announcement of changes by the government was welcomed by the Free to Disagree campaign, though it is also pushing for further “safeguards.”
Spokesman Jamie Gillies said: “We’re grateful to Humza Yousaf for promising more, significant amendments to the Hate Crime Bill. Strengthening the free speech provisions, adding an objective test to the term ‘abusive’ and removing the provisions on ‘inflammatory’ material will help protect freedom of expression – a vital right cherished by all citizens – and increase public confidence in the proposals.
“We have two additional suggestions for the Cabinet Secretary– a prosecution lock and a dwelling defence. Adding these additional safeguards will bring the Bill in line with other stirring up hatred laws in the rest of the UK.”
Policy collective MurrayBlackburnMcKenzie, who gave evidence to the justice committee on the Bill also welcomed “the proposed extension of freedom of expression provisions” but added: “In relation to transgender identity this needs to be specifically tailored to recognise the current climate in which women across the UK have already lost their jobs, faced disciplinary action, been interviewed by the police, and had details recorded on police databases for asserting that there are contexts where biological sex matters, and wanting to use clear language to discuss that.
“We also hope that the Cabinet Secretary will consider adding sex as a protected characteristic before the bill completes its passage through Parliament. The longer the law is unchanged, the more the message is reinforced that hatred based on sex is less serious than hatred based on other characteristics. It would also mean that Scotland would continue to have no statistics on offences motivated by prejudice based on sex on its own, or intersecting with other characteristics.”