Thread by @mbmpolicy

This morning the Justice Committee will take evidence on the Hate Crime and Public Order Bill from women's groups For Women Scotland, Engender and Scottish Women's Aid. The session starts at 10am and you can watch the livestream here: scottishparliament.tv/channel/commit…

Adam Tomkins welcomes the witnesses.

Annabelle Ewing: wants to ask about the non-inclusion of sex as a protected characteristic. Wants to understand views of the witnesses and whether the working group on misogynistic harassment is right approach.

Marsha Scott: 10 or 15 years ago when first contemplating adding sex as an aggravation, she was in favour of it. Her gut was that anything that would help people understand the violation of human rights against women was a good thing.

Our assessment of impact on women of adding sex as an aggravation would not do them any favours and may have negative consequences. Not a huge amount of evidence in the area. What there is says it won't help and is likely to harm.

An aggravation only works in context of legislation. We have those laws in place now. Aggravation will not fill a gap. Biggest concern is women being treated as a minority. Something much bolder needs to happen to shift this misogyny.

Strong possibility if we do this and nothing else, a lot of folks will tick the box. We may be back here in ten years saying that did not work.

Ewing: that deals with the statutory aggravation. Would like to hear views on stirring up offence proposals.

Emma Ritch: Engender and other national women's organisations are very used to working incrementally. Previously we were instinctively in favour, even if gives women a small measure of protection as we wait for something better.

The issue of VAWG: it is fundamentally contradictory based on analysis that some incidences are a product of discrimination on the grounds of sex and some are not. That is not how we understand VAWG. Equally Safe strategy may be undermined.

Cites CEDAW saying against gender neutral approach to laws in this area. Baseline position, based on evidence of our review, is that hate crime and hate speech are very poorly understood in the context of women.

Must not rush to legislate in a way that hasn't met women's needs in other jurisdictions.

Susan Smith: fundamentally, we believe that as long as there is a statutory aggravation model, women need to be protected and that can be done by adding sex.

In debate about sex and gender identity, if there is no mirror aggravation for sex, women are left exposed. Things women have said have been regarded as hateful. But no equivalent protection.

Contested nature of what constitutes hate is a concern. Not sure what evidence is that a standalone misogynistic offence would reduce the harms that have been identified. This conversation has been going on for a very long time. First identified 17 years ago.

Even if this is not a perfect solution, it gets things started. It may be that a working group could come up with something far better but risk we will be here again in another 12 year. Bracadale did not think there was a gap in offences that needed to be covered.

Data and training often comes up. Right now there isn't the will or capacity to collect this. Cites Nottingham trial which started in 2016. The definition of misogyny was felt to be academic and elitist, and was poorly understood.

Sex is something that is understandable. Nottingham trial there was pretty universal levels of support. It perhaps could have been better education. Victims felt as though they had had better support from the police and motivating factors being better understood.

Engender have picked up lack of policies around sexist bullying in schools. I understand issue of domestic abuse aggravator. We try to consult as widely as we can.

FWS has testimony from people in VAWG sector and the women we consult with feel that there is a need to listen to ordinary women's voices. Do understand concerns about wider harms to women.

More compelling arguments for FWS came from one of the networks who deal with abuse survivors and they feel they have not been consulted.

This is a decision for MSPs. I concur with the Faculty of Advocates on that. It is for elected representatives. A number of women MSPs wanted to be able to discuss this. If left out of bill at this stage, MSPs are being denied that opportunity to explore that.

Ewing: looking at the working group, what involvement have Engender and SWA had thus far?

Scott: we haven't had any involvement. There has been discussion in roundtables and as part of the consultation process. We very much supported a working group and keen to see it go forward and would be happy to participate in it.

I meant to mention a significant danger of adding a sex aggravation is that our experience is there is no evidence it will work and it will be another tool for perpetrator of domestic abuse to use against women.

We spend an enormous of amount of time gathering evidence. There is libraries of evidence on this. We have 36 services around Scotland and we heard a consensus opinion that perpetrators would use this. We are very concerned at the possibility this would happen.

Ritch: similar answer to Marsha. We advocated for working group and keen to see its work go forward. Not heard any more detailed conversations from SG. Have asked several times what is happening.

Wants to talk about data. Nottingham example is good detail on why some of this won't work. Tells us that hate crime does not track easily across to women's experience of harassment.

Have seen that in international jurisdictions. Gives example of New Jersey. This just isn't a model or concept that works. Need different approaches. So pleased working group going ahead.

Smith: we have raised concerns with Delegated Powers Committee regarding sex aggravator issue. We noted that it talked about different provision for different purposes. Committee could look at that.

Domestic abuse being used against victims has not prevented the court approach being used. As far as data issues are concerned, a lot of people have raised concern about lack of under-reporting.

Bill Kidd: how might the panel see a separate offence of misogynistic harassment working?

Ritch: we don't want to anticipate the work of the working group but hoped they would look at evidence base. Mentions online misogynistic harassment, especially to female parliamentarians. Increasingly seeing very serious links between misogyny and terrorism.

Stirring up and hate speech vitally important to consider. Council of Europe found that there are not many court cases dealing with sexist hate speech. Hope working group would look at gaps in the law.

Kidd: worry is that when a characteristic is included in such a large bill it may turn out to be little more than symbolic.

Scott: if anybody were capable of creating a misogynistic offence, it is the Scottish Parliament. Cites domestic abuse legislation as a gold standard globally. Collaborative work with SWA and officials in SG working together to understand survivors' experience.

I don't know what a misogynistic offence would look like but we have an opportunity to lead the world. We have practice at doing something really difficult that takes us a step forward.

Smith: reasonable to have working group to consider wider and deeper harms as misogyny is endemic and ignored. Symbolic impact of saying that at this point that you are content to push that off to later date worth noting.

Tomkins: Bracadale said there was no gap in the law that required to be filled by misogynistic harassment and different groups had different understandings of it.

Ritch: Bracadale met with us and SWA. Not sure Bracadale has undertaken systematic evaluation in this area. That would be something for the working group. I dispute that the existing law is working for women.

Liam Kerr: questions on definitions in Part 3. Asks Susan Smith about definition of transgender identity. Kerr asked Cabinet Secretary for explanation but did not get a clear explanation.

Smith: concern about inclusion of 'cross-dressing' under transgender identity. Cites recent FOI response from SG with correspondence with Equality Network on this issue. Hard to think of circumstance where woman is described as a 'cross-dresser'.

Sexist base to assumptions underpinning this. Why are you protecting one set for what is essentially a sartorial choice? Why is one dress sense being protected and not another?

Cites Glasgow Life's policy which said that cross-dressers could access female changing rooms in leisure centres. If women objected, it should be explained to them and if they continued to object, a hate crime could be filed.

Kerr: question to Emma Ritch. I asked the Minister in PQ where I could find a definition of a non-binary person and a person who cross dresses. Can she comment on Minister's response?

Ritch: in context of initial consultation on GRA, a suggestion that non-binary needed to be add to Equality Act, Engender said that needed careful consideration.

Definition is a matter for LGBT organisations, not Engender.

Kerr: question to Marsha Scott. Opposite sex or different sex - does she take a view?

Tomkins: any reflections about way in which bill tackles stirring up offences. Asks Emma Ritch?

Ritch: we have a general interest in seeing stirring up offence and balancing protecting groups and protecting feminist speech. We have suggested the bill be amended to replace freedom of expression protection in bill with more general FoE protection.

SG must communicate this legislation to the citizens of Scotland. What the public understands about the bill is critical.

Scott: we are so far from having the language in which we can talk about many of these issues, it is a long path to get to a place where the general public moves in that same direction. It is about finding a way to get there rather than saying we know how to do it right now.

Smith: we would prefer Part 2 almost in its entirety dropped. See case for separate bespoke solution for racism. Racism remains an animating force. Can be seen in degree of political organisation.

It is the contested nature (of debate on sex and gender identity). Notes recent comments by Amnesty Ireland saying that people who have strong views on this should not have political representation.

We think there has been a chilling effect. It does not have to come to trial. Way before people get to trial. Trial last year in England about transphobic hatred which was against a transsexual woman. Miranda Yardley said they had undergone ten months of hell.

Refers to those with learning disabilities. Person in North Wales was fined for a hate crime. Talking about inflammatory language we have to be careful. Be careful not to introduce a new blasphemy law.

John Finnie: do panel have views on statutory aggravation model? Are we missing anything?

Scott: it seems clear to me aggravation model is not terribly effective.

Smith: clearly are issues. The Committee might consider whether you have these categories or whether you consider any crime motivated by prejudice or hatred.

Ritch: heard witnesses talk about inclusion of sex as if it was a question of fairness or equality. In our view does not include treating all groups the same. Urge Committee to resist tempting narrative that sex should be included for equality reasons.

Urge MSPs to align with other jurisdictions.

Rona Mackay: in addition to legislation what more needs to be done to tackle crimes committed against women?

Scott: this is the elephant in the room. We know legislation is not a silver bullet. It is only as effective as the enabling environment it is in. It's about gender mainstreaming. So many indicators that officials, public sector professionals don't understand gender inequality.

Need robust equality impact assessments.

Ritch: I agree with Marsha. We have been talking about this issue of hate crime for about five years. Been talking to a lot of women and women's organisations. Some of this feels like tinkering round the edges.

Public Sector Equality Duty not working for women. Scotland can be hugely ambitious when it comes to tackling VAWG and sexism and seen that with Domestic Abuse Act. Can take bold steps other nations have failed to take.

Smith: needs to be multi-agency approaches to change attitudes. We agree CEDAW needs to be incorporated. When we talk about PSED, equality legislation, we have to be able to talk about women as a sex class. We are being prevented from doing that.

One of the biggest reasons women are being attacked online is trying to talk about their sex-based rights.

Cabinet Secretary for Justice now up.

Setting out changes SG will make to the bill regarding section on theatrical productions and FoE protections. Announces that working group on misogynistic harassment will be chaired by Baroness Helena Kennedy.

Tomkins: many witnesses have called for 'insulting' to be removed from the bill. What are you views?

Yousaf: I am paying close attention to all views. We give weight to all views but should give additional weight to those who are the victims of hate crime. Justification for treating stirring up hatred on grounds of race differently.

Two thirds of all hate crimes in Scotland relate to race. If we removed 'insulting', Scotland would be only legal jurisdiction in UK which does not have 'insulting'. Scotland would have perception of being weakest in this area.

Noted BEMIS, CRER, Youthlink Scotland and IYS evidence. All supported retaining insulting threshold.

Tomkins: you said the legal community was strong on this point. Cites Police Scotland the COPFS evidence.

Yousaf: must listen to Police Scotland. Insulting threshold been in law since 1986. Not come across officers who say they find the application of that law challenging.

Tomkins: the fact that something is in 1986 Act is not a good reason for putting something in this bill. COPFS representative echoed Lord Bracadale. Quotes from COPFS evidence to Committee.

Yousaf: my analysis is that if it has not been an operational problem for nearly 35 years, why is it a problem now?

May not take away from ability of Crown Office to prosecute. There is a perception that there will be a weakening or a dilution. Cites evidence from CRER.

Tomkins: perception may be held but it is an inaccurate perception. It would make no material difference.

Yousaf: public confidence in the law is hugely important. And some perceive the law would be weaker than rest of UK.

Tomkins: we have heard evidence that the word 'abusive' needs to be defined to ensured it is an objective not a subjective standard. What is your views?

Yousaf: it has been an offence for ten years. Notes from COPFS evidence that it was a very familiar concept in Scottish criminal law that is very well understood. Not convinced there needs to be a definition. Ordinary meaning of the word is therefore taken.

Intent only is an additional safeguard.

Tomkins: would any harm be done in defining 'abusive'?

Yousaf: we will continue to reflect on evidence. It is the law of unintended consequences. Anything that falls outside definition, it will not include the behaviour we want it to capture. Can't see why the dictionary definition can't be used.

Liam McArthur: what are your intentions on FoE provisions?

Yousaf: plan to bring forward amendments at Stage 2. Challenge when widening FoE clauses. Differing views and approaches. All have their pros and cons. Still reflecting on that. Certain we will make changes to FoE clauses but can't at this stage how that will be formulated.

McArthur: seems there is a cooling of the idea of broadening the provisions at Stage 2, beyond religion?

Yousaf: would not say it was a cooling off. Still actively exploring how to satisfy concerns of different stakeholders. Need to think more carefully about how we do it.

McArthur: concerns about plays and public performances expressed. Do you agree Section 4 could be omitted?

Yousaf: will bring forward amendments at Stage 2 to remove Section 4 of the bill. It is a policy choice to do so.

Hope it will address concerns re members of the performing arts.

Liam Kerr: wants to discuss powers of entry. Are you satisfied police powers are appropriately circumscribed?

Yousaf: cites Police Scotland and COPFS evidence on this. I am satisfied with the power that is there.

Kerr: heard a lot of evidence about chilling effect that could operate. Do you think the bill could have that effect on writers, journalists, artists so bill casts a long shadow?

Yousaf: I hope not. Could be a perception the bill restricts people's FoE. That's why we changed threshold to intent only. I would hope the changes I would propose at Stage 2 would mitigate concerns.

Kerr: having heard the evidence what changes still need to be made to reasonableness defence?

Yousaf: not sure there is a need to make substantial changes on this. Cites Faculty of Advocates' evidence and concern about a non-exhaustive list.

Annabelle Ewing: looking at issue of dwelling house exception. Have heard evidence looking at both sides of this. Law Society of Scotland did not think there should be a sanctuary for dwelling house including for 'hate speech'.

Andrew Tickell thinks criminal law does not stop at door of private dwelling. Would Cabinet Secretary consider amendment so there was some public element to the conduct?

Yousaf: listening to evidence from legal experts, they were robust in relation to concerns around dwelling defence. Operational partners, including Police Scotland, said not unusual to see crimes applied in the home.

Takes the point that some stakeholders objected to lack of exception. Will continue to listen to the arguments. Interested to see how a 'public element' would be defined. Would consider any amendment brought forward.

Could see argument for racial hatred which continues to have likelihood legal threshold.

Ewing: cites Tickell evidence (Harris vs HMA, 2009) on public element.

Tomkins: the proposed amendments were trailed in the Sunday press. The bill could not be used to target dinner table conversation but events organised in private home (may be a paraphrase) - is that your understanding?

Yousaf: depends what you mean about targeting. If there is the stirring up of hatred that meets the threshold with the intent and done round the dinner table with ten of your mates, that would be prosecuted.

Tomkins: thank you for clarifying that. Those who want to talk about the meaning of the word 'woman' - could the bill be used to criminalise opinion that biological sex is immutable?

Yousaf: no, not for expressing an opinion. If behaviour that accompanies that expression is proven that you intended to stir up hatred you may face criminal sanction.

Tomkins: what about campaigning on this issue? Unless abusive is objectively defined, could campaigning on this be caught by the terms of this bill?

Yousaf: there has to be the intent of stirring up hatred. Behaviour would have to be proven beyond reasonable doubt.

John Finnie: on the question of age, you may be aware of work the Committee commissioned about elder abuse. It concludes that there is not enough evidence to support a statutory aggravation for age. Can he comment on that?

Yousaf: similar to my response to question on race, notwithstanding evidential base which is very important, must listen to those with real life experience from people on the ground.

Not hard to envisage the way the age demographics of people who voted in recent referendums or in midst of pandemic, you could see where there may be cases where people are targeted in an unpleasant way because of their age.

It was a recommendation from Lord Bracadale. Happy to look at evidence papers but at this stage want to retain the bill as it is with regard to age.

Finnie: Bracadale recommended an aggravator of exploitation and vulnerability. Policy memorandum from SG referred to this as a consideration for the future. What gap would be filled there? Can you give examples? Is this not the vehicle to take this forward?

Yousaf: has a different understanding but thought Bracadale should look at this but not in the hate crime framework. Wants to pass hate crime bill first.

Finnie: should we be covering vulnerability not age?

Yousaf: stakeholders given examples being targeted because of their age or perceived age. So important to add in aggravator.

Tomkins: have you considered adding homelessness as a protected group?

Yousaf: have considered but hate crime characteristics are different to societal factors. Those can change over time. I can't change my race or religion or disability for example.

Rona Mackay: would to agree that removing insulting related to race would send the wrong message.

Would you agree the purpose of the bill is to send a message to victims?

Yousaf: yes would agree. But hears concerns about FoE. Wants to give assurance. There are very few examples that people could give where FoE is unfettered. In most places in world there is some form of hate crime legislation.

Annabelle Ewing: Bracadale recommended including sex as an aggravator. What is his view on this?

Yousaf: missed substantial part of morning panel. Can understand concerns of a number of stakeholders around omission. Cites Emma Ritch and Marsha Scott's concerns about the risks about adding sex as an aggravator. Have listened to largest most established stakeholders.

Engender, SWA, RCS and Zero Tolerance. All think it will do more harm than good. This is what working group will do. At any future date, power there to add sex aggravator through order making power.

Ewing: a lot of the evidence this morning was interesting. I would like to consider the evidence mentioned. Would not want to do anything that would make it worse for women.

On proposed working group: welcome Baroness Kennedy's appointment. Does he have any membership about membership, remit and timescale? Don't want to hang around and be discussing this in ten years time. Need to move forward with some urgency.

Yousaf: going to be coy. Have appointed Kennedy to direct the work of this working group. Free from Ministerial interference. Have had initial discussions about remit. Detailed mapping of law to identify gaps.

Agree re timescale. Heard FWS point about discussions already going on for a decade. No desire to dither or delay. This work should move forward with pace.

Ewing: hope to see further announcements about all these issues. Variations of sex characteristics is another area we heard evidence. Cites views from dsdfamilies. Did not seem convinced this was the best approach. Did not feel they had been given a fair hearing.

Yousaf: happy to continue to engage with any stakeholders. I respect their opinion, there are a number of stakeholders with a different view. Terminology can be really difficult. Others agreed VSC was the correct term.

Does not take away need for greater health support. Two not mutually exclusive.

Liam Kerr: section 14 6b talks about persons of a 'different sex'. Other laws talk about persons of an 'opposite sex'. Why do we have different terms? Better to have consistency?

Yousaf: use of different sex is also definition use in equal marriage legislation. Terminology is often changing and evolving. Opposite would suggest there has to be only really two options. Whereas that might not fit for people who are non binary. Seen as more inclusive term.

SG officials (Rachel): Equality Network and Stonewall Scotland support move away from opposite sex as an inclusive approach.

Liam McArthur: concern re timeframe of working group and the level of oversight that Parliament will have. Parliament must be engaged in robust scrutiny of these proposals.

Yousaf: could consider a super-affirmative procedure (for recommendations of working group) to mitigate concerns about parliamentary scrutiny.

McArthur: welcome that assurance.

John Finnie: calls from Equality Network, BEMIS and others for duty to develop bespoke system of hate crime data collection and disaggregation. Is that something you are considering?

Yousaf: very sympathetic to proposal. Implications for data systems and financial costs. It is being discussed with partners. Open-minded to further consideration.

Fulton MacGregor: views on protected characteristic for those with learning disabilities. Do we need disaggregated data on different types of disabilities?

Yousaf: we will reflect on that and have conversations with stakeholders.

MacGregor: are you open to adding further protected characteristics, e.g. refugees and asylum seekers?

Yousaf: current protected groups will cover them as it stands.

Liam Kerr: wants to talk about the financial memorandum. What are your thoughts on outcome of meeting with SCTS?

Yousaf: revised financial memorandum not unusual in normal passage of a bill. I speak to SCTS every fortnight. Have raised this issue with them earlier this month. These issues are being resolved well. They do not think there are significant issues.

Kerr: police and others who apply law will get appropriate training. Important public understand what the bill says. What discussions has SG had with agencies on those issues?

Yousaf: have had discussions with these agencies. Majority of hate crime that is investigated there won't be much need for additional training as under statutory aggravation model. Keen to speak again to SPF.

Rona Mackay: under-reporting of hate crime is a problem. What is SG doing to tackle this? e.g. public awareness campaigns. Support for victims?

Yousaf: legislation alone will not stop hate crime in Scotland. One tool in a suite of measures. Education hugely important. Need to do marketing campaigns. Letters from Scotland campaign was relaunched in October.

Seen examples of education campaigns making a big difference. Will continue to invest in marketing campaigns.

Tomkins: given huge public interest in this bill and you have now twice come to parliament to propose amendments and Committee working hard to meet SG timetable, can you commit that SG response to Stage 1 report will be published in advance of Stage 1 debate?

Given bill has changed so much at your own hand. MSPs should not debate without sight of SG response.

Yousaf: urge Committee if possible to publish Stage 1 report before 11 December, SG team would be grateful. Will ensure response but can't guarantee detailed response. Hope there can be some element of close collaboration between Committee and SG.

Tomkins: could move Stage 1 debate to later in the week.

Yousaf: we will reflect on that. We will provide a response. Logically if we had longer we could provide more of a definitive response.

Tomkins: it would be inappropriate for MSPs to debate this bill until we have heard SG response to Stage 1 report from Committee. We owe that to those who have given evidence.

The footage from the session is now online: scottishparliament.tv/meeting/justic…