Thread by @mbmpolicy

Stage 2 proceedings on the Hate Crime and Public Order Bill are just about to begin. You can watch the livestream here: scottishparliament.tv/channel/virtua…

Freedom of expression amendments first. Calls on Liam McArthur to move amendment 103.

LM: believes passionately in freedom of expression even when challenging or offensive. But necessary limits on that. Establishing thresholds not easy or straightforward.

LM: welcomes Cabinet Secretary's offer that protections could be widened or deepened but preferred catch all FoE protection. Notes that it is supported by Equality Network.

LM: accepts his amendment is flawed and needs further work. Aware of concerns that process of arriving at approach may lack transparency.

LM: conscious of timetable. Needs widest scrutiny ahead of Stage 3. Grateful to EHRC for constructive proposals. May offer a basis to develop something more suitable.

LM: concerned Rhoda Grant's amendment goes beyond anything she might wish to endorse.

LM: hate crime legislation should not criminalise respectful debate. Bill should not criminalise debate about GRA reform.

Humza Yousaf: the purpose of FoE protections is to provide reassurance and greater clarity about the boundaries of the criminal law. Transgender identity has been cited as needing new provisions.

HY: nothing in this bill stops robust debate or criticism of GRA reform or any other policy being put forward so long as that behaviour is not threatening or abusive and intended to stir up hatred.

HY: incumbent on us all to work together to strike the appropriate balance. Clear no agreement on approach to this matter. Thanks opposition MSPs for agreeing to take a collaborative approach that we can all agree to in advance of Stage 3.

HY: apparent there is a lack of consensus on how to approach FoE. Clear from reaction to amendments lodged to bill. It's right we now take some time between Stage 2 and 3 and reflect to see if we can reach a collaborative approach.

HY: don't doubt amendment 103 is well intentioned. There are technical and policy concerns about this amendment.

HY: will be moving FoE protections on religion. His view that there should be additional protections. Aware of concerns about extending stirring up offences to religion.

HY: comforted by fact many witnesses indicated that the current provisions in s11 could be more closely aligned with Public Order Act 1986 protections and that is what these amendments seek to do.

HY: noting 'constructive dialogue' he has had with opposition MSPs Liam Kerr and John Finnie. Hopes that Rhoda Grant will not move her amendment.

HY: important bill does not cause anyone to self censor on the issue of discussing women's rights. There are sincerely held beliefs from women that they would need to self censor. That is absolutely not the intention of the bill.

HY: Rhoda Grant's amendment means that someone under the guise of advocating for women's rights could engage in racism, homophobia and anti-Semitism. Emphasises he has had 'constructive dialogue' with her.

John Finnie will speak to his amendments.

JF: we know that legislation has lists raises questions about what is on the list or not on the list. My amendment adds to the list.

JF: it is clear that a general FoE provision is something that would be preferable. Want to align with comments from Liam McArthur. This does not single out protected characteristics. Words are important.

JF: Equality Network briefing talks about 'the chilling effect of confidence'.

JF: would not have supported clumsily worded amendment from Rhoda Grant.

JF: hopes the collaborative approach will be continued. That's the way we make best law.

Liam Kerr: speaking to two amendments. No secret from my contributions to the original debate on the bill that the stirring up offences suffer from real challenges.

LK: my firm belief that if government insists on putting limits on FoE, must be clear what those limits are. Bill must not inadvertently create grey areas and uncertainty.

LK: people need to be clear that nothing in the bill will criminalise things. Have had to draft amendments in tight window.

LK: EHRC briefing suggests there exists the risk of a piecemeal approach. There is merit in many amendments in this group but there are challenges and limitations to them all. Must be merit to working collaboratively but transparently.

Rhoda Grant: while I understand the evidence received from Engender and other organisations, I still believe that leaving misogyny out of the legislation could leave women at a disadvantage.

RG: keen that women get protection from the start even if that protection is removed at the time when we add misogyny. Mine was a probing amendment to get the thoughts of the Cab Sec with a view to bringing an amendment back at Stage 3.

RG: want to be part of discussions going forward with members and stakeholders. We have just one chance to do that. Won't press amendment.

Adam Tomkins: seems to me that reaction to these amendments make it even more obvious and apparent that we must define what we mean. I have been disturbed by the reaction I've seen by what I thought were modest and reasonable amendment.s

AT: I am alarmed and distressed and a little afraid of the reaction to the Cab Sec's amendment. Noted comments made by Patrick Harvie MSP made on Twitter yesterday evening.

AT: stating that sex is an immutable biological characteristic does not make you transphobic. Stating there are two sexes or using the words 'woman' or 'man' - does that make you transphobic? Is that the speech we are trying to criminalise here?

AT: I worry about this. Given the problems we are trying to tackle are vagueness and over breadth, having a generic FoE clause might not meet that challenge. I want to put down that marker.

AT: I've always thought that it is not the free speech clauses that will do the real work in limiting and defining the offences. I support the collaborative approach but it surely has to be in parliament and in public in rooms with party representatives talking only to themselves

AT: I now need more reassurance than I did 48 or 72 hours ago. I am less reassured that we are going to be able to fix this appropriately.

Fulton Macgregor: glad we can go back to the drawing board. I agree with Equality Network, Stonewall and Scottish Trans Alliance that a more generalised approach is best.

FM: there has to be scope, permission for folk to hold strongly held views on both sides of this debate. We need to work together to get this right. It's a really good opportunity to come together to find a solution. I am confident we will be able to do it.

AT: wants to work with Cab Sec in public to resolve these issues.

Rona Mackay: everyone on committee is as one that we have to protect FoE. I am not sure I would agree with phrase 'behind closed doors'. When you start to be specific about characteristics, you will always get an opposing view.

HY: we have to recognise there is an obligation on us to be specific. But we also have to recognise and I heard this loudly on Friday when I met with a number of stakeholders was that that focus can also feel to some groups like they are being targeted and marginalised.

HY: important in a democracy that people are allowed to criticise. Perhaps applying FoE protection to all characteristics is a way to get around some of the fears from some groups.

LM: Cab Sec right to avoid marginalising or targeting individual groups. That's why I chose a catch all amendment.

LM: A way needs to be found that is seen as transparent, robust and rigorous for all the reasons the Convenor highlighted. There is a risk in a collaborative approach that it excludes those who are not in the discussion. Must avoid at all costs.

AT: move to amendments on language on statutory aggravations.

AT: amendment 5 is agreed to.

AT: moving to amendment 30 from Margaret Mitchell on the characteristic of 'age'.

Tomkins calls Johann Lamont on amendment 31.

Johann Lamont: sent a letter to the committee with detailed thinking behind the amendment.

JL: women are excluded from this bill. This is a matter for us as legislators. The working group are not a substitute for a decision in primary legislation.

JL: a number arguments have been made by Engender and other groups but there are other groups, academics and over a long period of time women's groups have argued hatred of women should be recognised in law.

JL: it is said this would not be a panacea but that is true of all characteristics included in the legislation. None of this legislation will work without education and public awareness.

JL: argument this could be manipulated by abusers of women. But if that was true we would not have legislated on stalking, domestic abuse etc.

JL: the point is made we don't want to use gender neutral language. However, the same groups have applauded the Domestic Abuse Act as world leading and that uses neutral language.

JL: women are not a minority so people are uncomfortable to have legislation for women.

JL: should be in primary legislation. It's clear where women are included they become more prominent in public policy and data collection. We should not be afraid of gathering that information.

JL: Law Society talks about importance of education and public awareness but as bill stands hatred of women is absent from that discussion. No compelling explanation for including women at this stage.

JL: as more groups included, the absence of women is harder to understand.

JL: for a hate crime bill to exclude women is not understandable. I believe very strongly that women should be included.

HY: important to recognise Johann Lamont's contribution on equality for women but also across the board.

HY: SG recognises the importance of tackling misogyny and all forms of gender based violence. Understand significance of how this type of behaviour can limit women. But knows there are strong, diverging views on how this should be tackled.

HY: on the surface this seems appealing. Some of the witnesses initially favoured this but went on to change their minds once more evidence has been heard. This evidence has persuaded me. Misogyny is wider than hate crime framework.

HY: if having sex aggravator was a neutral act I would have no hesitation in supporting it. But a number of experts have provided evidence that such an aggravator could do harm to women. Cites Engender, SWA, RCS and ZT all warned of potential harms.

HY: potential for domestic abuse perpetrators to use as part of a wider pattern of coercive control over women. Don't want to legislate for something that could have detrimental impact.

HY: working group will consider whether to use bill's power in s15 to add the characteristic of sex to the hate crime legislative framework. Will allow for robust conclusions on how to tackle misogyny.

HY: this is a unique way forward, one that provides the best approach to shape society. Was delighted to announce Baroness Kennedy as chair of the working group. She has agreed to meet 12 month deadline recommended by justice committee in Stage 1 report.

HY: I ask members to give the working group time to do this work. Time to work through whether a sex aggravator could unintentionally do harm to women. I believe their report will be substantial and informative.

Annabelle Ewing: the genesis of this bill has nothing to do with the current debate on the immutability of sexual dimorphism. Approach being approached by SG reflects a longstanding debate about best way to tackle misogyny against women.

AE: given scale of problem affecting women I have been persuaded that a wider reflection on this issue is long overdue and have been reassured by the statement from COPFS to the effect that absence of sex aggravator will not prevent prosecutions taking place.

AE: notes calibre of Baroness Kennedy. We should allow working group to conduct its vital work and not seek to pre-empt outcome of that group.

Rhoda Grant: I support JL's amendment for the same reasons I spoke in favour of my own amendment. She made the point that violence against women is men's violence against women.

RG: I support working group but problem remains that women do not have any protection until that happens. They are being left out of this hate crime bill. Prefer to add sex to bill with provisions to remove it at later date.

John Finnie: at no time previously have been more aware of 'sides'. I am on the side of good law, informed lawmaking. I am an office bearer on CPG on MVAWG. Language is important. We still live in a deeply flawed patriarchal society.

JF: this is a piece of legislation fundamentally about consolidation. If I thought this was a version of long grass I might take a different approach.

Liam Kerr: this is an issue that has played on my mind from the start. I've always started that there should be an aggravator for sex. Women should be included. Regret it was not included at the outset.

LK: seems to be a longstanding debate. This concerns me. I did find JL's letter a very persuasive argument. Key question is: why not just do this? I come to a different conclusion. Heard evidence that made me pause a little.

LK: briefing from the Law Society said any substantial change to list of aggravations should be subject to robust scrutiny but it has not been afforded to us. Disappointing but it is the reality. I am reassured that working group has been constituted and a timeframe of 12 months

LK: that gives me comfort that it won't be kicked into the long grass.

Liam McArthur: can understand underlying anxiety. The bill appears to be the perfect opportunity to deal with vile misogyny. Broadly persuaded by variety of equality organisations. Share concerns about how realistic it is to develop recommendations within a year.

LM: thanks JL for bringing forward amendment but will not support.

Rona Mackay: thanks JL for bringing forward. Huge sympathy and understanding. On balance due to evidence we heard won't support it. Working group shows how seriously this matter is being taken. Misogyny has been with us forever and seems to be getting worse.

Shona Robison: spent my whole life fighting misogyny, we all want the same outcome. If I thought for a minute this amendment would solve the problem of misogyny, I would support it. It's more complex than that.

SR: I want us to look at misogyny not just in relation to this legislation but across the criminal justice system. Far from kicking into long grass, this is an opportunity to look at the whole issue and how best to ensure women are afforded the protection they should have.

Fulton Macgregor: hope to reassure Johann that the committee did discuss this issue at length at Stage 1. Very important that we get it right. Evidence from women's organisations was finely balanced. Got a lot of faith in the working group.

HY: 12 month timescale means there is no kicking this issue down the road.

JL: I don't agree with members. I argue this still needs to be in the bill. I think it is a matter for legislators to decide whether there is a sex aggravator.

JL: already been clear this is a finely balanced argument. Govt has taken what Engender, RCS, SWA and ZT has said more strongly. I don't accept there has not been scrutiny of this. This is not something new. It has been a live issue in the parliament over a long period of time.

JL: on gender neutral language, the Equality Act and Domestic Abuse Act both use it. No evidence that it could be used against women. Logic is that we could not legislate on these matters at all.

JL: being asked to accept that parliament wants to tackle hate against particular groups but want to exclude women despite the fact that women experience misogyny and hatred in their lives at a level that is very serious.

JL: that common sense argument is irrefutable. The case has not been made why women should be excluded that seeks to exclude the motivations behind crimes.

JL: I would be looking for strong reassurances about the transparency of the working group. Indicates that she will return to the issue at Stage 3.

JL: no explanation being given why women are excluded.

JL: this is a matter that needs to be democratically decided.

Liam Kerr: if govt is going to legislate it has a duty to legislate to make it clear to whom it applies. A core principle of any law is that it must be comprehensible for those who are subject to it.

LK: I don't know where to find a definition of transgender identity, or a non-binary person. The govt responded to a FOI question saying it does not have a definition of 'non-binary'. At Stage 1, Cab Sec noted need to align with definition of 'sex' in the Equality Act.

LK: why not use the protected characteristic 'gender reassignment' in EA2010. Maybe intention of bill is to go beyond definition in that Act, but people need to be clear on that. I ask Cab Sec to whom he intends to extend scope of criminal law.

JF: quotes Equality Network briefing. Would remove protection from non binary people and cross dressing people. This is offensive and regressive.

RG: agrees with JF. Would remove from scope of bill people who were transitioning.

HY: amendment would limit protection in the bill, excluding non binary people and cross dressers. EA2010 and this bill serve different purposes. Would have adverse effect on inclusive definition.

HY: evidence to suggest cross dressers experience hate crime. A man who is not a transwoman who dresses for a drag performance could be at high risk for a hate crime.

HY: sought to use language that is simple and understood by general public. Amendment would be damaging to non binary people and limit protections that the bill affords them.

HY: these amendments would take us down the wrong direction.

LK: was brought up by witnesses to the committee. This is about clarification. This has been a good debate. Not my intention to press these amendments. We've had the debate and it was a valuable one.

LK: recognise this is a sensitive area. I do not claim any expertise. I want to probe govt's rationale for adding variations in sex characteristics. Term refers to around 40 conditions. Terminology is contested. dsdfamilies prefer term differences of sex development used by NHS.

LK: quotes evidence from dsdfamilies. Govt must provide clear definition for conditions they cover. And their concern that inclusion could be stigmatising. Keen to hear what Cab Sec thinks on this.

LK: re amendment changing terminology. I seek absolute precision. Responding to a PQ last summer, Cab Sec said it was an "inclusive term". Asks who those stakeholders include - does it include NHS clinicians, who use DSD?

JF: Notes evidence from Klinefelters Association. I want legislation that is inclusive and covering everyone. Need to understand govt rationale. However, any amendment that would remove protection for intersex people which has been in place for ten years is unacceptable.

HY: aware there are differing views on terminology. Decision to use VSC was based on it being increasingly used more often by stakeholders, for example UK Govt Equalities Office. Took cognisance of association between differences of sex development & disorders of sex development.

HY: intersexuality was in 2009 Act. Wording of that Act reflects understanding at that time. Removes from definition of transgender identity. But so as not to lose protection, bill includes VSC.

LK: wants to reassure JF no-one is seeking to remove protections. Debate reflects difference in views heard at Stage 1. Not pressing amendment 105. Shall reflect on other amendments.

AT: meeting concluded. Next Stage 2 session on 9 February.