Our latest blog considers discussions about freedom of expression protections in the Hate Crime and Public Order Bill which are taking place behind closed doors: murrayblackburnmackenzie.org/2021/02/15/fre…
The Hate Crime Bill extends the existing offence of “stirring up hatred” in relation to race, to a wider range of characteristics. We have written previously about the need for a bespoke protection for stirring up hatred on basis of transgender identity. murrayblackburnmackenzie.org/2021/01/31/hat…
The Justice Committee agreed with the Cabinet Secretary for Justice on 2 February to commence a new programme of work, to create a general provision intended to strengthen the protection in the Bill for freedom of expression across all characteristics, other than religion.
We have serious reservations both about the decision to abandon tailored freedom of expression protections for each characteristic, as included in the equivalent legislation for England and Wales (the Public Order Act 1986), and as recommended by the Bracadale Review.
We're also concerned about attempting to do this from scratch at such a late stage. Nearly two weeks on, no proposal has been made available for public scrutiny or discussion, and the plans for bringing any discussions out from behind closed doors are unknown.
It is unclear whether this issue will be debated on the public record during the Justice Committee's final Stage 2 session tomorrow morning. There is no specific agenda item relating to the FoE amendment. parliament.scot/S5_JusticeComm…
Despite the Cabinet Secretary's promise that he would "continue discussions with a wide range of stakeholders", neither we nor @ForwomenScot have been approached to meet with Scottish Government officials to discuss this aspect of the bill.
We and they were among the witnesses to the Committee who raised particular concerns about the Bill’s implications for anyone who wishes to argue for the continuing relevance of sex to law and policy-making. Our concerns were set out in this letter: indexoncensorship.org/2021/02/letter…
In the absence of receiving any approach, we last week submitted the briefing paper posted at the top of this thread to those members of the Justice Committee who, from the debate so far, seemed most likely to subject any government proposal to critical scrutiny.
The paper considered how the most value might be gained from a general protection. It was provided without prejudice to our strong view that the approach recommended by Lord Bracadale, of detailed tailored amendments for each characteristic on the model of the 1986 Act, is needed
Only this approach can provide clear points of reference on what the law is not intended to do, for those involved in the criminal justice system and also, equally importantly, for individuals and organisations who may be threatened with legal action, or fear such threats.
If the Parliament is nonetheless determined to pass a law including only a single catch-all protection, we argue that it should be modelled as closely as possible on the approach now proposed for religion, as amended at Stage 2 by cross-party consent.
Much of the available time since 2 February has already passed, and there is still no clarity about what wider engagement or public process there will be. We are therefore now publishing our briefing here, as a public contribution to the discussion.
The SG amendment appears likely to propose that only “discussion and criticism” will be covered, meaning that only beliefs about religion will clearly be safely open to “expressions of antipathy, ridicule, dislike or insult”.

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More from @mbmpolicy

16 Feb
We have written to members of the Justice Committee today, to highlight two pieces published this week which are relevant to their consideration of the Hate Crime and Public Order Bill.
First is a report yesterday that an investigation into Lidia Falcon, a distinguished Spanish feminist, has been dropped, but only after she was interviewed by prosecututors. She had been reported for transphobic hate crime (our rough translation here). actuall.com/familia/la-fis… Image
More background on the case here. womansplaceuk.org/2020/12/13/lid…
Read 7 tweets
2 Feb
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.
Read 112 tweets
1 Feb
Our statement in response to this evening's developments on the Stage 2 amendments to the Hate Crime and Public Order Bill relating to freedom of expression. murrayblackburnmackenzie.org/2021/02/01/deb…
We are concerned that one important decision has already been made behind closed doors – namely that for everything other than religion, there should be one generic freedom of expression provision.
This contrasts substantially in both parliamentary process and substantive content, with the tailored freedom of expression provisions in the 1986 Act, introduced after intense discussion and amendment in the Lords.
Read 8 tweets
31 Jan
Our Stage 2 Briefing on the Hate Crime Bill sets out the need for a tailored freedom of expression protection for transgender identity. We set out 40 examples that show how low the threshold for behaviour or communications considered abusive already is. murrayblackburnmackenzie.org/2021/01/31/hat…
Our examples include the freedom of expression amendments respectively lodged by the Cabinet Secretary for Justice and Liam Kerr MSP, the first of which has already been described as a ‘transphobes charter’.
We show how it can be deemed transphobic to advocate for female-only spaces & services, or collect data on biological sex - and how women have already faced lost their jobs, faced disciplinary action, been interviewed by the police & had their details recorded as a result.
Read 8 tweets
27 Jan
We consider here the various amendments which have been put down to the Hate Crime and Public Order Bill on freedom of expression relating to transgender identity.
murrayblackburnmackenzie.org/2021/01/27/pro…
The Justice Committee will start to consider potential amendments to Bill on Tuesday 2 February. The Cabinet Secretary for Justice, Humza Yousaf has put down an amendment (amendment 82) which says:
The SG originally argued that no additional protections were needed here, so the recognition of the principle that there needs to be some additional provision in the Bill is welcome. However, this is a less expansive format than existing equivalent provisions.
Read 9 tweets
26 Jan
The Justice Committee starts its Stage 2 scrutiny of the Hate Crime and Public Order Scotland Bill a week today (Tues 2 February). This is where the detailed content is formally considered and agreed, and the Bill can be amended./
@JohannLamont MSP has put down an amendment adding "sex" to Part 1 of the Bill. Part 1 provides that an offence can be treated as "aggravated by prejudice" if it is motivated "by malice or ill-will" towards certain listed groups. beta.parliament.scot/-/media/files/… Image
The Bill as drafted provides that sex might be added at some later date using secondary legislation, after the Working Group on Misogynistic Harrassment reports. The amendment switches the default assumption in the Bill to *including* sex, until any alternative is identified./
Read 8 tweets

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