Our response to the Justice Committee's emergency consultation on protecting freedom of expression in the Hate Crime and Public Order (Scotland) Bill is now available here. murrayblackburnmackenzie.org/2021/02/20/res…
Our concern is whether the law will provide a clear point of reference on what it does not criminalise. We do not believe any of the options set out in the Scottish Government paper will achieve this. Image
Relying on “discussion or criticism” in isolation does not draw a clear line between the offensive and the criminal, but timidly describes a line falling far short of that boundary. It fails to meet the commitment to protecting speech that is offensive, shocking or disturbing. Image
By moving to a uniform generic provision, the Scottish Government has introduced, only at the start of Stage 2, and with no warning, a new principle which contradicts the basis on which the Bill was presented and examined throughout at Stage 1. Image
The Bill should put beyond doubt that certain types of statements, controversial in the context of transgender identity, are not intended of themselves to be criminalised. The reaction to amendment 82A should be treated as evidence of the need for this. ImageImage
The debate about protecting offensive speech has been conducted in the Parliament so far in carefully inoffensive abstract terms. Much more clarity is still needed about what statements MSPs intend to make criminally abusive in their own right. ImageImage
The significance of freedom of expression has been obvious throughout this process. Yet the first detailed, substantive discussion is only taking place now, with three working days to comment on proposed legislation which introduces an entirely new principle into the discussion. Image
A general provision covering only “discussion or criticism” cannot provide the secure and clear point of reference that experience already shows is needed for transgender identity. It is too weak to do the work required here to prevent chilling effects. Image
Image
We have been raising concerns about the gap between the rhetoric in the commitment to protect freedom of expression and the readiness of the Parliament to engage with what that means in practice for some time. murrayblackburnmackenzie.org/2020/12/18/pro…
We have also been pressing for legislators to engage with the detail of the implications for the discussion of sex and gender identity since Stage 1. murrayblackburnmackenzie.org/2020/11/26/the…
Maximum possible clarity is needed on the face of the law not least to limit how far any individual police officer’s personal view of the issues determines whether a complaint is turned into an investigation.
As the image here shows, the principle that hate crime legisation is not about criminalsing "offence" can be easily lost on the ground. Legislators' duty is to do as much as they can here to ensure law as drafted does not leave room for misunderstanding.

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More from @mbmpolicy

22 Feb
The Justice Committee's roundtable evidence session on freedom of expression protections in the Hate Crime and Public Order (Scotland) Bill starts in five minutes and can be viewed here: scottishparliament.tv/channel/virtua… #HateCrimeBill
Welcome from Committee Convener Adam Tomkins MSP. Joined by a significant number of witnesses. Grateful to everyone for making the time to be with us.
Only item to consider options for an amendment on freedom of expression (FoE). AT wants to remind everyone they are here to talk only about this one issue. Not prepared to reopen any other aspect of the Bill.
Read 86 tweets
22 Feb
This afternoon, the Justice Committee will convene for a roundtable evidence session to discuss four draft amendments to the Hate Crime and Public Order Bill on freedom of expression. These amendments were drafted by the Scottish Government, in collaboration with opposition MSPs.
The Cabinet Secretary for Justice and three opposition MSPs had tabled amendments on FoE ahead of Stage 2 proceedings commencing. However, the night before the first Stage 2 session, all four MSPs withdrew their amendments in favour of this 'collaborative' approach.
This afternoon's session will commence at 2.30pm and last for 90 minutes. Usually the roundtable format sees MSPs and witnesses engaging in free-flowing conversation rather than the usual question and answer format for panel discussions. parliament.scot/S5_JusticeComm…
Read 19 tweets
19 Feb
The Committee has published its list of witnesses for Monday.
Image
We will submit our evidence tomorrow and post it here. Meanwhile, this blog has our initial note to opposition members of the Justice Committee. murrayblackburnmackenzie.org/2021/02/15/fre…
Read 7 tweets
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…
More background on the case here. womansplaceuk.org/2020/12/13/lid…
Read 7 tweets
15 Feb
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.
Read 14 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

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