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. 
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.
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.
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.
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.
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.
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.
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.
https://twitter.com/lgbtpoliceuk/status/1363438746889314304
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.
https://twitter.com/oliverburkeman/status/1363611932964646912?s=20
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