Thread by @mbmpolicy

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.

AT: bill passed at Stage 2 and no longer with Justice Committee. Stage 3 will take place later on in March on floor of Chamber. Trying to shine light on issues arising with regard to the impact of the bill on FoE.

AT: Bill has been significantly amended at Stage 2. What in addition to Stage 2 amendments needs to happen with regard to FoE. Committee not expecting to draw up report or make recommendations based on today's proceedings.

AT: there will be an Official Report of this meeting. This bill has generated a lot of heat. In Committee we have tried to shine light on this issue. Will invite Cabinet Secretary to speak briefly before asking witnesses to reflect on the proposals.

AT: this session is not driven by questions of members, we are here to listen. We want to hear from the guests invited to the session.

Humza Yousaf: thanks stakeholders attending today at very short notice and for being prepared to offer their views. Thanks Justice Committee for agreeing to host this unusual session.

HY: seen genuine desire to reach consensus on many issues in this bill including FoE. Testament to positive approach taken by people round this table.

HY: been helpful to discuss this with all members of the Committee in taking a collaborative approach to this issue. We have had numerous written submissions and evidence from 35 witnesses at Stage 1.

HY: inclusion of FoE protections not necessary for bill to be compatible with ECHR. But can provide necessary reassurance. FoE provisions can also reinforce boundaries of criminal law.

HY: I've circulated four options to aid discussion. We wish this process to be transparent. Strong belief that criticising matters relating to protected characteristics are not subject to criminal sanction in this bill.

HY: seeking common middle ground. Hope we can unite round one of the proposed options or a variation of them.

HY: keen to hear whether or not race should be covered by a FoE clause. Arguments finely balanced. None of the options are SG preferred options - they set out how parliament could provide for FoE in the bill.

Roddy Dunlop: given starting point is discussion or criticism, my query is how is it that at high level of generality we can imagine discussion or criticism that would be threatening or abusive in generality.

RD: if at high level of generality one wouldn't expect discussion or criticism to be threatening or abusive what is the point of the exception. If using as a cloak to engage in such behaviour, if intended to stir up hatred, why should that be a provision that's accepted?

Michael Clancy: Minister talked about broadening dialogue and inclusive approach to lawmaking. Important features to bear in mind for any legislation that impacts on FoE.

MC: Law Society strident that hate crime unacceptable in 21st century Scotland. Should be able to look at statute and say I can understand what is threatening and abusive but can also understand where discussion and criticism provisions lies.

MC: law should be acceptable, clear and consistent and practical in its application. Ask you to reflect upon how statute law reflects these aims. Notes 'Drafting Matters' document.

MC: looking at options brought to committee, struck by simplicity and clarity and very good drafting of option 3 which applies to all characteristics.

MC: should we look to ECHR itself? One of the features of this legislation was to be a consolidation measure, and we all know about background law that underpins work of Parliament. I would think we want to hold fast to idea as getting as much consolidation as we can.

Andrew Tickell: discussion around this legislation has reached a point where FoE clauses are critical. Must realise how far we have come with this legislation.

AT: critical defence charge has always been reasonableness defence. Some of the fankle at Stage 2 reflected fact that framing FoE clauses was to add more detail. There may be another way to look at this entirely. Look at what is already in Human Rights Act.

Eilidh Dickson (Engender): FoE vital for feminist advocacy. Existing FoE provisions were narrow. We propose more general FoE provision to accompany appropriately high threshold would provide reassurance for public whilst protecting marginalised groups. No view on wording.

ED: fixing aspects of 2021 social debate runs risk of law becoming out of date. Feminist speech and advocacy for human rights does need to be protected but don't think singling out flashpoints is way forward.

Danny Boyle (BEMIS): we won't be in a position to endorse any of the options. Want to ensure race is left out of it. We are asking ourselves to be excluded.

DB: we already have good law for stirring up racial hatred and that should be continued in context of this bill. The consolidation aspiration of Bracadale is met but don't think necessary to treat all characteristics in same way with regard to FoE.

DB: racially aggravated hate crime dominates annual publication of hate crime figures. We would like to see race excluded from generic FoE clause in bill.

Iain Smith (Inclusion Scotland): concerned that this bill has become overly focussed on theoretical impact of FoE and not impact of crimes experienced by disabled people.

IS: we don't believe stirring up offences impact at all on FoE. Sets a limit on what becomes an act of criminality. We endorse the approach by Equality Network and Scottish Trans Alliance.

IS: if FoE provision in bill, we believe it should be a generic one. Important bill sends out clear message of what is and isn't acceptable. Should not list language that is acceptable. Rejects antipathy and ridicule, as these have consequences.

IS: do we want to say it is acceptable to ridicule a disabled person who wants to get onto a bus? I don't the parliament wants to say that about disabled people.

Tim Hopkins (Equality Network): there seems to be a broad consensus that this FoE provision is not about changing threshold of offence, it's about giving reassurance. Important to get messaging right.

TH: one objection to SG proposals is not fully cover whole scope of FoE. Very difficult to write into a bill scope of right to FoE. Look to jurisprudence of ECtHR.

TH: covering discussion and criticism covers everything that I think people might want to say about transgender identity. Covers all that a church might want to say about same sex relations or marriage. I think SG proposals are broad enough to capture everything.

TH: it is being proposed that bill includes detail of types of discussion and criticism. I think that is unnecessary but I think it would be actively harmful. Important bill doesn't pick out some types of behaviour.

Becky Kaufman (Scottish Trans Alliance): when we are having this conversation about FoE protections in the bill, these legal protections exist in the threshold.

BK: what is the social impact of these types of protections? Being a member of a marginalised group I am aware there are members of society who say things about me that I find deeply hurtful and offensive.

Lucy Hunter Blackburn: we are drifting a long way from Lord Bracadale. Specific in his review about models in 1986 Public Order Act that set out in more detail how the line should be drawn.

LHB: we have brought to you attention examples of where women have been accused of hateful behaviour for participating in debate about and sex and gender identity.

LHB: quoting from submission from Professor Sarah Pedersen of Robert Gordon University.

LHB: Lidia Falcon reported for comments she made about gender recognition laws in Spain. This week Carmen Calvo, deputy prime minister, was hung in effigy in Santiago de Compostela, for her views on the 'trans law'.

LHB: cites Scott Wortley's submission on statutory interpretation. Police in England had billboard yesterday which said "it's an offence to be offensive". Must be clear on the face of the bill.

LHB: reading series of statements that we would be concerned might be caught by the criminal law.

LHB: this is a very late point at which to have this detailed discussion. Trying to do an awful lot at a very short time.

Susan Smith (For Women Scotland): women in Scotland are furious and frightened by implications of this bill. Amendments tabled at Stage 2 were denounced as shocking and transphobic. We have a real issue that there are people determined to use bill to enforce compelled speech.

SS: we know the SG says CEDAW needs to be at the heart of everything we do. Political parties in Scotland have drawn up definitions of bigotry that means it is bigoted to talk about people's biology or using the wrong pronouns.

SS: it is not a hate crime to hang a real woman in effigy in a town square but a woman who was tortured under Franco can be drawn into criminal justice system. We have very little trust that this will not be used to target, harass and attack women. We do need stronger provisions.

SS: as we go into an election, we are concerned that women arguing against GRA reform advocated by SG will be criminalised. We need those reassurances upfront. We are not getting any reassurance. Women are angry.

SS: Convener, you said you were frightened. Consider how frightened women are. I am sorry to be so emotional about this but this is difficult and traumatic and been a horrific experience for lots of vulnerable women. Please please remember to listen to women.

Anthony Horan: very important to note that sexual orientation ought to be subject to a more robust standard that brings it closer to standard expected for religion and belief. Transgender identity and sexual orientation get to very essence of what it means to be human.

AH: these are very important issues. People hold positions that are often at odds with beliefs and values of other people and not exclusively religion people. Tension in relation to these issues. Fertile ground for discussion and debate.

AH: need clarity between what is criminal and what is not. Cites Lord Bracadale's Stage 1 evidence. Offensive behaviour should not in itself be criminalised.

Fraser Sutherland: already had a discussion and amendment passed on religion belief that would replicate what's in option 1 and 2. Concerned are going to undo that just a few weeks later.

FS: cites Stage 1 evidence concerns on self-censorship from Scottish PEN and David Greig. If restricted to discussion and criticism, may see vexatious complaints. Robust argument that religion and belief should be treated slightly differently.

Kieran Turner: we have come a considerable way with the bill. Have always advocated for breadth and depth on FoE. On balance, we would go for option 1 because of definitions in bill previously discussed.

KT: we support the new clause on religion and belief. We welcome that and don't want to see that removed. Concerned depth not extended into other areas. Looks like a distinct hierarchy. Thinks we should level up not level down.

KT: we are talking about areas of beliefs in other areas. Deeply held and contested views. Parallels with religion and belief. Example of transgender identity.

KT: we don't think other groups should have anything to fear from dislike, ridicule and antipathy. It's not a get out of jail free card. Greater clarity allows difference between what is offensive and abusive in terms of this bill.

KT: would be clearer to police, courts and general public. We need to see FoE provisions that actually protect both sides on some of these debates.

Liam McArthur: wants to hear Andrew Tickell's response to Lucy's concerns.

AT: problem with becoming more specific is where does one stop and to what extend does one muddle the field of what's criminal.

AT: your ability to prevent people making vexatious complaints is limited.

AT: struck by Engender's point re freezing present social controversies into legislation. Can be challenging for courts to contend with.

AT: demands for specific provisions are not found in any other area of law.

LHB: I think Andrew is complacent about the experience on the ground. This is not just about debates raging online. It's not just a Twitter fight. I don't have any objection to AT's proposition.

LHB: I don't think it provides the reference point. Our experience is of being at sharp end of this. I don't think flashpoint on debate about sex and gender identity is not going to go away any time soon.

LHB: in our submission, we note that things might turn up in future hence suggestion to make an order making power. We have internationally a flashpoint regarding the belief in gender identity.

Liam Kerr: asks AT whether he envisages option 5 standing apart from the other 4 options? Or coming in conjunction with option 3, for example? If option 5 was only confirmation of FoE in bill would any protection for FoE be lost by not having other 4 options?

AT: could stand alongside other options.

John Finnie: wants to ask Danny Boyle. You said leave race out. Have you thought re implications of not leaving race out?

DB: no appetite in racial equality community for that. This is an established body of law. Embedded in international human rights law system.

DB: we don't feel it's a risk that is necessary, no ask from communities for legal protections to change.

Annabelle Ewing: have spoken before on importance of immutability of human sexual dimorphism. Recognise in light of today's evidence that there are genuine fears in that regard so asks Cabinet Secretary if he can provide reassurance that FoE on this issue won't be affected.

LHB: it's about what is said in parliament and what is said in the law. Drawn attention to Scott Wortley's evidence. You make the clarity in the law not resting on statements made in Parliament. It's not what people will look at on the ground.

TH: all of the things that Lucy mentioned that people want to be able to say about trans rights, all of those should not be criminalised by that offence. But quite a long list to include in the bill. Where do you stop?

TH: including such a list, if someone said by someone at work could constitute unlawful behaviour under the Equality Act. Could be a civil wrong (to say some of those things).

Humza Yousaf: thought RD, MC and AT stated important point that threshold now is very very high. The new offences must be intent only, include reasonable person test and be proven beyond reasonable doubt.

HY: wants to reiterate what TH said. Nothing in list of statements that LHB read out or FWS submission that would be criminalised under this bill. Would not meet a reasonable person test.

HY: when LHB said that the law should provide clarity, that is written into the law. We've heard some very persuasive arguments on whether there should be more detail. I'm more inclined to view you cannot draw up exhaustive lists of specific detail.

HY: we did that with religious groups, though, working with the different faith groups.

HY: makes offer to those who would like more detail that if not a position SG gets to (has a number of phonecalls lined up over next few days). If we don't add more detail on face of bill, can I engage with some stakeholders to give them some reassurance in explanatory notes.

HY: if we need to insert some more specific examples - maybe some of LHB's examples - I'd be keen to discuss that with them as well as with Equality Network and Scottish Trans Alliance.

AT: what really matters in this bill is the precision with which the parliament defines the criminal offences it is creating. Have pored over in great detail the scope of those offences. Has narrowed and sharpened over course of last few months.

AT: don't think FoE clause is unimportant. But options are to be inserted into bill that looks very different to bill as introduced. Now in the hands of parliament to debate on 10 March at Stage 3 proceedings.

AT: value way bill has been exposed to public gaze over past few months. END OF SESSION

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