Thread by @mbmpolicy

NEW BLOG: We trace the passage of the Hate Crime and Public Order Bill, in relation to freedom of expression as it affects questions and debate about sex and gender identity. murrayblackburnmackenzie.org/2021/03/07/clo…

Drawing on our previous work on policy capture, and new Freedom of Information returns, we show whose views have been privileged in the handling of those parts of the draft legislation, and discuss the likely implications for freedom of expression in Scotland.

Following the culmination of the Stage 1 proceedings in December 2020, concerns about how the Bill gives explicit protection to freedom of expression (FoE) have intensified. The Bill as introduced did not implement the proposals of the Bracadale Review on this point.

In late January 2021, the Scottish Government and a number of opposition MSPs lodged amendments to the Bill on FoE some of which were generic, and others which were tailored to specific characteristics in the Bill.

Following a social media backlash and accusations of transphobia, on 1 February – the night before Stage 2 consideration of the bill began – opposition MSPs and the Cabinet Secretary for Justice withdrew their respective FoE amendments, in favour of a ‘collaborative’ approach.

That such a critical issue would be decided behind closed doors, prompted serious concerns about the lack of a transparent parliamentary process from ourselves and others. murrayblackburnmackenzie.org/2021/02/01/deb…

In response, the Justice Committee established an emergency process to invite further submissions on a suite of draft amendments proposed by the Cabinet Secretary over a long weekend (18-22 February). parliament.scot/parliamentaryb…

The Committee received 681 submissions, a selection of which were uploaded to the Parliament’s website around two hours before the Committee convened for a 90 minute roundtable oral evidence session. The published evidence ran to 391 pages.

The submissions received by the committee suggested there was still significant concern about this aspect of the Bill, including about how clearly any of the government’s proposed approaches would protect discussion on sensitive issues, such as sex and gender identity.

The roundtable, held on the public record, consisted of 13 witnesses and the Cabinet Secretary for Justice. During the roundtable, Mr Yousaf indicated his willingness to meet those with concerns about this issue. parliament.scot/parliamentaryb…

A number of FOI responses published in the last week have shown who the Cabinet Secretary and his officials met with to discuss freedom of expression amendments to the Bill.

SG officials and the Cabinet Secretary met a number of backbench SNP and opposition MSPs in the two-month period leading up to the start of Stage 2 proceedings. They also met with six groups and trade unions representing those working in the arts sector on 21 January.

Officials met representatives of the Equality Network on four occasions: 8 December, 14 December, 14 January and 29 January, with the last of these meetings attended by the Cabinet Secretary. whatdotheyknow.com/request/meetin…

Representatives of the Scottish Trans Alliance (a project of the Equality Network) are recorded as being separately present at the meeting on 29 January. Officials met representatives of Stonewall Scotland twice and Engender met officials with the Cabinet Secretary on 1 February.

A separate FOI response reveals that notes taken at those meetings demonstrate the clear objection to anything other than a generic freedom of expression protection in the bill from the Equality Network, the Scottish Trans Alliance and Stonewall Scotland. whatdotheyknow.com/request/notes_…

This position was reiterated at the 29 January meeting between representatives of the Equality Network and the Scottish Trans Alliance and the Cabinet Secretary. The approach to opposition MSPs inviting them to withdraw their amendments appears to have been an action point.

Ahead of the forthcoming Stage 3 debate on 10 March, the Cabinet Secretary for Justice and opposition MSPs have now tabled a series of amendments on FoE. The full list of marshalled amendments can be read here: beta.parliament.scot/-/media/files/…

The SG's Stage 3 amendment to the Bill is in effect the one produced by the Equality Network (amendment 11) at the 8 December meeting, except where bodies representing religion and race successfully challenged their inclusion in the Equality Network’s preferred generic formula.

Labour MSP Johann Lamont has lodged a number of amendments relating to FoE, including the one below, which sets out a list of items that should not, by themselves, be considered “abusive or threatening”:

On 5 March, the Equality Network and Scottish Trans Alliance circulated a briefing to all MSPs, advising voting against this amendment for the following reason:

It is also now more obvious than it has ever been that groups claiming to represent the trans community in Scotland believe that simply to assert that sex is a binary concept rooted in biology, to ask to be able to use plain language to describe this/

or to contend that a person’s sex might be relevant to their life experiences is tantamount to an “attack on the fundamental rights” of trans people.

There could be no clearer demonstration that at the heart of debate about sex and gender identity is an unresolved and unaddressed conflict over rights, and that within govt, voices on one side of this conflict are listened to, to the absolute exclusion of the those on the other.

We will discover this week if MSPs also accept unquestioningly the view of those groups exclusively listened to by the SG. If so, Scotland now looks like an increasingly hostile place for anyone who believes it important to be free to see, name and discuss the relevance of sex.