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by Kath Murray, Lucy Hunter Blackburn and Lisa Mackenzie
20 May 2020
Comment: The hate crime bill must be properly scrutinised

Andrew Milligan/PA Archive/PA Images

Comment: The hate crime bill must be properly scrutinised

Few people will disagree that seeking to reduce harms perpetrated against marginalised groups is a worthy goal. Yet the dust has barely settled on the Scottish Government’s recently published draft hate crime bill, and there is already a growing swell of dissenting voices.

The concerns raised thus far principally relate to the proposed introduction of new ‘stirring up’ hatred offences for each of the characteristics in the draft bill, and the potential impact on freedom of speech and assembly. Describing the proposals as “vague”, the National Secular Society caution that they are “likely to be weaponised to restrict debate”.

The society also observes that “the fact ministers have considered a free speech clause necessary is a sign that the drafting of the bill is too open to interpretation”. Last month, legal academic Andrew Tickell wrote: “Drawing ragged lines between permissible and impermissible speech is a tricky business at the best of times. We can’t afford to be vague about it when criminal consequences follow.” 

On publishing the bill, Justice Secretary Humza Yousaf spoke of the “responsibility to challenge prejudice in order to ensure Scotland is the inclusive and respectful society we want it to be”. Since then, Yousaf has taken part in some terse exchanges on social media with those voicing opposition to elements of the draft legislation, casting doubt on the motives of critics.   

It is easy to characterise those with serious concerns about some of the provisions of the bill as failing to share the goal of a more inclusive and respectful society. But the Scottish Government must not fall into this trap. 

It would not be the first time that we have seen valid concerns about Scottish Government policies and legislation brushed off as unsubstantiated, or those voicing concerns painted as bad faith actors.   

A failure to heed serious disquiet over the Named Person scheme, justified in part because the coalition of individuals campaigning against the bill was from outside the range of organisations with whom government normally engages, resulted in an expensive trip to the Supreme Court.

The Offensive Behaviour at Football Act, also enacted with brisk dismissal of any critics and their motives, fundamentally failed in its ambitions, when it was repealed having lost the confidence of the parliament. And although passed by the Scottish Parliament, the commencement of the Railways Policing Scotland Act remains under review, principally due to the raft of complicating factors that those opposing the bill raised, but the Scottish Government chose to ignore.  

Our collective goal here should be making good law, and right now that prompts a further set of considerations, namely the use of limited and precious parliamentary time and resources.  

Law-making and scrutiny are both essential parliamentary functions and it follows that time spent on one will invariably displace the time available for the other. Faced with the biggest crisis faced by our societies in the post-war era, by necessity governments are making a torrent of literal life and death decisions on a daily, if not hourly basis. 

Meantime, the usual checks and balances have been hampered. The wheels of the justice system have all but ground to a halt. The pandemic has eaten away at the already emaciated financial model underpinning our fourth estate. The Scottish Government used its first piece of emergency legislation to curtail the use of freedom of information, exploiting the Presiding Officer’s casting vote, with confusion and disagreement over how the parliamentary arithmetic on the day made that possible.

It is clear the draft bill raises a raft of questions that will deserve thorough, forensic scrutiny by the Scottish Parliament’s Justice Committee. As well as the potential impact on freedom of expression, there are questions about the evidence base for the selection and definition of certain characteristics and omission of others, and the justification for extending ‘stirring up’ offences to other characteristics, when the existing provision for stirring up racial hatred is barely used, with only nine cases between 2006 and 2016. That race remains by far the most commonly reported characteristic in cases where hate is judged to have been an aggravating factor for crimes under other legislation, further raises questions about how far legislation on stirring up hatred acts as a deterrent. 

At the same time as it is expected to work through these points, the Justice Committee will also have responsibility for the oversight of how some of the most draconian curbs on our citizens’ freedoms for generations have been enforced by Police Scotland, the Crown Office and the courts, the handling of the pandemic in Scotland’s prisons and the challenge of restarting jury trials, among other things. It will be doing so when there was already a full agenda of justice-related questions requiring its attention, including lengthy delays in reporting on deaths in custody through the fatal accident inquiry system.

Most committee members will also be involved in other committees, scrutinising other subjects affected by the pandemic: the economy, education, health, transport. Their constituents face unparalleled disruption in their lives, with which they will seek help. MSPs have only so much time and attention to give to all these things. Similar disruptive pressures will be affecting organisations and individuals who want to make their views on draft legislation heard.

It is perfectly possible to ask in good faith why the novel and difficult provisions on stirring up hate in the bill are regarded as being so urgent that they must be pushed through the Scottish Parliament in the middle of the largest challenge faced by any recent generation of politicians in Scotland. The bill would raise difficult and sensitive questions at any time.  

But the first and most immediate question for the Scottish Parliament is whether the time required to robustly scrutinize what is already a controversial bill can be justified or is even achievable in this exceptional period.  

Written by Dr Kath Murray, Lucy Hunter Blackburn and Lisa Mackenzie, MurrayBlackburnMackenzie

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