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The Scottish Government has made the Hate Crime Bill controversial

Justice secretary Humza Yousaf - Image credit: PA

The Scottish Government has made the Hate Crime Bill controversial

‘Controversial’ is probably not an adjective that governments wish to have associated with legislation they are trying to pass, but it is certainly an appropriate description of the Scottish Government’s Hate Crime Bill.

It’s a bill that has managed to unite bodies as diverse as the Catholic Church, the Free Church of Scotland, the Network of Sikh Organisations, the Humanist Society, the National Secular Society, Index on Censorship, Scottish PEN, as well as Peter Tatchell, authors, playwrights, comedians, journalists and actors in opposition to it.

That is quite some achievement.

The legal sector has also flagged up issues with the bill and Holyrood’s Justice Committee received nearly two thousand submissions in response to its call for evidence – the most ever received – with the majority raising concerns.

Ironically, some of the aspects of the bill that have been most criticised are items SNP MPs fought against at Westminster when a similar bill was being debated there.

In 2006 SNP MPs joined the Conservatives to amend Labour’s Racial and Religious Hatred Act, removing the terms “abusive or insulting” and the “likely to” test from the final act. So it is strange that those same terms found their way into the Scottish bill.

It’s been clear throughout that insufficient preparation has gone into the bill before it was published.

This was highlighted by an evidence session in the Justice Committee with women’s groups last week, as with a number of the previous evidence sessions.

While part one of the bill, on aggravations, is less controversial than part two, it is still to a certain extent unfinished.

The inclusion of sex as a factor has been left with a question mark, as something that might be added in later. And it is clear there is much still to explore.

Representatives from Engender and Scottish Women’s Aid were of the opinion that sex should not be included as an aggravation because evidence from elsewhere suggests this is ineffective, because it suggests that women should be treated as a minority group and because it suggests that some attacks on women should be considered misogyny and others not – which in itself is a subject for debate.

For Women Scotland, meanwhile, felt that sex should be included because of the inequality of the bill as it stands, where transgender people are protected but women are not, at a time when women who express concerns about changes to gender recognition legislation are widely abused.

And while there are specific free speech exemptions in the bill relating to religion and sexual orientation, there is nothing relating to transgender issues, leaving a significant imbalance where criticism of transgender beliefs or policy proposals may be treated as a hate crime, but women are not afforded the same protection when asserting their sex-based rights or biological truths.

In a recent interview with Holyrood, Yousaf suggested that the fact that the Hate Crime Bill was being considered at the same time as reform of the Gender Recognition Act was under discussion had “undoubtedly” affected how the Hate Crime Bill had been received.

But this is likely be of benefit, however uncomfortable it may be for Yousaf right now.

The fact that GRA is being debated concurrently is flagging up some serious issues in the bill that might otherwise be less obvious, saving us from flawed legislation that might later have to be repealed or reworked.

Yet it was only announced last week that Baroness Helena Kennedy QC will lead a group that will look at this issue of hate crime against women and whether there should be a separate, standalone crime of misogyny.

The group will report too late for its findings to contribute to consideration of the Hate Crime Bill.

Sectarianism too has been left out. This is meant to be a catch-all bill that brings together and updates all the disparate pieces of hate crime legislation, but instead it seems like a catch-up bill – catch-up later when it may be too late.

And the timetable for such a significant piece of legislation has been significantly curtailed by a desire to get it through before parliament breaks in March for the May election.

This leaves the likelihood that the bill will be pushed through simply to get it done, rather than making sure it is done right, which surely must be the priority for lawmakers.

Last week Justice Committee convener Adam Tomkins pointed out that Yousaf had twice come to the committee with changes.

He asked that the government come back with its response to the committee’s stage one report before the stage one debate in parliament.

Yousaf pointed out that that would leave only one working day for the Scottish Government to put together its response and asked if the committee could get its report in earlier, despite it being already pushed for time to process the weight of evidence.

Perhaps rather it should be recognised that the timetable for something so important is unrealistic.

The bill is by any measure a bit of a mess. Yousaf has so far had to announce two rounds of climbdowns on parts of the bill.

In September he confirmed that the new offence of stirring up hated in part two of the bill would be amended, dropping the lower threshold for the offence that someone’s behaviour was “likely” to stir up hatred and requiring a higher threshold of proving intent to stir up hatred.

This low bar for prosecution would have run contrary to the UN Rabat Plan of Action threshold, which sets out an international standard for distinguishing between legitimate freedom of expression and incitement to hatred.

One of the six tests requires that there is intent to stir up hatred.

The other five tests, which include considerations such as the public nature and dissemination of the material, status of the speaker and the likelihood it would lead to actual action against the specified group – also have relevance to this bill and do not appear to have been taken account of fully.

The second major revision announcement came in last week’s Justice Committee.

Yousaf told the committee that section four of part two on stirring up hatred, which covers public performances of plays, would be dropped.

This follows outcry from the creative sector that writers, performers and directors could be prosecuting simply for exploring ideas or portraying someone with views that could be considered contrary to the bill.

He also announced that the government would be reworking section 11, on freedom of expression around religion, to align more with the law already in place in England and Wales.

There are signs the government is creeping closer to what might be widely considered acceptable, but it is not there yet and there still remain serious issues, particularly with the proposed new crime of stirring up hatred and the potential limits or chilling effect it may have on free speech in Scotland.

Terminology within the bill, such as ‘insulting’, ‘abusive’, ‘inflammatory’ and indeed ‘hatred’, remains undefined.

When asked by the Justice Committee, Yousaf refused to add a definition of abusive to the bill, leaving that open to individual interpretation, and he also declined to remove the word ‘insulting’ in relation to racial hatred, which he said would be perceived as weakening the legislation.

Statements from Yousaf has made that people “should have the right to be offensive” appear to conflict with the use of the term “insulting” in relation to racial hatred, which the Law Society of Scotland refers to as a “subjective term” and which most people would associate quite closely with being offensive.

Susan Smith from For Women Scotland warned the Justice Committee of the “contested nature of what constitutes hate” in relation to many of the groups covered by the bill and suggested that it risks creating a new blasphemy law.

More broadly, it is not clear what this new offence is actually intended to deal with that isn’t covered by existing legislation and how that weighs up against concerns over free speech.

However, for the same party that appears to want to cover up its own internal dealings in the Alex Salmond case to police what you say over the dinner table in your own home is not a particularly good look.

And it falls into a theme of a number of recent flawed bills that have either come from the government or had the support of government, such as the Offensive Behaviour at Football Act, the smacking ban, named person and gender recognition reform, which have either been poorly thought through beforehand or poorly communicated afterwards and are hardly among the major issues of the day for the average person in Scotland.

Along with this is a tendency to regard only certain people as stakeholders, giving precedence to the views of certain groups over others, particularly minority groups, and treating lobbyists as if they were expert advisers.

There is the sense that some of this legislation is being put forward not because it has been fully evaluated as necessary or helpful but as a shopfront for how Scotland wants to be seen, as a progressive country leading the world.

But in that clamour to get there, surely it should start with the government creating legislation that is well researched, well thought through, drawn up in a foolproof fashion, of real benefit to the people of Scotland in areas they care about and doesn’t have flaws or unintended consequences that might necessitate reform or repeal at a later date.

That’s how you lead the world.

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