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People should have the right to be offensive, Humza Yousaf says

David Anderson/Holyrood

People should have the right to be offensive, Humza Yousaf says

People should have the right to be offensive and controversial, Justice Minister Humza Yousaf has said, while giving evidence on the Scottish Government’s Hate Crime bill.

Yousaf told Holyrood’s Justice Committee that it’s also important to remember that people have the right to live life without hatred and prejudice.

He said that he was committed to finding the right “balance” between people’s rights, reassuring members that he will “seek common ground, consensus and, where necessary, compromise” on the controversial bill.

The committee took the “highly unusual” move of hearing evidence from Yousaf at an early stage after receiving a record number of submissions to its consultation on the bill, which was launched in April.

The bill seeks to consolidate, modernise and extend hate crime legislation in Scotland, including the creation of new offences relating to “stirring up hatred” against people based on age, disability, religion, sexual orientation and transgender identity.

The bill attracted controversy earlier this year after a number of organisations and thousands of members of public objected due to concerns over its impact on freedom of expression.

In September, however, Yousaf brought amendments to the bill that would make it necessary to prove there was “intention” to stir up hatred with threatening or abusive behaviour.

Yousaf also said that a working group established to look at misogynistic harassment will announce its chair in the coming weeks.

The group will investigate whether sex should be added to the list of protected characteristics in the bill, something which a number of leading women’s organisations have spoken out against.

Yousaf also cautioned that there may be “unintended consequences” to moves to further amend the bill, such as by making provisions for “reasonable” speech or by exempting private settings such as speech made in the home.

He told the committee on Monday that effective hate crime legislation should make it clear to victims, perpetrators and wider society that “offences that are motivated by prejudice are completely unacceptable and will be treated seriously”.

Yousaf agreed when asked by committee convener Adam Tomkins whether it is his view that any restriction on a right such as free speech should be as narrow as possible.

But he added: “Remember also that people have the right, and I speak as somebody who has been often the target and the victim of hatred, be it racial or religious, that people have the right to live their life without having that prejudice, that hatred, directed towards them. Criminal law must protect people from that hatred.”

Asked whether freedom of expression should also include the right to “offend, shock or disturb”, Yousaf pointed out that there is no mention of “offensive” language or behaviour in the bill.

He said: “There's not a word in the bill that deals with offence.

“People should have the right to be offensive. People should have the right to express views that are controversial.

“This bill does not intend to deal with people who have offensive views.”

Yousaf defended the decision to retain the provision of “insulting” language or behaviour with intent to stir up racial hatred, even though as Tomkins pointed out the Law Society of Scotland, the Faculty of Advocates and Lord Bracadale, who lead a review of existing hate crime legislation in Scotland, recommended removing it.

Yousaf said it was important to make sure that communities who are often the victims of hate crimes do not perceive the government as watering down legal protections.

He told Tomkins: “But it's interesting, did one group you don't mention, and that is of course those that are the most impacted by racial stirring up of hatred.

“And this is a principle that I live by when making legislation. I've been a minister for eight years in the government, and I've always thought that the very famous principle of ‘that which is about us, without us, is not for us’ is a very, very important principle to live by.”

He went on: “When you do to hear evidence from groups who represent those who are most targeted by racial stirring up offences and by racial hatred, they will tell you that they do not want any – at least a perceived – dilution or weakening of the current stirring up offence of racial hatred, which has existed for 34 years with barely, as far as I can see, any controversy whatsoever.”

Yousaf warned that although there are some “compelling arguments” for the potential to including a non-exhaustive list of examples for a ‘reasonable’ defence, that he was not convinced it was necessary.

He said: “I find it difficult to envisage [a situation] where behaviour can be threatening or abusive, with the intent of stirring up hatred, and yet be justified as being 'reasonable'.”

Such a list of exemptions could have “unintended consequences,” Yousaf said.

Taking the example of adding a ‘reasonable’ defence of journalist expression to a list, he said: “What we wouldn't want to do is give the likes of Tommy Robinson a defence by saying that he's a blogger who writes for ‘The Patriot Times’, and therefore ‘My reasonable defence is that  'I'm a journalist’.”

Yousaf also said he disagreed “in terms of principle and policy” with adding a defence for speech made in the home.

He said: “As a parliament, even as a society, are we comfortable with giving a defence in law to somebody whose behaviour is threatening or abusive, or let's just give an example, which is intentionally stirring up hatred against Muslims, are we saying that that is justified because it is in the home?”

He added that it wasn’t clear in practice how such a defence would work, although he would keep an open mind on the issue.

Several committee members expressed frustration that more information on the working group on misogynistic harassment wasn’t yet available.

The group was set up to examine whether sex needs to be added to the list of protected characteristic under the bill.

Several national womens’ organisations including Engender, Scottish Women’s Aid and Rape Crisis Scotland have urged MSPs not to include sex in the bill.

Some other groups have argued that sex should be included.

The bill includes a section allowing for sex to be added at a later date, after the bill is passed.

Yousaf said he was “sympathetic to listening to the arguments on this”.

He added: “I think the misogynistic harassment working group is very important because they should look at this issue.

“I think that's why an enabling power is a good idea, because it allows after detailed consideration, if a sex aggravator is wanted and seen as needed as part of the solution to tackle this issue, then it should be able to be brought forward.

“But it's not clear-cut that it would have the effect that some people think might well have.”

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