Hate Crime Bill’s woes teaching SNP a lesson about the value of free speech
When the Scottish Parliament was first established, it was intended that the committees, constituted on a cross-party basis reflective of the political balance at Holyrood, would perform an important scrutiny role, effectively acting as a second chamber.
In practice, this has not been how things have worked out. Expectations that MSPS on committees would leave their party-political allegiances at the door and act independently have been dashed, with the consequence that too often the ability to hold ministers to account has been frustrated. This was particularly the case during the period of SNP majority government between 2011 and 2016.
Since the SNP lost their overall majority, we have seen committees become more assertive, and prepared to challenge the government where appropriate.
We see that on a weekly basis in the Salmond Inquiry Committee, on which I presently sit, and we saw it just last week in a report from the Rural Economy and Connectivity Committee slamming the “catastrophic” handling by the ScottishGovernment of ferry procurement.
One of the best examples of a committee doing its work effectively also came last week, with the publication by the Justice Committee of its stage one report on the SNP’S Hate Crime Bill. Under the stewardship of my Conservative colleague Adam Tomkins MSP, the committee has done an excellent, thorough job of analysing the Bill, identifying the key areas of controversy, and suggesting improvements.
As readers of The Scotsman will be well aware, this is a Bill that provokes strong opinions. Whilst everyone should deplore hate speech, there have been real concerns expressed that the legislation as drafted goes too far in seeking to close down public debate and restrict free speech. An alliance of lawyers, writers, comedians, human rights advocates, and religious groups have come together to oppose the Bill, and express serious concerns about its impact.
In its report, the Justice Committee recognises the broader context for the Bill, and the debate around freedom of speech, agreeing “the right to freedom of speech includes the right to offend, shock or disturb”. It goes on to say: “The committee understands that this Bill is not intended to prohibit speech which others may find offensive, and neither is it intended to lead to any self-censorship. The committee is anxious to ensure, however, that these are not unintended consequences of the Bill”.
Much of the committee’s report analyses in detail the controversial aspects of the Bill, which relate almost exclusively to part two, and the creation of new offences around “stirring up hatred”. Despite concessions put forward by the Justice Secretary Humza Yousaf, witnesses were still concerned that the Bill would impact on freedom of expression, and the right to criticise religions. At a number of points, the heated public debate on trans issues was quoted as one area where the Bill could have a chilling effect on the ability for that debate to be conducted, and all opinions aired. The recent opinions of the writer JK Rowling were quoted by witnesses as an example of a legitimate point of view that could potentially be criminalised by the Bill as presented.
The language in the Bill is analysed, including whether terms such as “insulting” and “abusive” in relation to speech should be included. The committee concluded that the meaning of the word “abusive” in the Bill had to be clear. A number of witnesses raised concerns around the so-called “dwelling provisions” which provided that hate speech could be criminalised even if it took place in a family home. There were also issues around section five of the Bill which criminalised simply the possession of “inflammatory material”, it being pointed out by the Roman Catholic Church that the Bible itself could be considered “inflammatory” in some contexts.
There are existing protections built into the Bill to permit freedom of expression, around criticism of religion, and sexual conduct and practices. However, the committee was concerned that these did not go far enough, and recommended wider protections of free speech, to more closely align with the equivalent provisions in England and Wales.
On Monday, the Justice Secretary indicated his willingness to make further concessions, including to strengthen the freedom of expression provisions, to make clear that the term “abusive” was an objective test, and to propose limits on police powers of search and entry. In addition, he agreed to remove section five on possession on inflammatory material from the Bill entirely.
I am sure these further concessions will be welcomed by the committee which, combined with the previous announcements from the Justice Secretary, represent a major shift in his position away from the Bill as originally introduced. However, there are very serious concerns that, even with these adjustments, the Bill still goes too far in terms of restricting freedom of speech.
The Justice Committee has done a tremendous service to Parliament, and to the Scottish public more generally, with its thorough analysis of the Bill and the key issues that arise from it. It will now be up to the Scottish Government, and MSPS across all parties, to determine whether the Bill can be sufficiently improved as it goes through the parliamentary stages to make it worthy of adding to the statute book.
Perhaps the most depressing aspect of this whole episode has been that a measure around which all of us should unite, the clarification of the law against hate speech in Scotland, has ended up mired in so much political controversy because of overreach on the part of the SNP government.
I hope that they have learned a lesson from this legislation that Scotland as a nation, across all sectors and political opinions, values free speech, and is prepared to defend that right vigorously.