Hate Crime Bill must be amended, says Justice Committee

10.12.2020

The Scottish Parliament’s Justice Committee has today indicated it will support the general principles of the Hate Crime Bill on condition it is amended in line with recommendations the Committee is unanimously making. These recommendations build on, but go further than, the commitments already made by the Cabinet Secretary for Justice to make changes to the Bill.

The Committee has concluded that further changes should be made to the Bill to ensure that those making comments which others find offensive are not criminalised, while still robustly tackling those perpetrating hate crimes. 

The Committee has unanimously concluded as follows:

  • For behaviour to be considered “abusive” under the Bill, prosecutors must be required to show that a ‘reasonable person’ would consider the behaviour to be abusive, setting a higher bar for prosecution;
  • The Bill’s provisions safeguarding free speech must be deepened and strengthened; 
  • The ‘reasonableness’ defence available to a person charged with a stirring-up offence must be clarified. 

The Committee also agreed that while there should not be an absolute defence against prosecution for acts in private homes, people should be allowed to express their own, perhaps offensive, views within their own home or other private space without fear of investigation or prosecution. It has therefore called on the Scottish Government to find a way to amend the Bill that better reflects its view around ‘stirring up’ offences having a public element to them.

The Committee welcomed the appointment of Baroness Helena Kennedy QC to chair a working group on misogynistic harassment, and has called on the working group to report within a year to avoid further significant delay. However, any legislative change that is recommended by this group should be subject to the fullest possible parliamentary scrutiny.

Speaking as the report was published, Committee Convener, Adam Tomkins MSP, said:

“Balancing freedom of expression and legislating to ensure hateful actions can be prosecuted is a difficult task.

“The Committee is grateful for the wealth and variety of evidence we heard, and hope we have reflected, in our report. We also welcome the Cabinet Secretary taking the unusual step of accepting that his Bill required amendment before we began our scrutiny.

“We believe that, if amended in line with our unanimous recommendations, this Bill should be fit to protect the communities it affords extra protections to, without encroaching on the ability of citizens to have robust debates, hold views others find unpalatable, and express themselves freely.

“It is a testament to the open-mindedness of all Members to have found such consensus on what has undoubtedly been a contentious piece of legislation.”

Background

The Committee’s call for views received an unprecedented response, with almost 2,000 submissions. A release about this and the Bill timetable is set out in this release.

The Committee heard oral evidence from almost 40 stakeholder organisations.

A copy of the report is attached.

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