Thank you for inviting me on to the panel to give evidence. We welcome the Government’s decision to move to an intent-only stirring-up offence, which goes some way to allay the concerns that we outlined in our initial submission. However, we still have a number of concerns with the bill, which are principally around the freedom of expression provisions. We welcome the cabinet secretary’s commitment to look at the breadth and depth of those provisions, which is something that he has recently promised to do.
As it stands, there is a hierarchy—there is a gradation of victims, if you like, in which people in groups relating to religion and sexual orientation are treated differently for their protected characteristics because they are explicitly mentioned in the freedom of expression provisions. However, as Lord Bracadale said, those provisions should cut across all protected characteristics to ensure equity.
We believe—as Lord Bracadale also suggested—that the freedom of expression provisions should be broadened to include expressions of antipathy, dislike, ridicule and insult. It is interesting to note that the Government drafted those very terms into its original Offensive Behaviour at Football and Threatening Communications (Scotland) Bill. Therefore, the Government is not alien to it; it has done that before, and I believe that it should include those terms in the Hate Crime and Public Order (Scotland) Bill.
Another suggestion in relation to freedom of expression is to consider the inclusion of other belief systems, so that we are not talking only about religions. Again, that would be to ensure equity for all protected groups.
We still have concerns about the definition of the term “abusive”. We feel that that could be widely interpreted, creating the potential for a chilling effect on free speech and expression. It would help if, at the very least, the Government gave us some clarity around the term, and perhaps adopted an approach similar to that contained in the Domestic Abuse (Scotland) Act 2018, which includes a definition of abusive behaviour.
We also have concerns outstanding about the term “inflammatory”. Although the move to intent only that the Government has outlined will protect people from being prosecuted for having possession of, with intent to communicate, or communicating, harmless material or for personally held beliefs, the term “inflammatory” still needs clarification. It would be helpful to know what the Government means by “inflammatory”, because what arouses anger or hostility in each individual is very subjective. For example, some people might feel that some of the views expressed in religious texts or literature—although widely held by many in society—are inflammatory, which might lead to malicious complaints.
In our written submission, we have given the example of the Catholic understanding of the human person and of the belief that gender—which is very topical—is not fluid and changeable, which might be a view that could be considered inflammatory by some people, leading to a police investigation. Therefore, clarity around the definition of inflammatory might help to alleviate some concerns, which I believe are well founded.
In addition, the term “abusive”—which, as I outlined, can still be widely interpreted—of course, still applies to the offence in relation to the inflammatory provision in the bill. We therefore need clarity on that, too.
I also have some concerns around the term “insulting” and the racial stirring-up offences. However, I note that Rona Mackay asked a question on those points specifically in the previous session. Convener, I do not know whether you want me to hold off on that area, or whether I should go into it now.