Good morning. I hope that the committee can hear me loud and clear—if not, I have a fetching headset that I am happy to wear if the sound drops off. Please alert me if that happens.
I thank Liam McArthur for his remarks. Members will be aware that the purpose of the bill’s provisions on the protection of freedom of expression is to provide reassurance and greater clarity about the boundaries of the criminal law. That reassurance comes through provisions that highlight behaviours that will continue to be legal once the offences of stirring up hatred are implemented.
In particular, transgender identity has repeatedly been cited as requiring new provisions to help to clarify the operation of the new offence of stirring up hatred in relation to transgender identity. I make it clear that, as Liam McArthur said, nothing in the bill prevents robust debate or even criticism of policies such as those contained in the proposals for reform of the Gender Recognition Act 2004, as long as such behaviour does not cross the line into being threatening or abusive and intended to stir up hatred.
Above and beyond the issue of transgender identity, there are clear and compelling calls for provisions across all characteristics. Views differ on how we might best achieve reassurance and clarity. It is therefore incumbent on us all to work together to strike the appropriate balance. It is for that reason that, despite having lodged amendments 65 and 82 in the group, I advise the committee that I will not move either of them, because it is clear that there is no agreement yet on the best approach. I thank Opposition members, with whom I have engaged over the past few days, for agreeing to take a collaborative approach to finding a solution on which I hope we can all agree in advance of stage 3—one that gives comfort to those who are concerned about free speech and protects communities from hatred. I have always said that those two aspects are not mutually exclusive.
I intend to move amendments 77 to 79, which are on religion, for reasons that I will explain and to which Liam McArthur alluded.
It is apparent that there is a lack of consensus on how to approach freedom of expression protections—that much is clear from reactions to the amendments that have been lodged on the subject. That is exemplified by amendment 82A, in the name of Liam McArthur, and amendment 82B, in the name of Liam Kerr, which have both been lodged to adjust my amendment 82 but which take radically different policy paths.
Following discussions in recent days that have involved all of us who have lodged amendments on freedom of expression, I think that it is right that we should take time between stages 2 and 3 to reflect on the amendments and see whether we can develop a collaborative approach that produces a set of provisions that will command support across the board.
Notwithstanding my intention not to move amendments 65 and 82, I will offer a brief commentary on them, as well as speaking to the other amendments in the group. Amendment 103, which we just heard about from Liam McArthur, would add a general provision on the protection of freedom of expression that applied to all protected characteristics that the bill covers. It would also make it clear that nothing in the bill affects a person’s rights under article 10 of the European convention on human rights.
I do not doubt that amendment 103 is well intentioned. Subsection (1) of the proposed new section would apply across the characteristics and is the type of freedom of expression protection that is likely to inform the solution that is necessary. However, as Liam McArthur recognised, there are technical and policy concerns about how the amendment would achieve the aim, which I will explain briefly.
The most important issue with subsection (1) of the proposed new section is that it appears to disapply the operation of the stirring-up offences, because it provides that
“nothing under this Act should prohibit discussion or criticism in relation to characteristics”.
The policy on offences of stirring up hatred is such that, if discussion or criticism of characteristics amounts to behaviour or material that is threatening or abusive and is intended to stir up hatred, the bill will prohibit such discussion or criticism.
The practical effect of subsection (1) of the proposed new section is that a person could discuss or criticise race or religion in a threatening or abusive manner, with the intention of stirring up hatred against Jews, Muslims or black people, but no offence would be committed. I know that that is not what Liam McArthur seeks to achieve through amendment 103. It is likely that, ahead of stage 3, a provision could be developed that is capable of providing for certain types of behaviour or materials that are not solely to be taken to be threatening or abusive in relation to characteristics that the bill covers.
I have concerns about subsection (2) of the proposed new section in amendment 103. Liam McArthur touched on them; they are largely about what subsection (2) would do to the compatibility of the bill’s provisions with ECHR rights, while not providing additional guidance on the boundaries of the criminal law. That could create unwelcome legal uncertainty. Although provisions in other legislation might well mirror what is in subsection (2), Liam McArthur was right to point out that there are different thresholds and implications for criminal law versus civil law.
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We can use Liam McArthur’s amendment 103—particularly subsection (1)—as a potential starting point for any consideration between stages 2 and 3 of a broader freedom of expression provision.
I will move amendments 77 to 79, which are on religion. There should be a minimum standard of freedom of expression protection for characteristics that the bill covers—as I said, I have agreed to work on that collaboratively with colleagues. However, to draw on the consensus about specific protections that relate to religion, there should be additional protections, which my amendments 77 to 79 will provide.
As I have stated throughout scrutiny of the bill, the Scottish Government recognises the importance of balancing freedom of expression with people’s right to be protected from hateful speech—those aims are not mutually exclusive. I am aware of concerns that have been expressed about the extension to religion of the stirring up hatred offence and about the perceived likelihood that self-censorship might arise in relation to the right to express views about faith or discuss and debate religious matters. That is not the bill’s intention.
It is important to recognise that the right to freedom of expression is not without limit. We must strike an appropriate balance between respecting rights of expression and protecting victims sufficiently. For characteristics that the bill covers, we will work together to achieve effective protection that can be considered at stage 3. However, additional protections for religion are needed, and I am comforted that many witnesses and stakeholders, including those from faith groups such as the Catholic church, have indicated that the current provisions in section 11 could usefully be aligned more closely with the equivalent provisions in English and Welsh legislation under the Public Order Act 1986. In effect, that is what amendments 77 to 79 will do. I will move those amendments and I ask members to support them.
As I indicated, I will not move amendments 65 and 82. However, I will explain why they were lodged, because I wish to put on the record how the general approach to protecting freedom of expression in relation to the characteristics that amendments 65 and 82 cover could be capable of application to all the characteristics that are in the bill.
Amendment 65 would insert after section 10 a new section to provide for freedom of expression in relation to the characteristic of age for the purposes of the stirring up hatred offence in section 3(2). Subsections (1) and (2) of the proposed new section provide that
“for the purposes of section 3(2) ... Behaviour or material is not to be taken to be threatening or abusive solely on the basis that it involves ... discussion or criticism of matters relating to age, whether relating to age generally or to a particular age or age range.”
Amendment 82 would insert after section 12 a new section to provide for freedom of expression in relation to the characteristic of transgender identity for the purpose of the stirring up hatred offence in section 3(2). The approach that the amendment takes is similar to that for the age characteristic, which I just spoke about. There are two amendments to amendment 82, which I have touched on.
Amendments 117 and 81 would adjust the protection of freedom of expression provision for the characteristic of sexual orientation in section 12. Amendment 81, in the name of Liam Kerr, would add to the protections a new specific matter relating to the sex of parties involved in marriages. I say without pre-empting him that, after a constructive discussion, I understand that he has agreed not to move his amendment, which I welcome.
I have had constructive dialogue with John Finnie on amendment 117, which would largely remove section 12(2) and replace it with a protection in respect of
“discussion or criticism of ... sexual orientation.”
The existing provision is more focused on sexual practices and conduct, which would still be covered by amendment 117. On balance, and in line with what I hope and expect will be a collaborative approach ahead of stage 3, I ask Mr Finnie not to move the amendment.
I also hope, in the light of constructive engagement that she and I have had in the past few days, that Rhoda Grant will not move amendment 112. It has been clear from scrutiny of the bill that protection of freedom of expression is a key element of its overall safeguards. Such provisions play an important role in reassuring people and in providing clarity about the boundaries of the stirring-up offences.
Amendment 112 relates to protection of freedom of expression for those who advocate for women’s rights. It is important that the bill does not inadvertently cause anyone who wishes, in a non-threatening and non-abusive manner, to discuss or criticise matters that relate to women’s rights to feel that they must self-censor because they fear that they might commit an offence. I recognise that many women with sincerely held beliefs are concerned that they would have to self-censor because of what is in the bill. That is absolutely not the bill’s intention. I am committed to providing reassurance through what I hope will be a broad freedom of expression provision that applies to all the characteristics, which will give comfort to the many women who have raised such concerns. The fact that the new offences can be committed only when the behaviour is threatening or abusive and—if my amendments 1 to 4, in a later group, are agreed to—when it is intended to stir up hatred is an important safeguard.
Under amendment 112, if behaviour or material was threatening or abusive and was intended to stir up hatred in respect of any characteristics in the bill—such as race, religion or transgender identity—that would be permitted if it was in the context of advocating for women’s rights. I cannot support that. I know that Rhoda Grant’s amendment is well intentioned, but it is deeply flawed. It could mean that, under the guise of protecting or advocating for women’s rights, somebody could engage in racism, homophobia, Islamophobia or antisemitism, which I know is not Rhoda Grant’s intention. The issue will be covered by the freedom of expression provision that I mentioned. I have had constructive dialogue with Ms Grant and I hope that she will agree not to move amendment 112 and to work with other members to develop a broader freedom of expression provision that covers all the protected characteristics.
My door has been open and it remains so. I will continue discussions with a wide range of stakeholders and with the Opposition to ensure that we lodge a freedom of expression provision at stage 3 that commands as much support as possible across wider society. People expect us to work together to rise to the challenge, and I am sure that we can.