I welcome the chance to take part in the discussion. My principal duty as a witness this afternoon is to bring home to the committee and impress on it the need for there to be the clearest points of reference in the bill about the limits and the lines.
I want to take us back to Lord Bracadale’s review, because I think that we are drifting quite a long way from that, which, after all, the bill is a response to. He said that we needed to
“make clear where the line is drawn between offensive behaviour that has not been criminalised and the type of behaviour that is being criminalised.”—[Official Report, Justice Committee, 27 October 2020; c 42.]
Lord Bracadale discussed that point with the committee at some length in its earlier evidence sessions. He was specific in his review—and even more so when talking to the committee—about the models in sections 29J and 29JA of the Public Order Act 1986, which set out in more detail what is not intended and how the line should be drawn.
We have, as a group—as have others—brought to the committee’s attention numerous ways in which, and examples of where, accusations of hate and abuse have been directed at women taking part in the debates around sex and gender identity who do not subscribe to the view that gender identity should always supersede sex. That is, in essence, the core point of the dispute.
I draw attention to Professor Sarah Pedersen’s written evidence to the committee this week, in which she said:
“it is my opinion that the Hate Crime Bill will afford opportunities for those who wish to silence gender-critical feminist voices to use threats of police reports, the possibility of reputational damage and the need to raise the financial and emotional resources to deal with such reporting.”
That is based on her having undertaken a series of interviews around Scotland with women working in the area.
15:15
We have provided the committee with more examples in our written submission. I stress that they are not hypothetical examples—we are not picking them out of thin air. We mention the veteran feminist Lidia Falcón, the president of the Feminist Party of Spain, who spent her 85th birthday in the office of the prosecutor against hate crimes of Madrid because she had been reported for comments that she had made about the reform of gender recognition law in Spain. Last week, she was cleared—all the charges were dropped—because her comments were found to be legitimate political speech, but not until after an investigation had taken place.
As for the atmosphere in which such events take place, members might or might not be aware that, this week, an effigy of Carmen Calvo, the Deputy Prime Minister of Spain, was found hanging in Santiago de Compostela. I am sorry for showing you the image—it is not a good image, but I think that people need to see it to understand it. It is shocking stuff, but it illustrates the atmosphere in which we are working, which is why getting the law clear is important.
We do not think that the provision on discussion or criticism meets the Bracadale test—neither did Lord Bracadale when he met the committee, I would point out. We are joined in that view by numerous other commentators. I know that the police superintendents and the Scottish Police Federation are concerned. The people on the ground are concerned.
In particular, I draw the committee’s attention to the submission of Scott Wortley of the law school at the University of Edinburgh, who talks in incredibly useful terms about the nature of legal drafting and the audience for it. In the case of the bill, the audience is not only the courts; it is all of us on the ground. His submission says—I suggest that this is the job of the committee—that we must ensure that the instruction book that accompanies the bill is really clear. He makes the point that any provision must be clear in the law itself, because that is where it all goes back to.
I also note that, a few days ago, police on the Wirral displayed a billboard, which must have been signed off by someone, which said:
“Being offensive is an offence”.
The police have now withdrawn the billboard, but that example shows us how important it is to be clear in law about what we do or do not mean in this area.
The cabinet secretary invited us to say what behaviour we thought might not be caught by the provision on discussion or criticism. I will read out examples. I do that with some trepidation, because it is not easy for me, but I have to do so if I am to meet the cabinet secretary’s invitation.
We are not clear that the provision on discussion or criticism would cover saying that there are two sexes or that sex is immutable. Would it cover saying that a woman is an “adult human female” and that the word “woman” can be used as a sex-based term? I am not going to stop anyone else from using it differently, but I should be allowed to use it as a sex-based term. Would it cover saying that third-person pronouns can be sex based, and that that is not criminally abusive? I am not sure whether any of those statements amount to discussion or criticism.
Is it discussion or criticism to assert:
“Women have sex-based rights, Only women can get pregnant, A lesbian cannot have a penis, The census should collect data on biological sex.”?
That has been described to me as a hateful position to take. The list goes on to include the statement, “No one is ‘cis’”.
Is it hateful to say:
“Transmen are not men/Transmen are female”?
Is it discussion or criticism to say:
“People who describe themselves as non-binary are still either male or female”?
I will not read the whole list; I will finish with the following examples:
“We should not encourage young people with gender dysphoria to make irreversible changes to their bodies ... Cross dressing is a type of sexual fetish”.
I am not absolutely sure by any means that I would say that all those statements fit into what we might call a discussion or criticism box. I would like the committee to consider whether it thinks that such statements should be criminalised in their own right. If it does not, does it feel that the provision on discussion or criticism is enough?
Those are the main points that I want to make. I also want to say a word about the bill process. We feel that this is a very late point at which to be having discussions on these degrees of detail. I appreciate that there has been a lot of generic and high-level discussion on freedom of expression, but the content of the bill has not been closely attended to until now. It feels to me as though we are trying to do an awful lot in a very short time. I commend the committee for having a public process at this point, but it brings out how difficult it is to deal with such matters in the way that we are.