Legal experts highlight concerns with Hate Crime Bill

Legal experts highlight concerns with Hate Crime Bill

Roddy Dunlop QC

Legal experts have highlighted their concerns with the Scottish government’s controversial Hate Crime and Public Order (Scotland) Bill.

Senior representatives of the Faculty of Advocates, the Law Society of Scotland, the Crown Office and Procurator Fiscal Service, as well as Police Scotland and the Scottish Police Federation gave evidence to MSPs on Holyrood’s Justice Committee.

The groups expressed gratitude for a recent concession by Justice Secretary Humza Yousaf relating to draft stirring up hatred offences in part two of the bill.

Asked if the term ‘abusive’ can be described as an objective test, the Faculty and the Law Society stressed that more clarity is required.

Roddy Dunlop QC, Dean of the Faculty of Advocates, argued that if there is “any doubt” about the meaning of the term, there “couldn’t be any objection to an amendment to make it clearer”.

Michael Clancy, director of law reform at the Law Society of Scotland, added: “If we leave this bill without any specific definition there might be a question as to why.”

Police representatives echoed their concerns. Gary Ritchie, assistant chief constable of partnership and community and wellbeing at Police Scotland said that further clarification is “always welcome”.

And Calum Steele, head of the Scottish Police Federation, said it would probably be helpful if an “objective test” was written into the legislation. He warned that in current, febrile political climate there will be a “clamour” for the police’s reach to go much further than the original offence intended, saying “things that are insulting could easily be redefined from insulting to abusive to meet the criminal test”.

Mr Steele said that the SPF’s concerns largely relate to “grey areas” in the legislation, noting that conversations in the home on contentious issues could be repeated innocently by children in the classroom and lead to a report to the police.

Panellists were asked for their views on free speech provisions accompanying the ‘stirring up’ offences which the Scottish government is actively considering. Last week, Mr Yousaf expressed a willingness to “broaden and deepen” the free speech protections listed in part two of the bill.

One idea mooted is to adopt the wording of free speech provisions in parallel ‘stirring up’ legislation in England and Wales which protects expressions of antipathy, dislike, ridicule, insult and abuse”.

Commenting on the current provisions, which protect “discussion and criticism” of religion and sexual orientation, Mr Clancy said that “criticism and discussion are very wide concepts”.

Mr Ritchie said it is “helpful for police officers to have that freedom of expression provision in there” but said detailed provisions are more important for a public understanding of what offending involves.

He added that it is “always more helpful to us if the people we’re policing understand the legislation”.

“If it’s laid out in clear terms about what is permitted and what’s not that’s helpful just purely in terms of engagement with people.”

Mr Steele added that the absence of clear freedom of expression provisions will be “utilised as a means to levy criticism at the police service that certain behaviour is not acted on”. “Extending a list would be helpful from a policing perspective.”

Both legal representatives and members of the police service criticised new police powers outlined in the draft legislation.

Describing the powers as “unduly oppressive”, Mr Clancy said: “We would look to tightening the terms of the provisions in section six to make it clearer and more effective.”

Mr Steele said MSPs must remember that police officer are not detached from issues in politics and public debate, saying officers could use “enforcement powers on matters they have taken public positions on”.

The Law Society and the Faculty argued that controversial provisions on the public performance of plays are undemocratic and wholly unnecessary.

Mr Clancy said the provisions are “much more stringent” than existing legislation and present a “threat to freedom of expression in the arts”.

“It’s not really clear what mischief the provisions are seeking to constrain. We’ve got to be looking closely at what this legislation is actually trying to deal with and whether we need to revisit the wording”.

Mr Dunlop questioned why the legislation is addressing plays in particular. “Nowadays a far more pressing concern would be things said on social media…I wonder whether it’s not appropriate to leave section four out.”

Jamie Gillies, spokesman for the Free to Disagree campaign, said: “The overall impression from [the] proceedings is that more action is required to allay concerns about the Hate Crime Bill.

“The Cabinet Secretary’s recent announcement on ‘intent’ was widely welcomed. However, questions over the vague wording of the ‘stirring up’ provisions and their potential reach remain unanswered.

“It’s perfectly possible to construct legislation that deals with crimes motivated by hatred robustly whilst also respecting fundamental freedoms. With thorough scrutiny and additional amendments in the coming months, we are optimistic that this can be achieved with the Hate Crime Bill.”

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