Conversations at home that incite hatred must be prosecuted under Scotland’s hate crime law, the Scottish justice secretary has insisted.
The Hate Crime and Public Order (Scotland) Bill has been opposed by the Scottish Catholic Church, police representatives, academics and artists, but is set to introduce an offence of ‘stirring-up hatred’ against certain groups, including on the grounds of disability, sexual orientation and age.
The Public Order Act 1986, which currently outlaws threatening, abusive or insulting words and behaviour, includes a “dwelling defence” that states threatening language cannot be prosecuted if spoken at home.
The new bill will be based on that act, but Justice Secretary Humza Yousaf has made clear his hope that a “dwelling defence” will not be included.
The additional crime of “stirring up hate” against a protected group could be committed by “behaving in a threatening or abusive manner, or communicating threatening or abusive material to another person,” as well as the crime of possessing “inflammatory material.”
Journalists and theatre directors could also face prosecution if their work is deemed to deliberately encourage prejudice.
Critics have argued that the offence of “stirring up hate” could be interpreted to include people like JK Rowling, who could face up to seven years in prison for expressing views about transgender issues in future.
In at attempt to placate opposition concerns, Yousaf had previously said the Scottish Government would propose an amendment at stage two of the bill that would mean any offender would have to intend to stir up hatred, but more recently has also had to promise expansion of protection to speech that expresses “antipathy, dislike, ridicule or insults”.
“I’m very actively considering both the breadth and the depth of freedom-of-expression clauses. We have to be aware of some of the concerns that may be expressed if we were to have a generic freedom-of-expression clause, would that be specific enough to give people the reassurances that they desire?”, Yousaf asked.
“We’re looking at all those issues in the round, I would anticipate some further change around the freedom-of-expression clause probably coming at stage two, be it from members or possibly from the Government, but it is an area under active consideration.”
“Free to Disagree” campaign spokesman Jamie Gillies said: “We are grateful to Mr Yousaf for his willingness to make further changes to the Hate Crime Bill. The wording of the free speech provisions is a central concern to critics. As drafted, they do not go far enough to ensure freedom of speech and expression will be upheld. Amendments along the lines of those mooted today would provide much-needed reassurance.”
“It must be said that there are a number of outstanding concerns, some of which were not touched on today. Many feel that the term ‘abusive’ would create too low a threshold for offending, provisions on ‘inflammatory material’ are not adequately defined and there is no ‘prosecution lock’, as in other stirring up legislation in England and Wales. We trust that these concerns will be considered by Justice Committee MSPs in the coming weeks,” Giles added.
Mr Yousaf had indicated during the committee meetings that he would be in favour of the stirring up hatred offences applying inside homes.
Responding, Liam Kerr MSP, the Scottish Conservative Justice Spokesman, said: “This latest admission from the justice secretary confirms what so many respondents to the consultation have warned – that as drafted, this Bill means free speech could be criminalised within the home with friends you’ve invited over for a dinner party, and that Mr Yousaf is perfectly comfortable with that.
“The SNP need to be clear with the Scottish public about exactly what they intend this Hate Crime Bill to do.
“They can’t keep trying to force through dangerous attacks on freedom of speech,” Kerr concluded.