Protecting Freedom of Expression: When less is less

The Justice Committee will start to consider potential amendments to Hate Crime and Public Order (Scotland) Bill on Tuesday 2 February. How many more sittings there are will depend on how much time the Committee decides it needs to consider all the proposed amendments properly.

Two amendments have been put down which are intended to protect freedom of expression in relation to the new proposed offence of “stirring up hatred“ in relation to transgender identity. Two more are potentially relevant but more widely scoped.

The Cabinet Secretary for Justice, Humza Yousaf has put down an amendment (amendment 82) which says:

“Behaviour or material is not to be taken to be threatening or abusive solely on the basis that it involves or includes discussion or criticism of matters relating to transgender identity.”

The Scottish Government originally argued that no additional protections were needed here, so the recognition of the principle that there needs to be some additional provision in the Bill is welcome. However, this is a much less expansive format than the existing equivalent provisions in England and Wales, under the Public Order Act 1986, which cover only religion and sexual orientation (see footnote). These provide more detail on what the law is not intended to catch.  The provisions included in the Bill already for the same two characteristics are more limited than the 1986 Act, but still say more than is proposed by the government for transgender identity.

A further amendment (82B) put forward by Liam Kerr MSP adds material to the government amendment. It puts on the face of the Bill in more detail the types of statement the Parliament does not intend to criminalise. It states:

Behaviour or material is not to be taken to be threatening or abusive or as stirring up hatred solely on the basis that it involves or includes—

(a) discussion, criticism or rejection of any concepts or beliefs relating to transgender identity,
(b) questioning whether any person should undergo, or should have undergone, a process of gender reassignment,
(c) stating that sex is an immutable biological characteristic,
(d) stating that there are only two sexes,
(e) the use of—

(i) “woman” or “man” and equivalent terms,
(ii) third person pronouns
in a way other than that which a person prefers, or

(f) reference to any past name used by a person.

The items on this list may surprise some people as requiring legal protection, but will be familiar to anyone who follows this debate, and is familiar with the sort of statements which have at various points been subject to accusations of hatred, not only on social media, but in more formal settings.  For example, all of these items would be “transphobic “ according to a document currently published on the website of the University of Edinburgh, under its equality and inclusion guidance for students.  The committee has been provided with further examples of the broad meaning now given to “hate” in this area.

These sort of freedom of expression provisions are not only useful because they can be considered by the courts. They have a wider function of providing a point of reference for prosecutors, police and wider society, about what effects the Parliament did not intend, in legislating here. Much of their day to day value is in discouraging threats to invoke the law, and in giving people confidence to ignore such threats, and in discouraging self-censorship and institutional internal caution, in situations where legislators never intended the law should have that effect.

MSPs may agree that none of the statements in the longer amendment are ones they intend to criminalise in themselves, but decide against putting them on the face of the Bill, and leave what was said in debates at the time to provide any further point of reference.  But this will not provide the same immediate visibility and lack of contestability as provision in law. The courts can look at parliamentary debates in interpreting the law; but by the time a case gets to that stage, it will already be too late.

Rhoda Grant MSP has put down a further general freedom of expression related amendment (112). This says

“Behaviour or material is not taken to be threatening or abusive when it is for the purpose of advocating for women’s rights.”

The advocacy of women’s rights should of course never by itself be criminalised, so this is welcome. However, freedom of expression protections which are linked to a specific type of activity are more limited in their scope than those which are not. This protection would not cover anyone engaging with the issues here without advocating anything, or advocating for something other than women’s rights.

Liam McArthur is proposing a further amendment which gives generic protection for all the characteristics covered in the Bill (103)

(1) Notwithstanding any specific provision under this Act protecting freedom of expression, nothing under this Act should prohibit discussion or criticism in relation to characteristics mentioned in section 1(2).

(2) Nothing in this Act prejudices the freedom of expression enjoyed by virtue of Article 10 of the European Convention on Human Rights.

This provides some coverage for all the characteristics being added, in line with what Lord Bracadale appears to have intended. While the government is also putting forward a new provision protecting freedom of expression in relation to age (amendment 65), disability and variations of sex characteristics still have no freedom of expression provision.

However, this amendment by itself will not provide a point of reference in future for what the Parliament intended, and crucially, what it did not intend, when it decided to legislate in the fiercely contested area of hatred in relation to transgender identity. The immediate reaction online to the government putting down its amendment, and even more so to Liam Kerr’s detailed amendment (it “explicitly permits transphobia” according to one response), has itself demonstrated how little agreement there is about what this law should and should not permit.

As the Cabinet Secretary has said, the freedom of expression protections in the Bill do not create a class of statement which are completely exempt from being treated as stirring up hate. They simply make clear that certain things are not enough by themselves to count as criminal offences.  They leave open that the way in which these statements are made could still be treated as creating a criminal offence, by introducing further elements which make saying them “threatening and abusive” and “intended to stir up hatred”.  The government has not been clear so far about the sort of situations it has in mind here, for a statement such as “there are only two sexes” or “women are adult human females”.

In his evidence to the committee the Cabinet Secretary has emphasised the need to listen to victims. One obligation on the committee is not to create victims unintentionally through the use of the criminal law.  To the best of our knowledge, the government amendment has not been developed in discussion with anyone who gave evidence to the committee who has been at the sharp end of unfounded accusations of hatred in this area. We hope therefore that when the committee considers these amendments, it will listen particularly to those who of us who are speaking from personal experience about the low threshold here for accusations of hate, and who are looking for protection closer in form to what is already being offered for religion and sexual orientation.


Notes

The Public Order Act 1986 provides:

29J   Protection of freedom of expression

Nothing in this Part shall be read or given effect in a way which prohibits or restricts discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents, or of any other belief system or the beliefs or practices of its adherents, or proselytising or urging adherents of a different religion or belief system to cease practising their religion or belief system.

29JA  Protection of freedom of expression (sexual orientation)

  • In this Part, for the avoidance of doubt, the discussion or criticism of sexual conduct or practices or the urging of persons to refrain from or modify such conduct or practices shall not be taken of itself to be threatening or intended to stir up hatred.
  • In this Part, for the avoidance of doubt, any discussion or criticism of marriage which concerns the sex of the parties to marriage shall not be taken of itself to be threatening or intended to stir up hatred.

 

The Hate Crime and Public Order (Scotland) Bill as introduced provides:

11        Protection of freedom of expression: religion

(1)        This section applies for the purposes of sections 3(2) and 5(2).
(2)        Behaviour or material is not to be taken to be threatening or abusive solely on the basis that it involves or includes—

(a) discussion or criticism of—

(i) religion, whether religions generally or a particular religion,
(ii) religious beliefs or practices,

(b) proselytising, or
(c) urging of persons to cease practising their religions.

12        Protection of freedom of expression: sexual orientation

(1)        This section applies for the purposes of sections 3(2) and 5(2).
(2)        Behaviour or material is not to be taken to be threatening or abusive solely on the basis that it involves or includes—

(a) discussion or criticism of sexual conduct or practices, or
(b) urging of persons to refrain from or modify sexual conduct or practices

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