Debate or no debate (February 2021)

Tomorrow the Justice Committee was due to debate a range of amendments seeking to strengthen the protection for freedom of expression in the Hate Crime and Public Order Bill (background here).

This afternoon the Cabinet Secretary for Justice announced on Twitter :

“Have spoken to Opposition members & we have all agreed not to move our amendments in relation to *Freedom of Expression (Hate Crime). By not moving, will hopefully achieve consensus on a broad Foe clause for Stage 3 that covers all characteristics, so no group feels targetted

We all want to ensure freedom of speech, including the freedom to disagree robustly with any policy, is protected. We also agree that this is not mutually exclusive to protecting the rights of people to be free from hatred. I apologise for any hurt caused – was not my intention

With agreement of the Opposition the only FoE clause I will move will be in relation to religion. This provision has broad consensus, not just in Parliamentary terms but also from various stakeholders, from faith groups to secularists.”

If no amendments are moved, other than on religion, then there will be no debate about how the bill might be amended in detail for other characteristics. All the discussion between the parties before Stage 3 will happen behind closed doors.

It is not absolutely clear if this is what is planned, or if there will be some initial debate tomorrow. The Committee Convenor has said:

“I hope that all amendments, including those on free speech that are apparently not now to be pressed to a vote, will be fully debated by the Justice Cmte so that the issues can be fully fleshed out.”

Therefore, although MSPs have said that they do not intend to criminalise speech that is simply offensive, discomforting, or disrespectful, it remains unclear whether they will take the chance at Stage 2 to even put on the record that they do not intend to criminalise, on content grounds alone, statements such as sex is immutable, or the use of terms such as “woman” or “man” as words based on sex. Or, rejecting the belief that everyone has an innate gender identity separate from their sex.

The opposite view, that the Kerr amendment – which explicitly provided for statements such as those above – should not be protected was made clear in a statement on Twitter from the Leader of the Green Party, Patrick Harvie MSP:

“It’s not just about ensuring “no group feels targeted”, it’s also about ensuring that no form of bigotry is legitimised or protected…

There are also shockingly overt homophobic & transphobic amendments which would make the Bill far worse. It’s vital that these are defeated.”

We have argued from the start that introducing legislation in this area, with the state of the arguments as they are, carried a high risk of casting a shadow on free speech beyond the technical scope of the criminal law. We have produced evidence of how low the bar can be for accusations of hate in this area, most recently here.  We have argued that if legislation is going to proceed, it needs to provide a clear point of reference for what the law does not intend to criminalise in this area.

We are concerned that one important decision has already been made behind closed doors – namely that for everything other than religion, there should be one generic freedom of expression provision. This contrasts substantially in both parliamentary process and substantive content, with the tailored freedom of expression provisions in the 1986 Act,  introduced after intense discussion and amendment in the Lords.

Without a substantial debate at Stage 2, all the further discussion between parties will also be in private before Stage 3.

If politicians are worried about being labelled transphobic, or even just hurtful, simply for arguing in the Parliament that it should not be criminal in itself to state that sex is immutable or to make the other statements in the Kerr amendment, it is hard to see how those outside the Parliament can be confident in future that the law will have their back, if they wish to.