The Stage 3 debate on the Hate Crime and Public Order Bill will take place in the Scottish Parliament on Wednesday 10 March. The Bill has had an exceptionally difficult passage to date, prompting criticism from a range of organisations, including the Faculty of Advocates, the Law Society, the BBC, the National Secular Society, the Catholic Church and a raft of writers and artists. Some of the original concerns have been addressed, but not all. Nonetheless, with parliamentary arithmetic standing in its favour, the Bill is likely to make it onto the statute book.
Most of the concerns centre on Part 2, which will extend the criminal offence of ‘stirring up hatred’, and the likely impact of this on freedom of expression. We have written extensively on this issue, specifically in relation to issues around sex and gender identity. In particular, we have highlighted the risk of further chilling effects in an area of debate that people are already afraid to enter.
This blog traces the passage of the draft legislation, in relation to freedom of expression as it affects questions about sex and gender identity. Drawing on our previous work on policy capture, and new Freedom of Information returns, we show whose views have been privileged in the handling of those parts of the draft legislation, and discuss the likely implications for freedom of expression in Scotland. The blog can also be downloaded as a briefing, here.
Standing up for freedom of expression…
Following the culmination of the Stage 1 proceedings in December 2020, concerns about how the Bill gives explicit protection to freedom of expression (FoE) have intensified. The Bill as introduced did not implement the proposals of the Bracadale Review on this point. In late January 2021, the Scottish Government and a number of opposition MSPs lodged amendments to the Bill on FoE some of which were generic, and others which were tailored to specific characteristics in the Bill.
…and standing down
Following a social media backlash and accusations of transphobia, on 1 February – the night before Stage 2 consideration of the bill began – opposition MSPs and the Cabinet Secretary for Justice withdrew their respective FoE amendments, and agreed to take a ‘collaborative’ approach to discussing a form of generic wording for a Stage 3 amendment on FoE.
That such a critical issue would be decided behind closed doors, prompted serious concerns about the lack of a transparent parliamentary process from ourselves and others.
In response, the Justice Committee established an emergency process to invite further submissions on a suite of draft amendments proposed by the Cabinet Secretary over a long weekend (18-22 February). The Committee received 681 submissions (ours can be read here), a selection of which were uploaded to the Parliament’s website around two hours before the Committee convened for a 90 minute roundtable oral evidence session. The published evidence ran to 391 pages.
The submissions received by the committee suggested there was still significant concern about this aspect of the Bill, including about how clearly any of the government’s proposed approaches would protect discussion on sensitive issues, such as sex and gender identity.
This came from bodies as diverse as Association of Scottish Police Superintendents, the Scottish Police Federation, and the Society of Editors, as well as women’s groups and faith organisations. Noting how short notice and sensitive the discussion was, the Church of Scotland offered support to the view of the Catholic Parliamentary Office of the Bishops’ Conference of Scotland and the Free Church, that Part 2 of the Bill should be deferred, to be completed with less haste, a view shared by the Network of Sikh Organisations. Umbrella group FreeToDisagree, whose members include the National Secular Society, Index on Censorship and the Peter Tatchell Foundation, alongside faith and libertarian groups, assessed the submissions initially published, and found that they were overwhelmingly in favour of stronger protections than proposed by the Scottish Government. The published submissions excluded those which were duplicates or part of a campaign.
The roundtable, held on the public record, consisted of 13 witnesses (Lucy gave evidence on behalf of MBM) and the Cabinet Secretary for Justice. During the roundtable, Mr Yousaf indicated his willingness to meet those with concerns about this issue. Indeed, throughout the passage of the bill, Mr Yousaf has regularly signalled that his ‘door is open’ to meeting with ‘external stakeholders’.
The day after the roundtable evidence session, we wrote, along with feminist campaign group For Women Scotland, to indicate our willingness to meet with the Scottish Government before the deadline for lodging Stage 3 amendments had passed, and offering suggestions for drafting of this part of the Bill. We received no response.
Who was the door open to?
On 4 February, we submitted two freedom of information requests to establish who the Scottish Government did meet with from around the end of Stage 1, to discuss concerns about freedom of expression.
We received responses to these requests on Thursday 4 March.
The response to the first request revealed that Scottish Government officials and the Cabinet Secretary for Justice met a number of backbench SNP and opposition MSPs in the two-month period leading up to the start of Stage 2 proceedings. The Minister and officials also met with six groups and trade unions representing those working in the arts sector on 21 January.
Officials met representatives of the Equality Network on four occasions: 8 December, 14 December, 14 January and 29 January, with the last of these meetings attended by the Cabinet Secretary. (The response notes that it is not possible to say whether the freedom of expression amendments were discussed at the meeting on 14 January, which suggests this meeting was unminuted.) Representatives of the Scottish Trans Alliance (a project of the Equality Network) are recorded as being separately present at the meeting on 29 January.
Officials met with representatives of Stonewall Scotland twice, and Engender met officials with the Cabinet Secretary on 1 February.
Notes taken at those meetings demonstrate the clear objection to anything other than a generic freedom of expression protection in the bill from the Equality Network, the Scottish Trans Alliance and Stonewall Scotland:
This position was reiterated at the meeting on 29 January between representatives of the Equality Network and the Scottish Trans Alliance and the Cabinet Secretary for Justice. The approach to opposition MSPs inviting them to withdraw their amendments appears to have been an action point from this meeting:
Whilst there is no note of the meeting that the Cabinet Secretary had with representatives of Engender held on the morning 1 February, an email confirms that the freedom of expression amendments were discussed. Engender’s later evidence to the Committee supported the approach the government is now taking (p.14 here), although it does suggest that the government having “more discussion with more stakeholders” might have improved the process and helped to reduce levels of concern.
Another recently published FOI response suggests that representatives of Scottish Women’s Aid, Rape Crisis Scotland and Zero Tolerance were also invited to attend the meeting on 1 February, at the request of Engender’s Director.
Scottish Government draft FoE amendments
The Scottish Government put forward two FoE models for discussion at the emergency Justice Committee roundtable on 22 February. These can be accessed on pages 5-8 here. For each model, there were two options, as versions including and excluding race were offered in each case. Groups representing racial minorities expressed surprise to see options being introduced at this late stage extending FoE coverage to race: the existing legislation for race, in place since 1986, does not have such a provision.
One model was based on the wording suggested by the Equality Network at the 8 December meeting. It reversed an agreement reached with religious and secular groups for a stronger FoE protection in relation to religion, which had been agreed at Stage 2 of the Bill only a week before. The National Secular Society described this as “perplexing and farcical”, the Network of Sikh Organisations as “frankly remarkable” and the Edinburgh Secular Society were “shocked and exasperated”. (Their submissions can be read here.)
The other formula offered applied the Equality Network suggestion above to everything except religion, and kept the wording already agreed for that.
Stage 3 FoE amendments
Ahead of the forthcoming Stage 3 debate on 10 March, the Cabinet Secretary for Justice and opposition MSPs have now tabled a series of amendments on FoE. The full list of marshalled amendments can be read here.
The model now proposed by the Government in its Stage 3 amendment to the Bill is in effect the one produced by the Equality Network (amendment 11) at the 8 December meeting, except where bodies representing religion and race have successfully challenged their inclusion in the Equality Network’s preferred generic formula.
Labour MSP Johann Lamont has lodged a number of amendments relating to FoE, including the one below, which sets out a list of items that should not, by themselves, be considered “abusive or threatening”:
On 5 March, the Equality Network and Scottish Trans Alliance circulated a briefing to all MSPs, advising voting against this amendment for the following reason:
Policy capture in the Hate Crime Bill
We have previously documented how the views and demands of some interest groups are privileged over and above others in the policy making process, to the detriment of women.
We think that the same process of policy capture has been evident also in the passage of the Hate Crime Bill in relation to the freedom of expression amendments, where the imprint of particular groups seems clear.
It is also now more obvious than it has ever been that groups claiming to represent the trans community in Scotland believe that simply to assert that sex is a binary concept rooted in biology, to ask to be able to use plain language to describe this, or to contend that a person’s sex might be relevant to their life experiences is tantamount to an “attack on the fundamental rights” of trans people.
There could be no clearer demonstration that at the heart of the debate about sex and gender identity is an unresolved and unaddressed conflict over rights, and that within government, voices on one side of this conflict are listened to, to the absolute exclusion of those on the other.
We will discover this week if legislators also accept unquestioningly the view of those groups exclusively listened to by the Scottish Government. If so, Scotland now looks like an increasingly hostile place for anyone who believes it is ever important to have the freedom to see, name and discuss the relevance of sex.
 The Committee initially published 185 submissions in time for the roundtable evidence session, treating the remainder as unpublishable for various reasons. On further examination, they deemed a further 90 publishable.
 Engender describes itself as ‘Scotland’s feminist policy and advocacy organisation’. Like the Equality Network, Engender is almost wholly funded by the Scottish Government and is explicit that it is not a representative body in any sense, having stated “We neither ‘represent women and girls’, nor make any claim to” (Letter to Joan McAlpine MSP, 1 March 2019). On questions of sex and gender identity, Engender takes the same line as the Equality Network.