The Scottish Justice Secretary has tabled a number of encouraging amendments to the Scottish Government’s hate crime Bill.
Late last year, Humza Yousaf conceded that a number of changes would have to be made to the controversial Bill.
Liam Kerr, justice spokesman for the Scottish Conservatives, also tabled several amendments to the Bill to expand free speech protections.
Transgender free speech
Among Yousaf’s amendments is the creation of a free speech clause on the issue of transgenderism. This will help protect people who criticise radical gender ideology from facing criminal investigation.
The amendment states: “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 rule will define ‘transgender identity’ as applying to those who live as if a member of the opposite sex, those who say they are neither male nor female, and those who cross-dress.
Following pressure, Yousaf also proposed an amendment which would strengthen religious free speech protections, giving people greater freedom to criticise religious or non-religious viewpoints without fear of prosecution.
Concerns had also been raised about the Bill’s reference to criminalising those in possession of ‘inflammatory materials’.
Critics of the Bill argued this could have included the Bible, and the Convener of Atheist Scotland said he would try to use it to silence Christian ministers. A new Government-backed amendment will remove this section of the Bill entirely.
Critics, such as the Institute-backed Free to Disagree campaign, also argued that the Bill’s use of the word ‘abusive’ was too broad called for it to be removed.
Yousaf’s amendment on this point would see a new test added, so that words or behaviour could only be defined as ‘abusive’ if a ‘reasonable person’ would believe it to be the case.
This means a complainant will no longer be the sole determiner of what constitutes ‘abusive’.
However, the Justice Secretary has repeatedly refused to include a ‘dwelling defence’ to make private conversations in the home exempt from prosecutions. Conservative Justice spokesman Liam Kerr, however, has tabled an amendment to insert the defence.
Kerr is also proposing amendments to extend the free speech clause on sexual orientation to include discussion of marriage.
If passed, criticism of same-sex marriage or asserting that marriage is the union of one man and one woman would be protected.
Kerr has also tabled an amendment requiring senior prosecutors to sign off on any new prosecutions, a safeguard found in parallel stirring up laws in England, Wales and Northern Ireland.
The Christian Institute’s Simon Calvert was “encouraged” by the Scottish Government’s amendments, saying: “These are all changes we have called for and they certainly go some way towards allaying concerns that people have about the stirring up hatred offences.
“Strengthening the free speech clause on religion, and introducing one on transgender issues, is particularly important. As is the removal of provisions on ‘inflammatory materials’ which could have caught the Bible.
“But the free speech clause on sexual orientation needs to be expanded to cover discussion of same-sex marriage, and a defence is needed to protect private conversations against unwarranted police intrusion.
“Requiring senior prosecutors to re-examine cases before they proceed would also help weed out prosecutions that damage freedom of speech.”