New hate crime legislation will be rewritten so that a controversial “stirring up hatred” offence will require proof of intent to be prosecuted.
Scotland’s new Hate Crime Bill, designed to streamline and strengthen existing hate crime laws, attracted a storm of protest over concerns about its potential impact on freedom of speech.
Announcing the climbdown to MSPs on Wednesday, justice secretary Humza Yousaf said he accepted there was a “perception” that the Bill as first drafted could be used to target “legitimate acts of expression”.
This, in turn, could have a chilling effect on free speech by causing self-censorship, he added.
The Hate Crime and Public Order (Scotland) Bill would if passed create an offence of “stirring up hatred” against protected groups, such as the disabled, ethnic and religious minorities and people in the LGBT community.
But in the initial draft plans, people could be prosecuted even if their actions were only deemed “likely” to stir up hatred.
It led critics to suggest such a policy could, as an example, have sent author JK Rowling to jail for expressing her concerns about the impact of trans rights on women.
A consultation about the plans by Holyrood’s justice committee received more than 2000 submissions, including around 150 from organisations.
Among the groups who had expressed misgivings about the previous proposals included The Law Society of Scotland, the Scottish Police Federation and the Catholic Church.
Under the revised plans, people will only be able to charged with a stirring up offence if the law can prove the person intended to stir up hatred against a protected group – as is the case in existing legislation for racial and religious hate crime.
The justice secretary has repeatedly said the new legislation is necessary to bring Scotland into the 21st century and avoid a “culture of acceptance” in the country on hate crime.
Criminal charges in all categories of hate crime rose in 2019-20, with religiously-aggravated crimes and those related to sexual orientation both increasing by 24%, while disability hate crime soared by 29%.
Yousaf said: “Confronting hate crime is central to building the safer, stronger and inclusive Scotland that we all want to see – free from hatred, prejudice, discrimination and bigotry.
“Our plans to legislate will ensure hate crime law is fit for the 21st century, giving sufficient protection to those who need it.
“I have listened to and reflected carefully on concerns raised over the Bill, particularly over the operation of the new stirring up hatred offences and concerns that these offences do not require that the accused intended to stir up hatred.
“I recognise that there is a real risk that if the offences don’t require intent to stir up hatred, people may self-censor their activities through a perception that the operation of this aspect of the offences may be used to prosecute what are entirely legitimate acts of expression.
“The Scottish Government will therefore lodge stage two amendments to the Bill to make the new stirring up hatred offences intent only.
He added: “I hope this fundamental change will provide necessary reassurance that the new stirring up hatred offences strike an appropriate balance between respecting freedom of expression while protecting those impacted by people who set out to stir up hatred in others.”
The Scottish Conservatives said the changes to the legislation do not go far enough and that the stirring up section of Bill must be taken out altogether.
Tory justice spokesman Liam Kerr said: “Humza Yousaf has not only failed to fix the problems – he has flat out refused to remove the stirring-up offences.
“The minor amendments do not go anywhere near far enough.
“The most controversial piece of legislation in Scottish Parliament history won’t be fixed by tinkering around the margins.
“Our fundamental right to freedom of speech remains under threat.”
The Liberal Democrats warned the amendments to the legislation are not “problem solved”.
Liam MacArthur, the party’s justice spokesman, added: “Scottish Liberal Democrats are ready to get behind legislation that would be forceful in confronting hate crime.
“But the ‘stirring up’ offences put forward by the Scottish Government led to serious, widespread and legitimate concerns about their impact on freedom of expression.”
“The statement today was a step in the right direction.”
Meanwhile, the Conservative justice committee convener Adam Tomkins said: “Feeling about the stirring up offences has been running high, and the Cabinet Secretary’s willingness to reflect on that and make changes is welcome.
“However, effective Bill scrutiny requires detail. The justice committee and its witnesses should know exactly what the government is proposing before it begins scrutiny.
“We would like to see the text of any proposed amendments as soon as possible, and I expect we will take up the Cabinet secretary’s offer to appear before us at the earliest opportunity.”