This session has just begun: https://www.scottishparliament.tv/channel/virtual-meeting-3 https://twitter.com/mbmpolicy/status/1328360648733040642

Panel 3 is beginning

Adam Tomkins MSP asks the panel for their views on the bill generally.

Lucy: we understand that there is only one amendment from SG: the removal of likelihood as a legal threshold. Minister has mentioned others but there is not yet any detail.

Lucy: we are worried about the long shadow that this legislation will cast. Those concerns still remain but good that the legal threshold will be changed to intent only.

Main concern is about Part 2 and the extent to which you extend stirring up offences. It is under scoped. Too much work still to be done to make it work safely round freedom of expression. Model in England and Wales is worth looking at.

Becky Kaufmann: we broadly support the Minister's proposed amendment to intent only. We are fairly comfortable that the ability to prosecute something based on evidence that someone intended to stir up hatred is an appropriate and useful threshold.

Thinks that is an appropriate protection for freedom of expression.

Claire Graham: reservations about who defines what is hatred for people who are intersex and impact on FoE to "talk about ourselves". Issue for us is FoE and how that will affect education regarding differences of sex development (DSD).

Paul Dutton: we are broadly supportive of the amendment. There has to be intent shown as opposed to merely a likelihood. That's an improvement on the bill. No further comment on that.

Rona Mackay MSP: would like to ask about the different approach to hate crime on basis of race. Do you think differential treatment is right? Does it create hierarchy of protected characteristics?

Claire Graham: not really relevant to dsdfamilies. MSPs should listen to witnesses from previous panel.

Paul Dutton: my main concern is that VSC is included. If race accounts for majority of reports, probably requires higher profile but should include other characteristics.

Lucy: race has a much longer history here. You can see why race is treated differently. Justifiable to treat racial hatred differently.

Becky: broadly support consolidation. Recognise historically marginalised groups are not homogenous. Race organisation eloquently explained why strucuture round race is appropriate.

We are strong in our belief we don't want to see anything in this law that would either be an actual or perceived rolling back of protections that any community had in the past.

Public confidence in hate crime is really important.

Liam McArthur MSP: wants to ask Lucy about broader concerns about Part 2. You are on record suggesting provisions as a whole are not necessary in a sense that approach in England and Wales provide more of a blueprint.

Lucy: the fundamental principle we think is important. Quotes Lord Bracadale. There must be a consensus around what is hateful. We suggest on some characteristics it's very far from clear there is anything like a public consensus. So very problematic to legislate in that context.

Reason to look at E&W: legislation has been taken forward that has protections for FoE. Parliament needs to know what it is it thinks people are not able to say. Training is not sufficient. What counts as stirring up hate?

Liam: when you try itemise what you are trying to protect, the question is in the absence of social consensus how do you try to grab a hold of it? So it's clear to public, prosecutors, police.

Lucy: in absence of social consensus, you should not legislate.

Adam Tomkins: stirring up racial hatred put in statute book in 1960s. Do we really think there was social consensus in 1960s about race relations? Was Parliament trying to reshape society so there could become consensus?

Lucy: what is the nature of the fractured consensus? On gender identity, things regarded as being hateful or transphobic, how we use the word woman and man: these are fundamental points. The nature of the dispute seems different than race in the 1960s.

The argument is about how we can describe what's real. That underpins this debate on gender identity. Not saying no role for politics in giving a lead. Would not want to give that impression.

Becky: it's really important that we focus on tiny subset of behaviour that is criminal. We would never support that would put a dampner on discussions.

Society in E&W is currently reviewing hate crime laws. We submitted supplementary evidence to say a broad based approach to reassuring the public. The legal thresholds are rightfully very very high. For behaviour to be criminal one would have to cross those thresholds.

I've been subject to debate that has been very uncomfortable but I would not encourage that to be criminal.

Paul Dutton: we all understand that there some limitations to our FoE. Lot of reference to 'reasonable' person in legislation in E&W. We need to re-educate people that these behaviours are unacceptable.

Claire Graham: we have no clear understanding of what 'intersex' is. Cites SG own equality pages. Their own definition might be regarded as hateful. If we don't understand terms, how do we know what hateful behaviour looks like. No clear definition. No-one has addressed so far.

Shona Robison MSP: want to focus on element in the bill the general defence of reasonable behaviour. A lot of evidence to Committee that those provisions need to be strengthened.

Lucy: for an ordinary member of the public not very straightforwardly worded. Model in E&W provides helpful approach on FoE issue. Generic protections are very hard here. Must strengthen FoE protections.

Claire: VSCs are so badly understood. Oftentimes people might say things just because they don't know and how do we judge what is reasonable. And how decides what is offensive.

If people have misconceptions on VSCs, we need to be able to educate people. How would a reasonable person on the street be able to judge that?

There is so little information out there. It is a badly understood demographic.

Becky: we lose sight of the fundamental reason why we have hate crime legislation. It's about categorising the sorts of prejudice that lead people to commit these crimes. Must frame in way we don't create loopholes. Reasonable defence is well established in law.

Paul: a reasonable person does not need a huge knowledge of intersex of VSC. Ignore of the law is not a defence. The reasonable person should know their behaviour in society has to meet certain standards.

If I set out to bully or humiliate somebody because of what they look like because they don't meet my standard of what is male or female, that is not the behaviour of a reasonable person.

Claire: no consensus within intersex groups about how we describe ourselves. If we can't agree as the group being talked about what is meant, how is that going to be interpreted by other people?

Paul: KSA works and collaborates with a vast number of VSC organisations. Many only talk about their condition by name: intersex, VSCs. We can't list 40 odd different conditions in legislation. We need an umbrella term.

Some medics use DSD meaning 'disorder' of sex development and many of us don't like this term.

Lucy: we are talking about the reasonableness of the content of your speech. The limitation of this defence is if you don't agree on what is hateful.

Adam: we need to bear in mind that reasonableness does not speak to offensiveness. We asked Cabinet Secretary whether he accepted right to speak included right to speak offensively. Level of criminality is threatening and abusive.

Liam Kerr: question to Lucy. Even if no prosecution, this law could lead a writer to self-censor. Do you think that is a danger as Part 2 is drafted currently?

Lucy: would want to reinforce John McLellan's evidence on the chilling effects. People who are likely to be prosecuted will have met high thresholds. It's the long shadow that it will cast: the fear of investigation.

Recounts MBM experience of publishing academic paper on women's rights. Near point of publication, Edinburgh University Press tried to prevent publication. If this bill existed the publisher would have had trailed in front of them a law like this.

The side effects on behaviour are very important here. Michael Clancy of Law Society referred to hate speech. Already a shading of the way of what's legally proposed is discussed.

Training of police and prosecutors is of limited use. Similar points made by Calum Steele and religious belief panel. Cites stickers at Edinburgh University saying 'woman: adult human female': Scottish Trans Alliance encouraged people to refer them to police as a hate incident.

Becky: premise of this question presumes existence of power relationship that does not exist. Power rests with police and prosecutors. Just because victim thinks there has been a hate crime, they cannot determine whether it is prosecuted.

We have very clear statistics that hate crime is massively under-reported. It does not capture majority of behaviour. New law unlikely to capture much more of this behaviour either. Creating theoretical bogeyman.

It is downright absurd. The practical reality is people don't report hate crime, and hate crime law does not protect people from really distressing and harmful behaviour.

Adam: this conversation between Lucy and Becky goes to the heart of this bill. Asks about article by MBM that EUP tried to stop being published. How is that a reasonable interpretation of this bill?

Lucy: as John McLellan explained it's the fear of a criminal prosecution, people will go a long way to avoid being caught up in a police investigation. Not about who is going to end up being prosecuted.

Both Colin Macfarlane and Tim Hopkins noted that people will come forward to test a new law. When you start getting into broader concept of stirring up, it will have to be established in law.

There is not a strong consensus about where the line is drawn about what is reasonable.

Paul: if it is a measure of our society how we look after minorities, must not avoid creating protections if it prevents some academic publications. Protection of minorities is a greater thing.

Becky: STA was not approached nor gave advice on whether the stickers mentioned should be referred to the police.

John Finnie MSP: does anyone disagree with statutory aggravations as a model? No witness does.

Could STA comment on disaggregation of protected characteristic in terms of collecting data?

Becky: need a broad picture of where hate crimes take place. Police Scotland does not have a particularly efficient method of collating, reporting and disaggregated data that is useful to equalities organisations.

John: if you have no confidence in data currently, how do you know there is under-reporting?

Becky: our own work has sought views of LGBT groups. Most troubling statistic: 71% of respondents to our survey said victims did not go to the police.

Less than 30 years ago that police were in opposition to LGBT communities. Fundamental need to improve level of trust in police amongst trans community.

Criminal legal system sometimes gets things wrong.

John asking about statutory aggravations and transparency in sentencing.

Paul: there are not stats on how often we report crimes that relate to ourselves as people. Would like to think if these things reach public domain in courts there will be some degree of understanding in the community these behaviours are unacceptable.

Annabelle Ewing MSP: wants to ask Claire about VSC issue. Could Claire explain about why she feels that VSC should not be included in bill.

Claire: no clear definition of VSC or strong evidence base that it needs to be included as a separate characteristic. Equality Network did a survey of LGBT and included 17 intersex people. Only five people said they had been victim of hate crime based on intersex status.

VSC very broad term and don't think it will necessarily protect people it is set out to protect. Could be covered by other characteristic, e.g. disability (if a visible condition).

Annabelle: what disadvantage is there in including it?

Claire: there is an issue with how within the intersex community there is no consensus in how it should be spoken about. It could end up being policed either way in a way it makes it difficult for people with DSD who want to talk about their bodies.

Annabelle: do you feel you have had chance to make your points with SG?

Claire: no, not really. We were left out of consultation in lead up to this. When we talk to SG intersex is taken as political identity and we are directed towards inclusion. Needs to be seen as healthcare issue. None of this will address that for us. Not addressing our needs.

Paul: I disagree with dsdfamilies. I think there is a clear definition of intersex or VSC by UN Commissioner for Human Rights. A persuasive definition. KSA collaborate with many other support groups. There are over 40 different conditions.

We think it is not just a healthcare issue, but also a social issue. We all have to operate in a social world. We have suffered discrimination in schools, colleges, military, workplaces. Politics is about citizens. We operate in those areas.

Lucy: defers to other panel members on VSC/DSD terminology. Inclusion raises another issue that this is a physical biological state. Why are this group in particular included but not others with other physical conditions, e.g. a facial disfigurement?

What is the evidence base for inclusion of this one group?

Annabelle: asking about the non-inclusion of sex as a protected characteristic. Are there any views on that?

Lucy: Tim Hopkins said it is very important that people who see themselves in this bill. But of course sex is not included as a characteristic in this bill. Women in public life receive much more abuse on basis of their sex.

Dear Haters SG campaign did not include women. A visible omission. The more characteristics you include the more obvious the exclusions are. Strong symbolic quality to hate crime I do not dispute and women are not seen in this bill.

Arguments against including sex are not clear and compelling. Working group on misogyny is well and good but will likely take a long time. Unless someone can demonstrate why it would be harmful to include sex, we think there is a strong argument to include.

Notes witness on faith group panel Isobel who spoke about intersection between experience of hatred towards Muslim of women.

Should be a way round the concerns about potential clash with crimes of domestic abuse. Signal of leaving sex out is important.

Paul: I have some sympathy with Lucy on inclusion of sex. People who have bad behaviour around intersex people is often perceived feminine behaviour in people who largely appear to be male. May be some issue with sex and what males and females look like.

Becky: while we broadly support the consolidation and degree of uniformity on hate crime, a variety of groups that experience negative behaviour don't do so uniformly. Engender, SWA and RCS have done many many years of research. STA have not done that research.

STA would like to see that conversation play out as a large number of women's organisations do have a range of opinions. We would support any approach that provided increased protection for women in society.

Fulton MacGregor MSP: have they any concerns about how the characteristics have been defined and are there any others that could be added?

Lucy: example of homeless people, who are not covered. But other groups. We mention the alternative models that have been used in New Zealand and others. You start with a list and leave it open-ended and say that it's about difference.

The NZ model offers a more open-ended way of thinking about this. Does not tie you into one set of characteristics. Hope the committee would have a look at that and scope for that being an alternative. Aware of implications for data collection, though.

Claire: VSCs is not a common term with people with DSD. Not sure they'd recognise themselves in that definition. Picks up on Paul's point about including sex as a way of protecting people with DSD.

Paul: does not agree. Once you are listed in legislation you get statistics based on that and reports of crime and you can then be included in equality legislation. Something of a blank for people like us.

James Kelly MSP: are there other measures that need to be taken to give greater support of victims of hate crime?

Claire: we don't have much experience in dsdfamilies as it does not seem to be something that is commonly report by those we work with. Extra support for people with DSD always welcome, generally.

Paul: it's very important to have psychological support.

Adam Tomkins MSP thanks all the witnesses for the way in which they have helped the committee understand the human implications of the bill. Session on hate crime bill ends.