MSPs have voted by 82 to 32 to pass the Scottish Government’s controversial hate crime bill.
While the vote in Holyrood on Thursday means one of the most contentious proposals in the parliament's 22-year history is now law, the debate is almost certainly far from over.
While the government accepted some changes during an at-times heated final debate, most were rejected.
Two amendments designed to strengthen the protection of free speech were passed unanimously by MSPs. But another that would have included women as a protected group was defeated.
The Hate Crime and Public Order (Scotland) Bill consolidates a number of laws into one piece of legislation, but it also creates a new offence of stirring up hatred on the grounds of religion, sexual orientation, age, disability and transgender identity.
It’s this second part of the legislation that has sparked controversy.
Opening the debate in Holyrood on Wednesday, Justice Secretary Humza Yousaf said: “We must remember why this Bill is so necessary, every day in Scotland there are an estimated 18 hate crimes committed.
“The effects of these crimes are felt deeply by those targeted and this prejudice has a pernicious effect on the health of a society and its communities.
“Not only that, the toll hate crime takes on its victims and their families, is immense.
“Elected representatives have the opportunity to represent those people and groups targeted by hate crime by coming together and backing this legislative milestone which will ensure Scotland’s justice system can bring perpetrators to account and provide protection for individuals and communities harmed by hate crimes.”
Labour MSP Johann Lamont said her proposition on adding sex as an aggravator was “very simple.”
She said: “If the bill sends a message about the unacceptability of hate crime and offers protections to potential victims of hate crime, as it should do, we might reasonably expect that the group that suffers most as a consequence of hatred—women—would be included.
“Hatred of women is so commonplace that it is barely remarked on. A cursory glance at the news any day of the week will show it, not lurking but clear and brutal. Today, we saw a report that shows that the scale of the abuse of women across the world is massive and has not changed over time.
“Women being murdered by men who have gone on the rampage is upsetting but it is never a surprise. Men do these things; we know it. We see the tragedy and know that behind it is an angry man and a terrorised woman and her family. We see it in domestic abuse. We see it in crimes of sexual abuse. We see it in routine behaviour that means that, for women, whether we are walking or running in a park or going to work, anxiety about male violence is our constant companion, from our youth.”
She said the case for including women was “undisputable”,
Lamont said the Bill - which sets out that a person could be considered as transgender if they are “a person who cross-dresses” - offered “more protection to somebody who dresses as a woman in his spare time than it does to women.”
Yousaf has established a working group, led by Baroness Helena Kennedy to look at where there might be gaps in the law and to examine a stand-alone offence of misogyny. The peer will also examine the issue of the inclusion in the bill of a sex aggravator.
Lamont said: “It will take more than a working group to undo the damage that has been done today by the exclusion of women from hate crime legislation.”
There was support for an amendment put forward by Conservative MSP Adam Tomkins, who chairs Holyrood’s justice committee, which drew a distinction between causing offence, which he said should not be illegal, and threatening behaviours, which should.
Tomkins said: "If you want to argue, even if you want to campaign robustly for women's sex-based rights if you want to argue that sex is immutable if you want to argue that sex is binary, you are not committing a hate crime, even if someone else is offended or shocked or disturbed by what you have to say, even if someone else is very upset and accuses you of transphobia.
"You are not committing a hate crime unless you cross that threshold of saying something that is not only offensive but saying something that a reasonable person would hold to be threatening or abusive in a manner that intends to stir up hatred."
The Justice Secretary also proposed an amendment that said that "antipathy, dislike, ridicule or insult" of religions or those who hold religious beliefs would not by itself constitute threatening or abusive behaviour.
However, another amendment to introduce a statutory defence to allow people to air personal views, “however abhorrent others may consider them to be”, if they took place in a private space, such as their own house, was rejected.
Tomkins said: “One does not need to be a lawyer to understand that, in order to commit a public order offence, there needs to be a public element to what one does. One cannot commit riot in private, and nor should it be possible for someone to be convicted of stirring up hatred if what they have done occurred only in private and there was no public element to it”.
He added: “Let us imagine that I have a family gathering—a Friday night supper—at which my unreconstructed and somewhat embarrassing elderly uncle makes disparaging remarks about a same-sex couple and my somewhat oversensitive 15-year-old daughter, offended at what she has heard, tells her best friend about what has been discussed at my family dinner table.
“Her friend’s father is a police officer, and the next thing we know is that there is a knock at the door and my elderly uncle is under criminal investigation. Is that really where we want the hate crime bill to go? Do we really want it to deal with family dinner table conversations that take place only in private, with no public element at all? I do not think so, and the Justice Committee did not think so, either.”
Replying, Yousaf said: “Let us all be clear: the effects of behaviour that stirs up hatred can and will be felt well beyond the four walls of the private space or dwelling in which the behaviour occurred. There are potentially life-threatening implications for members of the targeted group if the incitement of acts of violence through threatening or abusive behaviour that is intended to stir up hatred are acted upon.
“I am firm in my view that if someone engages in a threatening or abusive behaviour or communication with the intention of stirring up hatred, the criminal law should be capable of addressing such conduct, regardless of where it occurs.”
From Holyrood here.