Ministers should "reconsider" the Hate Crime and Public Order (Scotland) Bill, according to the Faculty of Advocates in its submission to Holyrood's Justice Committee on the much criticised bill.
In its 35-page response, Faculty states that it supports the principles behind the Bill, and does not oppose the idea that hate crime legislation ought to be contained within a single statute. It agrees with many of the proposals made by Lord Bracadale in his Independent Review of Hate Crime Legislation in Scotland, on which the bill is based.
Faculty does, however, have concerns regarding "some potential unintended consequences" of the legislation, including certain aspects in which it departs from Lord Bracadale's report.
For example, it believes that the controversial inclusion of "insulting" as part of the behaviour covered by the stirring up racial hatred offence should be reversed. Lord Bracadale pointed out that a similar move had been made in England with "no notable impact on the ability to commence a prosecution", and Faculty agrees that the threshold should be "threatening or abusive" behaviour as with the other protected characteristics. It is also concerned at the omission, without explanation, of a defence in the legislation the bill is intended to replace.
Given that "behaviour" is otherwise defined very broadly, the result "appears to be a position where an individual may be prosecuted and convicted of an offence of stirring up hatred in circumstances where there was no intent to do so but rather a single comment, picture, personal or political viewpoint is communicated to one or more people... and such a communication is considered to be of material which is ‘insulting’ in relation to race or ‘abusive’ otherwise and ‘it is likely that hatred will be stirred up.’ The Faculty has concerns about the possible impact on freedom of expression arising from such a position".
It is also concerned about the effect on the performing arts, where again the inclusion of "insulting" is problematic. "Both traditional and more modern plays tackle controversial and often highly emotive subjects", it states. "The bill as presently drafted appears to the Faculty to have the potential to ‘catch’ a play in which a person with a particular characteristic is portrayed in a positive way, but the nature of the play requires to refer to abusive or insulting material and the result is it stirs up hatred against that group."
A further concern is the powers of entry and seizure, and "the scope created by the bill for extensive disruption to life and livelihood, and to the legitimate operations of businesses and institutions, by malicious complaint, generating the grant of a warrant under which electronic devices can be seized and retained for prolonged periods".
Concluding, Faculty states: "In light of the difficulties which exist with the current text, the Faculty considers that there is no alternative but to reconsider the draft Bill."