Submission to Justice Committee on Hate Crime and Public Order (Scotland) Bill freedom of expression amendments
Freedom of expression options to Hate Crime and Public Order (Scotland) Bill
1. My name is Scott Wortley. I am a lecturer in law at the University of Edinburgh and have a particular interest in issues relating to legislation and statutory interpretation.
2. I note the proposals which have been put to the committee by the Justice Secretary and just wanted to note some observations on the provisions. I have three general issues for consideration by the committee: (a) thinking about the audience for legislation and the implications that identification of the audience has for what appears in the text of the bill; (b) wider definitions of hate speech used in some context and the implications this has for what appears in the text of the bill; and © the application of general principles of statutory interpretation has particular impact on options 1 and 2.
Point (a) — Audience
3. In his introduction to Drafting Matters! the document which publishes the internal guidance of Parliamentary Counsel Office for drafting legislation in Scotland Chief Parliamentary Counsel, Andy Beattie, writes:
“It is now easier than ever to access legislation, with statutes most commonly searched for and read online. There has been an explosion in the numbers and types of people seeking out the law in its raw state and a corresponding onus on drafters to make it easier to navigate and read.”
4. The general accessibility of legislation to the public is something that needs to be borne in mind when considering the wording of legislation. In the past legislation was not readily accessible to the public and a lawyer would often act as a mediator or translator between legislation and the public. As a result some used to argue that legislation should be drafted for lawyers. Legislation used to be published only in paper volumes but is now published on the https://www.legislation.gov.uk/ website with amendments and changes to other legislation given effect on that website. This website is readily accessible to the public. And the increased use of online publication has, as Chief Parliamentary Counsel notes, been accompanied by a move to make the content of legislation itself more accessible.
5. But it has long been the case that the judiciary has been of the view that legislation should not be written for lawyers, or read as if it was written for lawyers. Legislation should be written for those affected by it. And when the legislation creates criminal offences and defences it is important that the legislation clearly sets out the conduct that will be criminal and clearly sets out what is acceptable.
6. The judicial view is summarized by Lord Diplock in Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenberg AG  AC 591, at p 638. He said,
“The acceptance of the rule of law as a constitutional principle requires that a citizen, before committing himself to any course of action, should be able to know in advance what are the legal consequences that will flow from it. Where those consequences are regulated by a statute the source of that knowledge is what the statute says. In construing it the court must give effect to what the words of the statute would be reasonably understood to mean by those whose conduct it regulates.”
7. In the view of Lord Diplock legislation is interpreted as if drafted in a way in which it is comprehensible to the people that the legislation will actually directly affect, that is the public. This matters in the language of legislation generally, and it matters in particular for the content of the Hate Crime and Public Order (Scotland) Bill which is currently being discussed by the Justice Committee.
8. The Hate Crime and Public Order (Scotland) Bill will when enacted criminalise certain instances of conduct and speech. The provisions being discussed at the meeting on 22nd February provide defences to this. These provisions relate to freedom of expression, which is protected by Article 10 of the European Convention on Human Rights (ECHR). Some may be of the view that given the background position that all legislation applicable in Scotland is to be interpreted in accordance with the ECHR that no provision is necessary. Some may think that a provision should merely replicate the terms of Article 10 of the ECHR on the basis that this will plug in to the case authority from the European Court of Human Rights in Strasbourg. This, though, would undermine the broad objective of accessibility to the public. Given the broad objective of ensuring legislation, particularly criminal legislation, is accessible to the public it would seem reasonable to have clarity in the defence. And that means using language which will be clear to the public.
9. This awareness of the audience for legislation underlies the way in which legislation will be interpreted. The overriding approach to interpretation is that ordinary words will be given their ordinary meaning. This means, in considering the proposed amendments, to think about the ordinary meanings of “criticism” and “discussion”, the common words through the options, Is the use of criticism and discussion intended only to cover reasoned analysis and debate, which would be an ordinary meaning of the words. Does this suggest the defence would only apply where the comments were substantial? Or is it intended that a one line criticism be covered?
(b) — Wider definitions of hatred and implications for the defences
10. The framing of the freedom of expression defence is partly dependent on the nature of the criminal conduct as set out in section 3 of the bill (as amended at stage 2). The offences at the moment refer to stirring up hatred. And this is to be defined by a reasonable person test — which will assess this objectively.
11. One thing which has happened in recent years is the way in which certain examples of speech are characterized as hate speech. The most obvious example relates to certain statements or policies adopted in relation to the protected characteristic of gender reassignment in the Equality Act 2010.
12. For example, the Liberal Democrats adopted a definition of transphobia in the context of objections to reform of the Gender Recognition Act 2004. Breach of this potentially initiates disciplinary proceedings within their party. Various examples of transphobia are given in their statement including misgendering and the promotion of policies relating to the segregation of facilities. A look at social media would indicate that some view transphobia (so widely defined) as hate speech, and indeed some would support wider definitions. But this wide definition includes examples which the law expressly provides permits. The Equality Act 2010, Sch 3, paras 27 and 28 allow a service to exclude a transperson, even a transperson with a gender recognition certificate, from certain single sex services. The Gender Recognition Act 2004, section 9 (3) provides that a gender recognition certificate does not apply for all purposes and will not apply where legislation provides otherwise (which includes in sports for example — Gender Recognition Act 2004, s 19.and Equality Act 2010, s 195 where a gender recognition certificate for example does not give a transperson an automatic right to compete). These legislative exceptions look like contravening the Liberal Democrats transphobia policy, and supporting the retention of the current law would appear to contravene that policy.
13. A similar document on transphobia which had been published by the University of Edinburgh was recently referred before the House of Commons Women and Equalities Committee Reform of the Gender Recognition Act. During her evidence Naomi Cunningham, a barrister noted,
“There is a worrying trend to define transphobia so widely that it includes any dissent from the view that trans women are literally women and trans men are literally men, et cetera, any defence of the single-sex exceptions, or any opposition to a change in the law to bring in self-identification. These are — obviously, I would suggest — matters that profoundly concern women and their rights, their dignity and their safety, including their article 8 privacy rights. It is very troubling that there is this trend towards giving transphobia a much wider definition than what we would all be opposed to: hatred of, or hostility towards, trans people or people with the protected characteristic of gender reassignment.
“In this context, it is particularly important to remember that the gender critical position is fundamentally a defence of the law as it currently is. It is quite astonishing, and unprecedented in my experience, for it to be seriously suggested that saying, “We shouldn’t change the law; the law as it is is okay,” should be put beyond the pale of civilised conversation and dispute. That is quite an extraordinary state of affairs. I think it is important to notice that. That is the threat to freedom of speech that we are concerned about.
“A case in point is that — I do not know whether any of you noticed — there was a little flurry of controversy recently about the definition of transphobia that Edinburgh University had put on its website, with exactly what status it was not wholly clear. That has now been taken down, but it was that wide. It effectively said that any dissent from the view that “Trans women are women, and trans men are men — this is literally the case,” and any opposition to self-ID and so on was transphobic. That was in a university’s policy. How does that fit with academic freedom or freedom of speech?”
14. Noting that support of the current law is viewed as transphobic by some, and consequently is viewed as hateful by some, is worrying. When that is potentially accompanied with what may be viewed as hateful speech being criminalised it is chilling. I worry that it is not enough to say that the objective reasonable person test in s 3 is enough to stop the impact on speech. The existence of the criminal element potentially opens provisions to abuse. Therefore, when some are adopting a position that support of the current law is transphobic and in the view of some hateful, or capable of stirring up hatred, this puts a premium on the importance of the defence and its clarity for the public. Is a criticism or discussion defence sufficient to safeguard someone who supports or states existing law?
© — principles of statutory interpretation and impact on evaluating the options
15. In the interpretation of legislation it is important to read provisions in context. The context of the provision helps determine meaning. So no individual paragraph within a subsection or subsection within a section, or section within a bill is to be viewed in isolation. Its meaning is informed by the rest of the legislation.
16. And while the background law legislation is made against is relevant in determining context what matters most importantly is what the legislation actually says. Sometimes I am aware that ministers occasionally make statements in the Parliament during the debate on a bill and suggest that a provision may have a particular meaning. While reference to ministerial statements is occasionally permitted in interpreting legislation the instances of the court actually allowing this in Scotland are rare and only arise when the provision is ambiguous and in recent cases even where overturning previous decisions which decided differently the court is loath to decide that legislation is ambiguous requiring reference to ministerial statements. It is important then that the wording of the legislation on the face of the legislation matters. A ministerial assurance given during debate on meaning only has minimal value in determining how the legislation will be interpreted. The wording of the legislation takes priority when legislation ultimately comes before the courts, and in interpreting that wording it is necessary to remember the main principle that ordinary words will be given their natural or ordinary meaning
17. But as noted the context of the legislation matters and Option 1 and Option 2 give examples where that context sheds light on the meaning of other provisions.
18. In legislation when interpreted it is presumed that all statutory language used in legislation means something, and that language and punctuation is used correctly and exactly. And in the use of language there are certain presumptions which the courts apply.
19. For the purpose of considering these options the key principle of language is referred to by the courts as Expressio unius est exclusio alterius which translates as the mention of one thing is to the exclusion of all others. It is easier to explain this with an illustration. So, where legislation sets out what is included within a provision it is presumed that the omission of others is deliberate and they are not covered. An example can be seen in road traffic law and emergency vehicles. It was provided in section 79 of the Road Traffic Regulation Act 1967 that fire engines and ambulances did not have to abide by the speed limit in an emergency, but no similar exception was provided for traffic lights. So in 1971 when a case came to court it was decided that the omission of emergency vehicles from the rules requiring vehicles to stop when signalled at traffic lights was deliberate, and fire engines and ambulances required to comply with red lights. Including a provision expressly in one part of the legislation can be read as meaning it is deliberately omitted in another.
20. This has relevance for Option 1 and Option 2 of the proposed amendments put forward. Both options provide a distinct treatment for religion. So while there is a freedom of expression defence to allow discussion and criticism of the majority of characteristics ((i) age, (ii) disability, (iii) race, colour, nationality (including citizenship), or ethnic or national origins, (iv) sexual orientation, (v) transgender identity, (vi) variations in sex characteristics, with (iii) omitted in Option 2) for religion the freedom of expression defence would cover discussion, criticism, as well as expressions of antipathy, dislike, ridicule or insult. The effect of the expressio unius principle is though that this means that the freedom of expression exception as applicable to every other characteristic. Expressions of antipathy, dislike, ridicule, or insult in relation to age, disability, sexual orientation, race, transgender identity or variations in sex characteristics would never amount to a defence under the freedom of expression. Why is religion treated differently? And why is the ability to ridicule excluded in relation to all characteristics?
21. The consequence of Options 1 and 2 would be that the freedom of expression exclusion would not give a defence to stand up comedians performing routines in relation to any protected characteristic apart from religion. This may be the desired outcome for MSPs in relation to these offences. But doing so should be something addressed overtly and explicitly in debate rather than as a consequence of the application of a principle of legislative interpretation based on a rule of language.
22. I note also in each of the options the use of the word solely. As noted above in legislative language the presumption is that words are used deliberately and with precision. This indicates that the freedom of expression defence is limited in its application where there are other factors at issue. Given the potential for abuse of the offence with claims that there is hate speech the use of the word solely therefore gives limited protection with this defence. Would the word primarily or mainly better suit the purpose of protecting free expression?
21 February 2021
 Parliamentary Counsel Office, Drafting Matters! (2nd edn, 2018) https://www.gov.scot/binaries/content/documents/govscot/publications/advice-and-guidance/2018/12/drafting-matters/documents/00543712-pdf/00543712-pdf/govscot%3Adocument/00543712.pdf?forceDownload=true p xi. Accessibility is also stressed elsewhere in the document (see, for example, pp xiii, and 1–6)
 For example, FAR Bennion, in Understanding common law legislation (2001) pp 69–71.
 Human Rights Act 1998, s 3
 See, for example, Cross, Statutory Interpretation (3rd edn, 1995 ed by Bell and Engle) at p 49.
 Select committee meeting on 10th February 2021 https://committees.parliament.uk/event/3670/formal-meeting-oral-evidence-session/
 Eg R v Secretary of State for the Environment ex p Spath Holme td (2001) 2 AC 349, at p 397 (Per Lord Oliver)
 The earliest example I can find in the Scottish Parliament is here https://www.parliament.scot/parliamentarybusiness/28862.aspx?r=4223&i=27714&c=722047&s=!!Pepper%20v%20Hart!!
 Pepper v Hart  AC 593, at p 640 (per Lord Browne Wilkinson) sets out the limitations as to when this is permitted. The case applies in Scotland, see, for example, MacMillan v T Leith developments Ltd  CSIH 23.
 MacMillan v T Leith developments Ltd  CSIH 23. While Lord Drummond Young would have allowed reference to ministerial statement based on the ambiguity of the legislation the Lord President held that the legislation was clear.
 “effect must be given if possible to all the words used for the Legislature is deemed not to waste its words or to say anything in vain”: Quebec Railway, Light, Heat, and Power Co Ltd v Vandry  AC 662 at p 676 (per Lord Sumner).
 Spillers Ltd v Cardiff (Borough) Assessment Committee  2 KB 21, at p 43 (per Lord Hewart, Lord Chief Justice).
 For all of the rules see Bennion, Bailey and Norbury on Statutory Interpretation (8th edn, 2020) ch 23.
 The case was Buckoke v Greater London Council  1 Ch 655 (discussed in Bennion, Bailey and Norbury on Statutory Interpretation (8th edn, 2020) at para 23.13).