SCOTLAND’S Justice Secretary has been accused of “undermining” free speech after he misspoke when setting out the legal threshold for new hate crime law proposals.
The Scottish Conservatives have called for a serious rethink of part two of the new hate crimes legislation after Justice Secretary Humza Yousaf, admitted to mistakenly misquoting it, claiming the error has inadvertently misrepresenting the legal test for criminality.
The part is now calling for the guidelines that will be given to the Crown Office and Procurator Fiscal Service (COPFS) regarding prosecution under this law to be published.
Mr Yousaf has apologised and corrected the mistake in the official Holyrood report.
In Holyrood, Mr Yousaf stated that part two of the Bill sets a “very high threshold” for criminality because “behaviour would have to be not only abusive and threatening but likely to stir up, or having the intention of stirring up, hatred.”
Conservative justice spokesperson, Liam Kerr, said: “I am pleased that the Justice Secretary has recognised the mistake he made in the Scottish Parliament.
“But I am disappointed that he still doesn’t appear to have recognised the consequences either of his misunderstanding nor his drafting.
“It is simply not good enough to say that the courts will decide where the threshold for criminality is.”
He added: “Without any case law relating to the new protected characteristics, there is no basis for judges to take those decisions until people find themselves in court having to prove their innocence.
“Mr Yousaf’s approach is effectively an underhand, insidious undermining of free speech. Mr Yousaf must now publish the guidelines that will be given to the COPFS.
“If part two of this bill is not completely reconsidered our most basic right to freedom of speech will be seriously undermined.”
But Mr Yousaf has completely refuted the claims by the Scottish Conservatives.
In a letter to Mr Kerr, he said: “It is correct I misspoke when addressing your colleague’s question, where I inadvertently referred to ‘threatening and abusive’ rather than ‘threatening or abusive”’ when describing the legal threshold for the stirring up of hatred offences contained in sections 3(2) and 5(2) of the Bill.
“A correction has been offered to the official report to reflect this.”
He added: “However, I do not share your view that the threshold used in the offence that behaviour must be ‘threatening or abusive’ constitutes a ‘low threshold of criminality’.
“Behaviour that is either threatening or abusive and intended or likely to stir up hatred in others can have a very damaging impact on those who experience it and indeed upon whole communities.
READ MORE: New Holyrood laws to make 'stirring up' racist and homophobic hate a crime
“Ultimately, if someone cannot offer strongly held views without doing so in a threatening or abusive manner where they also intend or it is likely that hatred will be stirred up by their actions, then the criminal law should be able to be used if necessary to protect people.
“Context of course will be key, including the likely audience and it will rightly be a matter for our independent courts to determine whether an offence has been committed on the basis of an independent, objective assessment of the available evidence.”
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