Questions in the Scottish Parliament: Hate Incidents (Recording)

Questions in the Scottish Parliament: Hate Incidents (Recording)

Extract from Question Time

1. Douglas Ross (Highlands and Islands) (Con)

I remind members that my wife is a serving officer with Police Scotland.

My colleague Murdo Fraser was the subject of a spurious complaint about a social media post that was critical of the Scottish National Party Government. He discovered that Police Scotland had recorded the complaint against him as a non-crime hate incident. No crime was committed, but he is now on the police record as a perceived offender in a supposed hate incident, despite never having been charged, tried, convicted or even informed that the police had a file on him.

How can it be right that innocent people are put on the police record when they have done nothing wrong?

The First Minister (Humza Yousaf)

I will try to provide some context on the issue that Douglas Ross raises. It is important that, when we talk about hate, hatred, hate crime or, indeed, the Hate Crime and Public Order (Scotland) Act 2021, we do so in a way that is not just considered but ensures that we stick to the facts.

First, we should remember that the recording of non-crime hate incidents came as a direct result of the Stephen Lawrence inquiry. It was contained in recommendations 12 to 17 of the Macpherson report. The recording of non-crime incidents has been around for many years.

Secondly, as well as having been around for many years, the recording of non-crime incidents is done for other incidents that do not meet a criminal threshold, such as domestic abuse incidents. I do not know whether Douglas Ross is suggesting that domestic abuse incidents should not be recorded if they do not meet a criminal threshold, or whether his views apply only in relation to hate crime.

Thirdly, I will be clear: the Hate Crime and Public Order (Scotland) Act 2021 is not yet in force, and nothing within it changes how hate crime or, indeed, a non-crime hate incident is recorded. I will make that point by quoting Professor James Chalmers, who is well known to members. He says that the recording of non-crime hate incidents

“is a long-standing feature of police practice. Communicating clearly just how little the Act changes is essential to avoid both undue fears about its impact and any attempts to abuse it.”

Lastly—I know that this is a substantial issue—notwithstanding what I have quoted, Police Scotland made it clear last year, and again recently because of press inquiries, that it will review how non-crime hate incidents are recorded, in cognisance of the changes that have been made in England and Wales.

I go back to the central point that I started with. There is far too much hatred in our society. We all accept that and we should all come together to help to tackle it. I urge the Conservatives in particular, notwithstanding Douglas Ross's legitimate questions, to come together in that effort to support the 2021 act and a zero-tolerance approach to hatred in our society.

Douglas Ross

We all have a zero-tolerance approach to hatred in society, but my question—which the First Minister took more than two minutes to try to answer—was whether innocent people should have a police record when they have done nothing wrong. It sounds from Humza Yousaf's answer that he believes that they should.

He said previously that the issue is about monitoring and about gathering data, but what will the value of that data be if, as we now see, individuals can put forward multiple complaints with little or no substance to them and data about those will be stored and recorded in the way that has been the case with Murdo Fraser?

That unacceptable incident is just the tip of the iceberg. The SNP's hate crime act will come into force in just a few days' time and could lead to more such cases. The controversial new law is ripe for abuse. In a letter to this Parliament's Criminal Justice Committee, the Association of Scottish Police Superintendents said that some individuals will

“seek to weaponise the new legislation and associated police investigation.”

Does Humza Yousaf agree with some of the most senior police officers in Scotland, and does he accept that this law could be weaponised?

The First Douglas Ross

Douglas Ross says that we all have a zero-tolerance approach to hate crime. However, when one takes money from a racist misogynist and then refuses to give it back, I am not entirely convinced that that is a zero-tolerance approach whatsoever.

On the issue of non-crime hate incidents, their impact and effect, and the purpose of their recording, I refer Douglas Ross to the chief constable, who was very clear at the Scottish Police Authority board meeting last week about the value of the recording of hate incidents. She said that:

“on recording and reporting hate incidents, they can and do give us a sense, initially, of community tensions. So they are useful to us in terms of engaging with communities, engaging with different groups in communities and being able to understand where there is potential for tensions to be raised.”

There is an understanding of the reasons and rationale why hate incidents are recorded. That is precisely why the Macpherson report recommended them in the first place around 25 years ago.

In relation to the hate crime act, we of course take seriously what is said by the Scottish Police Federation, ASPS and any other representative organisation that represents police officers.

However, it is incumbent on me to say that this act and the new offences in relation to stirring up are hugely important. Those stirring-up offences have existed in relation to racial hatred since 1986. We are simply extending those protections to other marginalised groups.

It is important for Douglas Ross to be honest and tell members in the chamber and the people of Scotland who it is that he thinks are not deserving of those protections, in the same way that I have been protected because of my race since 1986.

Douglas Ross

The problem is that people will not be protected if the police cannot do their job. We have had warnings, week after week, from officers on the front line, the Police Federation and now the Association of Scottish Police Superintendents. The line at the top of its letterhead says:

“representing the operational leaders of the police service in Scotland”.

It is giving as stark a warning as possible to this SNP Government that the act is flawed. It is not going to do what MSPs who supported it wanted it to do. Those warnings are being ignored by Humza Yousaf.

Let us see whether he will also ignore others. Katharina Kasper is the chair of the Scottish Police Authority's complaints and conduct committee. She said that an investigation itself

“can become a punishment which may have a chilling effect on the freedom of expression.”

Humza Yousaf has directed his comments today at me, as Conservative leader, and at the Conservative Party. What does he say to one of his most senior SNP MPs, Joanna Cherry KC? She said:

“for many, the process will be the punishment. Being under police investigation will be stressful, costly, damaging to reputations and could lead to problems in the workplace.”

The police should not be dispatched to people's doors to check their thinking. Does the First Minister not recognise the chilling effect that his law will have on free speech?

The First Minister

These issues were rehearsed last week, but I emphasise and reiterate to Douglas Ross that explicit protections for freedom of expression and freedom of speech are, of course, in the bill. In fact, there is a triple-lock protection, because, first, there is explicit reference in the bill to freedom of expression. That was a matter of compromise between the Government and members of the Opposition, which was a good example of how we do legislation in this Parliament. There is also, of course, a reasonable person defence in the legislation, and our legislation has to comply with the European convention on human rights and its important articles in relation to freedom of expression.

I have absolute faith in the police's ability to weed out vexatious complaints. Unfortunately, they have to deal with vexatious complaints across a whole range of legal matters and right across the legal landscape. I have absolute faith in the police's ability to address those issues in ways that are appropriate.

I go back to the central point that stirring-up offences are not new. They have existed since 1986—so for most of my entire life—therefore I have absolute confidence in Police Scotland's ability to police new stirring-up offences in ways that are appropriate.

I say again to Douglas Ross that his party, the Conservatives, supported the extension of stirring-up offences for England and Wales at Westminster. If they are okay to protect people in England and Wales, why are they not okay to protect people here in Scotland? If Douglas Ross believes in a zero-tolerance approach, and if he believes that someone who is Jewish, elderly, gay or disabled should be protected from behaviour that is threatening, abusive or intended to stir up hatred, why is he opposing the legislation? From my point of view, it certainly looks as though it is just for the sake of opposition.

Douglass Ross

Humza Yousaf can see absolutely no flaw in the legislation that he took through the Parliament, despite the overwhelming evidence that we are getting from front-line officers and many others. The hate crime act will come into force on April fool's day, but it is no joke. The Scottish Conservatives opposed it when it was passed and we still do.

The act is so flawed that, whatever its intentions, it is likely to create more division. Overworked and underresourced police officers will be forced to deal with hundreds of malicious complaints. Humza Yousaf's law could be weaponised against people with opposing views. Police investigations will tarnish the names of innocent people and could silence them. That law is overreach by the Scottish National Party. How long will it take before the hate crime act goes the same way as the legislation on named persons, offensive behaviour at football matches and gender recognition reform and every other flawed Scottish National Party law?

The First Minister

Not only am I proud of the Hate Crime and Public Order (Scotland) Act 2021; the entire Parliament should be proud of it. Every single political party came together to support that act, except the Scottish Conservatives. Why should members be proud of it? They should be proud of it because it was supported by a number of groups that represent some of the most marginalised people in our communities. The Scottish Council of Jewish Communities stated:

“We ... strongly support both the introduction of this new offence”—

that is, the stirring-up offence—

“and its application across all protected characteristics.”

Why is that important? It is important because Lord Bracadale, who led the independent review that helped us to develop the hate crime act, said:

“Stirring up of hatred may lead to violence or public disorder. It may incite people to commit offences such as assault”.

He called such conduct “morally wrong”, and he was absolutely right to do so.

The Hate Crime and Public Order (Scotland) Act 2021 contains provisions that protect people's right to freedom of expression. However, it also ensures that Scotland, the Parliament and this country send a message to people who are often the targets of hatred that we truly have a zero-tolerance approach. That is something that I am very proud of indeed.