Scottish Parliament, 17 April 2024

306 contributions from 65 members. The official report.

Portfolio Question Time

Liam McArthur (Liberal Democrat, Orkney Islands)

Good afternoon. The first item of business is portfolio question time, and the first portfolio is rural affairs, land reform and islands. I remind members that, as questions 2 and 6 have been grouped together, I will take any supplementaries to those questions after both have been answered. Members who wish to ask a supplementary question should press their request-to-speak button during the relevant question.

Willie Rennie (Liberal Democrat, North East Fife)

To ask the Scottish Government whether it will provide an update on what new financial support will be available to farmers and land managers to manage water, including to prevent flooding of homes. (S6O-03292)

Jim Fairlie (Scottish National Party, Perthshire South and Kinross-shire)

Improving resilience to flooding is a priority for the Scottish Government, which is why we promised to address the issue in our programme for government. Consequently, on 23 April, along with Ms Slater, I will host a round table on water resource, to discuss with stakeholders and individuals how we mitigate and adapt to climate change and the impact of extreme weather events on Scottish agriculture.

In response to storm Babet last year, we provided grants of up to £30,000 to farmers and land managers to help them to repair damaged flood banks. Support is also available to farmers and land managers through the agri-environment climate scheme. Since 2015, the grant that has been issued for options that support the management of water has amounted to £8.1 million.

In addition, we are supporting local authorities with £42 million a year—£150 million over the parliamentary session—to invest in improved flood resilience for local communities, and we will be consulting on a flooding resilience strategy.

Willie Rennie (Liberal Democrat, North East Fife)

All of what the Government is doing is incredibly slow, and none of the money from the agriculture budget that the minister referred to is to do with flooding. All of it is to do with water scarcity and riverbank management, which is not to do with flooding.

For a long time, a wealth of evidence has existed on managing waterways and managing the land. What practical measures will come out of the meeting on 23 April that the minister mentioned? Where are the river catchment management plans? Where are the grants? Where is the clear guidance? Farmers need such guidance in order to better manage their land.

Jim Fairlie (Scottish National Party, Perthshire South and Kinross-shire)

We will discuss all those issues at the flood forum, as I have already mentioned.

I say to Willie Rennie that we are in a season that has been absolutely horrendous for the farming community—this spring has been brutal. If you do not mind, Presiding Officer, I will make a couple of points. I ask members of the farming community to please stay connected and talk to friends and family. Farmers’ mental health is at its lowest ebb at the moment, as a result of a lack of sleep, very long and tiring hours, and nature doing its damnedest to test every nerve and sinew.

I am well acquainted with that feeling, which is why, at the weekend, I went to help a friend in a lambing shed—not with the physical work aspect, but to make sure that he had someone else to talk to. We understand that flooding issues are a problem, but we are tackling them and doing everything that we can to give the farming community mental health support.

Liam McArthur (Liberal Democrat, Orkney Islands)

I will allow a couple of supplementaries, which will need to be brief, as will the responses.

Elena Whitham (Scottish National Party, Carrick, Cumnock and Doon Valley)

It is clear that dealing with the impact of flooding and adverse weather is challenging. It is affecting lambing and crop sowing and growth, and it is taking its toll on animals and people, including those in my constituency of Carrick, Cumnock and Doon Valley. What advice and support can the minister offer to farmers and crofters, who are enduring one of the most difficult springs that we have experienced? Given how important land management and flooding are, will he undertake to come back to the chamber to inform members of the outputs from the meeting that he mentioned in his answer to Willie Rennie?

Jim Fairlie (Scottish National Party, Perthshire South and Kinross-shire)

Absolutely—I commit to coming back to the chamber and setting out the outcomes.

I reiterate to my colleague Elena Whitham that, as I said to Willie Rennie, things are really tough at the moment. If people are finding it hard and they need someone else to talk to about the problems that they are facing, I would direct them to the RSABI, which does amazing work in keeping folk’s spirits up and giving practical help and advice on most situations. Its support is available seven days a week, 24 hours a day. People should not feel as though they are on their own, because there is help out there.

Rachael Hamilton (Conservative, Ettrick, Roxburgh and Berwickshire)

When it comes to supporting farmers and landowners to protect riverbanks, the Scottish forestry grant scheme falls way short of England’s woodland creation offer. Just over the border from my constituency, uplift payments for riparian buffers are £2,500, whereas in Scotland, they are just £230.

If, as you say, minister, your Scottish National Party Government takes flood mitigation and prevention seriously, why are you short changing people and scrimping on schemes that support people to do exactly that?

Liam McArthur (Liberal Democrat, Orkney Islands)

Through the chair, please, Ms Hamilton.

Jim Fairlie (Scottish National Party, Perthshire South and Kinross-shire)

The Government has increased the fund. I am happy to come back to the member with the detail later.

Emma Harper (Scottish National Party, South Scotland)

To ask the Scottish Government what action it can take to reiterate the harms caused to both livestock and farmers by livestock worrying. (S6O-03293)

Jim Fairlie (Scottish National Party, Perthshire South and Kinross-shire)

The Scottish Government recognises the distress and the serious welfare and financial implications that livestock worrying causes. We continue to consider education a key factor in reducing the number of incidents. The campaigns that have been undertaken in partnership with NatureScot and the Scottish Society for the Prevention of Cruelty to Animals have reiterated the importance of responsible dog ownership.

Our support for Emma Harper’s Dogs (Protection of Livestock) (Amendment) (Scotland) Bill gave a clear indication of how seriously we take livestock worrying incidents. Should they be convicted of an attack or of worrying livestock, irresponsible owners, who are in the minority, could be fined up to £40,000 or face prison for up to 12 months.

Emma Harper (Scottish National Party, South Scotland)

I thank the Government for having supported my member’s bill.

Cammy Wilson is a sheep farmer in the South Scotland region who is doing excellent work to increase awareness of the seriousness of livestock attacks from an animal welfare perspective as well as a health and wellbeing perspective for the farmer. What consideration might the Government give to a national awareness-raising campaign to ensure that the menace of out-of-control dogs and livestock worrying is treated with the utmost seriousness that it deserves to have in the minds of the public?

Jim Fairlie (Scottish National Party, Perthshire South and Kinross-shire)

I take on board all the points that Emma Harper has made. I have watched Cammy Wilson’s videos, which are pretty brutal. If anyone has any doubt as to what a small family pet can do, they should watch his video of a spaniel worrying lambs—it is distressing.

The Scottish Government recognises the effects on animal and human welfare that livestock worrying has—the effects are not just financial but on the wellbeing of those who are responsible for the livestock. The Scottish Government firmly believes that education is key. We want everyone, including dog owners, to enjoy the countryside via their access rights, and I encourage everyone to familiarise themselves with the Scottish outdoor access code.

Russell Findlay (Conservative, West Scotland)

I think that I have to ask the lodged question first.

To ask the Scottish Government what action it is taking to reduce the number of cases of livestock worrying. (S6O-03297)

Jim Fairlie (Scottish National Party, Perthshire South and Kinross-shire)

I take the question in the spirit in which it is meant. Any dog attack is one too many, and increasing awareness is a key factor in the prevention of livestock worrying incidents and the associated unnecessary suffering.

We continue to work with partners, including NatureScot, whose message on responsible dog walking is generating some 3 million impressions of and 15,000 visits to the Scottish outdoor access code website every year. We also continue to work with Police Scotland, local authorities, the Scottish Society for the Prevention of Cruelty to Animals and other relevant interests to keep communities safe from the small minority of irresponsible dog owners and their dangerous dogs.

In 2021, the Scottish Government supported the introduction of Emma Harper’s Dogs (Protection of Livestock) (Amendment) (Scotland) Bill, which delivers greater powers to Police Scotland and the courts to deal with irresponsible dog owners.

Russell Findlay (Conservative, West Scotland)

I agree with the minister on the need to raise public awareness about livestock worrying, which causes significant distress and even death, but the law must also be a deterrent. My colleague Rachael Hamilton has established that there were only 21 convictions for that crime in the two-year period to last November. How many reports of livestock worrying were made to the police in that period? Does the minister think that the law is protecting farmers and their livestock?

Jim Fairlie (Scottish National Party, Perthshire South and Kinross-shire)

Unfortunately, that changes the tone. I point out to the member that we have the law in Scotland, which Westminster is only just beginning to follow up on and copy. I cannot give him a definitive number now; we will come back to him with that.

I re-emphasise to people who walk their dogs in the countryside that they should please take a moment to look at the potential damage, that they can watch Cammy Wilson’s videos and see what pets can do to livestock, and that they should make sure that they keep their dog under control when they are among livestock.

Foysol Choudhury (Labour, Lothian)

To ask the Scottish Government whether its Land Reform (Scotland) Bill will help protect communities from development on land of public importance. (S6O-03294)

Mairi Gougeon (Scottish National Party, Angus North and Mearns)

The Land Reform (Scotland) Bill will ensure that the benefits of land ownership and decisions about how land is owned, managed and used are more widely shared. The owners of very large landholdings will have to engage with local communities about how their land is used. The bill also seeks to empower communities with more opportunities to own land, through introducing advance notice of certain sales from large landholdings.

The bill does not include reforms to development management, which is a matter for the planning system. Development plans guide the development and use of land in the long-term public interest.

Foysol Choudhury (Labour, Lothian)

Land in Bathgate that was home to a war memorial and a site where veterans scattered their ashes has been the subject of repeated planning applications, which the council has denied. The developers have repeatedly appealed to the Scottish Government, despite previous appeals for less substantial proposals being rejected. Will the cabinet secretary outline the steps that the Scottish Government is taking to prevent vexatious appeals and ensure that communities in all parts of Scotland have a say in how land is used?

Mairi Gougeon (Scottish National Party, Angus North and Mearns)

I am not aware of the details of the specific incident that the member mentions, but I am more than happy to look into it. It sounds like a matter that should probably be raised with the planning minister, but I am more than happy to follow it up with the member.

One thing that I would note, particularly when we are talking about significant pieces of land in communities, is that the changes that were introduced in the Planning (Scotland) Act 2019 put community voices at the heart of the planning system. Before preparing a local development plan, planning authorities now have to invite local communities to prepare local place plans. That is where such significant issues can be considered. As I said, I am more than happy to follow up with the member and the relevant minister.

Alasdair Allan (Scottish National Party, Na h-Eileanan an Iar)

Over the years, we have all seen examples of sales of whole islands or other large estates causing real issues for the people who live there. What steps is the Scottish Government taking to give island residents greater protection from having their communities and, often, their livelihoods being bought and sold in that way?

Mairi Gougeon (Scottish National Party, Angus North and Mearns)

The member raises an important point, which is why the measures that we are introducing as part of the Land Reform (Scotland) Bill are so important. The bill will prohibit certain sales of land of more than 1,000 hectares until ministers can consider the impact on the local community. That could lead to some landholdings being lotted into smaller parts.

We believe that the bill will empower communities. It will give communities more opportunities to own land by introducing advance notice of certain sales, and the owners of large landholdings will have to engage with local communities on their plans for the use of the land. Those requirements will apply if a landholding is more than 25 per cent of a permanently inhabited island and if it exceeds 1,000 hectares. I believe that the measures that I have mentioned, as well as the wider proposals that the bill introduces, will benefit many of our island communities.

Jackie Dunbar (Scottish National Party, Aberdeen Donside)

To ask the Scottish Government how its work on wildlife management can help address the reported threats to nature and biodiversity restoration posed by American mink. (S6O-03295)

Lorna Slater (Green, Lothian)

American mink is an invasive non-native species that is contributing to the decline of Scotland’s vulnerable native species. The Hebridean mink project shows how investment of £250,000 per year since 2001 has achieved eradication, or very low populations, of mink in the Hebrides to allow ground-nesting birds and wider biodiversity to recover and thrive.

Through the nature restoration fund, the Scottish Government is providing £2.5 million to the Scottish invasive species initiative and biosecurity for Scotland’s seabird islands project to train and work with communities and volunteers to control non-native species, including mink, to allow biodiversity to recover.

Jackie Dunbar (Scottish National Party, Aberdeen Donside)

Controlling mink requires extensive surveying of rivers and burns to be carried out by volunteers. What is being done to recruit volunteers in the north-east, where mink are a particular threat?

Lorna Slater (Green, Lothian)

The Scottish invasive species initiative has a dedicated team of around 155 volunteers working on mink control across north-east Scotland. With the aim of building on its success, the SISI has put out a call for more volunteers to tackle mink in an expanded area across northern Scotland. The project will train the new volunteers to operate innovative smart traps and mink rafts to survey for mink. I recognise the hard work and dedication of all the SISI staff and volunteers who are tackling invasive non-native plants, as well as mink, across northern Scotland.

Alex Cole-Hamilton (Liberal Democrat, Edinburgh Western)

To ask the Scottish Government what assessment it has made of the impact of the register of persons holding a controlled interest in land since it launched on 1 April 2022. (S6O-03296)

Mairi Gougeon (Scottish National Party, Angus North and Mearns)

The register of persons holding a controlled interest in land, which is known as the RCI, is maintained by the keeper of the registers of Scotland. The RCI went live on 1 April 2022, with a two-year transitional period before the offence provisions for non-compliance took effect.

As of 12 April 2024, 12 days after the end of the transitional period, there were 5,438 entries on the RCI. A further 10,273 entries have been submitted and are pending publication, as details are not published until 30 days after submission to the register.

Alex Cole-Hamilton (Liberal Democrat, Edinburgh Western)

When Russia invaded Ukraine on a full-scale basis in 2022, there was, rightly, a focus on the Russian oligarchs who own land in Scotland. We know of four such people and that at least two of them have links to the Kremlin and were included on the Putin list that the US Department of the Treasury published in 2018. However, a loophole in the register means that some landowners are exempt from it, which could mean that landowners who may have links to Putin’s kleptocracy are still hiding their identity and potential wealth. Is the cabinet secretary satisfied with the existing system? What are the Government’s plans to increase transparency on the issue?

Mairi Gougeon (Scottish National Party, Angus North and Mearns)

The measures that we have introduced are very important ones, but, as with anything, as things progress, if there are any improvements to be made to the system, the Government is open to looking at what those might look like and to engaging with the member on the discussions.

I note that this is an area of interest for the member. I think that, in previous responses on the issue, I have outlined that we fully supported the United Kingdom-wide emergency legislation that was introduced under the Economic Crime (Transparency and Enforcement) Act 2022, which was about the register of overseas entities.

I believe that we are making strong progress on the issue, but I am more than happy to keep the matter under review.

Liam McArthur (Liberal Democrat, Orkney Islands)

There are a couple of supplementary questions.

Christine Grahame (Scottish National Party, Midlothian South, Tweeddale and Lauderdale)

Cabinet secretary, my query may be too specific for an immediate response. A constituent of mine represents the Glencorse Centre, which is a Scottish charity that is also registered as a UK company limited by guarantee. He is not clear whether, under the guidance, he is required to register the charity as having a controlling interest in land.

I would be happy to receive a written answer if the cabinet secretary cannot clarify the position now.

Mairi Gougeon (Scottish National Party, Angus North and Mearns)

I would be more than happy to follow up with the member on the particular circumstances that she has mentioned. I encourage the organisation to which she referred to get in touch with the Registers of Scotland, which should be able to clarify the position and offer some advice. If members are receiving similar queries, I would encourage them to get their constituents to do that, too.

Rhoda Grant (Labour, Highlands and Islands)

When land is owned through a company and the controlling interest of the company changes, is the register updated automatically? Can triggers be fitted to the system, given that the Land Reform (Scotland) Bill might require that in the future?

Mairi Gougeon (Scottish National Party, Angus North and Mearns)

I am more than happy to follow that up afterwards and provide responses to those queries.

Audrey Nicoll (Scottish National Party, Aberdeen South and North Kincardine)

To ask the Scottish Government what recent engagement it has had with the United Kingdom Government regarding Scotland’s agricultural funding post-2025. (S6O-03298)

Mairi Gougeon (Scottish National Party, Angus North and Mearns)

Brexit means that we no longer have long-term certainty of funding. His Majesty’s Treasury has provided only yearly allocations for the current UK parliamentary term, and, as it stands, we have no funding commitment from 2025.

The Scottish Government has made repeated requests to UK ministers to engage on the matter, including sending several letters to Steve Barclay since his appointment as the Secretary of State for Environment, Food and Rural Affairs. We are still waiting for a response to those requests.

The Scottish Government has been clear and consistent that we expect the full replacement of European Union funds to ensure that there is no detriment to Scotland’s finances.

Audrey Nicoll (Scottish National Party, Aberdeen South and North Kincardine)

Everything about Brexit is last minute. In my constituency, small food producers are now facing a huge hike in fees for imports, which is threatening their viability, and trade bodies are warning about the risk of a hike in food prices. Does the cabinet secretary agree that it is time for Scotland to escape the unrelenting harm caused by the Westminster Government’s irrational adherence to a Brexit that is breaking our economy?

Mairi Gougeon (Scottish National Party, Angus North and Mearns)

I thank the member for raising that important point, particularly about the recent checks that were introduced. The Scottish Government had agreed to implement the UK Government border target operating model, which is, ultimately, to ensure that we protect our people, businesses and the environment from the biosecurity risks that come with different products entering the country.

Throughout that process, we have worked pragmatically to balance the need for introducing those controls with minimising burdens on traders. However, since publication, the Scottish Government has been locked out of key discussions; we have been asked to make important decisions at very short notice; and we have been faced with the UK Government making unilateral decisions in areas of devolved competence.

Fundamentally, Brexit is the reason that new checks are needed on imports from the European Union and Scotland is now paying a very high price for a Brexit that it did not vote for. We have repeatedly called for the UK Government to sign a veterinary agreement with the EU, which would remove those barriers. Ultimately, the Scottish Government continues to believe that the best trading relationships for Scotland will be found when we are an independent member of the EU in our own right.

Finlay Carson (Conservative, Galloway and West Dumfries)

The cabinet secretary may stand on her soapbox, blaming uncertainty on the UK Government, but the fact is that the UK Government has provided multiyear, ring-fenced funding since the UK left the EU and has also uplifted payments after the Bew review. It is the Scottish Government that continues to raid the agricultural budget. It is clear to farmers—but perhaps not to the cabinet secretary—that this Government is wholly responsible for the uncertainty surrounding future farm payments through not publishing the future rural support plan. Can the cabinet secretary set out exactly when the working draft of the plan will be available?

Mairi Gougeon (Scottish National Party, Angus North and Mearns)

First, there are a number of points of misinformation there that I would be happy to clarify for Finlay Carson. The UK Government provides funding on an annual basis. Rather than having the seven-year block funding that we previously had as members of the EU, which came through as a mixture of resource and capital, we now receive funding on an annual basis and only as resource funding. We are not receiving any of it as capital replacement.

We have also received the worst budget settlement since devolution, with significant cuts to our capital budget of around 10 per cent, which means that we have had to make difficult choices. However, the ring-fenced funding—I think that it is important to clarify this, since the Tories continue to perpetuate this misinformation—will be returned in full to the portfolio, as has been committed to by me, by the Deputy First Minister and by the First Minister himself. The nature of that funding is ring fenced, which means that it must be returned to the portfolio—£15 million of it has been returned this year.

Kenneth Gibson (Scottish National Party, Cunninghame North)

To ask the Scottish Government how Crown Estate Scotland supports marine tourism in coastal communities. (S6O-03299)

Mairi Gougeon (Scottish National Party, Angus North and Mearns)

Since 2020, Crown Estate Scotland has distributed more than £1.4 million through its sustainable communities fund to support local regeneration and development, including several marine tourism projects.

Crown Estate Scotland has three community marine officers in place to enable Scotland’s people and communities, along with visitors, to make the most of our coastal waters. It also co-funds a marine tourism officer in Mr Gibson’s own constituency.

Since 2019, over £50 million in revenues from Scottish Crown Estate marine assets have been allocated to local authorities for local spending to support priorities in their areas, including tourism.

Kenneth Gibson (Scottish National Party, Cunninghame North)

In June 2021, Crown Estate Scotland earmarked £3 million for boat-based tourism. In my constituency, Millport marina—an Ayrshire growth deal project—is reliant on that funding, given the impact of inflation on other funding streams. Despite a duty to support coastal communities, Crown Estate Scotland recently reneged on its commitment to support marine tourism. Can the cabinet secretary advise us on how local stakeholders can help the Crown Estate to deliver its stated objectives to islands such as Cumbrae?

Mairi Gougeon (Scottish National Party, Angus North and Mearns)

I thank the member for raising that important point. Ultimately, Crown Estate Scotland’s fundamental role is to maintain and enhance the value of the Scottish Crown estate. That is a key aspect, which is included within the criteria when assessing the investment proposals of the bids in relation to the particular scheme that the member is talking about.

Criteria also include the nature of the investment and how it aligns with Crown Estate Scotland’s statutory duties, how it delivers wider sustainable development benefits, financial value and requirements relating to fair competition. I know that applications to the fund are still undergoing assessment, and I know that additional information has been requested from applicants to ascertain whether their investment proposals meet the fund’s criteria, so, at the moment, I cannot comment on specific bids. However, I know that Crown Estate Scotland has been engaged in dialogue with the applicants to the fund and I would also encourage anyone to engage with Crown Estate Scotland directly regarding any specific issues or queries around the fund and the processes.

Liam McArthur (Liberal Democrat, Orkney Islands)

That concludes portfolio questions on rural affairs, land reform and islands. There will be a brief pause before we move to the next item of business to allow members on the front benches to change over.

Liam McArthur (Liberal Democrat, Orkney Islands)

The next item of business is portfolio questions on national health service recovery, health and social care. If a member wishes to ask a supplementary question, I invite them to press their request-to-speak button during the relevant question.

Jamie Greene (Conservative, West Scotland)

To ask the Scottish Government when the health secretary last met with the chief executives of NHS Greater Glasgow and Clyde and NHS Ayrshire and Arran, and what was discussed. (S6O-03300)

Neil Gray (Scottish National Party, Airdrie and Shotts)

Ministers and Scottish Government officials regularly meet representatives of all health boards, including NHS Greater Glasgow and Clyde and NHS Ayrshire and Arran, to discuss matters of importance to local people.

Jamie Greene (Conservative, West Scotland)

Here is something that is of importance: the referral to treatment waiting time standard is 18 weeks, yet, in NHS Greater Glasgow and Clyde, just 68 per cent of patients have been seen within that time. In NHS Ayrshire and Arran, it is only 66 per cent. Over a third of people in my region are waiting for more than four months to start treatment. Those health boards have not met the target, or anywhere near it, for nearly a decade. The problem is that people are dying while they are waiting for treatment. The big question is this: when will those health boards meet those targets, if ever? How many more people will needlessly die while they are waiting for treatment?

Neil Gray (Scottish National Party, Airdrie and Shotts)

First, I say that it is not just regrettable—I am very sorry for all those who are having to wait too long to receive the treatment that they need. We are not complacent about that; as Jamie Greene will have seen, we are investing £30 million of the first tranche of the £300 million that the First Minister committed to in order to tackle the longest waits. We have seen some improvements. A number of specialties have eradicated all out-patient waits over two years, and many have made significant progress compared to 30 June 2022. That includes gastroenterology, where they are down by 99 per cent; general surgery, where they are down by 91 per cent; general practitioners, where they are down by 83 per cent; and ear, nose and throat, where they are down by 97 per cent. In-patient day-case activity for quarter 3 last year was at its highest since the start of the pandemic.

Jamie Greene is right to point to the fact that there are still too many people who are waiting for too long. However, there have been improvements and recovery is happening. We will continue to invest in order to make sure that that continues to be the case.

Paul Sweeney (Labour, Glasgow)

The adult eating disorder service in Glasgow works with people who have anorexia and bulimia, both of which have the highest mortality rate of all mental health conditions. I understand that the contracts for five key roles in that service are due to end in the coming months. Did the cabinet secretary discuss that issue in his most recent meeting with NHS Greater Glasgow and Clyde? Will he commit to adding that to the agenda for his next meeting?

Neil Gray (Scottish National Party, Airdrie and Shotts)

That is not an issue that was discussed the last time I met the chair or the chief executive. However, I would be more than happy to write to Paul Sweeney about that in more detail.

Meghan Gallacher (Conservative, Central Scotland)

To ask the Scottish Government whether it will review the current model of care for children with gender dysphoria. (S6O-03301)

Jenni Minto (Scottish National Party, Argyll and Bute)

The Scottish Government is already supporting NHS Greater Glasgow and Clyde, as provider of the young people’s gender service, and NHS National Services Scotland to consider how best to provide specialist young people’s gender care in Scotland. That is part of the implementation of the “NHS gender identity services: strategic action framework 2022-2024”. Last week, the independent review of gender identity services for children and young people, chaired by Dr Hilary Cass, published its final report. The findings of the review into services in NHS England are being closely considered by both the Scottish Government and wider partners.

Meghan Gallacher (Conservative, Central Scotland)

The minister will be aware of my efforts to secure a ministerial statement on the Cass review, as a portfolio questions session is not enough time in which to scrutinise a near-400-page report. The Scottish Government may not wish to talk about the issue, but parents, campaigners and young people deserve answers. I ask the minister a simple yes or no question: will the Scottish Government adopt the recommendations of the Cass review, including limiting the use of puberty blockers and cross-sex hormones?

Jenni Minto (Scottish National Party, Argyll and Bute)

As Meghan Gallacher pointed out, it is a long report but very much worth reading. It is very accessible and I encourage as many people as possible to read it. We—the Scottish Government, our officials and our senior clinicians—are all looking at what the report contains and we will give an initial view on that as soon as possible.

Bill Kidd (Scottish National Party, Glasgow Anniesland)

I fully associate myself with the minister’s answer and with Dr Hilary Cass’s comments that the

“increasingly toxic, ideological and polarised public debate ... does nothing to serve the ... young people”

who access that care. Instead, our focus should be on supporting and improving gender identity healthcare. What steps is the Scottish Government taking to improve access to and delivery of national health service gender identity services for all, including children and young people?

Jenni Minto (Scottish National Party, Argyll and Bute)

I note that behind every headline there are children, parents, carers and clinicians who are all impacted. I agree with Bill Kidd and reiterate the Government’s absolute commitment to improving the lives of trans people living in Scotland. In order to improve access to and delivery of gender identity healthcare in Scotland, we have invested more than £2.8 million since December 2022, of which £2.2 million is being allocated directly to NHS health boards with gender identity clinics to support local improvement work—in particular, to address waiting times and service capacity.

As I said, we are working with Healthcare Improvement Scotland to develop national standards for gender identity healthcare and we are supporting NHS National Education Scotland to develop new training materials for staff.

Carol Mochan (Labour, South Scotland)

The publication of the Cass review is undoubtedly significant. I know that the cabinet secretary and the First Minister have continually said that they will leave the decision to the clinicians but, ultimately, the Scottish people expect the Government to step up and make a decision on whether it will implement well evidence-based recommendations to protect Scottish children. If not, why not? I ask the minister not whether, but when, a statement will be made to Parliament on this important issue so that members have time to discuss it.

Jenni Minto (Scottish National Party, Argyll and Bute)

I reiterate that the Government, our officials and senior clinicians are reviewing the report. I do not think that it is appropriate to respond quickly. We have to do that in the appropriate time, so that we understand exactly what the implications are of the Cass review to gender identity services in Scotland. I want to make sure that we put the children, their families and the clinicians at the centre of that work.

Gillian Mackay (Green, Central Scotland)

Many people will be watching the chamber this week as MSPs discuss their healthcare. I want to send solidarity and support to all the young people who are watching. Can the minister outline, for any young people who are distressed by the discourse that is currently happening around their healthcare, what services there are to support their on-going wellbeing?

Jenni Minto (Scottish National Party, Argyll and Bute)

I agree with Gillian Mackay entirely that it is the young people who we have to put at the centre of this, and we have to ensure that they get the support that they need. I am pleased that NHS Greater Glasgow and Clyde and Sandyford are still providing that support to young people and their families through a multidisciplinary team.

Sarah Boyack (Labour, Lothian)

To ask the Scottish Government what progress it is making in implementing its diabetes improvement plan. (S6O-03302)

Jenni Minto (Scottish National Party, Argyll and Bute)

The Scottish Government is committed to ensuring that everyone living with diabetes can access clinically appropriate, safe, effective and person-centred healthcare treatment and support. The implementation of the diabetes improvement plan is overseen by the Scottish diabetes group. Delivery is under way on work on improving diabetes education, prevention of foot ulceration, in-patient care and supporting people with diabetes during and after pregnancy. A key commitment in the plan is to increase access to diabetes technology. Since 2021, the Scottish Government has provided £19 million of additional funding to national health service boards to support that commitment.

Sarah Boyack (Labour, Lothian)

In a letter to me last April, the minister stated:

“our aim is to improve access to closed loop and artificial pancreas systems at the earliest opportunity.”

However, patients across Edinburgh have told me that they will not get those innovative solutions because, even though they are clinically appropriate, the health board faces a severe financial situation. Even worse, a patient who was on a trial that was successful has been told that she will have to return to her glucose pump system, even though the closed-loop system has made a huge difference to her health and quality of life. Will the minister meet me and patients who are affected? Although there is a real opportunity to improve diabetes patients’ quality of life, that opportunity is not just being denied to my constituents—it is now being snatched away.

Jenni Minto (Scottish National Party, Argyll and Bute)

I sympathise with the situation that Sarah Boyack’s constituents find themselves in. I am happy to meet her and her constituents to hear directly about how the situation is impacting them, and to continue discussions with the clinical leads, as we do on a regular basis.

Audrey Nicoll (Scottish National Party, Aberdeen South and North Kincardine)

Can the minister outline how much funding the Scottish Government has invested in recent years into the provision of diabetic technologies, and what has been achieved as a result?

Jenni Minto (Scottish National Party, Argyll and Bute)

Between 2016 and 2022, we invested £29.6 million specifically for diabetes technologies. That was in addition to baseline funding to NHS boards. In 2023, we also invested £350,000 to pilot a national on-boarding pathway to support the roll-out across Scotland. That funding supports people—including more than 1,700 children—who live with type 1 diabetes to access life-changing technologies, such as insulin pumps.

We know that there is a lot more that we can do to increase access to diabetes technology, and we continue to work with key stakeholders to determine the best way to do that and how to fund it.

Foysol Choudhury (Labour, Lothian)

A constituent in Lothian, Stephen, was granted access to an insulin pump after a shocking three years on the waiting list, and there are reports that Lothian waiting times could increase to 10 years by the end of 2024. Waiting times in parts of England for the same technology are 14 months. Will the minister advise what action is being taken to reduce those terrible waiting times?

Jenni Minto (Scottish National Party, Argyll and Bute)

We are working closely with NHS boards on the way in which they choose to spend their money. I am also working closely with my officials to see what else we can do from a Government perspective.

Alexander Stewart (Conservative, Mid Scotland and Fife)

To ask the Scottish Government, in light of recent reports that one in 10 planned operations in the national health service were cancelled this January, what steps it is taking to reduce the rate of cancelled operations. (S6O-03303)

Neil Gray (Scottish National Party, Airdrie and Shotts)

Surgical procedures can be cancelled for various reasons. In the year to February, 6.3 per cent of all planned procedures were cancelled for either clinical reasons or by the patient, and only 2.2 per cent were cancelled due to capacity or non-clinical reasons.

In fact, there has been a general upwards trend of operations performed since May 2020, with a 10.3 per cent increase in the year to February, compared with the previous year. Activity will further increase through our investment of £30 million to target pandemic backlogs, including in orthopaedic treatments.

The revised waiting times guidance, which was published in December, also instructs health boards to complete waiting list validation on a regular and continual basis. That ensures that waiting lists are accurate and helps to identify patients whose needs have changed, which, in turn, reduces the number of cancellations.

Alexander Stewart (Conservative, Mid Scotland and Fife)

The message that such a level of cancelled operations is standard fare is simply not good enough. A teenager who had only months in which to undergo life-changing spinal surgery was woken after being prepared for surgery and told that the operation had been cancelled due to staff shortages.

The situation is intolerable for parents, patients and families. What action can be taken to ensure that other people who are in similar positions are treated with the urgency and respect that they deserve?

Neil Gray (Scottish National Party, Airdrie and Shotts)

I think that the case that Alexander Stewart referred to was in NHS Lothian. He might be aware that I met both the medical director and the chair of NHS Lothian off the back of some of the coverage of the situation regarding spinal surgery there. I have also asked the chief medical officer and the chief nursing officer to intervene to look at what support could be provided to ensure that, when cancellations happen because of a capacity issue, we address those concerns.

As I said in response to Mr Stewart’s initial question, the number of procedures is going up and the number of cancellations is coming down. A recovery is under way, and we will continue to invest in it so that the situation that Mr Stewart outlined can be improved.

Foysol Choudhury (Labour, Lothian)

My constituent, Liz, unfortunately suffered a bad prolapse in 2021. She was told that, as her womb was bearing down on the prolapse, she would need a hysterectomy, the waiting list for which could see Liz wait for up to two years in pain and discomfort for her operation. What urgent action is the Scottish Government taking to reduce those long, painful hysterectomy waiting times?

Neil Gray (Scottish National Party, Airdrie and Shotts)

I thank Foysol Choudhury for raising the issue of his constituent’s hysterectomy. If he wishes to send me further details, I would be happy to consider what more can be done in that case. I point him to the response that I gave to Alexander Stewart regarding the investments that we are making, the reduction in waits that we are seeing as a result of some of the interventions that we are making, the reduction in the number of cancelled operations and the increase in the number of operations being undertaken. If he would like to write to me with the details, I would be happy to do what I can within the limits that he would expect.

Keith Brown (Scottish National Party, Clackmannanshire and Dunblane)

To ask the Scottish Government what consideration it has given to the location of the headquarters of the proposed national care service. (S6O-03304)

Maree Todd (Scottish National Party, Caithness, Sutherland and Ross)

We are currently at stage 2 of the National Care Service (Scotland) Bill and, at this point, consideration has not been given to the location of any potential premises. I set out in my letter to the convener of the Finance and Public Administration Committee in December that we anticipate that existing premises will be used, removing the need for additional cost. That aligns with Scottish Government policy on the new single Scottish estate approach and its more efficient use of existing public sector assets, which the Deputy First Minister set out in our recent budget statement and the programme for government.

Keith Brown (Scottish National Party, Clackmannanshire and Dunblane)

As the minister will be aware, a significant amount of innovative work is under way in the Clackmannanshire part of my constituency, including the growing partnership between NHS Forth Valley, the University of Stirling and Forth Valley College, as well as the sector-leading work on sustainable ageing, which is planned as part of the Stirling and Clackmannanshire city region deal. The minister will also be aware of how central and fantastic the locations of Clackmannanshire and Stirling are.

Does the minister agree that locating the headquarters of Scotland’s national care service alongside that centre of innovation would align with its goal of future proofing the social care sector for generations to come, and will she meet me to discuss potential opportunities further?

Maree Todd (Scottish National Party, Caithness, Sutherland and Ross)

As I mentioned in my previous answer, we have not considered the potential location of premises for the NCS. As ever, though, I am pleased to hear about innovation, and I would be very happy to learn more about the project involving NHS Forth Valley, the University of Stirling and Forth Valley College at an appropriate time.

Sandesh Gulhane (Conservative, Glasgow)

I declare an interest as a practising national health service general practitioner. Minister, you said that we are at stage 2 of the National Care Service (Scotland) Bill, so when will we see the amendments that you have failed to produce as promised?

Liam McArthur (Liberal Democrat, Orkney Islands)

Please speak through the chair.

Maree Todd (Scottish National Party, Caithness, Sutherland and Ross)

I will continue to update the lead committee. As members would expect, I have provided a response to the report from the stage 1 proceedings, and we will proceed as normal. I expect us to treat each other with courtesy and respect over this issue.

Sandesh Gulhane (Conservative, Glasgow)

When?

Maree Todd (Scottish National Party, Caithness, Sutherland and Ross)

As members know, this is not entirely in my control.

Sandesh Gulhane (Conservative, Glasgow)

You are the minister.

Maree Todd (Scottish National Party, Caithness, Sutherland and Ross)

We have to work with Parliament and other bodies to ensure that we can absolutely see through the passage of the bill, and members will hear through the lead committee.

Liam McArthur (Liberal Democrat, Orkney Islands)

Let us listen to both the questions and the responses with respect.

Craig Hoy (Conservative, South Scotland)

Is the minister aware that the Abbey care home in North Berwick, the Edington care provision in North Berwick and the Belhaven care provision in Dunbar are all set to close? Should the minister’s attention not be focused on the crisis in Scotland’s social care sector, not on where the Government might house bureaucrats in a £2 billion national care service bureaucracy?

Maree Todd (Scottish National Party, Caithness, Sutherland and Ross)

As I said in my response to the original question, we have not given any consideration to the premises for the headquarters of the national care service as yet. We are simply at stage 2 of that legislation. The member points out a number of issues that are acute in the social care sector, and we are working very carefully through them with our partners in local authorities, which have the responsibility for commissioning and procuring social care at present.

Murdo Fraser (Conservative, Mid Scotland and Fife)

To ask the Scottish Government what discussions the health secretary has had with ministerial colleagues regarding the plans for health infrastructure investment in its revised infrastructure investment plan, including the likely publication date of any such plans. (S6O-03305)

Neil Gray (Scottish National Party, Airdrie and Shotts)

The capital position is extremely challenging. The United Kingdom Government has not inflation proofed its capital budget, and the latest forecasts show that our block grant for capital is expected to reduce in real terms by 8.7 per cent by 2027-28, which is a cumulative loss of more than £1.3 billion. As a result of that cut, all capital projects are now under review. I expect the Deputy First Minister to set out the results of the review soon, following Cabinet consideration.

Murdo Fraser (Conservative, Mid Scotland and Fife)

It was long before the current budget issues that he mentioned were identified, back in the spring of 2021, that plans for the new elective surgery centre at Perth Royal infirmary were announced. There was a promise that it would be completed and receiving patients by the end of this year. Three years on, an outline business case has still not been approved, the costs have spiralled and nothing seems to be happening. Will the much-needed and long-awaited facility for the people of Perthshire ever be delivered, or was that just an empty pre-election promise?

Neil Gray (Scottish National Party, Airdrie and Shotts)

A number of projects are before me that I wish to see happen. Murdo Fraser listed one for which the case is well and truly made. However, the situation that we have is a financial reality that Murdo Fraser may not wish to hear about, which is that UK-based inflation—especially construction inflation—means that the cost of the projects has spiralled upwards thanks to uncontrolled UK inflation. Meanwhile, the UK Government does not appear to see the merit in inflation proofing its capital investment for the economy or the health service. As a result, we have a diminished capital budget, which means that we have to review our capital projects. We are committed to that undertaking, including by looking at alternative forms of finance to see as many projects as possible come about, because, like Murdo Fraser, I wish to see them happen for the improvement and recovery of our health service.

Jackie Baillie (Labour, Dumbarton)

Unfortunately, the plan—when it is published—may make rather thin reading, as almost all capital projects in health have been cancelled. I want to focus also on national treatment centres and cancelled projects in Ayrshire and Arran, Lanarkshire, Lothian, Grampian and Tayside, because they were central to the Government’s plans to tackle long waiting lists. What is the cabinet secretary’s plan to deliver those projects, and when will they start?

Neil Gray (Scottish National Party, Airdrie and Shotts)

I wish to correct Jackie Baillie’s initial assertion that capital projects in health have been cancelled. They have not been cancelled; they have been paused while the capital position is under review. The Government wishes for as many of those projects as possible to be able to get the go-ahead. I would love to be in a situation in which the UK Government saw the merit in investing in capital projects. Whether it is a Labour Government or a Conservative Government, I wish that it would see the merit of that not only for the health service but for the economy, and then we could see about ensuring that all the projects get off the ground.

Beatrice Wishart (Liberal Democrat, Shetland Islands)

The Gilbert Bain hospital, in Lerwick, is one of the oldest hospital buildings in the Highlands and Islands—as the cabinet secretary will know from his recent visit to Shetland. When will my constituents learn of the timetable for crucial work to replace the 1950s-designed building? Will we need to wait until the publication of the revised infrastructure investment plan, or can it be confirmed now that the anticipated timeline has not changed?

Neil Gray (Scottish National Party, Airdrie and Shotts)

Beatrice Wishart is correct in saying that I was at the Gilbert Bain hospital a couple of weeks ago, when I was in Shetland. Thanks to the tour that I was given of it by Gary Robinson, the chair of NHS Shetland, and others, I am aware of the acute situation at the hospital. There are areas of it that are in a particularly bad state—I understand the issues—but I cannot give any further commitment on the timescale while the review of capital projects is under way. As per other projects that are paused at the minute, the case for it has been made and it is about raising the finance and ensuring that the project can be delivered. That is what the Deputy First Minister and me are embarking upon.

Liam McArthur (Liberal Democrat, Orkney Islands)

Question 7 has been withdrawn and question 8 was not lodged.

That concludes portfolio question time. There will be a brief pause before we move to the next item of business, to allow the front benches to change.

Hate Crime and Public Order (Scotland) Act 2021

Annabelle Ewing (Scottish National Party, Cowdenbeath)

The next item of business is a debate on motion S6M-12855, in the name of Russell Findlay, on repealing the Hate Crime and Public Order (Scotland) Act 2021. I invite members who wish to speak in the debate to press their request-to-speak buttons.

Russell Findlay (Conservative, West Scotland)

Three years ago—

Keith Brown (Scottish National Party, Clackmannanshire and Dunblane)

On a point of order, Presiding Officer. I wonder if it is possible for you to clarify, given the terms of the motion that we are about to discuss, which is on repeal of the 2021 act, that the actual effect of a majority vote for the motion—which I do not expect to happen—would have no impact on the 2021 act or on the law as it currently stands.

Annabelle Ewing (Scottish National Party, Cowdenbeath)

I thank the member for his point of order. That is the position as per the standing orders of Parliament, which I think that everybody is aware of.

Please resume, Mr Findlay.

Russell Findlay (Conservative, West Scotland)

Thank you. In the sweepstake, I had a Keith Brown intervention after 30 seconds, not three seconds.

Three years ago, Humza Yousaf was standing here in Parliament, lapping up applause and basking in adulation, having delivered the act. He described it at the time as being “truly transformative”, and he was right. It was transformative, just not in the way that he thinks it was. From April fools’ day, it has transformed Scotland into a place of international mockery. It has transformed the birthplace of the enlightenment into a place where free speech has been debased and devalued, where sinister police billboards instruct people to snitch on those who hurt their feelings, where contentious discussions and disagreements in one’s own home can result in a knock at the door from the police, and where every single complaint—no matter how groundless or absurd—is subject to police investigation, while despairing officers are being told not to pursue real crimes. Welcome to Scotland, home of Humza Yousaf’s hate crime law, AKA the “clypes charter”.

Kevin Stewart (Scottish National Party, Aberdeen Central)

It seems that Mr Findlay has swallowed his own publicity on all of this. Does he think that the harassment and hate of disabled people is a real crime?

Russell Findlay (Conservative, West Scotland)

That is a preposterous intervention. I am talking about the many thousands of crimes that have been deemed not to have been crimes at all—that is, the vast majority of the 9,000 hate crimes that have been reported to the police. That is what we are talking about.

As the Scottish Conservative Party and many others warned that it would be at the time of its passage, the legislation is a disaster. It is a disaster on paper and in reality. The Scottish National Party backslapping of 2021 was crass and ill-judged. It was the celebration of bad legislation by a Government that specialises in bad legislation.

Liam Kerr and others worked hard on amendments to fix the worst elements of the bill. Back then, just two SNP members defied Nicola Sturgeon’s whips to abstain on it. How many will find the bravery and the steel to do the right thing today? How many will listen to senior nationalist figures who understand that freedom of speech is much more precious than party loyalty?

What of Scottish Labour? Former leader Johann Lamont tried to protect the rights of women and girls. The legislation protects men wearing women’s clothing, but not women. When Johann Lamont’s amendments failed, she voted against the bill, along with one other Labour member. As usual, Anas Sarwar sided with the SNP—not for the first or the last time. Will he repeat that same mistake today?

The chilling effect of the legislation is real. Some fear being subject to investigation and prosecution for stating the truth about biological sex. When J K Rowling put that to the test on social media, Police Scotland confirmed that she had not committed a hate crime, but what about those without her cash and clout? Even if prosecutions are unlikely, being subject to an investigation can be daunting, disruptive, humiliating and financially costly. Police arrive at a person’s home or workplace, the person is taken away in handcuffs, their phone is seized and they are forced to pay for a lawyer—that is stigmatising and damaging to personal reputations and employment prospects.

I am particularly struck by the phrase “the process is the punishment”. Anyone who has ever taken on Scotland’s powerful and unaccountable public bodies will know exactly what that means. Even before the act was enforced, a street preacher in Glasgow was wrongfully arrested over false hate crime allegations.

Angela Constance (Scottish National Party, Almond Valley)

As a matter of factual accuracy, will Mr Findlay concede and put on the record that protection of freedom of expression is built into the legislation, including the point that criticism or commentary on any protected characteristic is not to be mistaken for hatred or abuse?

Russell Findlay (Conservative, West Scotland)

I will come on to that, but the cabinet secretary did not point out that there is no dwelling defence, which I will also come on to.

Even before the act was enforced, my colleague Murdo Fraser was reported to the police. His alleged crime was to make a light-hearted quip about Scottish National Party policy relating to people who say that they are non-binary. The complaint and the investigation were kept secret from him. He had no idea that the police had then recorded that as a non-crime hate incident. Police Scotland’s response to Murdo Fraser has been confused and confusing, and the justice secretary’s response to his question yesterday cast no light.

During yesterday’s proceedings, the justice secretary also made allegations about misinformation. There has been misinformation, but, from what I have seen and heard, it has come from the SNP Government and its agencies. The law states that the hate crime threshold is met if something would be deemed by a reasonable person to be “threatening or abusive”. My party tried without success to amend that to say “threatening and abusive”, which is a crucial distinction and would be a higher bar for prosecution. However, an SNP minister took to the airwaves to incorrectly state that the law says “threatening and abusive”. Yesterday, the cabinet secretary added to her Government’s catalogue of misinformation by telling Parliament that the threshold is now “threatening and/or abusive”, and she did so while railing against misinformation. I presume that that was through ignorance and not intent, but it misrepresents that critical point.

Then we have Police Scotland’s extraordinary output. Its website tells the public that a hate crime is

“Any crime which is perceived by the victim, or any other person, as being motivated, wholly or partly, by malice, ill will or prejudice against a social group.”

That is simply untrue. Something does not become a crime just because someone perceives it to be a crime. Such flagrant misinformation fuels public confusion. Moreover, it is fuelling the flood of complaints. The police website targets working-class white men, in effect telling them to watch their mouths. I ask whether Police Scotland, in citing so-called white male entitlement, has committed a hate crime.

Then, of course, we have the hate monster—a ridiculous cartoon character that would surely be deemed too silly for the scriptwriters of “Scot Squad”. Let us not forget the sinister Government billboards on the issue or that that campaign cost taxpayers at least £400,000 and generated even more nonsense complaints.

Should we be surprised by the creeping criminalisation of freedom of expression in Scotland? I am not, because that has been the direction of travel for years. As far back as 2016, Police Scotland told the public to consider whether their social media comments were “kind” or “necessary”. If they were not, Police Scotland warned that a visit from officers could be expected. Of course people should be kind, but who on earth decides what is “necessary”? What has any of this got to do with the police?

The law was not enforced for three full years because Police Scotland knew that the legislation was seriously problematic and that it would be inundated with complaints. It knew that the legislation would be weaponised, and that is exactly what is happening.

Humza Yousaf claims that there is a “rising tide” of hate crime in Scotland, contrary to the evidence. His Government is urging Scots to report hate crime while peddling misinformation about the definition of hate crime.

Angela Constance (Scottish National Party, Almond Valley)

I am listening very carefully to your remarks. I am just waiting for you to come to the point at which you put on the record the existence of hate crime in this country and your condemnation of it.

Annabelle Ewing (Scottish National Party, Cowdenbeath)

Speak through the chair, please.

Russell Findlay (Conservative, West Scotland)

On the day in 2021 when the bill was enacted, the SNP Cabinet Secretary for Justice and Home Affairs was enjoying a nice jigsaw puzzle. Meanwhile, on our streets, overstretched police officers were dealing with a much harder challenge. Days ago, His Majesty’s Inspectorate of Constabulary in Scotland reported that Police Scotland officers feel unsafe and unable to do their jobs as they are constantly being told to do more with less, but those same exhausted officers are now being ordered by the SNP to police our speech. Hundreds of officers have still not been trained in the new law. Before the recess, the Criminal Justice Committee asked for the training material, but we were not given it—no wonder, as officers say that it is wholly inadequate.

The Scottish Police Federation deserves great credit for standing firm against the breathtaking Government spin. We keep being told that the tsunami of spurious complaints will have no detrimental impact on the investigation of real crimes. That is patently untrue, as federation officials have patiently explained. I despair at the Government’s sneering sense of moral superiority and failure to tackle the issues that truly matter.

Alasdair Allan (Scottish National Party, Na h-Eileanan an Iar)

Will the member take an intervention?

Russell Findlay (Conservative, West Scotland)

I am sorry, but I do not have time.

Never mind plummeting education standards and classroom violence; never mind the tragedy of record numbers of drug deaths; never mind a stagnant economy stymied by hostile ministers; never mind islanders being reliant on a fleet of decrepit ferries; never mind our national health service being neglected by a disgraced ex-health secretary who was more interested in keeping his job; and never mind the filth and squalor on our potholed streets. Nope, never mind the day job when the Government would rather virtue signal and preach to ordinary Scots about what opinions are deemed to be acceptable. That is pious, puerile and patronising.

MSPs should start listening to the majority of people in Scotland, who agree with the Scottish Conservatives. This is about freedom of speech. It is about bad legislation. It is about letting our police officers do their jobs. It is about rejecting division by turning Scot against Scot to clype on friends, colleagues and family. Based on the evidence, we were right to vote against the legislation three years ago and, based on the evidence, we are right to call for its repeal today. I urge all members to do the right thing and back the Scottish Conservative motion.

I move,

That the Parliament believes that the Hate Crime and Public Order (Scotland) Act 2021 should be repealed.

Siobhian Brown (Scottish National Party, Ayr)

The Hate Crime and Public Order (Scotland) Act 2021 will help us to target hate crime in Scotland and support those who are most affected by those crimes.

First, I will respond to some of the points that have just been made about the 2021 act. Over the past two weeks since its implementation, the Scottish Government has responded to numerous media statements in order to combat misinformation, which is still regularly regurgitated, including in this chamber. To dispel that misinformation, it would perhaps be beneficial for me to set out again what the 2021 act does. It is designed to consolidate existing legislative protections against offences that are aggravated by prejudice against the following five characteristics: disability, race, religion, sexual orientation and transgender identity. That is the exact same group of characteristics that are protected in England and Wales under the current hate crime legislation. This Parliament agreed to add the additional characteristic of age, which has been welcomed.

We know that the impact on those who suffer from hate crime can be traumatic and life changing, and we want to ensure that we can protect those who are affected. However, the Conservatives would have this Parliament remove those protections.

Hate crime, as set out under the act, is a behaviour that is both criminal and rooted in prejudice and where the offender’s action has been driven by hatred towards a particular group. However, the Conservatives would have this Parliament repeal the act.

Russell Findlay (Conservative, West Scotland)

Will the minister give way?

Siobhian Brown (Scottish National Party, Ayr)

I will come to Russell Findlay in a moment.

The 2021 act introduced new offences for threatening or abusive behaviour and for the communication of threatening or abusive material that is intended to stir up hatred against a group of people who possess or appear to possess particular characteristics. However, the Conservatives would have us take away such offences, which are perpetrated against people in our society.

I will take a brief intervention.

Russell Findlay (Conservative, West Scotland)

I thank the minister for allowing me to intervene. The minister began by saying that she was about to reveal some misinformation from members in this chamber. I have been waiting with bated breath, but I have still not heard any such specific allegations.

Siobhian Brown (Scottish National Party, Ayr)

I apologise to Mr Findlay, but I am going through my speech. I am not actually sure what he just asked me for. [Interruption.]

The independent review—[Interruption.]

Annabelle Ewing (Scottish National Party, Cowdenbeath)

Members.

Siobhian Brown (Scottish National Party, Ayr)

—of hate crime by Lord Bracadale in 2018 that led to the act clearly stated the need for legislation in that it would help to recognise the impact of and harm caused by hate crime in saying that

“Stirring up of hatred may lead to violence or public disorder.”

The Conservatives want us to ignore that harm.

The act does not prevent people from expressing controversial, challenging or offensive views, as has clearly been demonstrated, nor does it seek to stifle criticism or rigorous debate in any way. The right to freedom of expression has been specifically built into the act.

The act also provides a high threshold for criminality. For the new offences, it has to be proven that the behaviour is threatening or abusive and that it has the intention to stir up hatred. That is a higher threshold for a crime committed under the act than for the offence of stirring up racial hatred, which has been in place since 1986 in Scotland.

Michelle Thomson (Scottish National Party, Falkirk East)

On that point, I want to enable the minister to set the record straight. I am not sure what actions Police Scotland is taking to incorporate the precedent that was set in Miller v College of Policing in December 2021, which applies to England and Wales, where it was determined that the policy of reporting non-crime hate incidents breached article 10.

I understand that Police Scotland reported in its bulletin of April to September 2023 that it would adopt the policy, but to what extent has it done so? Will the minister set out the specific details of whether the policy has been fully incorporated or whether it is being incorporated through a staged process?

Annabelle Ewing (Scottish National Party, Cowdenbeath)

I will give you your time back, minister.

Siobhian Brown (Scottish National Party, Ayr)

First, non-crime incidents are not related to this act in any way. As we know, the recording of non-crime hate incidents is an approach across the whole of the United Kingdom. I am aware of the Miller recommendation that has been implemented in England and Wales. Police Scotland has indicated that it is currently reviewing it for implementation in Scotland.

Since 2014-15, an average of 6,700 hate crimes have been recorded by the police each year. In 2021-22, 6,927 hate crimes were recorded by the police. Of those, 62 per cent included a race aggravator, 27 per cent included one for sexual orientation and 8 per cent included one for disability, highlighting the clear need for hate crime legislation.

From research in 2020-21, we know that around a third of hate crimes involve a victim who has experienced an incident at their place of work or as part of their occupation. Most of those victims work in retail or service industries, and that does not include the police. The same research shows that almost a quarter of all victims of such offences that were recorded in 2020-21 were police officers.

We have worked closely with our justice partners, including Police Scotland, since the act was passed in 2021 to ensure that its implementation and delivery would be robust. I am grateful to Police Scotland for its outstanding dedication and professionalism since the act came into force.

Within the first week of the act’s implementation, Police Scotland received more than 7,000 reports of hate crime, of which the vast majority were assessed not to be criminal. Over the same week, 232 hate crimes and 30 non-crime hate incidents were recorded.

There have been reports of individuals and groups exploiting the new legislation to make vexatious complaints in order to overwhelm police systems. We must send a strong message to those making vexatious complaints that they must stop doing so. I hope that every member across the chamber, regardless of political affiliation, will stand united in that call.

Online reporting drastically decreased by 74.4 per cent during the past week to 1,832. That fall was not reflected in the number of recorded hate crimes, which further strengthens the Government’s position that the legislation is needed to support those who are the target of hate crimes. We have also seen the first recorded crimes using the new age aggravator, with 38 such crimes recorded in the first fortnight of implementation. Police Scotland has reiterated that, although the increase in reporting has been greater than usual, that is being managed by the contact centres and the impact on front-line officers has been minimal.

I turn to our plans on misogyny. Women, like everyone else, are already protected in law from threatening and abusive behaviour but are not specifically covered in the 2021 act, for well-known reasons. During the consultation on Lord Bracadale’s report, a number of women’s groups raised concerns that the proposed hate crime framework did not reflect the reality of the misogynistic harassment and abuse that is experienced by so many women.

For that reason, we established the working group on misogyny, led by Baroness Helena Kennedy, to consider in detail issues relating to misogyny and the criminal law and to make recommendations for reform. We consulted on draft legislation to implement the report’s recommendations in 2023. Those will inform a final bill, which we will introduce this year.

During the development of the hate crime strategy, we heard from people who felt unable to leave their homes due to the fear of being the target of hate crime. The 2021 act will go some way to providing those people with the confidence to carry out their lives in a safe manner.

Today, the Conservatives call for the repeal of the 2021 act. Let me be crystal clear: this Government has no intention of repealing the act. Repealing it in full would leave Scotland as the only country in the United Kingdom without specific legislation to protect communities from hate crime. Why would anyone not want our communities to be protected from hate and crime?

I understand that the Conservatives want the act to fail because they need to justify why they did not support it in 2021. They will therefore do everything that they can to discredit it. However, my message is that that will not work. Legislation that protects people from hatred is not new; it is still needed and the misinformation that has surrounded the act is irresponsible.

The 2021 act modernises and updates legislation—

Craig Hoy (Conservative, South Scotland)

Will the minister take an intervention?

Rachael Hamilton (Conservative, Ettrick, Roxburgh and Berwickshire)

Will the minister give way?

Annabelle Ewing (Scottish National Party, Cowdenbeath)

The minister is bringing her remarks to a close.

Siobhian Brown (Scottish National Party, Ayr)

—and, if it was repealed, as the Conservative motion calls for, it would put back in its place legislation that would, once again, make blasphemy a common-law offence. That is an offence that has not been prosecuted in Scotland for more than 175 years—once again, that is the Conservatives taking us backwards.

We are committed to providing people with the protection that they deserve. I say to those who have faced prejudice just because of who they are—due to their race, religion, disability, sexual orientation, transgender identity or age—that we stand with them, unlike the Conservatives, and that we will ensure that we have laws to protect them.

Let us all stop the gutter politics and the scaremongering and, as elected members, take responsibility to protect some of the most vulnerable people in our communities.

I move amendment S6M-12855.3, to leave out from “should” to end and insert:

“, as supported by the majority of the Parliament, will provide greater protections for those who are targeted victims of hate crime; notes that the Act was developed following a review into hate crime by senior retired judge Lord Bracadale, who recommended specific legislation to recognise the impact and harm caused by hate crime; further notes that around a third of hate crimes in Scotland involved a victim who experienced the incident at their place of work or whilst undertaking duties as part of their occupation, most of whom were working in retail or other service industries, and that a quarter of recorded hate crimes had a police officer victim, and recognises that the impact on victims of hate crime can be traumatic and life changing.”

Annabelle Ewing (Scottish National Party, Cowdenbeath)

I take this opportunity to remind members that, using the new system, if a member seeks to make an intervention, they should press the relevant button on the console. In the course of the debate thus far, there has been increasing use of the button—well done to all those who have used it. However, I ask those members who are not yet familiar with the system to start to use the intervention button.

I call Pauline McNeill to speak to and move amendment S6M-12855.4.

Pauline McNeill (Labour, Glasgow)

Scottish Labour voted for the Hate Crime and Public Order (Scotland) Bill in good faith, and we supported many of the amendments—especially the amendments that Adam Tomkins lodged to ensure that the bill as enacted would protect freedom of expression. We agree that we must have good, robust law on hate crime that is well understood by those who enforce it, but we also agree that there should be a high test for criminality.

Labour made it clear that a sex aggravator should have been included in the Hate Crime and Public Order (Scotland) Act 2021. Three years on, there is still no sign of the legislation that was promised within one year of that act being passed. In view of that, we call on the Scottish Government to reconsider and to bring in sex as an aggravator now.

Liam Kerr (Conservative, North East Scotland)

Will the member take an intervention?

Pauline McNeill (Labour, Glasgow)

I will—after I have made this point. The First Minister did not help to get the support of women who are trying to make sense of what has happened in the past few weeks when he refused to make the distinction between sex and gender in an interview on BBC Scotland this week.

Liam Kerr (Conservative, North East Scotland)

I remember Pauline McNeill arguing strongly for a sex aggravator at stage 2 of the Hate Crime and Public Order (Scotland) Bill. The Scottish Conservatives voted with Labour to get such a provision inserted in the bill. However, under Humza Yousaf’s whip, the SNP, the Greens and the Lib Dems opposed it. Does she feel that she has been utterly let down by Humza Yousaf, the former justice secretary?

Pauline McNeill (Labour, Glasgow)

I have been quite clear, as has Scottish Labour, that it was wrong not to include a sex aggravator in the 2021 act. What has been exposed over the past two or three weeks is that the Government should reconsider its position now that it knows that, although its proposed misogyny law will be a good law, it will be four years before it goes on to the statute book.

For Scottish Labour, the purpose of this afternoon’s debate is to test the Government’s ability to address some of the serious problems that have arisen over the past few weeks. The implementation of the 2021 act has been a shambles. In the first few weeks, there have been 8,000 reports of hate crimes, which has meant that officers have had to be brought back to do overtime shifts. The Scottish Police Federation has said that an extra 40 officers a day have been needed to deal with the responses to the legislation, not to mention the hapless hate monster campaign.

The Government will say that the situation will calm down in time, but the problem is that the public are already beginning to lose confidence in the legislation, which is why Scottish Labour is calling for urgent post-legislative scrutiny of the act to review the poor implementation and confused communication, and to address the significant issues that have arisen since 1 April.

The police are required to investigate all alleged offences, no matter how trivial or vexatious the reports are. Because of that requirement, Lord Hope, who used to be Scotland’s most senior judge, has commented that the act has placed an “extraordinary” burden on the police. The Government must address that important point. Fewer than 4 per cent of the 8,000 reports of hate crimes that were made in the first week went on to be assessed as actual crimes.

Michelle Thomson was right to raise the reporting of non-crime hate incidents, the policy on which was implemented following the Stephen Lawrence inquiry report. Following a successful legal challenge, that policy is no longer in place in England and Wales. I listened to what the Cabinet Secretary for Justice and Home Affairs said in response to Murdo Fraser yesterday, and I am still no clearer as to whether the non-crime hate incidents that are recorded by the police count in relation to disclosure certificates, for example. There must be a review of the recording of hate incident reporting. I know that that is not part of the legislation that we are discussing, but it has exposed the issue.

Why should anyone have on their record a matter that is deemed not to be criminal? Against the backdrop of the proportionate response to crime approach, that is a really important point. Michelle Thomson was quite right to ask whether the recording of non-crime hate incidents is truly compliant with the Human Rights Act 1998. Personally, I do not think that it can possibly be.

The Scottish Police Federation says that the biggest issue with the 2021 act is the amount of police time that is wasted and the irrationality of a situation in which the police now do not attend and deal with certain crimes. Police Scotland has been using overtime to cope with the online reporting, and that is not sustainable.

The cost of implementation of the ill-conceived 2021 act is already huge. It has been reported that nearly £500,000 has been spent on promoting the act, yet the majority of people are unclear as to how it differs from previous law. I dread to think how much the hate monster campaign has cost the taxpayer, but it has certainly cost the SNP credibility, and it needs to face up to that.

Ironically, the campaign was offensive; one point on which I agree with Russell Findlay is that it explicitly targeted young men aged between 18 and 30—particularly those from socially excluded communities—who, it said, were more likely to commit hate crime. Surely the Government must accept that, with all the good intentions, that is something that has gone horribly wrong.

Angela Constance (Scottish National Party, Almond Valley)

Will the member take an intervention?

Pauline McNeill (Labour, Glasgow)

I am happy to hear from the cabinet secretary on that point.

Angela Constance (Scottish National Party, Almond Valley)

I point out to Ms McNeill that the public information campaign to which she has referred was not a Scottish Government campaign but a Police Scotland one that took place a year ago.

Ms McNeill asked for clarification, so I give her clarification that Police Scotland is reviewing its code and guidance in response to developments south of the border regarding non-crime hate incidents.

Pauline McNeill (Labour, Glasgow)

I welcome that last point, but that is what I thought that the cabinet secretary would say. The Government has to take responsibility. As the Government, it has presided over the implementation of a very important act—we supported it on that—and it needs to take responsibility for the way in which the act has been implemented. It is not right to blame Police Scotland for a campaign that has gone horribly wrong.

The act has merit—that is where I agree with the cabinet secretary. Prosecutors can attach prejudice aggravators to crimes such as assault and threatening or abusive behaviour, and if the aggravator is proved, it can be taken into account in sentencing. However, as I argued strongly at the time, sex is a characteristic that matters when it comes to understanding levels of violence—Lord Bracadale described the omission of sex as a lost opportunity. I fully support the work of Helena Kennedy on misogyny but, understandably, women did not want to wait for the results of a working group, and they were proven to be right on that. Women are regularly the targets of offending behaviour that is based on hostility towards their sex.

Two weeks on from the act’s implementation, the public are none the wiser. The Scottish Government must take responsibility for the mess. I ask it to set out how it intends to address the questions of the roll-out and implementation of the act, to restore confidence by taking major steps if it thinks that public confidence can be restored, and to take the best elements of the law forward.

I move amendment S6M-12550.4, to leave out from “believes” to end and insert:

“recognises that the Hate Crime and Public Order (Scotland) Act 2021 was intended to improve protections for individuals and communities from hate, but has been let down by the chaotic implementation of it by the Scottish National Party administration; acknowledges the Scottish Government’s failure to properly communicate the changes in the legislation, or to give adequate training to Police Scotland; requests that the Criminal Justice Committee carry out an urgent review into the operation of the Act, specifically the new provisions, and calls on the Scottish Government to urgently address the flaws in its implementation of the Act, to use its powers under section 12 of the Act to add the characteristic of sex as an aggravator and protected characteristic under the Act, and to review the recording of hate incident reporting to make sure that it is compliant with human rights law and prevents the recording of vexatious complaints.”

Liam McArthur (Liberal Democrat, Orkney Islands)

Given what the motion says, it is worth reminding ourselves that the Parliament has shown itself willing to repeal legislation when the need arises. It is certainly unusual—thankfully so—but not unheard of. I was a member of the Justice Committee in the previous session when we considered not just the Hate Crime and Public Order (Scotland) Bill but a member’s bill that was lodged by former Labour colleague James Kelly to repeal the discredited Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012.

Some members might seek to draw comparisons between the two pieces of legislation, but I believe that the differences are stark. The 2021 act emerged following a lengthy and detailed review by Lord Bracadale, which was set in the context of mounting public concern at the time about a rise in all forms of hate crime, particularly in relation to antisemitism and Islamophobia; the 2012 act emerged in the aftermath of an infamous old firm match, as a knee-jerk response by the then First Minister, Alex Salmond, to criticism of him and his Government for doing little or nothing to tackle the scourge of sectarianism. The 2021 act reflected the generally recognised benefit to be had from modernising and codifying existing laws while extending certain protections that were in place regarding race to cover other protected characteristics, namely,

“age, disability ... religion, sexual orientation”

and

“transgender identity”;

the 2012 act reflected a something-must-be-done panic in the Government, leading to a decision to use legislative levers to send a message, despite repeated warnings, not least from Police Scotland.

Those differences are crucial to bear in mind in the context of the debate. That is not to say that the bill that was presented to Parliament was not flawed—it was, and fatally so. The Government did itself and its case no favours by initially failing to include any reference to intent in relation to stirring-up offences or even a reasonableness test. Explicit freedom of speech protections were added at stage 3 but would have been helpful in the bill from the outset.

Russell Findlay (Conservative, West Scotland)

I am slightly confused. I was not here in 2021. The member talked about the legislation being fatally flawed, but his party voted for it. Is it now regretting that decision?

Liam McArthur (Liberal Democrat, Orkney Islands)

Russell Findlay should listen to what I am saying. The bill that was introduced was fatally flawed, which is why the Government had to come forward with an intent amendment ahead of stage 1, which is pretty unheard of in this place.

Of course, there was the question whether to include sex as an aggravator. At the time, Scottish Women’s Aid, Rape Crisis Scotland, Zero Tolerance and others all argued strongly against that; instead, they preferred a stand-alone misogyny offence, which Baroness Kennedy’s report subsequently endorsed. There is absolutely no doubt, though, that the continued absence of the misogyny offence leaves a gap in protections that is highly problematic and difficult to defend. Therefore, as I did following yesterday’s statement, I urge the cabinet secretary to publish the promised bill on misogyny without delay. Rather than belatedly adding sex as an aggravator, as the Labour amendment suggests, that remains the best way forward.

In her statement yesterday, the cabinet secretary also acknowledged failings in how the Government has communicated about and prepared for the introduction of the legislation—I think that that is fair. It is unfortunate that such an acknowledgement is absent from today’s motion, as the situation certainly contributed to some of the confusion around the issue.

It would be useful to understand what further steps the cabinet secretary and the minister believe that the Government can take to rectify the position and ensure that the law is applied sensitively, practicably and in ways that fully respect essential freedoms, such as freedom of expression. It was helpful to hear the minister respond to the point that Michelle Thomson and then Pauline McNeill made about the Miller recommendations and the hope that the recording of non-crime hate incidents may well be done differently going forward. However, whatever the failings around communication and preparation for the implementation of the legislation, Parliament needs to decide whether it still believes that robust action is required to tackle hate crime. I believe that it is.

As I said earlier, I served on the Justice Committee, which scrutinised the bill. I had the privilege of doing so alongside former Conservative MSP Professor Adam Tomkins, who proved to be a hugely effective convener. I still consider a couple of the speeches that he made during the stage 3 proceedings on the bill to be among the finest that I have heard in the chamber over the 17 years that I have been an MSP. In those speeches, he spelled out in terms that Parliament found compelling and persuasive the necessity of including robust and explicit freedom of speech protections in the bill. He also made the important point that such freedoms have never been wholly unfettered. As a result, although it will now be an offence to behave in ways that a reasonable person would consider threatening or abusive if, in doing so, the intention is to stir up hatred, the law also states that “particular regard” must be had to the rights to free speech, including the principle that that right protects communications or behaviours that others may find offensive, shocking or disturbing.

In my view, the debate would have benefited greatly from the presence and contribution of Adam Tomkins. I conclude with the words of Professor Tomkins, writing in The Herald earlier this month:

“If we focus on what the Act actually means, rather than on what intemperate voices on both the left and the right are falsely claiming it means, we might yet make a success of it.”

Annabelle Ewing (Scottish National Party, Cowdenbeath)

We move to the open debate.

Murdo Fraser (Conservative, Mid Scotland and Fife)

Lord Hope of Craighead is the pre-eminent Scottish lawyer of his generation. He rose to the position of Deputy President of the UK Supreme Court and is widely respected for his experience and knowledge. Last week, in a newspaper article, he called for the 2021 act to be repealed. He is joined in his criticism of the act by a broad range of opinions, including those of the SNP’s Joanna Cherry MP, representatives from Alba, a wide range of academics, commentators and lawyers and, even significantly—as Russell Findlay reminded us—the police themselves. Representatives of the rank and file and senior police officers have expressed their serious concerns about the legislation. I make that point because it is not just the Scottish Conservatives who are calling for the act to be repealed. That might be the case in the chamber, but in wider Scottish society, our call has extensive backing.

I know that both Labour and the Liberal Democrats voted for the act in 2020. I say to them that there is no shame in accepting that that decision was a mistake, or—in the light of experience, and in particular the shambolic fashion in which the act has been implemented and the pressure that it is putting on an already hard-pressed police force—in reconsidering that decision and joining us in backing its repeal.

I will focus my remarks on non-crime hate incidents, to which a number of members have referred. The issue is not part of the 2021 act but is closely related to it, so I expect that we will see many more incidents being recorded as a result of the act’s introduction.

Last November, a social media post of mine that was critical of Scottish Government gender policy was reported by a trans rights activist to the police as a hate crime. The police determined that no crime had been committed but that the matter would be recorded as a non-crime hate incident.

I was not informed of that. Indeed, I would still be unaware of it had the activist in question not then reported me to the Ethical Standards Commissioner. The commissioner threw out the complaint but, at that point, I became aware of the recording of a hate incident. At that point, in December, I wrote to the chief constable of Police Scotland, asking for an urgent meeting to discuss the implications. I have still not had a reply from the chief constable, although I received a response from my local chief inspector in Perth three months later.

Having taken legal advice, with the support of the Free Speech Union, it is my view that the recording of non-crime hate incidents is unlawful in a number of respects. In particular, I believe it to be in breach of articles 8 and 10 of the European convention on human rights, which protect freedom of expression, particularly of political views.

It is significant that the police in England and Wales had to change their policy on recording of non-crime hate incidents based entirely on the perception of the complainer following the judgment of the Court of Appeal in the case of R (on the application of Miller) v the College of Policing, which Michelle Thomson and others have referred to. For reasons that are best known to itself, Police Scotland did not change its policy at that point. I believe that it will have no alternative but to do so. However, I cannot understand why it is dragging its feet.

The matter was made much worse when I discovered that numerous complaints that were made against both Humza Yousaf and J K Rowling two weeks ago as hate crimes were—in clear breach of stated Police Scotland policy—not recorded as non-crime hate incidents. I have been in correspondence with the police on the issue, but they have been unable to provide me with a satisfactory explanation of why, in my case, a different approach was applied from that which was applied in the First Minister’s case.

Fergus Ewing (Scottish National Party, Inverness and Nairn)

[Made a request to intervene.]

Murdo Fraser (Conservative, Mid Scotland and Fife)

I will give way in a second.

I sincerely hope that that is not an example of political bias on the part of Police Scotland. However, in the absence of any credible alternative explanation, that suspicion must remain.

I will happily give way either to the minister or the cabinet secretary if they can explain why Police Scotland took a different approach to my case from the approach that it took to Humza Yousaf’s case. Neither wishes to do so, so I give way to Mr Ewing.

Annabelle Ewing (Scottish National Party, Cowdenbeath)

Briefly, please.

Fergus Ewing (Scottish National Party, Inverness and Nairn)

I share Mr Fraser’s and Jo Cherry’s concerns. Would one way to peruse the matter in a rational and considered way be for the Scottish Government to appoint a lawyer who is expert in human rights to consider and review the matter, after taking soundings from and consulting the Law Society of Scotland, the Faculty of Advocates and leaders of political parties in Parliament to ensure that the appointee is irreproachably independent? That would be a way to sort out what is a clearly serious matter in Scotland.

Murdo Fraser (Conservative, Mid Scotland and Fife)

Mr Ewing has made a sensible suggestion. Given the Government’s inability to explain what has been going on, any progress on that front would be welcome.

After three months of trying, I have secured a meeting with the police. I am meeting the deputy chief constable of Police Scotland and the chair of the Scottish Police Authority next week.

It cannot be acceptable that the police are treating opposition politicians differently from how they are treating members of the SNP Government. It is simply deplorable that they think that they can avoid providing an explanation to the public for their actions.

In a liberal democracy, we have a principle that must be applied: the principle is policing by consent. That means that the police must be answerable and accountable for their actions. I urge the minister, regardless of whether the motion is passed today, to ensure that the police are acting in a fair and balanced manner in application of their policies. We, as a country, will be in a very dark place if that does not happen.

Audrey Nicoll (Scottish National Party, Aberdeen South and North Kincardine)

Hate crime has long been a scourge on Scottish society and we all have a responsibility to challenge it. The Hate Crime and Public Order (Scotland) Act 2021 was passed by a majority of MSPs in March 2021, following Lord Bracadale’s independent review of hate crime legislation. In his report, Lord Bracadale reminds us that legislation will not change attitudes on its own but that clearly defined legislation and well-developed procedures will increase awareness of hate crime and can contribute to attitudinal change.

I am drawn to the definition of hate crime that was used by Lord Bracadale, which is that offences

“which adhere to the principle that crimes motivated by hatred or prejudice towards particular features of the victim’s identity should be treated differently from ‘ordinary’ crimes.”

The then Justice Committee’s stage 1 report on what would become the 2021 act outlines that evidence was taken from 35 witnesses, that over 2,000 written submissions were received and that research was commissioned to assist scrutiny in relation to elder abuse and approaches in other jurisdictions. The bill was subjected to significant amendment, as has been acknowledged today. That, in my view, reflects a very robust scrutiny process.

The 2021 act consolidates existing protections against offences that are aggravated by prejudice against the five characteristics of disability, race, religion, sexual orientation and transgender identity—the same characteristics as are protected in England and Wales. The act also includes age as an aggravation and introduces the new offence of “stirring up hatred” against people by reason of their possessing particular characteristics. The 2021 act does not prevent people from expressing controversial or offensive views, nor does it seek to stifle criticism or rigorous debate—that simply cannot be part of modern-day society.

Many of us here, in the chamber, have come into politics having left behind a professional life. In my case, that included living through the introduction of many new and challenging pieces of legislation including the Adult Support and Protection (Scotland) Act 2007, the Mental Health (Care and Treatment) (Scotland) Act 2003, the Regulation of Investigatory Powers (Scotland) Act 2000 and hate crime legislation.

The reality is that legislation takes time to bed in and that it takes time for practice to adapt, for officers to build confidence and experience in using new laws, and for the public to understand what new laws mean for them. Not for one second can we diminish the importance of making good law that is effective in its purpose, or the importance of effective training and guidance, and not for one second can we underplay the need for a communication strategy that leaves the public in no doubt about what the new law means for them—a point that was acknowledged in the cabinet secretary’s statement earlier this week.

On the motion to repeal the 2021 act, there is no context, no detail or evidence, no proposal for a replacement and no acknowledgement of the consequences of repeal on legal practice and minority groups.

The Labour amendment does not acknowledge that it is a matter for not only Police Scotland but the Scottish Police Authority to ensure that officers are work ready, well trained and competent in their application of the law. The amendment also calls on the Scottish Government to urgently review the implementation of the act, but I am really not clear what that relates to. It possibly relates to the public education point that Katy Clark raised in her question to the cabinet secretary during yesterday’s statement.

On the point about reviewing the operation of the act, that fails to acknowledge the reporting requirement in Sections 14 and 15 of the act, which require the Scottish Government to publish reports on hate crime convictions and on hate crime recorded by the police. Neither the Tory motion nor the Labour amendment makes reference to the fact that Police Scotland is accountable to the Scottish Police Authority. Indeed, the SPA has been tracking and analysing reporting since 1 April. That is its role.

Of course, as has been previously mentioned, there is a mechanism embedded in Parliament for post-legislative scrutiny, which exists to consider the effectiveness, or otherwise, of law.

In the cloudy landscape of media discourse, there have been some glimmers of positivity. Professor Adam Tomkins, who was convener of the Justice Committee during the passage of the bill, has stated that

“the new hate crime act has been misrepresented by intemperate voices on the left and the right.”

James Chalmers, who is regius professor of law at the University of Glasgow, describes the act as providing

“a more accurate label for prosecuting serious cases of hatred.”

Earlier this week, Andrew Tickell, who is a senior lecturer in law at Glasgow Caledonian University asked:

“Can it really be Scottish Tory policy that harassing the disabled, assaulting ethnic minorities and daubing antisemitic abuse on synagogues should not be treated in Scots Law as aggravated by prejudice? Because that’s a big part of what repealing the Hate Crime Act would achieve.”

I sincerely hope not.

Liam Kerr (Conservative, North East Scotland)

[Made a request to intervene.]

Annabelle Ewing (Scottish National Party, Cowdenbeath)

The member is about to conclude.

Audrey Nicoll (Scottish National Party, Aberdeen South and North Kincardine)

Hate crime is everyone’s business and it ruins lives. I hope that the motion is more about political gesture than it is about a serious proposal. I urge members to support the Scottish Government’s amendment.

Elizabeth Smith (Conservative, Mid Scotland and Fife)

It is the Parliament’s 25th anniversary year and the thoughts of many journalists and commentators are rightly focused on how well it is functioning and, in particular, on whether we are capable of passing good law. Now, good law is, as Adam Tomkins reminded us, the concept in jurisprudence that decrees that a legal action is both valid and able to hold legal weight—not a law that has had to be overturned or rendered obsolete. It is a law that is the basis for effective policy making and, as such, it requires clarity of purpose; to be understood in simple language; to be strong in its evidence base; to be workable; and, of course, to be accepted by the public. In short, it should balance the requirement for simplicity with legal precision. Those are surely the criteria against which we should examine the 2021 act.

I do not doubt for a minute that the basic intentions of the act were good ones. Who can argue against the fact that hate is an all-too-prevalent cancer in our society, and who can argue against protecting vulnerable minorities who tend, all too often, to be the victims? That is why, during stage 1 of the bill three years ago, those principles were supported by every party in the chamber. The problem is not the intention but, as only the Scottish Conservatives pointed out at the time, the fact that the act does not meet the thresholds for good law. Instead, it constitutes bad law, because it is based on unsound interpretation of the legal principles and on a proposition of law that is erroneous.

Now, the First Minister and the proponents of the act assure us that the bar for prosecution is set high, but we have found out that the police have been recording hate incidents even if they do not meet a criminal threshold. Worse still, individuals might not know that they are on the recorded list, as happened to Murdo Fraser. That assurance does not hold water.

Keith Brown (Scottish National Party, Clackmannanshire and Dunblane)

Will the member take an intervention?

Elizabeth Smith (Conservative, Mid Scotland and Fife)

I will not, if the member does not mind.

Nor does the fact that there is no clear distinction between private and public settings. It is rightly anathema to free-thinking Scots that, potentially, in the privacy of their own home they can commit a crime that will be reported on.

The real problem for the act is that it is attempting to crack down on a problem that is not clearly defined, thus muddying the waters about the right balance between freedom of expression and human rights. It goes well beyond Lord Bracadale’s review, because it is based on how you are perceived by someone rather than on your belief or action.

As the Law Society of Scotland reminded us at stage 1, all victims of whatever characteristics cannot by this act have the same expectation of what is offending behaviour. That means that there is no clear line between offensive behaviour that has been criminalised and that which has not, which is no doubt why the Scottish Police Federation is so concerned about the act being unworkable.

There is a wider issue here, too. Why is it that, when so many stakeholders raised concerns, they were not listened to by the Scottish Government? The First Minister tells us that the current controversy about the act is largely a result of misinformation and misrepresentation among what he described as the “Holyrood bubble”? How wrong he is if he thinks that it is just politicians making a fuss.

However, what bothers me more is the fact that this is by no means the only example of the Scottish Government’s unwillingness to listen in order to prevent the enaction of bad law. We saw it in gender recognition, in offensive behaviour at football, in railway policing and in named persons law, all of which failed to adhere to the principles of good law.

Despite the good intentions, part 2 of the 2021 act is illiberal, intrusive and deeply flawed, and just as for named persons law, it is deeply unpopular with the public because they can see those glaring flaws all too clearly. Just as for named persons, the legal responsibilities are confused. Just as for named persons, the Scottish Government does not appear to be listening to the legal advice, the police or the many stakeholders who feel that it will be an intrusion into privacy and personal choice. Just as for named persons, fair-minded people can see that the act as it currently stands is unworkable.

The Scottish Conservatives opposed the Hate Crime (Scotland) Act 2021, not to scaremonger or to incite fear, but because it was wrong. That is why it should be repealed. I finish by saying that not only should the Scottish Government be asking itself about why it fails to heed the right advice; so, too, should this Parliament be reflecting on why it ends up with too much bad law. That is a debate for another day.

Carol Mochan (Labour, South Scotland)

Today’s debate is an important one, because we need robust good law and we must discuss things if they have not gone well. In my view, the SNP has yet again failed to effectively implement important legislation. Constituents are telling me that the SNP runs a Government that is founded on incompetence, and, in the past few days and weeks, the Government has been in denial about the strength of feeling across communities on the issue.

Poor governance and poor implementation of legislation will inevitably lead to challenge after challenge and struggle after struggle. For the First Minister, that has been the story of his leadership so far. Why is that important? It is important because people lose confidence.

Alasdair Allan (Scottish National Party, Na h-Eileanan an Iar)

Will Carol Mochan acknowledge the point that the minister made some time ago that, regardless of what members’ views are about implementation, there have been orchestrated campaigns in this country to, I would go so far as to say, waste police time around the implementation of the act by what I think can only be called bad-faith actors.

Carol Mochan (Labour, South Scotland)

I will go on to discuss the way in which we, as parliamentarians, need to be responsible in this area.

The implementation of the 2021 act and the subsequent reaction by the Government has shown that the Government is not performing. It is completely out of touch. Again, I want to make the point that the reason why that is important is that it causes our communities to lose faith.

As my colleague Pauline McNeill noted, the SNP had an opportunity to show that the act could be sensibly and correctly implemented, but instead we have ended up with a disastrous messaging system while completely failing to resource and train Police Scotland. It is not an issue on which the SNP can employ its usual dither and delay tactics; it needs urgent and purposeful action to correct things before our communities completely lose faith.

Siobhian Brown (Scottish National Party, Ayr)

It is important to highlight that, for the past year, I have regularly met justice partners, including Police Scotland, and we were not going to implement the 2021 act until Police Scotland was ready with the implementation of its computer system and with training. The date was, therefore, on Police Scotland’s terms.

Carol Mochan (Labour, South Scotland)

If we are to have a mature debate about the 2021 act, we must acknowledge that we can see that Police Scotland is struggling. We know that it is underresourced and that the training that is in place consists of only a small two-hour package. Given the importance of this legislation, that is not enough.

I will not go back over the points that Michelle Thomson, Pauline McNeill and others have made about the legislation’s compliance with human rights law, because the minister has tried to address that issue, but I hope that the cabinet secretary will address it again in her closing remarks.

What is important is the way in which our communities are being failed. We are failing on the messaging front but, more importantly, we are failing on the promises that were made, which the minister reiterated in her opening remarks, on tackling hate crime in this country. It is important that we tackle hate crime in Scotland.

I cannot, in good conscience, sit back today and listen to the Conservative Party try to take the moral high ground. Conservative members in the chamber are part of a Conservative Party that tries to pit workers against workers, which politicises the most vulnerable in our society, including those who are seeking refuge, and which has fallen so far that it has no interest in fighting an election on its record, preferring to do so by dividing communities and creating tensions within them.

Elizabeth Smith (Conservative, Mid Scotland and Fife)

Will the member give way?

Carol Mochan (Labour, South Scotland)

Not at this point.

I urge the public to see the motion from the Conservatives today not as a call in favour of freedom of speech or expression but rather as a further attempt to exploit those who are often the most vulnerable in our community. I maintain that there is nothing positive to say about the SNP’s implementation of the 2021 act, but the Conservatives’ approach is, in my view, opportunistic, and I am confident that the public will see that.

Elizabeth Smith (Conservative, Mid Scotland and Fife)

Will the member give way on that point?

Carol Mochan (Labour, South Scotland)

Of course.

Elizabeth Smith (Conservative, Mid Scotland and Fife)

I am not sure whether the member has been following what Conservative members have said in the debate. The reason why we oppose the 2021 act and want it repealed is that it is based on bad law. It has nothing to do with political opportunism or anything like that—it is based on bad law, and that is why so many people in Scotland object to it.

Carol Mochan (Labour, South Scotland)

I always find the member’s contributions to be very reasonable, but in the context of this framework, I find that the Conservatives do not perform well.

I do not have much time left, so it is important that I turn to the Labour amendment, which calls for the use of section 12 of the 2021 act

“to add the characteristic of sex as an aggravator and protected characteristic under the Act”.

I have limited time, but I ask members to consider that. Why do I believe that? We only have to listen to some of the excellent speeches that were made by women at that time, including by my colleagues Johann Lamont and Pauline McNeill, who, along with others, contributed greatly to that debate. The minister and the cabinet secretary must accept that we cannot wait for four years and that continuing on the same path that they have been taking does not mean that the issue will disappear.

I do not have much time left, so I will close. I hope that the Parliament will support Labour’s amendment, because it sets out a balanced way to approach how we can implement this very important legislation.

Rona Mackay (Scottish National Party, Strathkelvin and Bearsden)

I welcome the chance to speak in the debate both as a current member of the Criminal Justice Committee and as a member of the Justice Committee when the bill that became the Hate Crime and Public Order (Scotland) Act 2021 was passed.

This debate will, I hope, sort the fact from the fiction, of which there has been an abundance since the start of the month. In 2021, the Justice Committee was convened by a former Tory MSP, the professor of public law Adam Tomkins, who skilfully steered the bill through the various stages until it was passed by 82 members in the Parliament.

In recent weeks, Professor Tomkins has confirmed that some of the key pillars of the new law, such as its provision criminalising the stirring up of hatred, have been around for decades. Indeed, stirring up of racial hatred has been on the statute book in Scotland since 1986. Professor Tomkins explained:

“What the Hate Crime Act does is to take that core idea (stirring up racial hatred) and apply it to a range of ‘protected characteristics’: not just race”—

Russell Findlay (Conservative, West Scotland)

Will the member tell me how Professor Tomkins voted in relation to this legislation?

Rona Mackay (Scottish National Party, Strathkelvin and Bearsden)

I am aware that he did not vote for it. I am not talking about that; I am talking about his recent comments and the process of the bill going through the committee. He had his own reasons for not voting for it.

Professor Tomkins said:

“What the Hate Crime Act does is to take the core idea ... and apply it to a range of ‘protected characteristics’: not just race, but religion, sexual orientation, transgender identity, age and disability”.

He went on to say:

“this idea is not new. In England it has been a crime to stir up hatred on religious grounds since 2006 and on grounds of sexual orientation since 2008 ... One of the things the new Hate Crime Act does is to bring that anomaly to an end.”

Crucially, Professor Tomkins confirmed that

“Offensive speech is not criminalised by this legislation”.

Let us be clear that hate crime has a hugely damaging and corrosive impact on victims, their families and communities. People are afraid to leave the house, are being bullied and harassed at work, and are living in a state of perpetual fear. I cannot imagine how difficult and distressing that must be.

The 2021 act is designed to protect people from the worst of that human behaviour and to give them greater protection. Who could argue with that? The Tories, apparently, with their ludicrous motion, which would leave Scotland the only nation in the United Kingdom with no protection at all for vulnerable groups.

Liam Kerr (Conservative, North East Scotland)

Does the member not concede that, whatever the bill—which, at stage 1, she will recall, we all voted for—and the act were designed to do, it is the implementation that is fundamentally flawed?

Rona Mackay (Scottish National Party, Strathkelvin and Bearsden)

I am not sure that it is reasonable to talk about implementation 17 days after an act has been introduced.

The Tories want to roll back on commonsense legislation that is designed to protect our citizens who need it most. It is incredible that a motion has been lodged that could roll back protection and give free rein to hate speech and abuse.

The 2021 act has been deliberately—and wrongly, in my opinion—conflated with the debate around transgender rights, despite disability, faith and sexual orientation also being protected characteristics. The fact is that the debate should not be so divisive. No one wants to curb free speech, and the act certainly does not do that. The right to freedom of expression is specifically included in the legislation. The act is also compatible with the European convention on human rights, including article 10, which protects everyone’s right to freedom of expression. There is also a defence available if

“the behaviour or communication ... was, in the particular circumstances, reasonable.”

The new laws were developed following Lord Bracadale’s independent review of hate crime legislation, which concluded that new specific offences relating to stirring up hatred were needed. The legislation was subject to extensive consultation and engagement throughout, including with communities affected by hate crime. It was widely amended on a cross-party basis and is probably the most amended bill that I have ever been involved in.

The act has a high threshold for criminality. For the new offences in the legislation, it has to be proved that the behaviour is “threatening” or “abusive” and intended “to stir up hatred”. If the act was repealed, as the Tories want, we would in effect be condoning the stirring up of hatred against minorities and vulnerable people.

Hate crime is behaviour that is criminal and rooted in prejudice. It can be verbal, online or physical. It is ugly and has no place in a modern Scotland where our police officers are trained to combat prejudice. The pity is that, such is the level of misinformation, Police Scotland has had to correct inaccurate media reports about training materials—a level of misinformation that has opened the doors to a flood of vexatious anonymous reports to the police. I am willing to bet that they come from people who complain that the police do not have time to fight crime. The irony is astounding.

I find it interesting, but probably not surprising, sadly, that the stooshie around the act did not take place in any other part of the UK or internationally where hate crime legislation is in place. The underlying reasons for that are, of course, open to debate.

I want my children and grandchildren to grow up in a Scotland without hate and prejudice and to know that everyone is equal, whatever their race, disability, transgender identity, sexual orientation or age. Repealing the act would do future generations a great disservice, and Scotland deserves better. I will not support the motion at decision time.

Jamie Greene (Conservative, West Scotland)

I really need to clear something up. Having a problem with the act does not and never will mean that we condone hatred in any shape or form. I say that directly to the members who have stated that, because hatred in all its forms is wrong. Racism, antisemitism, Islamophobia, homophobia, transphobia and misogyny are all wrong. That is not up for debate with me.

The problem is that Lord Bracadale’s suggestion that Scotland’s hate crime landscape was confusing was probably correct. The early incarnation of the hate crime legislation was probably well meaning. We never disagreed that tackling hate crime was important, and we never disagreed that the bill improved as it went through the legislative process. However, we were also clear that our red lines had been crossed.

Much has been said about Professor Tomkins, who is not here to speak. However, what he said is a matter of record. He voted against the bill, and here is why, in his own words:

“Even as amended and after all the work that we have done, the bill continues to pose a real risk to our fundamental rights and liberties”.—[Official Report, 11 March 2021; c 47.]

It is there in black and white. He, I and eight others in the chamber did not support the final proposal. It is interesting that none of those eight is still in the Parliament today.

Liz Smith was absolutely right. Bad law with good intention was becoming the norm in the previous session of Parliament. Laws that created confusion rather than cleared it up were also becoming the norm. At least the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012, which was one such error, was repealed when the Parliament finally showed some grit and teeth. Those were the days.

Our red lines were unambiguous and clear. First, the bill was not, as has been claimed, directly comparable to legislation elsewhere in the UK. It clearly went much further. Secondly, the bill created offences that were vaguely worded, widely misunderstood and impossible to enforce. We now know that. Thirdly, and fundamentally, the act has fallen on its own sword of unnecessary intrusion into individuals’ rights, including their privacy in their own home. That is why we voted against the bill.

Yes, we tried to improve the bill. There was the dwelling defence in amendment 5 and the inclusion of sex as a protected characteristic in amendment 4. I voted for both amendments, but the Government did not.

It was clear back then that the bill was way more than a consolidation bill. It veered far into the territory of articles 8 and 10 of the European convention on human rights. Everything that we said would happen has happened. The act has become a vehicle for huge numbers of vexatious complaints to the police. A person can be accused of a hate crime with no means of finding out by whom or why, and they will have no idea if any record remains of that. That should be a concern to all of us, whatever our politics.

The question was never about whether we were for or against tackling hatred—that is a nonsensical argument. It is about whether this law was the right way to go about it. Is the legislation clear, proportionate and enforceable? If it failed those tests, I would not support it, and I did not support it.

Like many people—albeit for different reasons—I have experienced my fair share of bigotry over the years. My poor office staff have to delete most of that, and my poor mother reads the rest of it on Facebook. However, the question is how I choose to respond to it and, more importantly and philosophically, whether people hold the fundamental right to hold views towards me that I or others find offensive.

Back in 2021, Humza Yousaf, who was then the Cabinet Secretary for Justice, was clear. He stated that, if someone believes that

“sex is immutable”

or if

“they proselytise that same-sex relationships are sinful”—[Official Report, 11 March 2021; c 28]

they would not fall foul of the law. For the record, I disagree with both comments. Stating a belief is not what this law was about. Given that there have been 10,000 reported hate crimes since 1 April, the question that we must ask ourselves today is: how many of those were actually about what this law is about?

Of course, we need laws to protect people. I benefit from laws that protect me. People cannot discriminate against me because of my sexuality. I supported in the Parliament—perhaps not without consequence—reform to gender recognition, and I do not regret that. However, I struggle to see why it becomes a police matter if somebody holds a different view on that matter from mine and expresses it. That is the conundrum that I have grappled with all the way through the process, because I fundamentally believe in freedom of speech.

The bill ventured way into the territory that criminalises not just what a person says or what they do, but how they are perceived. Free speech does not mean carte blanche to say anything to anyone we want at any cost, with no recourse or consequence—I understand that. However, we do no justice to tackling hatred if people believe that their thoughts and views are being policed in the most granular and inappropriate way that a Government can police them. That was my red line back then, and it is still my red line today.

Sometimes Governments just make bad law—it is as simple as that. They make laws that do not eradicate hatred and do not inform the public discourse. I say to members that, if I thought that I had made a mistake by voting against the bill the first time around, trust me, I would say so. Today, we have the rare benefit of hindsight and today, I, too, will vote to repeal the act.

Stuart McMillan (Scottish National Party, Greenock and Inverclyde)

There has been a vast amount of misinformation about the act. That is why I wanted to speak today.

Russell Findlay (Conservative, West Scotland)

We have heard a lot about misinformation, but can Stuart McMillan point to one specific example of misinformation from members in the chamber?

Stuart McMillan (Scottish National Party, Greenock and Inverclyde)

I have just started my speech. I will continue it. Let us see whether it answers Mr Findlay’s question.

At the outset, I put on record my disappointment at the way that the legislation has been conveyed publicly. Sadly, some media outlets have helped to peddle the narrative that the Hate Crime and Public Order (Scotland) Act 2021 is about limiting or removing free speech. That could not be further from the truth. Fundamentally, hate crime is behaviour that is both criminal and rooted in prejudice. It can be verbal, physical, online or in person. The act aims to tackle the harm that is caused by hatred and prejudice and to provide greater protections for victims and communities.

The legislation does not—I repeat, does not—prevent people from expressing controversial, challenging or offensive views, nor does it seek to stifle criticism or rigorous debate in any way. The right to freedom of expression is specifically built into the act.

It is the height of hypocrisy that the Conservatives are asking the Parliament to repeal the act, citing free speech limitations, when their Westminster colleagues are campaigning for the UK to leave the European convention on human rights.

Earlier, Audrey Nicoll spoke eloquently about the consequences that would result from repeal of the act.

Pauline McNeill (Labour, Glasgow)

I quite agree with the member. The intention behind the act—and importantly, it was amended as such—was that people could express their views even if they were insulting or offensive. However, I wonder whether Stuart McMillan has given thought to what Murdo Fraser said. If there is a high bar for criminality, why are we experiencing issues with people being reported to the police for doing things that should not concern a police station?

Stuart McMillan (Scottish National Party, Greenock and Inverclyde)

I know that Pauline McNeill poses a genuine question. Earlier, one of my colleagues spoke about some of the actors in society who do not want the act to succeed. Sadly, there are bad actors in our society, and we have to accept that there are. Not everyone is a bad actor, but there are bad actors. In my opinion, some of those bad actors will have had an effect on what has happened in the media over the past couple of weeks.

I go back to the point about the UK seeking to withdraw from the European convention on human rights. That is despite the UK having drafted the ECHR and being one of the first states to ratify it in 1951. The issue is important because the ECHR offers significant protections on the rights to life, liberty, a fair trial, freedom from discrimination, freedom of assembly and freedom of expression, among other legal safeguards. Despite some of the grandstanding by the Prime Minister, the UK remains a participating member of the convention, of the European Court of Human Rights and of the Council of Europe. Whereas the Conservative UK Government seeks to abandon human rights, the SNP Scottish Government seeks to further enshrine them through our proposed human rights bill.

Another crucial point that has been lost in some of the public discourse is that the Hate Crime and Public Order (Scotland) Act 2021 mirrors legislation in England and Wales. We would not believe that to be the case from reading some of the criticisms that the law has attracted online. That is an inconvenient truth for those who do not support the Scottish Government, devolution or the Scottish Parliament. The continual talking down of the Scottish Parliament and what it does has gone into hyperdrive in recent years. The criticism of the 2021 act is just the current manifestation of those actions.

Elizabeth Smith (Conservative, Mid Scotland and Fife)

Will the member take an intervention?

Stuart McMillan (Scottish National Party, Greenock and Inverclyde)

I have already taken two interventions.

For clarity, the new offence—of threatening or abusive behaviour that is intended to stir up hatred based on prejudice towards characteristics, including age, disability, religion, sexual orientation, transgender identity and variations in sex characteristics—reflects the law in England and Wales, which recognises five types of hate crime based on race, religion, disability, sexual orientation and transgender identity. Any crime in England and Wales can be prosecuted as a hate crime if the offender has either demonstrated hostility based on those characteristics or has been motivated by hostility based on those traits.

As you know, Presiding Officer, and as members should know, the offence of stirring up racial hatred has been on the statute books in Scotland since 1986. Therefore, the stirring up of hatred provisions in the 2021 act are not new, and the new law implements a higher threshold for criminality than the long-standing stirring up of racial hatred offence.

As politicians, I am sure that we all recognise that hate crime does not just take place online. Sadly, we all know of colleagues in the chamber who have experienced threats. Sometimes, those threats have extended to our staff. That has been the case recently in my office. I mention that as a reminder to all MSPs of the role that we play in informing the public about legislation that has been passed in the Parliament. It is a simple law of physics that, with every action, there is a reaction. Whether or not it is intentional, misleading people is counterproductive and, in some instances, it can be dangerous.

I thank the cabinet secretary for her statement yesterday, although it is sad that it had to be made. Clearly, lessons have to be learned about how legislation is communicated to the public but, fundamentally, we as legislators must consider our language and our actions. Politics can be a robust business, and that is healthy in any democracy. However, we should not allow our criticism to cloud debate with misinformation, as I have regrettably found to be the case on too many occasions when discussing the act.

Maggie Chapman (Green, North East Scotland)

It is clear that many Conservatives do not like the idea that victims and survivors of threatening or abusive behaviour on account of disability, religion, sexual orientation, transgender identity or age deserve the protection of the law. The Conservatives want to repeal the legislation that was passed by an overwhelming majority of this Parliament three years ago—a majority that included one of their members.

At a time when hate crimes have been increasing against, for example, disabled people and against people on the basis of their sexual orientation, and given the previously confusing hate crime legislation in Scotland, it is clear why Lord Bracadale considered such legislation necessary. If the Hate Crime and Public Order (Scotland) Act 2021 were to be repealed, we would have, at best, fractured and scattered protections against hate in Scotland, given that the act repealed previous hate crime legislation. If that is the intent of the Tory motion today—if the Tories really want us to have virtually no hate crime legislation in Scotland—it is a pretty damning indictment of what that party thinks of so many of the freedoms that are outlined in much of international and UK human rights law and other civil protections.

We have heard much in Tory contributions about how we must stop sowing division in Scotland, about the importance of freedom of speech and about the value of communities coming together. I do not disagree with those sentiments or intentions, but it is clear that the debate is in danger of being flooded with the crocodile tears of Conservatives, because they care not a jot about freedom of speech. Their party, which is in government at Westminster, is responsible for a series of authoritarian attacks on the rights of people to express themselves. If it is not curtailing the right to protest, it is supporting the police in arresting journalists who are covering those protests. All of that is served with a side of undermining workers’ rights to withdraw their labour.

Such restrictions, as contained in the Police, Crime, Sentencing and Courts Act 2022 and the Public Order Act 2023, to name but two, have been condemned as draconian and deeply concerning by UK and international human rights organisations. The UK Government cheerfully steers the country into the third tier of the index on censorship rankings for freedom of speech, while those in the chamber claim that the only important thing is that they or their pals get to freely misgender people, stir up hate and generally make people feel unsafe.

The UK ranks alongside Moldova in relation to freedom of expression in no small part because of UK Government policy. It is all of a piece with a broader Tory agenda to silence opposition. While universities in England are to be compelled to host hate speakers, Priyamvada Gopal was disinvited from a Home Office event for having the temerity to write about the failings of the British empire. If someone wants to promote sexism on campus, the Tories are all for it, but if someone wants to point out that British forces tortured Kenyans during the Mau Mau insurgency, they will be silenced. The Conservatives are interested not in free speech but in silencing opponents and giving a free platform to those who want to spread the sort of speech that they agree with. Given that, today, they are opposing measures against hate speech, I think that we can all see what the character of the speech that they support is.

The legislation, which was passed with cross-party support three years ago, does two main things. It requires courts that deal with existing crimes, such as assault and criminal damage, to consider aggravating hate factors, and it creates new offences of stirring up hatred. Neither of those things is entirely new or unprecedented. Scottish law already recognised that, when an offence is prompted by, for example, racial or religious hatred, the sentence should reflect our society’s shared belief that such bigotry is unacceptable. Similarly, we already had a long-standing law against stirring up racial hatred, while other parts of the UK also have laws against stirring up hatred based on people’s religion or sexual orientation.

The 2021 act brings those provisions together and extends protection to the characteristics of age, transgender identity and disability. It rightly retains the existing robust understanding of stirring up racial hatred but, in relation to the other characteristics, there are multiple safeguards to ensure the protection of free speech. It is only when someone intends to stir up hatred and is not acting reasonably—when a reasonable person would consider the behaviour to be threatening or abusive—that an offence might be committed. The 2021 act does not criminalise discussion of gender issues, criticism of policies or ridicule of religion. It also abolishes the outdated offence of blasphemy, as the minister outlined.

Contrary to what the Tories would have us believe, the 2021 act is not an act of censorship; it is one of protections—protections for people who should never have to face abuse, violence or hate, in person or online, just for being who they are.

Fergus Ewing (Scottish National Party, Inverness and Nairn)

The life of the hate monster was a short but infamous one, because it became known all over the world, as I heard from friends in places as far away as New York and the far east. It achieved something that I did not really think was possible—for a short while at least, the hate monster became better known than the Loch Ness monster. I had not contemplated that that would be possible.

I hope that it is axiomatic—others have made this point—that everyone in the chamber must abhor hateful, abusive, horrendous and disgusting remarks and behaviour of a very serious nature. It is not helpful to the debate to suggest that some members in the chamber with whom we might happen to disagree politically somehow condone, permit or, in some way, favour the expression of hatred. Nobody does that here; we are a civilised chamber. That is not a sensible point to make in the debate, and it does not travel well.

Are we saying that people outwith the political bubble, class or whatever we want to call it—people such as Lord Hope, those in the Police Federation and J K Rowling, whose world is not of politics and who have other interests entirely—are in favour of condoning, permitting or encouraging hatred? Of course they are not. They are expressing legitimate criticisms.

As it happens, and not just because I voted for the bill when I was bound by collective responsibility, although I would have liked to have included women as a protected grouping and regretted that they were not included—that really must be put right—I will not vote for the Tory motion, because I do not believe that the act needs to be repealed, as Liam McArthur argued in his excellent contribution.

However, there is a strong case that the act should be reformed, in many ways. I do not have time to address all of the issues, so I will address just one, which is the issue of non-crime hate incidents, which is almost an oxymoron, actually. As a lawyer and someone who has studied the law almost every day, in one way or another, since 1979, and who studied before then at Gilmorehill, I remember attending criminal law classes and reading Gerald Gordon’s excellent text and studying crime; I do not remember the chapter about “non-crime hate incidents”. In fact, I do not remember any chapter about “incidents”. What are “incidents”?

In Scotland, if someone is charged with a crime, they have the right to defend themselves—the right to a fair trial. That is our system. However, that does not apply to these “incidents”. Mr Fraser’s experience is absolutely apt. I understand from discussion with him that he found out that there was a black mark against his name only because the complainant had made a complaint to the Ethical Standards Commissioner, who then informed Mr Fraser of it. It was thus only fortuitously that Mr Fraser even found out that there was a black mark against his name.

I should say that I have given notice to the justice secretary of this line of argument. Yesterday she dealt satisfactorily with many of the points that concerned me. I respect her efforts and appreciate her help, and I know that she advocates a review by the police and Martyn Evans.

Angela Constance (Scottish National Party, Almond Valley)

I am grateful to Mr Ewing for giving way. Obviously, I need to take some care when individuals have complaints and issues in relation to which they may or may not be seeking legal redress. I also need to be very careful not to step into operational matters. However, I want to put on record the conversation and exchange that I have had with Mr Ewing.

I have, indeed, discussed issues in and around the broad policy of non-crime hate incidents with the chair of the Scottish Police Authority, and very much intend to do so again. I accept that clarity on these matters is very important.

Fergus Ewing (Scottish National Party, Inverness and Nairn)

I thank the justice secretary for the engagement.

I gather that, if I were to make a subject access request to the chief constable as to whether there are any marks against my name, I would get a blank sheet of paper. He would not tell me, because apparently the information is held on something called an interim vulnerable persons database. When have we debated that? I do not recall it.

Is it not even more insidious that you can have a black mark against your name without even knowing about it? In what sort of democracy are we living? I used to read serious novels. I do not any longer, but I remember reading Franz Kafka, and that is the name that springs to mind. This is not a feature of western democracy, where the right to a free trial is a cornerstone and a pillar of our system. It is an abnegation of that. Why are we tolerating it?

With respect, cabinet secretary, the role of this Parliament is giving a lead, not just leaving it to the police and sitting on the sidelines as a spectator.

Alison Johnstone (Presiding Officer, Lothian)

You must conclude, Mr Ewing.

Fergus Ewing (Scottish National Party, Inverness and Nairn)

The suggestion that I made—which is that there should be an independent expert human rights lawyer selected after agreement with all relative parties to ensure an irreproachable degree of independence—would be the right way to take that forward and end what I see as a perversion of our justice system in Scotland.

Liam Kerr (Conservative, North East Scotland)

In looking at the amendments—both those selected and those not—and listening to the remarks of the parties that lodged them, it is striking how surprised they all seem at what has transpired, because everything that has happened since the act came into effect was warned about loud and clear during the bill’s passage.

Lucy Hunter Blackburn warned:

“The people this will get used against are much more likely to be working class”.

That was followed recently by the stupid, infantilising hate monster campaign, which says, utterly egregiously:

“We know that young men aged 18-30 are most likely to commit hate crime, particularly those from socially excluded communities”.

Police Scotland warned in its submissions at the time that the bill’s costs had been “grossly underestimated” and sometimes completely unaccounted for. That was followed last week by the SPF warning that the act will lead to front-line spending restraints and reduced ability to deliver effective policing.

Scott Wortley warned that the legislation

“leaves it open for pressure to be put on people through vexatious complaints which take time and energy to defend.”

Roddy Dunlop warned about potential “weaponisation” at the time of the bill. That was followed last week by a 74-year-old, mild-mannered pensioner being left traumatised, distressed and shaking, having been arrested for being—reportedly vexatiously—accused of a verbal hate crime.

The Society of Editors warned that

“the ‘reasonable person’ test stands every chance of being highjacked and used to silence free speech and penalise a free media.”

That was followed by Scottish PEN recently expressing “deep alarm” at police officers potentially questioning a comedian for making an offensive joke or an actor being reported for communicating threatening or abusive material.

Finally, the Law Society expressed concerns that

“the freedom of expression provisions ... lack a degree of clarity and send confusing messages”

such that people do not know what the boundaries are or might unintentionally commit a hate crime. We now see the pantomime hate monster telling us:

“before you know it, you’ve committed a hate crime”.

The minister, on national radio last week, and the cabinet secretary, just yesterday in this chamber, have wrongly stated that behaviour must be both threatening and abusive to be criminal. If even the Government that introduces the legislation cannot get it right, what chance do the public have?

Despite all the warnings, instead of doing their job and dispassionately and competently assessing the law and ensuring that the act turned basic principles and intentions—on which we were all agreed—into coherent, clear, workable law, supine MSPs from all parties bar the Scottish Conservatives voted through the act in the previous parliamentary session.

We cannot ignore the role and approach of the then Cabinet Secretary for Justice, a man who—the Official Report shows it—hid behind the shield of Government numbers while attacking with the sword of sarcasm and supposition to defeat sensible amendments from across the chamber and who set his face against the voices of civic Scotland, which warned him over and over that, although the principles of hate crime protection may be sound, the implementation would be exactly what we now see coming to pass. This is the author of what was, at the time, the most controversial bill in Holyrood history—the First Minister, who, on the act’s implementation, has not even bothered to come to the chamber today.

That suggests one of two things about the current First Minister: either he was so blinded by dogma and ideology that he was prepared to throw good law, good principles and workable protections against hate crime under the bus, or he was simply incapable of understanding how laws are drafted and operate. Perhaps both are true.

During the process of amending the bill at stage 3, I said:

“We must make law to protect people, but we must also make good law—law that does what it needs to do without unintended consequences.” [Official Report, 10 March 2021; c 82.]

The previous Parliament failed to achieve that, and Scotland has on its statute book an act that will not work, that will be counterproductive and that, in many respects, looks like being actively prejudicial. In the streets and in my inbox, people across Scotland are frankly shocked by how this unworkable legislation wormed its way into public life—rammed through by a group of craven SNP MSPs who were egged on by Labour and the Liberal Democrats.

Let this Parliament right the wrongs of the previous one by consigning the appalling Hate Crime and Public Order (Scotland) Act 2021 to history and, with it, the premiership of this incompetent First Minister.

Christine Grahame (Scottish National Party, Midlothian South, Tweeddale and Lauderdale)

Well, I have been called craven now, which is news to me. I will put my cards on the table: I prefer light, not heat, and fact, not fiction, so here are some facts. Let us look at the hate crime statistics, which predate this legislation.

Since 2014-15, the number of hate crimes—I emphasise the word “crimes”—that have been recorded each year in Scotland has been between 6,300 and 7,000, so hate crime is not new, although perhaps the public, like many of us, were not aware of the extent of it.

Fact: just under a third of hate crimes in Scotland involved a victim who experienced the incident at their place of work or while undertaking duties as part of their occupation. Fact: most of those victims were working in retail or other service industries. Fact: in 2020-21, one in four recorded hate crimes had a police officer victim, with the figure rising to 37 per cent for religion and 45 per cent for sexual orientation-aggravated crimes. In January 2023, the police reported that nearly 7,000 hate crimes were recorded in 2021-22. So, such crimes have been being committed, perhaps without us realising or noticing.

What happened in the rest of the UK? Our legislation is not the same as, but is similar to, legislation in England and Wales, where the law recognises five types of hate crime on the basis of the characteristics of disability, race, religion, sexual orientation and transgender identity. However, we have introduced the characteristic of age, which is good and will, I hope, lead to older people reporting offences against them that have been committed, in part, simply because they are old.

Elsewhere in the UK, the stirring up of hatred on the ground of religion has been criminalised in England and Wales since 2007, and the stirring up of hatred on the ground of sexual orientation has been criminalised since 2010. In Northern Ireland, the law recognises the characteristics of disability, race, religion and sexual orientation.

Of course, our legislation follows the independent review that Lord Bracadale carried out in 2018. I will turn to a few of his recommendations. Recommendation 10 states:

“There should be a new statutory aggravation based on age hostility.

Where an offence is committed, and it is proved that the offence was motivated by hostility based on age, or the offender demonstrates hostility towards the victim based on age during, or immediately before or after, the commission of the offence, it would be recorded as aggravated by age hostility. The court would be required to state that fact on conviction and”—

I underline these words—

“take it into account when sentencing.”

We are talking about aggravations to crimes that have already taken place. That is what an aggravation is.

Recommendation 15 states:

“The current provisions in relation to stirring up racial hatred under the Public Order Act 1986 should be revised and consolidated in a new Act containing all hate crime and stirring up of hatred legislation.”

Recommendation 16 states:

“A protection of freedom of expression provision similar to that in sections 29J and 29JA of the Public Order Act 1986 and section 7 OBFTCA should be included in any new legislation relating to stirring up offences.”

What has followed—I am glad that the Government has admitted this—has been a failure to communicate adequately to the public that the offences in question are not new, with the exception of age as a characteristic, the inclusion of which I am sure that members welcome. However, in my view, that omission has been exacerbated by a deliberate Conservative campaign of disinformation—note that I use the word “disinformation”, not “misinformation”. In my opinion, that bare-faced opportunism probably fuelled the many spam complaints that were received in the first week of the legislation’s implementation. In the second week of implementation, that number dropped by 75 per cent.

I share Fergus Ewing’s concerns regarding Murdo Fraser’s experience and the experience of others, and I trust that the cabinet secretary will give Fergus Ewing’s full comments due consideration, because I think that he hit the nail on the head. I, too, will quote Adam Tomkins, the former Conservative MSP and professor of public law. In March, he stated:

“Offensive speech is not criminalised by this legislation: the only speech relating to sexual orientation, transgender identity, age or disability outlawed here is speech which”—

this is not mentioned in the quote, but I add that these tests are not alternatives but are cumulative—

“(1) a reasonable person (2) would consider to be threatening or abusive and which (3) was intended to stir up hatred and (4) was not reasonable in the circumstances.”

All of those tests must be met.

Unfortunately for me, the charge is led not by Liz Smith or Jamie Greene, who made considered contributions, but, as usual, by Russell Findlay, who is not known for forensic talents similar to those of Adam Tomkins with regard to legislation but has, apparently, an insatiable appetite for the next tabloid banner headline, with his self-indulgent, flamboyant and frequently reckless contributions here and, indeed, in committee. That might offend Mr Findlay, but I trust that he will appreciate that that is an example of my right to expression of free speech, which I know he will defend to the hilt.

Paul O'Kane (Labour, West Scotland)

Although I was not in the Parliament at the time when the legislation was passed, I recognise, as colleagues have done, that it was accepted in good faith and that it sought to act on the findings of Lord Bracadale’s review, of which we have heard much this afternoon. We would all want to take a moment to recognise that hate crime is pernicious and deeply damaging. In his review, Lord Bracadale went out of his way to highlight the particularly challenging circumstances of growing Islamophobia and antisemitism in Scotland and, through his recommendations, he sought consolidation of the law to make things better around access to recourse in that regard.

However, the past fortnight, since the Hate Crime and Public Order (Scotland) Act 2021 came into force, must surely be instructive for the Government, because there has been a clear demonstration of how the chaotic implementation of a law that is intended to improve protections from hate for individuals and communities has actively undermined confidence in that law and in its operation more generally. Many colleagues, including Pauline McNeill in her opening contribution, have outlined that the principles of the act, which consolidates hate crime legislation into one body of law and seeks to tackle damaging hate crime incidents, have been weakened by the Government’s botched implementation. We need to reflect on a number of issues around that.

Pauline McNeill also highlighted that the omission of misogyny and sex-based hate crimes has left women feeling unprotected. There has been woeful communication, which has left people in the dark about what the act does and does not do, and implementation has been undermined by inadequate training and resourcing for Police Scotland. The Government has had three years since the bill was passed in which to ensure that the issues were dealt with—to ensure that the police were properly supported to train officers, to ensure that clear guidance was in place on practical implementation and interpretation, and to communicate clearly with the public about what was changing. We have heard about the three-year delay around the misogyny element, which could have been brought into the bill, and we are still waiting for progress on the stand-alone misogyny law. The inconsistent communication around the act has understandably confused matters.

Although we agree, on the whole, with the general principles of the law, we have to look at the serious problems that have been posed. A number of speakers have helpfully reflected on the challenges. Most notably, Liam McArthur and Fergus Ewing highlighted much that can be done to reflect on the legislation and improve it. It is also important to quote these words from Adam Tomkins, which we have heard many times:

“If we focus on what the Act actually means, rather than on what intemperate voices on both the left and the right are falsely claiming it means, we might yet make a success of it.”

That is where my contribution comes from today. The implementation of the act has not been a good example of how to go about introducing new legislation in Scotland.

I hope that the Government is in self-reflective mode, because it has to take stock of the challenges and problems that have been highlighted throughout the debate, such as the absence of clear communication and guidance and the need for the police to be well resourced and supported, and it has to ensure that progress is made on what is missing from the act. It is clear that a number of things must be done to reflect on the act and move forward, because we have to face the facts of where we are and what we can do.

Pauline McNeill’s suggestions and those in the Labour amendment point very clearly to what should be done. The Criminal Justice Committee should immediately undertake work to review the implementation of the act and look at the specific issues that I and colleagues have raised in the debate. In doing that, it should go into the level and nature of the complaints in the first week of implementation and what has happened with the drop in numbers. That important post-legislative scrutiny, which we are calling for today, should be undertaken by the Criminal Justice Committee, because it is crucial for moving forward.

It is also important that the Government reflects on the broader point of how we resource the police in Scotland. I am seriously concerned about the issues that have been raised by the Scottish Police Federation and others regarding how Police Scotland is resourced and supported. I ask the cabinet secretary to reflect in her summing-up speech on the cuts that have occurred in community policing across Scotland and the challenges that have been posed.

Angela Constance (Scottish National Party, Almond Valley)

Will the member take an intervention?

Paul O'Kane (Labour, West Scotland)

I am in my final 30 seconds. I am sure that the cabinet secretary will want to reflect on that issue in her concluding remarks.

I return to where I began. The intent of the law is right. I think that everyone in the chamber agrees that challenges exist in relation to pernicious hate, but it is clear to me that the Government has failed on the implementation of the law and on building public confidence. It must now act, as we ask in our amendment, to rectify the situation.

Alison Johnstone (Presiding Officer, Lothian)

Keith Brown will be the final speaker in the open debate.

Keith Brown (Scottish National Party, Clackmannanshire and Dunblane)

I will repeat a quote that Audrey Nicoll mentioned. She said that the senior law lecturer Andrew Tickell stated the following:

“Can it really be Scottish Tory policy that harassing the disabled, assaulting ethnic minorities and daubing antisemitic abuse on synagogues should not be treated in Scots Law as aggravated by prejudice? Because that’s a big part of what repealing the Hate Crime Act would achieve.”

Those were his words. However, during the debate, we heard the Tory spokesperson, when invited to do so, refuse to condemn hate crimes or even to acknowledge the existence of hate crimes in Scotland. Given that the Tory motion proposes no replacement for the act, we have to ask a different question: what is it about the absence of effective legislation on hatred against the vulnerable groups that are mentioned in the act that the Tories find so attractive?

The motion is performative. As I noted in my point of order at the start of the debate, it would have no effect on the law as it stands, so what underlies the Tory motive behind the motion? I think that Stuart McMillan was right—it is the latest iteration of the toxic elements of the Tory group trying to attack everything about this institution. There have been attacks on the police, on the judiciary, on the courts and on this Parliament. Of course, they could do what they usually do—they could go to big brother down south and say, “Why don’t you strike down this act of the Scottish Parliament?” I wonder whether any Tory MSP has asked the Tory Government or Alister Jack whether they would consider striking it down.

The trouble for the Tories is that, in a few months’ time, we will see the most venal Government that we have had in living memory thrown out. Who will they plead to then to beat down the Scottish Government?

I heard one Tory member refer to hiding behind the numbers. He was talking about the majority of this Parliament voting for the bill. That reveals the true nature of the Tories’ attitude towards democracy in Scotland. Of course, they have had a campaign with their usual friends. The reason why the Tories sometimes seem so certain of their case in the chamber is that every single word of it is parroted by their friends in the right-wing media.

Douglas Ross (Conservative, Highlands and Islands)

Will the member give way?

Keith Brown (Scottish National Party, Clackmannanshire and Dunblane)

I seem to have encouraged Douglas Ross to his feet. If he can be brief, I will take his intervention.

Douglas Ross (Conservative, Highlands and Islands)

Does the member agree with Lord Hope, the former deputy president of the Supreme Court, who said that the legislation is unworkable and should be repealed?

Keith Brown (Scottish National Party, Clackmannanshire and Dunblane)

I can answer that very briefly by saying no. I do not agree with Lord Hope.

Over time, we will see, as we are starting to see, that if people act in good faith, the act can be effective in protecting the people that it seeks to protect. The reality is that the premise of today’s debate is the Tories’ objection to the policy. The level of misinformation about and mischaracterisation of the act that has, I am afraid to say, permeated the public discussion is really nothing to do with tackling hate crime but is actually a sad indictment of the political, media and online climate that we are living in today, in which outrage increasingly takes precedence over facts. As the cabinet secretary said yesterday, it therefore falls on all of us in the chamber to have a debate that is at least rooted in reality, respect and facts.

The climate that has been created has consequences, and the thousands of false complaints that have been made against people who obviously did not commit hate crimes are not only a huge waste of police time but a sad indictment of the misunderstanding of the act that has been peddled for all the wrong reasons. The fact that nothing has come out of many of the thousands of complaints proves that the fact that a person has discussed or criticised aspects of the protected characteristics and someone has been offended, shocked or disturbed does not make it a hate crime and that that is therefore—quite rightly—not criminalised by the law.

I was here during the passage of the bill. As we heard during that time, people of course have the right to be offensive to other people, including those in the protected groups. However, they do not have to do that; there is no obligation to be offensive to those people. Let us have a thought for the people in those groups, such as those who are suffering from antisemitism or Islamophobia. People are suffering if they are part of the groups that are characterised in the act because of the constant attacks on them, which are encouraged by the climate that we are now seeing. As has been said, they are very often fearful in their own homes, and that is largely to do with the public discourse around the legislation. Although we have the right to be offensive to people in those groups, we do not have an obligation to be so.

I, too, absolutely defend the right to be offensive. If that is what people want to do, they can, as part of free speech. However, the misplaced anger and frustration that have been generated by the reaction to the act is far too often channelled, not least online, towards the groups that the act seeks to protect.

Stuart McMillan mentioned the effect on many members. Like many members, I have had death threats—I think that I have had six now. I have had attacks in my constituency. My office manager was in the court all day yesterday trying to take forward a case against somebody who wanted to kill me. The abuse is constant. We all know that that is happening, but let us accept some responsibility when we feed that atmosphere, because it has real consequences. We have seen those consequences impact those down at Westminster; we do not want to see that happen here.

Craig Hoy (Conservative, South Scotland)

Will the member give way?