The Scottish Government wants to prosecute you for what you say in the privacy of your own home. That's the logical conclusion after the Cabinet Secretary for Justice appeared before the Justice Committee on Tuesday 27 October. Humza Yousaf was giving evidence on the Hate Crime and Public Order (Scotland) Bill.
Largely based on the Public Order Act of 1986, one crucial difference between the two pieces of legislation is that the 1986 Act contained a dwelling defence which protected you from prosecution for remarks made in your own home. However, Mr Yousaf said he did not think a dwelling defence should be included in the Hate Crime Bill.
What it does is if you’re stirring up religious hatred against Jews, with the intent of stirring up hatred in your private dwelling with your children in the room, with friends you’ve invited over for a dinner party if they then act upon that hatred and commit offences that would be prosecuted by the law, should the person who with the intent of stirring up hatred if their behaviour was threatening or abusive, should that person not be culpable? Should they not receive criminal sanction
This raises the alarming prospect that you could be prosecuted for comments made at home, simply because a guest finds them to be offensive, which is itself a highly subjective concept.
The Cabinet Secretary is also going against the advice of Lord Bracadale, whose review into hate crime laws led to the new legislation being brought forward. Speaking to MSPs on the Committee, Lord Bracadale said he did not recommend removing the dwelling defence and fears about its absence were well founded.
No suggestion had been made to me that the existence of the dwelling exception had inhibited the Public Order Act.
Hate Crime laws often start with some kind of noble intention. But it's where they then lead that's the problem. Many people reading these stories will understandably feel that the state is massively overreaching itself.
Yes of course it's possible for hate speech and prejudice to happen in someone's home. But does that really justify the State making judgements about what's been said by someone in their own living room? Privacy matters and it's no wonder MSPs on the Committee expressed strong concerns.
There's still time for the legislation to be amended and, hopefully, it will continue to receive very careful scrutiny. There's a fine line between protecting people from abuse and silencing legitimate free speech. At the moment, the Scottish Government is on the wrong side on that line.
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Prosecuted for what you say in your own home?