Seòmar agus comataidhean

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.

Will the member give way?

Will the member give way on that point?

Will the member take an intervention?

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.

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.

Does the cabinet secretary agree that the stagnation issue to which Mr MacDonald’s question refers is as much a Scottish problem as a UK one, given that the recent Confederation of British Industry-Fraser of Allander report into productivity in Scotland clearly shows that Scotland is failing in 10 out of 13 productivity metrics?

The cabinet secretary will know that, two years ago, her colleague John Swinney identified economic inactivity as the biggest challenge facing the Scottish economy, which I entirely agree with. Since then, the economic inactivity rate has remained stubbornly high. Will she explain in a little more detail what policies the Scottish Government is enacting to address that problem, particularly given that the economic inactivity rate here is higher than that elsewhere?

To ask the Scottish Government what analysis it has undertaken to measure the extent of economic inactivity in Scotland post-Covid-19 pandemic. (S6O-03260)

The main strategic challenge that the higher education sector faces is trying to balance the increasing economic and social demands from the Government with the academic excellence to which we are so accustomed. The pressures on universities are intense because of the financial constraints that they are under, and the percentage share of private sector funding that supports our universities is increasing while state funding is decreasing. As a result, the accountability lines are changing.

In Scotland, some years ago, we saw attempts by ministers to provide much more direction to our universities in promoting economic and industrial strategy. There was an attempt to merge the Scottish Funding Council, Scottish Enterprise, Highlands and Islands Enterprise and Skills Development Scotland, but that was defeated in the Scottish Parliament because it was seen to undermine the sector’s autonomy.

Understandably and rightly, social policy in the area has all been about widening access. No one can argue against the principle of widening access, since it enhances social mobility, promotes better job prospects, is inclusive of more vulnerable groups and can help to reduce poverty. It is essential that we look beyond just exam grades. Widening access should not, however, just be about specific rigid targets.

An example of that is the Government’s insistence that each of our 19 higher education institutions must take 20 per cent of their 2030 intake from the lowest quintile of the SIMD. For a start, the SIMD is by no means perfect, and such an arbitrary target can create a negative externality. To evidence that, in a report on fair access some years ago, Professor Peter Scott flagged up the central problem about widening access in the current model of funding when he said:

“the fixed cap inevitably raises concerns that the drive to recruit SIMD20 students may reduce opportunities for other students.”

That point was agreed by Audit Scotland.

Graeme Dey rose—