For Women Scotland and Murray Blackburn Mackenzie have called on Ms Brown to get the law right and to stop making incorrect statements about non-existent safeguards in the legislation.

Section 4(2) of the Act, which extends “stirring up” offences beyond race to other characteristics, requires the behaviour involved to be “threatening or abusive”.

That the behaviour may solely be “abusive” is central to concerns about the lack of clarity and the potential for chilling effects in the legislation.

This morning on BBC Radio Scotland, Ms Brown repeatedly described the legal test as “threatening and abusive”, stating for example: “So when they say it was debated back in 2021, I know there was robust debate and lots of amendments brought in, which was particularly to strengthen the freedom and mix of expression.

“So it was, as you know, with the exception of the Conservatives, it was voted through through all parties at the Scottish Parliament at the time. Now what it would be to be a crime is to be threatening and abusive, with the intent to stir up hatred towards an individual, and that this would cause this individual to have fear or alarm.

“Now, that is a very, very high threshold for criminality. And also, we’ve been very, very clear within the Act. This is not about restricting freedom of expression, it is protected, you can say something that may be offensive, but this is particularly about being threatening and abusive to cause fear and alarm to individuals who have these protected
characteristics. This is where we’ve got to be very clear. There’s a very high threshold for criminality.”

The offence, however, is specifically concerned with “groups” and there is no reference to “fear or alarm” in the Act.

Ms Brown made the same “and/or” error speaking to Justin Webb on the Today Programme on BBC Radio 4 on Monday and to Trevor Phillips on Sky News on Tuesday.

The organisations stated: “The minister has a responsibility to use her access to public platforms to describe the law here accurately. We are asking her to do so, and journalists to challenge her when she does not.”