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Chamber and committees

Justice Committee

Meeting date: Tuesday, November 17, 2020


Hate Crime and Public Order (Scotland) Bill: Stage 1

The Convener (Adam Tomkins)

Good morning, everyone, and welcome to the 28th meeting in 2020 of the Justice Committee. We have no apologies.

Our first item of business is to continue our consideration of the Hate Crime and Public Order (Scotland) Bill. This morning, we will take evidence from three different panels of witnesses. Our first panel comprises seven witnesses, all of whom I welcome and warmly thank for joining us. We have with us Adam Stachura from Age Scotland; John Wilkes from the Equality and Human Rights Commission; Tim Hopkins from the Equality Network; Oonagh Brown from the Scottish Commission for Learning Disability; Colin Macfarlane from Stonewall Scotland; Kate Wallace from Victim Support Scotland; and Kevin Kane from YouthLink Scotland. Thank you all very much for giving up your time to help the committee with our inquiries. You are all very welcome.

Because we have such a large panel, we will not be able to take opening remarks from you all. Instead, I will launch straight in with the questions. You might all want to respond in turn to the questions, but if you do not have anything to add, please do not feel that you need to. Members will endeavour to address their questions to particular witnesses, at least to start with, so that we do not all speak at once and confuse the broadcasters, on whom we are all relying, as usual, this morning. I would like to direct my first question to Tim Hopkins from the Equality Network and then to John Wilkes from the Equality and Human Rights Commission.

As you know, the expansion of hate crime that is contemplated in the bill has attracted widespread criticism on human rights grounds. In response to that criticism, the Cabinet Secretary for Justice announced in September that he proposes to amend the bill. What is your reaction to the cabinet secretary’s proposed amendments? Do you welcome them? Do they go far enough? Do they go too far?

Tim Hopkins (Equality Network)

Thank you for inviting me to give evidence this morning.

Yes, we support the cabinet secretary’s suggested amendments to the offence of stirring up hatred. I should say that, for us, part 1 of the bill is by far the more important part, but we support the extension of the offence of stirring up hatred to the other protected characteristics.

I will give an example of the kind of thing that I think that the offence should cover. In England, the offence of stirring up hatred on grounds of sexual orientation has been used to prosecute people three times in the past 10 years. One of those prosecutions involved three men who distributed leaflets to houses in the locality. On one side of the leaflet there was a cartoon of a gay man being hanged, and on the other side of the leaflet it said, “The only question about homosexuality in classical times was the method of execution to use.” Those leaflets were clearly intended to stir up hatred and they were threatening.

It is that kind of wrong that the offence of stirring up hatred is targeted at. I do not think that we should assume that the rise of far-right activism could not happen here in Scotland. I think that, in such cases, the court can infer from what has been happening that there is an intention to stir up hatred, so I think that the justice secretary’s proposed amendment does not diminish the utility of the offence.

It is important that the offence covers threatening or abusive behaviour. The materials that were produced by the Nazis about Jewish people included horrible, horribly abusive cartoons of Jewish people that were clearly intended to stir up hatred, but which were not necessarily in themselves directly threatening. We think that it is important that such behaviour would also be caught by the offence.

We strongly support freedom of expression. We think that there is an issue with sections 11 and 12 of the bill, because they cover only two of the protected characteristics and only certain behaviours. We would prefer a freedom of expression provision in the bill that covers all the protected characteristics and is more general in terms. In our supplementary written evidence we made one suggestion for that, but I am sure that there are other possibilities.

That is helpful. I ask the same question of John Wilkes.

John Wilkes (Equality and Human Rights Commission)

Thank you for allowing us to give evidence. Yes, we broadly support the amendments. As the bill proposals were introduced, we followed with interest the debate and the reactions to it from some sections of society. We are supportive of the proposed amendments on the issue of stirring-up offences and, for consistency, we believe that they should apply across all characteristics. However, we acknowledge that racial hatred is the most commonly reported hate crime and note that there are no proposals to change that. In some of our publications, we discuss how to balance freedom of expression and stirring up. I am happy to go into more detail if that is helpful.

The Convener

Thank you. Do any witnesses disagree? Does anybody not support the cabinet secretary’s amendments and think that they are mistaken, or are all seven witnesses unanimous in supporting the amendments? Nobody is disagreeing so I will not pursue that line of questioning.

Rona Mackay (Strathkelvin and Bearsden) (SNP)

I want to ask about the different approach to race hate crime in the bill. My questions are addressed to John Wilkes, Kate Wallace and Kevin Kane. If anyone else wants to add anything they should indicate that.

Race hate constitutes two thirds of all reported instances of hate crime, so it is clear that it is a huge issue. Unlike other proposals in the bill, insulting behaviour might be the basis of liability and not require intent to stir up racial hatred. As we know, stirring up of racial hatred has been a crime in England and Wales since 1986, but there have not been many prosecutions for that crime or the crime of possessing racially inflammatory material. Should race crime therefore be treated differently? Should we take a more robust approach to it, given its prevalence, and does it in effect create a hierarchy of characteristics, being different from the other issues in the bill?

John Wilkes

We broadly agree with Lord Bracadale’s view that the existing provisions on stirring up racial hatred should be revised so that they are formulated in the same way as other offences of stirring up hatred. [Inaudible.]—where possible helps to provide wider understanding of hate crime and how it is dealt with.

We were also persuaded by Lord Bracadale’s evidence that deletion of the word “insulting” did not undermine the ability to bring prosecutions. However, we acknowledge that racial hatred is one of the most commonly reported crimes in Scotland. That is where we stand on the issue at the moment.

Thank you. Kate Wallace? We are not hearing or seeing Kate so we will move on to Kevin Kane until that is sorted out.

Kevin Kane (YouthLink Scotland)

I trust that everybody can see me.

Yes, we can see you.

Kevin Kane

It has been mentioned that the provision on race has been on the statute books since 1986 and has rarely been used. A thought process flows from that, which is to ask: where is the issue? However, we are in the game of education, information provision, training, working with young people in the community and education settings and taking an informal approach, so for us it is important that any legislation is clear for the people who are impacted by the law and for those in the game of education.

It is difficult to envisage a scenario in which using words that are not threatening or abusive would result in criminalisation—I have read some of the previous responses to the question. Therefore, if what is said is not insulting, but meets the threshold for threatening and abusive behaviour, it renders “insulting” null and void anyway.

In our written response, we said that we cautiously shared the Scottish Government’s view that the threshold should be retained as “threatening”, “abusive” and “insulting”. However, we also said that we understood Lord Bracadale’s argument for the removal of “insulting” if it is about streamlining legislation. It is also important to say that streamlining does not mean doing things like for like.

Therefore, the main thing for us is that we need to continue to listen to the affected groups—black, Asian and minority ethnic groups. The view from many of those groups within our youth work equality forums was that the removal of “insulting” would weaken the proposed legislation. Similar to the justice secretary, we believe that we need to keep discussion going on that part of the bill and continue to listen to the views of that community.

I take the point about the potential for creating a hierarchy of protected characteristics. However, being mindful of the justice secretary’s comments about the nature of racial abuse, the structural and historical dynamics and the sheer number of people affected by it in Scotland—which he laid out in his submission last week—there is a case for a slightly lower threshold, perhaps on symbolic grounds.

I can understand why that argument might not hold any weight with a solicitor or a sheriff. However, I was thinking before this session about the Black Lives Matter movement and the great strides that we have made this year. The world is shining a light on racism and taking steps to combat it. Therefore, if I can speak freely, who would want to be the person that would remove something from the law that acts as a key protection for those communities? I can see why the justice secretary would be a little circumspect in his comments.

Unless there is a clear majority from the affected communities that backs its removal, we would not be prepared to take that step. However, it does seem rational and logical to streamline the legislation.

That was very helpful. It does not look like Kate Wallace is able to see or hear us. If anyone else wants to comment, they should put an R in the chat box.

I will move to Liam McArthur, who wants to pick up on some of the questioning about free speech and related matters.

Liam McArthur (Orkney Islands) (LD)

Shona Robison is going to pick up on the issue of strengthening the provisions on freedom of expression protections that Tim Hopkins referred to. I will return to the point about the thresholds of “abusive” and “insulting”.

Mr Hopkins, you quite reasonably set out an argument about some of the early Nazi propaganda, which might not initially have been threatening although it was highly abusive. Is there not a legitimate concern that the terms “abusive” and “insulting” can be fairly subjective? Therefore, although they might capture things that a reasonable person would, appropriately, seek to be captured by the bill and criminalised, they might also—in the minds of those who are on the receiving end—capture things that, although we should not condone them, we should not criminalise.

The point that Kevin Kane made about the way in which the legislation is understood by those it is seeking to protect is important. If there is a heightened expectation that the provisions cover abusive and insulting behaviour, we run the risk of criminalising things that we really should not. Mr Hopkins, do you agree that that is a concern?


Tim Hopkins

Yes, I do. It is important that the term “abusive” is interpreted in an objective way, so that we are not saying that, because one person finds something offensive, it will fall foul of the legislation.

The convener has suggested previously that one way to do that might be for the bill to require that the abusive behaviour should be likely to stir up fear or alarm. However, that is not quite the right solution, because it mixes up two offences: the offence in section 38 of the Criminal Justice and Licensing (Scotland) Act 2010, which is the offence of threatening or abusive behaviour that is likely to cause fear or alarm, and the offence in the bill of threatening or abusive behaviour that is intended to stir up hatred, which is a different thing.

I therefore suggest a different solution. If we want the bill to say specifically that the term “abusive” should be interpreted objectively, I suggest using the solution in section 60 of the Sexual Offences (Scotland) Act 2009, which ensures that the word “sexual” is interpreted objectively for the purposes of that act. If we copied that across to the bill, we would have a provision that said that behaviour or material is abusive if a reasonable person would, in all the circumstances of the case, consider it to be abusive. That would ensure that the term “abusive” was interpreted by everybody in the criminal justice system in an objective way and would allay the concerns that people are going to be investigated or prosecuted because one person said that they found something offensive.

Liam McArthur

That is helpful. I will come to Colin Macfarlane in a second, but first I want to come back to Mr Hopkins on that issue. With any change in the law, there is a tendency for it to be probed and pushed to test the limits to which it extends. Do you envisage a risk that the provision might be a focal point for testing and that cases will be brought that are perhaps not mischievous but are likely to cause anxiety about freedom of expression simply because the police and Crown Office are asked to get involved?

Tim Hopkins

Yes. The answer to that is to ensure that training is done with the police and procurators fiscal before the legislation comes into effect. The pushing of the boundaries that you mention happens anyway, and it could happen with a number of new criminal offences. Therefore, it is important that the police in particular are trained in advance of the legislation coming into effect so that they can be clear to people about the boundary of the offence.

The threshold of threatening or abusive behaviour that is intended to stir up hatred is a high one, and it is important that the police understand that.

I ask Colin Macfarlane to go next. If anybody wants to come in on the back of that, they should indicate in the chat box.

Colin Macfarlane (Stonewall Scotland)

I honestly do not have anything much to add. I agree with Tim Hopkins. It is crucial that there is clarity for those who will be expected to prosecute or take up the issue. Training will be absolutely central to the understanding of the thresholds. On your point about pushing the boundaries, Tim Hopkins is right that people want to test any new legislation, but the crucial aspect of that will be the training, learning and understanding of those who are expected to implement the legislation. I have nothing further to add.

Mr Wilkes, do you want to come back in and say whether the Equality and Human Rights Commission has concerns in this regard?

John Wilkes

Broadly, I endorse the comments of Tim Hopkins and Colin Macfarlane. Clearly, this is one area where the legislation needs to be drawn up very carefully. We need to get the balance right to protect freedom of expression. Obviously, that is not an absolute right, and it depends on the circumstances and context. It is always the circumstances and context that determine whether something amounts to threatening or abusive behaviour or is protected.

In a previous evidence session, a witness from the Faculty of Advocates said that the term “abusive” is clear and understood and that there is “an objective test” in Scots law, so that might bring some comfort.

It is an area that is discussed in many different fora, and we discussed it in our legal framework, which we published in 2015, on hate speech and the limitations of freedom of expression as defined under the International Covenant on Civil and Political Rights. We also note that work has been done by the Office of the United Nations High Commissioner for Human Rights on the Rabat plan, which looks at these divides, and could be a useful guide in looking at these areas of interest.

If no one has anything to add, I will hand back to you, convener.

The Convener

That is very helpful, Liam. I am afraid that we have lost our connection to Kate Wallace from Victim Support Scotland because of technical issues that we have been unable to fix. Therefore, she has withdrawn from the evidence session. If we want to take up anything with Kate or Victim Support Scotland, we will have to do that in correspondence after today. Shona Robison will pick up the questioning now.

Shona Robison (Dundee City East) (SNP)

Thank you, convener. We have received a lot of evidence arguing that the bill’s provisions on a general defence of reasonable behaviour along with the protection for freedom of expression in relation to specific issues need to be strengthened. I want to seek the witnesses’ views on that. Tim Hopkins referred to that earlier, so I will go to him first to see whether he has anything to add. If anyone who has not come in so far wants to respond on that, please type R in the chat box.

Tim Hopkins

Our supplementary evidence suggested a possible improvement to the bill, which might help to allay fears about freedom of expression. It is similar to what happened with the equal marriage legislation in 2014. Concerns were expressed that introducing same-sex marriage could inhibit people from continuing to say, if it was what they believed, that marriage should be between a man and a woman only. We were very clear that that should not be the effect of the legislation, so a section was inserted into that bill—section 16 of what is now the Marriage and Civil Partnership (Scotland) Act 2014—that says that, for the avoidance of doubt, nothing in the act affects your rights under articles 9 and 10 of the European convention on human rights with regard to freedom of religion and freedom of expression. Therefore, in our supplementary evidence, submitted jointly with a number of other organisations, we suggest that a similar provision could be included in the bill. The ECHR applies anyway, because it applies to prosecutors and courts, but putting it in the bill in those terms might give people some reassurance on that matter.

The other issue is that sections 11 and 12 of the bill cover only two protected characteristics with regard to freedom of expression—religion and sexual orientation—and cover only certain behaviours within those protected characteristics. For example, section 11, on religion, does not cover criticism of non-religious belief, even though the protected characteristic in the bill for religion covers non-religious belief. Section 12, on sexual orientation, is different from the English version in that it does not cover criticising same-sex marriage. Where do we draw the line? The problem with provisions such as those in sections 11 and 12 is that, if you include a list of things that it is okay to say, something will always be left out. Therefore, the more general provision would have the benefit of covering all the protected characteristics, but, being couched in more general terms, it could also cover a wider range of behaviour.

The Law Commission for England and Wales has considered that in its consultation paper on hate crime law in England. In paragraph 18.274 of its paper, it points out that the provisions in English law that are similar to sections 11 and 12 have a general purpose: first, to clarify

“that the law applies to hatred against persons, not against institutions or belief systems”;

secondly, to clarify

“that criticism of behaviour is permitted”;

and, thirdly, to maintain

“a space for discussion of public policy on potentially controversial issues”.

It seems to us that that should be the purpose of a freedom of expression provision in the bill. It would be more useful if it could be couched in general terms like that.

That helpful and detailed response is something on which I certainly think that we as a committee should reflect.

Does anyone else want to add to Tim Hopkins’s comments?

Kevin Kane

We were supportive of section 16 of the Marriage and Civil Partnership (Scotland) Bill. The reference to equal marriage is a good one—the wording is framed well—and I would commend it to the committee to consider.

To pick up on Tim Hopkins’s comments, some of our organisations in our youth work network are keen to extend the freedom of expression sections across all the protected characteristics. I say that to get on public record that we are open minded and keen to listen to partners—many of whom are with us today—on that.

However, as has been mentioned in previous evidence-taking sessions, the bill should be convention-ready anyway. Arguably, there is a case for there not being a non-exhaustive list. The defence of reasonableness is a mainstay of Scots law, and it is important to listen to legal opinion on that. It is hard to fathom a situation in which behaviour that is threatening or abusive and has the intent of stirring up hatred could be viewed by the reasonable-minded person in any way, shape or form to be reasonable.

I am agreeing with Tim Hopkins on the one hand but, on the other, I am saying that protections, including on freedom of expression, are laid out in any legislation via the convention.

Thank you—that is really helpful. That is all from me, convener.

The Convener

Does Colin Macfarlane have anything to add on the issue? I am picking on you—and I am sorry if you think that I am being unfair—because I was struck by the written evidence that Stonewall submitted to the committee, which seems to be pointing in quite a different direction from the one that Tim Hopkins is pointing in. Paragraph 27 of your submission says:

“We remain unconvinced as to the benefits provided to hate crime legislation by protections of freedom of expression with respect to sexual orientation ... Stonewall opposes the equivalent section in England and Wales”.

I want to give you the opportunity to put a view that is different from the one that we have heard from Tim Hopkins—if you do not want to, please do not feel compelled.

Colin Macfarlane

We were one of the organisations, along with the Equality Network and other lesbian, gay, bisexual and transgender and equalities organisations, that put in supplementary evidence on freedom of expression. We consider that replacing sections 11 and 12 with a more general freedom of expression protection would answer and, I hope, allay some of the concerns that some people have with the bill.

Again—I am sorry to repeat myself—we support what Tim Hopkins is saying; there is no difference between us.

The Convener

Thank you very much—that is really helpful to know. When we have evidence that is as strongly written as yours, and the oral evidence points in a slightly different direction, we just want to understand exactly your position. That is a very helpful clarification.

Liam Kerr (North East Scotland) (Con)

I will put my first question to Tim Hopkins of the Equality Network. I will also put it to Oonagh Brown, because she has talked about solutions to the question that I am about to ask.

The committee has heard concerns that the stirring-up offences could be used by some to label opinions as hate speech. We have also heard that, even if that does not ultimately lead to prosecution, the fear of that label or of a police investigation could ultimately lead to people self-censoring. Is there a danger of that happening? If so, what might be the solutions to that problem?

Tim Hopkins

I referred to that in part earlier, when I spoke about training for the police and fiscals.

There is also an issue of publicity. It is important that, when the legislation comes into effect, if Parliament passes the bill, there is publicity about what the offence is and what it is intended to be used for. I gave some examples of that earlier.

I think that threatening or abusive behaviour that is intended to stir up hatred is a high threshold in itself. If that is made public, with examples, I think that that would mitigate the concern that you mention.

That said, a great deal is said, especially on social media, with claims being made that virtually any contribution on any subject could be hateful or wrong. That is not going to stop; unfortunately, abuse on social media is a big problem that needs other solutions.

However, my answer would be that the solution is to provide information about what the offence is intended for and proper training of the police and fiscals.


Oonagh Brown, is your view different or similar?

Oonagh Brown (Scottish Commission for Learning Disability)

I echo some of the earlier points. SCLD supports the offence of the stirring up of hatred and is mindful that the right to freedom of speech in article 10 of the Human Rights Act 1998 is not an absolute right, and that we have to be responsible and respect other people’s rights by not stirring up hatred, violence and discrimination.

Although we are supportive of the offence, we would welcome consideration of a number of areas, particularly explicitly including learning disability within the category of disability, in order to ensure that people with learning disabilities are protected from hate speech.

The other suggestion that we made in our initial consultation response concerned producing guidance for media outlets on what would be considered to be the stirring up of hate speech in relation to protected groups, including people with learning disabilities.

We believe that that would be critically important because we know that, in the past, the media have, to an extent, created hatred of and discrimination against disabled people. That was clearly seen in media dialogue surrounding austerity, when we saw discussion of disabled people as being dependent. More recently, the way in which disabled people have been discussed during the Covid-19 emergency has included a discriminatory discourse emerging from the media that coronavirus would not impact most people and would affect only the vulnerable. That kind of statement devalues the worth of people with learning disabilities and creates the idea that they are expendable. Given that we know that, on average, people with learning disabilities die 20 years earlier than the general population, we at SCLD feel that such dialogue is not appropriate.

Therefore, with regard to how we manage people’s expectations and understanding of what they can and cannot say, we think that guidance should be provided to media outlets about what kind of dialogue is appropriate. That is not about completely limiting what people can say; it is about the need to take into consideration how views are put across. I highlight that that approach is in line with the general comment from the Committee on the Rights of Persons with Disabilities, which says that state parties

“should undertake measures to encourage, inter alia, the media to portray persons with disabilities in a manner consistent with the purpose of the Convention and to modify harmful views of persons with disabilities, such as those that portray them unrealistically as being dangerous to themselves and others, or sufferers and dependent objects of care without autonomy who are unproductive economic and social burdens to society.”

Liam Kerr

That is helpful.

Tim Hopkins and Colin Macfarlane, I will direct my next question to you, because you have both talked about training for the police and courts, and Tim talked about publicity.

To pick up on something that was raised in a previous evidence-taking session, do you have a view on whether that training and/or publicity have been adequately factored into the financial memorandum or the Government’s thinking about implementation?

Tim Hopkins

I read the financial memorandum and, if I remember rightly, there are two sums of £50,000 in there for things such as training. I cannot remember whether either of those applies to the police. I have a feeling that the financial memorandum says that police training is being done regularly anyway, so issues would be dealt with as part of that.

Our view is that there is something to be said for improving and extending police training on equalities. I know that the police are under huge pressure and that any time spent on training is time taken away from the front line, but about four or five years ago, we were involved in a project that was funded by the Equality and Human Rights Commission, as part of which we helped to train 70 police officers, who then became experts in lesbian, gay, bisexual, transgender and intersex equality in their local areas. However, as I say, that was a number of years ago, and many of those officers have since moved on. It would be helpful to do that again.

We are in favour of more training for the police around equalities generally, part of which could focus on the legislation that we are discussing, but we recognise that there are resource limitations.

Colin Macfarlane

It might not surprise the committee to hear that I agree with Tim. Training and awareness raising are absolutely key for a wider understanding of the communities that are affected. In relation to the bill, I agree with Tim that, if resources are available, they should be used to ensure that our police are trained across the equalities characteristics.

There is an issue about education more generally being used as a tool to change hearts and minds. That is why we are supportive of the work of the LGBTI-inclusive education working group. We hope that the Government and Parliament will continue to support the implementation of that work, because learning about identity and yourself in an education setting changes hearts and minds and goes some way towards changing how people react to and treat those with different characteristics. The training aspect is key, but education is also key, by which I mean in school, college and further and higher education settings.

I see that Kevin Kane wishes to respond to the question, convener. Then I will go to John Wilkes.

Kevin Kane

We work with youth groups that work with young victims of crime through every step of the criminal justice process, so I can confidently say that we know that victims do not always get the support that they require from the police and that the majority of them do not seek support. We know that victims feel that support, particularly in relation to hate crime, is inadequate. If strengthening the suite of laws is to be effective, we need that renewed discussion on identifying and addressing the barriers to reporting, access and support. To pick up Oonagh Brown’s point, that could be made clear as part of any support, information and promotion work around the legislation in 2021.

It will not come as a surprise to the committee that I will talk up the youth work sector. We can harness a lot of power, because we are in communities and in schools. The youth work industry is a massive contributor to the crime prevention agenda. We work with two sides of the same coin—perpetrators and victims—so when it comes to education, community building and intergenerational work, our proximity to young people and all the issues that they face is what makes us strong. We are already well positioned to utilise that infrastructure to provide targeted and holistic support to all young people. I flag that point as part of my answer to the question but also in relation to the financial memorandum and what needs to be done. There is a role for youth work here.

I will press you on that, because it was an interesting answer. Do I take it that you feel that the financial memorandum does not adequately provide for the various things that need to happen?

Kevin Kane

The financial memorandum could be more explicit.


John Wilkes

I want to underline our support for the comments that have been made. For the legislation to be effective and build on the development of the existing legislation over the past 20 years or so, it is really important that the people who make judgments about what is going on in real life—in the real world—do so with confidence.

In another life, I served on Dr Duncan Morrow’s advisory group on hate crime, which the Scottish Government commissioned back in 2015. When we heard evidence from the police, there was a sense that we place a lot of responsibility on the police—often on front-line officers—to be absolutely confident on issues of law that can be daunting. That is a really important point. I was also on Lord Bracadale’s advisory group, and that was a theme that came up there, too.

In terms of making the legislation a success—and it is important that it is a success—it is important that everybody who is involved in the identification and prosecution of offences does that with full understanding and support, and that support has to be on-going.

The Convener

Although our focus in the first few questions has been on part 2 of the bill, on the stirring up of hatred, Tim Hopkins said at the beginning of the session that part 1 of the bill, on statutory aggravation, is the most important part of the bill in practice. We will turn to that in a moment, but before we do, I want to make sure that all our witnesses have had the opportunity to say what they want to say to the committee about the stirring-up offences. I am particularly conscious of the fact that Adam Stachura from Age Scotland has not contributed to this part of the conversation. Adam, would you like to add anything before we move on?

Adam Stachura (Age Scotland)

A lot of really good points have been covered, and I do not have a huge amount to add. However, we definitely think that more needs to be said about the training that will be involved with regard to people’s expectations of the bill, particularly when it comes to part 2, and how prosecutors can act on that. As time goes on, I think that there will be greater understanding of what the provisions mean.

The issues around part 2 have been well covered by the other witnesses.

Thank you very much. I hand over to John Finnie to take us in a slightly different direction.

John Finnie (Highlands and Islands) (Green)

Good morning. The continued use of statutory aggravations as the core method for prosecuting hate crime in Scotland has been broadly welcomed.

I would like to pick out some elements of the evidence that has been submitted to the committee, beginning with the Equality Network, whose submission makes the interesting remark that

“The aggravation model removes the incentive not to prosecute by separating the burden of proof of the two elements.”

There is more to it than that. Could you say a little about that, please?

Tim Hopkins

Yes. I think that that sentence in our submission made a comparison between the statutory aggravation model and the stand-alone offence model, such as is found in section 50A of the Criminal Law (Consolidation) (Scotland) Act 1995, which provides for the racially aggravated conduct and harassment offence. In the latter case, it is necessary to prove with corroborated evidence both the aggravation and the conduct or harassment in order to prove the offence. With the statutory aggravation, as with aggravations in common law, corroborated evidence is not required—only one source of evidence is required to prove the aggravation. The underlying offence—whether it be common assault, abusive or threatening behaviour or whatever—obviously needs corroborated evidence.

Secondly, in the case of the stand-alone offence, if there is a failure to prove that it was racially aggravated, it is not possible to convict at all, whereas with the statutory aggravation, even if there is a failure to prove the aggravating factor, it is still possible to convict for the underlying offence. Therefore, the system of statutory aggravations is more flexible than using stand-alone offences.

We completely agree that the use of statutory aggravations is the core of hate crime law. Prosecutions for aggravated offences are hundreds of times more frequent than prosecutions for the stirring-up offence. In the most recent year, nearly 1,500 sexual orientation aggravated offences were reported to fiscals in Scotland, with 40 or 50 transgender identity aggravated offences being reported in each of the past four years.

An illustration of how flexible statutory aggravations are is the fact that they cover offences such as abusive or threatening behaviour and assault right up to the most serious offences. In the 10 years since the Offences (Aggravation by Prejudice) (Scotland) Act 2009 came into effect, Scottish Government figures show that there have been seven homophobic homicides in Scotland. The aggravation is absolutely crucial in identifying that all those offences were motivated by prejudice, and in ensuring that they are recorded in that way and dealt with by the whole of the criminal justice system in an appropriate way, including sensitive handling by the police right the way through to appropriate sentencing. The recording of that enables, for example, repeat offenders to be identified.


John Finnie

I have a question for Mr Wilkes. The Equality and Human Rights Commission is supportive of the approach of using statutory aggravators. Its submission says:

“This achieves a consistency of approach which can potentially be extended by listing new characteristics for the statutory aggravations if required in the future.”

The submission then mentions one of the potential new characteristics, which is misogyny. That is not a statutory aggravator yet, so I will not ask you to focus too much on the detail. The submission says:

“Specific deterrence of aggravated offending against women by adding the characteristic of sex has symbolic significance, but in itself may not ensure adequate or appropriate protection”.

Can you help me to understand the EHRC’s support? Is it qualified in relation—[Inaudible.]

John Wilkes

I am sorry, but I missed the very last part of what you said.

You support the principle of aggravations, but you express some reservations in relation to one aspect. Could you cover that?

John Wilkes

Yes. That aspect was about sex. You were talking about gender.


John Wilkes

We are very supportive of the aggravations approach to hate crime for the reasons that Tim Hopkins listed, including that it is more easily understood.

The issue of sex and misogyny was debated quite a lot in Lord Bracadale’s group. There was recognition that there is clearly an issue relating to hate crime that is targeted at women. The debate was about whether having an aggravator in relation to sex would address that issue—there was recognition that men would be included in that broader definition—or whether something more specific should be done in relation to women and their experiences.

We support the inclusion of sex as an aggravation in the bill, but we recognise and welcome the proposal to set up a working group to look in more detail at the issues relating to misogyny. Our 2019 report on the Convention on the Elimination of Discrimination against Women called for further investment in research on misogyny and violence against women and girls. We will look to the outcomes of that group, which might help with clarification. Fundamentally, we support the inclusion of sex as an aggravation.

John Finnie

The Equality Network has joined BEMIS and others in calling for

“a legal requirement to be integrated into the Bill that places a duty on the Scottish Government, Police Scotland, and any other relevant duty bearers to develop a bespoke system of hate crime data collection and disaggregation across all characteristics covered by the ... Bill.”

Would Mr Stachura like to comment on that?

Adam Stachura

Data collection is hugely important—that is a good point, and it has been made elsewhere. At times, it is difficult to get good-quality data from Police Scotland about the level of—[Inaudible.] When we get the data and information, the numbers often do not seem particularly high. However, when the committee is considering the bill in the round, it should note that the positive things that the bill might do to increase reporting of offences or incidents might give us a better understanding of what is going on across the country, and it will also give people the confidence to report incidents that happen to them, because such incidents have been more publicised.

As with everything in the public sector, there is an absolute need to have far better data collection. We should be able to do that—there is no reason why we should not—but, across the justice sector and the health service, it is often very difficult to get useful data that can help us to look for solutions to the problems that are presented.

Does Ms Brown wish to comment on that?

Oonagh Brown

We covered the issue in our initial consultation response. We want learning disability to be explicitly included in the list of characteristics in the bill. Although we understand that learning disability will be included under the characteristic of disability, it is important that we outline that that includes learning disability and physical impairment.

We also called for a duty on public bodies to record disaggregated disability data on hate crime. We believe that such information can be self-declared by individuals. There are several reasons why we believe that to be important. First, people with learning disabilities experience hate crime. Just last week, the SCLD was informed of a serious case of such hate crime. We know that, between 2014-15 and 2018-19, disability-aggravated crime increased by 64 per cent in Scotland.

We believe that, without separate identification, people with learning disabilities might not recognise the bill as helpful to them and would not report crimes. For example, when we met a group of people with learning disabilities at the fortune works service in Drumchapel, we were told that they had real uncertainty regarding reporting hate crime.

Such a duty should be included in line with article 31 of the United Nations Convention on the Rights of Persons with Disabilities, which is on statistics and data collection, and article 33, which is on national implementation and monitoring. Without the duty, the invisibility in published statistics will impede the evidencing and appropriate implementation of policy measures to ensure justice for that group. It will leave people with learning disabilities as an invisible population that we do not talk about.

John Finnie

That is very helpful.

I have a brief question for Mr Macfarlane. In line with existing legislation, the bill states that the court must make clear what difference an aggravation has made to the sentence that is imposed. Lord Bracadale recommended removing that requirement. Is the retention of that requirement helpful in increasing transparency in sentencing, for example? Do you have a view on that?

Colin Macfarlane

It is important that the offence is named as such, and aggravations help in giving a clear distinction between potential crimes. Seeing the offence named as such gives a sense of closure, in some respects, to victims of hate crime. That is an important aspect of the justice system in allowing people who have been victims of hate crime to get justice.

Does Mr Kane want to comment?

Kevin Kane

In the absence of Kate Wallace from Victim Support Scotland, I point out that I was involved with Victim Support Scotland in the independent review on hate crime, so I will bring that experience to bear alongside my work with the voluntary sector, local authorities and youth groups that work with victims and survivors of all crime. I am aware that sheriffs have highlighted the complexity around the recording and explaining of decisions that are made in court.

The most important thing is that young people tell us that they feel let down. If we take hate crime seriously, by ensuring that the aggravating part of the behaviour is highlighted as a distinct and key feature of the offence, we will not let them down. They feel that it is necessary that the judge should include an explanation of that in his or her deliberations on sentencing. That is important for validating that particular crimes have taken place, and it is also extremely important in relation to recovery.

We need to think about that as part of the wider package of rehabilitation and support, and about how the bill can contribute positively to society. That might seem like a small thing, but it is very important for a lot of people. There is possibly work to be done with statutory bodies in relation to training.

Colin Macfarlane

To back up what Kevin Kane said, I hope that that would lead to better reporting. Obviously, Stonewall supports LGBT people, and we know that there are low levels of confidence in reporting in the system, so the aggravator is critical. If it were to be removed, we might see less confidence in the system, with LGBT people being less confident in reporting.

To completely back up what Kevin Kane has just said, and what Tim Hopkins said earlier, I consider that it is really important for victims that that aspect of the crime is named, and it will also give people confidence to report when they have been the victim of a hate crime.

Many thanks.

I move to Fulton MacGregor, who has questions about hate crime characteristics.

Fulton MacGregor (Coatbridge and Chryston) (SNP)

As we know, the bill seeks to add age to existing hate crime characteristics. Does that offer the right balance? It has been suggested to us that it might be more helpful if the exploitation of vulnerability, including what is sometimes referred to as elder abuse, was highlighted through a statutory aggravation linked to the perceived vulnerability of the victim. Is that the right way to proceed? Do we need both?

John Wilkes

The commission does not consider that age should be a listed characteristic, as it thinks that there will not be sufficient evidence to meet the threshold for statutory aggravation. We agree with Police Scotland’s response in relation to the perceived vulnerability of older people in that respect. We note in our written evidence that the Scottish Sentencing Council is developing guidelines that will set out factors that might make a particular offence under consideration more serious.

Adam Stachura

As you would imagine, in the first instance, we are supportive of age being included as a statutory aggravation. That is for a number of reasons, which slightly go against what has just been said.

There are three important parts to that. First, as has been mentioned, age is missing as a protected characteristic, and this exercise tidies up hate crime legislation. Secondly, the provision will give older people more confidence in reporting crimes. As others have said in relation to different areas, there is either underreporting or a lack of confidence in reporting, and it is a big challenge for people to report.

Thirdly, it will give prosecutors more tools to progress cases. As has been mentioned, corroboration is not necessary for a statutory aggravation. It will be a helpful element in pursuing things, and it will mean that things are taken more seriously. I have said before that it could be quite an important tool in preventing offences in the first place.

It is also important to mention that the provision is not just about older people, because there is no age threshold—there is no upper or lower age limit; it applies to all ages. If a crime has been committed as a result of hostility towards someone’s age—many things could fall under that—the provision would add more weight to either the sentencing or the prevention part.

Separately, we are also supportive of including a vulnerability element. However, after discussions with the Cabinet Secretary for Justice, we are conscious that the Scottish Government considered the issue but found that even the threshold for vulnerability would be incredibly difficult to gauge. It was an interesting conversation, because it highlighted that vulnerability could be used in almost any circumstance. I am not suggesting that that element could not be included, but I think that the issue warrants additional exploration.

I have discussed previously at a committee the issue of elder abuse. We are supportive of more measures on that, whether that is a statutory aggravation or a stand-alone crime. Elder abuse is hugely underreported, and there is nowhere near enough support for people who are subjected to it. In fact, people tend to be removed from a bad situation rather than being protected in the first place, which is different from lots of other elements. Far more can be done in that area. It might not be possible to do something at this juncture, but it is definitely worthy of further work and consideration.

On vulnerability, I took at face value the justice secretary’s view that that could be applied to any circumstance and could make the legislation even more difficult to do.


Thank you—that is helpful.

Tim Hopkins

On the issue of the age characteristic in particular, I defer to Adam Stachura’s and Kevin Kane’s expertise. It is widely agreed that crimes that are motivated by vulnerability are different from crimes that are motivated by prejudice. I support further exploration of whether there should be a general aggravation that relates to vulnerability, but that is outwith the scope of the bill, I think.

Fulton MacGregor

The Victim Support Scotland submission says that there should be

“a zero tolerance approach to hate crime”.

I was going to ask Kate Wallace to expand on that but, in her absence, I ask Oonagh Brown to comment on the concept generally. Do you agree with it, given your previous answer to John Finnie about the group that you work with and represent?

Oonagh Brown

I agree with that approach. For us, it is important that such behaviour against people with learning disabilities is criminalised. People with learning disabilities tell us that, at the moment, when hate crimes are committed against them, they are referred to adult and support protection processes. The focus is often on the people with learning disabilities protecting themselves, and the dialogue becomes, “You have not protected yourself.” That often leaves people with learning disabilities feeling that they are to blame.

Instead, we need to tackle the societal issues that cause hate crimes and enable them to happen, and we need to address the actions of the perpetrator. In addition, we need to see the bill in the wider context of societal and systemic cultural change, which involves looking at how we value people with learning disabilities. In regard to the Covid response, I mentioned that we hear a lot of dialogue that undervalues people with learning disabilities. We need to create a society in which people with learning disabilities are supported to thrive and live the lives that they choose.

Fulton MacGregor

Colin Macfarlane, the Stonewall Scotland submission suggests that it considers that the liability for criminal offences should be even lower than that proposed in the bill. Will you clarify whether that is the case, and elaborate on that view for the committee so that it is on the record?

Colin Macfarlane

I think that that would be our view. Our submission states that, and that is pretty much our position. I do not have much to add, I am afraid.

Fulton MacGregor

That is fair enough—thank you.

I will ask a final question. I see from the chat box that John Wilkes wants to come back in, so this might give him the opportunity to do so. Do the witnesses have any concerns about the way in which the various hate crime characteristics are defined in the bill? My colleague Annabelle Ewing will come in later to deal with the sex characteristic, so perhaps that could be left for now. Are there any concerns in relation to any of the other characteristics? I will go to Kevin Kane first, and then back to John Wilkes.

Kevin Kane

I do not have anything further to add on that point.

John Wilkes

I wanted to come back to the age aggravation. I totally understand the issues, and sympathise with protecting people who are targeted due to their vulnerability. That is really important.

The other issue about the age aggravation is that one of the important things about hate crime legislation is that there should be absolute public understanding of its import. Part of our difficulty with age is that we are not sure that the public will understand the issue around age. People might not equate it to hate crime against other groups, which they might understand better.

We support the definitions and proposals for the other characteristics that are being included in the bill. As the discussion on sex is a separate question, I will leave that aside for now.

There are other groups that might need to be considered for inclusion. In particular, the issue of asylum seekers and refugees has cropped up again and again, including in the Morrow report on hate crime and the Bracadale discussions. The issue is whether the shoring up of the definitions will cover such groups, given that there is evidence that they are being targeted. We consider that the definition of race in the bill would definitively include colour, nationality and ethnic origins and would therefore draw in groups such as Scottish Gypsy Travellers, but case law relating to the Equality Act 2010 is less supportive of an assumption that the characteristic of race would cover refugees and asylum seekers. That is something that the committee might want to consider.

Tim Hopkins

We strongly support the adjustments that the bill makes to definitions of some of the protected characteristics, particularly those that are LGBTI-related. As Oonagh Brown said, it is important that people can see themselves in the bill. We know from our research that, although two thirds of LGB people and 80 per cent of trans people have experienced hate crime and 90 per cent of them have experienced it more than once, 71 per cent have never reported those crimes to the police. Encouraging people to report hate crimes is crucial. One way of doing that is to ensure that people can see that the legislation applies to them.

In particular, the definition of transgender identity has different wording from the definition that was used 10 years ago. It does not change the scope of the aggravation. Similarly, the aggravation relating to variations in sex characteristics does not change what the law covers, because intersexuality was covered in the Offences (Aggravation by Prejudice) (Scotland) Act 2009. However, the language used in the definitions in the bill makes those categories much clearer and is much more acceptable to trans people and, from what people have told us, to people with variations in sex characteristics. That is why we are supportive of the changes to the language that is used.

Annabelle Ewing wants to pick up on some of those questions.

Annabelle Ewing (Cowdenbeath) (SNP)

I want to pick up on the non-inclusion of, at this stage, the characteristic of sex. I think that John Wilkes indicated in a reply to John Finnie that sex as a characteristic was included, or that he supported its inclusion, in the bill. Could you clarify your comments? The bill does not include that characteristic; it includes a provision allowing for, in due course, the adoption of secondary legislation to include sex.

John Wilkes

I am sorry if I was not clear earlier. We understand that sex is included in the sense that it could be activated as an aggravator at a later date. We support that—or, indeed, the inclusion of gender, depending on how the secondary legislation is framed.

Annabelle Ewing

Thank you for that answer. Sex is the protected characteristic under the Equality Act 2010, so I presume that that would be the appropriate term.

I turn to Adam Stachura, who made the case for the inclusion of the characteristic of age, as is currently proposed. In that regard, he seemed to be missing part of the puzzle, because sex is a recognised protected characteristic but it is not currently included. I wonder whether Adam has any comments on that.

Adam Stachura

I do not have anything particularly constructive to add on that. Our main focus has been on part 1 and on the introduction of age as a result of the discussions around the Bracadale report and since then. The issue has been well debated—[Inaudible.]—are missing or not strong enough. However, to be slightly long winded, I am afraid that I am perhaps not as well informed about that question as I could or should be.

Annabelle Ewing

That is an honest and succinct answer. Adam Stachura referred to the importance of people understanding the bill as the issue, and, in the written evidence, we certainly read that the non-inclusion of the characteristic of sex might send a bit of a confusing signal, albeit that we understand that there will be the working group on misogynistic harassment. Does Kevin Kane have any thoughts on the subject?

Kevin Kane

I will try to follow in Adam Stachura’s succinct footsteps. My comment is about the working group on misogynistic harassment. Given the variation in views, the strength of feeling involved and the complexity of the issues, the youth work sector is keen to make representations to that group. The fact that the bill has an enabling power to revisit the issue of a statutory aggravator is positive and is a good place to be at the moment.

It is right and proper that we discuss the issue in relation to domestic abuse and other areas affecting the female sex. That has been raised by Engender, Scottish Women’s Aid, Rape Crisis Scotland and a few other organisations. We certainly would not want to rush in with an aggravator that is designed to protect women but which has an unintended consequence that undermines the female sex. We know that that is a concern. The provision would apply to men and women equally, and there is real potential for it to be misused and to create misunderstanding. We know that very few men suffer abuse on account of their sex. We are nailing our colours firmly to the misogynistic harassment working group mast.

Annabelle Ewing

I have one last brief question, which is for Tim Hopkins. He mentioned in passing the support that there is for the current approach in the bill in relation to intersex people and variations in sexual characteristics. We have a panel of witnesses later this morning who will discuss that in a bit more detail. He will recognise that the support for that approach is not by any means universal. For example, dsdfamilies, which will be giving evidence later, takes an entirely different view.

Tim Hopkins

I have a couple of points to make on that. First, I know that in some of the written evidence that the committee received, including in the evidence from dsdfamilies, it was suggested that intersexuality was somehow put into the Offences (Aggravation by Prejudice) (Scotland) Act 2009 by mistake. We were involved in the development of that legislation and in the discussions in the Parliament as the bill went through, and that was certainly not the case. It was put in deliberately because, back in 2008 and 2009, intersex people in Scotland were asking to be covered. However, it was put in the wrong place. It should never have been put under transgender identity, because intersexuality is a completely different characteristic from transgender identity. Therefore, we think that the right thing is being done in the Hate Crime and Public Order (Scotland) Bill by separating it out.

On whether people with variations in sex characteristics should be covered by hate crime law, I do not have lived experience of that, although the committee will hear from two people who have that experience later this morning. However, I can say that we have consulted organisations that are run by people with variations in sex characteristics and we have surveyed people with variations in sex characteristics in Scotland, and there seems to be wide support for including the provision in the bill. At least a significant minority of people in our surveys on the subject told us that they had experienced hate crime because of their variation in sex characteristics—the figures varied from 29 per cent in one survey to 50 per cent in the other.

Those numbers are small, so the exact figures are not statistically significant. However, they point to at least a significant minority of people with VSCs who are experiencing hate crime because of those characteristics. We argue that it should be covered because of that and because it has been covered since 2009. We should tread carefully before taking away protections that already exist.


Annabelle Ewing

That issue will be explored further. Having read the submissions, I see that dsdfamilies has concerns about the consultations, or lack thereof, and its participation not being sought in that process. We can put those questions to the organisation later.

We will hear from dsdfamilies and others later. Liam Kerr will ask a supplementary, and I will then move to James Kelly.

Liam Kerr

I am enjoying this evidence session immensely. I thought that Kevin Kane raised some interesting points in his response to Annabelle Ewing’s questions about the working group. I took from that that you are, in principle, in favour of the working group, you can see how it could work and you would want to provide input to it. I understand that. However, I presume that, because it is a working group, it will be constituted of particular bodies and not everybody can be part of it. As the bill proposes a working group as a mechanism—which, I presume, will take evidence—how would you respond if, for example, the group did not come to you for evidence? If that is a possibility, does that not suggest that it would be better for MSPs—perhaps through the committee’s consultation—to lead that process, rather than to do so through a working group model?

Kevin Kane

People on the working group should be those who are invited, such as the police, legal or bill-writing teams and those with the right experience. However, in my view, it would be preferable to include people who have lived experience and those who are advocates for particular groups and can talk to the issues. They could perhaps work alongside MSPs and elected representatives to bring that experience to bear.

Given that we could not get agreement on whether that particular aggravation should be in the bill, I put the question back to Liam Kerr: can the issue be dealt with appropriately by parliamentarians? There is also a bigger question about what, generally speaking, is dealt with by the Parliament and what can be achieved more meaningfully via a working group that presents its findings to the Parliament and works with it to get the desired outcome.

To be clear, I am not convinced that we should hand that hot topic over to parliamentarians.

The Convener

I will resist the temptation to get involved in what are and are not appropriate questions for parliamentarians. I will bring in James Kelly, who is an experienced parliamentarian, to ask the final set of questions for this panel.

James Kelly (Glasgow) (Lab)

I will concentrate on the issue of support for victims of hate crime. First, I will bring in Oonagh Brown, and then I will ask Kevin Kane a question. However, I am happy to take contributions from anyone else.

Does Oonagh Brown have any views on what more needs to be done to support victims of hate crime? I am particularly interested in your views on the need for additional reporting or legislation.

Oonagh Brown

As I mentioned earlier, the key issues for people with learning disabilities with regards to exploitative crime and hate crime are about being taken seriously and the onus of their having experienced those crimes not being placed on them.

We must look at how we ensure that we do not remove human rights from people with learning disabilities when they are harmed through unnecessary adult support, protection and guardianship. Instead, in wider consultation, we need to ask people with learning disabilities who have experienced hate crime about the support that they need. In a discussion with the Scottish Learning Disabilities Observatory on research that it had recently conducted about hate crime, I heard a story in which a person who might have experienced hate crime was interviewed publicly about that. People who live in residential settings should be offered the opportunity to report crimes in private, especially where there might be people who are aware of certain things.

To go back to my earlier point, wider than that, we need to ensure that people with learning disabilities are considered valuable members of society, whose evidence as witnesses is taken seriously and valued. In addition, we want the consistent use of the appropriate adult system, where appropriate, to be looked at; we also want advocacy to be examined.

To again go back to my earlier point, we need to make sure that, through adequate data collection, people with learning disabilities do not remain invisible in those discussions. Finally, it would be immensely helpful to provide funding for police awareness and training on learning and intellectual disabilities.

James Kelly

Thank you; that was comprehensive. Your points on talking not just to disability groups but to others about what more needs to be done, and on data collection, are particularly relevant.

The final point was about training and raising awareness among the police. I go back to Kevin Kane. In response to Liam Kerr’s question, you said that more needed to be done to support victims of hate crime and the example that you gave related to the police. What measures could be introduced to the bill that would help raise awareness in relation to supporting victims of hate crime and how the police deal with those crimes and with the victims?

Kevin Kane

I will leave the point about the police and how they deal with that sitting for a minute. I have scribbled a couple of notes, because I had a minute or two to think about the question.

I will pick up on the research point first. We all agree that understanding lived experiences of hate crime would benefit everyone. Because we support thousands of youth workers, it is important for us to have an in-depth understanding of the issues, so that, when we are working alongside young people and statutory bodies, we can drive up standards, affect culture positively and talk about the impact on communities. That understanding also enables policy people like me to demand the right changes.

Earlier, a second point was made about underreporting, which I thought was important. The police run third-party reporting services. The provision has been patchy and there has been talk of renewing the services or starting them afresh. I am not aware of any update on what is happening with such reporting, but, having worked for a third-party reporting service, I know that there were issues about people understanding that the service was available. People do not need to report the crime; they can come to the service, get the support that they deserve and have the option of that organisation reporting the crime directly to the police. I am getting feedback that that is not happening.

I mentioned restorative justice in our written submission. We are interested in discussing how that fits in with hate crime and across the Government’s other objectives. We appreciate that that would need to be done carefully with victims, so that it does not lead to further victimisation.

A number of years ago, pilots on restorative justice were undertaken. Local authorities’ pilots showed mixed results, and there was limited take-up in schools. I wonder whether the bill is an opportunity to kick-start some of those activities again. Because the youth work sector is in the unique position in schools and communities of dealing with both perpetrators and victims of crime, we could benefit the offender and the victim and contribute to that community cohesion that we talk about so much. I would like the bigger picture to be discussed more.

Colin Macfarlane

I primarily want to back up something that Kevin Kane said about third-party reporting. Those services are underresourced and patchy but, from an LGBT perspective, they are crucial. There are LGBT people who will not report their experience of hate crime because they fear that doing so might out them. Many LGBT people are not out in their families, or out in their communities, particularly in rural areas, where the communities are smaller. Third-party reporting provides a way by which LGBT victims of hate crime can report without potentially outing themselves to their wider community. I do not think that that is acutely understood. From our perspective, it is crucial that the third-party reporting system is properly resourced.

Thanks. That is an important point to make.

John Wilkes

I want to add the Equality and Human Rights Commission’s huge support on that point—it is so important. We are talking about the need to get the bill absolutely right and to get in place the right checks and balances so that we have a platform of hate crime legislation whereby victims can get justice and perpetrators will understand that hate crime is not acceptable in Scottish society. In all the groups that I have ever worked in that have dealt with the issue, what always comes through is the absolute devastation that those crimes can cause to individuals who are targeted because of their identity and the corrosive nature of such crimes on community cohesion. Alongside getting the law right, we absolutely must ensure that victims of that insidious issue are fully supported.

Tim Hopkins

I totally support those points, to which I will add two things. First, one way to encourage people to feel that they can report hate crime is through public awareness campaigns. We really like the fact that the Scottish Government does an annual public awareness campaign on hate crime. When people see an advert at a bus stop on Princes Street that says that there is no place for hate crime in Scotland and, in particular, they see targeted adverts on race hate crime, transphobic hate crime and homophobic hate crime, for example, they really understand the message and feel that they can report such crime.

Secondly, it is important that people have a good experience when they report a crime. The work that we have done certainly indicates that people’s experiences of the police are getting better. In fact, in our surveys, the majority of people now say that they have had a good experience of the police, although a minority do not.

People find that the system is less satisfactory at the prosecution and court stages. In fact, a significant majority say that they were dissatisfied with their interaction with the fiscal and with the court process. A lot of that seems to be to do with a lack of communication and information. I know that that issue goes wider than hate crime, because people say that about all sorts of crime, but there is an issue about ensuring that the fiscal’s office communicates well with complainers and that the courts communicate what the process is and what is going on better than they currently do.

I thank the panel for a comprehensive set of views on what needs to be done to give more support to victims.

The Convener

I echo and endorse James Kelly’s comment. The committee is very grateful to all the witnesses for their evidence and, in particular, for getting us to think a little beyond the bill. For understandable reasons, the committee has been focused on what is in the bill for the past few weeks. Getting us to think about what the Government, society and the Parliament need to do to tackle hate beyond that has been really helpful. I thank all the witnesses very much.

I will suspend the meeting for around five minutes to enable broadcasting to ensure that all the witnesses on our next panel are with us.

10:29 Meeting suspended.  

10:36 On resuming—  

The Convener

Welcome back, everyone, and welcome to our second panel: Danny Boyle from BEMIS, Dr Jennifer Galbraith from the Coalition for Racial Equality and Rights, and Amy Allard-Dunbar from Intercultural Youth Scotland. Thank you for joining us. This is not a formally declarable interest, but I remind members of the committee that during this session of Parliament I have been associated with the cross-party group on racial equality chaired by Fulton MacGregor. Everyone should bear that appropriately in mind.

Rona Mackay

Good morning, panel. I want to ask about the different approach to race hate crime in the bill, and everything that surrounds that. We know that two thirds of all hate crime is race related. Do you believe that race hate crime should be treated differently? Should we be taking a more robust approach to it, given its prevalence, and does that create a hierarchy of characteristics?

In your answers, please also address a couple of points that were raised by the previous panel. Kevin Kane said that removing the term “insulting” from the bill would dilute its meaning, educationally and otherwise, because we know that insulting behaviour does not require there to be intent to stir up hatred. Do you agree that removing it might risk diluting the bill? The other point was raised by John Wilkes from the EHRC, who said that race characteristics would not include refugees or asylum seekers. I would appreciate it if you would address that point as well.

Danny Boyle (BEMIS)

Thank you for that comprehensive question. Good morning to the committee and thank you for having us. I will make the case for why race has to be treated in a very specific function. That does not reflect a hierarchy but the reality of the prevalence of contemporary and historical racial hatred. I will place that in the context of why the definition of racial discrimination is what it is and also respond to the point about the term “insulting” and race and John Wilkes’s point about asylum seekers and refugees.

First, the committee and many of the witnesses thus far have already identified that racially aggravated hate crime dominates, far and away, in the whole issue of hate crime in Scotland. It is a pervasive issue and every year since devolution it has been reflected as a significant issue.

When we are talking about race and racism, it is important to highlight why that is so important. In recent times, the issue of race and institutional racial discrimination has, globally, been put much more in the public spotlight. I will set out the context for committee members, members of the general public who are watching the meeting, police officers and anyone who is taking an interest in this piece of legislation.

First, where does the definition of

“race, colour, nationality ... or ethnic or national origins”

come from? It comes from the desolation of the second world war, the development of the UN monitoring system and the creation of the first international treaty—the International Convention on the Elimination of All Forms of Racial Discrimination—to deal with racial discrimination. That treaty came off the back of a moment of international clarity following the Sharpeville massacre in apartheid South Africa in 1960. Within a decade, the international community had come to an understanding and a recognition that race and racism was such a prevalent and significant issue that we needed to take significant action on it. Race has particular importance not only globally but in Scotland specifically, which is reflected in the significant number of racial hate crimes that occur here.

Rona Mackay referred to the word “insulting” in relation to the stand-alone offence of stirring up racial hatred. That term is pertinent because we are linking the international system to our domestic challenges. We have incorporated a broad definition from the international system into our domestic legal regime because we know that the issue of racism and race is ubiquitous around the globe. However, each jurisdiction has to have the ability to respond to the variations in racism that occur within it at any given time, which will continually evolve.

The Public Order Act 1986 contains an offence of stirring up of racial hatred because, at that time, there was in the UK a significant increase in the manifestation of far-right groups targeting people based on the colour of their skin, their ethnicity, their nationality and so on. The threshold of “insulting” is in the bill because we hear warning bells from history over a significant period of time that tell us that insulting behaviour can escalate into significant human rights violations.

Perhaps later in the session we will come on to discuss the issue of data gaps and why that is so incredibly important, but I will not go there just now.

With regard to John Wilkes’s comments about refugees and asylum seekers, our position is that they would be covered by the aggravation aspect within a stand-alone offence or the stirring-up charge on the basis of their

“colour, nationality ... or ethnic or national origins.”

We would take a slightly different view, but we would seek clarity from the EHRC on why it feels that way and whether there is a vulnerability in the law, given that refugees and asylum seekers are currently targeted consistently.

I will leave it there for the time being, but it is important to outline the historical context for the UK and for Scotland, and I hope that we can elaborate on that as we go through the session.

Thank you—that is useful. I turn to Jennifer Galbraith.

Dr Jennifer Galbraith (Coalition for Racial Equality and Rights)

Regarding racism, I will flip the question. Essentially, we are saying that race should be treated differently—it should not be treated in the way that it has been treated for the past several decades. The cabinet secretary said recently at the cross-party group on racial equality that we cannot treat an imbalanced situation as balanced. We have already heard that the statistics on hate crime with regard to race are significantly higher than for other characteristics and that they make up the majority of charges and convictions over the past several years.

Regarding the term “insulting”, the Scottish Government communicated in its equality impact assessment that the removal of the term could lead to people thinking that it was permissible to insult people on the basis of their race. We, too, have significant concerns about that—we agree that its removal would dilute those protections, even outside the legal context. In reality, with regard to people’s everyday lived experience, it could have a potential harmful effect on black and minority ethnic communities in Scotland.

With regard to the point about refugees and asylum seekers, it is hard to imagine a circumstance in which someone is going to engage in insulting, threatening or abusive behaviour towards someone while knowing their immigration status. Although immigration status is not specifically mentioned in the bill, it would be hard for someone to know someone’s immigration status before they committed an offence, so we believe that such behaviour would be adequately covered by the current provisions.

That is helpful—thank you. I turn to Amy Allard-Dunbar.


Amy Allard-Dunbar (Intercultural Youth Scotland)

I do not know whether the committee can hear my audio okay. I can switch off my video if you cannot hear me—please let me know.

It is fine.

Amy Allard-Dunbar

That is fabulous. Thank you for having me—it is nice to be here and to see people I have worked with, such as Danny Boyle from BEMIS.

I will address the questions that you posed. First, race definitely needs to be dealt with separately, to echo what others have said, primarily because of the historical and institutional nature of racism. When race is hidden among other equality groups—[Inaudible.]—it tends to be the protected characteristic that is left behind and ignored. Progress has been made on lots of protected characteristics and groups over the years, but we cannot seem to take a lot of steps with race and race relations, because it is difficult to tackle and is so institutional.

There are problems with the current structures under which race is dealt with. A main issue relates to adopting for the consolidating bill a framework of intersectionality, which allows multiple identities to be considered in one instance—so that, for example, the experience of a black transgender man is understood as having two levels of discrimination that involve gender and race. Such a framework is difficult for reporting bodies and other people to take into account. It is an idealistic way to deal with hate crime, but we do not see the potential for it to be taken up correctly and for its operation to be understood.

For race to be understood properly, the approach needs to be separate. As things stand, institutions do not have a good understanding of racism. It is so institutional that there is so much unlearning to do. It would not be able to be tackled correctly if it was with the other protected characteristics.

On the word “insulting” in relation to race, I agree with everyone else that a big problem is microaggressions and the level of understanding of non-overt racism. Microaggressions are daily instances of racism that add up to cause significant racial trauma. A lot of them come under the term “insulting”, and it would be hard to understand their impact if the term was not included in the bill. That provision needs to be kept.

I do not know whether many members have heard of the pyramid of white supremacy. The bottom level involves covert acts of racism; at the top, the pyramid goes all the way up to genocide. When insults are continually allowed at the bottom level, the discrimination and violence can escalate to the point at which people can be vilified and at which violence is accepted. As I said, the pyramid goes all the way up to genocide. There is not a point at which action should start—everything must be included.

As for including immigration status, we see that people understand race as a clear thing, as it is a protected characteristic. It would be understood if race was dealt with differently, and we think that it adequately covers immigration status in a broad and general sense.

I hope that that covered everything. I am sorry about my video and audio issues.

Rona Mackay

That is fine. We heard the second part of your response a bit better when you were on audio only.

Can more be done on race? Are we being robust enough? I know that we will flesh this out in further questions from my colleagues, but what do you think about it?

Amy Allard-Dunbar

Race has definitely not been dealt with robustly enough; otherwise there would have been significant improvements that were easy to measure. It is quite disheartening that so many other groups with protected characteristics have made significant progress, over the years, and it seems that race just does not make any significant improvement.

I know that it seems like a very small thing, but, for example, a Christmas advert showing a black family went out yesterday, and it received so many complaints and insults, and so much hatred and racism in comments on social media. The tiniest things, such as a Christmas advert that features a black family, receive so much backlash. Clearly, if something so tiny is such a problem for the Scottish population, race is not talked about enough or understood correctly.

I think that the main problem is that people are afraid of getting it wrong. I know that it is really difficult to talk about and to tackle if you are not a person of colour—if you are not black—but that really needs to be done now, because the people who are suffering most are young people of colour, in particular, and their communities in general. It is really difficult to advocate for yourself and do all that work by yourself. We really need people in positions of power, like yourselves, to be able to elevate the discussion, provide equitable support and start making lots of real headway when it comes to race, because it is just not getting there.

Okay. Thank you, Amy; you made a very strong point.

I think that Danny Boyle wants to come in. I am not sure whether Liam McArthur wants to come in.

Rona, if you will bring in the other two witnesses, I will bring in the other members.

Sure. Danny, do you want to come back in?

Danny Boyle

Thank you very much. I will be as brief as I can.

Amy Allard-Dunbar has raised a number of critical points. One of the big challenges, not just for the committee but for Parliament and society more broadly, is to find where the responses to the challenges that Amy has identified are most appropriately situated.

Amy raised issues about microaggressions and the experience of being a young person of colour or of an ethnic nationality or origin. In Scotland, the reality is that those microaggressions are very unlikely to meet a criminal threshold—either for a stand-alone offence or, certainly, for an offence of stirring up racial hatred. That is where the question lies, to us as a society and to the committee in whatever deliberations you progress: how do we challenge the microaggressions, while also using the—[Inaudible.]

I think that Danny may have frozen.

He has just dropped off the connection, so we will try to reconnect with him.

Jennifer Galbraith wants to come back in on this, and then we will move on, if that is all right.


Dr Galbraith

I want to add a point of clarification on refugees and asylum seekers. If there was any doubt on that, it would be worth doing a review of evidence of existing cases, to see if there was indeed a gap. Having said that we believe it would be covered, we would need a review as well, just to make sure.

Thank you.

Liam McArthur

My question is probably directed most at Danny Boyle so, if he has dropped off the call, the point may be moot. I will ask it of Jennifer Galbraith and Amy Allard-Dunbar as well.

Danny Boyle made the point that there can be an escalation in terms of insults, abuse and more serious behaviours, and that, if the issues are not addressed early enough, the risk of escalation only increases. I think that we all accept that. I also accept the point about the differing nature of hate crime in relation to different protected characteristics.

My concern, which we have also heard from other witnesses, is that, if we set the criminal threshold too low, we risk capturing things that we should not criminalise but address through other means, whether that is education or other interventions. Perhaps we could start with Amy and Jennifer. It would be unfair to ask Danny Boyle to respond, if he has not heard the question.

Amy Allard-Dunbar

I am happy to start. That segues nicely on to what I wanted to ensure that we covered next, which is alternatives to the current systems. Although it seems a very idealistic notion, it would be great to defund and restructure the current systems in a way in which all protected characteristics in society and all groups that have faced significant oppression would adequately be supported by the systems in place. Our organisation has produced a number of reports—they are available online—that look at the relationship between young people, the current justice system and the police and the level of distrust. We find that the ability to understand and have trust in those systems is not there at all. We agree that moving to alternatives would move away from the need to criminalise everything when it comes to this bill.

If we move to alternatives such as restorative justice and a community support network that is run by people with lived experience of hate crimes, the benefit would be that, as well as not criminalising everything, we would pick up on everything, rather than ignoring the microaggressions, for example. We could work on it through education, and we have found that peer education works really well for incidents of racism because it enables people to understand and to put themselves in the victim’s shoes. We think that those means would deal with a lot of the issues that have been brought up with regard to that.

I hope that that answers your question.

That was helpful. Does Jennifer Galbraith want to say anything?

Dr Galbraith

Regarding the lowering of the thresholds, I can only speak about race and not the other characteristics, but insulting has in essence been part of the legislation for decades. If there was an issue with it, I am sure that we would have found out by now. With regard to the other characteristics, I meant to add earlier that, if other groups want the protections to be extended and there is evidence that they are needed, we would have no objection to that.

Liam McArthur

I see that Danny Boyle is back with us. My question was in response to something that you said earlier, Danny. Amy Allard-Dunbar picked up the point about the risk of escalation of the microaggressions that you talked about and where those can potentially lead if they are not addressed. My question was whether the criminal justice setting needs to engage with that or whether there should be other interventions that we hope would reduce the risk that you talked about, perhaps through education or, as Amy said, restorative justice options.

Danny Boyle

I am happy to respond to that. I do not know when I got cut off before so I will be brief. I am competing with my 18-month-old, who is doing a TinyTalk signing class at the moment, so I apologise for that.

The point about microaggressions is that we cannot completely ignore the issue. I clarify that I was not saying what Liam McArthur suggests. However, for the purposes of the committee and the bill, it sits separately from considering what our interventions need to be. As Liam McArthur summarised nicely, Amy Allard-Dunbar picked up on some of the non-traditional interventions that require to be taken forward.

I highlight two parallel issues, which are currently under review by the international United Nations Committee on the Elimination of Racial Discrimination and pertain specifically and directly to Scotland. There is a point about education and a point about racially aggravated hate crime data disaggregation. We need those two things to happen concurrently in order to have an understanding of where non-judicial interventions need to be prioritised and taking place.

On the curriculum, as the committee has identified, the acceptability of individuals’ behaviour with regard to microaggressions derives to a degree from a perception that is based on the experiences of communities—historically, past and present, in other jurisdictions as well as here in Scotland and the rest of the UK—of British colonialism, imperialism, the slave trade and other grave human rights violations. Those building blocks have enabled people over a sustained period of time to view people of colour or of different nationality or ethnic or national origin as somehow worthy of disdain based on those characteristics.

The on-going point in the Scottish education system is to unpick the legacy of colonialism in our devolved areas of governance and in education in order to understand the impact of that global vision on the different communities that exist in Scotland and the microaggressions—or other prejudice or inequalities—that might flow from it, which come from that hierarchy of understanding of different communities.

A full disaggregation of data on the nature of racist hate crime has to happen alongside that process. We need to know which people—black, white, Asian and other—are the targets of racially aggravated hate crime in Scotland in order to inform those non-judicial interventions, and a lot has to happen around that issue.


I know that others want to come in, but I will leave them to do so at a later stage.

The other witnesses want to come in, but Shona Robison can invite Jennifer Galbraith and Amy Allard-Dunbar to say what they want in addition to a response to her questions.

Shona Robison

I want to pick up on the provision in the bill for a general defence of reasonable behaviour along with protection for freedom of expression in relation to specific issues. We have received a fair amount of evidence that argues that those provisions need to be strengthened. What are the witnesses’ views on that point?

Dr Galbraith

With regard to freedom of expression, our view is that there will never be a situation wherein abusive or threatening language that is based on someone’s race is appropriate. I cannot address the other characteristics—I know that the bill largely discusses religion and sexual orientation.

What was the first part of your question?

It was about the general defence of reasonable behaviour and your views on whether the provisions need to be strengthened.

Dr Galbraith

I am looking into that question at the moment, so I would be happy to send something to the committee afterwards if that would be useful.

If I am allowed, I would like to jump in on the point that I wanted to add earlier about other interventions. It is a two-way process: we need interventions to stop low-level racism—if we want to call it that—and also robust legislation to deal with the actual hate crime in order to communicate to society that that behaviour is not tolerable.

Amy Allard-Dunbar

With regard to the reasonable behaviour provision, I do not have much to add. Intercultural Youth Scotland was brought late into this process, so I did not have time to adequately prepare to give you our perspective on the issue.

On your other point, I agree with what Jennifer Galbraith has said on ensuring that every level is adequately covered in the bill. Nothing should be excused at this point.

Danny Boyle

I will make two brief points. We are not aware of the general defence of reasonable behaviour having been a problem in past years in relation to the prosecution of offences involving the stirring up of racial hatred.

However, I will make a general point about ECHR compliance. Although we can see no problems coming down the line as regards the bill’s provisions on stirring up racial hatred, there will have to be consensus on the other characteristics. Those will have to be watertight, because there is such significant interest in the legislation from so many different areas. We would not want to see the beneficial and positive aspects of consolidating hate crime law, which will make it much easier for people to access remedies, to be undermined by an ECHR compliance case that would put the bill’s whole approach in jeopardy. We therefore appeal for consensus in relation to the other stirring-up offences in the future.

Liam Kerr will wrap up our questioning on that aspect of the bill, after which we will move to questions from John Finnie.

Liam Kerr

Several of our witnesses, including those on the earlier panel, have made points about training, especially for the police and for court staff. We have also talked about restorative justice and wider public education. Do any of you have a view on whether the bill’s financial memorandum or, more generally, the resources behind it make adequate provision for what needs to be done to make it work? I put that question first to Danny Boyle.

Danny Boyle

Thus far, we have not had an opportunity to review the full financial memorandum. However, I will make general points about what we would like to happen on resources.

I know that the Scottish Police Federation has identified concerns about the retraining of officers to cover all the different circumstances that might prevail, given the bill’s provisions. However, our position is that that is a fundamental responsibility of those who are here to serve law and order, be that the Crown Office and Procurator Fiscal Service or Police Scotland. Individual police officers should be given adequate training, and the financial support to progress it, to enable them to have a comprehensive understanding of the definitions for the different statutory aggravations.

I would like to think that we could support such aims not only for the police but for society more broadly. The story that I put forward earlier about where the whole approach derives from, such as the United Nations system that emerged at the end of the second world war and the global consensus on apartheid, is very interesting and is one that we should know, anyway. Why our hate crime law—

The Convener

I am sorry to cut across you but, with the greatest respect, we do not have time to go through all of that story this morning. You have already mentioned those aspects. Mr Kerr asked a specific question about the financial memorandum. I ask you to stay focused on that, which would very much help the committee in its deliberations.

Unless Danny Boyle has anything else to say, I will put the same question to Jennifer Galbraith.

Dr Galbraith

I do not have anything to say on the financial memorandum. I simply reiterate that we need additional investment in training, and more BME recruitment for the police force and for agencies in general. I would be happy to write to the committee on those aspects. I am aware that Her Majesty’s inspectorate of constabulary in Scotland is currently carrying out a thematic review of hate crime, which should also cover aspects of the subject.

Would Amy Allard-Dunbar like to comment?

Amy Allard-Dunbar

I also have not had time to go through the financial aspect adequately. I simply echo everyone else’s analysis that the police currently do not have adequate training. They do not have significant levels of anti-racism or cultural proficiency training; neither do many other people in our institutions that would deal with the processing of hate crimes. Therefore, currently, such institutions are not adequately prepared to deal with racism as a hate crime.

That is helpful—thank you.

John Finnie

As I did in the earlier evidence session, I want to ask about the aggravation of offences by prejudice. The continued use of aggravations as the core method of prosecuting hate crime in Scotland has been broadly welcomed. If any panel member has a specific comment on that approach, I would welcome it.

If not, I would like to come to Mr Boyle. If you were watching the previous session, you will know that I mentioned the call by BEMIS, which other organisations have joined,

“for a legal requirement to be integrated into the Bill that places a duty on the Scottish Government, Police Scotland, and ... other relevant duty bearers to develop a bespoke system of ... hate crime data collation and disaggregation”

across all characteristics that are covered by the proposed legislation. Will you comment on that, please?

Danny Boyle

I would be happy to. When the regional police forces were amalgamated into Police Scotland—it was in 2014, if memory serves me correctly—we lost the ability to have any disaggregation on the nature of the victim, complainer or witness of racially aggravated hate crimes and incidents in Scotland.

As I have mentioned, we have international oversight of that. In order to have a coherent response to disaggregated data on hate crime, rather than getting block figures of 4,500 in 2017-18 or whatever it might be, we need to know which ethnic groups are being targeted. As an example, the figures that we have available, which we have provided to the committee and which are from 2004-05 to 2013-14, show that, whenever there was an international terrorist incident, we saw a significant spike in victims, witnesses and complainers being of Pakistani ethnicity, which was likely linked to Islamophobia.

It is incredibly important that we have the data on a rolling basis, because the nature of racially aggravated hate crimes evolves in different circumstances and in different times. I will give an example of an issue on which we are dealing with Police Scotland and the community involved. As a result of the perceived origin of the coronavirus pandemic, we have seen an upsurge in racist incidents and hate crimes affecting east and south-east Asian communities.

It is important that we have an annual disaggregation of data not only to inform non-judicial interventions but to forecast potential vulnerabilities for different groups due to geopolitical situations.

Would either of the other two witnesses like to comment on that, and particularly on the benefit of the data for non-judicial interventions, as Mr Boyle highlighted?

Amy Allard-Dunbar

I echo what Danny Boyle said about the data allowing us to map which groups are being disproportionately targeted at particular times. As he highlighted, since the coronavirus, there has been a significant increase in racism towards south-east Asian and Asian communities. In addition, particularly after Brexit, there was a big increase in hate crime towards people who are—or are even perceived as being—from other parts of Europe. It is really important to map that, because that helps us to understand how society responds to events, which, in turn, reflects their general perceptions and views about those groups. As Danny Boyle said, it is important to understand that, not as one large number, but in terms of its individual parts.

Dr Galbraith

We included in our submission a proposal that there should be a reporting requirement on ministers, which was based on the provision in the Domestic Abuse (Scotland) Act 2018. We want an annual report to be produced, which would include a breakdown of statistics and disaggregated data on the ethnicity of the accused and victims, using the census categories.

I believe that having a requirement to produce data alone might not work in practice, because that requirement is already in place for the public sector equality duties and we already see that that does not work in practice. If there was to be a data requirement, it would have to be strict.

John Finnie

I recognise the wider benefits that could be delivered if that were included.

In line with existing legislation, the bill states that the court must make clear what difference an aggravation has made to the sentence that has been imposed. Lord Bracadale has recommended removing that requirement. Is the retention of that helpful, perhaps with regard to the transparency of sentencing?

Dr Galbraith

We believe that it is helpful, and we agree with keeping the transparency around additional sentencing that aggravation adds on, because it gives validation to victims that their complaints have been heard and that racism is being treated appropriately. It provides an important support for victims and gives them more confidence in the way in which the criminal justice system tackles racism.


Amy Allard-Dunbar

Could you repeat the question? I think that I misinterpreted it slightly.

John Finnie

In line with existing legislation, the bill states that the court must make it clear what difference an aggravation has made to the sentence that has been imposed. Lord Bracadale recommended removing that requirement, and my question was whether you believe that the retention of the requirement is helpful, perhaps with regard to transparency and sentencing.

Amy Allard-Dunbar

Yes, and I would add that the retention of that requirement is necessary. As Jennifer Galbraith pointed out, it is essential to helping people understand that racism is being taken seriously and is being covered adequately. Additional provisions are always necessary when it comes to dealing with matters of race. Retaining the provision would provide a lot of clarity and transparency. I hope that that answers your question.

Danny Boyle

I concur with my colleagues. Someone on the previous panel talked about how important it is that individuals see themselves in the implementation of this legislation. For those reasons, we support the retention of that aspect.

Fulton MacGregor and Annabelle Ewing have questions about hate crime characteristics.

Fulton MacGregor

I have a general question. Do you have any concerns about the way in which the various hate crime characteristics are defined in the bill, and are there any other characteristics that you think should be added? I would like Dr Galbraith and Amy Allard-Dunbar to answer that before Danny Boyle, because I have a wee additional question for him.

Dr Galbraith

This might be quite a predictable answer, but I can comment only on the race provisions. We are happy with how race is presented in the bill, and I cannot really comment on other characteristics, and there are no other characteristics that I can think of that should be added.

It is helpful to have that on the record.

Amy Allard-Dunbar

The issue of how age is understood in this regard is quite interesting. I think that, in terms of who is in a vulnerable group, that characteristic is usually understood to relate only to older age groups. I think that, if the issue of age is to be understood fully in this regard, it needs to be understood from the perspective of young people as well, because a lot of young people do not know their rights and it is difficult for them to have the necessary confidence to report or to feel supported when doing so. If age is to be included as a characteristic in the bill, the perspectives of older people and younger people should be considered.

Fulton MacGregor

We heard something similar in relation to young people from a witness on the previous panel.

Danny Boyle, I would like to ask the same question of you, but I would also like to give you an opportunity to put on record your view about whether sectarianism should have been addressed in the bill. Obviously, it has not been. Do you think that it should have been defined, or do you feel that a statutory aggravation or stand-alone offence relating to sectarianism should have been created and added? I asked panel members that question last week. I do not know whether you were following that discussion, but I thought that you might like to have an opportunity to address the issue of sectarianism.

Danny Boyle

I do not have anything to add to what my colleagues outlined in response to the first part of your question. On sectarianism, our position, based on the available statistics, is that the community most likely to be targeted as victims of what, in Scotland, we understand to be primarily the traditional issue of inter-Christian sectarianism—although that is evolving continuously and there is a link between ethnic and religious identities—is the Catholic community. That has been the case, by far, since devolution. There are also anti-Protestant issues as well as Islamophobia and antisemitism.

To take the Catholic example, as we said in our written submission, there is obviously a close link between the multigenerational Irish community and the Catholic community. There is case law on that. For example, the case of William Walls v procurator fiscal, Kilmarnock, reflected the issues of the singing of the lyrics

“the famine is over, why don’t you go home”,

as well as calling someone “a fenian” b-word. That was successfully prosecuted as both religious and racial aggravation. Therefore, we see no need to create a sectarianism aggravator, because the existing statutory aggravators cover the dynamics at play and give us clearer sight of what is going on. BEMIS is a membership organisation, with members from all these communities, and, from what we have heard from them, there is zero appetite for a sectarianism aggravator. That is the long and short of it.

It was helpful to give you the chance to put that on the record. I am happy with that, convener.

Annabelle Ewing is next, before James Kelly wraps up the questions.

Annabelle Ewing

Thank you, convener. My question is directed to Danny Boyle, given the breadth of the background of the organisation that he represents. Do you have any comments on behalf of BEMIS on the issue of the non-inclusion thus far of the characteristic of sex in the bill?

Danny Boyle

I can respond to that only in the context of the intersection of race and sex. We see from a number of examples of individual cases that there is a misogynistic element that is linked to the racial aggravator. There will be a working group on misogynistic harassment, which will look at the nature of that hate crime. We agree with other witnesses that the work of that group should continue. We also agree that there should be clear parliamentary oversight and participation in that group and that a human rights-based approach would ensure that women’s groups are front and centre in that debate and in discussion in society more broadly. Our ask is that women from BME communities, who are protected on the basis of their colour, their nationality and their ethnic national origin, must be part of that conversation.

Annabelle Ewing

To clarify that, some people have suggested that the fact that, regardless of whatever is going to happen on any potential stand-alone offence of misogynistic harassment down the line, the lack of inclusion of the characteristic of sex now might risk sending a rather odd signal to the public. Do you have a response to that concern, which has been raised—[Inaudible.]

Danny Boyle

I missed the last part of your question as you cut out slightly. Could you repeat that, please?

Annabelle Ewing

I am sorry. Some people have raised concern that the lack of inclusion now of the characteristic of sex might risk sending a rather odd signal to the public. Do you have a particular response to that, in light of your previous comments on the issue?

Danny Boyle

We would need to consult our membership before I could put forward a definitive position on that.

Thanks, Danny. I have finished my questions, convener.

Thank you, Annabelle—that was quicker than I had anticipated; you caught me unawares. James Kelly has the last set of questions for this panel.

James Kelly

I will concentrate on the issue of support for victims of hate crime, starting with a question for Jennifer Galbraith. Can any additional measures be taken in education or reporting in order to provide more support for victims of hate crime?

Dr Galbraith

Quite a few additional measures could be taken. CRER has previously called for the formation of advocacy groups to support victims all the way through the reporting process to prosecution. That ties in with the issue of underreporting.

In our submission, we advocate the inclusion in the bill of a duty on ministers to promote the reporting of hate crimes, similar to the duty in the Social Security (Scotland) Act 2018 to promote social security take-up. Such promotion could include the formulation of strategies to address specific areas of the hate crime reporting system, such as the provision of support, where improvement is needed.

Does Amy Allard-Dunbar have any comments?

Amy Allard-Dunbar

Your question segues nicely into what I had hoped to bring up. It speaks to the need for alternatives to the current system, because support for victims of hate crimes is not adequate at all. That applies in particular to victims of racial hate crimes. Much of the black and minority ethnic community does not have much trust in the criminal justice system, so people do not want to get involved in the first instance. If someone chooses to report a crime and follows the process through, it will often be an uncomfortable and mistrustful process in which they do not really want to be involved.

A way to better support victims would be to set up a community support and engagement network to act as a consultation space. People could go there to seek guidance and support when they had experienced a racist hate crime or incident, and from that consultation they would get help to determine what further support they might want. The network would run primarily on the basis of a restorative justice approach. It would also function as an education centre to educate the perpetrator on the harm that their crime has caused and look to continue their education along the way. The perpetrator of the offence might carry out peer education work with others if it is clear that the restorative justice process with the victim is not working. We would also need a helpline to allow people to call in with any concerns.

One of the main problems—and the main reason why race needs to be viewed separately, to summarise all the points that have been discussed—concerns the question of who is currently in charge of determining whether an incident is a hate crime. IYS believes that it needs to be people from the communities who determine whether an incident is in itself a hate crime. The only people who are able to make that determination are those with lived experience. It is not adequate for us to think that people who have no lived experience of racism have the right training, understanding or knowledge to understand the impact of hate crime and the trauma and racial trauma involved, and to determine the impact of what was said in an incident. That happens a lot with microaggressions. A considerable number of significant steps must be taken in order to better support victims. From the IYS perspective, that would look like a complete restructuring of how hate crimes are dealt with.

James Kelly

Thank you for laying out those steps. It is vital that we build trust and confidence at a community level in order to support victims.

Can I get Danny Boyle’s thoughts on that area?


Danny Boyle

I would largely reiterate what has been said, and I will add one extra thing. We have done conferences over recent years on tackling prejudice that is motivated by racial and religious hatred, and the remedy of last resort that is provided by the law is incredibly important, but it is also about advocacy groups—as Dr Galbraith mentioned—education and restorative justice.

We have missed out something. I spoke earlier about the on-going conversation that is being conducted by Amy Allard-Dunbar from Intercultural Youth Scotland and some other brave young people who have experienced the sharp end of the wedge when it comes to racism in our schools. That dialogue is being held among institutions, duty bearers and society more broadly about the issue and its impact, and the International Human Rights Committee has also picked up on colonialism and imperialism and their impact on young people.

We as adults—and as political parties, the Scottish Government and society more broadly—also have a responsibility to take this discussion on. We have a national performance framework outcome in the Scottish Government to create an inclusive national identity. What does that actually mean, though, in the context of attending to all those issues?

An interesting observation was made earlier. During the first panel discussion, Rona Mackay asked why the stirring up of racial hatred offence has not been seen to be used as much in Scotland as it has in other parts of the UK. I offer three quick observations on that. Given the legislation, we may find that groups such as the National Front and the British National Party, which have a foothold across the UK, will be prosecuted in England or Wales, even though some of their activity might be taking place in Scotland. We are aware that there seems to be more of a prevalence of the use of counterterrorism legislation to tackle some of that activity. One of the groups that we have seen manifesting most recently is Generation Identity, off the back of National Action. It was targeted using that legislation.

We have not quite got to the point of really discussing Scottish far-right activism. We are good at identifying where it is manifesting in England, but we are not so good at identifying its Scottish-specific trends. We know about all the UK groups such as Combat 18, the National Front, the BNP and the Scottish Defence League—sorry; SDL is Scottish-specific. There are other examples, however, of where the far right coalesces in Scotland, but Scotland is not quite yet at the position of having a grown-up conversation about where and why that is taking place.

All the points that colleagues have raised and we have reinforced are incredibly important, but it is high time that Scottish society figures out for itself what we mean by an inclusive national identity. We should start to identify far-right organisations in Scotland and what they are orbiting around. It is not always football; actually, that is the least of it. Some of the best and most anti-racist actions are being taken by football clubs. The activity is occurring in different dynamics of society, be it through marching-band culture or whatever it might be. We are not quite there yet when it comes to having that discussion and those issues continue to manifest.

Thank you, Danny—those were points well made.

The Convener

I thank Danny Boyle, Amy Allard-Dunbar and Jennifer Galbraith for their evidence this morning. You have very much helped to put the specifics of the bill in a much broader context, which raises a whole host of questions, not only for the committee but for the Parliament and Scottish society generally. We are very grateful to you all for that.

As before, we will suspend the meeting to enable a changeover of witnesses.

11:34 Meeting suspended.  

11:38 On resuming—  

The Convener

I welcome our third and final panel today. With us are Claire Graham from dsdfamilies, Paul Dutton from the Klinefelter’s Syndrome Association UK, Lucy Hunter Blackburn from Murray Blackburn Mackenzie and Becky Kaufmann from the Scottish Trans Alliance. I welcome all four witnesses to the committee to help us to continue our consideration of the Hate Crime and Public Order (Scotland) Bill.

I open the questioning by asking our witnesses to reflect on the amendments that the Cabinet Secretary for Justice has already proposed to make to his bill. Are they necessary? Are they sufficient? Do they go too far or, indeed, not far enough? I will start with Lucy Hunter Blackburn and then bring in the other witnesses in turn.

Lucy Hunter Blackburn (Murray Blackburn Mackenzie)

Thank you for inviting us to give evidence today. I understand that there is only one amendment that it is absolutely clear that the Scottish Government has proposed, and it would remove likelihood so that there has to be intent. I know that the cabinet secretary has suggested that other provisions may need to be amended as a consequence—I think that he mentioned freedom of expression and reasonableness—but I am not sure that we have yet seen the detail on those aspects, so I cannot comment on them. I can comment only on intent.

The proposed amendment would improve the bill. We have highlighted our concerns about likelihood. However, as I will say later in my evidence, we have much bigger concerns about the long shadow, if you like, that the legislation will cast. By removing likelihood, you will slightly reduce the long shadow over freedom of speech, which we worry about, but it will remain. The proposed amendment represents an improvement—it would be wrong for me not to say that—but it far from answers all our concerns.

What does the cabinet secretary need to do in addition to that, in your view?

Lucy Hunter Blackburn

If this is a chance for me to say up front where we are starting from, I want to make it clear that, for us, the issues are mainly around part 2 of the bill and the extent of the stirring-up offences. We are concerned that the extension of stirring up is underscoped. There is much work still to be done to make it work safely around freedom of expression.

We are comfortable with the precedent that we see in England for the extension to religion, belief and sexual orientation, because we know that that model has not caused trouble for freedom of expression there. We would support something that sticks closely to that, but we are concerned about the extension of stirring up beyond those characteristics.

Becky Kaufmann (Scottish Trans Alliance)

We broadly support the cabinet secretary’s proposed amendment to require intent. We feel fairly comfortable that the ability to prosecute something depending on evidence that a person intended to stir up hatred or be threatening or abusive is an appropriate and useful threshold, and we feel that it represents an appropriate protection for freedom of expression.

Thank you, Becky. That is very clear.

Claire Graham (dsdfamilies)

We believe that a change to require intent is important, but we have reservations about who defines what is hateful in general for people who are intersex and the impact that it will have on our freedom of expression to talk about ourselves, but also to help to educate people. The issue for us is freedom of speech and how education regarding differences of sex development will be affected.

I know that members will want to pick up on what you mean by the issue being freedom of speech, but we will come to that in due course.

Paul Dutton (Klinefelter’s Syndrome Association UK)

We broadly support the proposed amendment. I think that intent should be shown, as opposed to merely likelihood, so that will be an improvement to the bill. I have no further comment on that.

Okay—thank you. I ask Rona Mackay to pick up the questioning.


Rona Mackay

As I did with the previous witnesses, I will ask about the different approach to race hate crime. The proposals do not require intent to stir up racial hatred, and they include insult. In relation to your issues, do you think that that is how it should be? Does that approach create a hierarchy of characteristics? Are you happy that race crime is being treated separately in the bill?

Claire Graham

I am sorry, but I do not really understand the question.

Rona Mackay

Race crime accounts for two thirds of all hate crime, and the bill treats it differently in that it does not require intent, and insulting behaviour is the threshold. Do you agree with that? Does that approach set race crime apart from the issues that you are concerned with? If so, are you satisfied that that should be the case?

Claire Graham

I listened to the panel that discussed race, and the witnesses seemed to welcome that. Obviously, that is not really relevant to intersex issues. I do not think that it would be helpful for that approach to be extended to us because, even within intersex charities, we do not have an agreement on what is considered to be insulting.

That is absolutely fine. I ask Paul Dutton whether he has a view. You do not have to have a view, Paul, but, if you do, speak up about it.

Paul Dutton

I have to say that my main concern is that intersex and variations in sex characteristics are included. I understand that, if race accounts for two thirds of the reports, it probably requires a higher profile, but I would like to ensure that all the other characteristics are included.

Lucy Hunter Blackburn

I think that we said in our written submission—we have certainly said it since then—that we see exactly why race is being treated separately. It has a much longer history as a protected characteristic. The previous witnesses set out in detail the origins of that. It is not my area of expertise at all, but I can see why race is treated differently. To us, treating race separately, which includes deciding to stay where we are and to have stirring-up offences that are only for race and nothing else, seems justifiable, because of the scale and history of the issue and the political circumstances around racial hatred.

Becky Kaufmann

Although we broadly support the concept of a consolidated hate crime bill and we feel that it is the most effective improvement to the law, we recognise that historically marginalised groups are not homogeneous and that the experiences of hate crime within groups can vary from group to group. As was put forth far more eloquently by the race organisations, the current structure around race seems appropriate. Similarly, we think that the proposed stirring-up offences as they apply specifically to LGBT people, including trans identities, is appropriate for our needs as a community. We do not see anything particularly problematic in the fact that race is treated differently.

We are strong in our belief that we do not want anything in the law that would be an actual or perceived rolling back of protections that any community might have had in the past. Public confidence in hate crime legislation is particularly problematic, so it is really important that the bill does not give the impression that any previously existing protections are being taken away.

Thanks very much—that is helpful.

Liam McArthur and Shona Robison have follow-up questions about those aspects of the bill.

Liam McArthur

I think that Shona Robison will touch on some of the points around freedom of expression, but I want to ask Lucy Hunter Blackburn about the broader concerns that she talked about in relation to part 2.

Obviously, the changes in relation to intent allay some of the concerns, but I think that Lucy Hunter Blackburn is on record as saying that the provisions as a whole are not necessary and that the approach that has been taken through legislation recently adopted in England and Wales might provide more of a blueprint, in that it provides the protections that Becky Kaufmann and others referred to, but in a way that perhaps impinges less on freedom of expression.

Lucy Hunter Blackburn