Equal Opportunities Committee, 06 Nov 2007

Meeting date: Tuesday, November 6, 2007

Official Report 195KB pdf

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Proposed Sentencing of Offences Aggravated by Prejudice (Scotland) Bill

Item 2 is consideration of the proposed sentencing of offences aggravated by prejudice (Scotland) bill. I am pleased to welcome to the committee Patrick Harvie MSP and David Cullum, who is with the non-Executive bills unit. I remind members that today we have a specific and limited role. We will not look at the principle or substance of, or the policy intent behind the bill; our role is merely to consider the consultation and to satisfy ourselves that it was sufficiently wide and was carried out in the round. With that proviso, I ask Patrick Harvie to make an introductory statement.

Thank you, convener. I am pleased to speak to my proposal. As the convener said, I will speak not about the specific proposal, but about my reasons for not wanting to carry out a further round of consultation.

I will give the committee some background, of which I am sure members are aware. In 2004, during the previous session, the Scottish Executive consulted on what measures could be introduced in the criminal justice system to tackle hate crime. That consultation was part of the work of the working group on hate crime that was established in 2003, and followed my colleague Robin Harper's efforts to amend the Criminal Justice (Scotland) Bill. At the time, there was general cross-party recognition of his efforts and of the need to address the issue in some way.

It is worth emphasising that equality was, from the word go, part of the working group's ethos. The group was made up of representatives of the Equal Opportunities Commission, the Scottish Association for Mental Health, Outright Scotland, Capability Scotland, the Equality Network, Stonewall Scotland, Engender, the Disability Rights Commission, Age Concern Scotland and Enable. It also involved Lothian and Borders Police, the Executive's criminal justice division and the Crown Office and Procurator Fiscal Service. The group met eight times in the course of just over a year and took evidence from the Commission for Racial Equality, the Scottish Refugee Council, the Executive's violence against women unit, victim information and advice, the police and the Executive's criminal procedure division. The way in which the working group was constructed shows the breadth of the work that was undertaken.

Following the consultation, the group published a final report with recommendations. I am sure that members have had a chance to familiarise themselves with those. The responses to the consultation were analysed and informed the report and recommendations. Given that it was a relatively recent and very extensive consultation, more than 1,000 copies of which were issued, I do not believe that consulting again would add to what we know about the issues or the opinions of the people who responded. In fact, consulting again would simply duplicate the work of the working group, whose primary recommendation is the basis of my proposed bill.

As well as duplicate the work of the working group, consulting again would require organisations and individuals to spend time on producing responses. Small organisations are often strapped for time and have to respond to many consultations, so consulting again would place an unnecessary additional burden on them.

In line with standing orders, I have given the committee a statement of reasons for not consulting. In short, I believe that the original consultation was well presented, thorough and undertaken in accordance with the Government's best practice. There is also ample existing published material on the subject; the statement includes some links to that material. Responses to the consultation suggest that there is wide support for legislation on the issue, and that there is a clear preference for the mechanism that I am seeking to introduce, which is statutory aggravation on the grounds of disability, sexual orientation and transgender identity.

Given the extent of the original consultation, it would be appropriate to move to parliamentary scrutiny as soon as possible. As well as placing a burden on organisations, an additional consultation might delay introduction of a bill by six months or thereabouts. We should get on to the policy detail as soon as possible and debate the amendments that members may wish to lodge.

I am grateful for having been given the opportunity to speak to the committee and am happy to take questions from members. I have set out my reasons for not wishing to consult further.

You base your decision not to consult on the proposal on the fact that the working group on hate crime has already carried out widespread consultation. Are you content that the consultation methods that the working group used were varied enough to maximise participation by relevant people? For example, did the group rely solely on a written consultation process?

The list of respondents shows significant breadth of involvement among the voluntary sector, religious organisations, local government and the police. In my view, the consultation maximised participation as well as any member's or Executive consultation could have done. Because the work was grounded in the working group, it probably achieved better input from groups that would be affected by the legislation than have many other consultations.

Did the group rely on a written consultation process?

As I understand it, the organisations that I mentioned—the Commission for Racial Equality, the Scottish Refugee Council, the Executive's violence against women unit, the victim information and advice service, the Crown Office and Procurator Fiscal Service, the police and the Executive's criminal procedure division—gave presentations to the working group. The rest of the responses were written.

Did the working group's consultation cover all the issues that are raised in your proposal or were there any significant omissions? You mentioned the breadth of the work that was done, but I am concerned that that very breadth might be a problem because the consultation might not have focused on what you propose. Is it a problem that the consultation was extremely wide and did not focus on your proposal?

I ask David Cullum to respond to that.

That is an interesting point, which I thought about when I read the papers. The consultation was broad. It was very much a policy consultation; it set out the potential issues and asked what we should do about them. However, the responses to the consultation and the working party's final report distilled the issues nicely and picked up on the subject of Patrick Harvie's proposal. I agree that the consultation was broad, but the conclusions were very much in line with what Patrick Harvie proposes.

Section 3 of the consultation paper goes into detail on the legislative options. The earlier sections introduce the concept of hate crime and discuss what it is. The first option that the paper discusses is statutory aggravation, but it also includes alternatives. A member's consultation would also need to consider the alternative approaches that could be taken—most members' consultations do that, but all that I could do would be to replicate the process. I do not think that an additional consultation would add anything.

Thank you. That is helpful.

Did respondents to the working group's consultation—or, indeed, anyone else—express concern about the way in which the consultation was conducted? Are you certain that it allowed meaningful expression of views?

I am not aware that any direct criticisms were made. In recent months, in contemplating whether to lodge a member's bill, I spoke to a number of the organisations that took part in the process. I understand that several of those organisations have lobbied the committee and provided briefings arguing that further consultation is not necessary, which shows that they were satisfied with the process.

How did the working group select the list of consultees to whom the consultation document was issued? Are you content that a sufficiently wide range of types of organisation was included? The list of respondents was published on the web, but have you seen a list of the organisations or groups that were invited to participate? Some of those might not have responded.

The way in which the consultation document was distributed was consistent with the previous Administration's best practice standards for consultations. Section 4 of the final report mentions the range of respondents, which included academics, trade unions, political organisations and a significant number of individuals.

Does that answer your question?

That is fair enough, but what about those who did not respond? Do you know whether many organisations did not take up the opportunity?

David Cullum points out that 1,000 copies of the consultation were distributed. We can do a simple bit of arithmetic to find out the number who chose not to respond, but I do not have a list of them.

Was there an attempt to get back to those who did not respond or was it decided that that was their choice?

I am not aware of a subsequent effort by the Executive to approach those who chose not to respond. I think that that is consistent with general practice for the consultation exercises that have been conducted in relation to pretty much every bill that has been introduced to Parliament.

One of the most impressive things about the consultation is the composition of the working group and the range of interests that were represented on it. Although some minority interests might not have responded, I am not aware of another consultation that has received as widespread a response or which had as wide a steering group as this one.

I want to press you on how the consultees were selected. I do not think that we covered that point.

I was not personally involved in the consultation, so the situation is unusual because other members who have lodged a statement of reasons for not consulting have themselves previously conducted consultations. The consultation that we are discussing was a Government consultation that was conducted according to the standards that the previous Administration used for all its consultations. If the consultation was defective, we would know that because organisations would be arguing for more time and additional opportunities to respond.

Does David Cullum have anything to add to that? You are not in a position either to know how the consultees were selected.

No—but the fact that 1,000 copies of the consultation document were distributed is significant. That is, by a large factor, higher than the number of people whom members normally consult.

Good morning. Is the consultation by the working group the only consultation that was carried out? It is not clear from your statement of reasons whether there were other consultations.

The consultation that I mentioned was conducted by the working group on behalf of the Scottish Executive. In addition, I am aware that the Scottish Civic Forum held a number of public events to discuss the issues that were raised by the working group. I can supply the Scottish Civic Forum's report on the process if that would be helpful.

How many consultation documents went out, including not just the working party's consultation but others?

There were 1,000 hard copies of the consultation. In the case of both Government consultations and members' consultations, it is difficult to know how many people have downloaded electronic copies from the internet. There was also an EasyRead version and there was a small number of requests for translations in Urdu and possibly one other language.

So—you do not know how many consultation documents went out in total.

It would have been 1,000 copies of this—

But that does not include the Scottish Civic Forum and the others.

The Scottish Civic Forum held public meetings rather than issue a glossy consultation document.

It is always difficult to give an exact number, because consultations by the Executive and by members are also routinely available on websites. We have no information on the number of downloads from websites. What we can say, from the information that we have, is that well over 1,000 copies were issued. The EasyRead version received a healthy response rate in addition to the 1,000 copies that went out. In addition, there were downloads from the website and any copies that recipients made.

Thank you. I understand that, having been through the consultation process on a bill myself.

Given that more than 1,000 copies went out, are you happy that the 175 responses represent a good rate of return?

As far as I am aware, from comparisons with consultations for other bills including members' bills, that is a fairly good response rate. As we said, a broad range of different organisations was consulted and there was a good level of response to the EasyRead version as well. I believe that the level of response was satisfactory.

You note in paragraph 10 of your statement of reasons that the working group

"met with a number of other organisations".

I do not know how many of those there were. Which organisations were they and did the group cover the same issues with them as were covered in the consultation document?

I read out a list of the organisations earlier: they are the Commission for Racial Equality, the Scottish Refugee Council, the Executive's violence against women unit, the victim information and advice service, the Crown Office and Procurator Fiscal Service, the police and the criminal procedure division. I have a note of their having had meetings with the working group and having given presentations. I am sure that there was discussion of the whole range of issues that were covered in the consultation paper including the proposal for a statutory aggravation, which the working group eventually recommended.

Those are all statutory bodies. Were no local or civic organisations involved?

They would have taken part in the Scottish Civic Forum's process.

Okay—thank you very much for that.

To save you turning the page, Patrick, my question is also on paragraph 10 of your statement. You point out that the working group

"discussed in detail legislative and non-legislative approaches."

Were the consultees made aware of those different approaches?

Yes. As I mentioned, section 3 of the consultation paper discussed legislative options including the statutory aggravation that I am proposing, which the working group eventually recommended, along with other options. It went on to consider non-legislative options. I ask the committee to bear with me while I find that in the document.

I did not save your turning the page after all.

I have turned several pages. The policy options included changes in the courts service, the Crown Office and Procurator Fiscal Service and the police, the idea being that changes in practice could achieve some of the objectives of the legislative approach. It is probably fair to say that such changes in practice might achieve some of the advantages of the legislative approach; however, as the working group concluded, only legislation would meet the need fully. Although we are straying into the policy, I would say that Parliament, in the past session, concluded that that was the case when it decided to introduce statutory aggravation on other grounds.

I have two more quick questions. Have any of the original respondents, or any other group, approached you with a new or updated position on the consultation?

No. The only feedback that I have had from those to whom I have spoken can be summed up as, "Let's get on with it." There is a willingness to see the issue moved forward. It is possible that the commissions—which have merged and are no longer stand-alone bodies—may have changed their view; however, the fact that the new Equality and Human Rights Commission has written to the committee, urging it to allow the proposal to proceed, shows that it is content. I gather that there was also a letter from Stonewall Scotland in last month's Holyrood magazine, which stated that the proposal should proceed to the legislative stage.

You are pretty confident that none of the respondents has changed its views—they are all of the same view.

I am very confident of that.

I just did a wee bit of maths and found that the consultation had a return rate of 6 per cent. It would be interesting to know what the average return rate is for a consultation. Perhaps David Cullum can tell us.

A thousand hard copies were sent out and there were 102 responses. There were also 73 responses to the EasyRead version, although we do not know how many copies of that went out. The hard copy had a response rate in excess of 10 per cent, which is a pretty good response rate. I suspect that the more that are sent out, the more that the law of diminishing returns kicks in. We know who the main players are, and as long as we get to them we will get the main comments. The more copies that are sent out, the fewer replies are received proportionately. If a consultation has a response rate of 10 per cent plus, it has done pretty well.

I just did my own maths—maybe I am not as good as you at it. The figure came out at 6 per cent, from the 175 responses that I knew about. In the future, it would be interesting to see what the response rate is in consultations on anybody's bill.

How did the working group publicise the fact that it was carrying out a consultation? You mentioned the internet. Is that the only way in which people were told about it, or was there wider publicity?

As I said, the process was carried out to the best standards that the previous Administration used for all its consultations. I argued earlier that there were additional strands to that, in that some of the organisations took part in the Scottish Civic Forum's process, which complemented the formal consultation. As far as my mental arithmetic goes, I make the response rate 17 per cent, but I might be wrong.

I had better check my arithmetic. Thank you, Patrick. I just wanted to know how the consultation was publicised.

You mentioned that the consultation document was published in hard and electronic copies as well as in an EasyRead version. In your statement, you also made passing reference to other languages. Did you have a request for a Makaton version for those who are unable to deal with British Sign Language? Did you make people aware that a range of options was available, should anyone require the document in a language other than English?

I re-emphasise that I did not conduct the consultation, so I did not receive that kind of request. A small number of requests were received for translations into minority languages, but I am not aware of any other formats being requested. The consultation made clear the fact that further copies could be obtained in alternative formats and community languages on request. The document was made available as robustly as pretty much any consultation document that has been published since the process began.

My next question is probably for David Cullum. Although a downloadable version of the consultation document and a hard copy were available, was it possible for people to give their responses online?

Certainly—e-mail responses would have been accepted. There was an e-mail address for individuals or organisations to send their responses to. Are you asking whether there was a web form to be completed?

Yes. Was it possible to complete the consultation document online rather than download it and send it via snail mail?

It could have been sent by e-mail rather than in hard copy. As far as I am aware, there was no web form that could be completed online. I am not sure that that has been standard practice.

Convener, it is possible that the questions are starting to be about whether consultations in general are effective. I argue strongly that the consultation was conducted every bit as thoroughly and comprehensively—and probably more accessibly, in terms of equality groups—as most consultations that the Scottish Executive, in whatever guise and during whichever session of Parliament, has conducted. It was a thorough and high-quality consultation. The responses that were received were well analysed and gave a very clear indication of the views of the respondents.

It is worth pointing out that the committee's job is to ensure that the best possible consultation has been carried out. If that means that we must consider things that were not done in the past, so be it. We need to be thoroughly satisfied that everything that should have been done has been done.

That is fair. When I was preparing for today's meeting, I looked at the Government's code of practice on consultation. The code of practice was updated in January 2004, so the consultation that we are discussing was probably prepared in accordance with the 2000 code of practice. The updated code sets out six key criteria, of which four are particularly relevant to the consultation that we are considering. Would it be helpful if I read out the four criteria?

Yes.

They are:

"Consult widely throughout the process, allowing a minimum of 12 weeks for written consultation at least once during the development of the policy.

Be clear about what your proposals are, who may be affected, what questions are being asked and the timescale for responses.

Ensure your consultation is clear, concise and widely available.

Give feedback regarding the responses received and how the consultation process influenced the policy."

From the reading that I have done, I think that all four criteria were comfortably met in the consultation on hate crime. The final two criteria are about departmental effectiveness and better regulation and best practice, which are not relevant to the issue that is under consideration.

Thank you. It is good to have that update, but you will appreciate that the committee must be satisfied from an equal opportunities perspective that proper consultation has been done.

I want to ask Patrick Harvie about a couple of comments that he made, so that I can be clear about his position.

You said that the working group concluded that there should be legislation, but that does not mean that people concluded what the legislation should do. Is that not why there should be a consultation on your proposal? You think that your proposal reflects the working group's conclusions, but surely only a consultation on your proposal would enable people to confirm that. Groups that support the principle of legislation might want to comment specifically on your proposal.

Your question is valid. The consultation that was done specifically included the mechanism of statutory aggravation, as well as alternative approaches that might be considered—as a consultation organised by a member of the Scottish Parliament would do. The working group on hate crime made 14 recommendations. In recommendation 1, it said,

"The Scottish Executive should introduce a statutory aggravation as soon as possible for crimes motivated by malice or ill-will towards an individual based on their sexual orientation, transgender identity or disability",

and it went on to give details of how the legislation should be framed. That is precisely what I seek to introduce.

However, people who chose not to have an input into the working group's consultation might want to comment on your proposed bill, which has emerged from that consultation. David Cullum mentioned a letter in Holyrood magazine that called for a move to a legislative stage, but surely the legislative stage includes a consultation.

I absolutely agree that the process must include consultation. I am arguing that in the consultation that was conducted the first legislative option on which people's views were sought was the mechanism that is in my bill proposal. Respondents overwhelmingly supported that option and gave details about how it should be implemented. The working group's recommendation 1 was that it should be implemented.

As well as more general issues about hate crimes and how they impact on people's lives, the specific proposal to introduce a statutory aggravation for crimes motivated by prejudice on grounds of sexual orientation, transgender identity and disability has been fully consulted on, in a very inclusive way.

I want to ask David Cullum about the process. We are considering the need for consultation on the draft proposal. If Patrick Harvie had carried out a consultation, he would consider the responses and make a decision on whether to lodge a final proposal. If he decided to lodge a final proposal on the basis of the information from the consultation that had taken place, I presume that a bill would come to this committee, which would consult further as part of the legislative process. Is that the case?

I think that that is right. The committee is considering whether there is a need for consultation on the draft proposal—the basic idea. If the committee were satisfied that there was no such need, or, if not, after further consultation, ultimately Patrick Harvie would lodge a final proposal, which would have to gather support from members from different parties before he could introduce a bill. As you said, I presume that the Equal Opportunities Committee would consider the bill. It is routine for committees of the Parliament to seek wide views on a bill as part of the stage 1 consideration process. It is interesting that the rules allow a committee to recommend that a bill be rejected if it considers that the outcome of the consultation did not support the final proposal.

Therefore, it is in the interests of the member who lodges the proposal to be satisfied that there has been robust consultation, because a committee might, after it had considered the finer detail of a bill, conclude that there had not been robust consultation.

That is correct.

Thank you for clarifying that point. What steps were taken to evaluate participants in the consultation? For example, did the 101 individual respondents reply by e-mail? Were responses individually worded or was there a standard response? What were the 52 organisations that responded? Was an attempt made to measure what percentage of respondents commented on sexual orientation or disability issues? I want to get a feel for who responded and how well people were represented.

The working group's final report includes a breakdown of types of respondent, which shows that 5.1 per cent of responses came from lesbian, gay, bisexual and transgender organisations, 7.4 per cent came from disability organisations, 8 per cent came from local authorities, and 4.6 per cent came from gender equality organisations. I can go through the list in full, if you want, or I can provide it for the committee, if you do not have it. The information is in the final report, as is a full list of respondents.

A few respondents might have requested that their response not be made public. That is the case with all consultations and is particularly the case on an issue such as hate crime. However, the majority of respondents are listed and their responses are available, as is the breakdown of the type of organisations that responded.

Did the 101 individuals who responded talk about the whole issue or just the disability or sexual orientation aspect? Were they speaking from experience? I just want an overview of where the respondents were coming from.

An individual can respond to a consultation without necessarily giving a great deal of detail about their experience. Anyone is entitled to respond to a public consultation. The information that we have covers the proportion of individuals who responded and the breakdown of respondents into local authorities, disability organisations, criminal justice organisations and so on. I am not sure that it would be possible—

Did your analysis show that any groups were underrepresented?

I do not believe so.

You think that everyone who should have responded, and whom you would have liked to respond, did so.

I would argue that this consultation reached a broad range of individuals and organisations. There was a high response rate compared to that of many other consultations. The responses were overwhelmingly supportive of the proposal.

There are no further questions. Are members satisfied with the reasons that the member has given for not consulting on the draft proposal?

I am.

We will need to take a show of hands to see whether there is dissent from that view.

Are we allowed to have some discussion before we go to a vote?

We are under a lot of time pressure, but I will allow a brief, five-minute discussion before we move to the vote.

If members want to vote that there needs to be further consultation on the proposal, they should give a reason for that. My view is that consultation has been carried out. The member has shown that it would not be in his interests to proceed with a legislative proposal that had not been consulted on to his satisfaction. If the final proposal comes to the committee, we might find that we do not agree with the member's view on that, in which case we can undertake further consultation. I would like to hear from any members who do not think that consultation has been carried out.

I am still not convinced that people were consulted specifically on this proposal for a bill. Organisations that contributed to the consultation might have different views on the proposed bill. If we consult people on one thing, they will come at it from a particular perspective. A particular outcome might have resulted from the consultation, but that is not to say that the consultees think that the proposed bill is correct. The only way that we can test that is to ask for a consultation specifically on the proposed bill. I just do not think that we can apply responses to a wide-ranging working group report to a specific bill proposal. That would be a dangerous precedent for the parliamentary process.

The original consultation covered a series of options, including the option that we are discussing. If individuals felt strongly that the option of introducing a statutory aggravation was wrong, they would have been able to say so. Therefore, the consultation did specifically cover the proposed bill. If we were to have another consultation, we would have to ask more or less the same question; we would have to ask whether people wanted a statutory aggravation to be introduced.

I hope that I understood what David Cullum said. My understanding is that whichever committee considers the proposed bill at stage 1 would have an opportunity to take evidence on it. At the moment, we are talking about only the draft proposal. There would be an opportunity subsequently to consider and take evidence on the specific proposal. Michael McMahon's point about the specific proposal would therefore be addressed at stage 1.

I ask David Cullum for clarification. Would a committee normally carry out another consultation, or would it just undertake stage 1 consideration?

At stage 1, after a bill has been introduced, it has been the norm for the committee considering it to consult—if I can use that term—and seek views from wider society on the proposal.

That clarifies the matter for me. Thank you.

I think that the working group on hate crime did a really good job. I would be disappointed if only recommendation 1 were taken forward, rather than all the recommendations. The proposal that we are considering is basically recommendation 1. I do not see how the member could have made the consultation any better. I am content with it.

We can now move to the vote. Are members content with Patrick Harvie's reason for not consulting on the draft proposal?

For

Glen, Marlyn (North East Scotland) (Lab)
Kidd, Bill (Glasgow) (SNP)
McMahon, Michael (Hamilton North and Bellshill) (Lab)
Mitchell, Margaret (Central Scotland) (Con)
O'Donnell, Hugh (Central Scotland) (LD)
Smith, Elaine (Coatbridge and Chryston) (Lab)
White, Sandra (Glasgow) (SNP)
Wilson, Bill (West of Scotland) (SNP)

The result of the division is: For 8, Against 0, Abstentions 0. The decision is unanimous.

I suspend the meeting to allow a changeover of witnesses.

Meeting suspended.

On resuming—