Meeting of the Parliament [Draft]

Meeting date: Tuesday, April 16, 2024

Official Report 1015KB pdf

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Hate Crime and Public Order (Scotland) Act 2021 (Implementation)

The next item of business is a statement by Angela Constance on implementation of the Hate Crime and Public Order (Scotland) Act 2021. The cabinet secretary will take questions at the end of her statement, so there should be no interventions or interruptions.

14:36  

I would like to provide Parliament with an update on the Hate Crime and Public Order (Scotland) Act 2021. After the commentary that we have seen since the act’s commencement on 1 April—much of it misleading at best—I will take this opportunity to remind members of the act’s purpose.

Let me begin by emphasising that we in Scotland should be rightly proud of our history as a welcoming nation that celebrates and values diversity in our communities. However, we must be vigilant in protecting those values, challenge those who deny them and recognise that there are people who experience hatred and prejudice every day. We cannot and must not be complacent. We should remember that when we talk about hate crime, we are describing behaviour that is criminal and is rooted in prejudice, where the offender’s actions have been driven by hatred towards a particular group—hatred for people just on the basis of who they are.

Police Scotland describes hate crimes as offences that include, but are not limited to, assault, verbal abuse, damage to property, threatening behaviour, robbery and harassment, and they can take place anywhere, including online.

The hate crime act maintains and consolidates existing legislative protections against offences that are aggravated by prejudice against the following five characteristics: disability, race, religion, sexual orientation and transgender identity. Those are the same characteristics that are protected under hate crime legislation in England and Wales.

The act includes age as a new statutory aggravation, for the first time. Last week, I visited Age Scotland and met members of the Scottish ethnic minority older people forum, who were generous in sharing their experiences and why the act is important to them. Katherine Crawford, Age Scotland’s chief executive officer, stated:

“It is really important to see age included for the first time as we will get a much better picture of how this features in criminal acts, and how it cuts across other protected characteristics. We hope that the new laws will empower older people to report hate crimes.”

The act introduces new offences for threatening and/or abusive behaviour and the communication of threatening or abusive material that is intended to stir up hatred against a group of people who possess or appear to possess the particular characteristics that I have outlined. That could take many forms, including pictures, videos or information posted on websites.

Lord Bracadale, who led the independent review of hate crime legislation that led to the act, was clear on the need for the legislation to include offences relating to stirring up hatred. He noted:

“Stirring up of hatred might lead to violence or public disorder.”

Why would anyone in the chamber not take a stand against that behaviour in our communities?

Those offences are similar to those that are covered by the legislation in England and Wales, which has criminalised stirring up hatred on the ground of religion since 2007 and on the ground of sexual orientation since 2010. In some ways, we are a decade behind.

It is also important to note that the new offences have a higher threshold for a crime to be committed than the long-standing offence of stirring up racial hatred, which has been in place for the best part of 40 years without controversy.

People can still be offensive, critical and insulting under the act—and we have seen people be exactly that. The act includes rigorous safeguards on freedom of speech, and behaviour or material is not to be taken to be threatening or abusive just because it involves discussion or criticism of matters that relate to one of the characteristics included in legislation. The act is compatible with the European convention on human rights, and it specifically provides that the court should have regard to the general principle that article 10 rights apply to the expression of information or ideas that offend, shock or disturb.

Those of us with a platform as a politician or a public figure have a responsibility to have debate that is rooted in reality, respect and facts. Over the past month, there has, unfortunately, been deliberate misinformation and misrepresentation of the act, losing sight of, and empathy towards, the people in our communities whom it seeks to protect. Debate around the act has provided little light and too much heat.

There is nothing in the hate crime act that is divisive. It should not be anyone’s intention to make it so, and we all know better than to believe everything that we read on social media. Although we do not claim that legislation in and of itself can eradicate hatred or prejudice, critics should not trivialise or exaggerate its impact with false fears.

The act is an essential element of our wider approach, as set out in “Hate Crime Strategy for Scotland”, which was published last year, to build a Scotland in which everyone can feel safe. We are not there yet. The reality is that there are people who are frightened to leave their home, who avoid public places, and who significantly alter their lives in order to avoid certain interactions. We must listen to those whose voices we have not heard in the past few weeks, who are the everyday victims of hate crime.

If we truly believe in taking a zero tolerance approach to hatred, the law must adequately protect people from those who stir up hatred. As Professor James Chalmers wrote recently,

“Anyone stirring up hatred against such a group is almost certainly already committing a crime, such as threatening or abusive behaviour or breach of the peace. The effect of the Act here is not to make criminal what is currently lawful, but to ensure that the law properly recognises and describes the crime.”

Legislation to protect people from hatred and prejudice is not new, and nor is it unique to Scotland. Offering wilful misinformation, causing confusion and ignoring the fact that similar laws have been in place across the United Kingdom without problem for decades are deeply irresponsible and risk emboldening the small minority who genuinely pose a threat of abuse and violence. We should instead look to those who explain the law as it is and not as they perceive it to be.

In March, Adam Tomkins, who is a former Conservative MSP and a professor of public law, stated:

“Offensive speech is not criminalised by this legislation: the only speech relating to sexual orientation, transgender identity, age or disability outlawed here is speech which ... a reasonable person ... would consider to be threatening or abusive and which ... was intended to stir up hatred and ... was not reasonable in the circumstances.”

Since 2014-15, the number of hate crimes recorded annually has been between 6,300 and 7,000. In 2021-22, the police recorded 6,927 hate crimes, and 62 per cent of those included a race aggravator. In 2020-21, almost a quarter of all victims were police officers.

I am grateful to Police Scotland for its outstanding dedication and professionalism as the law came into force and for all that it does to keep our communities safe. In the first week of implementation, Police Scotland received more than 7,000 reports of hate crime, the vast majority of which were not considered to be criminal. Of the 445 hate crimes recorded over the period 1 April to 14 April, only seven of those were stirring-up offences.

In the past week, there has been a 74.4 per cent decrease in online reports, to 1,832. Sadly, the number of recorded hate crimes did not decrease so significantly, which again reinforces the importance of the legislation. While volumes of recorded hate crime are up on average, that is to be expected, given the high-profile nature of the act’s implementation, and hate crime continues to be underreported. Police Scotland has been clear that demand continues to be managed within its contact centres and that the impact on front-line policing has been minimal.

I accept that the Scottish Government could have done more to inform people about the act and our wider approach to tackling hate crime and prejudice. We have, therefore, today, published a fact sheet to go with the general information note on the act that has already been published. However, let us be clear: even if the Government had produced more information, bad-faith actors who are intent on spreading disinformation would have done so regardless.

I am clear that the purpose and intent of the hate crime act, which was passed by 82 members of this democratically elected Parliament, is to protect those in our country who are at risk of hatred and prejudice. Tackling hate crime is not the responsibility of those who are targeted—it is our, and everyone’s, responsibility. We are absolutely committed to the ambitious programme of work in our hate crime strategy, with a range of actions under way to 2026 to support victims, improve data and evidence and develop preventative approaches to hate crime.

People and communities who are at the sharp end of hatred in their daily lives simply for being who they are should rightly look to the Parliament to stand with them, and the Scottish Government will continue to do so.

The cabinet secretary will now take questions on the issues that have been raised in her statement. I intend to allow around 20 minutes for questions, after which we will move to the next item of business. I would be grateful if members who wish to put a question were to press their request-to-speak buttons now.

I thank the cabinet secretary for advance sight of her statement.

Police Scotland has been bombarded with almost 9,000 reports because of Humza Yousaf’s hate crime law—a law that threatens free speech, and which is critically different from competent legislation elsewhere in the UK, despite the Scottish National Party spin that we have just heard. The vast majority of those 9,000 reports are not of crimes; despite the SNP’s best efforts, Scotland is not suffering from a hate epidemic—it is suffering from bad SNP legislation.

The cabinet secretary talks about “misinformation”—what an absolute brass neck. The misinformation has come from her Government, including from Humza Yousaf and the Minister for Victims and Community Safety. They misquote their own legislation, confusing the public and fuelling even more complaints to the police. Police officers are paying the price for this absolute shambles, as a new HM Inspectorate of Constabulary in Scotland report confirms. They already feel “unsafe” and unable to do their jobs, yet the SNP is now ordering those exhausted police officers to police our speech.

The Government was repeatedly warned that its law was unworkable and would be weaponised. It did not listen to us, or to anyone else, and neither did Labour or the Lib Dems. Will it now listen, admit that it got it wrong and back our demand to scrap Humza Yousaf’s hate crime law?

Bearing in mind that we want a debate that is rooted in facts and respect, I respectfully remind Mr Findlay that it is this Parliament’s hate crime legislation. Eighty-two members of this Parliament voted to modernise and update our laws to protect those who are, day in, day out, at the sharp end of hate crime in this country. I, for one, will not turn a blind eye to hate crime or to the victims who suffer at the hands of those who perpetrate hate.

I am clear about my own responsibilities, and I wonder whether all members are reflecting strongly on their responsibilities, because in this Parliament we should be united on two things, irrespective of our views on any piece of legislation. First, we should be united on the evils of hate crime and on the corrosive effect that it has on individuals, families and communities the length and breadth of Scotland. Secondly, I say to Mr Findlay that we should be united, and on the same script in strongly calling for people not to waste police time and discouraging them from doing so.

It is not acceptable for members of the Conservative Party to be democracy deniers. The legislation was subject to very careful scrutiny and excellent cross-party working, some of which Mr Findlay’s own party’s members contributed to, to make an act that is strong, defensible and compliant with the European convention on human rights and, most of all, that protects victims of hate crimes while also protecting the rights of freedom of expression.

Does the cabinet secretary accept that the first few days of the implementation of the act have been a shambles, that poor communication has led to confusion over what is a hate crime and that there has been a loss of public confidence?

The police have been overwhelmed and the Scottish Police Federation has said that the training has not been good enough. Many women are still concerned about sex not being included as one of the characteristics in the legislation. Will the cabinet secretary commit to adding sex as a characteristic and to undertaking an urgent review of the operation of the act?

Let me reiterate what I said in my statement. I consider that the Scottish Government could have done more to communicate what the act is about and—crucially—what it is not about. I also have to accept that, even with better communication, there would still have been bad-faith actors. We should be united on calling that out. The legislation is there to protect vulnerable communities; it is not there to be weaponised by people, irrespective of what side of the so-called culture wars they are on.

I have been very clear that I will introduce legislation to tackle misogyny. The matter has been debated previously in Parliament. It was due to the representation of many women’s groups, which did not want sex to be captured, that sex was not included as a characteristic in the Hate Crime and Public Order (Scotland) Act 2021. There are many reasons for that. For example, women are not a minority; we make up 51 per cent of the population.

Helena Kennedy led excellent work in this area. The Government has consulted on her recommendations, on which we will introduce a bill this year. She said that the prevalence of misogyny in our country and in our society is shocking and shameful. There is no doubt that every woman the length and breadth of Scotland will have experienced misogyny in some shape or form. Therefore, we need to have stand-alone legislation that attempts to encapsulate the full range of offences that are motivated by misogyny.

I very much look forward to working with Ms Clark and other members on the bill.

I am keen to get in as many members as possible and to protect time for the next item of business. I call Audrey Nicoll, to be followed by Sharon Dowey. I ask for concise questions and responses.

The Conservatives want to repeal the Hate Crime and Public Order (Scotland) Act 2021. Does the cabinet secretary believe that Douglas Ross, as an MP, should also seek to repeal similar acts in relation to religion and sexual orientation in England and Wales?

Angela Constance rose—

I ask the cabinet secretary to take her seat. It is quite clear that the questions should be on issues that have been raised in the statement, so I will move on to Sharon Dowey’s question.

Although the Scottish Government has spent £400,000 on advertising its new hate crime legislation, the public and the police still lack clarity on the definition of a hate crime. That is why a 74-year-old woman in Troon was arrested recently for an incident with a hate crime element but then released without charge. Does the Scottish Government believe that a two-hour training module, which some officers are still to complete, is enough to enable officers to enforce the legislation without arresting innocent people?

I really wish that the Conservatives would make up their minds on what they want. On the one hand, they want more information and communication but, on the other, they have—to use Mr Findlay’s words—the “brass neck” to trip up here and complain about £400,000 being spent on a public information campaign.

For the record, although I am not in charge of the training of police officers, for reasons that I am sure members will understand, I would have hoped that members would have been reassured by the fact that, according to the deputy chief constable, more than 80 per cent of police officers have been trained. That is in recognition of the fact that not all police officers are in front-line roles or operate in the C3—contact, command and control—centres. It is also recognised that the training has taken many forms, with some of it having been face to face.

I also put on record the fact that about £300,000 of additional resource was allocated to Police Scotland for implementation of the 2021 act.

Given that thresholds relating to the stirring up of racial hatred have been in place in legislation for more than 40 years in Scotland, what approach is enshrined in the 2021 act in relation to the other characteristics that are now in scope with regard to the thresholds for whether an offence has been committed? Does the 2021 act take the same approach as was taken in relation to racial hatred, or does it take a tougher approach? What does it say about members of Parliament if they are not prepared to stand full square behind legislation that is designed to outlaw discrimination against people on the grounds of disability?

The hate crime legislation that has been passed by this Parliament takes a tougher approach. A racial hatred offence has been in place across the UK since 1986. The Public Order Act 1986 criminalises behaviour that is

“threatening, abusive or insulting”

when the perpetrator either

“intends ... to stir up racial hatred”

or is

“likely”

to stir up racial hatred. That is a lower threshold for criminality than is in place for the new stirring-up offences under the 2021 act.

The 2021 act does not change the UK-wide offence in relation to racial hatred. The UK-wide offence is wider than the offences under the 2021 act, as there is no requirement for intent to stir up hatred, and it covers behaviour or communication that is insulting as well as that which is threatening or abusive. Under the 2021 act, the behaviour has to be threatening and/or abusive and intended to stir up hatred, which is a high threshold for criminality.

As a member of the Justice Committee in the previous parliamentary session, I had a detailed discussion with Lord Bracadale following the publication of his report. There was a clear need to consolidate hate crime legislation and, moreover, to provide consistency and clarity on the subject. The cabinet secretary seems to have conceded that clarity has not been successfully achieved following the implementation of the 2021 act. Will the Government reflect on and review how public information is provided, particularly in relation to the balance between Government responsibility and police responsibility for explaining new legislation, especially in such a sensitive area?

I recall that Daniel Johnson was very active in shaping the 2021 act and was one of the members who, on a cross-party basis, lodged a high number of amendments to the bill, which is now the law of the land. He reflects well the motivation of Lord Bracadale in his review; its core purpose was to achieve consistency, better understanding and consolidation.

If I can be a grown-up about this, I think that there is always scope to reflect on and review how matters are communicated, but I hope that I will not be the only person in the chamber who will take the time to reflect and review.

During the past few weeks, the people whose voices have been drowned out by Tory misinformation regarding the Hate Crime and Public Order (Scotland) Act 2021 are those who will benefit from the legislation.

Can the cabinet secretary detail how the 2021 act will help to provide greater protection for victims and communities?

The 2021 act provides greater protections because it extends the stirring up of hatred offence to all characteristics that are protected, as outlined in the act, including the new characteristic of age, which is therefore now in line with the existing offence of stirring up racial hatred that has been part of criminal law across the UK for decades.

It is well worth our while to note that approximately a third of hate crimes in Scotland involve a victim who has experienced an incident at their place of work or as part of their occupation. Most of those victims were working in retail and other service industries, and a quarter of recorded hate crimes had a police officer victim. Everyone in the chamber should want to protect people and society from such crimes.

I thank the cabinet secretary for early sight of her statement and I welcome the acknowledgement that preparation for implementation of the law has fallen short of what was needed, which has, to some extent, contributed to the confusion about what the act does and—importantly—what it does not do.

Of course, one gap in the protections is the lack of a stand-alone misogyny offence, which the Scottish Government promised on the back of Baroness Kennedy’s report two years ago. Given the importance of filling that gap, will the cabinet secretary commit to publishing, ahead of the summer recess, the proposed legislation that she referred to?

I reassure Mr McArthur and other members that I am absolutely committed to introducing a misogyny bill as soon as possible. That is a very important commitment in our programme for government, with which, I am sure, members are well acquainted. I am extremely committed to working on a cross-party basis on the substantial legislation that will come, in the hope that we can all at least attempt to move forward with some degree of unanimity—notwithstanding the fact that we will, of course, want to vigorously debate and scrutinise the proposed legislation to ensure that we have, at the end of the day, the best possible legislation to give further protection to women in this country.

For the most part, the 2021 act consolidates hate crime legislation in one place. Is the effect of the act to properly recognise that crimes against public order, such as being threatening or abusive, which have long been in place, along with stirring up hatred against the community, are exactly that—hate crimes—and should be recognised as such?

That is absolutely the case. The 2021 act outlines that the offences that are covered in the legislation are hate crimes and are not acceptable.

Understandably, there has been a lot of media coverage of the number of reports that Police Scotland has received. The very fact that we saw 213 police-recorded hate crimes last week and 232 the week before that reinforces the importance of the 2021 act. The act is an essential element of our wider approach to tackling hate crime, as well as to recognising the harm that hate crime causes. The legislation sends an important message to victims, offenders and wider society that such crime should not and will not be tolerated.

In the first week since the 2021 act’s implementation, Police Scotland indicated that only 3.8 per cent of the allegations that were received were authentic—240 were logged as hate crimes and 30 as non-hate crimes. Does the cabinet secretary believe that those numbers were due to the widespread misinformation that was spread about the act, including from members of the Scottish Parliament? Does she agree that that misinformation serves to damage the victims and survivors that Parliament should be supporting?

I strongly believe that the information that Police Scotland has published—with respect to the calls that it received in the first few weeks of implementation of the act—is significantly important. There is no doubt that Police Scotland received a high volume of online hate crime reports, but we should all be encouraged by having seen a nearly 75 per cent decrease in the past week, with the number of calls falling from in excess of 7,000 to in excess of 1,800.

I believe that we are moving in the right direction: the police are receiving fewer calls. Maggie Chapman’s point is that, despite there having been a high volume of anonymous online reports, the number of recorded crimes has, at the end of the day, been comparatively small. The fact that there have been 445 recorded crimes in the past fortnight demonstrates the need for the act and should increase confidence in this country that the police are acting proportionately and according to the manner that the law intends.

Can the cabinet secretary provide any clarity as to where Police Scotland’s policy now sits in relation to recording of non-crime hate incidents? I have been trying for weeks to get answers out of the police as to why a different approach was taken to the numerous complaints that were made against the First Minister from the approach to the single complaint that was made against me. However, all that I get in response is confusion, evasion and obfuscation. Can the cabinet secretary tell me where the policy now stands? If she cannot, can she tell me how I can get some straight answers from the police?

Mr Fraser’s having published the letter that he wrote to the chair of the Scottish Police Authority and, helpfully, the reply that he received from the chair, gives clarity on non-crime hate incidents.

No, it does not.

When we are trying to generate less heat and more light in the debate, all that happens is that Tory members decide to barrack from the back row—[Interruption.]

And there we are.

Let us hear the cabinet secretary.

I understand and support the need for citizens to have clarity about what information may or may not be held about them and how information may or may not be used, but it is my view that Mr Fraser got a very clear answer from the Scottish Police Authority. I am not going to step in on operational matters.

I remind Parliament that the policy around non-crime hate incidents came from the Stephen Lawrence inquiry report in 1999 and has been in operation since 2004. Of course, a similar procedure for recording non-crime incidents exists for domestic abuse, which dates back to 1999. Mr Fraser will, no doubt, continue to engage with me and the Scottish Police Authority.

Can the cabinet secretary confirm that, apart from age, the characteristics that are used in the hate crime legislation are the same as those that are used in the rest of the United Kingdom? What protection does she believe our older people will be given, with the inclusion of age?

Yes—the 2021 act covers the long-standing characteristics of disability, race, religion, sexual orientation and transgender identity, just as the legislation in England and Wales does. Of course, we have added age.

Many crimes against the elderly might be driven by a desire to exploit perceived vulnerability. During its consultation, the Scottish Government heard that some offences might be motivated by prejudice that is based on the perceived age of the victim. The inclusion of age sends a clear message to society that such offences will not be tolerated. Although the 2021 act covers persons of any age, in practice it might be more likely that offences under the act—in particular, offences in which the aggravation applies—are committed against elderly persons.

I remind members that my wife is a serving officer in Police Scotland.

In the cabinet secretary’s statement, she said that

“critics should not trivialise or exaggerate”

the impact of the hate crime act with false facts.

Does the justice secretary include in those comments Lord Hope, the Association of Scottish Police Superintendents and the Scottish Police Federation, who have all raised concerns about this bad SNP law?

No, I do not.

That concludes the ministerial statement on implementation of the Hate Crime and Public Order (Scotland) Act 2021.