Meeting date: Thursday, June 7, 2018
Meeting of the Parliament 07 June 2018
Agenda: General Question Time, First Minister’s Question Time, Onshore Wind Energy (Community Benefit), Miners’ Strike (Impact of Policing on Communities), Hate Crime Legislation: Bracadale Review, Decision Time, Correction
- General Question Time
- First Minister’s Question Time
- Onshore Wind Energy (Community Benefit)
- Miners’ Strike (Impact of Policing on Communities)
- Hate Crime Legislation: Bracadale Review
- Decision Time
Hate Crime Legislation: Bracadale Review
Time is tight, so I am moving straight on. The next item of business is a debate on Lord Bracadale’s independent review of hate crime legislation. This is a debate without a motion.15:00
Tackling hate crime is central to building the Scotland that we all want to see—a Scotland free from hatred, prejudice, discrimination and bigotry, and a country where trust, respect and understanding underpin the way we live our lives.
Sadly, although Scotland is an open and inclusive nation, we are not immune from hateful behaviour or prejudicial attitudes, for it is a sad reality that people in our communities sometimes face discrimination and abuse. I know that every member across the Parliament would condemn the deliberate targeting of our minority communities with hate-filled prejudice, and I am sure that we are all agreed on the importance of offering our communities robust protection in law to ensure that they have access to justice when they are subjected to such vile and unacceptable behaviour.
Although legislation in and of itself is not the solution to these issues, it is part of the backbone that runs through our society. Through legislation, we have a set of clear standards for what is and is not acceptable. That ensures that those who cross the line into criminality can be dealt with through appropriate and proportionate penalties.
Being a victim of a crime is a dreadful experience for anyone. However, it is even more invidious for someone to be a victim of a crime because of their race, religion, disability, sexual orientation or transgender identity, which are of course protected characteristics. It is completely and utterly unacceptable for anyone to be motivated to perpetrate a crime to traumatise and frighten people simply for being who they are.
All communities, including minority and vulnerable communities, must be able to count on the law when they are targeted by hate crime. That is why, in January 2017, I announced to the Parliament that I had appointed Lord Bracadale to conduct an independent review of hate crime legislation in Scotland.
Members will recognise that Lord Bracadale was appointed as one the most experienced criminal law judges in Scotland. His remit was to look at the adequacy of hate crime law and what improvements, if any, could be made to the existing suite of legislation to ensure that we have hate crime legislation that is fit for the 21st century. We needed an independent view by someone with expertise in the application of the law to ensure that any proposals that emanated from the review would be workable.
Lord Bracadale published his findings and recommendations on 31 May. The review has been placed in the Scottish Parliament information centre and I hope that, by now, all members will have had an opportunity to have a look at Lord Bracadale’s report and his recommendations.
I thank Lord Bracadale for his comprehensive report on the very substantive body of hate crime legislation that exists in Scotland, and I extend my thanks to the advisory team that worked with him to support the development of his conclusions and recommendations.
As part of his review, Lord Bracadale ran an extensive stakeholder engagement programme, which included a number of community events. He also met many interested parties and those who are responsible for applying the law, including Police Scotland, the Crown Office and Procurator Fiscal Service and sheriffs. Of course, he also met some members of the Scottish Parliament to discuss his review. That engagement and consultation helped to influence the conclusions and recommendations in his final report, and I thank all those who took the time to participate by attending an event or submitting comments.
Lord Bracadale’s review provides a robust set of recommendations that we will now consider in full. We have accepted the basic proposal that a consolidated hate crime statute would be beneficial and that such an approach has the potential to resolve some of the issues that arise from Scottish hate crime legislation having developed in what can be termed a piecemeal way over a period of time.
Lord Bracadale consulted widely on key issues relating to the operation of hate crime law in order to develop his recommendations, and it is only right that a full consultation process is undertaken on them. We will therefore use the recommendations as a basis for wider engagement and discussion with a view to proceeding with a consultation in due course.
We recognise at the outset that many organisations will have particular views on the recommendations and the final content of a consolidated statute. As I say, I am therefore keen to engage widely and hear people’s views. The consultation findings will be used to inform the policy detail of what should be included in a new consolidated hate crime bill. Such a bill will help us with the operation of the law by putting it all in one place, which users of the law will find useful. It is our intention to report back to Parliament in the autumn and set out specifically how we intend to move forward with the development of the bill.
Today, we are discussing how to make improvements to existing hate crime legislation, but it is important to note that Lord Bracadale found that our hate crime laws were generally in good order. There are, however, some points to note.
I have already referred to the development of hate crime legislation being rather piecemeal over the years. We have to look to many different statutes to find what it is and that makes it less user-friendly, so we very much support consolidation. That view was supported by many who responded to Lord Bracadale saying that consolidation would bring clarity, transparency and consistency of approach to the law. For example, it could bring together all the statutory aggravations and provisions relating to the incitement and stirring up of hatred that are covered by part 3 of the Public Order Act 1986, section 96 of the Crime and Disorder Act 1998, section 74 of the Criminal Justice (Scotland) Act 2003, and the Offences (Aggravation by Prejudice) (Scotland) Act 2009, as well as any new provisions recommended by the Bracadale review that are subsequently agreed to.
However, as Lord Bracadale has done, in taking forward our consultation on the introduction of a single hate crime statute we will also need to consider wider questions about whether the current legislation is as effective as it could be, what would be the effect of making changes, and how we can ensure that communities understand what is and what is not acceptable and what protection will be available to them.
We are clear that the law must uphold the rights of others, particularly our most vulnerable citizens. We will always seek to strike the right balance between protecting the public and freedom of expression. We must, however, be clear that freedom of expression is not an absolute and it is not unfettered. It must sit with the right of others not to be subject to prejudicial and hateful behaviour.
Lord Bracadale made particular recommendations, including the introduction of new statutory aggravations based on gender and age hostility. He also recommended making hate crime legislation more accessible and easy to understand by updating the language that is used to describe hate crimes. He proposed the extension of offences of stirring up hatred to cover not just race—the only protected characteristic that is currently covered by a specific statutory stirring-up offence—but to cover each of the protected characteristics, including any new ones that Parliament agrees to.
Lord Bracadale also recommended that the exploitation of perceived vulnerabilities should be considered as a specific aggravation in its own right. Similarly, he recommended repealing the offence in section 50A of the Criminal Law (Consolidation) (Scotland) Act 1995, covering racially aggravated harassment, and was in favour of using the approach envisaged elsewhere in his review, which is to have a baseline criminal offence and a statutory aggravation reflecting identity hostility. In the instant case, that would mean employing a statutory racial aggravation.
We understand that Lord Bracadale’s recommendations will generate a lot of debate, and we also understand that not everybody will agree on all aspects of it. However, we wish to engage as widely as possible. This debate affords the opportunity to hear the initial views of members and how they feel that the way forward should be pursued. I stress that we genuinely want to engage in the debate and to listen to what people have to say, including a number of stakeholders who have expressed a bit of disappointment with some of the recommendations and with what was not in Lord Bracadale’s report.
We hope that encouraging people to have a mature discussion will result in our having a hate crime statute that is world leading, and we will ensure that we do everything that we can to protect the most vulnerable in our society.
Hate crime has a damaging effect not just on victims but on the communities to which people belong and in which they live. I believe that it undermines society as a whole, because it makes people fear each other and creates barriers between communities. Therefore it is a problem for all of society and one that we all need to play a part in resolving. We know that inclusive and cohesive communities that embrace diversity provide a better quality of life for everyone. Communities thrive when they feel a shared sense of belonging, can learn and grow together and feel able to live their lives in peace. Therefore we must challenge the behaviour of those who are abusive, and we must ensure that those who have been abused are offered support. Our endeavours on that should lead to the work on a consolidated hate crime statute with which we will now proceed.
As a Government, we have worked tirelessly to promote equality and to tackle discrimination. We have done much good work, but there is always much more to do. We can never be complacent, and we never will be. Across Government, we continue to strive to ensure that all the work that we do feeds into tackling this insidious element in our society.
I am very much looking forward to this afternoon’s debate. The publication of Lord Bracadale’s report marks an important stage in this process in which we are all engaged. As I have said, while legislation on its own will not solve hate crime, a good, substantive law will certainly be at the heart of our efforts to build a country in which everyone—regardless of background—feels valued, respected and at home.
I call Liam Kerr to open the debate for the Conservatives. You have up to eight minutes, please, Mr Kerr.15:11
I am very pleased to open for the Scottish Conservatives in this debate without a motion on Lord Bracadale’s independent review of hate crime legislation.
Lord Bracadale’s remit was to
“help ensure we have the right legislative protection in place to tackle hate crime wherever and whenever it happens”.
and it was right to do so. Last year, there were nearly 6,000 hate crime charges in Scotland, roughly two thirds of which were racial—and those are just the ones that were reported. It is widely accepted that the real level of hate crime is far higher than is reported in official statistics, because a significant number go unreported to authorities. Intolerance, bigotry, racism and prejudice of any kind should not be accepted anywhere in a civilised society, so we must do all that we can to challenge them.
Lord Bracadale has produced a considerable document that will form the basis for wide-ranging and useful discussion and debate long after today’s debate. He makes 22 recommendations, many of which the Scottish Conservatives are pleased to endorse, as will be detailed by my colleagues throughout the afternoon.
I will start from the back of the report, recommendation 20 of which says simply:
“All Scottish hate crime legislation should be consolidated.”
I agree absolutely. As the minister correctly identified, many crimes currently fall into the category of hate crime and there are some overlaps—but there are also some gaps. I acknowledge concerns about the dangers of an unwieldy or oversimplified approach being taken or of focus being lost. However, I accept the argument that is made by Lord Bracadale in paragraph 9.9 of his report that that is unlikely to be the case. From experience, I look for support for that position to other consolidating acts such as the Employment Rights Act 1996 or the Equality Act 2010. [Interruption.]
I am sorry, Mr Kerr. Somebody’s phone is ringing, but they should not have it on—either in the gallery or in the chamber. On you go, Mr Kerr.
Thank you, Presiding Officer.
On that, a related matter that merits further discussion is how to approach the report’s recommendation 2, on updating language. Simplification and accessibility are always to be encouraged, but as Gordon Lindhurst will say later, a phrase such as “malice and ill-will” may not be identical to the term “hostility”, so we must be very careful on such points.
Annie Wells will review recommendations 9 and 10 of the report, which are that age hostility and gender hostility should become recognised categories of hate crime. We are eager to look closely at any proposals that the Scottish Government might choose to make on that. They are really important areas, so we have to get that right, which will necessitate open, honest and frank discourse. Annie Wells will talk about the importance of public awareness and understanding, and about striking a balance between tackling hate crime at its root, without diluting the goals of existing legislation, and recognising the profound harm that such crime causes and standing up for communities.
In relation to age as well as to disabilities, recommendation 11 suggests that the Scottish Government
“consider the introduction, outwith the hate crime scheme, of a general aggravation covering exploitation and vulnerability.”
Inclusion Scotland particularly welcomes that recommendation, and I found its reasoning to be persuasive. As Action on Elder Abuse has said, in relation to crimes such as theft, fraud and assault, older people are often specifically targeted because of their actual or perceived vulnerability. That might be based on physical frailty, mental capacity, memory difficulties, loneliness and isolation or dependency on others for basic care needs.
As Lord Bracadale’s report says,
“a proportion of offences committed against disabled persons are based, not on hostility, but on perceived vulnerability.”
We can send a message that we will not tolerate those who target the most vulnerable people in our society. Criminals must know that they will be additionally punished with tougher sentences for such callous and inhuman behaviour. I call on the minister to waste no time in introducing proposals to implement that recommendation. In so doing, she will have our full support.
We were also pleased to note that the report recognises the role that restorative justice can play in dealing with hate crime. As members will know from my members’ business debate just two weeks ago, restorative justice is, in essence, voluntary, facilitated and constructive dialogue between a victim and an offender in order to seek to make amends. Restorative justice puts victims first and allows them to be part of putting things right after a crime has been committed.
I particularly commend to Parliament the example that Bracadale cites at paragraph 10.42 of an anti-Semitism case in which the affected family wanted the offender to study the effects of the Holocaust as part of his community sentence. The offender later reflected:
“I had ... no idea that being antisemitic had this kind of impact. I had no idea that all these people died during the second World War”.
As researcher and social work practitioner Rania Hamad notes,
“developing an understanding of the harms caused by hate crime ... is viewed as an important facet of any rehabilitative intervention with hate crime offenders. Many offenders are potentially not fully aware of the harm caused by their actions at the time of committing the offence. As such, a restorative justice ... approach may be well-placed to address the harms of hate crime.”
There is a compelling case for utilising restorative justice in relation to hate crime, and I commend recommendation 22 to the Parliament.
Finally—I shall not major on this point, because I suspect that others might do so—the report devotes a whole section to the impact of the repeal of the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012. In what can only be described as a humiliation for some people here, Bracadale clearly states that there is no need for a replacement for the hated football act. We have been told repeatedly in the chamber that there will be a gap in the law.
I point Liam Kerr to page 63 of Lord Bracadale’s report, where he says in paragraph 5.30 that
“The repeal of section 6”
of the 2012 act
“has left a gap in the law.”
We acknowledged that point about section 6 at the time, and we talked clearly about it in committee. The minister said clearly in the stage 3 debate on the Offensive Behaviour at Football and Threatening Communications (Repeal) (Scotland) Bill, over and over again, that there would be a gap in the law in relation to the first sections of the 2012 act.
Will the member take an intervention?
No, I will not, I am afraid. That would be the third intervention from the Scottish National Party, including the phone that went off earlier.
The reality is that, during the stage 3 debate, the minister was adamant that there would be a gap in the legislation, but the report states in black and white that
“hate crime offences committed in the context of a regulated football match held in Scotland could be prosecuted in Scotland under pre-existing criminal law.”
Lord Bracadale goes on to say that he is
“satisfied that there is no gap in the law”—
which is what I and so many others pointed out at the time. It is unlikely that an apology—no matter how much it is merited—will be offered, but a degree of contrition and reflection on past and future choices of words by some members is perhaps warranted.
Hate crime is particularly harmful to victims and communities. As Rania Hamad has said,
“research indicates that the emotional and psychological trauma caused by hate crime is heightened compared with other types of crime due to the offending often being related to the ‘core’ of the person’s identity, and vicarious trauma can be experienced by those who share the same identity characteristics as the victim such as family or community members.”
Therefore, it must be countered. The first step to achieving that is to know and understand what we are dealing with. The report enables that, and I again thank Lord Bracadale for compiling it.
I said at the beginning of my speech that we must have the legislation that we need to tackle hate crime. We must tackle prejudice at its root, adequately punish and deter offenders and stand up for victims of hate across Scotland. We may disagree about some of the recommendations in the report, but I suspect that we can all agree on that. I look forward to hearing members’ views.
I let you make up your time. Technically, a telephone ringing might be an interruption, but it is not an intervention, Mr Kerr. I know that you are a man who is very careful with the words he uses in here.15:20
I pay tribute to Lord Bracadale—not just for his excellent report but for how he conducted his inquiries in compiling it. When I became Labour’s spokesperson for justice, I was told what a complex and varied brief it was, so it was somewhat intimidating that one of the first meetings that I had was with Lord Bracadale as part of those inquiries. I thank him for an excellent and very interesting conversation; it was considered, principled and very useful. The report very much reflects the considered and holistic approach that he has taken to this very important work.
These are incredibly important issues: we are discussing crimes that are driven by hatred that is directed at a victim’s identity. However, that begs a question: why should we treat crimes differently based on their motivation? One could hold that the severity of the crime, rather than what motivates it, should determine treatment of its perpetrator.
The report answers that question very well, in three distinct ways. The first answer concerns
“The harm which hate crime causes”.
Hate crime has profound effects on the victim, but it also harms the community group to which that person belongs: an attack on one is an attack on all. Further, such attacks damage society as a whole’s moral framework. They can sour community relations and breed tension in otherwise well integrated multicultural and multi-identity societies. Breaking those social bonds can have long-lasting impacts well beyond the individual act.
Secondly, hate crime legislation has a symbolic function. We in Parliament must remember that the power of the laws that we pass is not only in their operation, but is in the messages that they send. Nowhere is that more true than in criminal law, where a symbolic message is sent to the victim that he or she will be protected by society; to the perpetrator or potential perpetrator that he or she will be punished severely; to victim groups in the community that we stand with you against such attacks; and to wider society that prejudice and inequality will not be tolerated.
Thirdly, hate crime legislation has practical benefits. If we do not measure something, we cannot know whether the problem is growing or shrinking over time. That is how we know that crimes that are driven by race hate have fallen in recent years—although at over 3,000, such charges are still the most common, and represent two thirds of the charges, as Liam Kerr said. The legislation helps to measure the problem and to provide consistency in sentencing when cases of such crimes are heard in court.
I turn now to Lord Bracadale’s recommendations. Scottish Labour welcomes the positive recommendations that will help to improve the hate crime legislation landscape. Most fundamentally, Lord Bracadale recommends consolidation of the legislation that has been passed in both the United Kingdom and Scottish Parliaments over more than 30 years. That is not a small undertaking, but Lord Bracadale makes well the argument that consolidation will bring clarity, transparency and consistency to the law. It will also allow changes—for example, new protected identities—to be made more easily in the future if we provide flexibility and consistency when we consolidate.
The recommendation for consolidation is supplemented by proposals to ensure consistency between the various protected identities. Using statutory aggravations as the way to ensure that hate crimes are punished more severely seems to me to be a sensible and reliable approach to this area of law. The new test for hate crime becomes whether an existing offence was motivated by hostility towards someone based on their identity. The hostility by itself would not be a crime, which I believe strikes the balance. However, the recommendation includes new offences regarding stirring up of hatred, which is important because, as Lord Bracadale states, “stirring up hatred” towards groups based on their identity is “morally wrong”. Moreover, it causes harm both to the group and to society as a whole. It is therefore right that such offences should cover not just race hate but hatred of other identity groups.
The report also proposes a number of modernisations, most notably around the language for transgender people, which now looks very outdated, and the introduction of intersex as a stand-alone identity, which is welcome.
Perhaps the recommendations that have most consequences are the proposals to introduce new age and gender aggravations. Those are to be welcomed. I note that there are groups outside Parliament who have made a compelling case for specific laws to be introduced on misogynistic harassment. The case for that is well made; Scottish Labour will look closely at those arguments and will seek to have them robustly debated as the Scottish Government introduces proposals to put Lord Bracadale’s recommendations into law.
It will perhaps not surprise colleagues to learn that James Kelly will cover the aspects of the report which talk about the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012. I will leave it to him to cover that in more detail. However, I say to the Government that it is worth reflecting on how to take forward such legislation. With all the complexity and nuance in these debates, surely what we have today would have been a better starting point—an independent report, backed by wide consultation. Any legislation that comes out of this report will start from a position of strength and thoughtfulness, which is in marked contrast to the Government’s knee-jerk reactive legislation regarding sectarianism in the form of the 2012 act. I hope that ministers will reflect on that.
I would like to close by welcoming this important report. Its proposals are sensible and proportionate. Most important is that the report initiates an important debate and serves as an invaluable foundation and platform for us to have the debate that we need to have in Parliament.
I call John Finnie to open for the Greens. As you have split your time, you have three minutes, Mr Finnie.15:27
I, too, welcome the report. I also welcome the briefings, one of which, from the Law Society of Scotland, says that hate crime can and does affect us all. I very much associate myself with Daniel Johnson’s point that, if we can adopt the approach that an attack on one is an attack on all, that will mark out the sort of approach that we want. This is about communities, and I welcome the minister’s comments about wider consultation with communities and having a keenness to engage in debate, because I think that that will be a positive contribution.
This is a fast-moving situation, as ever. Deputy Chief Constable Iain Livingstone talked today about returning from Srebrenica and wanting to put into practice for Police Scotland the lessons that he learned from his visit there.
Earlier, in a question on the ministerial statement on the miners’ strike, I referred to John Scott QC, who said in a previous report that the police should be the front-line defenders of the public’s human rights. Of course, the primary purpose of policing is prevention. This report is a response to hate crime; prevention will be dealt with through education. That is the key to this in the long term.
It is important to say that we should not be in any way complacent that certain aspects are a generational matter—that some things have always been like that and will not change for a new generation. There has been an unwillingness to challenge, some of which has emboldened the far right across Europe, and messages can spread far and wide through social media, as we know.
There has been an unwillingness to challenge the abuse that has been consistently heaped on women, including women in our profession. The abuse that female politicians get and the levels of misogyny are utterly unacceptable. Like others, we are interested in Engender’s proposal regarding misogynistic hate crime and we are keen for the proposal to be widely debated. I think that the starting point for debate would be Engender’s point that hate crime perpetuates existing hierarchies.
We want what Lord Bracadale wants—a system that is
“clear, consistent and easily understood”.
I note that there is a role for the Scottish Sentencing Council when it comes to the development of the new guidelines.
I will talk briefly about recommendation 6. Lord Bracadale said:
“I do not consider it necessary to create a statutory aggravation to cover hostility towards a political entity.”
We thoroughly agree with that. It means that we can criticise the apartheid state of Israel and that we can commend boycott, divestment and sanctions. I hope that, as a result, the Scottish Government will consider the negative implications of its adoption of the International Holocaust Remembrance Alliance’s definition of anti-Semitism, which is seen as unhelpful.
On the stirring up of hatred, members mentioned underreporting, which is clearly an issue. We must look at methods of reporting, to ensure that the maximum information is there and we can address the issue.
We welcome the opportunity for consolidation and many of the recommendations. Most of all, we look forward to the debate that will take place.
Well done, Mr Finnie, you kept to three minutes.15:30
As other members have done, I pay tribute to Lord Bracadale for the valuable work that he and his small team have carried out. None of us underestimates the complexity or the sensitivity of the task that he agreed to take on. His report and recommendations lay a solid foundation for ensuring that the law in relation to hate crime, in all its forms, is more coherent, consistent and effective.
I know that Lord Bracadale consulted extensively in the course of his review and I am particularly grateful to him for taking time to meet me and other spokespeople, to seek views and to share some of his initial thinking.
Of course, Lord Bracadale’s report is not the end of the process. Rather, it is a means of informing the debate that must now take place about the reform that we need to see. That is a debate that we are having and will continue to have here in the Parliament; it must also take place among the wider public. The report provides an excellent basis on which to stimulate debate, raise public awareness and educate people about what hate crime is, the effect that it can have and how it should be curbed.
This will not always be an easy debate. The Law Society of Scotland rightly observed that this is
“a highly emotive topic which will evoke vastly differing attitudes”.
As much as we all condemn crimes that are motivated by hatred or prejudice towards aspects of a victim’s identity, we will no doubt have different views about how best to tackle such hatred or indeed how to balance those efforts with, for example, the protection of fundamental freedoms, not least freedom of speech.
The process will be difficult. There will be strongly and sincerely held opinions and fiercely argued positions. I hope that we can conduct the debate with respect—to be frank, with more respect than was shown at times during the recent repeal of the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012. I have to say that the opening speech in the stage 3 debate on the Offensive Behaviour at Football and Threatening Communications (Repeal) (Scotland) Bill was not the minister’s finest hour. It did neither the minister nor the Government any credit. Indeed, by starting with a litany of examples that illustrated perfectly how ineffective the 2012 act had been, Ms Ewing’s speech did the substance of her argument no favours either.
In light of Lord Bracadale’s findings, I wonder whether the minister now regrets the approach that she took and the language that she used. I assume that she would not accuse Lord Bracadale of “manifest irresponsibility” and of giving succour to those who are guilty of engaging in offensive or threatening behaviour. She would not accuse him of being an apologist for sectarianism, of foolishly exposing vulnerable communities to abuse, or of being naive and ignorant of the law.
None of us has the monopoly on caring about hate crime and prejudice; none of us condones or is anything other than repulsed by crimes that are motivated by hatred or prejudice, wherever they take place; and none of us underestimates the damage that such crimes do to the victims. Let us therefore conduct this debate in a way that reflects those facts and avoids descending into the hyperbolic and malicious misrepresentation that characterised the debate on the repeal of the football act.
In the limited time that is available this afternoon, I want to talk about consolidation, which lies at the heart of Lord Bracadale’s review. The proposal to consolidate hate crime legislation has given rise to anxieties in some quarters, but it seems to me to be an inherently sensible approach to take. The current body of hate crime legislation is fragmented and reflects the piecemeal way in which it has come into existence, as the minister rightly acknowledged. Although there are legitimate reasons for that, in that legislation often responded to high-profile cases that gave rise to public expectations of action, the current piecemeal approach is not helpful in creating a wider understanding about what hate crime is or ensuring that we address it consistently.
Of course, the circumstances that surround each hate crime will be different and will require a tailored and proportionate response. However, having a baseline offence and a statutory aggravation reflecting hostility to different aspects of an individual’s identity, as well as provisions on stirring up hatred, seems a reasonable way of achieving consistency while at the same time allowing flexibility to respond appropriately to different types of crime.
There are concerns that that might reduce the focus on the specific needs of certain protected groups, but I think that there are other ways of achieving that focus. Moreover, if we shy away from consolidation, there is a risk that we are seen arbitrarily to prioritise some hate crimes over others, which cannot be a helpful message to convey. Clearly, the prevalence or seriousness of some hate crimes will determine the amount of attention and resources that they attract. However, if the essence of what we are talking about is the right of everyone to be treated equally, whatever their characteristics or identity, creating a baseline offence seems to make sense. I appreciate that others take a different view, and I look forward to engaging in that debate as we go forward.
Hate crime too often blights our society. Lord Bracadale has given us a sound basis on which to ensure that our laws are up to the task, and I look forward to engaging in the debate on how we can ensure that that happens when the Scottish Government comes forward with its proposals in the autumn.15:35
In an ideal world, there should be no need for hate crime legislation, but we all know that this is not an ideal world, and Lord Bracadale’s “Independent Review of Hate Crime Legislation in Scotland” is much needed and timely.
Why do we need legislation? We need it because hate crimes cause depression, anger, anxiety and trauma. They may well cause social isolation and fear of public spaces. They wreck lives. They undermine society’s moral values, democracy and the right to live in a civilised country. When I was growing up in the 1970s and 1980s, certain words and attitudes prevailed that would not be tolerated now, and rightly so. Hate crimes are born out of ignorance and prejudice and there is no place for them in a modern Scotland.
Lord Bracadale was tasked with quite a challenge in his remit, to consider whether the current law deals well with hate crime behaviour, whether new statutory aggravations should be created in relation to age and gender or religious statutory aggravation, and whether hate crime laws could be made simpler by amalgamating them, and to identify gaps in the framework to ensure that the law protects human rights and equality.
Gathering evidence from people who had experienced hate crime was crucial, so a huge listening and learning exercise was launched. The recommendations in the report span a variety of hugely important issues, but I will focus today on hate crimes towards women. Lord Bracadale found that there was widespread support for legislation to deal with online and physical hate crimes towards women and he recommended a statutory aggravator in that regard. His report quotes from a consultation response:
“Crimes motivated by hatred of women are well documented and including this as an offence would be a progressive step in tackling misogyny.”
Misogynistic hate towards women and girls in the workplace, at school, in the street and online has reached epidemic levels. The past year has blown the cover on that with the #MeToo and time’s up campaigns. As a member of the sexual harassment working group in the Parliament, I have been working on a zero tolerance approach as the first step in making our workplace abuse free and a place where women can work without being harassed or intimidated. It is incredible that we have to address that in 2018, and our generation must eradicate it for our daughters and granddaughters.
I ask members to listen to these statistics, which were helpfully supplied by Engender Scotland, a fantastic organisation that promotes equality for both men and women. In the UK, 52 per cent of women have experienced sexual harassment, with one quarter experiencing unwanted touching, and one fifth experiencing unwanted sexual advances. Twenty-nine per cent of girls aged 16 to 18 have experienced unwanted sexual touching at school. More than one in 10 girls have experienced street harassment before the age of 10. Those figures are shocking and unacceptable at every level.
Engender has called for standalone misogynistic hate crime legislation in Scotland as a way of halting that epidemic. It believes that to respond to the epidemic levels of misogynistic hate in Scotland the gender dimension must be captured. Given that Scotland has rightly been lauded for the boldness and ambition of its violence against women strategy, equally safe, and that it has received international commendation for the Domestic Abuse (Scotland) Act 2018, Engender argues that it wants the same innovation to be applied to tackling misogynistic hate crime.
I understand the benefit of consolidating hate crime and the well-made points that Liam McArthur has just articulated, but I believe that, unless we experience a sea change reversal of misogynistic attitudes towards women, and quickly, we should consider going down the road that is recommended by Engender.
There is much more in the review that I could focus on, but time does not allow me to. In conclusion, I welcome the report and the direction that it takes us in—towards a Scotland that is free from prejudice, bigotry, intolerance and hate.15:39
I join colleagues in thanking Lord Bracadale for putting together his review of hate crime legislation. In a civilised society, hate crime of any kind—whether the result of intolerance, bigotry, racism or prejudice—must not be considered acceptable. It is a black mark on the conscience of the nation that, in this day and age, it continues.
Hate crime legislation is always difficult to create effectively, because we need adequately to weigh the need for freedom of expression against the need to tackle hate crime. Lord Bracadale’s report acknowledges the importance of striking that balance and includes the recommendation:
“A protection of freedom of expression provision ... should be included in any new legislation relating to stirring up offences.”
Lord Bracadale ruled out an aggravator of
“hostility towards a political entity”
on the ground that
“The freedom of speech to engage in political protest is vitally important.”
That recommendation is very important. Freedom of speech is one of the things that makes living in this country special, and it is a value that we need to protect while ensuring that hate crime legislation in this country is tough.
I move on to the issue of criminal aggravators. In his report, Lord Bracadale acknowledges that the elderly population is often preyed upon, primarily not because of hatred of their age but because they are perceived to be an easy target for criminals. It is the same for those who are disabled. Lord Bracadale noted that
“a proportion of offences committed against disabled persons are based, not on hostility, but on perceived vulnerability.”
The criminal law should acknowledge that those are particularly horrid and serious offences because they aim to take advantage of the most vulnerable in our society. We need to stand up for them and give them greater protection under the law. I believe that there would be wide support among stakeholders and the public for the idea of making an aggravator of the exploitation of vulnerable groups.
In its submission to Lord Bracadale’s review, the Coalition for Racial Equality and Rights said that
“it may be better to create a vulnerability related aggravation which is separate from the offences motivated by malice and ill-will.”
Action on Elder Abuse stated:
“In relation to crimes such as theft, fraud or assault (any many more), we know that older people are often specifically targeted due to their actual or perceived vulnerability. This may be based on physical frailty, mental capacity, memory difficulties, loneliness and isolation, or dependency on others for basic care needs.”
I hope that the Government takes on board those comments and makes that issue a top priority in the coming months. There should be no delay in introducing an aggravator of the exploitation of those who are, for example, elderly or disabled. The Government should get tough on the criminals who are targeting vulnerable members of our communities.
I took part in the stage 3 debate on the bill to repeal the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012, and I remember hearing from various SNP ministers and members that there would be gaps in the legislation if that piece of poor legislation was repealed. Annabelle Ewing said that repealing the act
“will leave a gap in legislation.”—[Official Report, 15 March 2018; c 108.]
She made that point numerous times, although I and other colleagues made the point that it would not leave a gap in the legislation. I am glad that, in his report, Lord Bracadale agreed with us.
Will the member take an intervention on that point?
I am sorry, but I am in my last minute.
The minister even went as far as to dismiss the statement of the Law Society of Scotland by saying:
“I do not think that the author of the Law Society of Scotland paper for stage 3 ... got things quite right.”—[Official Report, 15 March 2018; c 71.]
That is further evidence that the SNP was scaremongering during the lead-up to the repeal of the 2012 act to cover up the fact that it had created bad legislation that was unnecessary and unworkable. I wonder whether we might hear the SNP apologise for that today.
I thank Lord Bracadale again for his review and look forward to hearing from Government ministers which recommendations from the review they will be taking forward. I genuinely hope that they will include recommendation 11, on an aggravator for vulnerability.15:44
I remind the chamber that I am the parliamentary liaison officer to the Cabinet Secretary for Justice.
I welcome the report and thank Lord Bracadale for carrying out an extensive review of all current hate crime legislation in Scotland. Hate crime is a real issue in this country and we need robust legislation to deal with it appropriately. To demonstrate that, I cite the case of a couple in Coatbridge who were recently subjected to a homophobic attack while on a night out to celebrate their engagement. I ask the minister, in summing up, to give me and my constituents who were the victims an assurance that such crimes will be dealt with swiftly and severely. I know that my constituents would take great comfort from that assurance.
The review is timely, given the recent incidence of and publicity about hate crimes. Just yesterday, we passed the Historical Sexual Offences (Pardons and Disregards) Bill, which stands alongside the Scottish Government’s on-going work to tackle bullying, prejudice and discrimination and to provide protections against bigotry and hatred. We must all continue to send the message that there is absolutely no place for hate crime or any prejudice in Scotland. The Scottish Government is committed to promoting equality and tackling discrimination, which is why it has invested more than £202.4 million in that since 2007.
The report recognises that many parts of the current hate crime legislation work well and should be retained. However, where the evidence points to a need for change, Lord Bracadale has made 22 recommendations, as other members have said. One recommendation includes the repeal of the current racial harassment law to allow all hate crime legislation to be combined into a single act. That is a good recommendation. The review also recommends that there should be a new statutory aggravation based on gender and age hostility. That recommendation also comes at a good time, as we are seeing a shift and cultural change in society towards standing up to harassment, abuse and behaviour that may have been tolerated in the past, as Rona Mackay pointed out, but is no longer acceptable.
I note that Lord Bracadale did not propose new offences for elder abuse or misogyny, and I am aware that campaigners have been disappointed by that. However, as the minister said, she is keen to hear views from across the chamber and from wider civic Scotland.
The report found no need to create new laws to deal with hate crime online, and it said that no statutory replacement was required for section 1 of the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012. I agree with that finding, on balance, as that was probably the more difficult aspect of the legislation to scrutinise when I was a member of the Justice Committee. However, Lord Bracadale recommends that we reintroduce an element of the 2012 act by concluding that the repeal of section 6
“has left a gap in the law”
regarding offences of stirring up hatred apart from those that relate to race, which is the only area that the law now covers.
Will the member take an intervention?
I am going to come to Liam Kerr’s comments.
When the Justice Committee scrutinised the bill that repealed the 2012 act, a majority of witnesses agreed with that point. I was quite surprised by Liam Kerr’s earlier remark that the repeal of section 6 of the 2012 act could mean a gap but he still voted for its repeal, which means that, unlike elsewhere in the UK, Scotland now has no specific offence of stirring up religious hatred.
Fulton MacGregor and his colleagues have made some pretty robust—and now incorrect—comments about the Conservatives behaving irresponsibly during the repeal of the 2012 act. Will he apologise for that scaremongering and apologise to the Conservatives?
I do not think that Liam Kerr heard what I just said. I made it quite clear in my speeches during stage 1 and stage 3 that there were issues with section 1—I think that everybody accepted that—but that, on balance, I felt that it should be kept. However, with regard to section 6, Liam Kerr has said today that there could be a gap in the law.
I must move on, as I have only minute left.
Just a few months ago, members called on the Scottish Government to recognise an increase in anti-Catholicism in Scotland, citing shocking statistics that showed a disproportionate number of incidents. If we act on the report’s recommendation, the offence of stirring up hatred that is connected to religion will be set out in the act, reintroduced and extended.
It is also clear that there is underreporting of hate crime, so we might consider that further improvements should be made in the responses of the police, the prosecutors and the courts. I am the convener of the cross-party group on racial equality, which has paid the issue a lot of attention, including with presentations from the police.
It is essential that a consistent process be adopted across Government and that all criminal justice partners work together to drive up the reporting of all hate crimes, to give victims more confidence and to remove inconsistencies in the recognition and prosecution of different crimes.
That brings me to a recent case that involved one of my constituents, who is the man who was found guilty of a hate crime for filming a dog’s Nazi salute. The defender said that it was intended to be a joke. As the constituency MSP, I received representations from both sides of the argument, who made their cases strongly and passionately. In many ways, although clearly different—
You must come to a close, Mr MacGregor.
I will just finish this point.
Although the context is different, that reminded me of the evidence-gathering sessions on the bill that repealed the 2012 act. The issue split public opinion into two camps.
You must come to a close, please.
One camp agreed with the verdict and one did not. That case highlights the need for clearly defined hate crime legislation.15:49
I thank Lord Bracadale for his report. It is a balanced report and one that should be welcomed by all members across the chamber. I am particularly pleased that he has included both gender and age aggravations, although there will be debates to come on what further measures can be taken. In the time that I have, I will raise a few issues that remain outstanding from the report and some issues that require further discussion and debate.
One of those issues is the legal framework itself. Although it is right that the inquiry will look at the legal framework, consideration must be given to how that framework is used in practice. What does it mean for individual police officers? What does it mean for the procurator fiscal when the service is implementing legislation? What does it mean for individual lawyers or judges? What does it mean for any potential victims or, indeed, perpetrators? Such things need to be looked at much more in the round.
There is a feeling among certain sections of our communities that there are not equal protections in law for people of different communities, faiths and backgrounds. A close look at Lord Bracadale’s review and our legislation shows that, although we do have equal protections in law, perhaps we do not have equal actions in how the law is implemented for different communities. That needs to be looked at in much greater detail.
It will be no surprise to members that I raise the issue of Islamophobia. Much more work needs to be done around defining Islamophobia. I hoped that Lord Bracadale would consider that as part of the review, but perhaps it was outwith the remit. The First Minister wrote to me, saying that I would be put in touch with Lord Bracadale in advance of the publication of the review to discuss the definition of Islamophobia. Unfortunately, that did not happen, but I hope to have a conversation with Lord Bracadale and his team soon, to discuss the issues around the definition of Islamophobia. We need to define Islamophobia because Islamophobia is on the rise and we must recognise that for our communities.
There are four key reasons why we need a definition of Islamophobia. First, a failure to define Islamophobia risks allowing those with ill intent to define it for us. Secondly, in the valid debate about freedom of speech, which I will come back to in a moment, it is important that we define Islamophobia so that it cannot be mischaracterised as the restricting or questioning of theology. We should be allowed to question theology as well as different opinions and beliefs; what we should not be allowed to do is hate someone for having a belief.
Thirdly, it is important that we define Islamophobia so that there is a clear reference point for the legal system when considering any hate crime or cases of incitement. Fourthly, defining Islamophobia will help to demonstrate to our diverse communities that we, as lawmakers, recognise that Islamophobia exists, that it impacts on communities and that we take seriously the need to challenge it.
Fulton MacGregor spoke about freedom of speech, and a lot of people will see hate crime legislation as an attempt to curb freedom of speech. I believe in the protection of freedom of speech. What we are talking about is the freedom to offend, to abuse and to hold prejudiced views that impact on individuals’ life experiences, life chances and life outcomes. That cannot be allowed to happen.
We must get the balance right. Part of that is accepting that there will be a hard-core group of individuals who will always claim that any attempt to develop hate crime legislation is an attempt to curb freedom of speech, no matter what is agreed or how it is applied. Surely, the test must be whether it passes the test with the fair-minded majority. In order for that to happen, any definition of Islamophobia must not be an attempt to stifle debate or disagree on theology; it must be focused solely on prejudice and bias, and it must be focused on Muslims—the followers of Islam—and those who are misrecognised as Muslims rather than on Islam itself.
There must be a broad recognition that we still have a problem in our society with everyday sexism, everyday homophobia, everyday racism, everyday anti-Semitism and everyday Islamophobia. We must also recognise that we can have the greatest legal framework in the world but the vast majority of prejudiced views will not be criminal. Prejudice is not something that people can go to a police officer about or report, and they it is not something that they can get a judgment on; nevertheless, it still impacts on people’s life chances and opportunities. Prejudice impacts on their employability and their education, and there is a gendered nature to it. It impacts on access to public services and how people feel in their own communities.
I was hoping to speak in detail about the online experience and social media, but I will have to leave that for now. Social media was meant to open up the world but, in many cases, it is helping to spread hate and prejudice and is creating echo chambers for them.
All of us who believe in creating a society that is free of hate, division and abuse must see the fight against all forms of prejudice as a fight for all of us.15:55
Before I start, I want to say that I appreciate the tone that Anas Sarwar adopted during the debate. That is the tone that we should maintain in this debate as we move forward. Lord Bracadale’s report gives us that opportunity.
I know that we say this all the time, but I am extremely pleased to be speaking in this debate and discussing this report, because any mature democracy needs to be able to look at itself and ask the difficult questions. Simply put, those questions are whether we are a nation that accepts people regardless of their background; whether those from Scotland’s diverse populations and communities feel safe and wanted; whether those with extremist views are dealt with when their attitudes offend others; and whether our laws are robust enough to answer those questions. Those are not all the questions that could be asked, but they are a good start. It is my view that that is what Lord Bracadale’s review is all about.
Lord Bracadale was asked to consider our current hate crime laws, how well we deal with hate crime behaviour and whether there is a need for new or further legislation on hate crime. One of the points that stand out for me is the need to make hate crime laws simpler and bring them together in one place—I know that the minister mentioned that.
Another point that stands out for me is that Lord Bracadale said that there are gaps in the law. There is no way that we could have this debate without mentioning the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012. My opinion on that legislation is already on the record and I do not wish to go through that debate again. Today, therefore, I will consider only what Lord Bracadale suggested. One of the gaps that my colleagues and I pointed out would exist following repeal concerned section 6 of the act, on threatening communications. I am therefore pleased that the report agrees with that opinion. We are currently the only part of the United Kingdom that does not have legislation on that matter.
That brings me to another part of the report, which concerns an issue that we must address. The 2012 act was passed for a specific reason and to address a specific problem, and that problem has not gone away—the act might have gone, but the problem is still there. As I have said, I accept the decision of the Scottish Parliament to repeal the act, but we must consider ways to ensure that our laws on religious intolerance are robust and find a way to deal with the very difficult problem that exists in our communities. My reading of Lord Bracadale’s recommendation in that regard is that we must create a law that protects our communities from those who wish to stir up religious hatred, in effect reintroducing the parts of the 2012 act that deal with that and extending them to cover areas other than simply football. Those are issues that we can debate here and all over the country as we discuss this matter further in the coming months.
Updated hate crime legislation must have balanced protections for human rights, freedom of speech and civil liberties. However, part of the balance must involve protecting our communities from hate.
The type of future Scotland that I want for my children and grandchildren is one that is free of hate. In the immortal words of John Lennon—I blame my mother for this—you may say that I am a dreamer, but I believe that this is the way forward, because there is no place for hate crime in Scotland.
The Scottish Government is clear that any form of hate crime or prejudice is completely unacceptable and will not be tolerated in 21st century Scotland. We must celebrate and embrace Scotland’s diversity. Everyone in Scotland must feel empowered, regardless of their race, faith, sexual orientation, gender identity or disability. On that point, I should say that disability is one of the issues that we sometimes forget about. Obviously, members will know about my circumstances, with Stacey having multiple sclerosis. Stacey will quite gladly say to people that, as a disabled person, she sometimes feels as though she is invisible. However, everyone must feel safe and secure in their communities. What we do in our Scottish Parliament influences the tone with regard to the type of nation that we want to be.
I and many other members want a Scotland with a tolerant society, but that will not be easy to create. We will stumble along the road and have difficulties along the way but, when setting off on such journeys, the destination is the most important thing. The Lord Bracadale report gives us a starting point for a mature discussion and to decide what type of Scotland we want.16:00
I am pleased to have the opportunity to speak today on Lord Bracadale’s independent review of hate crime legislation. With 22 recommendations, there is a lot to cover, so I will quickly give my thanks to Lord Bracadale and his team for the extensive work that they have carried out.
Hate crime of any kind should not be accepted in a civilised society, which is why I look forward to working with the Scottish Government to frame how the recommendations are taken forward. Looking at the review in the context of statistics on hate crime in Scotland, we know that there is still much more work to be done. Although overall hate crime levels have fallen in the past year, the number of crimes with a sexual orientation aggravation is up by 5 per cent and the number of charges with a religious aggravation is up by 14 per cent.
When considering whether current hate crime law represents the most effective approach for the justice system to deal with crime that is motivated by prejudice, intolerance and hatred, we need to consider whether the current legislation needs to be simplified and rationalised, and whether new categories of hate crime need to be created for characteristics that are not currently legislated for.
Notably, the report recommends that age and gender should become categories of hate crime. Rather than having stand-alone offences, age and gender would operate as aggravators to other offences in much the same way as other protected characteristics such as religion or race. Rape Crisis, Scottish Women’s Aid and Engender stated that they want a stand-alone offence of misogynistic harassment, and they said that adding gender to a “laundry list of groups” might lead to underreporting.
As Liam Kerr stated in his opening speech, the need for open and frank discourse is particularly important on those points. We must do all that we can to tackle hostility that is motivated by a person’s gender or age, but we should remain open to the potential implications. As a party, we would carefully consider any legislation that the Scottish Government brings forward but, in expanding categories and creating new offences, do we run the risk of undermining public understanding of the issue? Is there a possibility that we dilute the original goals of recognising crimes against groups such as ethnic minorities and disabled people?
As Lord Bracadale suggests, improved public understanding is required, regardless of what proposals are taken forward. There is a need to promote and enhance the public understanding of hate crime, including its role in sentencing, which might encourage a better response from those who become involved in or are affected by such crimes in reporting them to the police.
Akin to that, the report suggests the creation of an aggravator, aside from hate crime, for the exploitation of vulnerable people, which would give courts the ability to increase sentences for offenders who target victims because of their age or disability. The Scottish Conservatives whole-heartedly support that recommendation as the SNP must make it a priority to get tough on criminals who target the vulnerable.
The Scottish Conservatives continue to support the existence of hate crime as a special category, recognising the profound harm that it causes to the victim and the community to which they belong. As research has shown, the emotional and psychological trauma that is caused by hate crime is heightened due to the offending being related to the core of the victim’s identity, which has an impact on the entire community. We also agree with the review’s recommendation that statutory aggravations should remain as the method of prosecuting hate crime.
I stress the importance of Lord Bracadale’s work. It can shape how, as a society, we tackle hate crime in Scotland for years, and it can help to educate the younger generation. That said, I call on the Scottish Government to tackle the root causes of hate crime. Although the levels of hate crime have gone down over the past year, we must not get complacent and must ensure that that downward trend continues. With early intervention, I hope that hate crime can be consigned to history.16:05
I, too, put on record my thanks to Lord Bracadale for his report. I also thank all those who co-operated with and responded to the extensive consultation and contributed to what is a comprehensive review.
Scotland is an inclusive, forward-thinking country, and that should be reflected in our law. Although we have seen a downward trend in hate crime statistics in Scotland more widely, we must not be complacent and it is vital that our law is capable of dealing with the minority of people who continue to perpetrate hate crimes in Scotland. As members have said, we might decide to take a different route from the recommendations, but the review is nonetheless a starting point. I was pleased to see that the review recommends new statutory aggravations, including one for crimes that are motivated by hatred of gender, which Rona Mackay talked about earlier.
In the age of the #MeToo movement, we should rightly recognise that many of the crimes that are perpetrated on women are hate crimes that should be recognised in court and taken into account when a sentence is applied. On the theme of accessibility and transparency, which Lord Bracadale seems to be looking for, effectively labelled offences send out a message to society and to those who are found guilty because they lay out the harm that is done to the victim. That clarity is simply not provided by the common-law offence of breach of the peace, unless one of the existing aggravations attaches to that offence, but even on occasions when it does, an offence as wide as breach of the peace can be inappropriate in cases of targeted hate crime. The Law Society of Scotland has said that it fully supports the development of a hate crime offence.
There is no place for hate crime in Scotland. Alongside legislation, it is important that we as a society are taking the correct steps to stamp out hate crime. I am pleased that the Scottish Government has launched a tackling prejudice and building connected communities action group, convened by the Cabinet Secretary for Communities, Social Security and Equalities, and that there have been successful initiatives such as the Government’s hate has no home in Scotland campaign in partnership with Police Scotland.
The Bracadale review has also noted an underreporting of hate crime in Scotland, which many members have spoken about in the debate. The report describes the underreporting as a “serious problem”, and I agree that it is. The underreporting is partly attributed to a lack of awareness of what hate crime is and an acceptance within certain communities that abusive conduct is just part of daily life and people should put up with it. That is shocking and completely unacceptable for 21st century Scotland. We need to address those concerns through clear legislation and education programmes that raise awareness of hate crime and encourage communities to come forward to the police and to exercise their rights. I am pleased that the action group is considering the issue of underreporting as part of its remit and I look forward to seeing what comes out of the group’s work in that area.
I want to live in a Scotland that is an inclusive and safe place for all who choose to make our country their home. We can help keep Scotland inclusive by ensuring that our legislation is up to date and fit for purpose, by educating our citizens on what is unacceptable and how they are able to exercise their rights, by reaching out to disengaged communities and by all of us standing up and condemning hate wherever we see it in our society, whether that hate is based on gender, race, sexuality, nationality, religion, disability, age or transgender identity, which are the diverse characteristics that make our country so wonderful.
The people of Scotland should have confidence in their law and their justice system. We are an outward-looking, inclusive society, and I look forward to the Scottish Government taking forward the review’s proposals in a manner that reflects that modern Scotland.16:09
I thank Lord Bracadale for his report and the review that he carried out. It is a considerable body of work that has been seriously researched. As Daniel Johnson said, it is a fine example of how a platform for legislation should be developed and taken forward. Everyone agrees that hate crime is abhorrent. It has no place in modern Scotland. Therefore, the review is much needed to ensure that our laws are fit for purpose.
Some of the recommendations will engender a fair bit of debate. For example, I can see the logic for the consolidation of hate crime legislation. In a practical sense, that is helpful for prosecutors and members of the public. However, I also acknowledge the point that Rona Mackay made that there have been some reservations about that. I hope that there will be a considered debate about it. The same is true in relation to aggravations. Whereas there is broad support for extending the aggravations to include age and gender, there has been some criticism that the recommendations do not go far enough. However, the report allows us to explore those issues and move on.
I welcome the report’s conclusion that no new legislation is required in relation to football-related offences and, indeed, that there was no gap in the law in relation to football. That reinforces the arguments that were advanced during the repeal of the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012. It does not do the credibility of the Government or SNP MSPs any good to try to hold on to parts of that act. The reality is that it was discredited during the parliamentary process not only in the Parliament but in the country.
One of the arguments against the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 was that symbolism in law was not important. Does James Kelly now agree that symbolism is important? Lord Bracadale says that it is.
The most important thing is that law must be effective. The Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 was badly drafted. It was an example of a Government that was reaching too far. Unfortunately, that reach went all the way out into how the police operated. Football fans were treated like second-class citizens.
The amount of money that was used in pursuit of people under the act was wasteful. There were instances of the wide-scale use of closed-circuit television to film innocent football fans going into matches. That CCTV footage was then reviewed and police officers turned up, in some cases mob handed, at people’s doors at 6 o’clock in the morning to arrest them. That legislation took many people into the criminal justice system for the first time and many of those cases ended up not reaching the courts or people were ultimately found not guilty.
My final point concerns the sectarianism working group. I welcome the setting up of that group because definitions are important. That was one of the flaws of the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012. However, the Government has a real problem with the membership of that group because no formal member of the Roman Catholic Church—
Will James Kelly take an intervention on that point?
No, Mr Kelly is just finishing.
I am sorry. The Roman Catholic Church has no formal membership of that group.
The minister is saying “Margaret Lynch” from a sedentary position. With all due respect to Margaret Lynch, she is not an official member of the Roman Catholic Church. [Interruption.] By that, I mean—
You must come to a close, please.
By that, I mean a bishop, a priest or somebody appointed by the church. I believe that to be a major flaw, and—
You must come to a close, Mr Kelly.
Sure. I say this seriously to the minister. You really have to address the flaw in that group, because if you want to take forward serious work on sectarianism—
You must come to a close, Mr Kelly, and you should always speak through the chair. Please close.
—you must properly involve an official member of the Roman Catholic Church.16:15
I will not comment on that.
Scotland prides itself on its tolerance. Our embracing of diversity is at the core of our society and our values and, although we are far from perfect in this regard, it is important that we continue to work hard every day to tackle intolerance wherever we find it. Hate crime has a hugely damaging effect on both victims and communities, and everyone has the right to be safe and to feel safe. That is why the review of hate crime legislation is so important. It allows us to make clear which behaviours are unacceptable.
The work that we do in this Parliament is about much more than just legislating. We are able to influence culture across society, reinforce existing trends and impact on the direction of others. The review recognises that, stating that the law has the potential to contribute to long-term cultural change and the acceptance of diverse communities.
In terms of the characteristics that are covered and the range of issues that it raises, the review is broad. Much has already been said on many of those aspects, and I will not repeat that. In the limited time that is available, I will focus on three issues in particular. The first concerns the interaction between definitions of hate crime and political expression, particularly in relation to whether criticism of a political entity should be defined as a hate crime.
Hate crime is often concerned with spoken or written communication. That forces us to define other boundaries, and specifically those that separate hate speech from free speech. The review comments on that, recognising that
“The right to engage in legitimate political protest is fundamental in a democratic society. There is a tension between ... freedom of expression, which protects legitimate political protest, and ... conduct which is racially aggravated.”
In particular, the review considers political protests in that context and makes it clear that it does not consider criticism of a political entity to be a hate crime. In fact, it considers that such an approach would extend the concept of hate crime too far and dilute its impact. It concludes that it would be open to interpretation and abuse for political ends, and that it would be open to change over time depending on the political climate. I am glad that the review comes to that conclusion, making it clear that hate crime legislation should not be used to stifle legitimate political expression.
The second issue concerns the position that the review takes with regard to differentiating between those of faith and those of no faith with respect to hate crimes. There is evidence that people of no faith, and particularly those who have left a faith, face targeted violence solely on the basis of their belief position. However, the review concludes that, although in principle hostility towards members of a group based on non-theistic beliefs could give rise to hate crime, it does not believe that such an extension is required. The result of what the review proposes would be that someone who had changed their religion from one faith to another could be a victim of a hate crime, but someone who was similarly targeted for leaving a faith and moving to a position of non-belief could not be considered to be a victim of hate crime. I would have preferred the review to have reached a different conclusion and offered the same protection to those of no faith that those with faith will enjoy.
Thirdly, I note that the blasphemy laws are still on the statute book, although they have not been used for some time. They focus on a narrow definition of religion and they hamper efforts to challenge blasphemy laws that are used in many countries around the world. Individuals have faced persecution, imprisonment and even threat of execution by states that still have active blasphemy laws, but international efforts to convince those states to rescind such laws have faced challenge because countries including Scotland still technically have blasphemy laws. In that context, steps to remove blasphemy laws from the statute book as part of the wider review would be welcome.
The review contains much that is to be welcomed. It makes it clear that hate crime has no place in the Scotland that we want to live in, that we are a diverse and tolerant society and that the laws that we pass in this place reflect those values. Despite all the work that we do here and the prevalent attitudes of the vast majority of our citizens, pockets of racism, Islamophobia, anti-Semitism, homophobia and other forms of prejudice still exist. We need to continue to work tirelessly to challenge those attitudes and make it clear they have no place in a modern, tolerant Scotland.
Thank you for your brevity, Mr McKee. That is useful.16:19
I am pleased that today’s debate is taking place. It has been a useful debate so far and members are aware of how important it is that we adequately tackle and address hate crime in Scotland. We all want to live in a tolerant society, and in an ideal world it would not be necessary to legislate in this area. However, we have to recognise the persistent and deeply unpleasant problem that continues to plague our society and make so many people’s lives a misery.
The kind of offences and instances that members have identified this afternoon are not just a problem for the individual victims; they are problems for us all. Whatever we think of the review’s recommendations and whatever our differing opinions, there can be no downplaying of or dismissing how severely impacted those directly affected are and how devastating the consequences of discrimination and hate crimes are. Hate crimes are motivated by prejudice, and Parliament must continue its work to stamp them out.
In doing so we must also recognise the broader cultural harm and make sure that it is not forgotten. We cannot allow inaction. Although I recognise that we are going to implement these specific recommendations, we should not forget that other interventions are at our disposal that can be just as effective and just as pressing.
This substantial and detailed report is welcome. It provides the opportunity that several members have talked about to progress the debate and look at how we can go further. The 22 recommendations focus our attention on a number of key areas and priorities and it is important that we debate and discuss the best way to take them forward.
I am particularly keen to hear the views of wider stakeholders because, if this conversation is going to be successful, it cannot be held just in Parliament, nor should the Government take these decisions in isolation. In that spirit, I welcome the approach that has been taken and our chance to have this debate.
As we have already heard, there are sincere and informed perspectives on a number of the recommendations, and there will be areas about which people will be concerned and have differing opinions. Liam McArthur made some important points about how we should go about having those disagreements.
At the heart of many of the differences is a difficulty in addressing the balance between how people feel and the harm that is caused to them and how the legal process works in practice. Everyone in Parliament is committed to addressing the problem, but the challenge will be in how we achieve that. I would like to highlight two key areas there.
First, I understand that recommendation 8 has raised some concerns, including from Inclusion Scotland, which does not agree that there should no longer be an express requirement to state the extent to which a sentence being imposed is different to that which would have been imposed in the absence of an aggravation. That concerns me because it sends out the wrong message and it might make the sentencing process less transparent for the victim, the offender and wider society. It might also have unintended consequences when sentences are appealed and compared. The area requires some more thought. From reading the review report, I understand that there are legitimate concerns about the complexity of the sentencing process, but I remain somewhat unconvinced that the task in question is too complicated for sentencers, especially given what we ask of them and the other requirements that are placed upon them.
Secondly, I was pleased to see restorative justice feature so significantly in the report, with Lord Bracadale encouraging practitioners to learn from developing practice in this area. From taking part in the recent members’ business debate, I know that there is wide support across the chamber for developing restorative justice. It has an important role to play in helping to find the balance that I talked about.
I am pleased that Parliament has had this opportunity to look at some of the recommendations in detail. There could be much more debate on what is a substantive report. I look forward to seeing the details when the Government brings forward its proposals in response to the report. I am sure that many of the points that have been raised today will be reflected upon closely before then and that there will be a further chance to debate them.16:24
When Lord Bracadale’s report was published, I was preparing for a trip to Srebrenica. I was able to digest some of it quickly, but I look forward to going over it meticulously to ensure that every recommendation is considered before we discuss it further.
I would be derelict in my duty if I did not start my contribution by talking about my trip to Bosnia. Nothing could possibly make me more aware of the need to combat the insidious planting of hate at an early stage than seeing how Bosnia, and particularly the area around Sarajevo, went—apparently overnight—from being a cosmopolitan, integrated, welcoming place to one in which long-term friends turned into murderers, which culminated in genocide in Srebrenica and Prijedor. People just could not conceive how something like that could happen in Bosnia, but, of course, such events do not just happen overnight. There was a slow, calculated process of dehumanising people of different faiths or backgrounds, manufacturing grievances from a mythical past and blaming any and all present woes on neighbours, work colleagues or friends.
During my trip, I and others in my group had a look at Remembering Srebrenica’s stages of genocide. When it comes to the issue of sectarianism, Scotland—or at least certain parts of it—might be seen as being at stage 3. Not for a second do I say that that means that we are heading for a similar situation. All I say is that we must always be vigilant.
We had the great privilege—and I do consider it a privilege—of meeting and listening to the stories of four heroes of Sarajevo and Srebrenica. At the age of 19, our guide and host, Resad Trbonja, went from being a long-haired student to fighting on the front line along with four other young men, with five AK-47s and 15 bullets between them on their first day, simply to defend their city. Hasan Hasanovic lost his twin brother and his father on the march from Srebrenica to Tuzla and now spends his life telling his story to others. I believe that he has been to visit the Scottish Parliament—he has certainly come over to Scotland. Bakira Hasecic was raped, as were her daughter and sister—who was eventually killed—and her house was taken over to be used as a rape centre. Finally, we met one of the mothers of Srebrenica, Fadila Efendic, who lost her husband and son. Her husband’s remains were found, identified, returned to her and buried. The authorities then identified some of her son’s bones, which she held on to for years because she was waiting to see whether they could find more of him. After a number of years, she buried everything that she had of him, which was two shin bones. To keep her son’s memory alive, she made 273 T-shirts, onto which she copied his signature, and then gave them to people. Why were there 273? That was the number of young men born in 1975—just like her son—who were found in mass graves in Srebrenica.
Members might ask why I have spoken about Srebrenica for so long. It is because the description of it before the war sounded so much like the Scotland that we all know. We have political and personal difficulties but, generally, we get on and we certainly do not hate because of our differences. More than any other example that I can think of, Srebrenica highlights how easy it is to take our eye off the ball and let things escalate until it is perhaps too late to stop them.
In its report at stage 1 of the Offensive Behaviour at Football and Threatening Communications (Repeal) (Scotland) Bill, the Justice Committee noted that the scrutiny process had sparked a new debate on sectarian behaviour. I certainly intend to continue that debate. Members should be aware that I am in the process of establishing a cross-party group on combating sectarianism in Scottish society. Our initial meeting is set to take place at 6 pm on 27 June. I have had interest from Labour and Conservative members, and I hope to have the group formalised after the summer recess. Having such a group is important because we must show the people of Scotland that when it comes to tackling hate crime there is no party-wide division. I ask any member who is willing to join the group to contact me by email.
My intention is that the cross-party group should build upon Lord Bracadale’s report. However, we will not seek to define sectarianism—we have already heard about the working group that will be dealing with the report’s recommendations—and, of course, it will be for the group and not just me to decide what our work will be. I hope that the group will take a holistic approach, and will speak to religious groups, academics, charities, organisations, educators and other stakeholders to build on the recommendations in Lord Bracadale‘s report.
I am delighted with the report, but, having lived in the west of Scotland all my life, I feel saddened that we are still having to debate such issues. In 2016-17, a shocking total of 719 charges were reported to the COPFS with a religious aggravation under either section 74 of the Criminal Justice (Scotland) Act 2003 or sections 1 and 6 of the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012.
Therefore, there is no way that we can rest on our laurels in the hope that sectarianism will go away on its own, because the evidence shows that it is not going away, and we cannot allow it to get worse. There is a religious divide that to this day vibrates through certain parts of Scottish society and, while that exists, I will do anything within my power as an elected member to combat it.
I may look to amend the recommendations around sectarianism after reading the report more closely, but my main message to the Parliament is that we must be careful with our use of language and that we should never be complacent. We should remember that, if the events that I described can happen in 20th century Europe, they can happen anywhere.16:30
Like other members, I very much welcome the report. Hatred is not a good thing, although it is an attitude and, as such, it is not easy to deal with by legislation. Lord Bracadale quotes Martin Luther King, who said:
“Well, it may be true that morality cannot be legislated but behaviour can be regulated. It may be true that the law cannot change the heart but it can restrain the heartless.”
Lord Bracadale makes it clear that he received a range of responses, including some from individuals who opposed the very concept of hate crime. However, I believe that we need to deal with hate crime, as we see it happening in present-day Scotland. Black and minority ethnic folk, Gypsy Travellers, Muslims, Jews and disabled people are all the object of hate at times. However, freedom of speech is important, too, and getting the balance right is not easy. Lord Bracadale deals with that in his report. In chapter 2, he makes the important point that people are free to think what they like and to express their views, even if they might be offensive to many people, but that, at some point, regulation of conduct becomes necessary.
There is a lot of good stuff in the report, but I will focus on chapter 5, which is about stirring-up offences. Currently, we have an offence of stirring up hatred only in relation to race. The Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 attempted to widen that, specifically to religion, but it has been repealed. The question is whether we should have an offence of stirring up hatred, perhaps covering all the protected characteristics. That would mean that there would not need to be a baseline offence of, for example, assault or vandalism with a statutory aggravation; instead, the stirring up of hatred in itself would be an offence. Lord Bracadale puts forward the arguments in favour, which include the points that stirring up hatred is considered morally wrong and that it can lead to actual harm by, for example, creating a social atmosphere where prejudice and discrimination are accepted as normal.
Stirring up hatred would be an offence only if it was serious enough. For example, that might apply to the punish a Muslim campaign or someone seeking to rid Europe of Jews. Interestingly, Lord Bracadale puts the case for law having a symbolic function, even if the number of prosecutions was not great compared to a baseline offence plus an aggravation. He says that there is a gap in the law, especially where the hatred is aimed at a group rather than an individual and that, depending on the circumstances and context, it could be more appropriate to proceed with a charge of stirring up hatred.
Freedom of expression is clearly hugely important to most of us. For example, we want to allow discussion and criticism of religions. I accept that some of the church or other Christian input has emphasised the need to protect freedom of speech almost to the exclusion of all else. However, I also accept the argument that freedom of speech is not absolute and that, as the report suggests, it should be possible to frame legislation that distinguishes between rational argument and rabble rousing. Lord Bracadale refers to article 10 of the European convention on human rights, which protects freedom of expression, but he points out that the courts have decided that that protection does not include speech inciting violence against the general population, so it is not a completely unrestricted freedom.
Lord Bracadale refers to the fact that the European Union and the United Nations have made the point that religion and race can be linked in practice. Thus, hatred of Catholics and the Irish can be connected, even though not all Irish people are Catholics and not all Catholics are Irish. Similarly, it can be difficult to distinguish between hatred of Israel and hatred of the Jews.
The report also compares Scotland to the rest of the United Kingdom, Canada and most of Australia, and says that Scotland has the least provision for offences of stirring up hatred. Lord Bracadale argues against a hierarchy of protected characteristics and says that, therefore, all should have a stirring-up offence. The point about a hierarchy came up when the Equality Act 2010 went through, when the UK Government of the time refused to include either a statement that there was hierarchy or a statement that there was not one. In recommendations 13 to 16, Lord Bracadale concludes that we should introduce stirring up of hatred offences and they should be based on conduct that is threatening or abusive where there is either an intention to stir up hatred or where hatred is likely to be stirred up. I find Lord Bracadale’s arguments in chapter 5 very persuasive.
I suspect that there will be a lot more debate on this topic, but my initial reaction to the work of Lord Bracadale and his team is very positive. I whole-heartedly endorse it as a strong basis for moving forward.
We move to the closing speeches. I call Patrick Harvie, who has up to four minutes.16:35
I am grateful for the chance to contribute to the debate, and thank those who have contributed to the report and produced it for us to consider.
I found myself considering the debate in the context of what has come before. Parliament has debated these matters long and hard, and many times, pretty much since the beginning of devolution, when Donald Gorrie made a number of points about the need to address sectarianism. My colleague Robin Harper joined that with calls for a wider approach to hate crime, including homophobic hate crime, back in session 1.
Following that, a working group on hate crime was established during session 2. It reported early in the session, but its recommendations were not taken forward. In session 3, I introduced a member’s bill to implement the key recommendations on aggravated offences in relation to sexual orientation, trans identity and disability. There was strong consensus about taking those steps, but there was also a strong consensus that the landscape of hate crime legislation was becoming cluttered and that consolidation was the next thing that should happen.
Then, in session 4, we had the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012. I do not think that we should rehearse the arguments on the OBFA again. We need to live with the fact that we had a sincere disagreement across Parliament about it, and move on, taking forward some of the positive ideas that are before us. I commend members including Anas Sarwar, Ivan McKee and Oliver Mundell who have approached today’s debate in that spirit.
Now, a number of years later, we are beginning to consider the option of a consolidation bill. I want to draw out two themes against that historical backdrop. Until the OBFA, legislation on incitement to hatred had been proposed and considered, but never pursued by Parliament, which repeatedly took the view that, notwithstanding the existing UK legislation on racial hatred, we should use aggravated offences as the core argument.
The Bracadale report recommends that that continue to be the core concept in our hate crime legislation. To me, aggravated offences are not just about getting tough on crime or having more severe sentences, but about getting the right sentence for the right circumstances, and about public recognition of the context in which an offence has been committed and its impact.
Bracadale also recommends new stirring-up offences. It seems to me that he is recommending a softer version of incitement to hatred, to be applied generally throughout society rather than in specific circumstances, such as football. It may be that we can find a way to make that work well, but we need to be conscious of the fact that it would be a departure from what has so far worked well since devolution.
There is also the theme of stand-alone offences. During sessions 1, 2 and 3, there was a lack of consensus among women’s organisations in Scotland about forms of hate crime. Many of them wanted to remain focused on getting domestic violence legislation right. Now things have moved on, and there seems to be more consensus among those organisations that a stand-alone offence of misogynistic abuse should be considered. We need to listen seriously to people’s concerns, and to look not just at whether existing offences have failed to capture certain circumstances, but at new forms of offensive and abusive behaviour, including online misogyny.
Those are not contradictions; a single piece of hate crime legislation can both consolidate our existing laws and address the need—where it exists—for new stand-alone offences. I look forward to the debate that we will have on the matter over the coming months.16:39
I, too, welcome Lord Bracadale’s report. Hate crime is a blight on our society that causes people to live in fear and to feel disengaged from their communities. Daniel Johnson pointed out that that does not just apply to the direct victim of abuse; it also means that people who share the same protected characteristic become fearful of attacks.
It might just be my perception, but anecdotally such abuse seems to be becoming more common. When times are hard, people need someone to blame, and the people whom they blame will always be people they see as being different from themselves, whether because of gender, ethnicity, sexuality, disability or any of the other excuses that people find to hate others and blame them for their own troubles. An enlightened society must not buy into that and we must challenge it when it happens, both culturally and legally. The Bracadale report is a starting point for enabling us to do that, which we can build on.
Although the report has been widely welcomed, there are concerns that it misses out on addressing misogyny. That requires greater scrutiny. I read carefully what Lord Bracadale said about a gender aggravation. What is clear is that offences against men by women are not perpetrated on the basis that the person is a man. Therefore, recognition of misogyny and violence against women appears to me to be missing from the report. Rona Mackay, John Finnie and others talked about Engender’s submission on that point: we need to have regard to that submission.
I was also alarmed because the report appears to dismiss calls for a stand-alone offence to tackle misogynistic behaviour because women accepted such behaviour in the past. They did not: it is only now that women are more empowered that the calls have grown louder and such abuse is in the spotlight. Misogynistic behaviour was wrong then and it is wrong now.
That said, we need to look at what is being proposed and how it will protect women. Daniel Johnson talked about extending the “stirring up hatred” definition to all protected characteristics. We especially need to examine closely whether a new crime of stirring up hatred would cover misogyny or whether we need to be more specific.
Many aspects of violence against women are already crimes, but hatred of women due to their gender is still all too common. We have seen a growth in the number of men who call themselves incels, or involuntary celibates, who preach hatred for women and people who have relationships with them.
Anas Sarwar talked about the rise of Islamophobia; it is deeply worrying. Terrorism that is carried out in the name of Islam is used as an excuse for the extreme form of Islamophobia. However, we did not blame Christianity—Catholic or Protestant—for the terrorism that came out of Ireland. Islamophobia is rooted in racism and hatred and must be stamped out.
There is sexism involved in Islamophobia too, because it often manifests itself in criticism of women who choose to wear a burka or a hijab. This week, Denmark became the latest European country to ban women from wearing face coverings. It is surely for women to decide what to wear, whether it is a burka or a mini skirt. It is a matter for women, and women’s choices should not be commented on or used to make assumptions about them. We have no parallel in respect of men’s clothing. Although there is male religious attire, it is always women’s attire that men feel they can dictate or comment on.
I turn to recommendation 19 in the report, which states:
“No statutory replacement for section 1 of the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 is required.”
That recommendation vindicates James Kelly’s position and a number of members, including Liam Kerr and Liam McArthur, talked about that. The tone of the debate on the repeal of the 2012 act was hostile, and some of the abuse that was directed at James Kelly was not enlightening. It is sad that some of that was repeated in this debate.
Can Rhoda Grant tell us what abuse was directed at Mr Kelly today? Would she like to balance the abuse that Mr Kelly got with the abuse that I received during the debate on the repeal of the 2012 act?
I think that there was a problem with the tone of that whole debate. This debate was a really good debate until we touched on recommendation 19, when there was a degree of hostility that was not edifying. I suggest that we listen to what Patrick Harvie said about letting go and moving on.
In that spirit, I ask the minister to consider the membership of the working group on sectarianism. Concerns have been expressed about it, and if people do not have confidence in the group they will not have confidence in what the group comes out with. I ask the minister, in the spirit of this debate, to take that point away and to look again at membership of that group.
Lord Bracadale recommended that consideration be given to a general aggravation covering exploitation of vulnerable people. That would be a worthwhile addition to our legislation. Inclusion Scotland has welcomed the proposal. We are always hearing stories about older people and disabled people being victims of theft and fraud, so a general aggravation would go a long way towards making such exploitation as unacceptable in the courts as it is in society. Inclusion Scotland told us that crime against disabled people is increasing and that crime rates in that regard can be double or three times the rates that able-bodied people experience.
I hope that the report provides a foundation for legislation that tackles hate crime. We need to build on it, in order to create the inclusive society that we all want.16:45
Before I make my speech in closing for the Scottish Conservatives, I remind members of my entry in the register of members’ interests: I am a practising advocate.
The report of Lord Bracadale’s review of hate crime legislation was much anticipated and has generated a number of ideas and recommendations that have been debated here this afternoon. As members said, although hate crime overall dropped in the past year, the issue arose in more than 5,000 charges in Scotland, and although some protected characteristics featured less, it is unfortunately the case that others featured more. Those are the statistics, but the issue arises in many unreported instances, too.
How the legislation works goes right to the heart of the review. Whatever people’s views are on the desirability of having particular focuses in criminal law, rather than a single focus on the overarching principle that all should be treated fairly and equally under the law, recommendation 20, which is that the various pieces of hate crime legislation should be consolidated into a single statute, seems entirely sensible.
Such an approach will enable us to review where we are and to make appropriate amendments to the law. An ironing out of the provisions is overdue. If the Government pursues that approach in the Parliament, that could help to raise awareness among the public—awareness that I am sad to say is still needed when we consider, for example, the anti-Semitism case that Lord Bracadale cited, which Liam Kerr mentioned in the debate.
I want to talk about recommendation 2. In paragraph 3.10, Lord Bracadale briefly comments on the use of language in statute and recommends that the English phrase, “demonstrating hostility” be used instead of the Scottish phrase, “evincing malice and ill will.” In doing so, he says that he is not suggesting that there be any change in the meaning or legal definition of the thresholds.
I doubt that anyone who finds themselves in the unpleasant circumstance of being the victim of a crime, particularly an aggravated crime, immediately reaches for the statute book to determine whether and how to report what has happened to them. A lawyer might do that, but lawyers form a small percentage of the population. Rather, in reporting to the police what has happened, a victim rightly relies in the first place on the police to identify the nature of the crime that has been perpetrated.
Changing the legal definition would be unlikely to address the perceived confusion that Lord Bracadale identifies or to make it more likely that people would report or challenge their experience. I note that Lord Bracadale talks about
“the confusion which surrounds the concept of hate crime”,
when he talks about aggravations, so it might be that, as judges often point out to counsel during submissions, this is not his best point in what is otherwise a thorough and carefully written report.
It is surely the nature of the issues that are involved in this area of the criminal law that make it difficult to pin down the concept, as lawyers try to do. A change of language is unlikely to help on that point. My concern is simply that the use in legislation of the word “hostility”, as the word is commonly understood in Scotland, would water down the standard that is required. What, after all, is “hostility”? It is an extremely subjective word and not one that is likely to provide clarity. That is just something to think about as we move forward, to avoid uncertainty in legislation.
As Lord Bracadale himself accepts, legislation on its own is unlikely to be the whole answer. Sadly, when law is created in the wrong way, it can have the opposite effect and can turn people against not only those who make the law but those who implement it, and even those whom it is meant to protect—that point was well made by Annie Wells.
As Maurice Corry pointed out, the badly formulated Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 has had its final nail in the coffin. Recommendation 19 of the review directly contradicts what the First Minister and her colleagues have been saying about a void in the law being left by the repeal of that act. Lord Bracadale clearly concludes that no such void has opened up. He also says that the same approach that we were able to use in football without the act can be adopted in relation to sectarian behaviour outside of football.
It is interesting to listen to the member, because Lord Bracadale’s report states, on page 5:
“I invited representatives from each of the opposition parties in the Scottish Parliament to meet me and discuss the work of the review. As a result, I met with the justice spokespersons for the Labour Party and the Liberal Democrats and the co-convenor of the Scottish Green Party.”
However, there was no representation from the Tories. Why is that? Why did the Tories not engage with this important review?
The Conservatives have engaged actively on this matter and Lord Bracadale, as an excellent lawyer, managed to come to the correct conclusions without comprehensive engagement. The point that Mr Adam raises is about section 6. One merely needs to read the whole report, because at paragraph 6.19 Lord Bracadale makes it perfectly clear that the Communications Act 2003
“can be (and is) used in relation to a wide range of online content”.
In other words, we do not need an act with the word “football” in the title directed at football supporters. We can use the other act, which applies to everyone, to deal with the issues raised. Indeed, paragraph 6.23 of the report points to sections 38 and 29 of the Criminal Justice and Licensing (Scotland) 2010. In fact, Lord Bracadale deals with all those points and deals with them very well.
Having concluded that the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 will not be missed, there are many other aspects of Lord Bracadale’s review that we have touched on. Liam Kerr emphasised the importance of protection for the vulnerable, and I echo what he said about that. Oliver Mundell raised some important points about sentencing and restorative justice.
I conclude by referring to John Mason’s point about whether there should be an offence of stirring up hate crime. I urge caution on that, because freedom of expression is an important right in a democracy, and any possible or suggested provision would have to be looked at extremely carefully to ensure that it would not send out the wrong message, as John Mason suggests law should be used for.16:53
I welcome the many positive contributions to the debate today. There is a clear recognition that hate crime must be tackled effectively if we are to become the Scotland that we all want. We cannot build an open and inclusive society if we allow bigots and bullies to peddle hatred and set community against community.
As I said in my opening statement, although legislation is not the only element to tackling hate crime, it is an important aspect of the agenda and, importantly, it is an element that this chamber can deliver. By working together, we can ensure that Scotland’s ability to tackle hate crime is the best we can make it.
We have accepted the principle that Lord Bracadale set out that we should work towards the delivery of a consolidated hate crime statute, but the detail of what will be included in the final hate crime bill will be decided only once we have engaged widely with relevant stakeholders, had the conversations and proceeded with the consultation.
A number of members raised the important issue of misogyny and the concerns that were raised subsequent to the publication of Lord Bracadale’s review by, in particular, Engender, Scottish Women’s Aid and Rape Crisis Scotland. I acknowledge the significant concerns that those organisations have and would be very willing to have a meaningful and detailed engagement with them to hear first hand their concerns and discuss the best way forward in terms of any proposals that we make.
Lord Bracadale’s report presents us with a number of recommendations that will, as has been said, provide a strong basis for consulting on the content of a consolidated hate crime bill. I hope that that process will be positive and constructive, and that all of us engage in it recognising that we need to provide robust protection for all vulnerable individuals and communities in Scotland. That is notwithstanding what we have said today—none of us in the chamber is complacent. Scotland is a multifaith and multicultural society. That is a strength and not a weakness, and we want to be ready to welcome new individuals who seek to make Scotland their home—a place where they will feel safe, secure and welcomed. That is why we have never tried to downplay the impact of hate crime or claim that the problem does not exist in Scotland. That would be patently untrue. However, we recognise that we have something to build on.
There is the potential for any of us to be a victim of hate crime at different times in our lives and therefore we all have a role to play in tackling hate crime. From simple acts of kindness to those who are different from ourselves, to ensuring that those who indulge in criminal acts of hatred are prosecuted and held accountable for their actions, we will make it clear that we will not allow our society to be undermined by those who thrive on hatred.
I wish to clarify a matter with regard to the membership of the working group on sectarianism. Group members will be individuals who have a track record of involvement or legal expertise in tackling sectarianism; they will not be there to represent an organisation, be it a church or any other body. When the group has reached its conclusions, there will be full engagement, which will take place with all interested bodies, including churches.
Will the minister give way?
I have very limited time, Mr Kelly, and I would like to move on.
We cannot afford to be complacent. To take forward work to build an approach to hate crime with consolidated legislation at its heart is a clear signal that we have adopted a zero tolerance approach to hate crime. As many members have said, one incident of hatred is one too many. To achieve that approach, we need to encourage more people to report hate crime in the first place. That important point was raised by many members.
On the reporting of incidents, we know that many victims and witnesses do not feel comfortable about going to the police. Many feel more comfortable reporting the incident to someone they are familiar with. That is why Police Scotland works with a wide variety of partners, ranging from housing associations to victim support offices and voluntary groups, to allow reports to come to them through a third-party reporting centre. Staff in those centres are specially trained to provide support and assistance in submitting a report to Police Scotland on behalf of victims and witnesses. Police Scotland has recently reviewed the effectiveness of third-party reporting centres and is implementing an improvement plan, which includes measuring effectiveness. We will be looking at the need for additional development to ensure that third-party reporting centres respond well to the improvements proposed to the legislation.
Anas Sarwar made an important point, which is that we should not just have a law in place—it has to be a living reality for every citizen of our country. James Dornan talked about his delegation’s visit to Srebrenica this week. As John Finnie said, DCC Iain Livingstone was a member of the delegation. He said on his return:
“The lessons I have taken from Srebrenica must be reflected in Police Scotland’s ongoing approach to upholding human rights and combating hatred.”
That is a very important statement indeed.
I see that I do not have much time left—less than I thought.
Although some hate crime figures have decreased, recent statistics show that others have increased. Data that is held by Police Scotland will add another piece to the jigsaw of our understanding of hate crime, which is why we are working with Police Scotland on a new publication on police-recorded incidents with a hate element, which will be produced later this year.
I conclude by making one point as strongly and as clearly as possible. The Scottish Government is fully committed to tackling all forms of hate crime, wherever and whenever they occur. We believe that robust hate crime legislation that is fit for 21st century Scotland is central to that. We want all our diverse communities to enjoy equality in a meaningful sense. Hateful behaviour is insidious and corrosive and it diminishes each of us. It has no place in modern Scotland, and it is time for us all to be vigilant and to stand united against hatred.