Meeting of the Parliament

Meeting date: Thursday, January 26, 2017

Official Report 950KB pdf

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Hate Crime

The next item of business is a statement by Annabelle Ewing on hate crime. The minister will take questions at the end of her statement, so there should be no interventions or interruptions.

Recent news coverage of events around the globe has starkly demonstrated that hatred and prejudice continue to have very serious consequences for people and communities across society. In recent times, we have seen racism and religious bigotry on the rise around the world. Those reports, and the subsequent and increasingly frequent online furore that they generate, can lead to increased attacks on everyone, from people from ethnic minority communities to people with disabilities and every other vulnerable community that is easy prey for bigots and bullies. Discussions in the media and online about Brexit highlight the need for us to ensure that people from across the European Union who have made Scotland their home feel secure.

Scotland is an open and inclusive nation, but we are not immune from such hateful behaviour. Our communities sometimes face prejudice and abuse through direct physical confrontation and through cowardly online hate abuse. I know that everyone across the chamber would condemn the deliberate targeting of our minority communities with hate-filled prejudice. I am sure that we are all united in seeking to offer our communities the protection in law that they need to give them access to justice when they are subjected to such behaviour.

Prejudice and hate have huge impacts on the quality of life of individuals and the communities to which they belong. Trust becomes more difficult and whole families and groups withdraw into smaller circles of safety, with significant consequences for the overall levels of trust and social capital across the whole of society. Our debate earlier today on Holocaust memorial day highlighted why we must never forget the injustices that have led to demonisation of communities and to horrific acts of genocide. We must be vigilant to ensure that history does not repeat itself and that no one is allowed to make scapegoats of our minority communities. We must all of us always bear witness.

Last November, Parliament debated hate crime and raised the possibility of a review of hate crime legislation. Organisations including the Law Society of Scotland and the Equality Network provided written briefings supporting such a review. The need for robust legislation to tackle hate crime is as great as ever, which is why I am announcing today that the Scottish Government has commissioned an independent review of hate crime legislation. The review will be led by one of the most senior members of the Scottish judiciary—Lord Bracadale. He will make recommendations on how we can ensure that the hate crime legislation that is applied to protect Scottish communities is fit for purpose in the 21st century.

The review will be taken forward entirely independently of the Scottish Government. The remit has been placed in the Scottish Parliament information centre, and I confirm that it will consider whether existing hate crime law represents the most effective approach for the justice system to deal with criminal conduct that is motivated by hatred, malice, ill-will or prejudice.

Lord Bracadale’s considerations will include whether the current mix of statutory aggravations, common law powers and specific hate crime offences is the most appropriate criminal law approach to take; whether new categories of hate crime should be created for characteristics that are not currently covered in existing legislation, such as age and gender; whether existing legislation can be simplified, rationalised and harmonised; and how any identified gaps, anomalies and inconsistencies can be addressed. Lord Bracadale will also consider whether we need to change or amend the current legislative framework and whether it guarantees that human rights and equality, including the right to freedom of speech, are protected.

Another central concern of the review is the need to consult all interested parties to ensure that Lord Bracadale’s recommendations are informed by evidence. That is why Lord Bracadale will conduct an open public consultation on the review. In addition, he has indicated that he is happy to meet spokespersons from all the parties that are represented in Parliament so that he can incorporate the views and opinions of Parliament in his findings and recommendations.

The current legislation that relates to hate crime has developed piecemeal over decades. The review presents us with an opportunity to take stock and to look at all the legislation holistically. That means that the review will consider the wide range of legislation that has an impact on tackling hate crime, including the Offences (Aggravation by Prejudice) (Scotland) Act 2009, the Criminal Justice (Scotland) Act 2003 and the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012.

I am, of course, aware of the views of members on the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012. The Government remains opposed to repeal of the 2012 act without there being a viable alternative. Such a move would remove protection from some of our most vulnerable communities: for example, repeal of section 6 would leave an unacceptable gap in Scottish legislative protection in that, unlike elsewhere in the United Kingdom, prior to the 2012 act’s introduction there was no specific offence in Scots law that criminalised threats that were made with the intention to incite religious hatred. That was an obvious gap, so it was clear that legislation was required to address it. The review that I announce today acknowledges the concerns of Parliament and provides a responsible and practical response by allowing the 2012 act to be considered in the context of all hate crime legislation, which will help to ensure that the overall legal coverage that is offered to vulnerable communities is appropriate.

Let me be clear: the review goes far beyond football. We are determined to ensure that people who peddle extreme and intolerant ideologies, those who admire the hatred of the far right and who want to undermine civil liberties and human rights, and those who simply want to make scapegoats of anyone who is different from themselves, do not find any foothold. There is no place for such behaviour in modern Scotland.

People who indulge in hate crimes often fear losing their privilege and power—that is, the privilege to abuse and the power to harm the weakest and most marginalised people in our society. Some people cannot accept that the only secure future is one in which we are able to live side by side, as equals, with equality that is based on trust, respect and—most important—understanding.

The laws that have been put in place to tackle hate crime were designed to protect vulnerable people. They make it clear that a modern forward-looking society will not tolerate hatred of people simply because of who they are. Now, more than ever, we need to revisit the body of applicable legislation in Scotland and ensure that that fundamental principle is not allowed to slip or to be lost in the changing global environment. If hatred is left unchallenged, people will be pushed towards ever more polarised positions, which will lead to greater and greater fragmentation of society. We will be vigilant; we will not stand by and let that happen.

I reaffirm the Scottish Government’s commitment to tackling all forms of hate crime. The independent review will ensure that Scotland leads the way in providing adequate and appropriate protection to all communities. I commend this important review to Parliament and hope that all parties will engage positively with Lord Bracadale as he develops his recommendations, in order to ensure that Scotland can live up to the ideal of being a modern, outward-looking, open and inclusive country.

Thank you, minister. I will allow around 20 minutes for questions, after which we will move on to the next item of business.

On behalf of the Scottish Conservatives, I thank the minister for the advance sight of her statement and welcome the forthcoming review of hate crime legislation in Scotland. We can all agree that hatred and prejudice have no place in our society. Members on the Conservative benches will engage with Lord Bracadale as he embarks on his important undertaking.

The minister mentioned

“the wide range of legislation that has an impact on tackling hate crime”,

but then went on to focus only on the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012. Why does the Scottish Government continue to ignore the will of Parliament when it comes to that flawed piece of legislation? Less than three months ago, the Parliament voted to repeal the 2012 act, which, I remind the minister, has been heavily criticised by the legal profession and the judiciary. Why is she including that piece of legislation in the review, instead of setting out a timeline for its repeal? The will of Parliament on that was made clear in November 2016.

Although it is important that the criminal justice system is equipped to deal with hate crime, it is also vital that victims come forward to report their experiences of hatred. I note that, in its latest hate crime statistics, the Crown Office says that disability hate crime

“continues to be under reported compared to other forms of hate crime.”

Can the minister confirm what the Scottish Government is doing to encourage and to improve the reporting of all types of hate crime in Scotland, and how the Bracadale review will look at the reporting of hate crime?

I welcome the constructive comments that were made at the outset of Mr Ross’s question. It is good to hear that the Conservative Party will engage with the review.

Mr Ross mentioned the position of the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012. The review has a very wide reach and I referred to a number of pieces of legislation. I also felt that it was important to reflect and to recognise the views of the Parliament with respect to one piece of the hate crime legislation jigsaw, which is why I spent a bit of time on it; members would have been surprised if I had not done that.

Our position remains clear: without a viable alternative, we do not support a repeal of the 2012 act for the reason that such a move would take away protections. With the threats to civil liberties, to peoples’ rights and to equality that we see around the world at this time, now would be the wrong time to take protections away from people. What we should be doing—and this is the responsible position of this Government—is ensuring that the whole body of hate crime legislation is fit for purpose in the 21st century, including the 2012 act, which is the key piece of hate crime legislation.

Mr Ross’s second question was on disability hate crime, and I agree that there is much more to be done to ensure that people with a disability feel more comfortable in bringing forward their concerns. In that regard, I was very pleased to note the publication of the disability delivery plan by my colleague, Jeane Freeman, in early December last year. The plan sets out 93 actions, one of which is to ensure that the Scottish Government works with disabled people’s organisations and Police Scotland to do what we can to encourage more reporting of incidents of hate crime.

The announcement of the review is welcome and we will work with Lord Bracadale. There is a need to ensure that our legislation is relevant to the modern world and its challenges, and that racism, bigotry and hatred have no room in our society. Last year, there was a doubling of Islamophobic hate crimes, and there are year-on-year increases in crimes relating to disability and sexual orientation. It is clear that we must take greater action and ensure that all our citizens are protected.

I note that the 2012 act is included in the review. The minister is aware that it is the view of Parliament that it should be repealed and, although I note what she said about the impact of repealing it, we do not share her view that there is no viable alternative. I believe that the review will recognise that.

We wish the review well. To support the work of Lord Bracadale and to better inform the review, will the minister commit to publishing a full breakdown of all hate crime statistics, as is currently the practice in the report on religiously aggravated offending in Scotland?

I thank Claire Baker for her constructive comments and for her desire to be involved in the review by ensuring that her and her party’s input are part of the work that Lord Bracadale takes forward.

The 2012 act is a key piece of the jigsaw of hate crime legislation in Scotland. It is quite right and proper that, as part of the wide consideration of whether hate crime legislation is appropriate and effective in 21st century Scotland, we look at the 2012 act, too.

In the consultation that Mr Kelly undertook—I see that he is not in the chamber—the Crown Office took the view that, in some circumstances, the only way in which it could secure a conviction would be by using the provisions of the 2012 act. Stonewall Scotland and the Equality Network expressed concern that simply repealing it would send a worrying signal that such behaviour was acceptable. I hear what Claire Baker says—there are differing views—but the issue will be part of the wider review.

We all need to do much more to ensure that people feel comfortable about reporting hate crime, in whatever way it manifests itself. That is a commitment that we have made.

I undertake to look into the issue of the hate crime statistics and speak to the statisticians. I do not want to do things that might, statistically, present particular challenges, but I hear what Claire Baker says. The best way to go is for us to bring to the table any information that we can.

I ask members to bear in mind that the longer the questions and answers are, the less chance there is of everyone getting an opportunity to ask their question.

The minister will be aware that the Equality and Human Rights Commission has raised concerns that the start of formally leaving the EU could cause an increase in crime and a backlash against EU citizens—we have already seen that in England following the referendum in June. How will the Scottish Government ensure that that backlash does not occur in Scotland?

You caught me by surprise there, Ms McKelvie. That was very quick for you. I call Annabelle Ewing.

Presiding Officer, I will not comment on your exchange with Christine McKelvie.

Immediately after the referendum vote in June 2016, the First Minister said:

“citizens of other European countries living here in Scotland—you remain welcome here, Scotland is your home and your contribution is valued.”

That is the message that all of us must strive to get across every single day, particularly given that the article 50 process will apparently be triggered fairly shortly. It is a duty incumbent on all of us to ensure that all our citizens feel comfortable living in Scotland, where they have chosen to make their home.

On practical considerations, the intention of the hate crime review is to ensure that hate crime law protects every citizen in Scotland and that it is available for all. That is an important feature of the review.

My colleagues in the equalities team will shortly proceed with another hate crime awareness campaign, which I think was announced in the excellent debate that we had in November last year. I am sure that that will be a timely intervention as we approach, with some trepidation, the months ahead.

Last June, figures from the Crown Office showed that, in Scotland, sexual orientation and disability-related hate crime rose by an alarming 20 per cent and 14 per cent respectively between 2015 and 2016. I raised that issue in the chamber during a debate in November and I want ask the minister again what specific action the Scottish Government will take to tackle those types of hate crime.

In response to the member’s colleague, I explained the very important development of the disability delivery plan, under which 93 separate actions are expected to be carried out. We will work closely with disability organisations and Police Scotland to encourage increased reporting.

On the increase in reported sexual orientation hate crime, I note the statistics and I find them very worrying indeed. We have proceeded with a range of activities, including in the equalities portfolio. Significant funding has gone in over recent years. In the current financial year, some £3.1 million is available for a wide range of projects to ensure that, across all areas, we are vigilant. In our schools, the refresh of the anti-bullying guidance is expected quite soon. We are working with time for inclusive education campaigners to ensure that the issues that they have raised are properly addressed.

What is the Scottish Government doing to tackle the problem of sectarianism that exists across the country, affecting people in my constituency and many others?

The member raises an important point. The Scottish Government has invested some £12.5 million over the past five years to the end of this financial year in a number of important projects that seek to tackle sectarianism, working through the education sector—there were particular projects involving the Citizens Theatre, sense over sectarianism and Nil by Mouth, to name but three. We recognise that education is a key element in tackling sectarianism and we have been working with Education Scotland to produce a national resource for schools.

Over the past five years, we have committed more than any previous Administration; of course, future funding activity will be informed by Dr Duncan Morrow’s important review of the 2016 report that his advisory group prepared on tackling sectarianism in Scotland. Dr Morrow is looking at how the recommendations are being implemented. We expect that work to be produced shortly and we will look at that review carefully to inform the next steps.

I welcome the statement on hate crime. Can the minister provide any further details on the open public consultation? Can she give us any assurances that such a consultation will reach all those in Scotland who are subject to hate crimes and who may otherwise be overlooked, for example people for whom English is not their first language or Gypsy Travellers?

The member raises an important point and I will ensure that it is fed into the process. It is absolutely the case that evidence from anybody who has something to say will be most gratefully received. In terms of general stakeholder engagement, shortly after this statement I will be speaking to some key stakeholders. We will also be in written contact with other stakeholders today and I hope that, through their networks, they can help to make sure that as wide an ambit is reached as possible.

One of the most significant developments in the past few decades has been online hate crime, which is utterly vile and yet is underreported, in my view, because a lot of online abuse is accepted as just being normal. Will the review ensure that it is easier and more routine to report online hate crime that is targeted at someone and motivated by prejudice, while—importantly—safeguarding freedom of speech?

The issue of online hate crime is quite fundamental now, because so much activity takes place online. That is the future. Therefore, an important part of Lord Bracadale’s review is to look at how effective our legislative framework is at dealing with online hate crime and at what we can do to enhance that protection—while of course recognising that one of our important rights is indeed freedom of expression.

Some online protection is provided in section 6 of the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012. A simple repeal of the 2012 act without anything else being put in its place would take away protections that currently exist.

I welcome the review and in particular the commitment that it will include consideration of a consolidated hate crime act, which I have thought was worth considering since Parliament passed my own member’s bill, which became the 2009 act.

However, I wish to ask about the comments by the minister that prior to the introduction of the 2012 act, there was no specific offence in Scots law criminalising threats made with the intent of inciting religious hatred. The minister describes that as an obvious gap. Is it not more accurate to say that it was a choice that Parliament consistently made by consensus that aggravation of existing offences was the way to go rather than the introduction of piecemeal incitement legislation? Can the minister confirm that the review group will not be given any preset assumptions or preconditions about the role that the Government expects incitement to hatred legislation to play in future?

We have set the remit for the review, which has been placed in SPICe. Lord Bracadale will carry out the review and he will determine where his review takes him. In terms of the expressed remit, he is being tasked to look at the important issue of statutory aggravations.

The review will be independent, and Lord Bracadale—one of the most experienced practising criminal law judges in Scotland—will take it where he feels that it needs to go to fulfil the remit, which is to look at whether the body of law in this area is piecemeal and requires consolidation. I know that, some years ago, Patrick Harvie rightly called for consolidation. Lord Bracadale’s duty is to look at the whole body of law to determine whether it is effective and appropriate in the context of 21st century Scotland. I am sure that he will read the Official Report of questions and responses on today’s statement, and I know that Patrick Harvie and his party will wish to feed into the review.

I thank the minister for early sight of her statement and I welcome the review as part of our on-going efforts to bear down on hate crime in all its forms. The Scottish Liberal Democrats will certainly be more than happy to engage with Lord Bracadale.

Can the minister advise whether the Lord Advocate or the Crown Agent has identified particular cases or types of case that are not being brought forward or securing prosecution in the current legal landscape? Can she assure members that the support that is available to victims, some of which is based on legislation, will be up for consideration in the review?

I welcome Liam McArthur’s constructive approach to the review, and it is good to hear that he will be happy to work with it. I am not aware that the Lord Advocate has brought any information to me regarding particular cases, but it is timely that we take a look at the adequacy of our hate crime legislation in 21st century Scotland, given that it is covered in both common law and statute, and that—as we heard from Patrick Harvie—there are a number of statutory aggravations.

Victim support is probably not an element of hate crime legislation that falls directly in Lord Bracadale’s remit, but it is for the Government to continue to look at that matter. I assure Liam McArthur that, under the justice portfolio, we will always continue to look at what more we can do to help victims.

Does the minister agree that more should be done to prevent homophobic bullying at school, in light of the shocking statistics that 90 per cent of lesbian, gay, bisexual, transgender and intersex people have experienced homophobia, biphobia and transphobia at school and 27 per cent of LGBTI people have attempted suicide once as a result of bullying, in addition to the fact that 79 per cent of teachers support the LGBTI time for inclusive education—TIE—initiative?

Obviously, every child should feel safe and respected at school, and each one of us has a duty to ensure that that happens.

On the TIE campaign specifically, I echo what the First Minister said at First Minister’s questions last week: there is a commitment to take forward the issues that the TIE campaign has brought to our attention, and we wish to do that in consultation with the excellent TIE campaigners.

It is fitting that we are discussing hate crime today given that, just an hour ago, I sat in the chamber and listened to members describe some of the horrors of the Holocaust. While hate will never go away, the means by which it manifests itself have changed dramatically. Will the review, in considering the issue of cyber abuse and online hate crime, robustly and adequately ensure that offences are recorded and dealt with properly?

The first task of the review with which Lord Bracadale will proceed, which was announced today, is to assess the adequacy and effectiveness of the substantive body of hate crime legislation that exists. Lord Bracadale may wish to look at the mechanics to ensure that we have ways of recording, reporting and assessing how we are doing in the coming years, but I suspect that it will more likely be a matter for the Government to consider at the end of the process when we receive the review recommendations.

I welcome the minister’s statement. Does she recognise that tackling hate crime is about not simply framing the right laws but resourcing services to implement them? Will she give a commitment that the Government will not rush to legislate for the sake of it?

Nonetheless, as other members have highlighted, there are some areas that Lord Bracadale should consider for review. Social attitudes to transgender people have improved, but they still face acute prejudice, and we know that there is severe underreporting of transphobic hate crimes. Does the minister agree that that may be an area of interest to Lord Bracadale, who might wish to examine whether a specific law is needed to address such crimes?

At the end of the process, the Government will carefully consider any recommendations that are made by Lord Bracadale. I imagine that Lord Bracadale will wish to consider the area of transphobic hate crime among other areas when looking at the adequacy in the 21st century of the body of hate crime legislation in Scotland.

One of the strengths of the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 is that, fairly obviously, it deals with offensive behaviour at football but also deals with sectarianism, anti-Irish racism and anti-Catholicism. Can the minister assure us that we will not lose focus on those important issues?

Yes. Lord Bracadale has been commissioned to look at the adequacy of the body of hate crime legislation in Scotland, including looking at, as part of the wider review, the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012. Of course, that act remains on the statute book until such time as it is not. As I said in response to Fulton MacGregor, our focus on investing in funding for important projects to tackle sectarianism has meant that we have invested £12.5 million over the past five years. We will consider how we will take forward those projects, including working with Education Scotland to ensure that we have a national resource embedded in our national education system to ensure that tackling sectarianism remains very much on the agenda in Scotland.