Consultation on amending Scottish hate crime legislation: analysis of responses

Executive summary

1. The Scottish Government is considering reforms to hate crime legislation in Scotland. As part of this process, a consultation sought views on consolidating and modernising hate crime laws; new statutory aggravations; new stirring up offences, and other related issues.^[1] Findings from an analysis of the responses are summarised here. 

The response to the consultation

2. A total of 1,159 responses were received: 108 from organisations (third sector bodies, public sector and partnership bodies, faith groups and other organisations) and 1,051 from individuals. The analysis of responses showed that organisations and individuals often had differing perspectives and views on the issues under consideration. 

3. As with all consultations, the views of respondents cannot be considered to be representative of the views of the wider public. Thus, the main focus in analysing the responses is not on identifying the number (or proportion) of respondents holding particular views, but rather on understanding the range of views expressed. 

Key themes

4. Two key perspectives were apparent in the responses to this consultation:

• A substantial proportion of respondents (including most individuals) had concerns about the impact of hate crime laws on freedom of speech and religious expression, and about laws designed to protect specific groups. Many called for the repeal of hate crime laws or, at least, did not want such laws to be extended. These views shaped their responses to the consultation. 
• Other respondents (including most organisations) saw hate crime laws as important in protecting vulnerable groups, and sending out a message about the unacceptability of prejudice-based conduct. Within this group there was a range of perspectives on how to ensure the protection of particular groups. 

5. Across the consultation, respondents highlighted the importance of:

• Taking a society-wide or a ‘whole system’ approach to addressing prejudice and related behaviour – some saw the law as having a key role in this; others thought this should be tackled largely outwith the justice system
• Consulting relevant individuals, organisations and communities on any reforms, and ensuring policy and practice was informed by robust evidence
• Using clear, easily accessible and well-defined language, and being consistent with terminology used in legislation and other official contexts
• Taking account of ‘intersectionality’ – i.e. that an individual may have more than one protected characteristic and that offences can be motivated by hostility towards the combination of an individual’s characteristics
• Ensuring laws are workable in practice.

Part 1: Legal models, thresholds and language

6. Part 1 of the consultation covered legal models, thresholds and language. Here, organisations mainly supported the proposals, while individuals (and faith groups) did not. 

7. Those who supported the statutory aggravation model as the core method of prosecuting hate crimes offered two main views. Some highlighted the effectiveness of the model, and thought it provided flexibility and parity across groups. Others offered qualified support for the model, if hate crime legislation were to remain in place. Those opposed to the aggravation model also offered two main views. For some, their opposition was part of a general opposition to hate crime laws. However, others (including some public and third sector bodies) said they favoured the use of standalone offences rather than, or as well as, aggravations.

8. Those who supported the suggested rewording of the thresholds for statutory aggravations thought clear, consistent and accessible language would enhance understanding of, and confidence in, hate crime laws, while also having a neutral (or possibly positive) impact on the application of the thresholds. However, others were concerned that the suggested wording was ‘vague’, ‘subjective’ or ‘open to interpretation’, which some thought could lead to a ‘lowering’ of the legal thresholds in this area. There was also a separate concern that changing the current wording risked causing confusion for the groups the legislation was intended to protect.

Creation of separate intersex and transgender categories in hate crime laws

9. There was a mix of views on creating a separate intersex category. Those in favour generally agreed that intersex was a physical condition and not an expression of gender identity, and that the two groups should not be linked together in law. Those against creation of a separate category were often opposed to the inclusion of transgender (rather than intersex), and argued for the law to be based on biologically determined ‘sex’. Some respondents felt further consideration of the policy response to intersex issues was needed. With regard to terminology, some said it was important for the language of the law to evolve to reflect society. However, others saw difficulties in agreeing acceptable terms that were clear and would stand the test of time. 

Part 2 and Part 4: New and revised aggravations

10. The consultation considered options for a number of new statutory aggravations. In the main, organisations supported aggravations for gender, age, vulnerability and association with a protected group; however, they were opposed to aggravations (or any new laws) for sectarianism or political entities, and expressed a mix of views on a possible aggravation relating to religious beliefs of individuals. None of the options put forward were supported by a majority of individuals.

Gender / misogyny

11. In general, organisations (but not individuals) supported a legislative response to the issue of crimes motivated by gender prejudice or misogyny. Organisations were also more likely to favour a statutory aggravation for gender hostility rather than a standalone offence for misogynistic harassment. However, third sector bodies with expertise in women’s issues generally favoured the latter, and other respondents often deferred to the views of such organisations. There was no consensus on whether any new law should cover women only, or women and men, although organisations with expertise in women’s issues thought the focus should be on women only. There was also discussion on whether the law should be based on ‘sex’ or ‘gender’, with some pointing out that the protected characteristic in the Equality Act was ‘sex’ not ‘gender’.

Age / exploitation of vulnerability

12. There was more support for a vulnerability-based aggravation outwith hate crime laws than for an aggravation based on the protected characteristic of age. In either case, those supporting these proposals thought there was an issue that needed to be addressed by law. Those supporting an age aggravation thought there should be a consistent approach across all protected characteristics. Those opposed thought there was little evidence of crime motivated by age-related hostility (with some arguing that offences committed against the elderly were likely to be motivated by a perpetrator’s perception of the victim’s vulnerability), or they thought that existing laws sufficed. Respondents saw challenges in defining and applying either aggravation.

Sectarianism

13. The overall balance of opinion was opposed to the introduction of legislation relating to sectarianism. Those favouring legislation thought this was a serious issue that was not covered by current laws; most of this group preferred the creation of a statutory aggravation – for reasons of clarity and consistency – rather than a standalone offence. There were also calls, mainly from organisations, for the definition of sectarianism to reflect (i) current and potential future expressions of sectarianism, and the multi-cultural nature of Scotland, and (ii) international law and standards. In contrast, others thought the conduct that constituted sectarianism was already covered by existing laws. 

Other groups / characteristics

14. Those in favour of a new political entity aggravation argued that people should be able to express political views without being subjected to personal attacks. Those opposed thought such an aggravation would infringe on freedom of speech and the right to political protest, and might undermine existing hate crime laws.

15. Those in favour of an aggravation for religious views held by individuals argued that this would be in line with human rights legislation, and also described evidence of increasing need for such an aggravation. However, others argued that, by definition, hate crime laws should apply only to crimes motivated by prejudice towards a group.

16. Those supporting continuation of current provisions related to association with a protected group argued that it is the motivation of the offender, not the identity of the victim, that is the essential component of a hate crime. Those opposed generally argued that all victims of crime should be treated the same; they also saw difficulties in proving ‘association’.

17. There was no consensus in favour of new aggravations for any other groups.

Part 3: Stirring up offences

18. Views were sought on the introduction of possible new stirring up offences. 

19. Most organisations supported the introduction of new offences for all protected characteristics – they emphasised the importance of legal parity and clarity, and thought laws of this type could protect all relevant groups while also respecting freedom of speech. Individuals and faith groups largely opposed the introduction of new offences because they disagreed with laws protecting particular groups, and / or they had concerns about the impact on freedom of speech and religious expression (some other organisations also shared concerns in this area). A small number of respondents (mainly third sector bodies) queried the need for new offences and / or were concerned that changes to the law in this area might make the prosecution of race-related offences more difficult.

20. There were differing views on how any new offences should be formulated – while some were happy with the wording proposed in the consultation, others were concerned the wording would set the threshold too high or, conversely, too low. However, there was broad agreement that stirring up offences should include a protection of freedom of expression provision, although there were differing views how this should be framed.

21. With regard to online stirring up, those who thought legislation was not needed thought that such conduct was covered by existing (or proposed) legislation; or thought legislation was not merited, or would not be effective. However, others saw online hate as a serious and increasingly prevalent issue that required a specific legal response.

Part 5: Other issues

22. There were two main arguments regarding the repeal of Section 50A. Some said the offence was no longer needed, and that repeal would offer benefits of consistency, simplification and improved statistical data. Others favoured repeal as part of a preference for wider repeal of hate crime legislation. In both these cases, respondents thought repeal would have minimal impact. However, others said that Section 50A was well used and that other options did not offer equivalent substitutes; this group were concerned that repeal would send out the ‘wrong message’ about society’s attitude to racially motivated crimes. 

23. Those who favoured the requirement to state in court the extent to which an aggravation had altered a sentence thought this (i) sent a clear message about the unacceptability of hate crimes; (ii) aided transparency and consistency of practice; and (ii) encouraged reporting and deterred offending. The alternative view was that the requirement was unnecessary, complicated in practice and could have a negative impact on victims.

24. There was broad agreement on the importance of support for victims of crime. However, while some felt victims of hate crimes had specific needs, others focused on support for all victims. There was also a common view that improvements in this area did not require legislation. 

25. In the main respondents thought restorative justice and diversion had a role in tackling hate crime (and crime in general). Respondents thought such measures could help address the causes of crime and be positive and empowering for individuals and communities. However, they stressed that the interests of victims should be paramount in developing work in this area.