Consultation on amending Scottish hate crime legislation: analysis of responses

9. Other groups or characteristics (Q18–Q20)

9.1 Section 6 of the consultation paper considered the need for new statutory aggravations to address: (i) circumstances where an offence is motivated by hostility towards a political entity which the victim is perceived to be associated with by virtue of their racial or religious group (referred to in the consultation as ‘political / religious / racial cross-over’) and (ii) any specific new groups or characteristics (apart from gender or age). 

9.2 Regarding the first point above, Lord Bracadale argued that attributing protected characteristics to political entities would (i) extend the concept of hate crime too far, thus diluting its impact, and (ii) risk infringing on the right to engage in political debate and protest. He also argued that, in most cases, the existing statutory aggravations of race or religion could be attached to other offences. Thus, he recommended that a statutory aggravation to cover hostility towards a political entity was not required.

9.3 Regarding the second point above, Lord Bracadale considered whether new aggravations were required to cover hostility towards specific new groups – including (i) immigrants, (ii) members of the Gypsy / Traveller community and (iii) Gaelic speakers – or new characteristics, including a person’s socioeconomic status. Lord Bracadale argued that immigrants, Gypsy / Travellers and Gaelic speakers were already covered under the existing race aggravation, and that it would stretch the concept of hate crime too far to treat offending based on socioeconomic status as a hate crime. He therefore concluded that aggravations to cover hostility towards any specific new groups or characteristics (other than gender or age) were not required.

9.4 Section 6 also considered whether the existing religious statutory aggravation should be extended to include religious or other beliefs held by an individual. On this point, Lord Bracadale concluded that there was no rationale for departing from the core approach of recognising hate crime in relation to a group with a protected characteristic. Thus, he recommended not extending the current religious aggravation to capture religious or other beliefs held by an individual rather than a group (Recommendation 7).

9.5 The Scottish Government proposed to accept Lord Bracadale’s recommendations on these three issues and invited views on each in turn.

Question 18: Do you think that a new statutory aggravation on hostility towards a political entity should be added to Scottish hate crime legislation? [Yes / No / Unsure]

Question 19: Do you think that a new statutory aggravation should be added to Scottish hate crime legislation to cover hostility towards any other new groups or characteristics (with the exception of gender and age)? [Yes / No / Unsure]

Question 20: Do you think that the religious statutory aggravation in Scottish hate crime legislation should be extended to include religious or other beliefs held by an individual? [Yes / No / Unsure]

Key points

• Three-quarters of respondents (74%; 382 out of 517 respondents) thought that a new statutory aggravation on hostility towards a political entity should not be added to Scottish hate crime legislation. This group thought a new statutory aggravation would infringe on freedom of speech and the right to political protest, and would dilute and undermine existing hate crime laws. Those who supported the introduction of a new aggravation argued that people should be able to express political views without being subjected to personal attacks. 
• Overall, two-thirds of respondents (66%; 340 out of 514 respondents) thought that no other new statutory aggravations should be added to Scottish hate crime legislation – although, compared with individuals, the views of organisations were more mixed. Contrary to the recommendation of Lord Bracadale, those in favour of the introduction of new statutory aggravations identified three main groups for inclusion in hate crime legislation: (i) migrants, refugees and asylum seekers, (ii) Gypsy / Traveller / Roma people, and (iii) homeless people or people claiming benefits. These particular groups were considered to be among the most vulnerable to hate crimes, and least likely to receive protection through the law. Those opposed to the introduction of new statutory aggravations generally agreed with Lord Bracadale’s conclusions that (i) existing legislation already covered hate crime against the first two of these groups, and (ii) the third group should not be covered by hate crime legislation because ‘socioeconomic status’ is not an intrinsic characteristic.
• A majority of respondents (61%; 313 out of 513 respondents) agreed with Lord Bracadale’s recommendation that the existing religious statutory aggravation should not be extended to include religious or other beliefs held by an individual. However, compared to individuals, the views of organisations on this issue were more mixed. Those in favour of extending the existing religious aggravation argued that human rights legislation provides protection for the religion or beliefs of individuals as well as groups, and suggested that Lord Bracadale’s interpretation of the protected characteristic of ‘religion’ as relating only to defined religious groups was too narrow. This group also pointed to increasing instances of intra-religious hostility, as well as a growing community of ‘apostates’ (people who have left a religious group) who have faced victimisation. Those opposed to extending the existing religious aggravation argued that, by definition, hate crime should apply only to crimes motivated by prejudice towards a particular group.

Hostility towards a political entity (Q18)

9.6 Question 18 invited views about whether a new statutory aggravation on hostility towards a political entity should be added to Scottish hate crime legislation. The consultation paper noted that the Scottish Government accepted Lord Bracadale’s recommendation that such a statutory aggravation was not necessary. 

9.7 Table 9.1 shows that three-quarters of respondents (74%) answered ‘no’ in response to Question 18. Thus, they agreed with Lord Bracadale’s recommendation that a new statutory aggravation on hostility towards a political entity should not be added to Scottish hate crime legislation. This pattern of response was similar for organisations and individuals, although a third (32%) of organisations expressed uncertainty on this issue.

Table 9.1: Q18 – Do you think that a new statutory aggravation on hostility towards a political entity should be added to Scottish hate crime legislation?

	Yes		No		Unsure		Total
Respondent type	n	%	n	%	n	%	n	%
Third sector organisations	1	4%	12	50%	11	46%	24	100%
Public sector / partnerships	–	0%	16	73%	6	27%	22	100%
Faith groups	–	0%	8	89%	1	11%	9	100%
Other organisations	–	0%	6	75%	2	25%	8	100%
Total organisations	1	2%	42	67%	20	32%	63	100%
Total individuals	40	9%	340	75%	74	16%	454	100%
Total (organisations and individuals)	41	8%	382	74%	94	18%	517	100%

Percentages may not total 100% due to rounding.

9.8 A total of 244 respondents (42 organisations and 202 individuals) provided further comments at Question 18. The views of those who answered ‘yes’ and ‘no’ to Question 18 are discussed in the sections below.

9.9 With regard to those who answered ‘unsure’ to this question, some simply said that they had insufficient information to be able to reply. Others wanted clarification on certain aspects of the question, including (i) the meaning of ‘hostility’ (whether it relates specifically to physical violence or the threat of physical violence, or whether it relates to harshly criticising, mocking or challenging a political entity), and (ii) the definition of ‘a political entity’. 

Support for a statutory aggravation on hostility towards a political entity

9.10 Table 9.1 shows that one organisation and 40 individuals answered ‘yes’ to Question 18. The organisational respondent was specifically concerned about the need to protect women (‘feminists’) who are involved in politics and political activism from what the respondent described as ‘unprecedented’ levels of hate. The topic of misogynistic harassment is covered in Chapter 6, and it was not clear the extent to which the respondent was advocating for a distinction to be made between misogynistic harassment and hostility towards a political entity.

9.11 Among the individuals who answered ‘yes’ at Question 18, there was a general view that people should be free to express political views without being subjected to personal attacks. Respondents in this group often reported personal experiences of feeling intimidated or uncomfortable during the 2014 Scottish independence campaign and / or the 2016 Brexit campaign and in the period following these votes. Some suggested that legislation was required to deal with a growing incidence of hostile ‘rhetoric’ and ‘abuse’ directed at individual politicians or members of the public because of their political beliefs. Respondents who answered ‘unsure’ also sometimes acknowledged that people may face hostility because of their political beliefs, and they suggested that there is a need to protect people in the public eye (including political leaders, religious leaders, heads of schools, etc.). However, they did not necessarily believe that a new statutory aggravation was the best way to do this.

Opposition to a statutory aggravation on hostility towards a political entity

9.12 In general, respondents who answered ‘no’ at Question 18 (both organisations and individuals) endorsed the views of Lord Bracadale, as described in the consultation paper. They repeatedly commented that the introduction of a statutory aggravation on hostility towards a political entity would:

• Infringe on freedom of speech and the right to political protest: Those who raised this point emphasised that being able to criticise a political entity is a fundamental democratic right. This group was concerned that the introduction of a new statutory aggravation on hostility towards a political entity would encroach to an unacceptable extent on the freedom of speech and the engagement in political debate and protest. This view was almost unanimously voiced by respondents who answered ‘no’ to Question 18.
• Dilute and undermine existing hate crime legislation: Those who raised this point thought that the focus of hate crime legislation should remain on the protected characteristics defined in the Equality Act 2010 – those immutable, intrinsic characteristics which are part of an individual or group identity. They also explicitly stated that affiliation with a political entity should not be considered a protected characteristic – that to do so would risk undermining and / or adding unnecessary complexity to existing legislation. This view was expressed by third and public sector / partnership bodies, and some individuals.

9.13 Some respondents opposed to the introduction of a new statutory aggravation on this issue also considered that it was unnecessary, as most crimes targeted at individuals because of their political affiliation could be prosecuted through other existing legislation.

International Holocaust Remembrance Alliance’s working definition of antisemitism

9.14 Among those who answered ‘no’ or ‘unsure’ at Question 18 (both organisations and individuals), there was a recurring concern voiced about the Scottish Government’s endorsement of the International Holocaust Remembrance Alliance (IHRA) working definition on antisemitism. Those who raised this issue were not concerned about the working definition itself (i.e. ‘words or actions expressed as hatred towards Jews’), but about the examples of ‘antisemitism’ which accompany it. These respondents saw the examples as problematic because, in their view, they equated criticism of the State of Israel with ‘hatred towards Jews’.

9.15 This group saw the IHRA working definition as causing confusion in the effort to tackle antisemitism and racism. They also believed it posed a threat to freedom of expression and freedom of political protest, and they suggested that the definition had been used to restrict campaigns in support of human rights for Palestinians.

9.16 This group asked the Scottish Government (i) to withdraw its endorsement of the IHRA working definition and (ii) not refer to this working definition in any hate crime legislation or related guidance. Alternatively, ‘as an absolute minimum’, they asked that the illustrative examples attached to the definition should be disregarded.

Hostility towards any other new groups or characteristics (Q19)

9.17 Question 19 invited views about whether it was necessary to create any other statutory aggravations to cover hostility towards any other specific groups or characteristics (apart from gender or age, which were discussed separately in the consultation paper). The consultation paper noted that: (i) Lord Bracadale considered that additional statutory aggravations were not necessary, and that (ii) the Scottish Government proposed to accept this recommendation.

9.18 Table 9.2 shows that overall, two-thirds of respondents (66%) thought that other new statutory aggravations should not be added to Scottish hate crime legislation. Although a majority of both organisations and individuals offered this overall view, there was a more mixed response among organisations (of the 64 who responded, 19% said ‘yes’, 55% said ‘no’, and 27% said ‘no opinion’). Public sector / partnership bodies and faith groups were most likely to think that no other statutory aggravations were needed. However, caution should be exercised in interpreting these findings because of the small numbers of organisational respondents who responded.

Table 9.2: Q19 – Do you think that a new statutory aggravation should be added to Scottish hate crime legislation to cover hostility towards any other new groups or characteristics (with the exception of gender and age)?

	Yes		No		No opinion		Total
Respondent type	n	%	n	%	n	%	n	%
Third sector organisations	5	19%	8	31%	13	50%	26	100%
Public sector / partnerships	2	10%	14	70%	4	20%	20	100%
Faith groups	1	11%	8	89%	–	0%	9	100%
Other organisations	4	44%	5	56%	–	0%	9	100%
Total organisations	12	19%	35	55%	17	27%	64	100%
Total individuals	53	12%	305	68%	92	20%	450	100%
Total (organisations and individuals)	65	13%	340	66%	109	21%	514	100%

Percentages may not total 100% due to rounding.

9.19 Altogether, 192 respondents (42 organisations and 150 individuals) commented at Question 19.

Groups or characteristics that should be covered by new aggravations

9.20 Of the 65 respondents who answered ‘yes’ to Question 19, around two-thirds made further comments. In general, this group disagreed with Lord Bracadale’s assessment regarding one or more of the specific groups he had considered in his review. Specifically, they (and, occasionally, also some who answered ‘no opinion’) suggested that one or more of the groups considered by Lord Bracadale should be covered by hate crime legislation – despite his recommendation to the contrary. The three groups identified most often (both by organisations and individuals) are listed below. (Note that not all of these groups were mentioned by all the respondents.)

• Migrants, refugees and asylum seekers: Respondents argued that prejudice against these groups is sufficiently discrete from hostility based on race to warrant a separate statutory aggravation. The point was also made that these groups often have little or no recourse to justice.
• Gypsy / Traveller / Roma people: Respondents thought that these populations were not well protected under current legislation, and that they are often victims of complex types of offences.
• Homeless people, or people claiming benefits: Respondents acknowledged that a person’s socioeconomic status may change over their lifetime. However, they argued that the prejudice and violence experienced by homeless people and people claiming benefits was significant and could not, in many cases, be separated from patterns of discrimination and inequality. There was also a view that, contrary to Lord Bracadale’s assertion, socioeconomic status can be equated with an identity characteristic, given the evidence that, for example, children born into poorer households are less likely to ‘succeed’ at school.

9.21 Among those who answered ‘yes’ at Question 19, there was a view that these particular groups are among the most vulnerable to hate crimes. However, these groups have largely been excluded from existing policy and legislative frameworks because of the perception society has of them as being ‘undesirable’, ‘criminogenic’, or ‘less worthy’ than ‘more legitimate’ groups who have access to lobbying support and the necessary political experience to advocate on behalf of their own rights.

9.22 Occasionally, individuals (but not organisations) mentioned other groups considered by Lord Bracadale – including goths, Gaelic speakers, and users of British Sign Language (including those who are not disabled) – as facing discrimination and prejudice, and in need of the protection afforded by a separate statutory aggravation.

9.23 Other groups or characteristics not considered by Lord Bracadale were also mentioned (usually by just one or two individuals) as potentially in need of a new statutory aggravation because of the violence, discrimination, abuse or harassment that they face:

• People who are ‘asexual’ (do not experience sexual attraction), or ‘aromantic’ (do not experience romantic attraction)
• Those who lack faith (including atheists, agnostics and apostates)
• People with alternative lifestyles; people with tattoos or piercings; people who support different football teams; people with particular political affiliations
• People of different nationalities, especially British, English, Irish, Scottish people
• Bald men; short people, and particularly short men; those who are overweight or anorexic; people with dwarfism; people who are disfigured; people who stutter
• People working in certain occupations (e.g. people working in the police or security jobs, and people in low earning jobs).

Views opposed to new statutory aggravations for new groups

9.24 Organisational respondents who answered ‘no’ at Question 19 generally stated that they agreed with Lord Bracadale’s reasons for not introducing new statutory aggravations for other groups. Specifically in relation to migrants, refugees and asylum seekers and Gypsy / Traveller / Roma people, this group agreed that existing legislation was sufficient.

9.25 Some organisations answering ‘no’ at Question 19 (faith groups in particular) were opposed in principle to extending hate crime legislation to cover new groups. These respondents echoed points made at earlier questions in arguing that:

• Legal certainty is needed: They suggested that there were challenges associated with the definitions of some protected characteristics, and that these challenges were likely to be even greater in relation to those groups discussed in the consultation paper. There were concerns that this could result in over-criminalising people engaged in discussion and debate.
• There should not be a hierarchy of rights: They thought that the introduction of statutory aggravations relating to other groups and characteristics would result in a hierarchy of rights, and that this would have the effect of disadvantaging and marginalising other groups.

9.26 Some organisations and individuals answering ‘no’ at Question 19 suggested that the Scottish Government could consider a more ‘generic approach’ to hostility and hate crime, rather than developing separate statutory aggravations defined by specific characteristics. However, others argued for the importance of continuing to have separate aggravations for individual protected characteristics, emphasising that this was necessary for reporting and statistics in order to obtain a clear picture of the impacts of hate crime on communities (see also Chapter 3). 

9.27 Other organisations (including some in the public sector) commented that extending the list of statutory aggravations to incorporate new characteristics would not, in itself, achieve the outcome of a Scotland free from hate. Nor would it lead to a reduction in hate crime or future offending unless accompanied by measures aimed at addressing underlying attitudes and behaviours. 

Other issues raised at Question 19

9.28 A recurring theme in the comments at Question 19 – both among individuals and organisations – was that the protected characteristic under the Equality Act 2010 was ‘sex’ not ‘gender’. Those who made this point were addressing the reference in the question to the possibility that a new statutory aggravation would be created to address hostility based on ‘gender’. This issue has already been discussed in Chapter 6 of this report and is not covered again here.

Religious or other beliefs held by an individual (Q20)

9.29 Question 20 invited views about whether the existing religious statutory aggravation should be extended to include religious or other beliefs held by an individual. The consultation paper noted that: (i) Lord Bracadale considered this to be unnecessary, and that (ii) the Scottish Government proposed to accept his recommendation.

9.30 Table 9.3 shows that, overall, a majority of respondents (61%) agreed with Lord Bracadale’s recommendation that the existing religious statutory aggravation should not be extended to include religious or other beliefs held by an individual. The remaining respondents were split between those who answered ‘yes’ and ‘unsure’ to this question (one-fifth of respondents in each case). Individual respondents were more likely than organisations to answer ‘no’ to this question (63% compared to 43%), whereas views among organisations were more mixed – apart from faith groups who were more likely than other organisations to answer ‘no’. Caution is required in interpreting these findings, given the small number of organisations responding. 

Table 9.3: Q20 – Do you think that the religious statutory aggravation in Scottish hate crime legislation should be extended to include religious or other beliefs held by an individual?

	Yes		No		Unsure		Total
Respondent type	n	%	n	%	n	%	n	%
Third sector organisations	10	40%	5	20%	10	40%	25	100%
Public sector / partnerships	2	10%	12	57%	7	33%	21	100%
Faith groups	–	0%	6	86%	1	14%	7	100%
Other organisations	4	57%	3	43%	–	0%	7	100%
Total organisations	16	27%	26	43%	18	30%	60	100%
Total individuals	88	19%	287	63%	78	17%	453	100%
Total (organisations and individuals)	104	20%	313	61%	96	19%	513	100%

Percentages may not total 100% due to rounding.

9.31 A total of 236 respondents (34 organisations and 202 individuals) commented at Question 20.

Views in favour of extending the existing religious aggravation

9.32 Respondents who supported extending the current religious aggravation to include religious and other beliefs held by individuals often stated explicitly that they disagreed with Lord Bracadale’s conclusions on this question.

9.33 This group frequently referred to the religiously motivated murder of Asad Shah in their arguments, but they also highlighted other circumstances in which, in their view, an extension of the existing religious aggravation could be applicable and would be desirable. This group included mainly third sector organisations, some public sector / partnership bodies, some individual respondents, and one faith group who answered ‘unsure’ to this question. The latter group was sympathetic to the idea of extending the religious aggravation to cover the religious or other beliefs of individuals, but they were concerned that the thresholds for hate crime aggravations should be based on ‘malice and ill will’ rather than ‘hostility’ (see Chapter 4).

9.34 The following reasons were given:

• Lord Bracadale’s conclusions are contrary to human rights legislation: Respondents argued that Lord Bracadale’s conclusion on this matter was flawed by his narrow interpretation of the protected characteristic of ‘religion’ as applying only to a ‘defined religious group’. These respondents pointed out that human rights legislation (Article 9 of the European Convention on Human Rights (ECHR)) as implemented in the Human Rights Act 1998) states that ‘everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching practice and observance’. This group argued that the law cannot legitimately be limited to a ‘religious group’ as this would make it incompatible with the Human Rights Act 1998. 
• Intra-religious hostility / malice is not uncommon: Respondents commented that in an increasingly diverse and multi-cultural society, there are often cases of malice and ill will between individuals of the same religious, ethnic or cultural group, with this being motivated by differences in religious views of these individuals.

9.35 These respondents called on the Scottish Government to amend hate crime legislation to comply with equalities and human rights legislation – and to recognise crimes motivated by hostility towards the manifestation of individual beliefs. They noted that the protection of ‘belief’ as well as ‘religion’ would address the gap in legislation highlighted by the case of Ahmed v HM Advocate (2016). They also argued that failing to extend the existing religious aggravation in this way sends out a message to society that some forms of belief will be protected and respected in Scotland, and others will not.

9.36 Some respondents (both organisations and individuals) referred to the comments made by Lord Bracadale regarding the extension of criminal law to cover religious intolerance towards humanists and atheists – i.e. that hate crime legislation should not apply to the beliefs of individuals, and that there was no evidence to suggest that such an extension was required in the case of humanists and atheists. Respondents who raised this issue commented that:

• Atheism, agnosticism and humanism are philosophical positions equivalent to faith, and those who hold these beliefs should be afforded the same protection under the law as individuals who are affiliated with a religious group.
• Several religions prescribe behaviours (which may include hostility or violence) towards ‘non-believers’ and how they should be treated.
• While there may be no official statistics, there is nevertheless a growing number of individuals in Scotland – apostates – who have faced significant harm (including harassment, persecution, coercion, threats and even violence) after leaving a religious group. Reports were cited of individuals being pursued by family or sect members who seek to damage the lives of those who leave religious communities. The point was made that these cases are not ‘rare occurrences’ but rather are quite prevalent.
• Both the Equality Act 2010 and the Human Rights Act 1998 define ‘religion’ to include ‘philosophical belief’ and those with no religion or religious belief. This would include humanism and atheism.

Views opposed to extending the current religious aggravation

9.37 Those who answered ‘no’ at Question 20 generally agreed with Lord Bracadale’s conclusions on this issue. Respondents in this group commented that:

• Individual religious beliefs are distinct from membership of an established religious group or belief system. By definition, hate crime should apply to crimes motivated by prejudice towards a particular group.
• There should be a consistent approach across all the protected characteristics.
• There is no compelling evidence of the need to extend the current religious aggravation to cover the beliefs of individuals, or hostility towards those with no belief. These arguments were mainly put forward by faith groups, some law and justice bodies, and some public sector / partnership bodies.

9.38 This group argued that crimes against individuals (and crimes motivated by hostility towards the belief of individuals) can be prosecuted through existing common law.

9.39 Some faith groups and some individual respondents also commented that the law should not prevent people from robustly criticising the beliefs held by individuals. There was a concern that extending the religious aggravation in this way could have an unintended ‘chilling effect’ on freedom of expression.