Consultation on amending Scottish hate crime legislation: analysis of responses

14. Repeal of Section 50A – Racially aggravated harassment (Q30 and Q31)

Part Five: Other issues

14.1 Hate crime laws in Scotland currently include standalone offences relating to racially aggravated harassment, as contained in Section 50A of the Criminal Law (Consolidation) (Scotland) Act 1995 (as amended). These offences were introduced via the Crime and Disorder Act 1998, which also introduced a statutory racial aggravation to Scots law. There are no equivalent standalone offences for other protected characteristics. The introduction of racially motivated offences predates that of other statutory aggravations, and was informed by concerns that the issue of racial harassment and racially motivated violence was not treated seriously enough at that time. However, Lord Bracadale’s review concluded that the introduction of subsequent legislation (i.e. Section 38 of the Criminal Justice and Licensing (Scotland) Act 2010), along with the option of using the statutory racial aggravation meant that Section 50A was no longer needed, and that repeal would offer the benefit of simplifying the law in this area. Lord Bracadale therefore recommended that Section 50A be repealed. 

14.2 The consultation asked two questions about the repeal of Section 50A as follows:

Question 30: Do you think that Section 50A of the Criminal Law (Consolidation) (Scotland) Act 1995 about racially aggravated harassment should be repealed? [Yes / No / No opinion]

Question 31: What do you think the impact of repealing Section 50A of the Criminal Law (Consolidation)(Scotland) Act 1995 about racially aggravated harassment could be?

Key points

• There was a mix of views about whether Section 50A should be repealed. A third of respondents (34%; 152 out of 453) said ‘yes’, and a quarter (25%; 114 out of 453) said ‘no’. However, organisations were more likely than individuals to say ‘yes’ – 50% (29 out of 58 respondents) compared to 31% (123 out of 395 respondents). 
• There were two main arguments for repeal: Some thought the offence was no longer needed, and that repeal would offer benefits in terms of consistency, simplification and improved statistical data, but also stressed the need for adequate replacement arrangements and for repeal to be appropriately communicated to the public. Others favoured repeal as part of a preference for a wider repeal of all hate crime legislation.
• Those who favoured retention of Section 50A said that the offence was well used, and that other options did not offer equivalent substitutes, and that its repeal would send out the wrong message. They also thought that the particular circumstances and enduring nature of racial prejudice meant that a specific standalone offence was merited. Some favoured retention as part of a wider preference for standalone offences (and the associated corroborative requirements) rather than aggravations.

• Those who favoured repeal thought this would have minimal impact (or even a potentially positive impact) because offences would continue to be prosecuted using other laws and aggravations. Those opposed to repeal were concerned about the impact on community relations and confidence in public agencies, and the impact on reporting and prosecution of hate crime incidents. Alternatively, some were concerned about a possible increase in the use of aggravations.

Repeal of Section 50A (Q30)

14.3 Table 14.1 below shows that there were mixed views among respondents about whether Section 50A should be repealed. A third of respondents (34%) said ‘yes’, and a quarter (25%) said ‘no’. However, while there were mixed views among both individuals and organisations, organisations were more likely than individuals to say ‘yes’ (50% compared to 31%). A relatively high proportion of respondents (two-fifths or 41%) said they had ‘no opinion’ on this question, with individuals particularly likely to say this (43% of individuals gave this answer compared to 28% of organisations).  

Table 14.1: Q30 – Do you think that Section 50A of the Criminal Law (Consolidation) (Scotland) Act 1995 about racially aggravated harassment should be repealed?

	Yes		No		No opinion		Total
Respondent type	n	%	n	%	n	%	n	%
Third sector organisations	8	31%	8	31%	10	38%	26	100%
Public sector / partnerships	15	75%	2	10%	3	15%	20	100%
Faith groups	4	67%	1	17%	1	17%	6	100%
Other organisations	2	33%	2	33%	2	33%	6	100%
Total organisations	29	50%	13	22%	16	28%	58	100%
Total individuals	123	31%	101	26%	171	43%	395	100%
Total (organisations and individuals)	152	34%	114	25%	187	41%	453	100%

One organisation answered 'unsure' in response to this question. This response is not included in the table above.

Percentages may not total 100 due to rounding.

14.4 Altogether, 149 respondents (48 organisations and 101 individuals) provided further comments at Question 30. The sections below present views for and against repeal. 

Views of those in favour of repeal of Section 50A 

14.5 There were two broad perspectives among those who supported repeal of Section 50A, as discussed below.

14.6 Organisational respondents (including third sector organisations, public sector bodies, faith groups, and law and justice bodies) and some individuals largely endorsed the reasons put forward by Lord Bracadale in his review report in support of repeal – that is:

• They agreed that this offence was no longer needed given its limited (and declining) usage and the availability of other appropriate legislative options.
• They thought that repeal would offer benefits in terms of (i) consistency in the treatment of different groups within hate crime laws, thus addressing the perception that there was a ‘hierarchy’ of victims within the law; (ii) simplifying the law, and providing clarity for the public (including affected groups), and those working within the criminal justice system and (iii) improved statistical data which, in turn, offered benefits in terms of monitoring trends in offending behaviour and developing informed policy. 

14.7 Respondents in this group thought repeal made sense within the context of the proposed consolidation and streamlining of hate crime laws in Scotland. 

14.8 In contrast to the view above, individuals who supported repeal often simply stated (or restated) their opposition to hate crime legislation or called for the repeal of Section 50A alongside the repeal of all other hate crime laws. Some in this group did, however, state a preference for aggravations rather than standalone offences if hate crime legislation were to continue to exist, and supported repeal of Section 50A on that basis. 

14.9 Respondents who agreed with repeal of Section 50A nevertheless offered a number of caveats and qualifications to their support for this course of action. These focused on the following:

• Communication: Most commonly, respondents acknowledged the risk that such a move might be perceived as sending out the ‘wrong message’ about the importance attached to combatting racism and racially motivated crime, and might have an impact on reporting and prosecution of such crimes. However, respondents generally thought that this could be addressed via an associated communication strategy and the provision of appropriate support to relevant communities. 
• Implementation: Respondents called for any replacement arrangements to (i) offer a high level of protection for all groups (‘levelling up’ rather than ‘levelling down’) and capture repeated low-level incidents, (ii) be clear (regarding wording, definitions, coverage etc.), and (iii) be accompanied by appropriate guidance.    

Views of those opposed to repeal of Section 50A

14.10 Respondents (organisations and individuals) put forward a number of different points in arguing for the retention Section 50A. It should be noted that third sector organisations, including those with a specific focus on BME or race-related issues, provided the fullest responses and their views are prominent in the discussion presented below. The main points raised by respondents were as follows:

• They were concerned that repeal would send out the wrong message to society as a whole and to BME communities in particular about the importance attached to addressing racism and racially motivated crime. 
• They argued that Section 50A was an essential, and well-used tool in combatting racism and racially motivated crime. They noted that race-related offences were the most common type of hate crime in Scotland, and that Section 50A accounted for a substantial proportion of race hate convictions (some respondents provided evidence on this point). 
• They disagreed that other options for prosecution (e.g. prosecution via Section 38 plus aggravation) provided an adequate substitute for Section 50A – respondents argued that Section 50A was broader in scope and its repeal would therefore leave a gap in the law.
• They thought that the particular circumstances related to racial prejudice (its long history and continuing incidence, its entrenched nature, its serious impact on the lives of individuals and communities) meant that a specific standalone offence was merited – faith groups also highlighted the ‘intrinsic’ nature of a person’s race as a reason for treating this protected characteristic differently from others.
• They argued that racism continued to be a significant issue, and that official statistics masked regional variations, and were also affected by under-reporting. 

14.11 The following additional views were also put forward: 

• Some organisations called for the retention of Section 50A, and for standalone offences to be extended to other groups (some respondents who favoured repeal occasionally also thought that there might be merit in considering retention if standalone offences were extended to all groups). This view was expressed by public sector, third sector and some ‘other’ organisational respondents. There was also a view that repeal would be particularly inappropriate if a standalone offence for misogyny were to be introduced (see Questions 7 to 10). 
• Some individuals said that the current law was straightforward and effective, and there was no reason for change.

Views of those who were unsure about repeal of Section 50A

14.12 As noted above, two-fifths of respondents said that they were unsure about the repeal of Section 50A. In many cases, those who were unsure made similar points to those for or against repeal. Typically, they acknowledged the potential benefits of repeal, but had concerns about (i) the message this would send out, and (ii) the impact this might have on offending and reporting rates, and sought reassurances on the arrangements that would be in place following repeal and how this change would be communicated. 

14.13 In other cases, organisational respondents said that they did not wish to offer a view on this issue and instead wanted to defer to those with expertise in this area, while individuals often said that they didn’t know enough about this issue to comment, or that the consultation had not provide sufficient information to allow them to form a view.

Impact of repeal of Section 50A (Q31)

14.14 Altogether, 197 respondents (41 organisations and 156 individuals) commented at Question 31 on the impact of the repeal of Section 50A. Views tended to be linked to support for or opposition to repeal (see paragraphs 14.5 to 14.11), as summarised below. 

14.15 Respondents who supported repeal of Section 50A generally thought that this move would have no impact or minimal impact, assuming that appropriate measures were put in place regarding communication and implementation (see paragraph 14.9). These respondents agreed that race hate crimes would continue to be prosecuted using other offences and aggravations. Some respondents said that the use of statutory aggravations attached to other offences could actually lead to an increase in prosecutions and convictions in the future because of the different corroborative requirements associated with the different legislative options, and identified this as a potentially positive impact. 

14.16 In the main, respondents opposed to repeal of Section 50A were concerned that repeal would harm community relations and undermine confidence in public agencies, and have a negative effect on the reporting of race hate incidents. Additionally, respondents were concerned that repeal of Section 50A would effectively decriminalise some behaviour (because of the narrower scope of alternative legislative options), and thus lead to a reduction in race hate prosecutions and convictions. However, there was an alternative view, expressed by some individuals, that repeal would lead to an increase in hate crime prosecutions because of the lower evidential requirements associated with aggravations – these respondents did not think this would be a desirable outcome.