Consultation on amending Scottish hate crime legislation: analysis of responses

1. Introduction

1.1 The Scottish Government has undertaken a public consultation on proposals for new hate crime legislation. The consultation paper, One Scotland: Hate Has No Home Here, was published on 14 November 2018, with a closing date of 24 February 2019 for submission of responses to the consultation.^[2] This report presents findings from the analysis of the responses received.

Policy context

1.2 Hate crime is the term used to describe behaviour which is both criminal and rooted in prejudice (as defined by Lord Bracadale in his review of Scottish hate crime legislation – see paragraph 1.4). Current hate crime legislation allows any existing offence to be aggravated by prejudice in respect of one or more of the protected characteristics of race, religion, disability, sexual orientation and transgender identity. Prejudice or hostility also lies at the heart of some other offences which are recognised as hate crimes. These are sometimes referred to as standalone hate crime offences and they criminalise behaviour specifically because it is motivated by racial prejudice.

1.3 An Independent Advisory Group on Hate Crime, Prejudice and Community Cohesion was established in October 2015 to examine the impact of prejudice on victims and communities, and to suggest ways of tackling these issues more effectively. The findings and recommendations of the Independent Advisory Group were published in September 2016^[3] and included a recommendation for the Scottish Government to consider whether the existing criminal law provides sufficient protections for those who may be at risk of hate crime.

1.4 Following this, in January 2017, the Scottish Government appointed Lord Bracadale to carry out an independent review of Scottish hate crime legislation. The wide-ranging remit of the review was to ‘consider whether existing hate crime law represents the most effective approach for the justice system to deal with criminal conduct motivated by hatred, malice, ill-will or prejudice’. In particular, the review examined the appropriateness of the current mix of statutory aggravations, common law powers and specific hate crime offences; the scope of the existing laws; the need for new categories of hate crime; the scope for simplifying, rationalising or harmonising the current laws in this area; and how a new legislative framework might best address any identified issues. The review involved evidence gathering and a public consultation exercise. Its findings and recommendations were published in May 2018.^[4]

1.5 In addition, the Working Group on Defining Sectarianism in Scots Law published its report in November 2018.^[5] This group was established following a recommendation made by the Scottish Parliament’s Justice Committee. During their Stage 1 considerations of the Offensive Behaviour at Football and Threatening Communications (Repeal) (Scotland) Bill, the Justice Committee heard evidence from a number of sources which suggested that the lack of a legal definition of the term ‘sectarianism’ was a hindrance to police and prosecutors in pursuing cases of abusive sectarian behaviour. The Working Group considered whether this could be achieved; the technical obstacles to achieving it; and what a legal definition could look like. The Group also recommended the development of a statutory aggravation for sectarian hate crime. 

1.6 Following Lord Bracadale’s review, the Scottish Government committed to consolidating and modernising hate crime legislation in Scotland. Amongst other things, this included giving consideration to whether the scope of Scotland’s hate crime laws should be extended to cover additional groups, and whether sectarianism should also be included, as recommended by the Working Group on Defining Sectarianism in Scots Law (see paragraph 1.5 above).

The consultation

1.7 The consultation paper published by the Scottish Government, One Scotland: Hate has No Home Here, sought views on what should be included in new hate crime legislation in Scotland. 

1.8 The consultation contained 35 questions – 29 two-part questions, each comprising a closed (tick-box) question and an open question inviting respondents to explain their answer, and 6 open questions. The questions addressed the following broad topics: 

• Consolidating and modernising hate crime legislation (Q1 to Q6) 
• New statutory aggravations (Q7 to Q22)
• New stirring up of hatred offences (Q23 to Q27)
• Exploitation and vulnerability (Q28 and Q29) 
• Other issues (Q30 to Q35). 

1.9 The consultation paper and the accompanying online consultation questionnaire could be accessed on the Scottish Government consultation hub. An easy read version and a British Sign Language video presentation were also produced to increase the accessibility of the consultation.

1.10 Activities to promote the consultation included a launch event attended by the Cabinet Secretary for Justice, the Cabinet Secretary for Communities and Local Government and the Lord Advocate which was covered by the media. A news release and Parliamentary Question were also used to highlight the consultation launch. In addition, eleven consultation events were held across the country. These events were designed to give individuals and organisations an opportunity to find out more about the consultation and discuss the key recommendations and proposals. See Annex 1 for further details of the consultation events. The consultation team also developed a facilitator pack to enable stakeholders to run their own events prior to responding to the consultation. 

About the analysis

1.11 This report presents findings of an analysis of the responses to the consultation. 

1.12 Frequency analysis was undertaken in relation to all the closed (tick-box) questions in the consultation questionnaire and the findings are shown in tables throughout this report. (As noted above, six questions did not have an initial closed question, and so there are no tables for Questions 6, 16, 17, 29, 31 and 35.) 

1.13 Qualitative analysis has also been carried out in relation to the comments submitted in response to each question. The aim of the qualitative analysis was to identify main themes and the full range of views submitted in response to each question or group of questions, and areas of agreement and disagreement in views between different groups of respondents. Views expressed at consultation events and comments made in response to the easy read consultation paper are included in the qualitative analysis at relevant questions.^[6] 

1.14 Not all respondents answered all questions, and some made comments in relation to a question without ticking a response at the relevant closed question. However, if a respondent’s reply to the tick-box question was clearly stated in their written comments, the response to the tick-box question was imputed. The tables throughout this report include these imputed responses.

1.15 In interpreting the quantitative findings, the relatively small number of organisational responses and the relatively high proportion of ‘unsure’ responses reported in the tables at certain questions should be noted. 

1.16 As with all consultations, the views submitted and presented in this report are not necessarily representative of the views of the wider public. Anyone can submit their views to a consultation, and individuals (and organisations) who have a keen interest in a topic – and the time, ability and capacity to respond – are more likely to participate in a consultation than those who do not. This self-selection means that the views of consultation participants cannot be generalised to the wider population. For this reason, the main focus in analysing consultation responses is not to identify how many or what proportion of respondents held particular views, but rather to understand the range of views expressed.

The report

1.17 The remainder of this report is structured as follows:

• Chapter 2 presents information on the respondents to the consultation and the responses submitted. 
• Chapters 3 to 17 present the results of the analysis of the responses to each of the consultation questions.
• Chapter 17 provides a brief summary of other comments to the consultation. 

1.18 Annexes to the report are included as follows: 

• Annex 1 presents information on the consultation events organised by the Scottish Government.
• Annex 2 presents a list of organisational respondents. 
• Annex 3 presents the response rates for individual questions.