Consultation on amending Scottish hate crime legislation: analysis of responses

8. Sectarianism (Q12–Q17)

8.1 This chapter discusses the question of whether sectarianism should be included in new hate crime legislation and, if so, how sectarianism should be defined, as covered in Section 5 of the consultation paper.

8.2 In March 2018, the Scottish Parliament voted to repeal the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 (hereafter referred to as the 2012 Act). Shortly before this, in January 2018, the Scottish Parliament’s Justice Committee recommended that ‘the Scottish Government gives consideration to introducing a definition of sectarianism in Scot’s Law, which – whether or not the 2012 Act is repealed – would help any future parliaments and governments in taking forward laws to tackle sectarianism’. This led to the establishment of the Working Group on Defining Sectarianism in Scots Law (referred to hereafter as ‘the Working Group’), whose remit was to consider the pros and cons of establishing a legal definition of ‘sectarianism’ in Scots Law. The key aim of the Working Group was to provide a basis for further discussion of this issue (through the current consultation) rather than offer a definitive conclusion. Members of the public and stakeholder groups were therefore given the opportunity to offer their views on any definition of sectarianism in this section (Questions 12 to 17). 

8.3 Meanwhile, Lord Bracadale’s report on the independent review of hate crime legislation was published in May 2018. This recommended that there should be no statutory replacement for Section 1 of the 2012 Act (concerning offensive or threatening behaviour at football matches). He also recommended that the conclusions of the Working Group should inform how best to deal with offences of a sectarian nature – and whether such offences should be classed as a form of hate crime or treated as something distinct.^[9]

8.4 The Working Group published its report in November 2018.^[10] This recommended that sectarianism should be defined in law and that the definition should reflect the common understanding of sectarianism in modern Scotland. Specifically, the Working Group proposed that sectarianism should be defined as:

‘Hostility based on perceived (a) Roman Catholic or Protestant denominational affiliation, (b) British or Irish citizenship, nationality or national origins, or (c) a combination of (a) and (b).’

8.5 Furthermore, the Working Group recommended that a new statutory aggravation of ‘sectarian prejudice’ should be incorporated into future consolidated hate crime legislation.

8.6 The current consultation invited views on the Working Group’s recommendations, specifically: (i) whether there was a need for sectarianism to be addressed and defined in hate crime legislation (Question 12) and (ii) if so, whether this should be done through a statutory aggravation or a standalone offence (Question 13 and 14). The consultation also invited views on (iii) the Working Group’s proposed definition of sectarianism (Question 15 and 16), and (iv) any other steps that could be taken to address sectarianism in Scotland (Question 17). 

Question 12: Do you think there is a need for sectarianism to be specifically addressed and defined in hate crime legislation? [Yes / No / Unsure]

Question 13: If your response to question 12 was yes, do you think a statutory aggravation relating to sectarianism should be created and added to Scottish hate crime legislation? [Yes / No / Unsure]

Question 14: If yes to question 12, do you think a standalone offence relating to sectarianism should be created and added to Scottish hate crime legislation? [Yes / No / Unsure]

Question 15: If your response to question 12 was yes, do you agree with the Working Group that sectarianism should be defined in Scots Law in terms of hostility based on perceived Roman Catholic or Protestant denominational affiliation of the victim and / or perceived British or Irish citizenship, nationality or national origins of the victim? [Yes / No / Unsure]

Question 16: If you disagree with the Working Group’s proposed definition of sectarianism, what do you believe should be included in a legal definition of sectarianism? (Please give your reason for this.)

Question 17: The Scottish Government recognises that legislation on its own will not end sectarianism. What else do you feel could be done to address sectarianism?

Key points

• A majority of respondents (59%; 311 out of 527 respondents) did not think there was a need to address and define sectarianism in hate crime legislation, i.e. they said ‘no’ at Question 12, while 26% (139 out of 527 respondents) said ‘yes’, and 15% (77 out of 527 respondents) said ‘unsure’. Organisations had more mixed views on this issue.
• Those who said ‘yes’ thought that sectarianism was a serious issue that needed to be addressed. This group argued that current hate crime laws, which specify race and religion as protected characteristics, did not adequately cover sectarianism.
• Those who said ‘no’ (or ‘unsure’) argued that sectarianism was adequately addressed in existing legislation. Some expressed a more general concern about criminalising sectarian behaviour on the basis that it would potentially restrict freedom of expression.
• Among those who supported addressing and defining sectarianism in hate crime legislation, there was greater support for the creation of a statutory aggravation – for reasons of clarity and consistency – than for a standalone offence.
• Among those who supported addressing and defining sectarianism in hate crime laws, 64% (87 out of 135 respondents) indicated agreement with the Working Group’s proposed definition of sectarianism. However, less than half of organisations (46%; 6 out of 13 respondents) agreed with the definition. Those who disagreed with the definition thought it was too restrictive. This group suggested that the definition should (i) reflect both current and potential future expressions of sectarian prejudice in Scotland, (ii) take account of the multi-cultural nature of modern Scotland, and (iii) be consistent with international law and standards.
• In terms of non-legislative approaches to addressing sectarianism, respondents thought that education and community engagement were key.

The option of defining sectarianism in hate crime legislation (Q12)

8.7 Table 8.1 shows that, overall, a majority of respondents (59%) did not agree that there was a need for sectarianism to be specifically addressed and defined in Scottish hate crime legislation – i.e. they said ‘no’ at Question 12. A quarter of respondents said ‘yes’ (26%), and 15% were unsure. Organisations were more divided in their views on this question than individuals, and also more likely to express uncertainty. Individuals were more likely to disagree that there was a need for sectarianism to be specifically addressed and defined – 61% of individuals answered ‘no’. 

Table 8.1: Q12 – Do you think there is a need for sectarianism to be specifically addressed and defined in hate crime legislation?

	Yes		No		Unsure		Total
Respondent type	n	%	n	%	n	%	n	%
Third sector organisations	7	26%	8	30%	12	44%	27	100%
Public sector / partnerships	3	14%	12	55%	7	32%	22	100%
Faith groups	2	29%	5	71%	–	0%	7	100%
Other organisations	2	29%	4	57%	1	14%	7	100%
Total organisations	14	22%	29	46%	20	32%	63	100%
Total individuals	125	27%	282	61%	57	12%	464	100%
Total (organisations and individuals)	139	26%	311	59%	77	15%	527	100%

Percentages may not total 100 due to rounding.

8.8 Altogether, 243 respondents (47 organisations and 196 individuals) commented at Question 12. Their reasons for agreeing or disagreeing that sectarianism should be addressed and defined in hate crime legislation are discussed below. Respondents who answered ‘unsure’ at Question 12 generally made similar points to those who answered ‘no’.

Views in favour of addressing and defining sectarianism

8.9 Respondents who answered ‘yes’ to Question 12 repeatedly stated that sectarianism is a serious issue that requires to be both recognised and specifically addressed. This view was especially common among third sector organisations and individuals. Some individuals reported having witnessed, or personally experienced, sectarianism, and the issue was seen to be particularly prevalent in the west of Scotland. Some individuals described sectarianism as ‘Scotland’s shame’. 

8.10 In general, respondents who answered ‘yes’ to Question 12 thought that current hate crime legislation, which includes aggravations based on race and religion, did not adequately address the issue of sectarianism. However, occasionally, respondents in this group (including faith groups) suggested that there may be only a limited number of sectarian-related offences which would not be covered by existing legislation.

8.11 Respondents in favour of creating a criminal offence relating to sectarianism saw several benefits from doing so. They thought that (i) it would help in cases where the victim’s characteristics do not enable prosecution of perpetrators under existing criteria for hate crimes linked to race or religion, (ii) it would provide an extra tool in responding to the problem of sectarianism, and (iii) it would provide a deterrent to sectarian behaviour.

8.12 Among respondents who supported addressing sectarianism in legislation, a less common view was that sectarianism was especially problematic in the context of football. This view was mainly expressed by individuals, who also pointed to football-related sectarianism in public transport settings. These respondents thought that the Scottish Football Association (SFA) was not doing enough to tackle sectarianism among football fans. However, there was disagreement among this group about the repeal of the 2012 Act: some expressed disappointment that this legislation had been got ‘rid of’; others thought it was ‘rightly repealed’. 

Views opposed to addressing and defining sectarianism

8.13 In contrast to the views of those who answered ‘yes’ to Question 12, those who answered ‘no’ did not see sectarianism as distinct from offences motivated by race and religion. Thus, the main view among this group was that there was adequate provision in current legislation and that it was unnecessary to address and define sectarianism separately within hate crime legislation. It was noted that the existing model of statutory aggravations allowed for the application of multiple aggravations to a single charge, thus allowing the ‘intersectional aspects’ of sectarian offences to be recognised.

8.14 Some respondents who answered ‘no’ to Question 12 expressed a more general opposition to the idea of criminalising sectarianism. This group saw sectarian behaviour (e.g. chanting, singing offensive songs, waving banners, etc.) primarily as an issue of freedom of expression (some said freedom of religion). They noted that while such behaviour may be offensive to some people, it should not be criminalised unless it encourages violence or results in violence. Some who raised this point suggested that criminalising offensive speech would simply have the effect of pushing offensive ideologies ‘underground and making them more dangerous’. These respondents argued that it would be better to have such views aired in public where they can be debated openly.

8.15 Less often, respondents gave other reasons for opposing the creation of a criminal offence of ‘sectarianism’. For example, some respondents (both organisations and individuals) thought that such a move would create further divisions in communities, rather than bringing them together. There was a related view expressed by faith groups that it would undermine efforts being made to develop positive ecumenical relations between Christian denominations in Scotland. This group suggested that the focus in the proposed definition of sectarianism on ‘anti-Catholic’, ‘anti-Protestant’, ‘anti-Irish’ or ‘anti-British’ bigotry assumes that the perpetrators are from another Christian denomination or of Irish / British ethnicity – and this may not necessarily be the case in modern-day Scotland.

Defining sectarianism

8.16 Irrespective of whether respondents were in favour of or opposed to addressing sectarianism in hate crime legislation, they often commented on the potential difficulties of adequately defining sectarianism in law. Those who raised this issue suggested that there was no agreement among stakeholders about what constitutes sectarianism; they also thought that there had been insufficient consultation with stakeholder communities on how to define it. Further detailed views on the definition of sectarianism are discussed below in relation to Questions 15 and 16. 

Other points

8.17 Occasionally, respondents raised other relevant points, including that:

• Any efforts to tackle sectarianism through legislation should be evidence-based. One organisational respondent also specifically suggested that further research should be carried out to assess the impact of repealing the 2012 Act.
• The legal sanctions for sectarian offences should ensure that the perpetrator is punished appropriately.

Statutory aggravation or standalone offence for sectarianism (Q13 and Q14)

8.18 The consultation included several follow-up questions targeted at those respondents who indicated support (in Question 12) for sectarianism to be addressed and defined in hate crime legislation. The first two of these follow-up questions (Question 13 and Question 14) invited views about whether (i) a statutory aggravation or (ii) a standalone offence relating to sectarianism should be created.

8.19 Table 8.2 below shows that 90% of the 136 respondents replying to Question 13 thought that a statutory aggravation should be created relating to sectarianism. This pattern of response was the same among organisations and individuals.

Table 8.2: Q13 – If your response to question 12 was yes, do you think a statutory aggravation relating to sectarianism should be created and added to Scottish hate crime legislation?

	Yes		No		Unsure		Total
Respondent type	n	%	n	%	n	%	n	%
Third sector organisations	6	86%	–	0%	1	14%	7	100%
Public sector / partnerships	3	100%	–	0%	–	0%	3	100%
Faith groups	2	100%	–	0%	–	0%	2	100%
Other organisations	1	100%	–	0%	–	0%	2	100%
Total organisations	13	93%	–	0%	1	7%	14	100%
Total individuals	110	90%	4	3%	8	7%	122	100%
Total (organisations and individuals)	123	90%	4	3%	9	7%	136	100%

Table includes only those respondents who answered ‘yes’ at Question 12.

Percentages may not total 100 due to rounding.

8.20 Table 8.3 below shows that, overall, two-thirds of respondents (66%; 87 out of 132 respondents) thought that a standalone offence relating to sectarianism should be introduced. However, there was a difference in the views of organisations and individuals, with a slight majority of organisations – seven out of twelve – answering ‘no’ to this question. Caution should be exercised in interpreting these findings, given the small number of organisational responses to this question.

Table 8.3: Q14 – If your response to question 12 was yes, do you think a standalone offence relating to sectarianism should be created and added to Scottish hate crime legislation?

	Yes		No		Unsure		Total
Respondent type	n	%	n	%	n	%	n	%
Third sector organisations	3	60%	1	20%	1	20%	5	100%
Public sector / partnerships	–	0%	3	100%	–	0%	3	100%
Faith groups	–	0%	2	100%	–	0%	2	100%
Other organisations	1	50%	1	50%	–	0%	2	100%
Total organisations	4	33%	7	58%	1	8%	12	100%
Total individuals	83	69%	21	18%	16	13%	120	100%
Total (organisations and individuals)	87	66%	28	21%	17	13%	132	100%

Table includes only those respondents who answered ‘yes’ at Question 12.

Percentages may not total 100 due to rounding.

8.21 Note that around two-thirds of respondents (4 organisations and 80 individuals) answered ‘yes’ to both Question 13 and 14. This may indicate some confusion among respondents about the distinction between a statutory aggravation and a standalone offence; alternatively, respondents may have wished to see both options introduced.

8.22 Altogether, 61 respondents (11 organisations and 50 individuals) commented at Question 13, and 52 respondents (7 organisations and 45 individuals) commented at Question 14. The views expressed are presented below.

Views in favour of a statutory aggravation relating to sectarianism

8.23 Organisations in favour of the creation of a statutory aggravation relating to sectarianism argued that it would (i) achieve clarity and a consistency of approach if sectarian hate crimes were prosecuted in a similar manner to other hate offences, and (ii) enable an increase in the sanction (at sentencing) which could be applied to the offence. Some in this group noted that the Working Group had recommended the creation of a statutory aggravation for sectarian offences.

8.24 Individuals were less likely than organisations to directly address the question in their comments; rather, they reiterated their views that legislation was needed to tackle the ‘shame’ of sectarianism in Scotland. Occasionally, individuals suggested that making sectarianism a statutory aggravation was an important step in eradicating this behaviour. 

Views in favour of a standalone offence relating to sectarianism

8.25 Those (mostly individuals) who were in favour of creating a standalone offence relating to sectarianism did not generally provide specific reasons for their view. Among those who did, it was suggested that a standalone offence would demonstrate a greater determination to eradicate this form of hate crime and would also provide greater deterrence (than a statutory aggravation). Respondents reiterated their views that existing legislation seemed to be inadequate to deal with this issue.

The Working Group definition of sectarianism (Q15 and Q16)

8.26 Respondents who answered ‘yes’ at Question 12 (indicating support for addressing and defining sectarianism in Scottish hate crime legislation) were asked two further follow-up questions. The first (Question 15) asked if they agreed with the definition proposed by the Working Group. The second question (Question 16) invited views from those who answered ‘no’ to Question 15 about what should be included in a legal definition of sectarianism. The latter was an open question with no initial tick-box.

8.27 Table 8.4 shows that, overall, 64% of respondents agreed (representing 87 out of 135 respondents who answered this question), 21% (29 respondents) disagreed, and 14% (19 respondents) were unsure about the Working Group’s definition of sectarianism. However, less than half of organisations (6 out of 13 respondents) agreed with the definition. All three of the public sector organisations responding to this question agreed with the Working Group’s proposed definition; however, there were mixed views among other organisational respondents. Caution should be used in interpreting the findings related to this question because of the small number of organisational respondents.

Table 8.4: Q15 – If your response to question 12 was yes, do you agree with the Working Group that sectarianism should be defined in Scots Law in terms of hostility based on perceived Roman Catholic or Protestant denominational affiliation of the victim and / or perceived British or Irish citizenship, nationality or national origins of the victim?

	Yes		No		Unsure		Total
Respondent type	n	%	n	%	n	%	n	%
Third sector organisations	2	33%	2	33%	2	33%	6	100%
Public sector / partnerships	3	100%	–	0%	–	0%	3	100%
Faith groups	1	50%	1	50%	–	0%	2	100%
Other organisations	–	0%	1	50%	1	50%	2	100%
Total organisations	6	46%	4	31%	3	23%	13	100%
Total individuals	81	66%	25	20%	16	13%	122	100%
Total (organisations and individuals)	87	64%	29	21%	19	14%	135	100%

Table includes only those respondents who answered ‘yes’ at Question 12.

Percentages may not total 100 due to rounding.

8.28 Altogether, 124 respondents (20 organisations and 104 individuals) commented at Question 15, and 202 respondents (26 organisations and 176 individuals) commented at Question 16.

Agreement with the Working Group’s proposed definition

8.29 In general, respondents who agreed with the Working Group’s proposed definition had little further comment to make. These respondents simply endorsed aspects of the definition (e.g. ‘it is the perception that is the issue’), or they expressed the view that the definition was ‘comprehensive’ and ‘unambiguous’.

8.30 Occasionally, respondents went on to suggest that any legislative definition of sectarianism should introduce controls on ‘Orange Walks’ (which were described as ‘hate marches’) and address sectarianism in football.

8.31 Some in this group suggested that the definition of sectarianism may need to be more ‘sophisticated’; these respondents made similar comments to those who disagreed with, or were unsure about, the Working Group’s proposed definition. (See, in particular, paragraphs 8.32 to 8.34 below.)

Disagreement with the Working Group’s proposed definition

8.32 Similar views were expressed by those who disagreed with or were unsure about the Working Group’s proposed definition. Among these respondents, the most common point made was that the proposed definition was too narrow and restrictive.

8.33 This group argued that the definition should not be limited to Christian denominations, since sectarian behaviour is also evident in other, non-Christian, religions. The definition should, therefore, incorporate all forms of sectarianism which exist in Scotland as a modern and multi-cultural society, and not simply relate to the form of sectarianism which has the longest history in Scottish society.   

8.34 Less often, respondents expressed a variety of other views about the Working Group’s proposed definition including, for example:

• Sectarianism is about more than religion and national origin; it also involves political stances and views and cultural distinctions.
• ‘Protestant denominational affiliation’ is less of a factor than ‘Orangeism’ – which, respondents suggested, espouses a certain kind of cultural and religious ideology.
• The use of songs to incite violence, and to glorify and celebrate the loss of life and terrorist activity should be recognised within the definition.
• The definition should refer to ‘malice and ill will’, rather than ‘hostility’ to avoid criminalising people who are ‘unfriendly’ or who express opposition to other views.
• The law cannot be based on ‘perceptions’ (i.e. that the perpetrator was motivated by a ‘vague’ notion of ‘hatred’), but on objective ‘facts’ only (i.e. a physical assault or violent behaviour).

8.35 Some within this group pointed out that ‘sectarianism’ would be classed as ‘xenophobia’ if it were targeted at people from other countries (apart from Ireland / Britain). There was a recurring view among these respondents that crimes committed against an individual based on their (perceived) citizenship, nationality or national origins should be considered as racism rather than sectarianism. There was some concern that the inclusion of perceived nationality or national origin in any definition of sectarianism would result in confusion in terms of prosecution of both racism and sectarianism.

Alternative definitions proposed by respondents

8.36 The main point made by respondents was that the definition of sectarianism should reflect both current and potential future expressions of sectarian prejudice in Scotland. Whilst it was recognised that the Working Group’s definition reflected the most commonly understood notion of sectarian hostility in Scotland, respondents also thought that any new legislation to tackle sectarianism should take into account the multi-cultural nature of modern Scotland and be consistent with international law and standards. Respondents suggested that this would help to future-proof the legislation.

8.37 Very occasionally, respondents offered suggestions about what a legal definition of sectarianism should include. For example, it was suggested that all reference to specific institutions (i.e. denominations, churches) and nations should be removed, and that the definition could be made more general by referring to ‘cultural affiliation’.

8.38 Two respondents offered specific suggestions of alternative definitions. These are quoted verbatim here:

‘Hostility towards: (i) any perceived religious faith, observance, denominational affiliation or sympathy; and / or (ii) perceived citizenship, nationality, national origins or national affiliations often regarded as being connected to a religious belief or affiliation (“perceived connection”).’ (Other organisational respondent)

8.39 The organisation proposing this definition went on to discuss possible legal tests of proof relating to this definition.

8.40 One faith group set out the Church of Scotland’s definition of sectarianism, as follows:

‘A complex set of attitudes, actions, beliefs and structures at personal, communal and institutional levels, which involves religion and typically involves a negative mixing of religion and politics. It arises as a distorted expression of human needs, especially for belonging, identity and the freedom of expression of difference, and is expressed in destructive patterns of relating.’ (cited from Joseph Leichty of the Irish School of Ecumenics). (Faith group)

8.41 Finally, there was also a call for any proposed new definition of sectarianism to be ‘fully worked through with Police Scotland’ and other criminal justice partners before implementation.

Other actions to address sectarianism (Q17)

8.42 The section on sectarianism concluded with an open question (Question 17) inviting views about what else (apart from legislation) could be done to address sectarianism.

8.43 Altogether, 367 respondents (48 organisations and 319 individuals) commented at Question 17. The two main themes in the responses to this question related to (i) education and (ii) community engagement.

8.44 With regards to education, respondents did not always specify who they thought this should be directed to. However, some suggested that educational initiatives should focus on (i) young people via schools or youth groups, (ii) parents and families, (iii) workplaces, and (iv) frontline practitioners in health and social care services. Others highlighted the importance of public education and awareness-raising campaigns in fostering positive community relations.

8.45 Some respondents commented on the content of educational programmes and suggested that this should (i) include information about a range of faiths as well as atheism (although some also called for religious education to be removed from schools entirely), (ii) promote an understanding of what sectarianism is and how it affects individuals and communities, and (iii) deliver improved human rights education, emphasising the right of all people to be treated with dignity and respect. Some public sector respondents suggested that funding was needed for teaching resources and staffing to address the issue of sectarianism in classrooms. 

8.46 Also related to the theme of education, there were a range of views expressed about whether denominational / faith-based schooling was responsible (or not) for the perpetuation of sectarianism. Some respondents argued that faith-based schooling should be abolished, or, at the very least, should not be state funded. This view was expressed by some faith groups, as well as third sector and ‘other’ organisations, and was also prominent among individual respondents. Others argued that if faith schools were to continue, these should be more inclusive and represent a broader range of faiths. However, a third group saw the issue of sectarianism as not primarily an issue of faith-based schooling.

8.47 With regards to the issue of community engagement, respondents saw communities as having a key role in addressing the issue of hate crime. Faith groups, youth clubs, third sector agencies, football clubs and other sporting organisations, businesses and workplaces and ‘civil society’ in general were all identified as having a part to play. Some respondents called for support for ‘community-led, community-based projects’ to be directed at promoting the integration of those from differing backgrounds. Occasionally respondents (particularly those in the third sector) referred to community initiatives that they were aware of, and which they considered to be successful – for example, Give Racism the Red Card, a church-led anti-sectarianism project in Kilmarnock, and a short film entitled Judge for Yourself made by residents of a community in Glasgow were mentioned. Restorative justice programmes – particularly those involving community-led mediation processes – were also advocated. (Note, however, there was also a view that restorative justice measures may not always result in the outcomes desired.)

8.48 It was also relatively common for respondents to say that the Scottish Government, local authorities, and the police all had a role to play and that political leaders (MPs, MSPs, councillors) should set a positive example in their conduct and use of language.

8.49 Also related to the theme of engagement, some individuals expressed the view that an evidence-based approach should be taken to policy development. This would involve, for example, making use of stakeholder advisory groups or working groups and evaluating the effectiveness of diversity training. 

8.50 A range of other suggestions were offered, mainly by individual respondents about other ways of addressing sectarianism. The most common of these was a suggestion to ban, or reduce, the number of ‘parades’ (Orange Order marches, etc.). Other suggestions, made less often, included (i) abolishing all churches / religion; (ii) developing a more punitive response within football to hate crime offences within the context of football (banning fans, and allowing clubs to apply for banning orders); and (iii) addressing wider societal issues such as poverty, unemployment, and racism which can be linked to a range of social problems including sectarianism.

8.51 Finally, some (mainly individual) respondents suggested that there was no need to do anything in relation to this issue. There were three perspectives among this group: (i) that no intervention would be effective; (ii) that the situation is already improving; and (iii) that the problem is not serious enough to warrant any action.