Legal definition of sectarianism working group: final report

Executive Summary

Although the language of sectarianism is commonly used in day-to-day life, it has never been used or defined in Scots Law. This report is advisory and a first step in considering whether sectarianism should have a legal definition and, if so, what that definition could look like.

The Scottish Parliament's legislative competence is subject to important legal limitations. In terms of the civil law, the constitutional framework of the Scotland Act does not allow the Scottish Parliament to introduce a civil definition of sectarianism or discrimination, victimisation or harassment on a sectarian basis. Holyrood does not currently have the legislative competence to amend the Human Rights Act, the Equality Act, or to alter employment law.

However, the Scottish Parliament already enjoys a broad general competence to introduce and define the language of sectarianism in terms of the criminal law, subject to the European Convention on Human Rights, and we have recommended that the Scottish Government should introduce a legal definition of sectarian prejudice as part of the work they are currently taking forward to develop consolidated hate crime legislation. This would form an aggravation by sectarian prejudice alongside the existing aggravators based on religious and racial prejudice.

We believe that there are advantages to setting out the language of sectarianism explicitly in statute, rather than allowing sectarian offending to be subsumed into the broad general categories of religious and racial hatred. We also recognise the potential for creating a new offence of stirring up sectarian hatred, if adequate legal safeguards are introduced to protect free expression.

We recognise that there is need for a wide-ranging public debate on this issue and strongly recommend that the Scottish Government should take this opportunity to engage with all faith communities in Scotland, and all those with an interest in this issue, to gather the evidence which will ensure that the decisions of Scottish Ministers on the establishment of a legal definition of sectarianism are informed by the views of communities and those who have been targeted by sectarian prejudice.

In summary, the Working Group has reached the following conclusions:

• That the principle of ‘fair labelling’ should apply so that criminal acts of prejudice can be named for what they are whether that be anti-Catholicism; anti-Protestantism; sectarianism or any other descriptor. In this respect, the Working Group seeks to open up options which will allow the criminal justice system to fairly label sectarian crime rather than allowing it to fall through the cracks if it does not, for example, fit neatly into a descriptor such as religious or racial hatred.
• In taking forward the principle of fair labelling we recognise that the language of sectarianism is widely used in society even if it has not been previously defined in law. Therefore we have recommended that a legal definition of sectarianism is established to reflect the fact that such language is used in day-to-day life.
• We believe that sectarianism in Scotland should be specifically defined as an issue that exists between Christian communities in Scotland at this time. We do not believe that enough is understood about sectarianism in relation to other communities in Scotland to make the application of “sectarianism” to these communities meaningful in a legal or social sense.
• We do not believe that the legal concept of sectarianism is any more abstract than the legal concepts of religion or race which are already specified in law. Therefore, while recognising the complex nature of sectarianism, we do not believe that this is a sufficient reason not to establish a legal definition.
• Sectarianism is undoubtedly an intersectional issue, that is to say that it does not fall easily into a single categorisation, but has evolved over time to be present within the religious, racial, cultural and political spheres. Additionally, the original link to religion is often completely obscured as the language of sectarianism is applied in cultural areas where the links to religion are no longer obvious.
• We are very conscious of the conclusions of Lord Bracadale’s review of hate crime legislation in Scotland and his proposal to establish a comprehensive set of statutory aggravators relating to all of the protected characteristics covered by equality law. We believe that as part of this work a new intersectional statutory aggravation of ‘sectarian prejudice’, should be incorporated into future consolidated hate crime legislation.

As we have already noted, all of the above is advisory. As previous discussions have not led to a conclusion on the merit or otherwise of establishing a legal definition of sectarianism in Scots Law, we believe that, regardless of the final conclusion, it is healthy for Scotland to have that discussion and hope that our report provides a good starting point for that discussion to be built upon.

Working Group on Defining Sectarianism in Scots Law
August 2018