Legal definition of sectarianism working group: final report

Section 3: Scope of the definition

Sectarianism in Scotland

Historically, sectarianism has been used in Scottish society to describe discord and tensions relating to internal divisions between Christian denominations. The roots of this complexity lie in the political, economic and religious history of Scotland after the Reformation (when anti-Catholicism was integral to many aspects of public life), the impact of, and reaction to, large scale Irish immigration to Scotland in the 19^th and 20^th Centuries, and the history of opposition to/support for British sovereignty in Ireland and then later Northern Ireland.

These divisions, with their religious, economic, national, cultural and political associations, spawned identity around what are sometimes called ‘cultural signifiers’ in many parts of Scotland, and were exploited in a variety of ways in social, political and economic life. These identity markers extended beyond the religious and into associated cultural expression.

In an age where identity politics appears to be on the rise again, these cultural signifiers have, to a large degree, supplanted Church affiliation as a means of identifying belonging, or perceived belonging, to one group or another. For example, affiliation to particular sports or sporting teams; vociferous support for a united Ireland or the United Kingdom of Great Britain and Northern Ireland; celebrations and commemorations around cultural events like St Patrick’s Day (17^th March) or the Battle of the Boyne (12^th July); the simple colours that are worn by individuals (such as green and orange); the flags and emblems of nation, community or group; and musical heritage can all be played out at community and family gatherings across Scotland.

The Working Group was very clear that belonging to and embracing these cultural signifiers is not in and of itself evidence of sectarian sentiment towards others. Additionally, we need to be watchful that our own assertion of our rights to expression of our culture does not descend into dogmatic intolerance which allows us to claim protection for our own views while using that protection as a tool to silence others. For example, those who do not support issues like same sex marriage or abortion have a right to express those opinions, but those who do support the right to same-sex marriage or abortion also have a right to be critical of beliefs which oppose them.

Claiming a cultural basis for holding such a view does not exempt you from criticism or mean that the critic is being bigoted simply for taking a stance in opposition to your view. However, sectarianism becomes, and has become, a reality when antagonism, hostility, abuse or violence is directed at people because they are perceived to belong to the “other” group, or when perceived identity with a group is used to ‘give permission to’ or justify violent and/or discriminatory behaviour which would otherwise be condemned.

Restricting the definition of sectarianism to Christian denominations – or extending it to include all faiths?

Scotland is an increasingly multi-faith and multicultural country with adherents to faiths and beliefs such as Hinduism, Buddhism and Sikhism all forming small, important and visible communities. Furthermore, religious and racial prejudice is a real issue that is not confined to any single religion or group. For example, often higher profile acts of anti-Semitism and Islamophobia – with associated political and cultural signifiers – exist alongside much lower profile evidence of hate-based incidents and discrimination against people from minority backgrounds. All of these may also have an intersectional quality based on perceptions around both religion and race.

The level of sectarianism that exist outside of Christian communities in Scotland is not quantitatively clear. Anecdotally, we are aware that there may be tensions between different sections of the Jewish communities in Scotland, possibly between the more orthodox and liberal elements, but it is very unclear whether this could be described as sectarian. It is also plausible that within Muslim communities in Scotland there could be tensions between Sunni and Shia sects which reflect the tensions that exist between these communities in other parts of the world, but it was unclear to the Working Group how such tensions may play out in communities on a day-to-day basis. However, there is no escaping the fact that international affairs will have an impact on relationships between people of different faiths, and those of no faith, in Scotland to a greater or lesser degree It would be naive to believe that we are immune from what happens beyond our national borders.

The Working Group noted that Lord Bracadale delivered his ‘Independent Review
of Hate Crime Legislation in Scotland: Final Report’ in May 2018^[4] while we were taking forward our work. Without a more robust evidence base, the group considers that hostility towards people of non-Christian faiths is best covered by the recommendations in Lord Bracadale’s report and can be addressed through ensuring that racial and/or religious aggravations can continue to be added to offence.

The Working Group therefore recommends that, until further evidence becomes available, any legal definition of sectarianism should be limited to sectarianism rooted in religious hostilities and rivalries within Christianity. However, the Working Group also recognises that the consultation which will follow the publication of this report provides an opportunity to engage with all faith communities in Scotland to seek their views on the benefits of extending any legal definition of sectarianism to include them and we recommend that the Scottish Government should take this opportunity to do so. We also recommend that the Scottish Government should consider commissioning research to identify the extent to which sectarianism is a problem within non-Christian religious communities in Scotland.

Sectarianism and its relation to other discrimination such as anti-Catholicism and anti-Irish Racism.

Sectarianism has evolved in Scotland to become a widely used term used in everyday speech to describe a family of related but different experiences which conform to a wider pattern of hostility and exclusion which bring together elements of religious and racial division in a specific, almost normalised, manner. Some of the representations to the Working Group have suggested that the term ‘sectarianism’ is misleading and that it is important not to allow the term to obscure its more specific underlying roots in religious discrimination, such as anti-Catholicism or anti-Protestantism, or in racism, such as anti-Irish or anti-British racism.

The Working Group was aware of the importance of language used, especially as the definition of any issue can also determine the scope and focus of action which results. Above all, the Working Group in no way wishes to diminish the legacy of structural or institutionalised bias against vulnerable minorities. The issue of who or what is sectarian is widely contested in public and the untested claims are often themselves used as evidence of the sectarianism of the claimant. However, we do acknowledge that while statistics on hate crime and religiously aggravated offending offer a limited picture of sectarian abuse in Scotland, the figures have highlighted Roman Catholicism as the religion that was most often the subject of offending. In addition we have noted from these statistics that the police are the most likely victim of religiously aggravated offending and that these charges often relate to incidents where the police arrested the accused for a separate charge (which may not have involved religious prejudice) and were then abused in religiously offensive terms afterwards.

However, having considered all of the issues in front of us, we believe that two overriding factors justify a generic legal definition which encompasses, and does not diminish, any religious or racist discrimination, such as anti-Catholic, anti-Protestant, anti-Irish or anti-British dimensions.

1. By using the term sectarianism, on the grounds of ‘fair labelling’, activities that are widely acknowledged as belonging together would be brought into sharper focus and would ensure that those behaving in a sectarian way do not ‘fall between the cracks’ of protections designed more specifically to address issues of religion, race and political opinion. This reflects our view that the word ‘sectarian’ has evolved as a distinct cultural pattern, and can no longer be defined in purely religious terms.

2. By using a simple single definition, anecdotal and rhetorical allegations of sectarianism could be properly tested in law, and the real underlying patterns – rather than allegation or presumption – identified over time. Far from obscuring the true nature of sectarianism, creating a legal definition could allow for the true nature of sectarianism to be recognised and affirmed more widely, to the benefit of victims. This approach is similar to that taken in relation to domestic violence legislation. While law is framed to ensure that all acts of violence are fairly addressed in law, the facts and evidence emerging as a result have demonstrated that domestic abuse disproportionately affects women and we rightly acknowledge this.

The motivation behind many sectarian incidents cannot always be easily attributed. Terms originating from sectarian antipathy have degenerated into common terms of abuse, and have been associated with violence and threat. Calling someone a “Fenian” or “Hun” can, in some contexts, denote a perception around political affiliation, national and/or religious identity. We believe that it is important that any legal definition of sectarianism extends to cover this complexity and inter-sectional challenge. But it should do so without diminishing the importance of anti-Catholicism, anti-Protestantism, anti-Irish racism or anti-British racism, as well as the use of cultural and social signifiers commonly used to identify membership or perceived membership of these groups.

In many incidents, the motivation behind the crime can be very easily identified as both being directed at one group and as generating a dynamic of fear between people which is profoundly sectarian. At the time of writing, the case of the alleged attack on Canon White outside St Alphonsus’ Church following the celebration of Mass is being prosecuted, but is widely believed to have been an unprovoked hate crime which was both anti-Catholic and sectarian in nature. Discrimination or threat on the basis of national identity or ethnic origin is also evident in some cases. At the same time, there is evidence of actions against people perceived to be hostile to Irishness/Britishness, or the signifiers associated with sectarian divisions, which have been violent or threatening. An attack on someone carrying an Irish/British flag could be identified as anti-Irish/British racism motivated by sectarianism rather than political bias. It is also possible for people carrying symbols relating to different expressions of Irish/British identity to act in a deliberate and hostile sectarian way against others.

Affiliation in sport is a clear example of where sectarianism has moved beyond simply being religious and into the cultural arena. It would be very difficult for perpetrators of sectarianism at, and around, football to identify whether the victim was a practising member of any religion, or indeed, whether they held any religious views at all. Additionally, it would be very difficult for perpetrators of sectarianism to identify whether the victim’s racial identity was Irish, British or something else, as it is very unlikely that these would be evident from an individual’s appearance. In such situations, defining sectarianism narrowly as either anti-Catholic/Protestant or anti-Irish/British racism may perversely reduce the chances of obtaining an aggravation to the offence.

The Working Group believes that any legal definition of sectarianism should be formally neutral. We acknowledge that the limits of establishing a legal definition which is workable in the context of Scots Law is unlikely to end rhetorical disputes about responsibility for, and consequences of, sectarianism, but that the principle of neutrality as central to the establishment of any definition.