Legal definition of sectarianism working group: final report

Section 4: Definition of Sectarianism: Legal Scope for A Definition

The 2015 Advisory Group on Tackling Sectarianism in Scotland defined sectarianism in Scotland as:

…a mixture of perceptions, attitudes, actions, and structures that involves overlooking, excluding, discriminating against or being abusive or violent towards others on the basis of their perceived Christian denominational background. This perception is always mixed with other factors such as, but not confined to, politics, football allegiance and national identity.^[5]

Taking all the elements of this definition, there are a range of areas of law which regulate or interact, to a greater or lesser extent, with sectarian attitudes and actions which discriminate against, exclude or visit violence and abuse on others motivated by sectarian prejudice. Specifically, these exist in the field of civil law, including human rights legislation, employment law and equalities law, and include discrimination in the provision of housing, education, goods or services, and victimisation or harassment based on sectarian prejudice in the workplace. In terms of violence and abusive behaviour, the principal areas of devolved Scots law which arise are the criminal law, and the sub-category of hate crime, here understood as crimes motivated by, or which demonstrate hostility towards, an individual based on their perceived Christian denominational background or national origins or identity.

As Lord Bracadale’s report helpfully summarises:

The civil law is essentially concerned with regulating the relationship between individuals. In the context of prejudice, the civil law has a key role in addressing discrimination, for example, in the employee/employer relationship, in the provision of goods or services or on public transport. The remedy in a civil law dispute will usually be a requirement for one person to pay compensation to another or to take, or to stop taking, a particular course of action.^[6]

In addition to this, we may also consider civil remedies available in public law including civil actions to be taken against public authorities by individuals or affected groups on human rights grounds. In contrast with civil remedies – where the wronged party must generally vindicate their own rights in court, and the principal remedies are compensation for losses – criminal law interventions are driven by the state through police and prosecution decision-making, and the outcome of criminal procedure may involve a range of penalties and restrictions being imposed upon a convicted person’s liberty, from fines and football banning orders, to community sentences and periods of incarceration.

This section considers whether there is scope to introduce the language of sectarianism across these different branches of civil and criminal law in Scotland, dealing first with civil law before turning to the criminal law. To address this question, the constitutional framework within which Holyrood operates first must be considered.

Summary of findings

Our analysis suggests that it is not practical to establish a civil law definition of sectarianism, as key areas of civil law which regulate racial and religious discrimination and prejudice are reserved matters under the Scotland Act 1998. We find there is, however, scope to reconsider whether it would be beneficial for the language of sectarianism to be explicitly incorporated in the criminal law of Scotland. Subsequent sections of this report consider different ways in which this might be done, and discuss the advantages and disadvantages of each approach.

The Constitutional Framework

The Scotland Act 1998 delineates the devolved powers of the Scottish Parliament and Scottish Ministers.^[7] Scottish devolution is structured around a “reserved powers” model. In practice, this means the 1998 Act identifies only those powers which the Scottish Parliament and Ministers cannot exercise. Matters which are not reserved are devolved.

However, the legislative competence of the Scottish Parliament is limited in several respects.^[8] Acts of the Scottish Parliament cannot “relate to reserved matters” set out in Schedule 5^[9]. Whether a provision of an Act of the Parliament relates to a reserved matter is to be determined with reference to the “purpose” of the provision, “having regard (among other things) to its effect in all the circumstances.”^[10] Secondly, Acts of the Scottish Parliament cannot repeal or modify statutes which are specifically protected by Schedule 4 of the 1998 Act. Thirdly, provisions which are incompatible with the European Convention on Human Rights (ECHR) or “retained EU law”^[11] are also outside Holyrood’s legislative competence. Similar restrictions apply to the executive competence of Scottish Ministers.^[12]

Legislation – or specific provisions – which fall outwith the parliament’s legislative competence may be challenged by UK or Scottish law officers before royal assent is granted,^[13] or afterwards by any individual or group able to establish they have the legal standing to bring judicial review proceedings.^[14] If the court finds that the impugned provisions “relate to reserved matters”, or are incompatible with ECHR rights or EU law, they will be struck down as ultra vires by the court.^[15]

Although the Scotland Act “does not affect the power of the Parliament of the United Kingdom to make laws for Scotland,” this report has focused on the powers which can be exercised by the Edinburgh institutions within their currently devolved powers.^[16] Reviewing those powers, we find that the Scottish Parliament has restricted competence to introduce the language of sectarianism to the main areas of civil law engaged by the understanding of sectarianism set out by the Advisory Group in their 2015 report.

Human rights

The Human Rights Act 1998 is distinct from the ECHR provisions written into the Scotland Act which limit the legislative and executive competence of Scottish legislators and Ministers.^[17] The Human Rights Act has a more general application, binding over all “public authorities” in the United Kingdom to observe the minimum rights set out in the European Convention.^[18] Section 7(1) of the Human Rights Act provides that “victims” of unlawful acts may bring judicial proceedings against public authorities which have unlawfully violated their Convention rights. Article 14 of the European Convention is particularly relevant to the issue of discrimination based on sectarian prejudice. It provides that:

The enjoyment of the rights and freedoms set forth in this European Convention on Human Rights shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

Sectarian prejudice and discrimination by public officials in the recognition of the other substantive Convention rights would be caught by this provision. However, the language of sectarianism is not explicitly used in the European human rights framework, or the Human Rights Act which gives domestic effect to it and there is no scope for Holyrood to amend the 1998 Act. Although human rights are not a reserved matter,^[19] the Human Rights Act is a statute protected from modification under Schedule 4 of the Scotland Act.^[20] Accordingly, the Scottish Parliament does not have the power to amend its provisions to incorporate any conception of sectarianism.

Equal opportunities

The Equality Act 2010 is the key piece of legislation in the field of equal opportunities in England, Scotland and Wales. The 2010 Act (a) identifies protected characteristics and prohibited conduct, including (b) direct discrimination (c) indirect discrimination (d) harassment and (e) victimisation. The 2010 Act also provides for public sector equality duties. The language of sectarianism is not used in the Equality Act, although discrimination in the provision of goods and services, housing or employment on a sectarian basis could be caught by the protected characteristics of religion and belief or race, which includes the concept of nationality and ethnic or national origins.^[21]

The legal position on Holyrood’s competence to legislate concerning equal opportunities has been complicated by the Scotland Act 2016. The starting point is that “equal opportunities” is a reserved matter, and the Scottish Parliament has no legislative competence to (a) modify, amend or repeal the Equality Act 2010 or (b) introduce statutes the object and purpose of which are primarily concerned with equal opportunities.^[22] For the purposes of the Scotland Act reservation, “equal opportunities” are defined as:

the prevention, elimination or regulation of discrimination between persons on grounds of sex or marital status, on racial grounds, or on grounds of disability, age, sexual orientation, language or social origin, or of other personal attributes, including beliefs or opinions, such as religious beliefs or political opinions.^[23]

Although some changes to these provisions of the Scotland Act were introduced in 2016, the overall effect of these changes have the following implications:

1. While the Scottish Parliament is authorised to legislate to “encourage” equal opportunities, it cannot do so “by prohibition or regulation.”^[24]

2. While the Equality Act extends some powers to Scottish Ministers to make subordinate legislation, Holyrood does not have the power to modify the Equality Act 2010 to incorporate the language of sectarian prejudice.^[25]

3. While it would be possible for the Scottish Parliament to introduce additional supplementary provisions concerning sectarianism in respect of some public authorities operating in Scotland, the Scottish Parliament does not have the legislative competence to extend any of these provisions to the public at large, including providers of goods or services, landlords and employers.

4. More generally, employment rights, duties and industrial relations are also reserved matters.^[26]

Conclusions: Scope for defining sectarianism in civil law

In conclusion, we find that there is currently no meaningful scope for the Scottish Parliament to amend the civil law to incorporate the language of sectarianism, however defined. Having examined the constitutional status of the areas of civil law already highlighted – human rights, employment law, and equality law – all these critical areas are either matters reserved to the Westminster Parliament, or protected statutes under Schedule 4 of the Scotland Act. However, devolution is – classically – a process, not an event. The Scotland Act has been amended on several occasions since it was first passed in 1998, with Holyrood accruing additional legislative competence. These competencies can be altered in two ways:

1. The Scotland Act may be amended by Westminster using primary legislation^[27] or

2. The list of reserved matters appended to the Scotland Act may be altered by an Order in Council^[28] under section 30 of the 1998 Act.^[29]

If equal opportunities ceased to be a reserved matter – or Schedule 5 of the Scotland Act was amended to give the Scottish Parliament additional competence over equal opportunities – incorporating a civil definition of sectarian discrimination, victimisation and harassment into Scots Law would become feasible and we recommend that in such circumstances the Scottish Government should revisit this issue.

Criminal Law and Hate Crime

One area in which the Scottish Parliament enjoys extensive legislative competence to regulate the issue of sectarian prejudice is the criminal law, which is generally a devolved matter, subject to the restrictions of the European Convention on Human Rights (ECHR). A range of different criminal offences are applicable to behaviour which is – in the language of the Advisory Group’s 2015 definition – “abusive or violent towards others on the basis of their perceived Christian denominational background.”

As the Bracadale Review summarised, Scotland’s patchwork “hate crime” legislation is currently built up of a scattered and non-comprehensive body of legal rules. These have evolved in a piecemeal fashion since 1965 and the provisions are distributed across a disjoined series of legislative interventions. Considerable differences now characterise the law in Scotland and in England and Wales. Broadly speaking, Scots criminal law engages with hate crime in three ways:

(i) substantive general criminal offences;

(ii) statutory sentencing aggravations based on the prejudiced motivations of the offender; and

(iii) stand-alone offences which directly criminalise behaviour based on its hateful character towards a protected group.

From the perspective of sectarian prejudice, several points arise. Firstly, the language of “sectarianism” has not been used and has not been defined in any statute passed by the Westminster or Scottish Parliaments. The only criminal statute which uses the explicit language of sectarianism in the UK is the Justice Act (Northern Ireland) 2011, which makes specific provision for prohibited conduct at “regulated matches” of football, including “throwing of articles capable of causing injury”, “going onto the playing area” and possession of fireworks or flares.^[30] Section 37 of the 2011 Act prohibits “chanting” at any time during the period of a regulated match which is:

• of an indecent nature;
• is of a sectarian or indecent nature; or which
• consists of or includes matter which is threatening, abusive or insulting to a person by reason of that person's colour, race, nationality (including citizenship), ethnic or national origins, religious belief, sexual orientation or disability.^[31]

The offence is punishable by a fine of up to £1,000 only.^[32] However, although the language of sectarianism is used by the Northern Irish legislation, the word “sectarian” is not further defined in the 2011 Act, though attempts were made to do so during the legislative process. The Minister responsible for the Bill proposed the following legal definition:

For the purposes of this section chanting is of a sectarian nature if it consists of or includes matter which is threatening, abusive or insulting to a person by reason of that person’s religious belief or political opinion or to an individual as a member of such a group.^[33]

This definition was not acceptable to a majority of Members of the Legislative Assembly (MLAs), and although the language of sectarianism was incorporated into the Act, the term was left undefined in Northern Irish law.

That said, a series of legislative interventions in the sphere of criminal law and hate crime in Scotland are, and have been, relevant for the prosecution of sectarian behaviour, including (a) statutory aggravators and (b) stand-alone offences which could – at least theoretically – apply to some manifestations of sectarian prejudice. Common law charges of murder, culpable homicide, assault, reckless injury and reckless endangerment of the lieges may apply to acts of violence, based on the extent of the injuries caused to the victim and the mens rea of the accused. Abusive behaviour is criminalised by a range of statutory and common law offences. Under the common law, breach of the peace is defined as “conduct severe enough to cause alarm to ordinary people and threaten serious disturbance to the community” and has been employed for some decades to prosecute sectarian abuse satisfying this legal threshold.^[34]

Recent data suggests, however, that the overwhelming majority of cases being prosecuted as motivated by religious prejudice are now charged under section 38 of the Criminal Justice and Licensing (Scotland) Act 2010. Scottish Government statistics found in the last year there were 642 charges aggravated by religious prejudice.^[35] In 2017/18, 50% concerned offences demonstrating hostility towards, Roman Catholics and 27% Protestant denominations.^[36] Of the total of 642 charges, 502 (78%) were charges of “threatening or abusive behaviour” under section 38 of the 2010 Act.^[37]

Section 38 – “threatening or abusive behaviour” – is often characterised as a “statutory breach of the peace,” and was introduced by the Scottish Government after the courts considerably narrowed the common law crime after a series of challenges rooted in the ECHR.^[38] Section 38 provides that an offence is committed where an individual (a) behaves in a “threatening or abusive manner”, which (b) “would be likely to cause the reasonable person fear or alarm,” and where (c) the prosecutor can establish the accused either intended to cause fear or alarm, or was reckless about causing them. The expansive concept of “abusive behaviour” can capture a broad scope of objectionable behaviour expressed in prejudiced terms.

In terms of online behaviour, under the Communications Act 2003, charges of improper use of a public electronic communications network may be brought against individuals who send “grossly offensive or of an indecent, obscene or menacing character” by means of the internet, including social media.^[39]

Some dimensions of sectarian abuse are captured by the existing fractured body of hate crime laws in Scotland. Section 18 of the Public Order Act 1986 criminalises “threatening, abusive or insulting words or behaviour” which is “intended or likely to stir up racial hatred” or words or behaviour which, in the circumstances, “is likely to stir up” racial hatred.

The broad legal definition of “race” also captures some elements of sectarian prejudice. The concept of a “racial group” is defined in law as “group of persons defined by reference to race, colour, nationality (including citizenship) or ethnic or national origins.”^[40] In the context of sectarianism, for example, the Appeal Court has held that the word “Fenian” can relevantly ground changes brought on the basis of racial prejudice, as:

it is within judicial knowledge that the term "Fenian" is used by a certain section of the population to describe a person either of Irish ancestry or even a person of the Roman Catholic faith, whether of Irish ancestry or not. Coupled with the derogatory term "bastard", this is either an expression of religious prejudice or racial bigotry or both.^[41]

On the basis of the law’s broad understanding of the concept of race, some abusive sectarian behaviour can also be prosecuted as racially-motivated harassment, as set out in the Criminal Law (Consolidation) (Scotland) Act 1995.^[42] The section 50A offence can be committed in two distinct ways. Firstly, it can be committed where an individual:

• pursues a racially-aggravated course of conduct which amounts to harassment of a person;
• which is intended to amount to harassment of that person or which occurs in circumstances where it would appear to a reasonable person that it would amount to harassment of that person.^[43]

Alternatively, an offence can also be committed under section 50A if the accused “acts in a manner which is racially aggravated and which causes, or is intended to cause, a person alarm or distress.”^[44] To make out the offence of racially-motivated harassment, the prosecutor must establish the harassment is motivated by “malice and ill-will” based on the victim’s presumed membership of a racial group, or hatred of a racial group more generally. The concept of a racial group extends to any “group of persons defined by reference to race, colour, nationality (including citizenship) or ethnic or national origins.”^[45] These provisions will have application to some forms of sectarian harassment, based on the perceived national origins or citizenship of the victim.^[46]

During the period of its application, the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 also applied to sectarian abuse in two distinct ways. Firstly, in the limited context of regulated football matches, the Act criminalised behaviour which “expressed” or “stirred up hatred” against individuals or groups on the grounds of their membership or presumed membership of (i) a religious group (ii) a social or cultural group with a perceived religious affiliation, or (ii) their nationality or ethnic or national origins where this behaviour was also “likely to incite public disorder.”^[47] The Act’s provisions, controversially, also applied to “behaviour the reasonable person would consider to be offensive.”

The second element to the regulation of sectarian abuse contributed by the 2012 Act was the section 6 offence of “threatening communications”, which applied both to threats to carry out “seriously violent acts” and to threats which intended “to stir up hatred on religious grounds.”^[48] The net effect of the repeal of section 6 is that stirring up religious hatred is not – in itself – now a criminal offence in Scotland, although threatening behaviour might well be prosecuted under another common law charge or enactment.

In England and Wales, by contrast, the racial hatred provisions were supplemented by the provisions of the Racial and Religious Hatred Act in 2006 and the Criminal Justice and Immigration Act 2008, which introduced additional “stirring up” offences on the basis of religious hatred and hatred on the grounds of sexual orientation.

While the 2012 Act was often characterised in popular comment and media as an “anti-sectarianism” measure, like the surrounding statutory framework, the 2012 Act also did not make explicit use of the language of sectarianism to frame its offences.

Sentencing aggravators

Statutory aggravators are intended to enhance the severity of criminal charges and must be taken into account by the court in determining the appropriate sentence if the accused is convicted. Aggravators create no new criminal offences but only ordain that offences motivated by animus towards specified groups may merit higher sentences. If the aggravator cannot be proved beyond a reasonable doubt, the court may nevertheless convict the accused of the underlying offence, under deletion of the aggravation. If the accused is acquitted of the principle charge, the accused cannot be convicted on the basis of the aggravator alone, even if proven.

The first statutory aggravator based on evincing malice and ill-will was introduced to Scots law in 1998.^[49] Scots law currently adopts an “animus” based model in terms of aggravators based on hatred, which can be established by proving on the basis of a single source of evidence that:

• at the time of committing the offence or immediately before or after doing so, the offender evinced towards the victim of the offence (if any) malice and ill-will relating to a protected characteristic (or presumed protected characteristic) of the victim; or alternatively
• that the offence was motivated (wholly or partly) by malice and ill-will towards persons based on their perceived racial, religious or transgender identities, or their sexual orientation or disability.

Implicit in this logical structure is that aggravators are based on the perceptions of the accused, as demonstrated by their words and behaviour, and not the characteristics of the victim. If, for example, an individual assaulted a Christian while shouting anti-Islamic epithets, the religious prejudice aggravator could still be attached to the charge and the incident would be recorded as religiously-motivated offending, irrespective of the victim’s religious beliefs, if any. As a result, aggravators are generally proven in court with reference to the words used or statements made by the accused in the course of the alleged offence.

Scots criminal law currently recognises five main animus-based aggravators, of which racial and religious prejudice are relevant to the prosecution of crimes motivated by sectarian prejudice. Like the substantive offences of stirring up racial hatred and racially-motivated harassment, in aggravations by racial prejudice, the concept of race is given a wide legal definition.

Under section 96 of the Crime and Disorder Act 1998, a “racially aggravated” offence is one which is committed in respect of a “racial group”, defined as a “group of persons defined by reference to race, colour, nationality (including citizenship) or ethnic or national origins.”^[50] From the perspective of sectarianism, this aggravator would apply to criminal behaviour motivated by hatred of the victim’s presumed national origins – or crimes where malice or ill-will is evinced towards the victim’s presupposed national origins by the accused.

The religious prejudice aggravator was introduced to Scots law in 2003^[51] and is predicated on either the victim’s membership (or presumed membership) of (a) a religious group, or (b) of “a social or cultural group with a perceived religious affiliation.”^[52] The 2003 Act defines a “religious group” as a group of persons defined by reference to their:

• religious belief or lack of religious belief;
• membership of or adherence to a church or religious organisation;
• support for the culture and traditions of a church or religious organisation; or
• participation in activities associated with such a culture or such traditions.^[53]

Depending on the facts and circumstances of a particular case, and the behaviour of the accused during the commission of the underlying crime, either or both of these aggravators may currently be attached by prosecutors to charges motivated by sectarian prejudice.

Criminal law responses to sectarianism after Bracadale

If the Bracadale Review’s proposals for the reform of hate crime in Scotland are enacted, arguably only superficial changes will apply to the prosecution of offences motivated by sectarian prejudice.^[54] The aggravators will be consolidated in a single enactment. The language used in the statutory aggravators will be updated for comprehensibility, attaching to “demonstrations of hostility” rather than “evincing malice” against the victim’s perceived religious or national origins. Additional aggravators may be added based on additional protected characteristics but, from the perspective of offending motivated by or evincing sectarian prejudices, the additional aggravators are irrelevant.

The Bracadale review also proposes to abolish the offence of racially-motivated harassment as part of the consolidation, which would close one route through which sectarian behaviour might currently be criminalised. Critically, under these proposals, the language of sectarian prejudice will continue to go unused in the letter of Scottish criminal law, with sectarian offending – at least in a technical sense – being swept up in the broader and general categories of statutory aggravators based on the accused’s perception of the victim’s religious and racial characteristics, incorporating hatred based on supposed national origins or citizenship.

Although Lord Bracadale consulted on the issue of intersectionality – where the hostility motivating or expressed by the accused combines several different strands of hatred^[55] – Bracadale’s approach would continue to treat each of the protected characteristics as a discrete issue giving rise to a distinctive aggravation, rather than recognising that a messy social phenomenon like sectarian prejudice – which often incorporates hostility expressed in a range of religious and racialised terms simultaneously – does not always allow a clear demarcation to be drawn between behaviour motivated by the victim’s membership (or presumed membership) of a religious group and behaviour based on perceived national origins or citizenship.

In terms of the consolidated and extended “stirring up hatred” offences Lord Bracadale has proposed, if enacted, prosecutions for incitement to hatred may be possible in future if the prosecutor could establish that the accused has engaged in threatening or abusive conduct, with either (i) an intention to stir up hatred on religious or racial grounds, or (ii) that “having regard to all the circumstances hatred in relation to the particular protected characteristic is likely to be stirred up.”^[56]

In this respect, Bracadale’s proposals largely replicate the existing offence of incitement to racial hatred for incitement to sectarian hatred based on perceived national origins or citizenship, but would substantively re-introduce the incitement to religious hatred offence, introduced by section 6 of the Offensive Behaviour at Football Act, repealed in May 2018.

Conclusions: Scope for legal intervention

Against this backdrop, the following conclusions arise.

1. There is no current scope for the Scottish Parliament to amend equal opportunities legislation to incorporate the language of sectarianism on constitutional grounds.

2. While there is constitutional scope to introduce changes to the criminal law in Scotland explicitly to use the language of sectarianism, the question arises: is it right to do so? Broadly speaking, three potential responses to this question are available:

• The first option is not to reform the criminal law, instead relying on the existing legal structures adequately to capture and to punish offending motivated by sectarian prejudice, without using the contested vocabulary of sectarianism or attempting to define the concept in law.
• The second alternative approach would be to introduce a new criminal statute, alongside the existing structures of criminal offences and aggravators, which makes explicit use of the language of sectarian prejudice, alongside general offences such as “threatening or abusive behaviour”, summarised above.
• The third approach would be explicitly to incorporate the language of sectarianism in a more limited way into Scottish criminal law – not by creating new offences, but by tailoring the familiar aggravators associated with religious and racially motivated offending to recognise and to name the social problem of sectarian prejudice. This third model would incorporate sectarianism into the language of hate crime in Scotland, but would not radically innovate in terms of the behaviour which is and is not criminalised.

The merits of each of these issues is considered in turn in the following section.