Legal definition of sectarianism working group: final report

Section 5: Options

Broadly speaking, the group has identified three approaches which could be adopted to defining sectarianism in Scots criminal law:

• Option A: do nothing – maintain the status quo, using aggravators and offences based on the more generic concepts of religious and racial prejudice to address offending motivated by sectarian bigotry.
• Option B: introduce new criminal legislation, alongside existing common law and statutory offences, to address offences motivated by sectarian prejudice.
• Option C: develop a new intersectional statutory aggravation of “sectarian prejudice”, which could be incorporated into the consolidated hate crime legislation proposed by Lord Bracadale.

We have identified the following key themes and considerations relevant to the assessment of whether Options A, B, or C should be our preferred recommendation.

Legal redundancy

As the legal summary in Section 4 demonstrates, any definition of sectarianism is likely to overlap to a considerable extent with the criminal law’s existing responses to religious and racial prejudice. It could be argued that an additional sectarian aggravator or offence is unnecessary, as the existing aggravators and offences adequately capture sectarian offending, broadly defined, and allow them to be punished by the courts where proven. This argument of redundancy was deployed consistently by critics of the now-repealed Offensive Behaviour at Football and Threatening Communications (Scotland) Act, on the basis that, as a matter of law, the conduct prohibited by the Act was already prohibited by existing common law and statutory offences, and therefore any additional legal rules were surplus to requirements.

Economy of legal language and effective enforcement

Because any new and supplementary definition of sectarianism in Scots law will apply alongside the pre-existing aggravators and offences based on religious and racial prejudice, the group were alive to concerns that any legal definition of sectarianism should not be so complex or onerous that Scottish prosecutors would have incentives to disapply any legal definition of sectarianism, in favour of simpler or more easily established religious and racial aggravators or substantive offences. On this basis, the group recognised it was important that any legal definition of sectarianism should have a reasonable economy of scope and application to allow it to be enforced effectively.

Law’s declaratory function

The social data confirms that sectarianism – and the language of sectarianism – is understood to be a social problem by a majority of Scots.^[57] Using the language of sectarianism to specify offending based on the Christian religious denomination or national origins of the victim arguably chimes better with the social vocabulary than an aggravator narrowly framed in terms of religious or racially motivated offending.

This can be understood as the principle of “fair labelling” in criminal law, defined by Professors Andrew Ashworth and Jeremy Horder as ensuring:

that widely felt distinctions between kinds of offences and degrees of wrongdoing are respected and signalled by the law, and that offences are subdivided and labelled so as to represent fairly the nature and magnitude of the law-breaking.^[58]

Although there is always going to be a gap between popular and technical legal understandings of criminal offences, we believe it is desirable that the criminal law should – so far as is possible – employ a recognisable social vocabulary to describe the wrongs it punishes. As Section 4 has summarised.

This approach finds precedents in other jurisdictions, where offending directed against specific groups has been specifically accommodated in national legislation, despite potential overlap with existing categories. For example, in the Republic of Ireland, the 1989 Prohibition of Incitement to Hatred Act^[59] defines hatred as “hatred against a group of persons in the State or elsewhere on account of their race, colour, nationality, religion, ethnic or national origins, membership of the travelling community or sexual orientation.”^[60] This provision can be explained, to some extent, by the failure to recognise the travelling community as an ethnic minority in Ireland until 2017, but given public perceptions of sectarianism as particularly problematic, there is a policy justification in explicitly singling out sectarian prejudice as a condemnable motivation for offending.^[61]

A further example of a State framing hate crime legislation in terms of their own prevailing social and cultural problems can be found in the South African Prevention and Combatting of Hate Crimes and Hate Speech Bill.^[62] Responding to the prevailing features of modern South Africa, the Bill’s list of protected characteristics ranges far more widely than Lord Bracadale’s proposals, including albinism and HIV status, in response to the prevailing social context in South Africa.^[63]

The intersectional character of sectarianism

As the Advisory Group’s report in 2015 recognised, sectarianism in modern Scotland is a complex phenomenon, rooted in inter-denominational Christian prejudices, but one which has mutated to encompass a combination of elements, including national origin, football allegiance and politics. One relevant consideration to determining whether there is merit in introducing a legal definition of sectarianism is its capacity to capture this intersectional character where, for example, the expressions of anti-Catholic antipathy accompanying a criminal offence may be spontaneously accompanied by anti-Irish hostility.

Controversy and social acceptance

Reflecting the complexity of sectarianism in modern Scotland, how the concept is defined is likely to generate considerable disagreement. The extent to which a broad social consensus may be reached on the scope of any legal definition is also a relevant factor in assessing whether there is substantive merit in defining the concept of sectarian prejudice in law.

Those key themes, issues, concerns and arguments having been identified, we now turn to consider the potential merits and demerits of each of the alternative approaches identified.

Option 1: The Status Quo

The first approach considered here is – broadly – no change. No additional legislative intervention is required. Lord Bracadale’s review supported this approach, reasoning that he did not:

consider it necessary to create any new offence or statutory aggravation to tackle hostility towards a sectarian identity (insofar as that is different from hostility towards a religious or racial group) at this stage.^[64]

This approach can be justified by several arguments. As Lord Bracadale suggests, it might be thought that the concept of sectarianism in Scotland is so essentially contested that any attempt to define the phenomenon and to secure widespread social recognition of the definition would be impossible. An alternative perspective, short of this claim, would maintain that the very process of attempting to coin a generally socially acceptable definition of sectarianism would, in itself, be a dangerous and divisive process which could do more damage than good in the process. It could also be argued that using the language of sectarianism could serve to conceal rather than illuminate the social reality of sectarianism in modern Scottish society.

More technically, the case for not incorporating the language of sectarianism explicitly into Scots criminal law can be supported by the concept of legal redundancy, which largely informed Lord Bracadale’s analysis of the topic. If an assault motivated by anti-Catholic bigotry can be prosecuted as aggravated by religious-prejudice, the reasoning runs, what is the benefit of an additional, second aggravator using the language of sectarian prejudice to characterise this behaviour? Using this logic, general provisions which punish religious and racial motivations for criminal offending adequately capture and adequately penalise sectarian behaviour.

On the other hand, one of the key criticisms of the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 was its failure to employ the language of sectarianism – although criticisms of the legislation were also couched in terms of its clarity and the risk that the rules it created might be illiberally applied by law enforcement authorities (although the 2012 Act itself did not make any provision for policing). Turning the argument on its head, is there a rational explanation for why the widespread, much-debated but understood social vocabulary of sectarianism is not used in Scottish criminal law, but the abstract and socially-unrooted vocabulary of religious or racial hatred is regarded as technically acceptable?

Also, against inactivity, it may be argued that the existing statutory regime – and the recommendations of Lord Bracadale – fail adequately to capture the intersectional character of contemporary sectarianism, which cannot be neatly divided into religious or racially motivated offending, but often incorporates expressions of hostility based on Christian denominational affiliation and national origins and citizenship simultaneously. The status quo arguably fails to reckon with this.

It may also be argued that, despite vigorous debates about what does and does not fall within its bounds, the nature of sectarian prejudice is not so essentially contested that a broadly socially acceptable definition could not be devised. Understanding of sectarianism – although debated – is well-established. The argument that the language of sectarian prejudice represents as a distorting lens through which to regard the social phenomenon sits uncomfortably along the pervasive use of the vocabulary of sectarianism to describe anti-Catholic and anti-Protestant antipathy, or to describe crimes accompanied by demonstrations of hostility based on the victim’s presumed national origins or citizenship – British or Irish.

Option 2: A New Sectarianism (Scotland) Bill

The second alternative approach would be to recommend that a new criminal offence – or series of criminal offences – might be created explicitly using the vocabulary of sectarian prejudice to supplement the existing common law and statutory offences outlined in Section 4. Although it did not use the explicit language of sectarianism, within the limited context of regulated football matches, the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 can be understood as an attempt to do so. A designated statute, using the language of sectarianism to describe prejudiced behaviour, would arguably reflect the interests of “fair naming” of sectarian behaviour and the declaratory function of the criminal law. The creation of a distinctive sectarianism offence or body of criminal offences could also have statistical advantages for aiding the social understanding of the prevalence of sectarian offending in Scotland, distinguishing charges of a sectarian character from more general offending, or hate crimes motivated by, for example, antisemitism or islamophobia.

Depending on the complexity and comprehensibility of how such a Sectarianism Act was drafted, it could also serve the interests of an economy of legal language and represent an effective tool for prosecutors and a comprehensible guide to permissible conduct for the wider public. New offences could also be drafted in such a way as to recognise that offending motivated by sectarian prejudice is intersectional in character and cannot always neatly distinguish between its religious, social and cultural manifestations in the manner the current law enshrines and the Bracadale Review proposes.

However, the major objection to such an approach is legal redundancy. Why is it necessary to generate an additional tranche of tagged sectarianism offences? The leading contemporary charge used by the authorities in cases of religiously-motivated offending is “threatening or abusive behaviour.” Section 38 is framed in a broad and general way, with appropriate safeguards. To give distinctive social recognition and identity to the distinctive wrong of criminal offending motivated by sectarian prejudice, it is arguably unnecessary to add additional offences to the statute book. Instead, the dominant approach of using statutory aggravators allows hate crimes to be distinguished from other offending, without introducing additional layers of complexity and duplication to the substantive criminal law.

There are also relevant political considerations which weigh against the creation of a distinctive sectarianism statute, in view of the Scottish Parliament’s recent repeal of the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 and the logical basis for this repeal. A key critique of the legislation was the limited compass of the section 1 offence of “offensive behaviour at football.” Critics argued that the law should have general application and not be limited to individuals associated with a particular sport. Moreover, during parliamentary scrutiny of the 2018 Repeal Act, significant emphasis was placed on the issue of legal redundancy.

Critics argued (a) that the legislation was illiberal and over-extended the criminal law in Scotland but also that (b) the main offences created by the 2012 Act were adequately captured by common law and statutory charges and aggravators, including breach of the peace, threatening or abusive behaviour, and religious or racial prejudice aggravators. These arguments would powerfully apply to any hypothetical Sectarianism (Scotland) Bill which attempted to introduce new, named sectarian offences.

Moreover, the boundaries around where any new offences should apply are likely to be hotly contested. This is reflected by the discussion of perhaps the most controversial section of the 2012 Act – the section which criminalised “behaviour the reasonable person would consider to be offensive” in relation to regulated football matches. Any proposals to create new named sectarian offences are particularly likely to generate considerable controversy about the appropriate language and drafting of the statute and the conduct included and not included within the scope of its definition.

Option 3: a sectarian prejudice aggravator

The third option considered by the group would be to adapt the current law concerning religious and racial aggravators to create a new, intersectional aggravator for sectarian prejudice based on the accused’s demonstration of hostility towards the victim’s 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). In view of the Bracadale proposals, this might be accompanied by incorporating sectarian hatred into a new incitement offence in the consolidated hate crime Bill which the Scottish Government has already committed to taking forward.

This approach would have the benefit of “fair labelling” sectarian offending. Instead of employing the broader vocabulary of religious or racially motivated offences, the meaningful social vocabulary of sectarian prejudice could be attached to an offence which, for example, involved expressions of hostility motivated by anti-Catholic and anti-Irish bigotry. Moreover, the proposed structure of this new aggravator would arguably better reflect the intersectional character of modern sectarianism, allowing the aggravator to be established on evidence of the accused’s racial, religious and/or cultural motivations.

For police and prosecutors, a single, intersectional sectarian aggravator could have two key advantages. Firstly, it streamlines decision-making where the accused’s conduct immediately before, during or after the offence might arguably fall within racial or religious aggravations, where the hostility evinced is of a sectarian character.

A single compound aggravator avoids the need for duplication where, for example, the accused’s behaviour could arguably ground both a religious and a racial aggravator. From the perspective of economy of legal language and effective enforcement, there is no reason in principle why a sectarian prejudice aggravator should be any more difficult to apply in practice than the existing aggravators based on religious and racial prejudice.

Creating a sectarian aggravator would be considerably simpler than proposals to create a distinctive sectarianism offence which extends more widely than the general criminal law. A sectarian prejudice aggravator – in and of itself – would create no additional criminal offences. It would only apply – if proven – where the accused had been convicted of an underlying offence, such as assault, homicide or threatening or abusive behaviour.

Against Option 3, it may be argued that an intersectional sectarian prejudice aggravator would be legally redundant. If it largely replicated existing religious and racial prejudice aggravators, a sectarian prejudice aggravator would be creating nothing new legally. It would not enhance the powers of the police or prosecutors. It would not give courts the power to impose stricter sentences than they are currently able to do so using racial and religious aggravators. In response, it can be argued that a sectarian prejudice aggravator – proceeding along these lines – will add something significant to Scots law and Scottish society. It would use the language of sectarianism for the first time in Scots law without dramatically extending the powers of the police or curbing the liberty of citizens, while recognising and naming the intersectional reality of sectarianism in modern Scotland.