Hate Crime and Public Order (Scotland) Bill stakeholder meetings: minutes

Cabinet Secretary for Justice and Officials Meetings Prior to Parliament Statement on 23 September 2020

Main Points

Scottish Greens – 27 August 2020

John Finnie MSP

Patrick Harvie MSP

In discussion, the following matters were raised:

• Supportive of the need for the legislation.
• Supportive of the consolidation of ‘piecemeal’ statutes.
• Concerned that the Bill may become a proxy for GRA.
• Would like freedom of expression provisions for all characteristics.
• Would like to see Section 12(2)(b) include ‘harmful practices’.
• Would like to see the work on misogyny standalone offence accelerated.
• There is a need to compromise but not be compromised.

Faculty of Advocates – 04 September 2020

Roddy Dunlop QC

Ronnie Renucci QC

In discussion, the following matters were raised:

• Supportive of the principles of legislation.
• The Faculty’s response to the call for evidence laid out certain concerns:
  • Operation of new stirring up hatred offences through the inclusion of behaviour ‘likely to stir up hatred’,
  • Approach taken to freedom of expression,
  • A lack of consistency across characteristics with insulting remaining as part of race, and
  • Ensuring as much consistency as possible in line with Lord Bracadale’s recommendations
• Moving the new stirring up hatred offences to intent only could help address the concern most strongly felt.  It would not address all concerns however.
• If the new stirring hatred offence had the likelihood limb removed, there was a question whether a new test could be added e.g. recklessness that hatred would be stirred up.  No conclusions reached on this point.
• Noted that where freedom of expression is being affected by legislation, the onus is on those making the changes to explain the justification.

Law Society of Scotland – 14 September 2020

Amanda Millar, President,

Debbie Wilson, Council Member

Gillian Mawdsley, Policy Executive

In discussion, the following matters were raised:

•  The Law Society response to the call for evidence made clear their support for the principles of the Bill, while also addressing significant concerns with the Bill.
• Noted that the existing stirring up racial hatred offences in the 1986 legislation had not been used much to secure convictions.
• Concern on level of lack of consistency across characteristics – e.g. insulting remaining as part of stirring up racial hatred offences.
• The legislation should be as clear as possible what conduct is to be criminalised.
• Noted that there was an enabling power to add sex as a characteristic rather than on the face of the Bill – concern expressed about this approach. 
• Concerns that freedom of expression provisions create a hierarchy between characteristics and thus a hierarchy of victims.
• Concern that the reasonableness defence does not sufficiently protect those in areas such as journalism etc.
• Noted confusion about the effect of the Bill in respect of performers and those involved in artistic productions. 
• Discussion surrounding the phrase ‘evinces malice and ill-will’ used in the Bill and whether it should be updated.
• If there is to be an offence of misogynistic harassment, then also need to consider an offence of misandry.
• Keen to understand when the Working Group to consider misogynistic harassment will be set up including making recommendations about the potential use of the enabling power in the Bill to introduce sex as a characteristic in hate crime law.

• The Society’s concern over a lack of detail and justification with regard to the Bill’s Policy Memorandum.
• The idea of producing example scenarios to illustrate the conduct which would be subject to criminal prosecution.

Humanist Society of Scotland– 14 September 2020

Fraser Sutherland, Chief Executive Officer

In discussion, the following matters were raised:

• Removing ‘likely to stir up hatred’ from new offences would be welcomed.
• Consider if there is a requirement to include ‘antipathy’ in the religious freedom of expression provision as in English and Welsh provision. Welcomes clarity that religion definition includes so called ‘apostates’ but calls for it to also include beliefs held by an individual and non-religious beliefs, (and groups which don’t have a fixed set of shared beliefs such as humanism).
• Wished to see ‘evinces’ as in ‘evinces malice and ill-will’ replaced with a modern and simpler term.
• Would like to see guidance around the Bill reflecting that the Scottish Government’s approach is in line with the UN Rabat Plan.

Catholic Church – 14 September 2020

Mr Anthony Horan, Director of Roman Catholic Parliamentary Office

John Keenan, Bishop of the Diocese of Paisley

In discussion, the following matters were raised:

• Would welcome any move to remove ‘likely to stir up hatred’ from the new stirring up offences and move to “intent” only.
• Seeking assurances regarding defences.  There needs to be an appropriate defence to reflect the change to ‘intent’ only.
• Even after removing ‘likely to stir up hatred’ there is still a concern that the provision for ‘possession of inflammatory materials’ needs to be tightened up.  AH to reflect and revert.
• Would like to see the freedom of expression provisions strengthened and extended to all characteristics.
• Note that ‘hatred’ is well understood by the judiciary but would welcome a definition in the Bill for clarity.

Tackling Prejudice and Building Connected Communities Action Group – 22 September 2020 Comments

 

Danny Boyle BEMIS

Parveen Khan, CEMVO

Karen Kennedy, COPFS

Ruth McQuaid, COPFS

Pauline Lynch, Education Scotland

John Wilkes, Equality and Human Rights Commission

Tim Hopkins, Equality Network

Becky Kaufmann, Equality Network

Brian Scott, Glasgow Disability Alliance

Jamie Spurway, Interfaith Scotland

Wendy Harrington, RespectMe

Gillian Lithgow, YouthLink Scotland

In discussion, the following matters were raised:

• General support for the move to focus on ‘intent’ only for stirring up offences, excluding race.
• Explore the concept of ‘recklessness’ regarding the new stirring up offences hatred offences to bring it in line with section 38 of the Criminal Justice and Licensing (Scotland) Act 2010.
• The group acknowledged that it was likely necessary that specific provisions for the protection of freedom of expression would need to be included in the Bill.  Concerns were raised that the current draft, which only refers to and offers examples relating to two of the protected characteristics, was harmful to the cause of general equality.  It was suggested that extending the freedom of expression protections to all characteristics and using more general language rather than specific examples would be a more equitable approach.
• The Equalities Groups discussed the provision of data and agree that a legal obligation should be integrated into the Hate Crime Bill that provides a statutory basis for collecting disaggregated hate crime data for all protected characteristic aggravations on an annual basis.  The data would be disaggregated in a similar way to that produced and published by the Scottish Government for religiously aggravated offending in the past.  These should include statistics for hate incidents and crimes obtained from Police Scotland and statistics on prosecutions obtained from the Scottish Courts and Tribunals Service.  This data would help inform non judicial interventions. 
• Appreciate that there has been criticism of the Bill, especially in relation to stirring up offences.  This has highlighted the need to raise public awareness of the nature and prevalence of hate crime.  The discourse on the Bill has highlighted the importance of listening to those affected by hate crime and ensuring that they are supported to report it.
• The Equalities Groups said that the process of consultation with all stakeholders, listening to views and amending provisions had worked well.

Artist and Writers Organisations – 22 September 2020

Jude Henderson, Federation of Scottish Theatre

John Toner, National Union of Journalists

Lisa Clark - Scottish PEN

John McCann, Scottish Society of Playwrights

Bill Armstrong, Writers’ Guild

In discussion, the following matters were raised:

• Welcomed the consolidation of hate crime legislation.
• Welcomed the move to ‘intent’ only for the new stirring up offences.
• Questioned the need for section 4 of the Bill as it is already covered by the 1968 Theatre Act and the 1986 Act.
• Would like to see the reasonableness defence extended to include taking the ‘play as a whole’ into account.

• Concern that artists and writers would self-censor themselves and would like clear guidance on what would be prosecuted.

 Scottish Police Federation – 22 September 2020

Calum Steele, General Secretary.

David Hamilton, Chair

David Kennedy, Deputy General Secretary

In discussion, the following matters were raised:

• Supportive of the move to ‘intent’ as it removes subjectivity.
• Would prefer a more general freedom of expression clause that covers all characteristics.
• Concerned that the new provisions will lead to substantial police training costs, but agree that the move to ‘intent’ will lessen that cost.

Liam McArthur MSP – 30 September 2020

In discussion, the following matters were raised:

Welcomes the move to intent only.

Has a concern with Freedom of Expression provision, consider E&W provisions.

Consider using ‘threatening and abusive’ for stirring up offences but accepts it would be contrary to Section 38.

Consider including a dwelling place defence.

Would like to see information on the make-up and timetable for the Misogyny Working Group.

Concern on not having a definition of hatred especially relating to transgender debate.