Hate Crime and Public Order (Scotland) Act 2021 implementation: Justice Secretary statement

Presiding Officer, I’d like to provide Parliament with an update on the 2021 Hate Crime and Public Order (Scotland) Act.

After the commentary we have seen since the Act’s commencement on 1 April – much of it misleading at best – I will take this opportunity to remind members of its purpose.

Let me begin by emphasising that in Scotland we should be rightly proud of our history as a welcoming nation and one that celebrates and values diversity in our communities.

However, we must be vigilant in protecting those values, challenge those who deny them, and recognise there are people who experience hatred and prejudice every day. We cannot, and must not, be complacent.

We should remember that when we talk about hate crime, we are describing behaviour which is both criminal and rooted in prejudice; where the offender’s actions have been driven by hatred towards a particular group - hatred for people just on the basis of who they are.

Police Scotland describe hate crimes as offences which include but are not limited to “assault; verbal abuse; damage to property; threatening behaviour; robbery and harassment and it can take place anywhere, including online.” 

What the Hate Crime Act does, is maintain and consolidate existing legislative protections against offences aggravated by prejudice against the following five characteristics: disability, race, religion, sexual orientation and transgender identity.

These are the same characteristics that are protected under hate crime legislation in England and Wales.

The Act also, for the first time, includes age as a new statutory aggravation.

Last week, I visited Age Scotland and met with the Scottish Ethnic Minority Older People’s Forum who were generous in sharing their experiences and why the Act is important to them.

Katherine Crawford, Age Scotland’s CEO, stated:

“It is really important to see age included for the first time as we will get a much better picture of how this features in criminal acts, and how it cuts across other protected characteristics. We hope that the new laws will empower older people to report hate crimes”.

The Hate Crime Act introduces new offences for threatening and/or abusive behaviour and the communication of threatening or abusive material which is intended to stir up hatred against a group of people who possess, or appear to possess, the particular characteristics I have outlined.

This could take many forms, including pictures, videos or information posted on websites.  

Lord Bracadale, who led the independent review of hate crime legislation which led to this Act, was clear of the need for the legislation to include offences relating to stirring up of hatred, noting that, and I quote: “Stirring up of hatred may lead to violence or public disorder”.

Why would anyone in this Chamber not take a stand against this behaviour in our communities?

Again, these offences are similar to legislation in England and Wales, which has criminalised stirring up hatred on the grounds of religion since 2007 and sexual orientation since 2010. In some ways, members, we are a decade behind.

It’s also important to note that the new offences have a higher threshold for a crime to be committed than the long-standing offence of stirring up racial hatred, which has been in place for the best part of 40 years without controversy.  

People can still be offensive, critical and insulting under this Act, and we have seen people be exactly that. The Act includes rigorous safeguards on freedom of speech, and that behaviour or material is not to be taken to be threatening or abusive just because it involves discussion or criticism of matters relating to one of the characteristics included in legislation.

The Act is compatible with the European Convention on Human Rights and specifically provides that the court should have regard to the general principle that Article 10 rights apply to the expression of information or ideas that offend, shock or disturb. 

Presiding Officer, those of us with a platform as a politician or indeed a public figure have a responsibility to have debate that is rooted in reality, respect and facts.

Over the past month, there has unfortunately been deliberate misinformation and misrepresentation of the Act, losing sight and empathy towards the people in our communities it seeks to protect. Debate around the Act has provided little light, and too much heat.

There is nothing in the Hate Crime Act that is divisive. It should not be anyone’s intention to make it so, and we all know better than to believe everything that we read on social media.

Whilst we do not claim that legislation in and of itself can eradicate hatred or prejudice, critics shouldn’t trivialise or exaggerate its impact with false fears.

The Act is an essential element of our wider approach, set out in the Hate Crime Strategy published last year, to build a Scotland where everyone can feel safe.

We aren’t there yet and the reality is that there are people who are frightened to leave their home, who avoid public places and who significantly alter their lives in order to avoid certain interactions.

We must listen to those whose voices we have not heard in the last few weeks, who are the everyday victims of hate crime.

If we truly believe in taking a zero tolerance approach to hatred, then the law must adequately protect people from those who stir up hatred.

As Professor James Chalmers recently wrote, and I quote: “Anyone stirring up hatred against such a group is almost certainly already committing crime, such as threatening or abusive or breach of the peace. The effect of the Act here is not to make criminal what is currently lawful, but to ensure that the law properly recognises and describes the crime”.

Legislation to protect people from hatred and prejudice is not new, nor is it unique to Scotland. Wilful misinformation, causing confusion and ignoring the fact that similar laws have been in place across the UK without problem for decades, is deeply irresponsible and risks emboldening the small minority who genuinely pose a threat of abuse and violence.

We should instead look to those who explain the law as it is and not as they perceive it to be.

Adam Tomkins, former Conservative MSP and Professor of Public Law, stated in March: “Offensive speech is not criminalised by this legislation: the only speech relating to sexual orientation, transgender identity, age or disability outlawed here is speech which:
(1) a reasonable person (2) would consider to be threatening or abusive and which
(3) was intended to stir up hatred and
(4) was not reasonable in the circumstances”.

Presiding Officer, since 2014-15, recorded hate crimes annually have been between 6,300 and 7,000. In 2021-22, the police recorded 6,927 hate crimes and 62% of those included a race aggravator.

In 2020-21, almost a quarter of all victims were  police officers.

I am grateful to Police Scotland for their outstanding dedication and professionalism as this law came into force, and for all they do to keep our communities safe.

In the first week of implementation, Police Scotland received over 7000 reports of hate crime, the vast majority of which were not considered to be criminal. Of the 445 hate crimes recorded over the 1^st to 14^th April, only seven of those were ‘stirring up’ offences’.

In the last week, there has been a 74.4% decrease in online reports to 1,832. Sadly, the number of recorded hate crimes did not decrease so significantly, again reinforcing the importance of this legislation.

Whilst volumes of recorded hate crime are up on average, this is expected given the high profile nature of the Act’s implementation and hate crime continues to be underreported. 

Police Scotland have been clear that demand continues to be managed within their contact centres and impact on frontline policing has been minimal.

Presiding Officer, I accept that the Scottish Government could have done more to inform people about this Act as well as our wider approach to tackling hate crime and prejudice. We have therefore today published a factsheet to go along with the already published general information note on the Act.

However, let’s be clear, even if the Government had produced more information, bad faith actors who are intent on spreading disinformation would have done so regardless.

Presiding Officer, I am clear that the purpose and intent of the Hate Crime Act, which was passed by 82 members of this democratically elected Parliament, is to protect those in our country at risk of hatred and prejudice.

Tackling hate crime is not the responsibility of those targeted – it’s our responsibility. It’s everyone’s responsibility.

We are absolutely committed to the ambitious programme of work in our Hate Crime Strategy with a range of action underway to 2026 to support victims, improve data and evidence, and develop preventative approaches to hate crime.

People and communities at the sharp end of hatred in their daily lives simply for being who they are should rightly look to this Parliament to stand with them.

And this government, this Scottish Government, will continue to do so.