Hate Crime and Public Order (Scotland) Bill - Child Rights and Wellbeing Impact Assessment

CRWIA Stage 2

The CRWIA – key questions

1. Which UNCRC Articles are relevant to the policy/measure?

Article 2 (Non-discrimination): Children should not be discriminated against in the enjoyment of their rights. No child should be discriminated against because of the situation or status of their parent/carer(s).

Article 4 (Protection of rights): Governments should undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognised in the UNCRC.

Article 12 (Respect for the views of the child): Every child has a right to express their views and have them given due weight in accordance with their age and maturity. Children should be provided with the opportunity to be heard, either directly or through a representative or appropriate body.

Article 14 (Freedom of thought, conscience and religion): Every child has the right to think and believe what they like, and to practise their religion or beliefs publically, as long as they do not harm others in doing so. Governments must respect the right of parents to offer guidance to children where they are deciding what to think and believe.

Article 19 (Protection from all forms of violence): Children have a right to be protected from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation. Government’s must do all that they can do ensure this.

Article 23 (Children with disabilities): A disabled child has the right to enjoy a full and decent life in conditions which ensure dignity, promote self-reliance and facilitate the child’s active participation in the community. Governments must recognise the right of the disabled child to special care, and ensure the disabled child has effective access to education, training, health care, rehabilitation, preparation for employment, and recreational opportunities.

Article 30 (Children of minorities/indigenous groups): Every child has the right to learn and use the language, customs and religion of their family, whether or not these are shared by the majority of people in the country where they live.

There are no Optional Protocols that are relevant to this legislation.

2. What impact will the policy/measure have on children’s rights?

Positive: The Bill will provide protection in law for children and young people who are victims of hate crime who have one or more of the following characteristics:

• age,
• disability,
• race,
• religion,
• sexual orientation,
• transgender identity
• variations in sex characteristics.

The Bill also includes provisions to protect children and young people where the perpetrator has mistakenly perceived them to be a member of a group or if they are associated with a particular group of persons defined by reference to one or more of the above characteristics.

3. Will there be different impacts on different groups of children and young people?

The groups of children and young people most affected will be those who are victims of hate crime who have one or more of the following characteristics:

• age,
• disability,
• race,
• religion,
• sexual orientation,
• transgender identity
• variations in sex characteristics.

There is also evidence to suggest that young people under age 25 are more likely to be offenders of hate crime than any other age group.

4. If a negative impact is assessed for any area of rights or any group of children and young people, what options have you considered to modify the proposal, or mitigate the impact?

There is evidence to suggest that young people under 25 are more likely to be offenders of hate crime than any other age group. Consequently this may result in some children and young people having a disproportionate level of involvement from public bodies including the police and the judiciary.

Although we are unable to limit the impact of the Bill on children and young people who commit hate crime offences we can mitigate the impact by ensuring children and young people understand the consequences of such behaviour in order to prevent it from occurring in the first place.

5. How will the policy/measure contribute to the wellbeing of children and young people in Scotland?

Section 96(2) of Children and Young People (Scotland) Act lists the eight wellbeing indicators, sometimes referred to by the acronym SHANARRI:

• Safe – protected from abuse, neglect or harm at home, at school and in the community.
• Healthy – having the highest attainable standards of physical and mental health, access to suitable healthcare, and support in learning to make healthy and safe choices.
• Achieving – being supported and guided in learning and in the development of skills, confidence and self-esteem at home, in school, and in the community.
• Nurtured – having a nurturing place to live in a family setting, with additional help if needed, or, where this is not possible, in a suitable care setting.
• Active – Having opportunities to take part in activities such as play, recreation and sport which contribute to healthy growth and development, both at home and in the community.
• Respected – having the opportunity, along with carers, to be heard and involved in decisions that affect them.
• Responsible – having opportunities and encouragement to play active and responsible roles at home, in school and in the community, and where necessary, having appropriate guidance and supervision, being involved in decisions that affect them.
• Included – having help to overcome social, educational, physical and economic inequalities, and be accepted as part of the community in which they live and learn.

The Bill will impact the following children’s wellbeing indicators:

Safe – As previously stated, children and young people are particularly vulnerable to criminality including that which is rooted in prejudice. The Bill directly contributes to keeping children safe and protected from offences motivated by prejudice based on the characteristics of age, disability, sexual orientation, race, religion, transgender identity and variations in sex characteristics.

Healthy – As well as the threat of physical assault, the harm caused by hate crime can result in children and young people enduring mental distress such as depression, anger, anxiety and trauma. The Bill will help send a message that this behaviour will not be tolerated.

Included – Hate crime can cause harm to wider society in a number of different ways. This includes undermining its moral values, reducing tolerance, increasing the likelihood of hatred not being recognised or challenged thus becoming the ‘norm’ and raising the potential for social unrest. As a result some children and young people who are victims or witnesses of hate crime can become socially isolated and disconnected from their peers. The Bill will help send a message that hate crime and prejudice will not be tolerated.

6. How will the policy/measure give better or further effect to the implementation of the UNCRC in Scotland?

1) UNCRC Articles

Article 2 (Non-discrimination): Children should not be discriminated against in the enjoyment of their rights. No child should be discriminated against because of the situation or status of their parent/carer(s).

• Hate crime is one of the most damaging forms of intolerance and any child or young person targeted as result of their age, race, religion, disability, sexual orientation, variations in sex characteristics or transgender identity is a victim of prejudice. The Bill will contribute to furthering the implementation of UNCRC in Scotland by offering greater protection to children at risk from crime motivated by prejudice in relation to these characteristics.

Article 4 (Protection of rights): Governments should undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognised in the UNCRC.

• As set out in this impact assessment, the objectives of the Bill directly contribute to implementing a number of UNCRC articles in Scotland. Therefore, the measures being taken in the development of this Bill mean that Scottish Government are contributing to Scotland’s work in recognising and implementing the rights as set out in the UNCRC.

Article 12 (Respect for the views of the child): Every child has a right to express their views and have them given due weight in accordance with their age and maturity. Children should be provided with the opportunity to be heard, either directly or through a representative or appropriate body.

• The Scottish Government sought the views of children and young people to inform the development of the Hate Crime Bill through grant funding YouthLink Scotland to host consultation events with children and young people. These exercises helped inform on what should be included in the new hate crime Bill and contributed towards the delivery of Scotland’s commitment to respecting the views of the child in all aspects. There were also a number of separate responses from youth organisations, which informed the findings consultations for Lord Bracadale’s review^[9].

Article 14 (Freedom of thought, conscience and religion): Every child has the right to think and believe what they like, and to practise their religion or beliefs publically, as long as they do not harm others in doing so. Governments must respect the right of parents to offer guidance to children where they are deciding what to think and believe.

• Hate crime legislation already includes a statutory aggravation in relation to religion, and the Bill will introduce stirring up hatred offence based on religion. This means that offences motivated by prejudice in relation to religion are treated more seriously by the justice system. The Bill sends a message that hate crime is unacceptable and will not be tolerated by society, therefore reassuring people, including children and young people, of their right to practise their religion publically and without fear of doing so.
• In line with Lord Bracadale’s recommendations, the Bill also includes freedom of expression provisions in relation to the stirring up of hatred offences based on religion and sexual orientation. This is intended to make it clear that these offences do not interfere unduly with people’s right to, among other things, debate and discuss religion or religious beliefs and practices, to advocate or promote religious beliefs or practices or a change of religion, to urge people to cease practising their religion, or to express their views about whether it is right for people to engage in particular sexual practices.

Article 19 (Protection from all forms of violence): Children have a right to be protected from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation. Government’s must do all that they can do ensure this.

• Hate crime can be physical and/or psychological violence and abuse. The Bill will provide protection for children and young people at risk from criminal offences rooted in prejudice.

Article 23 (Children with disabilities): A disabled child has the right to enjoy a full and decent life in conditions which ensure dignity, promote self-reliance and facilitate the child’s active participation in the community. Governments must recognise the right of the disabled child to special care, and ensure the disabled child has effective access to education, training, health care, rehabilitation, preparation for employment, and recreational opportunities.

• Hate crime legislation already includes a statutory aggravation in relation to disability, and the Bill will also introduce a new stirring up hatred offences for disability. This means that offences motivated by prejudice in relation to disability are treated more seriously. The Bill sends a message that hate crime is unacceptable and will not be tolerated by society therefore recognising the rights of disabled children, ensuring their active participation in the community and mitigating social isolation.

Article 30 (Children of minorities/indigenous groups): Every child has the right to learn and use the language, customs and religion of their family, whether or not these are shared by the majority of people in the country where they live.

• Hate crime legislation already includes a statutory aggravation and stirring up hatred offences in relation to race. This means that offences motivated by prejudice in relation to race are treated more seriously. The Bill sends a message that race related hate crime is unacceptable and will not be tolerated by society therefore recognising that children have the right to use the language, customs and religion of their family without fear of prejudice.

2) UNCRC Concluding Observations 2016

The 2016 Concluding Observations sets out the recommendations made by the UN Committee on the Rights of the Child to the UK Government, setting out what it needs to do to comply with, and better progress, the implementation of the UNCRC.

The Bill contributes to taking forward the following recommendations:

General principles

Non-discrimination:

• Raise awareness and strengthen preventive activities to protect vulnerable groups of children from discrimination and stigmatisation.

Best interests of the child:

• Ensure that the best interests of the child is adequately integrated into all legislative, administrative and judicial proceedings and decisions as well as policies and programmes.

Respect the views of the child:

• Establish structures for the active and meaningful participation of children and give due weight to their views in designing laws, policies, programmes and services.

Hate crime is one of the most damaging forms of intolerance and any child or young person targeted as result of their age, race, religion, disability, sexual orientation, variations in sex characteristics or transgender identity are a victim of prejudice. Therefore the Bill will strengthen the protection afforded to those who need it by treating crimes motivated by prejudice more seriously, which will send a clear message to society that such prejudice is not acceptable and will not be tolerated.

Children and young people have helped to shape the development of the Bill through the consultation process. There were a number of responses from youth organisations There were a number of responses from youth organisations to the Scottish Government consultation^[10] and grant funding was also provided to YouthLink Scotland to host specific consultation events with children and young people^[11]. These exercises helped inform what should be included in the new hate crime Bill and to serve as a valuable contributor in Scotland’s commitment to respecting the views of the child in all aspects.

7. What evidence have you used to inform your assessment? What does it tell you?

A number of evidence sources have been used to help frame this assessment. These are detailed below.

Statistical Evidence

Hate Crime

At this time, information on the age of victims and perpetrators is not generally available for police recorded crime. Scottish Government statisticians are continuing to engage with Police Scotland as they develop and improve the information they hold on hate crime. This includes plans for Scottish Government statisticians to review a large sample of police recorded hate crimes to investigate further the characteristics and circumstances of these cases (including information on the age of those involved). It is anticipated that a report on the findings of this exercise will be published in 2020.

Additionally, no figures are currently recorded for age related hate crime as this not currently a protected characteristic in existing hate crime legislation and age is not currently a statutory aggravation in hate crime law in Scotland.

The, Girls’ Attitudes Survey 2019^[12], conducted by the Girl Guiding UK asked specific questions regarding bullying in relation to the characteristics and the numbers that have been subject to these forms of harassment:

• Sexual orientation: 10% of 11-21 year olds
• Ethnicity or religion: 8% of 7-10 year olds and 10% of 11-21 year olds
• Disability: 7% of 7-10 year olds and 7% of 11-21 year olds

Bullying

In Scotland the, Growing Up in Scotland Survey: Life at Age 12^[13], found that bullying was a relatively common experience with a significant minority of children experiencing it in some form on a regular basis. The most common behaviour children experienced was being called names. Forty-three percent said they had ever experienced this, including 10% who said they were being called names or made fun of most days. There was no notable difference between boys’ and girls’ experience of being called names or made fun of.

Girls were more likely than boys to be picked on by being left out of games and chats (30% compared with 24%) whilst boys were more likely than girls to get picked on by shoving, pushing or fighting (17% compared with 24%). The vast majority of children (86%) had never been picked on via messages or online posts, though 14% had experienced this to some degree. This form of bullying was more common for girls than boys (17% compared with 12%).

Experience of Crime

The, Scottish Crime and Justice Survey 2017-18^[14], reported that the likelihood of being experiencing crime was lowest for those aged 60 and over at 5.3%. In comparison 16% of 16-24 year olds experienced crime.

Discrimination and Harassment

The Scottish Household Survey 2018^[15] found that 8% of adults reported that they had experienced discrimination and 6% had experienced harassment in Scotland at some point over the last 12 months. The survey showed that 15% of those who reported experiencing harassment and 7% who reported experiencing discrimination said it was motivated by their age.

The same survey found that some groups were more likely than others to report having experienced discrimination or harassment in Scotland. For instance this included ethnic minorities, people who are gay/lesbian/bisexual and those who reported belonging to a religion other than Christianity.

The most common reason cited as the motivating factor for reporting discrimination was the respondent’s nationality at 19 per cent. The other most common motivating factors included the respondent’s age (15 per cent), health problem or disability (11 per cent), ethnicity (11 per cent), mental ill-health (10 per cent), gender (10 per cent) and accent (10 per cent).

Of those who had experienced harassment, 15 per cent cited their nationality as the perceived reason and 11 per cent cited their ethnicity, with ‘other reasons’ being the most common individual response (20 per cent).

Although the youngest age group the Scottish Household Survey 2018^[16] covers is 16-24 year olds, the Scottish Governments expects that those under the age of 18 are similarly affected by discrimination and harassment.

Mental health

The Scottish Health Survey 2017^[17] and the Scottish Schools Adolescent Lifestyle and Substance Use Survey, 2015^[18] report that at ages 13-15, girls were more likely than boys to have poor mental wellbeing in 2015. The same surveys also state 15-year-old girls had poorer mental wellbeing than 13-year-olds, on average, and had also seen a greater decline in some specific aspects of their mental health, since 2010. While 61% of girls aged 15 said that they had been ‘feeling cheerful’ all the time or often in 2010, this fell to 44% in 2015. The proportion of those who said that they had ‘had energy to spare’ fell from 43% to 28%.

At ages 13-15, girls were also significantly more likely than boys to experience emotional problems, with 31% of girls aged 13, and 44% of girls aged 15, showing a borderline or abnormal emotional problems score in 2015 (compared to 12% and 15% respectively of boys of the same ages).

The proportion of 15-year-old girls saying it was certainly true that they worry a lot or that they were nervous in new situations and easily lose confidence increased considerably between 2006 and 2015. 29% said that they worried a lot in 2006, compared to 50% in 2015, while the proportion who said that it was certainly true that they were nervous in new situations and easily lose confidence increased from 31% in 2006 to 44% in 2015.

As of 2015, girls aged 13 and 15 years old were more likely to experience poor mental wellbeing and emotional and behavioural problems if they were a young carer. While 13-year-old girls who were not carers had a mean score of 48.7 on the Warwick-Edinburgh Mental Wellbeing Scale (WEMWBS), those who were young carers had a mean score of 44.2. The relationship between caring and experiencing emotional and behavioural problems was particularly strong among 15-year-old girls.^[19]

Lord Bracadale’s Review findings

Lord Bracadale considered whether age should be included as a characteristic within hate crime legislation. He noted stakeholders reported that while it may be that many crimes against the elderly are motivated by a desire to exploit a perceived vulnerability, some crimes are motivated by hostility based on the perceived age of the victim. He found that, ‘there is sufficient evidence of hostility-based offences against the elderly, particularly in the light of the information provided by Action for Elder Abuse, to include age as a protected characteristic based on the current model of hostility.’ Lord Bracadale also considered the application of this to children and young people particularly in reference to bullying.^[20]

Lord Bracadale therefore recommended that, there should be a new statutory aggravation based on age hostility. He suggested that this should covers people of any age and should not refer to a particular age group such as elderly people or children and young people.^[21]

Lord Bracadale also recommended to introduce stirring up offences for all existing and any new characteristics including age. He recommended that the threshold about the nature of the conduct in a stirring up of hatred offence should be based on including conduct that is ‘threatening or abusive’. He also considers the reference to ‘insulting’ conduct, currently included in the stirring up of racial hatred offence, should not form part of any new stirring up offences.^[22]

Consultation

The consultation, One Scotland: Hate Has No Home Here^[23], ran from 14 November 2018 to 24 February 2019. This sought views on the above recommendations and what should be included in the new Hate Crime Bill. There were 1,159 written responses submitted in total with approximately 91% (1,051) of these from members of the public and the remainder by organisations (108).

In December 2018 and January to February of 2019, as part of the consultation process, the Scottish Government also ran eleven public awareness events throughout Scotland. Many of these were attended by young people either with a general interest in hate crime legislation or as representatives of young people’s organisations.

Subsequently the Scottish Government contracted independent external analysts who undertook the analysis of the consultation responses and produced a report, Consultation on amending Scottish hate crime legislation: analysis of responses^[24], published by the SG in June 2019.

In regards to a new statutory aggravation for age, there were mixed views. A total of 29% of respondents were in favour and 55% were not, although 63% of organisations supported a new statutory aggravation for age. Those in favour argued that there was a need for legislation in this area and there should be a consistent approach to statutory aggravations applied across all characteristics. These respondents also thought that the creation of a new statutory aggravation relating to age would provide a deterrent to age-related hostility. Those opposed thought that there was little evidence of age-related hostility being targeted either at older people or at young people and, therefore, legislation in this area was not needed. Some thought a statutory aggravation relating to ‘age’ would be unworkable in practice^[25].

Respondents felt that most offences committed against the elderly were likely to be motivated by a perpetrator’s perception of the victim’s vulnerability, rather than age-related hostility^[26].

It was also highlighted that since age is a protected characteristic under the Equality Act 2010^[27] adding age would represent a consistent approach.

Respondents suggested that young people regularly feel discriminated against because of their age. They also raised the issue of intersectionality where children from groups as defined by reference to one of the existing characteristics protected by hate crime legislation being more likely to experience hate crime and that this could be compounded because the offender sees them as additionally vulnerable on account of their youth.

We also heard from the attendees at the consultation public awareness events that any legislative changes should not put young people at risk from being overly-criminalised.

Other respondents queried the current definition of an age hostility aggravation put forward in the consultation document and suggested that this needs to be made clearer in order to mitigate potential legislative limitations.

Consequently it was recommended that any legislative development which would directly impact children and young people should be subject to a Child Rights and Wellbeing Impact Assessment.

Despite these concerns there remains broad support among interested parties that this Bill would have positive impact on the lives of Scottish children and young people particularly in respect to affording a more robust level of protection to those under 18 from within the characteristics.^[28]

Police Scotland consultation response^[29]

Police Scotland highlighted this in their consultation response that young people (under 25) are more likely to be perpetrators of hate crime. Police Scotland highlighted this in their consultation response which also states, ‘we recognise that many offences committed by children are committed against other children’. They noted that support and education for young people is needed to ‘ensure that the rights and needs of victims are supported and addressed.’

Police Scotland did not support adding the characteristic of age to hate crime legislation because they believe the majority of crimes are in relation to age are more likely to be motivated by vulnerability, or a perceived vulnerability of older people. They also asked ‘for further detailed consideration of how a new statutory aggravation on age hostility might be introduced without generating unintended negative consequences on children.’

Police Scotland added, ‘we wish to inform children of the devastating impacts of hate crimes and incidents and educate them to change behaviour and attitudes in future generations.’ They want to work with partners to ‘create an environment where children learn and change their behaviour to avoid future harm and further victims.’

Additional Stakeholder Engagement

Stakeholder engagement sessions were held in the summer of 2018 with a number of stakeholders including youth organisations. During the course of these engagements it was revealed that younger people, in particular, welcomed the addition of a statutory aggravation for age.

YouthLink Scotland Events^[30]

The Scottish Government provided grant funding for YouthLink Scotland to host consultation events with children and young people on what should be included in the new hate crime legislation.

There was a strong view amongst the young people that both older and younger people could potentially be victimised because of their age and therefore they were very supportive of age being added as a characteristic within hate crime law.

They were also supportive of developing a statutory aggravation for gender hostility. There was a strong feeling that any new legislation should be inclusive for both men and women and therefore there should not be a standalone offence for misogyny.

They were supportive of the extension of the stirring up of hatred offences for all protected characteristics and agreed that the terms used in Scottish hate crime legislation in relation to transgender identity and intersex should be updated.

They were also generally in agreement that section 50A of the Criminal Law (Consolidation) (Scotland) Act 1995 should be repealed because all hate crime aggravators should be treated equally. There was however, a strong view that section 50A should only be repealed if there is a change to the recommended language in section 38 of the Criminal Justice and Licensing (Scotland) Act 2010 to include fear, alarm and distress. It was felt that all three terms are important and should be included.

The group were generally not supportive of the proposed definition as recommended by the Working Group on Defining Sectarianism in Scots Law. They thought that the Working Group’s definition should include hostility within different religions as well as Christianity. Personal examples were shared about hostility which has been shown towards them because their family belonged to a particular Muslim sect. It was accepted amongst young people that intra-Christian sectarianism is an issue in Scotland but that other faiths also experience sectarianism which should be covered by the legislation

8. Have you consulted with relevant stakeholders?

The following youth organisations responded to the consultation paper for Lord Bracadale’s, Independent Review of Hate Crime Legislation in Scotland^[31]:

• Commissioner for Children and Young People;
• Equalities and Human Rights committee of the Scottish Parliament (EHRiC) and the Equalities and Human Rights committee of the Scottish Youth Parliament (EQU);
• LGBT Youth;
• Young Scot;
• Youth Parliament
• YouthLink Scotland

The following youth organisations responded to the consultation paper for, One Scotland: Hate Has No Home Here^[32]:

• Children in Scotland;
• LGBT Youth Scotland;
• Scottish Children’s Reporter Administration;
• Together (Scottish Alliance for Children’s Rights);
• YouthLink Scotland;
• Youth Community Support Agency YCSA

The following youth organisations attended the 2018 summer engagement events:

• LGBT Youth Scotland
• YouthLink
• Children's Parliament

The following youth organisations attended the YouthLink Scotland consultation events:

• Edinburgh Interfaith Association
• LGBT Youth Scotland
• Hope for Autism
• Youth Community Support Agency (YCSA)

9. Have you involved children and young people in the development of the policy/measure?

The Ministerial consultation launch took place at the 6VT Youth Café (and third party reporting centre) in Edinburgh on 14 November 2018. This was attended by the Cabinet Secretary for the Justice, the Cabinet Secretary for Communities and Local Government and the Lord Advocate and provided them with a valuable opportunity to meet with young people affected by hate crime and to hear directly of their experiences.

Subsequently the Scottish Government filmed a short video^[33] with two young people identified through 6VT. In the film they provided insightful lived experiences of hate crime which helped to inform the presentation and discussions at the 11 consultation roadshows.

As above, the Scottish Government provided grant funding for YouthLink Scotland to hosting their own consultation events with young people. In doing so they met with the Edinburgh Interfaith Association, Hope for Autism, LGBT Youth Scotland and the Youth Community Support Agency (YCSA). YouthLink Scotland then used these engagement sessions to inform their own response to the consultation.

The variety of methods utilised to engage and consult with children and young people directly, as well as with relevant stakeholders representing children and young people has enabled the Scottish Government to make an informed assessment of the impact on this particular group of people.