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

CRWIA – Stage 3 - Publication Template

CRWIA for legislation (Scottish Government use only)

CRWIA title: Hate Crime Bill
Date of publication:

Executive summary

This Child Rights and Wellbeing Impact Assessment considers the impact of the consolidation, modernisation and extension of Scottish Hate Crime Legislation.

The Bill seeks to consolidate, modernise and extend existing hate crime legislation by:

• adding age as a new characteristic;
• the conferral of an enabling power to allow additional characteristics to be added by regulations in the future, which could be used to add a gender/sex characteristic;
• updating the definition of transgender identity, including removing the term ‘intersexuality’ and creating a separate category for variations in sex characteristics;
• providing new stirring up hatred offences that will apply to all characteristics in the Bill (currently these offences only relate to race);
• abolish the common law offence of blasphemy

The Bill is expected to have a direct and positive impact on children and young people in Scotland for a number of reasons:

• The Bill includes a new statutory aggravation for age and a new stirring up hatred offences based on age. This will provide protection for children and young people who may be victims of age related hate crime by making it clear that this type of prejudice is unacceptable and will not be tolerated.
• The Bill also introduces new stirring up hatred offences based on religion, disability, sexual orientation, transgender identity and variations in sex characteristics (currently this only exists for race) and will therefore provide increased protection for children and young people who may be victims of such offences.

Hate crime can cause serious harm to children and young people both physically, mentally and emotionally and also result in social isolation and disconnected from their peers. The Bill sends a message that hate crime is unacceptable and will not be tolerated by society

The Bill contributes directly to three of the Section 96(2) of Children and Young People (Scotland) Act (SHANARRI) wellbeing indicators:

• Safe;
• Healthy;
• Included

The Bill contributes to the fulfilment of seven articles of the UNCRC:

• Article 2 (Non-discrimination),
• Article 4 (Protection of rights),
• Article 12 (Respect for the views of the child),
• Article 14 (Freedom of thought, conscience and religion),
• Article 19 (Protection from all forms of violence),
• Article 23 (Children with disabilities),
• Article 30 (Children of minorities/indigenous groups)

It will also contribute to implementing some of the recommendations given to the UK in the UN’s Committee on the Rights of the Child in their Concluding Observations (2016). In total, this Bill is acting in accordance to four recommendations.

• Consider amending equality legislation to protect all children under 18 from discrimination on the grounds of their age.
• Raise awareness and strengthen preventive activities to protect vulnerable groups of children from discrimination and stigmatisation.
• 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.
• Establish structures for the active and meaningful participation of children and give due weight to their views in designing laws, policies, programmes and services.

The impact assessment has therefore identified that these legislative measures will have a significantly positive impact on furthering child rights and wellbeing in Scotland.

Following the Scottish Government consultation, the Scottish Government does not anticipate that the Bill will leave children open to any legal disadvantage or increase of police charges or prosecution. The Bill’s inclusion of age as a characteristic has the potential to counter-act aged based prejudice while also addressing wider societal issues surrounding the negative portrayals of children and young people by the media.

Background

In September 2016, a review by the Independent Advisory Group on Hate Crime, Prejudice and Community Cohesion^[34] was published which recommended that:

• the Scottish Government should consider whether the existing criminal law provides sufficient protections for those who may be at risk of hate crime,
• the Scottish Government should lead discussion on the development of clearer terminology and definitions around hate crime, prejudice and community cohesion

This led to the appointment of Lord Bracadale, in January 2017, to conduct an Independent Review of Hate Crime Legislation in Scotland^[35]. The remit for Lord Bracadale’s review was to consider whether existing hate crime law represents the most effective approach for the justice system to deal with criminal conduct motivated by hatred, malice, ill-will or prejudice. Lord Bracadale was asked by the Scottish Ministers to consider:

• the current law and consider how well it deals with hate crime behaviour,
• whether new statutory aggravations should be created for example in relation to age and gender,
• whether the religious statutory aggravation is fit for purpose or should be expanded,
• whether we should make hate crime laws simpler by bringing them all together in one place,
• any issues or gaps in the framework for hate crime laws and to make sure that hate crime laws are compatible with laws that protect human rights and equality

Lord Bracadale published his Independent Review of Hate Crime Legislation in Scotland^[36] on 31 May 2018. In response, the Scottish Government, accepted his recommendation to consolidate all Scottish hate crime legislation into one new hate crime statute and committed to consult on the detail of what will be included in the new Hate Crime Bill.

Scope of the CRWIA, identifying the children and young people affected by the policy, and summarising the evidence base

Although the Bill applies across Scotland, it specifically creates criminal offences and statutory aggravations which give protection to those persons with characteristics relating to age, disability, race, religion, sexual orientation, transgender identity and variations in sex characteristics.

The Bill will provide specific protection to victims of hate crime, including children and young people, who have one or more of the following characteristics:

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

The evidence base used to develop the assessment included Scottish Government publications, Scottish Crime and Justice Survey 2017-18^[37], and the, Scottish Household Survey 2018^[38], along with wider sources such as the Girls’ Attitudes Survey 2019^[39].

The Scottish Government consultation, One Scotland: Hate Has No Home Here^[40], considered Lord Bracadale’s recommendations to inform what should be included in the Bill. As part of the consultation process the Scottish Government also ran twelve 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.

Furthermore 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^[41], published by the SG in June 2019.

Children and young people’s views and experiences

The consultation, One Scotland: Hate Has No Home Here^[42], 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).

Responses to the consultation and attendance at the associated roadshow events revealed a wide range of informative information regarding young people’s views on hate crime legislation.

Through the consultation exercise, and other engagement events, the Scottish Government communicated directly with key stakeholders including YouthLink Scotland, Police Scotland and LGBT Youth Scotland.

Additionally, the Scottish Government also provided a grant to YouthLink Scotland for hosting their own consultation events. They, in turn, gathered the views of other children and young people’s organisations on what should be included in the Bill. 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.

Key Findings, including an assessment of the impact on children’s rights, and how the measure will contribute to children’s wellbeing

The Bill will have a positive impact on enhancing Children’s Rights in Scotland, and in ensuring the wellbeing of Scottish children.

1) UNCRC Articles

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.

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 discrimination in relation to these characteristics.

The Scottish Government sought the views of children and young people to inform the development of the 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 Bill and contributed towards the delivery of Scotland’s commitment to respecting the views of the child in all aspects.

The Bill sends a message that hate crime is unacceptable and will not be tolerated by society. It aims to:

• reassure children and young people of their right to practise their religion publically and without fear of doing so
• make clear that offences motivated by prejudice in relation to disability is unacceptable and will not be tolerated
• send a message that race related hate crime is unacceptable and will not be tolerated

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.

This 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.

Lastly, the Bill also contributes to the furthering of child wellbeing in Scotland in reference to the eight child wellbeing indicators. The Bill will directly impact on the indicators of: Safe, Healthy and Included.

Monitoring and review

Given the nature of this Bill it will be appropriate for a review of this assessment during the course of the Bill process and beyond as the Scottish Government continues to engage with key stakeholders.

Bill - Clause	Aims of measure	Likely to impact on . . .	Compliance with UNCRC requirements	Contribution to local duties to safeguard, support and promote child wellbeing
Consolidation and modernisation of legislative framework for hate crime law	Consolidate, modernise and extends Scottish Hate Crime legislation.	Positively on those agreed under 18.	Article 2 (Non-discrimination): Article 4 (Protection of rights): Article 12 (Respect for the views of the child): Article 14 (Freedom of thought, conscience and religion): Article 19 (Protection from all forms of violence): Article 23 (Children with disabilities): Article 30 (Children of minorities/indigenous groups):	Safe Healthy Included
Stirring Up Offences for all characteristics.	Providing new stirring up hatred offences for all characteristics in the Bill (including age).	Positively on those agreed under 18.	Article 2 (Non-discrimination): Article 4 (Protection of rights): Article 12 (Respect for the views of the child): Article 14 (Freedom of thought, conscience and religion): Article 19 (Protection from all forms of violence): Article 23 (Children with disabilities): Article 30 (Children of minorities/indigenous groups):	Safe Healthy Included
New aggravations for crime motivated on grounds of age	An offence is aggravated if the offender evinces malice and ill‑will towards a victim based on their age	Positively on those agreed under 18.	Article 2 (Non-discrimination): Article 4 (Protection of rights): Article 12 (Respect for the views of the child): Article 14 (Freedom of thought, conscience and religion): Article 19 (Protection from all forms of violence): Article 23 (Children with disabilities): Article 30 (Children of minorities/indigenous groups):	Safe Healthy Included
Abolish blasphemy	To abolish the common law offence of blasphemy.	No-one: last prosecution over 175 years ago.

CRWIA Declaration

Authorisation

Policy lead

Brian Hirst
Hate Crime Bill Policy Support Officer
Connected Communities Division

Date 04 March 2020

Deputy Director or equivalent

Robert Marshall
Deputy Director
Connected Communities Division

Date 04 March 2020