Hate Crime and Public Order (Scotland) Bill - Equality Impact Assessment

Equality Impact Assessment Record

Legislation:

Hate Crime and Public Order (Scotland) Bill

Minister:

Mr Humza Yousaf; Cabinet Secretary for Justice

Lead official:

Mr Brian Hirst; Hate Crime Bill Team

Officials involved in the EQIA: Name\Team

Mr Bill Brash: Hate Crime Bill Team
Ms Jo Gillies: Connected Communities
Ms Rachael Wilson: Connected Communities
Mr Philip Lamont: Criminal Justice
Mr Patrick Down: Criminal Justice
Ms Linsay Mackay: Criminal Justice
Mr Stephen Coulter: Safer Communities
Mr Neil Grant: Justice Analytical Services

Directorate: Division: Team:

Local Government and Communities: Connected Communities: Hate Crime Bill Team

Is this new policy or revision to an existing policy?

Both – the Bill will consolidate, modernise and extend hate crime legislation

Screening

Background

In September 2016, a review by the Independent Advisory Group on Hate Crime, Prejudice and Community Cohesion^[1], was published which included a number of recommendations for the Scottish Government (SG) and its partners. These were:

• the SG should consider whether the existing criminal law provides sufficient protections for those who may be at risk of hate crime;
• the SG 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 to conduct an Independent Review of Hate Crime Legislation in Scotland^[2]. 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^[3] 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 would be included in a new hate crime bill.

On 14 November 2018 the Cabinet Secretary for Justice and Cabinet Secretary for Communities launched a public consultation on hate crime legislation in Scotland in response to recommendations made by Lord Bracadale, which sought views on what should be included in a new hate crime bill.

The consultation exercise ran from 14 November 2018 to 24 February 2019, with 1,159 written responses submitted in total.  A total of 1,051 responses were received from individuals (91% of responses) and 108 responses from organisations (third sector bodies, public sector and partnership bodies, faith groups and other organisations). Additionally, a series of 11 consultation roadshows were held across Scotland from December 2018 to February 2019 enabling approximately 400 individuals and organisations to engage in discussion and have their views heard about Lord Bracadale’s recommendations.

Hate Crime and Public Order (Scotland) Bill

This Bill provides for the modernising, consolidating and extending of hate crime legislation in Scotland.  Legislation in this area has evolved over time in a fragmented manner with the result that different elements of hate crime law are located in different statutes, there is a lack of consistency, and the relevant legislation is not as user-friendly as it could be.  The new hate crime legislation will provide greater clarity, transparency and consistency.

The Scottish Government is committed to taking this opportunity to shape hate crime legislation so that it is fit for 21st century Scotland and, most importantly, affords sufficient protection for those that need it. 

The Scottish Government recognises that legislation in and of itself is not enough to build the inclusive and equal society that we aspire to, however having clear legislation about hate crime sends a strong message.  In particular, it makes it clear to victims, perpetrators, and communities and to wider society that offences motivated by prejudice will be treated more seriously and will not be tolerated by society.

Policy Aim

Scotland’s diversity is its strength; and all communities are valued and their contribution welcomed.  Hate crime and prejudice threaten community cohesion and have a corrosive impact on Scotland's communities as well as broader society.  It is never acceptable and the Scottish Government is committed to tackling it.

This legislation provides an essential element of the Scottish Government’s ambitious programme of work to tackle hate crime and build community cohesion.  Anyone who has experienced or witnessed a hate crime is encouraged to report it to the police or to one of the third party reporting centres that are in place across Scotland.

A cohesive society is one with a common vision and a sense of belonging for all communities; a society in which the diversity of people's backgrounds, beliefs and circumstances are appreciated and valued, and similar life opportunities are available to all.  It is through this lens that the Scottish Government has considered the recommendations from Lord Bracadale’s ‘Independent Review of Hate Crime Legislation in Scotland’  in order to inform the modernisation and reform of hate crime legislation in Scotland.

To ensure a consistent overarching approach, the Scottish Government identified a set of three principles to inform and guide policy decision making and development of hate crime legislation.  These principles are:

• Standardisation and consistency of approach: across the characteristics, apart from where there is good reason to justify an exception.  For example, in principle the Scottish Government has sought to ensure a consistent approach across the characteristics, including any new characteristics.  This would involve a standard approach to how, for example, the statutory aggravations are applied, and would also help ensure there is not a perceived (or real) hierarchy between the characteristics. 
• Future proofing of legislation: to reflect society in Scotland within the 21^st Century whilst ensuring as far as possible that the law remains fit for purpose for the future.  It is essential that the form and structure of the legislation is correct for current policy, but it would also be useful to ensure as appropriate that the legislation is set up so that it can be amended in the future.  In particular, while the focus of the legislation is on addressing hate crime in today’s society, such as racial and religious hatred, provision is also included to enable the characteristic of sex to be added into the new legislative framework established by the Bill, at a later date by means of regulations.  It is also crucial that the legislation is robust and deliverable, ensuring that barriers and ambiguity are not created that will impede its application in order to help ensure the legislation can stand the test of time.
• Contribution to a modern Scotland: to build a more equal and inclusive Scotland.  For example, hate crime legislation plays its role as part of wider efforts to ensure people feel safe and can live free from discrimination, through ensuring hate crime is enforceable with clear consequences, and where people have a greater and clearer understanding of hate crime and its consequences. 

Hate Crime Definition

There is no single accepted definition of hate crime with different definitions produced for different purposes, however Lord Bracadale stated in his review:

“Hate crime is the term used to describe behaviour which is both criminal and rooted in prejudice”. 

Rationale for Hate Crime Legislation

Hate crime legislation helps recognise the particular impact and harm caused by hate crime. Harm can be caused to the victim, the group the victim belongs to and to wider society.   Hate crime legislation makes it clear that such behaviour is not acceptable and sends a message to victims, perpetrators and wider society that hate crime is not acceptable and will not be tolerated.

The courts take it into consideration when offences are motivated by prejudice when determining sentences.  Recording of convictions for hate crimes (whether the aggravation of offences by prejudice or offences relating to stirring up hatred) ensures that levels of hate crime are recorded and trends can be identified and monitored.   

Current Hate Crime Legislation In Scotland

Current hate crime legislation in Scotland specifies when an existing offence may be aggravated by prejudice in respect of one or more of the characteristics of race, religion, disability, sexual orientation and transgender identity (which includes ‘intersexuality’).  This approach does not involve the creation of new offences; rather it involves an existing offence (e.g. murder, assault, breach of the peace) being ‘aggravated’ where the perpetrator evinces, or is motivated by, malice and ill-will towards a group of persons defined by reference to one or more of the above characteristics.

In Scotland, the existing ‘hate crime’ statutory aggravations are:

• race: section 96 of the Crime and Disorder Act 1998 (‘the 1998 Act’);
• religion: section 74 of the Criminal Justice (Scotland) Act 2003 (‘the 2003 Act’);
• disability: section 1 of the Offences (Aggravation by Prejudice) (Scotland) Act 2009 (“the 2009 Act”);
• sexual orientation: section 2 of the 2009 Act;
• transgender identity: section 2 of the 2009 Act.

The above legislation makes provision for the aggravation of offences, requiring courts to take the aggravation into account when determining sentence. 

Prejudice or hostility also lies at the heart of some other offences which are recognised as hate crimes.  These are sometimes referred to as standalone hate crime offences and they criminalise behaviour specifically because it involves racial prejudice.  Currently, these standalone offences include:

• racially aggravated harassment: section 50A of the Criminal Law (Consolidation) (Scotland) Act 1995; and
• stirring up of racial hatred: sections 18 to 23 of the Public Order Act 1986. 

National Outcomes

These changes in particular support the following National Performance Framework objectives:

• We grow up loved, safe and respected so that we realise our full potential.
• We live in communities that are inclusive, empowered, resilient and safe.
• We are creative and our vibrant and diverse cultures are expressed and enjoyed widely.
• We respect, protect and fulfil human rights and live free from discrimination.

Who will it affect?

It is expected to affect, in some capacity all people living in Scotland. In particular, it will extend the characteristics to which hate crime statutory aggravations apply and extend existing ‘stirring up’ of hatred offences to all statutory characteristics (these are currently only provided for race).

The legislation specifically creates criminal offences and statutory aggravations in respect of the characteristics of age, disability, race, religion, sexual orientation, transgender identity and variations in sex characteristics.  The legislation provides a criminal justice response to hate crime, acting as a deterrent and thereby sending a clear message to society that this behaviour is not acceptable and will not be tolerated.

What might prevent the desired outcomes being achieved?

Although there was broad support for hate crime laws and for consolidation and modernisation among organisations, the majority of individuals were not supportive of hate crime laws suggesting that they restrict freedom of expression and create a hierarchy of victims. Those who supported having hate crime laws saw it as important in protecting particular groups and that it sends a clear message about unacceptable conduct.

Although supportive of hate crime legislation generally, a number of organisations were divided on a range of key issues included in the Scottish Government consultation. These included:

• whether sectarianism should be included as a characteristic within hate crime legislation
• whether section 50A of the Criminal Law (Consolidation) (Scotland) Act 1995 should be repealed
• whether gender should be included as a characteristic within hate crime legislation

Scottish Government have ensured concerns have been addressed as far as possible and that there is robust justification for the decisions taken in developing the Bill. Engagement with stakeholders will continue as the Bill progresses through Parliament.