Hate crime strategy

7. Key principles

Protecting human rights is central to our approach

All human beings are entitled to basic rights and freedoms, which is why we strive to create an inclusive Scotland and realise our obligation to respect, protect, and fulfil rights recognised by international frameworks.

Hate crime and hate speech engages a number of rights protected by international treaties. Article 8 of the European Convention on Human Rights ("ECHR") (the right to respect for private and family life), article 3 (the prohibition on torture, inhuman or degrading treatment or punishment) and in some cases article 2 (the right to life), may be relevant to offences committed on the basis of hate and prejudice towards a particular group.

Article 14 requires that all of the rights and freedoms set out in the ECHR must be protected and applied without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

Measures which prohibit hate speech may engage an individual's Article 10 rights under the ECHR. These rights protect freedom of expression but are not absolute, and may be restricted to protect the rights of others. Article 10 requires for example that legislative measures criminalising hate speech must clearly and precisely define the scope of relevant offences, to minimise the potential for their discretionary application or abuse by authorities.^[14]

Article 17 of the ECHR prevents people from using human rights to undermine the rights of others.

The ECHR is protected in domestic law by the Human Rights Act 1998 which incorporates rights protected by the Convention.

In addition there are several United Nations ("UN") treaties that deal specifically with hate crime, for example:

• The UN International Covenant on Civil and Political Rights (ICCPR), places an obligation on States Parties to prohibit hate speech; Article 20(2) provides that: 'any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.'
• The UN International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) directs signatory countries to eradicate incitement to racial hatred and discrimination; combat prejudices which lead to racial discrimination; and guarantee the enjoyment of civil, political, economic, social and cultural rights without discrimination on grounds of race, colour, or national or ethnic origin.
• The UN Convention of the Rights of Persons with Disabilities (CRPD) promotes, protects and ensures the full and equal enjoyment of all human rights and fundamental freedoms by all disabled people. Article 16 in particular directs that disabled people should live free from exploitation, violence and abuse.

Our approach to hate crime is rooted in human rights and we are committed to continuing to assess and develop this. A human rights approach means putting the rights and interest of people at the centre of our policies. The PANEL principles, which are endorsed by the Scottish Human Rights Commission (SHRC), are a useful framework to support a human rights approach in practice.

• Participation: People are involved and participate in decisions that affect their rights.
• Accountability: We are held accountable through monitoring of rights; if and how they are being affected and remedies when things go wrong.
• Non-discrimination: People who face the biggest barriers to realising their rights should be prioritised and all forms of discrimination eliminated.
• Empowerment: Everyone should understand their rights and be fully supported to participate and claim their rights.
• Legality: Adherence to domestic and international laws.

Children's rights are also an important element in order to ensure that action to tackle prejudice and hatred in Scotland is meaningful for all people of all ages. The intent behind the UNCRC (Incorporation) (Scotland) Bill is, within devolved competence, to deliver a proactive culture of everyday accountability for children's rights across public services in Scotland. The Bill, once it comes into force, will allow children, young people and their representatives to use the courts to enforce their rights. The articles to be incorporated by the UNCRC Bill will include Article 2 (non-discrimination), Article 14 (freedom of thought, conscience and religion) and Article 19 (protection from all forms of violence).

This strategy has been developed with the participation of communities affected by hate crime, and we are committed to ensuing people are supported to participate in on-going engagement as we work to take forward the commitments outlined in this strategy. We are clear that people should be able to live free from fear and supported to understand how they are protected under hate crime legislation, including how they can access justice through legal frameworks if they experience hate crime. The commitments in this strategy set out which organisations are accountable for delivery of this strategy.

While we need to act now to ensure we prevent hate crime and hold people accountable for crimes committed, the commitments set out in this strategy will be strengthened by our proposed Human Rights Bill. When passed into law, this Bill will further people's ability to assert their rights, through incorporating specific UN treaties, including for the protection of women, disabled people and minority ethnic people into Scots law, within the limits of devolved competence. In addition, we will take into account links to the work of the UN Open-Ended Working Group which is preparing a new UN treaty on the rights of older persons.

Equality and inclusion

In addition to, and as part of, respecting, protecting and fulfilling human rights, promoting equality and inclusion underpin our approach to tackling prejudice and hate crime.

The Equality Act 2010^[15] places a duty on public authorities to: eliminate discrimination, harassment and victimisation; advance equality of opportunity; and to foster good relations between persons who share a protected characteristic and those who do not. This is known as the Public Sector Equality Duty (PSED).

Although the 2010 Act is largely reserved, Scottish Ministers have used their powers to support compliance with the general duty by placing detailed requirements on Scottish public authorities through the Equality Act 2010 (Specific Duties) (Scotland) Regulations 2012. The 2012 Regulations, are aimed at supporting Scottish public authorities improve implementation of the PSED and includes requirements to: report progress on mainstreaming equality; propose and publish equality outcomes; and assess policies and practices from the perspective of equality.

We are considering proposals to strengthen the current PSED duty. This includes a proposal to help ensure people with lived experience, or organisations who represent them, can be more involved in policy development and for more rigorous assessment and testing at earlier stages of policy development. This will help to implement real change in furthering equality and human rights and tackling prejudice and hate crime.

As well as the review of the operation of the PSED in Scotland, we have an ambitious and progressive agenda to ensure equality and human rights are embedded into everything we do. To support this, we are developing an equality and human rights mainstreaming strategy. The strategy will aim to improve data collation and analysis, and will ensure that the voices of those impacted shape our approach and policies. It will cover both Scottish Government and the wider public sector, including those who are at the forefront of tackling hate crime such as Police Scotland.

Tackling prejudice

We are taking forward a range of activity aimed at tackling prejudice and promoting equality and inclusion across government, including:

• Undertaking a programme of work to bring about systemic change, whilst continuing to implement the Race Equality Framework for Scotland 2016-30.^[16] The short-term independently chaired Anti-Racism Interim Governance Group to Develop National Anti-Racism Infrastructure^[17] will provide initial recommendations on how the Scottish Government can embed anti-racism into its infrastructure. This group will conclude in May 2023 with the establishment of an Observatory to provide a range of functions to support the advancement of anti-racism.
• Taking forward a range of activity to improve outcomes for Gypsy/Travellers through our joint action plan.^[18] Addressing hate crime is a priority under both the Race Equality Framework and the Gypsy/Traveller Action Plan.
• Taking forward actions to support the implementation of our anti-racist employment strategy. The strategy provides steps for employers to build an inclusive and safe workplace culture, including developing an anti-racist culture; raising awareness of the harms of racism, including hate crime and supporting and promoting anti-racist campaigns.
• Establishment of the Anti-Racism in Education Programme^[19] in response to the public discourse around the Black Lives Matter movement and in recognition that a range of existing projects require a more strategic approach in order to deliver ambitions coherently. As part of this, the new Building Racial Literacy Programme aims to address the race evasiveness which educators find limits their ability to be pro-actively anti-racist in education settings. Draft Principles for an Anti-Racist Curriculum articulate the importance of children and young people experiencing a curriculum that meaningfully recognises and fairly represents the rich and diverse communities in Scotland and beyond. They include the ambition that children and young people will be critical thinking global citizens that can challenge discrimination and prejudice through an understanding and awareness of the behaviours, practices and processes that create injustice in the world.
• Implementation of LGBT+ inclusive education in schools across Scotland, ensuring themes related to lives, histories, and experiences of lesbian, gay, bisexual, and transgender people are included across all curriculum areas.
• Publishing the Supporting Transgender Young People in Schools guidance to support schools to deliver a safe, supportive learning environment for all pupils, regardless of gender, and ensure everyone's rights are respected.
• Publishing a new faith and belief engagement strategy, which will strengthen communication and collaboration between the Scottish Government and Scotland's diverse faith and belief communities.
• Taking forward a range of work to improve the lives of LGBT+ people in Scotland, including reform to the Gender Recognition Act; progressing the recommendations made by the Ending Conversion Practices Expert Advisory Group; bringing forward legislation to end conversion practices in Scotland by the end of 2023; and establishing a programme of work to improve the rights and wellbeing of non-binary people, informed by the recommendations of the Non-Binary Working Group.^[20]
• Investing over £15.5 million since 2012 to tackle sectarianism which has delivered the broadest and most comprehensive set of activities in response to this issue that there has ever been, with a strong focus on working with children, young people and adults in schools, workplaces and communities.^[21]
• Co-designing our new Disability Equality Strategy with Disabled People's Organisations and their members to ensure that the priorities for grass-roots disabled people inform the development of the strategy.
• Continuing to work with our trusted partners in the Older People's Strategic Action Forum on a range of priorities for advancing age equality, developing our intelligence on ageism and improving our understanding of age based hate crime.
• Working closely with the Social Isolation and Loneliness Advisory Group to establish a new delivery plan to tackle social isolation and loneliness in early 2023. The plan aims to realise the ambitions of our strategy 'A Connected Scotland', to build stronger social connections, and will outline a range of work across the Scottish Government which is helping to mitigate the impact of COVID-19 and the ongoing cost of living crisis on groups most adversely affected by social isolation and loneliness.
• Taking forward our commitment to support refugees, asylum seekers and our communities through the pioneering and collaborative approach of the New Scots refugee integration strategy.

Hate crime, prejudice and misogyny

We know that women's experiences of hate crime can be amplified by misogyny. Baroness Kennedy's Working Group on Misogyny^[22] recommended reforming the criminal law to improve the justice system's response to misogynistic behaviour. We recognise that tackling misogyny requires a distinct approach in criminal law. Therefore, we will consult on draft laws to tackle misogynistic criminal behaviours with a view to introducing a Misogyny and Criminal Justice Bill later in this Parliament. We are also taking forward a number of other workstreams to improve equality for women and girls, including:

• Implementing Equally Safe,^[23] Scotland's strategy for preventing and eradicating violence against women and girls. This includes addressing abuse and harassment and their underlying causes towards women in schools, universities and colleges, the workplace and the criminal justice system. Our Delivering Equally Safe fund supports the delivery of Equally Safe by providing £19m per year to support 121 projects from 112 organisations that focus on early intervention and prevention, as well as support services.
• Establishment of the Gender Equality Taskforce in Education and Learning which is taking forward a programme of work that aims to ensure that all girls and young women in Scotland will: be taught by gender competent, educational professionals; not experience sexism, sexual harassment, or gender-based violence in the classroom or other educational settings; and freely choose subjects and areas of study, including those traditionally dominated by boys and men.
• Commitment to developing a national framework for schools to help tackle sexual harassment and gender based violence. This framework will set out the range of support and practical prevention and intervention measures available which can be used to ensure the safety, health and wellbeing of children and young people.