Tackling prejudice and building connected communities action plan: implementation overview

3. Justice

3.1 Hate crime legislation

Background to action

The 2016 Advisory Group 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, for example based on gender, age or membership or other groups such as refugees and asylum seekers. In response, we committed to the following action.

Action 9

Consider the recommendations of Lord Bracadale's independent review of hate crime legislation, and set out how we intend to implement these

Implementation

In 2017, the Scottish Government appointed one of Scotland's most senior judges, Lord Bracadale, to carry out an independent review of hate crime legislation in Scotland. Lord Bracadale completed the review in 2018, with his report presenting the Scottish Government with a set of 22 recommendations aimed at future hate crime legislative reform.^[17] The Scottish Government considered Lord Bracadale's recommendations and engaged extensively on these recommendations with stakeholders and the wider public, including through the 'One Scotland: hate has no home here' consultation, engagement events and bilateral meetings.^[18]

Between December 2018 and February 2019, as part of the consultation process, the Scottish Government ran 11 public awareness events throughout Scotland. Many of these were attended either by individuals with a general interest in hate crime legislation or as representatives from a variety of different stakeholder groups.

Subsequently the Scottish Government contracted independent external analysts who undertook the analysis of the consultation responses and produced a report, published in June 2019.^[19]

The responses to the consultation and public awareness events yielded valuable information both from individual and organisational perspectives; helping to inform the development of new hate crime legislation.

Subsequently, the Hate Crime and Public Order (Scotland) Bill was introduced to the Scottish Parliament in April 2020. The Bill received Royal Assent on 23 April 2021 to become an Act of the Scottish Parliament.

In addition to consolidating existing hate crime laws, the Hate Crime Act modernises and extends hate crime legislation by creating new offences relating to stirring up of hatred that will apply in relation to the characteristics of age, disability, religion, sexual orientation, transgender identity and variations in sex characteristics. Stirring up of racial hatred has been an offence across the UK since 1986. Lord Bracadale advised that groups such as asylum seekers and refugees were already offered protection under current hate crime laws, which have been consolidated into the Hate Crime Act.

"The Hate Crime and Public Order (Scotland) Act is a significant accomplishment that modernises and extends hate crime legislation and we particularly welcome the creation of the new offences relating to stirring up hatred that will apply to protected characteristics, including disability. The consultation and public awareness events not only shaped the new legislation, they helped to raise awareness of the nature and prevalence of hate crime."

Glasgow Disability Alliance

3.2 Online hatred and misogyny

Background to action

The rise in use of technology has seen bullying behaviours, hatred and prejudice manifest itself in a much more visible way on social media, which has proven to be a difficult environment to manage. The 2016 Advisory Group recommended that the Scottish Government undertake work with key stakeholders to improve the monitoring of and response to online hate crime and prejudice. In response, we committed to the following action.

Action 10

Engage with key stakeholders to consider further steps to prevent and tackle online hatred and misogyny

Implementation

In his review of hate crime legislation, Lord Bracadale concluded that criminal activity on online platforms is covered by existing hate crime laws; laws that will be consolidated into the Hate Crime Act.

However, regulation of the internet, internet services and internet service providers is a reserved matter and falls to the UK Government. In March the UK Government published its draft Online Safety Bill.^[20] The UK Government believes the Bill will help protect young people and clamp down on abuse online, while safeguarding freedom of expression.

The draft Online Safety Bill requires that social media and other digital platforms remove and limit harmful content, including online hate speech. The Bill will be supported by secondary legislation and Codes and Guidance from the appointed regulator, OFCOM. OFCOM have also been granted enforcement powers which include being able to impose business disruption measures as well as being able to impose large fines.

The draft Online Safety Bill also contains a number of important provisions which have the potential to help keep children in Scotland more secure while enjoying all the benefits the internet has to offer, principally tackling illegal activity taking place online and aiming to prevent children from being exposed to inappropriate material.

The Scottish Government continues to work with UK Government counterparts in the development and consideration of the proposals for the UK Government's Online Safety Bill for Scotland.

The Scottish Government also welcomes the implementation of the Information Commissioner's Office new UK-wide Age Appropriate Design Code^[21] which came into force in September. This statutory code of practice for children's data, the first anywhere in the world, means that for the tech sector is required, by law, to consider children's privacy, safety and wellbeing in their products and services if they are likely to be accessed by children and young people. Changes already announced by tech companies, demonstrating that regulation can work in this way, include:

• Instagram will no longer allow unknown adults to direct message under-18s.
• TikTok users under the age of 16 will have the accounts set to private by default.
• Google will stop targeted advertising to under-18s, taking children out of the business model. They have also introduced safe search by default.
• YouTube will remove auto-play, to prevent children being fed endless videos.

The Scottish Government continues to work with third sector and operational partners to engage the public and raise awareness about the dangers of online abuse of children, including running successful communications campaigns earlier this year which reached hundreds of thousands of Scots. We sit on a number of national and UK wider groups where we work with partners to drive progress and tackle online harms and protect children, including as an Executive Board member of the UK Council for Internet Safety, and its subgroups, where we work with UK partners to help ensure Scotland's interests are appropriately represented in UK-wide discussions regarding internet regulation.

We have also established the independent Working Group on Misogyny and Criminal Justice in Scotland, led by Baroness Helena Kennedy QC.^[22] The Working Group has been set up to independently consider how the Scottish criminal justice system deals with misogyny. This includes looking at whether there are gaps in the law that could be addressed by the creation of a separate specific criminal offence to tackle misogynistic conduct. Consideration will also be given to whether the characteristic of sex should be added to the hate crime framework. The Group comprises of experts with specialisms in Scots law, human rights, women's equality and perpetrator behaviours relating to gender-based violence and will publish a report on its findings and recommendations in February 2022.

3.3 Restorative justice

Background to action

Tackling prejudice and hate crime requires multi-agency working at a national and local level and practical implementation of interventions designed to achieve policy goals, one of which was developing general guidance on restorative justice in collaboration with restorative justice experts and those dealing with victims' issues.

The 2016 Advisory Group recommended that the Scottish Government and partners should explore the use of restorative justice methods with victims and perpetrators of hate crime which may help perpetrators see the contradictions between self-perception and the impact that their behaviours have on individuals and communities. In response, we committed to the following action.

Action 11

Publish guidance for delivery of restorative justice in Scotland which will ensure that where restorative justice processes are available, these will be delivered in a coherent, consistent, victim-focused manner across Scotland

Implementation

In October 2017, the Scottish Government published guidance to enhance the use of restorative justice across Scotland.^[23] In June 2019, the Scottish Government published a 'Restorative Justice Action Plan' (RJAP),^[24] which was developed collaboratively with Community Justice Scotland with input from stakeholders across the sector. This supports a commitment to have restorative justice services widely available across Scotland by 2023.

The vision is for restorative justice to be available across Scotland to all those who wish to access it, and at a time that is appropriate to the people and case involved. Approaches taken must be consistent, evidence-led, trauma-informed and of a high standard. This seeks to ensure that the needs of persons harmed and their voices are central, and supports a reduction in harmful behaviour across our communities.

Successful delivery of the RJAP will require input from, and collaboration with, a wide range of organisations and people. To this end, the RJAP Stakeholder Group was set up at the beginning of 2020. Information on membership of the group, its remit and meeting papers are available on the Scottish Government website.^[25]