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

CRWIA Stage 1

Screening - key questions
(Hyperlink will only work within SG)

1. Name the policy, and describe its overall aims.

Background

In September 2016, a review by the Independent Advisory Group on Hate Crime, Prejudice and Community Cohesion^[2], 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^[3]. 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^[4], on 31 May 2018.

In response, the Scottish Government accepted his recommendation to consolidate Scottish hate crime legislation into one new hate crime statute and committed to consult on the detail of what would be included in the 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 Bill 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 Bill 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^[5], 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^[6]”.

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.

2. What aspects of the policy/measure will affect children and young people up to the age of 18?

All aspects of the Bill will affect children and young people as they can be both the victims and/or perpetrators of hate crime.

The Bill includes a new statutory aggravation for crimes motivated by prejudice 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. It will also affect children and young people who may be perpetrators of hate crime as committing an offence motivated by malice or ill will towards a person because of their age may result in an increased sentence.

The Bill also includes a new stirring up hatred offence based on age, which will affect 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. It will also affect children and young people who may be perpetrators of stirring up of hatred offences based on age as this criminalises a new type of behaviour.

In addition, 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. It will also affect children and young people who may be perpetrators of stirring up of hatred offences based on these characteristics.

3. What likely impact – direct or indirect – will the policy/measure have on children and young people?

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, with regards the following characteristics:

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

In regards to perpetrators of hate crime, the report of the, Independent Advisory Group on Hate Crime, Prejudice and Community Cohesion^[7], explained that evidence on the demographics of convicted perpetrators suggests that they are likely to be young (25 years of age and under). Police Scotland’s response to the consultation on hate crime legislation supports this finding^[8].

More detailed evidence regarding the likely impact the Bill will have on children and young people can be found in Stage 2 (section 7) of this assessment.

4. Which groups of children and young people will be affected?

As above, it is expected that children and young people most affected will be those who may be more likely to be victims of hate crime because of 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 the age of 25 are more likely to be perpetrators of hate crime than any other age group.

5. Will this require a CRWIA?

Yes. Although the Bill is determined to have a broadly positive impact on children and young people, it is important to undertake this impact assessment so that any potential unintended consequences of the Bill are identified and addressed.

CRWIA Declaration

CRWIA required	CRWIA not required
Yes
Authorisation
Policy lead Mr Brian Hirst, Hate Crime Legislation Policy Support Officer, Hate Crime Bill Team, Connected Communities Division Date 18 October 2019	Team Leader Mr Robert Marshall, Deputy Director Connected Communities Division Date 18 October 2019