Stage 4: Decision making and monitoring
Identifying and establishing any required mitigating action
If, following the impact analysis, you think you have identified any unlawful discrimination – direct or indirect - you must consider and set out what action will be undertaken to mitigate the negative impact. You will need to consult your legal team in SGLD at this point if you have not already done so.
Have positive or negative impacts been identified for any of the equality groups?
The Scottish Government has found that none of the proposals are discriminatory and that there are no significant issues that we consider would impact negatively upon people with one or more of the protected characteristics. The Scottish Government instead considers that the Bill will have a positive equality impact.
Is the policy directly or indirectly discriminatory under the Equality Act 2010?
If the policy is indirectly discriminatory, how is it justified under the relevant legislation?
If not justified, what mitigating action will be undertaken?
Describing how Equality Impact analysis has shaped the policy making process
As proposals have been developed for inclusion in the Bill, considerable consideration has been given to equalities issues throughout to ensure better outcomes for people and communities. This has been done through regular stakeholder engagement including a public consultation, consultation and engagement events, and bilateral meetings.
As a result, in addition to consolidation, the Bill seeks to modernise and extend existing hate crime legislation by:
- Adding age as a new characteristic in order to send a clear message to society that these offences will be treated seriously and will not be tolerated.
- Creating new offences relating to stirring up hatred that will apply in relation to all listed characteristics (including age, disability, religion, sexual orientation, transgender identity and variations in sex characteristics) (currently these offences only relate to race).
The Bill ensures that characteristics currently protected within the hate crime legislative framework continue to be protected to the same extent with updated language provided where considered necessary. This will ensure that the language used in the Bill reflects changes over time and that the individuals who are afforded protection by the law recognise themselves in the terminology used.
The use of up-to-date and inclusive language is an important overall objective in updating and modernising hate crime legislation and Scottish Government have sought to ensure that, where possible, the language used is simple and understood by stakeholders and the general public. Specific updated to language include:
- Updating the definition of transgender identity, removing the terms ‘transsexualism’ and ‘transvestitism’ which are widely understood to be outdated. However, cross-dressing people are included in the new definition within the Bill to ensure the protection provided by the word ‘transvestitism’ is not lost. The Bill’s definition also includes non-binary people as they are currently protected by the exiting definition’s use of ‘any other gender identity that is not standard male or female gender identity’.
- The term ‘intersexuality’ has also been removed from the definition of transgender and a separate category for variations in sex characteristics has been created so as not to lose protection for this group of people. The term ‘variations in sex characteristics’, as opposed to ‘intersex’, is used in the Bill as this is the term most commonly used by stakeholders.
The Bill will also abolish the common law offence of blasphemy. The offence has not been prosecuted in Scotland for more than 175 years and no longer reflects the kind of society in which we live.
Decisions have also been taken by the Scottish Government not to accept a number of Lord Bracadale’s recommendations including:
- Section 50A of the Criminal Law (Consolidation) (Scotland) Act 1995 should be repealed.
- The current provisions in relation to stirring up racial hatred under the Public Order Act 1986 should be revised to include conduct which is threatening or abusive (removing the word ‘insulting’)
- There should be a new statutory aggravation based on gender hostility
- There should no longer be an express requirement to state the extent to which the sentence imposed is different from what would have been imposed in the absence of the aggravation
Decisions taken in relation to each of these areas, and the reasons for these, are discussed in further detail below.
Furthermore, in relation to gaps identified in the data and evidence section of this impact assessment, the Scottish Government is engaging with Police Scotland as they develop the information they hold on hate crime, including reviewing a large sample of police recorded hate crimes to investigate further the characteristics and circumstances of these cases. It is anticipated that a report on the findings of this exercise will be published in 2020.
The Bill does not repeal, nor consolidate, the offence contained in section 50A of the Criminal Law (Consolidation) (Scotland) Act 1995 in order maintain existing protections for those subject to racially-aggravated harassment.
The decision is to retain section 50A of the Criminal Law (Consolidation) (Scotland) Act 1995, which is a standalone offence of racially aggravated harassment, and unique to the characteristic of race. This reflects the prevalence of racial hate crime within the context of all hate crime offending in Scotland, and the fact that the laws in relation to racial hatred have been in place for many years and appear to be working effectively. A potential negative result of repeal would be the wrong message it may send to BME communities regarding the importance of tackling race related hate crime.
Repealing section 50A would be part of consolidating existing hate crime legislation and providing consistency across the characteristics by utilising the same thresholds and tests for offences or aggravations for each of the different characteristics. The repeal of section 50A would also create consistency in the law by removing the standalone offence that exists only for racially motivated crimes. There is no equivalent to the section 50A offence in relation to any other characteristic within hate crime law and, as noted above, if left in force it could be perceived as creating a hierarchy of characteristics.
Some of those who supported repeal argued that it would ensure consistency and agreed with Lord Bracadale that this piece of legislation was no longer needed.
However, some stakeholders were concerned about the repeal of the section 50A offence and the potential message that this sends to victims, perpetrators and wider society. It had also been suggested that this would leave a gap in the level of protection provided to this group of people.
One of the main considerations when deciding whether to repeal section 50A is whether the offence of threatening or abusive behaviour in section 38 of the Criminal Justice and Licensing (Scotland) Act 2010, charged with a racial aggravation, would sufficiently deal with any matters that would previously have been charged under section 50A, or whether repeal would leave a gap in the law.
It is acknowledged that section 50A is broader in scope than section 38, accompanied with a racial aggravation, and that the two provisions are not identical. In particular, the statutes differ as to the type of behaviour that is prohibited and the intent required for the offences to be committed
Therefore after considering all views expressed the Scottish Government is of the view that the section 50A offence should be retained.
Stirring up of hatred
Introducing new offences criminalising the stirring up of hatred against people on grounds of age, disability, religion, sexual orientation, transgender identity, and variations in sex characteristics, will improve the ability of the criminal justice system to respond to conduct which stirs up hatred of people based on these characteristics, by ensuring that protections currently in place to address conduct which stirs up racial hatred are extended to cover all characteristics covered by the Bill.
Lord Bracadale recommended that the threshold about the nature of the conduct in a stirring up of hatred offence should be based on including conduct that is ‘threatening or abusive’. He also considers the reference to ‘insulting’ conduct should not form part of any new stirring up offences
The Scottish Government agrees with Lord Bracadale that adopting a threshold of threatening or abusive behaviour for stirring up hatred offences covering new characteristics strikes the right balance between conduct which ought to be criminalised and one’s right to freedom of expression, and represents a measure familiar to Scots law, which works well currently in practice.
The removal of ‘insulting’ conduct from the scope of the current stirring up offences for racial hatred was explored during the Scottish Government’s own consultation exercise. There were mixed views on the option of removing ‘insulting’, with a clear difference in the view between individuals and organisations
In addition, the Scottish Government considered the potential impact that removal of ‘insulting’ may have on the ethnic minority communities in particular. Removal of insulting could be perceived as suggesting it was in some way acceptable to insult on the basis of race in a manner that previously it would not have been. Such a perception, even if based on an incomplete understanding of the operation of criminal law, is not a perception that the Scottish Government is willing to risk arising.
Following careful consideration the Scottish Government has decided to retain ‘insulting’ behaviour within the scope of the revised stirring up of racial hatred offence(s). In this regard, it is acknowledged that racial hate crime accounts for the majority of hate crime offending in Scotland and has a particular heritage and significant place in Scots law. As such and as discussed above, its removal could be particularly damaging in terms of tackling racial hatred within Scottish society if such a removal could be perceived as a weakening of criminal law protection in the area of race. The Scottish Government is of the view that, due to the historical and structural nature of racism, the prevalence and seriousness of race hate crime and the impact that this has on community cohesion, a separate approach is justified.
Recognising that there is a clear need to tackle misogyny and gender based prejudice in Scotland, the Scottish Government is committed, in principle, to developing a standalone offence on misogynistic harassment and is establishing a Working Group to take this work forward. Provision is also included in this Bill for an enabling power to allow a characteristic on the grounds of sex to be added to the hate crime legislative framework by regulations at a later date, after the Bill has passed if this is, for example, recommended by the Working Group.
The enabling power provides flexibility to allow sex to be included as an additional characteristic to the hate crime legislative framework at a later date; to define that characteristic; and to allow for a statutory aggravation and/or a stirring up of hatred offence on the grounds of sex.
Although Lord Bracadale recommended that gender should be added as a characteristic within hate crime law, a number of women’s organisations are strongly opposed to this approach, calling for the development of a standalone offence for misogynistic harassment outwith hate crime legislation. Some organisations believe that the development of a specific offence would recognise that the reality of violence against women is a complex issue and requires a considered approach. Their concerns are that creating a gender aggravation would lead to a failure to deal effectively with violence against women and girls, and they are not convinced that the hate crime framework provides an appropriate model for dealing with gender based violence.
In response to a recommendation made by the First Minister’s National Advisory Council on Women and Girls to ‘criminalise serious misogynistic harassment, filling gaps in existing laws’ the Scottish Government made a commitment, in principle, to developing a standalone offence on misogyny. In order to progress this commitment, a Working Group is being established to consider how the criminal law deals with misogynistic harassment, including whether there are gaps in legislation that could be filled with a specific offence on misogynistic harassment.
As well as considering the development of a standalone offence, the Working Group will consider whether a statutory aggravation and/or a stirring up hatred offence on the grounds of sex should be included within the existing hate crime legislative framework. To this end, and to ensure the Working Group has the space and flexibility required to develop the distinct approach required to tackle misogyny in Scotland, an enabling power is included within the Bill. This will enable sex to be included within the hate crime framework at a later date, for example if that is recommended by the Working Group.
Although Lord Bracadale used the term ‘gender’, the term ‘sex’ is being used within the Bill, as opposed to gender, in order to remain consistent with the Equality Act 2010.
The use of the enabling power to include a characteristic on the grounds of sex within the hate crime legislative framework provides protection on an inclusive basis given that the application of hate crime legislation is based on the motivations of the perpetrator.
For example, when considering the protection that is provided to persons who are victims of an offence motivated by malice or ill will towards women, the sex aggravation could equally be applied to provide protection towards a person who was born female, a transwomen (regardless of whether the transwoman has or does not have a Gender Recognition Certificate), or a man or a non-binary person (if that person were mistaken to be a woman). This is because, in this case, the motivation of the perpetrator was based on malice and ill will towards women and the person had been victimised because they were perceived to be a woman, whether they actually were or not. The statutory aggravation on sex could also be applied if a person was targeted because they have an association with women. For example, an offence that was motivated by malice or ill towards a man because he was fundraising for a women’s cause.
To ensure additional flexibility in how sex could be included within the hate crime legislative framework, the enabling power provides the option to add either a statutory aggravation and/or stirring up of hatred offence on the grounds of sex. This will allow the Working Group to consider these separately.
Lord Bracadale recommended that ‘There should no longer be an express requirement to state the extent to which the sentence imposed is different from what would have been imposed in the absence of the aggravation.’ The Scottish Government took the decision to retain this requirement.
Retaining the current condition whereby a court is required to state in open court the extent, if any, that a sentence has been increased due to the operation of a statutory aggravation, will aid transparency in sentencing and help victims and others to better understand sentencing decisions.
It is clear that better understanding in sentencing decisions will improve confidence in the justice system and help prevent victims and their families feeling let down as a result of the sentence given.
The Scottish Government’s view is the requirement to state in open court the extent, if any, that a sentence has been increased does actually serve a clear purpose and is important in sending a clear message that such crimes are taken seriously by the courts, makes sentencing decisions more transparent and can be helpful in supporting victims of crimes.
The EQIA has helped in the development of better outcomes for people and communities by ensuring an equalities focus throughout the development of the Bill. It has resulted in a number of recommendations not being taken forward as outlined above, as well as collating evidence on the positive impacts of the provisions included in the Hate Crime and Public Order Bill.
Monitoring and Review
A review of the legislation will be carried within 10 years of the Bill coming into effect.