Chapter 9 - Consolidation of Legislation
9.1. The previous chapters of my report consider the substantive effect of the law. I have identified those parts of the existing legislative structure which are working well and those where I am recommending change. The legislation has developed in a piecemeal fashion over time and is found in a number of separate legal provisions. In this chapter, I consider whether there would be benefit in bringing all of those provisions of legislation together in one, consolidated piece of legislation.
9.2. As I mentioned in chapter 1 (process and methodology), I produced three versions of the consultation paper. In the full consultation paper (which was aimed mainly at the technical or legal audience), I asked a specific question about whether there is a need to bring all the statutory sentencing provisions and other hate crime offences together in a single piece of legislation. I considered this to be a technical issue, because it is not about the effect that the legislation and the offences have in practice, but about how it is set out on the statute book.
9.3. The responses to the consultation were mixed and are summarised in the analysis report. A majority of organisations favoured consolidation, compared with a minority of individuals.
9.4. Those who favoured consolidation did so for a number of reasons. They felt that consolidated legislation (along with appropriate guidance) would bring clarity, transparency and consistency of approach to the law. A unified approach was thought to be appropriate, given the similar issues encountered in most cases. Many considered that having all hate crime provisions in one place would avoid the perception that there is a 'hierarchy' of characteristics, and would make it easier to deal with cases involving more than one protected characteristic. Consolidation was also seen as an opportunity to modernise and rationalise, and would allow overlaps, gaps and inconsistencies to be addressed and confusion and uncertainty to be dealt with. Some considered that creating one new piece of legislation would be helpful in raising awareness and understanding of hate crime, would allow for greater alignment with other equality policies and would be helpful for data collection.
9.5. Amongst those who disagreed with the idea, it was argued that consolidation might result in an over-simplified generic approach. In particular, respondents felt there might be a potential risk to freedom of speech. It was argued that a single piece of legislation might become unwieldy or overly prescriptive. Some felt that the time and effort involved in consolidation is not merited. This view was generally expressed by those who had principled objections to the concept of hate crime legislation.
9.6. Two organisations (Engender and CRER) expressed particular concern that consolidation could lead to particular types of hate crime being given less focus than they would have if dealt with in separate pieces of legislation. Engender referred to the consolidation of equality provisions (in particular, public sector equality duties) in the Equality Act 2010. They felt that this had led to equality issues being dealt with in an undifferentiated way, glossing over or ignoring the specific disadvantage and discrimination faced by specific groups of people. They said: "Consolidation and simplification has resulted in the experience of women and girls becoming lost inside a list of nine protected characteristics, as public authorities attempt to develop one set of policies, practices, and interventions that will bring about equality for all. The laudable aim of consistency has had the unintended consequence of undermining the very purpose of the law."
9.7. I have considered the arguments and concluded that all provisions relating to hate crime and hate speech should be consolidated into one piece of legislation. This would cover all statutory aggravations and provisions relating to incitement/stirring up of hatred, including the subject-matter currently covered by Part 3 Public Order Act 1986, section 96 Crime and Disorder Act 1998, section 74 Criminal Justice (Scotland) Act 2003, and the Offences (Aggravation by Prejudice) (Scotland) Act 2009, as well as the new provisions recommended in the preceding chapters.
9.8. The review is recommending substantive amendments to some of these pieces of legislation and creating some new provisions in related subject areas in any event. If those recommendations are accepted, the Parliament and other relevant organisations and individuals would be devoting time to considering a Bill on the topic of hate crime and hate speech. Although some additional time and resource would be required to consolidate all relevant legislation in one place, that would in my view be worthwhile in view of the advantages of consolidation set out above.
9.9. I do not agree that consolidation risks over-simplification and generalisation. The principles behind statutory aggravations and incitement to hatred are relatively simple and consistent across the different characteristics. Insofar as specific provisions are required to deal with how freedom of expression is to be safeguarded in relation to a particular characteristic, that can be done within the framework of a single piece of legislation without making the legislation itself unwieldy.
9.10. I recognise the concerns expressed by some that consolidation might risk authorities losing focus on a particular characteristic. Engender have made this point forcefully in the context of the change from the gender equality duty under section 76A of the Sex Discrimination Act 1975 to the wider public sector equality duty under Part 11 of the Equality Act 2010. However, I think the risk of 'losing focus' arises much more in relation to provisions that require proactive policy making (where the detail of a particular strand might be lost if the obligation is too wide ranging) than in relation to provisions which apply in individual cases and result in individual complaints or prosecutions. There does not appear to be any evidence that the number of sex discrimination or equal pay claims has reduced as a result of those rights being contained in the Equality Act rather than gender specific legislation. I therefore do not consider that such a loss of focus necessarily follows from consolidation; it is instead a question of how any consolidated provisions are given effect to in practice.
9.11. In this regard, the process of consolidating existing legislation will give relevant authorities (including the police and the COPFS) an opportunity to renew and revise existing procedures and consider how they interact with other relevant parties. With appropriate resourcing and leadership, I therefore view this as an opportunity to improve the experience of those who are involved in the criminal justice system in relation to hate incidents.
Legislative competence of the Scottish Parliament
9.12. Some of the existing hate crime offences are contained in legislation which was originally passed by the Westminster Parliament. This raises questions about whether the Scottish Parliament has the legislative competence to amend or consolidate them. I do not intend to go into the technical detail here, but simply note that it is in principle possible for an Act of the Scottish Parliament ( ASP) to amend legislation passed at Westminster. Any analysis of legislative competence would have to be based on an actual draft provision, and so it is not appropriate to go into the matter any further at this stage. I think it very likely that any new ASP which consolidates existing hate crime legislation and creates new provisions will be within the legislative competence of the Scottish Parliament, even if it repeals pre-devolution Westminster legislation.
9.13. If there are any minor areas where there were legislative competence difficulties, section 104 of the Scotland Act 1998 provides a mechanism which can allow these to be resolved. It confers a power on UK Ministers to make subordinate legislation to make any provision which is 'necessary or expedient' in consequence of any provision made by or under any Act of the Scottish Parliament. Such subordination legislation can amend primary legislation.
All Scottish hate crime legislation should be consolidated into one new hate crime statute.