Review of hate crime legislation: ministerial statement, January 2017

Presiding Officer, recent news coverage of events around the globe has starkly demonstrated that hatred and prejudice continue to have very serious consequences for people and communities across society.

In recent times, we have seen racism and religious bigotry on the rise around the world.

These reports, and the subsequent and increasingly frequent on-line furore they generate, can lead to increased attacks on everyone from people from ethnic minority communities to people with disabilities and every vulnerable community that is easy prey to bigots and bullies. Discussions in the media and online about Brexit highlight the need for us to ensure that those from across the European Union who have made Scotland their home feel secure.

Scotland is an open and inclusive nation, but we are not immune from such hateful behaviour. Our communities sometimes face prejudice and abuse through both direct physical confrontation and cowardly online hate abuse.

Presiding Officer, I know that everyone across this chamber would condemn the deliberate targeting of our minority communities with hate-filled prejudice. I am sure that we are all united in seeking to offer our communities the protection they need in law to give them access to justice when they are subjected to such behaviour.

Prejudice and hate have a huge impact on the quality of life of individuals and the community to which they belong. Trust becomes more difficult, and whole families and groups withdraw into smaller circles of safety with significant consequences for the overall level of trust and social capital across the whole of society.

Earlier today our debate on Holocaust Memorial Day highlighted why we must never forget the injustices that have led to the demonisation of communities and horrific acts of genocide. We must be vigilant to ensure history does not repeat itself and that no one is allowed to make scapegoats of our minority communities. We must all of us always bear witness.

Presiding Officer, this Parliament is to be praised for debating the issue of hate crime last November and raising the possibility of a review of hate crime legislation, and organisations such as Law Society and the Equality Network provided written briefing supporting such a review. The need for robust legislation to tackle hate crime is as great as ever and that is why today I am announcing that the Scottish Government has commissioned an independent review of hate crime legislation in Scotland.

The review will be led by one of the most senior members of the Scottish judiciary, Lord Bracadale. He will make recommendations on how we can ensure that the hate crime legislation that is applied to protect Scottish communities is fit for purpose in the 21st century.

The review will be taken forward entirely independently of the Scottish Government. The remit has been placed in the Scottish Parliament Information Centre (SPICe) and I can confirm it will 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's considerations will include looking at whether the current mix of statutory aggravations, common law powers and specific hate crime offences is the most appropriate criminal law approach to take; whether new categories of hate crime should be created for characteristics not currently covered in existing legislation such as age and gender; whether existing legislation can be simplified, rationalised and harmonised; and how any identified gaps, anomalies and inconsistencies can be addressed.

Lord Bracadale will also consider if we need to change or amend the current legislative framework and if it guarantees that human rights and equality, including the right to freedom of speech, are protected.

Another central concern of the review is the need to consult all interested parties to ensure Lord Bracadale's recommendations are informed by evidence.

That is why, Presiding Officer, Lord Bracadale will be taking forward an open public consultation on the review.

In addition Lord Bracadale has indicated he is happy to meet with spokespersons from all of the parties represented in this parliament so that he can incorporate the views and opinions of this chamber into his findings and recommendations.

Presiding Officer, the current legislation relating to hate crime has developed over decades in a piecemeal manner and this review allows us an opportunity to take stock and to look at all of this legislation in a holistic way.

This means that the review will consider specifically the wide range of legislation which has an impact on tackling hate crime. This includes the Offences Aggravated by Prejudice (Scotland) Act 2009, the Criminal Justice Act 2003 and of course the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012.

I am of course aware of the views of this chamber in relation to the Offensive Behaviour at Football Act. This government remains opposed to repeal of the Offensive Behaviour at Football Act without a viable alternative. Such a move would take away protection from some of our most vulnerable communities.

For example, repealing Section 6 of the Act would leave an unacceptable gap in Scottish legislative protection. Unlike elsewhere in the UK, prior to the introduction of the Act, there was no specific offence in Scots law criminalising threats made with the intent of inciting religious hatred. This was an obvious gap and it was clear that legislation was required to address it.

Presiding Officer, the review I am announcing today recognises the concerns of this Parliament. The review provides a responsible and practical response to these concerns by allowing the Act to be considered within the context of all hate crime legislation, which will help to ensure that the overall legal coverage offered to vulnerable communities is appropriate.

But let me be clear Presiding Officer, this review goes far beyond football. We are determined to ensure that those who peddle extreme and intolerant ideologies, those who admire the hatred of the far right and want to undermine civil liberties and human rights, and those who simply wish to make scapegoats of anyone different to themselves do not find any foothold. There is no place for such behaviours in modern Scotland.

Those who indulge in hate crimes often fear losing their privilege and power – that is, the privilege to abuse and power to harm the weakest and most marginalised in our society.

Some cannot accept that the only secure future is one where we are able to live side by side as equals – an equality based on trust, respect and, most importantly, understanding.

Presiding Officer, the laws that have been put in place to tackle hate crime were designed to protect the vulnerable. They make it clear that a modern forward looking society will not tolerate hating people simply because of who they are.

Now, more than ever, we need to revisit the body of applicable legislation in Scotland and make sure that this fundamental principle is not allowed to slip, that it is not allowed to be lost in the current global unrest. If left unchallenged, this will push people into ever more polarised positions, and will simply lead to greater and greater fragmentation of society. We will be vigilant and we will not stand by and let that happen.

In closing, Presiding Officer, I would like to reaffirm the Scottish Government's commitment to tackling all forms of hate crime.

I believe that the independent review will ensure Scotland is leading the way in providing adequate and appropriate protection to all communities.

I therefore commend this important review to Parliament and hope all parties will engage positively with Lord Bracadale in developing his recommendations and ensuring Scotland can live up to the ideal of being a modern, outward looking, open and inclusive country.