Background to action
In the review carried out by the 2016 Advisory Group, it was highlighted through stakeholder engagement and an academic literature review that there was a dissatisfaction with existing terminology and that discussions were required around certain terms, such as 'hate crime' and 'sectarianism'.
It was recommended that the Scottish Government should lead a discussion on the development of clearer terminology and definitions around hate crime, prejudice and community cohesion. In response, we committed to the following actions.
Engage in dialogue around definitions and terminology, taking account of any conclusions that Lord Bracadale's review of hate crime legislation may offer in this regard
In his independent review of hate crime legislation, Lord Bracadale concluded that the definitions and terminology of certain aspects of hate crime legislation should be updated and modernised.
Lord Bracadale recommended that the two thresholds for the statutory aggravations "should be retained but with updated language". Lord Bracadale also recommended that consideration should be given to "removing outdated terms such as 'transvestism' and 'transsexualism' from any definition of transgender identity (without restricting the scope of the definition)".
The Hate Crime Act therefore updates the language used to describe one of the thresholds for the application of a hate crime statutory aggravation, so that the test will be expressed by reference to demonstrating malice and ill-will (removing reference to the term 'evinces'). This change does not alter the threshold for the application of a statutory aggravation; instead, it serves a communicative function, making the thresholds for the application of hate crime statutory aggravations easier to understand. This change was made following consultation with stakeholders and after the Hate Crime Bill had been subject to Stage 1 scrutiny in the Scottish Parliament.
The Hate Crime Act also updates the definition of transgender identity. It has become clear that there are concerns with including 'intersexuality' as an aspect of transgender identity as they are now widely understood to be two separate and distinct characteristics (intersex being a physical variation, or range of variations, relating to biological characteristics, and transgender identity relating to a person's gender identity). The Act therefore removes 'intersexuality' from the definition of transgender identity in the hate crime legislative framework, given the clear differences between intersex and transgender identities. However, so as not to lose protection for this group of people, the Act includes 'variations in sex characteristics' as a separate characteristic within hate crime law. 'Variations in sex characteristics' has been used – as opposed to intersex – as this is the term being increasingly used by stakeholders.
Furthermore, the terms 'transsexualism' and 'transvestitism' – widely understood to be outdated – have been removed from the definition of transgender identity used in the hate crime legislative framework, helping to ensure that the definition is up-to-date. Cross-dressing people are included in the Act's definition of transgender identity, to ensure the protection provided by the word 'transvestitism' is not lost. The definition of 'transgender identity' therefore includes trans men, trans women, non-binary people and cross-dressing people.
In relation to race and racism, the Hate Crime Act has continued the incorporation of Article 1 of the International Convention on the Elimination of all forms of Racial Discrimination into our domestic hate crime law. The provisions of racial protection in Scotland thus will continue to cover the racial provisions of 'colour, nationality, ethnic or national origin'.
These broad provisions reflect the full scope of International Human Rights Law definitions that acknowledge that racism, often linked to racialisation, colonialism and imperialism, varies across different international jurisdictions.
In Scotland our latest data indicates this definition has been used to protect amongst others citizens of Pakistani ethnicity, Black people and people of Irish nationality or national origins.
Lord Bracadale concluded that a new sectarian aggravation should not be included in new hate crime legislation. His view did not match that of the Legal Definition of Sectarianism Working Group who recommended a new aggravation be included along with a sectarian definition. Following consultation a sectarian aggravation was not included in the Hate Crime Act.
However, the Scottish Government accepted and continue to use the working definition of sectarianism that was included in the final report by the Independent Advisory Group on Tackling Sectarianism in Scotland (2015) – that sectarianism in Scotland is:
"a mixture of perceptions, attitudes, actions, and structures that involves overlooking, excluding, discriminating against or being abusive or violent towards others on the basis of their perceived Christian denominational background. This perception is always mixed with other factors such as, but not confined to, politics, football allegiance and national identity."
In considering this action we recognise that the use of language is not static and that it may evolve over time. Therefore it is important that as part of our engagement with communities we allow them to guide us in relation to ensuring that terminology is appropriate and relevant. This applies equally across all communities and characteristics and we therefore see this as an ongoing action which will inform our use of terminology into the future.
Adopt the international definition of antisemitism, and engage with stakeholders on how this translates into improved practice on the ground
The Scottish Government formally adopted the International Holocaust Remembrance Alliance's (IHRA) definition of antisemitism in June 2017. Adoption of the IHRA definition demonstrates our determination to tackle antisemitism and to ensure people in Scotland feel valued and have a sense of belonging. It is our view that adopting the definition sends a strong message that we believe antisemitism to be entirely unacceptable in Scotland. The IHRA definition is:
"Antisemitism is a certain perception of Jews, which may be expressed as hatred toward Jews. Rhetorical and physical manifestations of antisemitism are directed toward Jewish or non-Jewish individuals and/or their property, toward Jewish community institutions and religious facilities."
We also held a series of consultation events in September 2019 to seek advice and views from stakeholders in considering the UK's All-Party Parliamentary Group on British Muslims (APPG) definition of Islamophobia and whether it is suitable for the Scottish context. Unfortunately, due to COVID-19, this work was paused. Work on the definition will be considered with stakeholders as we begin co-creation of a new hate crime strategy later this year.
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