Hansard

I would like to provide Parliament with an update on the Hate Crime and Public Order (Scotland) Act 2021. After the commentary that we have seen since the act’s commencement on 1 April—much of it misleading at best—I will take this opportunity to remind members of the act’s purpose.

Let me begin by emphasising that we in Scotland should be rightly proud of our history as a welcoming nation that celebrates and values diversity in our communities. However, we must be vigilant in protecting those values, challenge those who deny them and recognise that there are people who experience hatred and prejudice every day. We cannot and must not be complacent. We should remember that when we talk about hate crime, we are describing behaviour that is criminal and is rooted in prejudice, where the offender’s actions have been driven by hatred towards a particular group—hatred for people just on the basis of who they are.

Police Scotland describes hate crimes as offences that include, but are not limited to, assault, verbal abuse, damage to property, threatening behaviour, robbery and harassment, and they can take place anywhere, including online.

The hate crime act maintains and consolidates existing legislative protections against offences that are aggravated by prejudice against the following five characteristics: disability, race, religion, sexual orientation and transgender identity. Those are the same characteristics that are protected under hate crime legislation in England and Wales.

The act includes age as a new statutory aggravation, for the first time. Last week, I visited Age Scotland and met members of the Scottish ethnic minority older people forum, who were generous in sharing their experiences and why the act is important to them. Katherine Crawford, Age Scotland’s chief executive officer, stated:

“It is really important to see age included for the first time as we will get a much better picture of how this features in criminal acts, and how it cuts across other protected characteristics. We hope that the new laws will empower older people to report hate crimes.”

The act introduces new offences for threatening and/or abusive behaviour and the communication of threatening or abusive material that is intended to stir up hatred against a group of people who possess or appear to possess the particular characteristics that I have outlined. That could take many forms, including pictures, videos or information posted on websites.

Lord Bracadale, who led the independent review of hate crime legislation that led to the act, was clear on the need for the legislation to include offences relating to stirring up hatred. He noted:

“Stirring up of hatred might lead to violence or public disorder.”

Why would anyone in the chamber not take a stand against that behaviour in our communities?

Those offences are similar to those that are covered by the legislation in England and Wales, which has criminalised stirring up hatred on the ground of religion since 2007 and on the ground of sexual orientation since 2010. In some ways, we are a decade behind.

It is also important to note that the new offences have a higher threshold for a crime to be committed than the long-standing offence of stirring up racial hatred, which has been in place for the best part of 40 years without controversy.

People can still be offensive, critical and insulting under the act—and we have seen people be exactly that. The act includes rigorous safeguards on freedom of speech, and behaviour or material is not to be taken to be threatening or abusive just because it involves discussion or criticism of matters that relate to one of the characteristics included in legislation. The act is compatible with the European convention on human rights, and it specifically provides that the court should have regard to the general principle that article 10 rights apply to the expression of information or ideas that offend, shock or disturb.

Those of us with a platform as a politician or a public figure have a responsibility to have debate that is rooted in reality, respect and facts. Over the past month, there has, unfortunately, been deliberate misinformation and misrepresentation of the act, losing sight of, and empathy towards, the people in our communities whom it seeks to protect. Debate around the act has provided little light and too much heat.

There is nothing in the hate crime act that is divisive. It should not be anyone’s intention to make it so, and we all know better than to believe everything that we read on social media. Although we do not claim that legislation in and of itself can eradicate hatred or prejudice, critics should not trivialise or exaggerate its impact with false fears.

The act is an essential element of our wider approach, as set out in “Hate Crime Strategy for Scotland”, which was published last year, to build a Scotland in which everyone can feel safe. We are not there yet. The reality is that there are people who are frightened to leave their home, who avoid public places, and who significantly alter their lives in order to avoid certain interactions. We must listen to those whose voices we have not heard in the past few weeks, who are the everyday victims of hate crime.

If we truly believe in taking a zero tolerance approach to hatred, the law must adequately protect people from those who stir up hatred. As Professor James Chalmers wrote recently,

“Anyone stirring up hatred against such a group is almost certainly already committing a crime, such as threatening or abusive behaviour or breach of the peace. The effect of the Act here is not to make criminal what is currently lawful, but to ensure that the law properly recognises and describes the crime.”

Legislation to protect people from hatred and prejudice is not new, and nor is it unique to Scotland. Offering wilful misinformation, causing confusion and ignoring the fact that similar laws have been in place across the United Kingdom without problem for decades are deeply irresponsible and risk emboldening the small minority who genuinely pose a threat of abuse and violence. We should instead look to those who explain the law as it is and not as they perceive it to be.

In March, Adam Tomkins, who is a former Conservative MSP and a professor of public law, stated:

“Offensive speech is not criminalised by this legislation: the only speech relating to sexual orientation, transgender identity, age or disability outlawed here is speech which ... a reasonable person ... would consider to be threatening or abusive and which ... was intended to stir up hatred and ... was not reasonable in the circumstances.”

Since 2014-15, the number of hate crimes recorded annually has been between 6,300 and 7,000. In 2021-22, the police recorded 6,927 hate crimes, and 62 per cent of those included a race aggravator. In 2020-21, almost a quarter of all victims were police officers.

I am grateful to Police Scotland for its outstanding dedication and professionalism as the law came into force and for all that it does to keep our communities safe. In the first week of implementation, Police Scotland received more than 7,000 reports of hate crime, the vast majority of which were not considered to be criminal. Of the 445 hate crimes recorded over the period 1 April to 14 April, only seven of those were stirring-up offences.

In the past week, there has been a 74.4 per cent decrease in online reports, to 1,832. Sadly, the number of recorded hate crimes did not decrease so significantly, which again reinforces the importance of the legislation. While volumes of recorded hate crime are up on average, that is to be expected, given the high-profile nature of the act’s implementation, and hate crime continues to be underreported. Police Scotland has been clear that demand continues to be managed within its contact centres and that the impact on front-line policing has been minimal.

I accept that the Scottish Government could have done more to inform people about the act and our wider approach to tackling hate crime and prejudice. We have, therefore, today, published a fact sheet to go with the general information note on the act that has already been published. However, let us be clear: even if the Government had produced more information, bad-faith actors who are intent on spreading disinformation would have done so regardless.

I am clear that the purpose and intent of the hate crime act, which was passed by 82 members of this democratically elected Parliament, is to protect those in our country who are at risk of hatred and prejudice. Tackling hate crime is not the responsibility of those who are targeted—it is our, and everyone’s, responsibility. We are absolutely committed to the ambitious programme of work in our hate crime strategy, with a range of actions under way to 2026 to support victims, improve data and evidence and develop preventative approaches to hate crime.

People and communities who are at the sharp end of hatred in their daily lives simply for being who they are should rightly look to the Parliament to stand with them, and the Scottish Government will continue to do so.