OFFENCES (AGGRAVATION BY PREJUDICE) (SCOTLAND) BILL
BILL MANAGEMENT MEETING - BRIEFING NOTE
21 FEBRUARY 2008,
Policy Readiness
On 22 November 2007, Patrick Harvie MSP lodged his final proposal to extend existing hate
crime legislation to cover crimes motivated by prejudice on the basis of sexuality, disability
or transgender identity. Following agreement from CSCL, Scottish Government support for
these proposals was announced on 15 January 2008. The legislation will be taken forward as
a ‘Handout’ Bill and will create two new statutory aggravations covering crimes motivated
by malice or ill-will based on sexual orientation/transgender identity or disability. This is in
line both with a commitment made in the SNP manifesto and the recommendations of the
Working Group on Hate Crime set up by the previous administration. Preparations are well
in hand to allow for a March 2008 introduction with drafting of the Bill itself, and the
accompanying documents, at an advanced stage.
Scope and content of the Bill
The policy objective of this Bill is to create two new statutory aggravations to protect victims
of crime who are targeted as a result their actual or presumed sexual orientation, transgender
identity or disability. Similar statutory aggravations already exist to protect individuals
targeted on racial or religious grounds and similar provisions in relation to sexual orientation
and disability already exist in England, Wales and Northern Ireland.
The Bill ensures that, where it can be proven that an offence has been motivated by such
hatred, the court must take that motivation into account when determining sentence. As with
the existing racial and religious hatred legislation, these aggravations will also extend to
situations where an offender evinces malice or ill-will towards a particular group as a whole,
without the need for an individual victim to be identified.
Upon conviction, where the sentence is different as a result of the aggravation, the court will
be required to state and record the extent of, and reasons for, that difference. Where an
offender is found guilty of an aggravated offence, but the sentence does not adequately reflect
that aggravation an appeal may be made by the Crown (as it empowered to do so in existing
law). This may be on a point of law or on the grounds that the sentence is unduly lenient.
This will ensure that accurate records of the numbers of such crimes are kept, allowing us to
get a much clearer picture of their frequency and seriousness than we have at present.
Competence, ECHR and other legal issues
SGLD are satisfied that the Bill provisions are within competence. A detailed note on
legislative competence will be prepared for the Lord Advocate.
The proposed Bill does not give rise to any issues under the European Convention on Human
Rights (ECHR). There may be circumstances where Article 9 (freedom of thought,
conscience and religion) and Article 10 (freedom of expression) are engaged but it is
considered that any interference is justified as being necessary in a democratic society in the
interests of, among other things, the protection of the rights and freedoms of others and the
prevention of disorder and crime.
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Complexity and sensitivity
The Government announcement of support for the Bill drew accusations from the
Conservatives of measures to create a “two tier” justice system. The measures were
described as unfair and concern was expressed that certain groups in society will be entitled
to “extra protection” under the law. The provisions in the Bill are designed to protect anyone
who is the victim of a crime motivated by prejudice relating to sexual orientation, disability
or transgender status. The focus of the Bill is on the motivations of the offender, not the
identity of the victim.
Early in the consultation process, some religious organisations expressed concern that
measures to address hate crime could impact on the right to freedom of speech and the right
to express views on homosexuality. Much of this concern was based around the possibility of
the introduction of new offences of incitement to hatred or incitement to commit a crime.
The Bill does not create any new offences and the announcement of Government support for
it has drawn no comment from religious organisations.
Staffing arrangements for the Bill Team
The Bill Team consists of 1C1, 1 Fast Streamer (B2) and 1A4 with input from the Deputy
Director. Solicitors and draftsmen from SGLD and OSPC respectively are allocated to the
Bill.
Financial implications
The extension of existing hate crime provisions in this manner may have some financial and
logistical implications for parts of the criminal justice system, principally in relation to IT and
other administrative arrangements. We would anticipate that such costs will be minimal and
could be met from within existing budgets.
Explanatory Notes
These are being drafted by the Bill team and will be revised by SGLD and OSPC.
Timetable
The Bill is due to be introduced in the week beginning 10 March 2008 and has not yet been
allocated to a Committee.
Associated subordinate or consequential legislation
A Commencement Order will be required to bring the provisions of the Bill into force. This
will not be subject to Parliamentary procedure.
Any Parliamentary or political issues which require particular attention
We anticipate broad, cross party support for the Bill. Patrick Harvie’s final proposal received
45 supporting signatures drawn from the Green Party, the SNP, Labour and the Liberal
Democrats. The Conservatives are likely to oppose the Bill, having already expressed
reservations about what they see as measures to create a ‘two tier’ justice system.
What has been done (or is planned) to engage Government backbenchers?
We are assuming that the Bill will be taken forward by the Equal Opportunities Committee,
although the final decision has yet to be made. It was this Committee which considered and
agreed to Patrick Harvie’s proposal to forego the standard consultation process. All three
SNP members of the committee and one Labour member signed up to support Mr Harvie’s
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final proposal. Prior to Stage 2, we will offer factual briefings to both the Committee and any
Government backbenchers who would find it useful.
Media plan in preparation, engagement with interest groups/stakeholders
We are in regular contact with Communications Justice colleagues to discuss the Bill’s
progress and will prepare a media handling strategy with them and the Green Party’s media
relations team to cover the introduction of the Bill. Regular contact between officials and Mr
Harvie’s team has already been established with fortnightly meetings now underway to allow
discussion on policy and process issues. We have had early discussions with some of Mr
Harvie’s key supporters and major stakeholders (i.e. the Equality Network and Scottish
Transgender Alliance) and will continue to do so to help ensure broad support from lobby
groups and the communities the Bill is designed to protect. We have held early discussions
with Crown Office officials on the practical effects and implementation of the legislation and
will have further detailed discussions with other relevant sectors of the criminal justice
system (i.e. ACPOS, the Scottish Court Service, the Scottish Children’s Reporters
Administration).
Equality and race relations compliance issues
We are ensuring that our plans are consistent with good practice in these areas and are
undertaking an Equality Impact Assessment on the provisions of the Bill. This will consider
ways in which the Bill might impact, either positively or negatively, on different sectors of
the population in different ways.
Scottish Government, DG Justice and Communities
Criminal Law Directorate
February 2008
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