Dr Kim Barker, Lecturer in Law, University of Stirling
Dr Olga Jurasz, Senior Lecturer in Law, The Open University Law
Hate Crime and Public Order (Scotland) Bill
On 23 April 2020, the Scottish Government introduced the Hate Crime and Public Order (Scotland) Bill. The Bill comes after the Bracadale Review into hate crime legislation in Scotland (carried out in 2018) and One Scotland consultation (carried out in 2020). It is a long-awaited piece of legislation, especially having the high promise of taking a pioneering step towards recognising gender-based hate as an aggravator within the hate crime framework in Scotland. Unfortunately, despite these high hopes, the Bill leaves little promise of making such recognition a reality in the legal context.
Where is gender?
The Bill introduces new protected characteristics in section 1(2), including ‘variations in sex characteristics’. Somewhat surprisingly, the Bill does not refer to either ‘sex’ nor ‘gender’ which were two characteristics proposed, and considered in previous consultations. The absence of ‘gender’ is striking, not least because it goes against recommendations of Lord Bracadale’s Review, but also the First Minister’s Advisory Council on Women and Girls – both of whom advocated for addressing the – recognised – gaps in the existing legal provisions in Scots Law in respect of misogyny. The omission also appears to contradict the previously made commitments of the Scottish Government to make Scotland a safer place for women. This is surprising because the Scottish Government in its legislative programme for 2020/2021 indicated its intention to update the law on hate crime in line with Lord Bracadale’s recommendations, including the addition of new characteristics, which were widely reported to include gender. It is also curious as to why the current opportunity to make a pioneering piece of legislation has been ultimately foregone given that aggravation related to gender was already considered back in 2003 in s7(2)(b) of the Draft Criminal Code for Scotland. As such, gender is far from being a ‘new consideration’, especially in the context of hate crime framework, and this long overdue inclusion has – once again – been ignored.
What about the standalone offence?
The proposal that the Scottish Government will be convening a Working Group to explore the potential of a standalone offence of misogynistic harassment is one which is somewhat surprising, and suggests that the influence of the women’s organisations is such that they are difficult to oppose when it comes to policy development.
As we have argued elsewhere, a standalone offence will not in and of itself address misogyny, or the harassing elements of it through hate crime. As such, this is perhaps the most disappointing aspect of the draft legislation, and the associated Policy Memorandum. By omitting gender, the Scottish Government has all but essentially reneged on its election pledge to address misogyny and gender-based prejudices through the hate crime provisions.
That said, this prevaricating by the Scottish Government is difficult to understand, especially over something which is straightforward and easy to condemn. Moreover, the continued paralysis concerning misogynistic abuse actually reinforces the harms of misogyny. Misogynistic abuse is long-standing and historical form of prejudice of such ancient origin that it is even more astonishing that the inclusion of a gender aggravation is not something that is automatically included in a Bill which claims to be a consolidating and, more importantly, updating piece of legislation on hate crime.
So where is this going?
Ultimately this leads to questions surrounding the priorities and focus of the Scottish Government. Beyond that, it also raises significant questions of leadership. If the Scottish Government is insistent enough that they will ignore Lord Bracadale’s recommendations, how is it that the Government has lost the inclination and will to insist upon the inclusion of an aggravation? It seems that not only has the legislative and parliamentary appetite to address gender-based prejudice fallen away, but misconceptions around hate crime will continue to persist.
Significantly, the insistence of the Scottish Government that the draft Bill remain consistent with the Equality Act 2010 indicate that there is a misunderstanding about the roles of these respective pieces of law – addressing something under the Equality Act 2010 will not amount to a hate crime. Above all else, hate crimes are not solely concerned with equality, but are concerned with prejudice, and it is this prejudice aspect which remains missing from the proposed legislation.
It is difficult to see this announcement – and the draft Bill – as anything other than a failure for women