Section 59A — Offences aggravated by religious prejudice

Criminal Justice (Scotland) Bill: Stage 3 – in the Scottish Parliament at 5:30 pm on 19th February 2003.

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Photo of Murray Tosh Murray Tosh Conservative 5:30 pm, 19th February 2003

Amendment 10 is grouped with amendments 7, 1, 9 and 2. If amendment 9 is agreed to, amendment 2 will be pre-empted.

Photo of Donald Gorrie Donald Gorrie Liberal Democrat

Amendment 10 seeks to amend section 59A, which was itself proposed in an amendment that I lodged at stage 2, in a way that was proposed by the Government lawyers. It suggests that the court should make clear the extent to which the penalty reflects the aggravation of the offence by religious or sectarian hatred. As the whole idea behind the section is to send out a message that sectarian and religious violence is not acceptable in this country, it seemed like a good idea to include the text that is proposed in amendment 10. Amendment 10 is a refinement by Government lawyers of their own wording to make it more clear what a court must do to clarify the extent of and the reasons for the additional penalty.

I want to defend section 59A because Bill Aitken has an amendment that proposes to demolish it. I do not claim that section 59A is a magic wand that will make Scotland a better place overnight. However, it could be a modest but useful help in dealing with the vexed issue of sectarian and religious hatred by sending out the message that sectarian and religious violence is unacceptable. I think that almost everyone accepts that sectarian and religious hatred and prejudice exist in Scotland and that they are bad aspects of our society. Most people would accept that people in all parts of our society are prejudiced and bigoted and that sectarian violence exists. Figures clearly show that to be the case.

Sectarian violence often arises because of football matches between Rangers and Celtic, but that is not the only sphere for such violence. For example, because the police feared that there would be violence, they had to recommend that a march through Wishaw that was planned by republican groups should not take place. Sectarian violence is a serious issue. In addition, since 11 September 2001, Muslims, Jews and other groups have suffered increased harassment and, in some cases, violence.

Sectarian violence is caused by a cocktail of drink, religious traditions, Irish history and politics, racism and excessive football-club patriotism. All those contribute to the violence, but the sectarianism is a key part of it. When I intended to promote a member's bill on sectarian violence, I consulted widely. I sent out a substantial pamphlet to 500 organisations and got 100 responses. A majority of the responses supported the idea of aggravation, which would mean an increased penalty for an existing offence.

Photo of Karen Gillon Karen Gillon Labour

Can Mr Gorrie explain, by giving examples, what he means and does not mean by

"members of a religious group, or of a social or cultural group with a perceived religious affiliation"?

Can he give an example of a group that has a "perceived religious affiliation" and an example of one that does not, so that members can be clear about what they are voting for?

Photo of Donald Gorrie Donald Gorrie Liberal Democrat

As I said, there is a mixture of sectarianism, Irish politics and so on. I would have thought that the republican march that was perceived as going to cause a problem would come under section 59A as a sectarian issue. If people hit each other after a football match between Celtic and Rangers, that is violence that is motivated by sectarianism because the two clubs are regarded as promoting sectarianism.

Photo of Johann Lamont Johann Lamont Labour

I want clarification of the issues around, for example, a march that might attract violence. Does that mean that if a group said that it would disrupt a march and cause bother, such a march would have to be banned because it would be perceived as being part of the problem? That would be a troubling road to go down in relation to these sensitive issues.

Photo of Donald Gorrie Donald Gorrie Liberal Democrat

What Johann Lamont referred to happens already. The march to which I referred was cancelled under the existing law. If members will let me, I will explain what it is that I propose. Section 59A will not create any new offence, but will merely provide for a bigger penalty for an existing offence. I am not proposing to create any new offence.

Photo of John McAllion John McAllion Labour

Because I come from Dundee, I do not know of the circumstances of the ban to which Mr Gorrie referred. However, I know that James Connolly, who was a figure in Irish and socialist history, is well known as a socialist and is supported by people across political parties and that he and his supporters are the last people who could be called sectarian.

Photo of Donald Gorrie Donald Gorrie Liberal Democrat

Unfortunately, a person who is not sectarian can be supported by sectarian people. Many supporters of Jesus Christ act in an extremely bad manner, but that does not mean that he was bad in any way. Mr Connolly is not responsible for the aberrations of some of his followers.

My proposal is supported by faith groups, almost all the churches, unions, councils, colleges, universities and other organisations. There is wide support for the idea of aggravation.

As I have said repeatedly—although it seems that people have difficulty understanding my point—my proposal creates no new offence. It creates a bigger penalty, if the court so decides, for an existing offence. The policeman charges a person with a breach of the peace, an assault or whatever and reports that. If, on the basis of what the policeman has said and other evidence, the procurator fiscal thinks that there is a religious hatred element, he or she will put that into the charge and it will either be proved or not. I am not proposing that thousands of football supporters should be arrested or that there should be a ban on free speech or action. The normal law applies in that two witnesses will be required to prove the offence and, in line with similar legislation, one witness suffices in relation to the aggravation element.

The opposition to the proposal stems from two views. One is that we do all of what I am proposing already and the other is that it would be impossible to enforce. It is reasonable to support one argument or the other, but not to support both.

The Solicitor General for Scotland who, with her background as a procurator fiscal, is peculiarly well qualified to comment, explained to the committee for an hour that the proposal was quite manageable and enforceable and said that she supported it.

There is an argument that we cannot prove how many incidents happen at the moment and that, therefore, we should not go ahead. The fact is that nobody has hitherto taken the issue sufficiently seriously to collect information and that both sides of the argument are therefore reduced to using anecdotal information. If the situation were clearly stated in statute, we would know the extent of sectarian violence for the first time.

We should not leave the decision to the whim of each sheriff or magistrate. I am sure that many of them take account of sectarian motivations but, from what many witnesses told us, we can see that others do not. One does not set a speed limit and say that it would be nice if people went slightly slower; one says that people should not drive at speeds that break the speed limit. Similarly, we should say that an offence caused by religious hatred should be treated more seriously than one that is not.

Almost all the arguments that are advanced against this proposal were advanced a few years ago against legislation on racial hostility. That legislation has worked perfectly well. There has been a great increase in the reporting of racial hostility, which brings the issue into the open. That is surely a good thing.

I am proposing that sending out a message that religious bigotry and the violence arising from it is not acceptable will help to change people's attitudes. If we do not do that, we are saying that we will do nothing about the problem but will leave the responsibility for doing so up to education and so on. If we are to have a full range of educational measures to change the attitudes of adults and children, we must state in the law that sectarian violence is not acceptable.

I move amendment 10.

Photo of Bill Aitken Bill Aitken Conservative 5:45 pm, 19th February 2003

Amendment 10 is a classic case of how the road to hell can be paved with good intentions. It is important to make one thing clear: sectarianism and racism have no place in contemporary Scottish life. No one condemns more than I do the way in which they have permeated some sections of west of Scotland society in particular over the past 75 to 100 years.

In recognition of that, sheriffs, magistrates and judges have long made every effort to stamp out such behaviour. The courts have always viewed any breach of the peace, assault or any other crime in which there has been a sectarian element much more severely than other crimes.

Donald Gorrie referred to the Solicitor General for Scotland's evidence to the Justice 2 Committee. To be frank, I found her contribution to that debate disappointing. As an experienced procurator fiscal, the Solicitor General must have had to deal with many such cases in her day. Surely she must have seen that judges deal with them much more severely than they would deal with a conventional breach of the peace.

There is no need for amendment 10. The police say that it is not workable. Lawyers know that it is unworkable. The Sheriffs Association expressed concern, as I recall. Indeed, anyone who has the remotest connection with the legal system knows that amendment 10 is unnecessary and runs a real risk of complicating matters to the extent that what we are trying to achieve—namely, a reduction in sectarianism—will simply not be achieved.

The Executive and Donald Gorrie have to think again. The dangers of overcomplicating matters cannot be overemphasised. I can well imagine that prosecutions that would otherwise have been successful would be lost as a result of amendment 10.

Robin Harper's amendment 1 is, as ever, well intentioned. The problem is that, when we seek to include in those likely to suffer prejudice such a wide number of groups, we have to be very careful indeed. In proposed subsection (7) of the section that amendment 1 would introduce, Robin Harper defines what he means by "social group" as one defined

"by reference to gender, sexual orientation, disability or age."

If religious and racial prejudice are already included, it is difficult to imagine any section of society that would be excluded—or is it to be open season on middle-aged, heterosexual, fully fit men who are white atheists? Basically, that is what amendment 1 says.

I do not for a moment doubt Robin Harper's good intentions, but what he suggests is simply not workable.

I return to the principal point: I stress to the Parliament the real dangers of Donald Gorrie's amendment 10. We all want to combat sectarianism, and many initiatives could be taken in that direction. The criminal justice system has historically taken and takes a robust attitude against sectarianism. It is playing its part to combat it. Not only is amendment 10 unnecessary, it is a dangerous overcomplication of the existing situation. The Parliament should have no truck with it.

Photo of Robin Harper Robin Harper Green

Amendments 1 and 2 are an extension of the principle of section 59A, which makes malice and ill will based on religious prejudice a statutory aggravation of any offence. Amendments 1 and 2 extend that to malice and ill will based on the other grounds on which people most commonly face harassment and prejudice—gender, sexual orientation, disability and age.

Amendment 1 covers those four grounds because there is no doubt that many people are at a significantly increased risk of crime because of their gender, sexual orientation, disability or age. That crime ranges from breach of the peace, through vandalism, to serious assault and murder.

For the information of Bill Aitken, European Union laws to address prejudice cover exactly those same four grounds, together with racial prejudice and religious prejudice. New UK legislation on discrimination in employment and training will cover the same six grounds. It makes sense for our law on aggravated offences to cover the same grounds as those other laws on prejudice and discrimination, and amendment 1 would ensure that.

Amendment 1 is supported by organisations working in the four areas that it covers. Those include Capability Scotland, the Scottish Association for Mental Health, Engender, Age Concern Scotland and the Equality Network. Those organisations are all too aware of the reality of crime motivated by prejudice. Research published only yesterday by the Glasgow-based Beyond Barriers organisation found that two thirds of lesbian, gay and bisexual people have been abused or threatened, and that one quarter of them have been physically assaulted, because of their sexual orientation.

A study carried out by the National Schizophrenia Fellowship (Scotland) in 2002 found that people with mental health problems reported twice as much harassment as the general population, and that a third of the people who experience that harassment have been forced out of their homes as a result. We know that far too many women face gender-based abuse and violence, and abuse of people because of their age is equally unacceptable.

During evidence to the Justice 2 Committee at stage 2, the Solicitor General said that the introduction of a statutory aggravation of religious prejudice would enable the Crown Office and Procurator Fiscal Service to start to monitor the extent of crime motivated by religious or sectarian malice, which is not being done at present. Amendment 1 would simply allow that monitoring to be extended to all groups suffering routine prejudice and harassment.

I have had indications that, although the Executive is sympathetic to extending the law in the way that I propose, it might want more time to consult and to explore such a proposal, possibly by setting up a working group with a view to reintroducing the measures in amendment 1 in the next parliamentary session.

The Minister for Justice has kindly indicated a willingness to set up that working group and, if he can confirm that to Parliament today, I will not press amendment 1, on the ground that that group's work might give us the best opportunity for good legislation to be drafted in the future.

Photo of Murray Tosh Murray Tosh Conservative

The list of members wishing to speak on this group of amendments is quite long, but we should still have time for everyone.

Photo of Roseanna Cunningham Roseanna Cunningham Scottish National Party

I have considerable sympathy with many of the points made by Bill Aitken—and I suspect with some of the points that were being made by members on the Labour back benches, judging from the activity that looked like it was going on while Bill Aitken and Donald Gorrie were speaking.

To be honest, I am getting a little tired of banging my head against a brick wall on this issue. It is my view that section 59A will deliver fewer prosecutions and fewer convictions than there are at present. The minister seems to be content with that. We have dragged the debate on for so long now that the SNP will simply go along with what the Executive appears to want, although I do not think that the measures will achieve it. [MEMBERS: "What?"] Conservatives may look askance at that, but the debate has gone on for too long. If the minister's view is such, so be it. I will simply go along with it.

Robin Harper's amendment 1 is precisely where we start to get into difficulty. Paul Martin has an amendment on offences against firefighters and ambulance personnel in pursuance of their duty, which we will support if it goes to the vote, as the amendment is very clear. However, I am starting to think that what we need is a piece of legislation that defines who can simply be assaulted in an ordinary fashion. There are now so many exceptions and groups who are to be the subject of aggravations in assaults that there will be hardly anyone left.

Robin Harper makes a persuasive case for some of the people that he has mentioned, but equally, there are other groups of people who might ask, "Why am I being left out?" At some stage, we have to say that enough is enough.

Photo of Robin Harper Robin Harper Green

Does the member think that the people who draft European law have made a big mistake?

Photo of Roseanna Cunningham Roseanna Cunningham Scottish National Party

The SNP is a great supporter of the European Union, but even we would never say that everything that emanates from the European Union is right and should not be argued against. We must take a few steps back. The SNP will not support amendment 1, because it would extend the provisions for aggravation in assault cases to too many groups. At the current rate, there will be no ordinary assault left. We must question the way in which we are dealing with Scottish criminal law.

Photo of John Home Robertson John Home Robertson Labour

I will offer an example of a demonstrably inflammatory statement that was as inaccurate as it was malevolent and that could easily have given rise to sectarian aggravation. I will quote from the Sunday Herald of 11 March 2001. I want to know whether the statement—by no less a person than Donald Gorrie—could be subject to prosecution under section 59A of the bill.

Donald Gorrie stated:

"Less intellectual Catholic organisations have a grip on the party. Many Labour politicians have told me that they have to make a Faustus-like pact with the devil to get elected".

He continued:

"There is a predominance within the Labour Party of Catholics. I'm amazed more hasn't been made of this relationship. We have to ask, 'Is it good for politics, democracy and society?' I'm not saying Labour is in the Church's pocket but the Catholic Church has permeated and heavily penetrated the party. In some areas it seems every Labour member you meet is a lapsed Catholic. In East Lothian, for example"— there is the rub, as he is talking about my constituency

"Catholics are in a minority, yet they have a grip on the Labour Party."

Donald Gorrie concluded:

"At a local level, Labour is profoundly corrupt in terms of its relationship with the Catholic Church. In some cases, to even get a position as a school janitor you have to scratch the right backs, and that means that going to the right church helps you get on."

That is a load of dangerous and offensive nonsense. I have been a member of the East Lothian Labour party for almost 30 years and I was flabbergasted by Mr Gorrie's comments—as were people from all parties and none in the county that I represent. We in East Lothian have never paid any attention to people's denominational background, so I challenged Donald Gorrie to substantiate his allegations or to withdraw them. In response to his comments, we undertook some research for the first time into the present and past composition of my constituency Labour party and the local authority. Surprise, surprise—it emerged that the minority proportion of Catholics in the party is and has been in line with the minority Catholic population of East Lothian. Until Mr Gorrie saw fit to make his extraordinary accusation, no one had known or cared who was from a particular denominational background.

Donald Gorrie's public accusation that there is sectarianism in East Lothian was offensive, inflammatory and rubbish. In a letter to me, he withdrew the accusation, but I am afraid that the damage had been done. The allegations had been publicised—the word was out and people were whispering. I submit that that sort of aggravation, which was likely to stir up sectarian suspicions where none previously existed, should be subject to any serious legislation against sectarianism. We all deprecate sectarianism in all its forms, but there is a whiff of hypocrisy in some quarters in this debate. My question is this: under the terms of section 59A of the bill, could Donald Gorrie be prosecuted for making such an aggravating statement? I hope so.

Photo of Lord James Selkirk Lord James Selkirk Conservative

John Home Robertson puts his finger on the weakness in section 59A that has given rise to our amendment. Regardless of whether what Donald Gorrie said constituted sectarianism—on the balance of probabilities, I believe that it did not—it would take the police a disproportionate amount of time to work out whether that was the case. I do not believe that that is fully in the public interest.

I had the privilege to serve with Donald Gorrie on the cross-party working group on religious hatred, under the excellent chairmanship of Richard Wilkinson. I pay tribute to his work, which was continued by Hugh Henry. [MEMBERS: "Richard Simpson."] I am so sorry. Richard Simpson was the chair of the group. That was a slip of the tongue, or a Freudian slip.

I sympathise with Donald Gorrie's purposes and endorse the aim of promoting a tolerant society that is free from religious hatred. Indeed, I agreed to all the working group's numerous recommendations, with the exception of one, which was on the subject of legislation. The police had substantial reservations because of the very obvious point that has just been made by John Home Robertson. The Crown Office also had reservations about the enforceability of statutory provisions. When someone commits an offence, it is not always easy to determine exactly what was in that person's mind at the time.

As it is, sectarian elements in criminal actions are already rightly treated as an aggravating circumstance under common law. Making sectarianism a statutory offence would mean that other crimes of violence would be given less priority. I will give two examples; if a police officer is assaulted or if football supporters seriously injure supporters of another team, it might be that there was no element of sectarianism to those crimes and that the offenders were merely giving expression to tribal loyalties. However, the effect of the crime could be just the same. Why should such crimes be downgraded because no sectarianism is involved?

The common law works well at present. Judges take into account all the circumstances of cases and rightly take a serious view of sectarianism. Adding a statutory offence could take up an disproportionate amount of police time, which could be accompanied by definitional problems relating to free speech. John Home Robertson would defend Donald Gorrie's right to freedom of expression, even if he would seriously question whether Mr Gorrie was going beyond the bounds of what is permissible.

We believe that the case for statutory intervention remains not proven and, in any case, the police and Crown Office have—as I said—substantial reservations. We all abhor those who use religious faith as a reason for hating other people and we want to rid our country of bigotry in all its forms. However, we should not leap to the automatic conclusion that more laws are necessary in order to achieve that.

Although I whole-heartedly applaud Donald Gorrie's aim, I believe it would be best achieved under common law and without further statutory legislation.

Photo of Pauline McNeill Pauline McNeill Labour 6:00 pm, 19th February 2003

I would like to speak about Robin Harper's amendment and specifically about sexual orientation discrimination, which is a real and serious form of prejudice that takes its form in violence and physical abuse.

In yesterday's The Herald, a Mr Cowan from Edinburgh said:

"I have yet to hear a politician in Scotland stand up and insist that something is done".

I know that there are politicians in the chamber who have said that something should be done about sexual orientation prejudice. Robin Harper, Kate Maclean and others on the Equal Opportunities Committee have consistently argued that something should be done, so what should we do?

In a recent survey of 920 lesbian, gay, transgender and bisexual people, 79 per cent had suffered verbal or physical abuse and 20 per cent had suffered physical abuse. Those are quite staggering figures. One of the problems is that the community is afraid to report crime in our criminal justice system—many serious incidents are still not reported. Parliament must consider the nature of that discrimination and not merely pass a resolution today that will bring a law into force. Each of the prejudices and discriminations that are mentioned in Robin Harper's amendment contains its own peculiar and distinct issues. Parliament should not overlook that when it considers the types of prejudice that people face.

Robin Harper is right to call for the Executive to look into the distinct problem. Before we think about passing laws, we should strengthen our resolve to tackle the lack of confidence that lesbian, gay, transgender and bisexual people have in reporting crime. If we do that, I think we will have done something worthwhile. I support the Executive's position.

Photo of Mike Rumbles Mike Rumbles Liberal Democrat

I want to speak against Bill Aitken's amendment, which aims to take out section 59A. The Tories normally call for greater sentences for criminal offences, so I am a little bit surprised to see that they oppose such a measure. They normally call for just such a thing to be done.

In a way, however, I am not so surprised, because in my view the Conservatives are completely out of touch with the people of Scotland, especially on this issue. Victims of violent crime are often targeted simply because of their religious beliefs or affiliation—we see it reported in the press frequently. Section 59A will not create a new crime and it will not create a new offence; rather, it will bring our law into line with current law relating to racial intolerance and bigotry. Violent crime is not acceptable and, in my view, violent crime that is motivated by religious prejudice needs to be stamped out completely.

It is rare to be able to bring to bear experiences from my past, having spent most of my adult life in the army, but in the army we have what is called a prevalent offence—some sort of illegal activity that needs to be stamped out. The commanding officer of any military unit can declare a prevalent offence—in other words, it carries a heavier than normal penalty—to eradicate the activity about which the commanding officer of the unit is concerned. That system works in the services. The idea is that there is a desire to eradicate an offence, so minds and attention are focused on it by creating a heavier penalty. That is what section 59A of the bill is all about. I find it incredible that the Tories want to remove it.

The clear message in section 59A is that offences that are aggravated by religious prejudice are not acceptable. I disagree with Roseanna Cunningham; I think that the bill will help to stamp out religious bigotry, but I do not think that it is helpful to try to belittle the whole concept of aggravated offences, because I know from experience that they work.

I heard clearly what John Home Robertson said, but I ask him not to confuse the issue of allegations of religious bigotry—from whatever source they come—with the issue that we are dealing with, which is offences that are aggravated by religious prejudice. We need to remove that. Section 59A is a progressive measure, which should be supported. I hope that Parliament will do that today.

Photo of Karen Gillon Karen Gillon Labour

I have genuine concerns about section 59A, but not because I condone in any way, shape or form sectarianism or any other form of religious prejudice. I think that—whatever faith we follow, or whether we follow no faith—I speak for everyone on the Labour benches when I say that.

Sectarianism is a complex issue and it was clear to me from Donald Gorrie's speech that he simply fails to understand the complexities of it. He could not explain what was meant by section 59A, or what

"a social or cultural group with a perceived religious affiliation" is or is not. That is a significant failing.

I address my comments to the minister, because the minister has an obligation, having supported section 59A, to explain what it means. He must explain that the section is not about someone who is beaten up after a Rangers versus Celtic game being treated better than someone who is beaten up after an Aberdeen versus Dundee United game, and that it is about a far more complex issue. The section is about people who, unfairly, experience prejudice because of their religion.

I have feelings that are similar to those of Roseanna Cunningham, in that I feel that we have now reached a point from which we cannot go back—we must accept section 59A because of that. However, I do not believe that section 59A will deal with sectarianism; it will deal with a few offences. The underlying root causes of sectarianism have still to be tackled. Sectarianism must be tackled whether it is to do with football or the complex issues that prevent people from progressing in their jobs because of the religion that they follow. Sectarianism is real and it is alive, and we as a Parliament have an obligation to deal with it, but not to trivialise it. I am afraid that despite Mr Gorrie's good intentions, his speech this afternoon trivialised the matter.

Photo of Elaine Smith Elaine Smith Labour

On a point of order, Presiding Officer. Will you clarify whether amendment 10, which relates to section 59A, and amendment 1 have been deemed competent in terms of the Scotland Act 1998? The amendments seem to deal with issues that fall under section L2 of schedule 5 to that act, which covers equal opportunities. I am curious to know whether the amendments have been deemed competent.

Photo of Murray Tosh Murray Tosh Conservative

The amendments were selected according to the normal criteria. They are within the competence of the Scottish Parliament.

Photo of Jim Wallace Jim Wallace Liberal Democrat

Amendment 10, which Donald Gorrie moved, is a technical amendment that the Executive supports. It is intended to put beyond doubt the requirement for the courts to state the extra element of a sentence that is attributable to an aggravation of religious prejudice.

The Executive does not support amendments 7 and 9, which would remove from the bill the provisions on offences that have been aggravated by religious prejudice. It is well known that those provisions were debated at some length at stage 2. I will reflect on some of those debates and some of the background to the provisions.

The cross-party working group that examined possible legislation to tackle religious hatred concluded that such legislation was desirable not on its own, but in concert with a package of other measures to combat religious hatred. When the First Minister and I published the working group's report on 5 December, we announced the Executive's intention to support such legislation and put out for consultation a range of other measures that must accompany the legislation.

Photo of Lord James Selkirk Lord James Selkirk Conservative

Is the minister aware that I reserved the position of the Scottish Conservative and Unionist Party on legislation? I did not agree to legislation on the working group. I made that clear and I made a telephone call about that as soon as I saw the publication, because I felt that it did not make our position sufficiently clear.

Photo of Jim Wallace Jim Wallace Liberal Democrat

I acknowledge that. Lord James summarised his position and that of his party, which I accept was his position.

Section 59A puts beyond doubt the principle of penalising people who use religious or sectarian differences as a motive, pretext or excuse for committing an offence. I will deal with some of the detailed points that have been made. Karen Gillon asked—fairly—about the words

"social or cultural group with a perceived religious affiliation".

Section 59A(2)(b) says that an offence is aggravated by religious prejudice if it is

"motivated (wholly or partly) by malice and ill-will towards members of a religious group, or of a social or cultural group with a perceived religious affiliation, based on their membership of that group."

That might refer to an arson attack or other attack of vandalism not on a religious building such as a church, but on a social club or a building that was used by a group that was perceived to have a religious affiliation, such as the Orange order.

Another important point is that a crime must have been committed. If the victim of the crime belongs to a social group that might be perceived to have a religious affiliation, that can stack up to create an aggravated offence under section 59A.

An offence must have been committed. When Lord James Douglas-Hamilton picked up on John Home Robertson's comments, perhaps he missed the point. In no way do I endorse the quotations that John Home Robertson read out. I know that Donald Gorrie apologised for them, as he said. However, in the circumstances that John Home Robertson described, no offence was committed under existing law, so there was no question of incitement, which the working group rejected. No offence such as assault or arson was committed with religious aggravation.

An original offence, such as an assault or an attack on a mosque or a synagogue, which, regrettably, has occurred, must have been committed and aggravated by a religious dimension. That is why I cannot readily accept what Roseanna Cunningham said. She seemed to throw up her hands in despair and said that fewer convictions would be secured. The important point is that there would still be an offence—it is not as if the police have got to go away and tackle new offences. The offence would be one that was aggravated by a religious overtone or motivation, with evidence of malice or ill-will being evinced by the perpetrator of the offence because of the religious affiliation of the victim.

Section 59A provides transparency for the victim and the wider community about how the criminal justice system should deal with that type of prejudice. Much has been said about sectarianism, but it is important to recognise that the provisions will apply to attacks on other faiths as well. Reports from some of the Muslim communities say that, in this time of tension, the international attention on their community makes them feel vulnerable. We will not accept or in any way condone attacks on people because of their religion. If such attacks happen, the fact that they are made because of someone's religion aggravates what in any event is a serious offence.

Lord James Douglas-Hamilton argued that, because of the existence of the common law, we should leave the offence to the common law. Similar arguments could have been brought—indeed, I understand that they were brought—when it was sought to codify racial aggravations in the Crime and Disorder Act 1998, yet that legislation has allowed us to track the incidence of racial aggravation through the criminal justice system. The legislation has been shown to work and to work well in practice. It allows fiscals to identify easily the incidence of racial aggravations in an accused's previous convictions in order to decide whether, for example, a case should be dealt with under summary or solemn procedure.

Photo of Duncan Hamilton Duncan Hamilton Scottish National Party 6:15 pm, 19th February 2003

Will the minister confirm that it was not only Lord James Douglas-Hamilton who said that the current law was adequate but that that view was also expressed by the Sheriffs Association?

Photo of Jim Wallace Jim Wallace Liberal Democrat

I know that the Sheriffs Association asserted that the offence was covered by the common law. Under the current system, however, it is up to the sentencer to reflect any perceived aggravation in the sentence. Concerns were, and are, expressed that it is not possible to ascertain how often that is done in practice. Section 59A changes that: it will require the sentencer to show how aggravation is reflected in the sentence. Although the courts have held that it is proper and not unlawful for a sheriff to reflect aggravation in a sentence, there is no consistency in knowing whether that happens in practice. Section 59A should help to build confidence that the criminal justice system treats religious aggravations seriously.

Having examined the case for racial aggravations so that we are able to track cases, fiscals can decide whether a case should be heard under summary or solemn procedure. We ought to extend that provision to cases in which religious hatred is involved.

We would not recommend lightly codifying any element of the common law, which after all has a number of admirable features. However, the considerable work that has been undertaken on the subject of religious hatred persuades us that such an intervention is justified in this case. It is simply not good enough to say that we are against sectarianism and against religious prejudice: people expect something to be done about sectarianism and religious prejudice.

Although a range of issues has been put out for consultation as a result of the working group's report, I believe that section 59A sends a very clear signal that we do not tolerate religious hatred. It will be a valuable weapon in our armoury in dealing with offences that involve religious prejudice.

As Mr Harper indicated, the groups that are covered by his amendment 1 are based on the European anti-discrimination framework, which is designed to prevent people from discriminating against each other on certain grounds and provides for civil remedies for such discrimination in certain circumstances. However, it is not quite so simple to transpose that framework into the criminal law—indeed, it may not be appropriate to do so. The four groups that are covered in amendment 1 might not all be in need of the protection in quite the same way.

People in those different groups should be safe and should feel safe. No one is suggesting that it is somehow all right for those groups to be subjected to crime, but hate crime is a crime and such assaults and abusive behaviour are dealt with day in, day out in our criminal justice system. People who are defined by age, including the elderly, and by disability may arguably be subject to attacks simply because they are vulnerable rather than because of some provable motive of ill-will or malice against them because they are elderly or have a disability.

Amendment 1 does not deal with those groups' vulnerability; it deals only with social prejudice. The common law deals with a broader spectrum of aggravations in respect of those groups than does amendment 1. That is not to say that the underlying principle that Robin Harper has offered for debate is not worthy of further consideration. However, we believe that much more work needs to be done to determine the place of different groups in respect of aggravations.

During stage 2, we said that we would look into the matter further and, after discussions with Robin Harper and equality representatives, we are persuaded that such issues would best be examined by an Executive working group. Accordingly, I announce our intention to have further, suitable consultations with the equality groups and to convene such a working group. Although we will not support amendments 1 and 2, I welcome the fact that Robin Harper has raised this important issue. I hope that he believes that it has been dealt with sensibly.

Photo of Donald Gorrie Donald Gorrie Liberal Democrat

Jim Wallace has covered the ground well. I agree entirely with Karen Gillon that section 59A does not deal with the root causes of sectarianism. However, I believe that it makes a small step towards changing people's attitudes, which is what it is all about. It sends out a message that, for the first time, the law is taking seriously religious and sectarian hatred and the crimes that are committed because of that hatred, which are not currently on the statute book.

I appreciate the fact that members are concerned about the section. I have lived with the proposition for two years and I think that I understand it. However, some members are new to this curiously worded section, which, like all laws, is not really in English but in legalese. The proposition does not create any new offences. It takes existing offences—not words that may have been foolishly written or said—and treats them more seriously. That is a modest and reasonable approach towards a very complicated problem that I do not claim to understand any better than anyone else. I urge members to support the Solicitor General for Scotland and Jim Wallace, who have set the matter out very well, and I press amendment 10.

Photo of Murray Tosh Murray Tosh Conservative

The question is, that amendment 10 be agreed to. Are we agreed?

Division number 15

For: Adam, Brian, Alexander, Ms Wendy, Baillie, Jackie, Barrie, Scott, Boyack, Sarah, Brankin, Rhona, Butler, Bill, Campbell, Colin, Canavan, Dennis, Chisholm, Malcolm, Craigie, Cathie, Crawford, Bruce, Cunningham, Roseanna, Curran, Ms Margaret, Deacon, Susan, Eadie, Helen, Ewing, Fergus, Ewing, Mrs Margaret, Fabiani, Linda, Ferguson, Patricia, Finnie, Ross, Gibson, Mr Kenneth, Gillon, Karen, Godman, Trish, Gorrie, Donald, Harper, Robin, Henry, Hugh, Home Robertson, Mr John, Hughes, Janis, Hyslop, Fiona, Ingram, Mr Adam, Jackson, Dr Sylvia, Jackson, Gordon, Jamieson, Cathy, Jamieson, Margaret, Jenkins, Ian, Kerr, Mr Andy, Lamont, Johann, Livingstone, Marilyn, Lochhead, Richard, Lyon, George, MacAskill, Mr Kenny, Macdonald, Lewis, Macintosh, Mr Kenneth, MacKay, Angus, Macmillan, Maureen, Martin, Paul, Marwick, Tricia, Matheson, Michael, McAllion, Mr John, McAveety, Mr Frank, McCabe, Mr Tom, McConnell, Mr Jack, McGugan, Irene, McLeish, Henry, McLeod, Fiona, McMahon, Michael, McNeil, Mr Duncan, McNeill, Pauline, McNulty, Des, Morgan, Alasdair, Morrison, Mr Alasdair, Muldoon, Bristow, Mulligan, Mrs Mary, Munro, John Farquhar, Murray, Dr Elaine, Neil, Alex, Oldfather, Irene, Paterson, Mr Gil, Peacock, Peter, Peattie, Cathy, Quinan, Mr Lloyd, Radcliffe, Nora, Raffan, Mr Keith, Reid, Mr George, Robison, Shona, Robson, Euan, Rumbles, Mr Mike, Scott, Tavish, Simpson, Dr Richard, Smith, Elaine, Smith, Iain, Smith, Mrs Margaret, Stephen, Nicol, Stevenson, Stewart, Stone, Mr Jamie, Sturgeon, Nicola, Swinney, Mr John, Thomson, Elaine, Wallace, Mr Jim, Watson, Mike, Welsh, Mr Andrew, Whitefield, Karen, Wilson, Allan, Wilson, Andrew
Against: Aitken, Bill, Davidson, Mr David, Douglas-Hamilton, Lord James, Fitzpatrick, Brian, Fraser, Murdo, Gallie, Phil, Goldie, Miss Annabel, Harding, Mr Keith, Johnstone, Alex, McIntosh, Mrs Lyndsay, McLetchie, David, Monteith, Mr Brian, Scanlon, Mary, Scott, John, Young, John
Abstentions: Hamilton, Mr Duncan

Photo of Murray Tosh Murray Tosh Conservative

The result of the division is: For 95, Against 15, Abstentions 1.

Amendment 10 agreed to.

[Amendment 7 moved—[Bill Aitken].]

Photo of Murray Tosh Murray Tosh Conservative

The question is, that amendment 7 be agreed to. Are we agreed?

Division number 16

For: Aitken, Bill, Davidson, Mr David, Douglas-Hamilton, Lord James, Fergusson, Alex, Fraser, Murdo, Gallie, Phil, Goldie, Miss Annabel, Harding, Mr Keith, Johnstone, Alex, McIntosh, Mrs Lyndsay, McLetchie, David, Monteith, Mr Brian, Mundell, David, Reid, Mr George, Scanlon, Mary, Scott, John, Young, John
Against: Adam, Brian, Alexander, Ms Wendy, Baillie, Jackie, Barrie, Scott, Boyack, Sarah, Brankin, Rhona, Butler, Bill, Campbell, Colin, Canavan, Dennis, Chisholm, Malcolm, Craigie, Cathie, Crawford, Bruce, Cunningham, Roseanna, Curran, Ms Margaret, Deacon, Susan, Eadie, Helen, Ewing, Fergus, Ewing, Mrs Margaret, Fabiani, Linda, Ferguson, Patricia, Finnie, Ross, Fitzpatrick, Brian, Gibson, Mr Kenneth, Gillon, Karen, Godman, Trish, Gorrie, Donald, Harper, Robin, Henry, Hugh, Home Robertson, Mr John, Hughes, Janis, Hyslop, Fiona, Ingram, Mr Adam, Jackson, Dr Sylvia, Jackson, Gordon, Jamieson, Cathy, Jamieson, Margaret, Jenkins, Ian, Kerr, Mr Andy, Lamont, Johann, Livingstone, Marilyn, Lochhead, Richard, Lyon, George, MacAskill, Mr Kenny, Macdonald, Lewis, Macintosh, Mr Kenneth, MacKay, Angus, Macmillan, Maureen, Martin, Paul, Marwick, Tricia, Matheson, Michael, McAllion, Mr John, McAveety, Mr Frank, McCabe, Mr Tom, McConnell, Mr Jack, McGugan, Irene, McLeish, Henry, McLeod, Fiona, McMahon, Michael, McNeil, Mr Duncan, McNeill, Pauline, McNulty, Des, Morgan, Alasdair, Morrison, Mr Alasdair, Muldoon, Bristow, Mulligan, Mrs Mary, Munro, John Farquhar, Murray, Dr Elaine, Neil, Alex, Oldfather, Irene, Paterson, Mr Gil, Peacock, Peter, Peattie, Cathy, Quinan, Mr Lloyd, Radcliffe, Nora, Raffan, Mr Keith, Robison, Shona, Robson, Euan, Rumbles, Mr Mike, Scott, Tavish, Simpson, Dr Richard, Smith, Elaine, Smith, Iain, Smith, Mrs Margaret, Stephen, Nicol, Stevenson, Stewart, Stone, Mr Jamie, Sturgeon, Nicola, Swinney, Mr John, Thomson, Elaine, Wallace, Mr Jim, Watson, Mike, Welsh, Mr Andrew, Whitefield, Karen, Wilson, Allan, Wilson, Andrew
Abstentions: Hamilton, Mr Duncan

Photo of Murray Tosh Murray Tosh Conservative

The result of the division is: For 17, Against 95, Abstentions 1.

Amendment 7 disagreed to.