Offences (Aggravation by Prejudice) (Scotland) Bill: Stage 1

– in the Scottish Parliament at 2:35 pm on 18th March 2009.

Alert me about debates like this

Photo of Alasdair Morgan Alasdair Morgan Scottish National Party 2:35 pm, 18th March 2009

The next item of business is a debate on motion S3M-3694, in the name of Patrick Harvie, on the Offences (Aggravation by Prejudice) (Scotland) Bill.

Photo of Patrick Harvie Patrick Harvie Green 3:08 pm, 18th March 2009

I am delighted to open the debate. When opening a debate on a member's bill, it is usual for the member in charge to begin with thanks to the lead committee for its work and for a positive report. I am certainly happy to offer those thanks, but wider thanks are needed in this case, as the bill is the result of a great deal of work over years by many people outside Parliament, some of whom have joined us in the gallery.

I pay tribute to the organisations that contributed to the working group on hate crime and which have campaigned since then to have its key recommendation accepted. I also thank the people who were willing to talk in Parliament and in the media about their experiences of being on the receiving end of hate crime. Their first-hand accounts have helped to build the majority that I hope will enable the bill to progress today.

Thanks are also due to the Scottish Government for agreeing to support the proposal through the handout bill process and to the bill team, which has helped me to reach this stage today. I also thank the 45 members who added their names in support of the proposal to enable it to reach stage 1.

I mentioned the working group on hate crime that was established by the previous Administration, but the issue is older than that. Under the Crime and Disorder Act 1998, the Westminster Parliament required that the aggravation of an offence by racial prejudice should be taken into account in sentencing. That was the first time a statutory basis was given to the use of aggravation as a means of addressing hate crime. After that, Donald Gorrie extended the concept—he was successful in amending the Criminal Justice (Scotland) Bill that was passed during the Parliament's first session—by using the same mechanism to address religious prejudice. At that time, my colleague Robin Harper made a similar attempt to include prejudice on other grounds, including sexual orientation and disability. Robin Harper's amendments were not accepted by the Government at that time, but they led to the working group on hate crime.

It is perhaps a little frustrating that it is only now, seven years later, that Parliament will have the opportunity to vote on a proposal to implement the working group's key recommendation, but there we are—such things sometimes move slowly. There have been delays, but I am hopeful that we will reach agreement tonight that a mechanism that is an important part of Scotland's response to crimes of prejudice should be extended to additional categories.

What is the evidence of the extent of the problem that the bill seeks to address? I acknowledge that one reason why we need legislation to provide a statutory basis for such aggravations is to build up a clearer set of data—a clearer picture—on the issues, although we know that the problems exist and are significant. In 2008, the charity Scope published a report that found that 47 per cent of disabled people in the UK had either experienced physical abuse or had witnessed physical abuse of a disabled friend.

The report also stated that

"disabled people were four times more likely to be violently assaulted than non-disabled people" and that

"visually impaired people were four times more likely to be verbally and physically abused than sighted people."

It also pointed out that

"people with mental health issues were 11 times more likely to be victimised".

In 2003, a survey of lesbian, gay, bisexual and transgender people in Scotland found that 23 per cent had been physically assaulted because of their sexual orientation or transgender identity. According to a survey by the Scottish transgender alliance, 21 per cent of transgender people have experienced violent or sexual assault that was motivated by prejudice towards them.

We also know—increasingly, Scottish police forces are responding to this with real concern—that many people simply do not report such crimes to the police. Perhaps people fear being outed, do not expect a supportive response or cannot be bothered with the hassle. Perhaps people have simply come to believe that such offences are to be expected and should be accepted as a normal part of their lives.

Such crimes can have a profound impact on people's quality of life. If we leave aside serious violent offences, experiences of persistent low-level harassment, intimidation, vandalism and threats can be deeply demoralising and can come to reinforce an internalised prejudice that can leave many people believing that they are not worthy of the protection of the law. This Parliament should disagree—I hope that it will do so tonight.

In addition, we should consider the stress and emotional toll that many disabled people and transgender people deal with in engaging day to day with public institutions, which hold a great deal of power over the most intimate aspects of their lives and identities. In association with such experiences, hate crimes represent a level of harm that Parliament should not ignore.

The arguments in favour of the bill are clear. If we compare its provisions with the existing race and religion aggravations, we see a picture of a mechanism that is working effectively. I have not heard a single call—I doubt that any credible voice would do so—for abolition of the existing aggravations on race and religion. That leaves us with the long-standing question: If that is the right mechanism for those types of hate crime, why is it the wrong mechanism for other comparable types of hate crime? There is general agreement that the current aggravations are working and can be effectively used by the courts.

Such aggravations also help to ensure that we can find out the extent of the problem. In that context, I mention Bill Butler's recent written question, through which he was able to get from the Government information about the number of religious aggravation convictions in each procurator fiscal area. We are not able to find out the number of offences that are aggravated by prejudice because that information is simply not recorded, which is partly why we need to make aggravation by prejudice a statutory aggravation and why there should be a duty on courts to record their reasons for varying, or not varying, particular sentences.

The additional categories of aggravation with which the bill deals have been in place in England and Wales since 2003, and in Northern Ireland since 2004, with the exception of aggravation on the basis of transgender identity, on which I hope very much the other parts of the United Kingdom will catch up with us.

The creation of a new statutory aggravation will help the police and the courts to develop an approach that will encourage offences to be reported and will build confidence among members of the affected communities to increase reporting. It will also ensure that we pass appropriate sentences and that we build up a national picture of the extent of the problems, which will help us to make the most appropriate and most effective sentencing response.

Some people have argued that the flexibility that is inherent in the common law is sufficient to deal with the offences in question. In theory, it allows sentences to be varied, but in practice it is not used nearly enough. It is clear that there is less focus on the offences that we are discussing than there is on those that are defined in legislation.

Moreover, there are things that the common law cannot do. I repeat that if we record the number of such aggravations and build up a national picture, police forces will be able to gather intelligence that they can use to prevent future offences, which is far preferable to merely responding to offences.

An inconsistent approach is adopted to different types of hate crime. Many police forces want to respond coherently and consistently to the various manifestations of hate crime and would prefer the legislation to be consistent.

Some people have argued that the bill will create a hierarchy of victims or of rights, but even those who might once have argued that straight, white, able-bodied men would be left as an unprotected group in law have now come to reflect on their position and to recognise that that was an inappropriate response. Everyone has the right to be protected by the law—that will continue to be the case. However, we know that some sections of society are specifically targeted and made victims of crime. The bill is about adopting the appropriate response, given the motivation of the offender. It is about the motivation of the offender rather than the identity of the victim.

The bill will extend protection to anyone in society against whom an offence is committed because of their actual or presumed sexual orientation, transgender identity or disability. A hierarchy of rights exists in the minds of some people who commit such offences and who believe that their prejudice is justified and that their victims deserve what they get. The bill is about tackling and overturning that hierarchy.

It has been suggested that the new aggravation could be used maliciously, but it can be argued that the potential for misuse of it should not be a bar to legislating. We would not, simply on the basis that some people might be accused of it falsely, refuse to create a criminal offence if we thought that a phenomenon was real and was harmful. It is for the courts to determine whether the aggravation should stand and the sentence should be varied.

The witnesses from the Law Society of Scotland who explored some of the issues said that the existing statutory aggravations on race and religion are effective and useful, and that the introduction of new categories of aggravation would be beneficial. The Association of Chief Police Officers in Scotland told the Justice Committee that it was not aware of any cases of false accusations relating to the aggravation of offences by racial or religious prejudice. It is a question of the appropriate and effective application of the law; any potential for misuse of the new aggravation should not be a bar to our passing the bill. Ultimately, it will be for the courts to make a decision on that.

Some people have argued that the bill raises an issue to do with freedom of speech. The Christian Institute said that the bill

"could give gay rights groups a legal mechanism for targeting those who disagree with them. It could undermine free speech and religious liberty", but it could not give a single example from south of the border of the misuse of such mechanisms leading to inappropriate convictions. I agree that those objections are not serious, which was the conclusion of the committee's report.

The bill is not a magic wand. It will not, in itself, spell an end to crimes of hatred against many in our society. I hope, however, that the bill will, combined with the other actions that the Government is taking to tackle prejudice in all its forms, help to mark the beginning of the end of the days when people felt that there was nothing they could do and that prejudice and hate crime were simply things that they should expect and accept.

I am happy to move, That the Parliament agrees to the general principles of the Offences (Aggravation by Prejudice) (Scotland) Bill.

Photo of Kenny MacAskill Kenny MacAskill Scottish National Party 3:20 pm, 18th March 2009

I am pleased to reiterate the Scottish Government's support for Patrick Harvie's bill. I concur in his thanks and tributes to individuals who have campaigned for the issue to be dealt with and legislated on. I am pleased, too, that the Justice Committee recommended in its stage 1 report that the general principles of the bill be agreed to. It is encouraging that the committee has recognised that it is appropriate to create the statutory aggravations in the bill.

As part of our manifesto commitment to working towards a safer, stronger Scotland, we promised to carry out the recommendation of the working group on hate crime and introduce these aggravations. We were therefore happy to have the opportunity to support Mr Harvie's bill and to co-operate with him to it take it forward, as we are doing today.

People—whoever they are, whatever disability they are afflicted by and whatever sexual orientation they possess—are entitled to the full protection of the law, to be treated with dignity and compassion, and to be fully and properly protected.

We aim to improve the way in which crimes motivated by hatred are dealt with. The aggravations that are created by the bill will protect victims of crime who have been targeted as a result of their sexual orientation, transgender identity or disability—actual or presumed. We need to remember that, as Patrick Harvie said, that does happen—far too often, frankly. That is why action is needed.

If a crime has been committed and it can be shown that the motivation was hostility and ill will based on the victim's sexual orientation, transgender identity or disability, the sentence should reflect that. As Patrick Harvie commented, that is already the case for crimes motivated by a victim's race or religion.

The bill does not create any new offences. Hate crime can include harassment, property damage, violence and, in extreme cases, murder. The aggravations can therefore apply to any crime or offence. The bill is simply a reflection of our belief about the view that we, as a society, should take on the basis of the aggravation added to the offence perpetrated.

Evidence that was presented to the Justice Committee by organisations such as the Equality and Human Rights Commission expressed clear and strong support for the use of statutory aggravations in the case of hate crime. Not only do statutory aggravations help to underline the seriousness with which hate crime is viewed, they help to ensure a consistent approach from law enforcement and criminal justice agencies. The Justice Committee considered that matter in some detail and examined the arguments for and against the creation of statutory aggravations.

Similar aggravations that are already in place for racially and religiously aggravated offences have been shown to serve a number of purposes: they ensure that, throughout Scotland, there are appropriate and consistent reporting and prosecution policies from the various agencies in the criminal justice system; they send a clear message that prejudice and hatred towards social groups as a motive for committing a crime are unacceptable and will not be tolerated; and they allow us to monitor the extent of such crimes in Scotland and tailor our approaches to tackling them.

The bill will ensure that an aggravation must be acknowledged and taken into account at the point of sentence. It will be clear to the offender at the point of sentence how seriously the aggravated nature of an offence is viewed.

Photo of Cathie Craigie Cathie Craigie Labour

How will the Scottish Government monitor the number of offences that are treated as aggravations under the bill? How will that information be recorded and gathered, and how will the Scottish Government learn from it?

Photo of Kenny MacAskill Kenny MacAskill Scottish National Party

These matters are dealt with and recorded in a variety of ways. We have the Scottish Court Service and the Crown Office and Procurator Fiscal Service, and we are building on what we already do. As Patrick Harvie said, we already have information on the existing aggravations in relation to race and religion and, quite correctly, we record information when we have a significant social problem such as assaults on emergency workers. The systems exist, and the Government will ensure that such matters are taken into account. The impact on the sentence will be a matter for the discretion of the judge, but the existence of the aggravation will require to be recorded at all stages in the criminal justice system. That will enable Government and practitioners to build up a much more accurate picture of the extent of such crimes in Scotland.

Both the Crown Office and the police, in their evidence to the committee, acknowledged the value of more accurate knowledge and a better understanding of hate crimes, and the value of giving the victims of the crimes more of a voice in the criminal justice system. We believe that this type of crime is substantially underreported in Scotland. That is shameful, but one of the aims of the bill is to tackle the phenomenon. We wish to encourage people who have experienced hate crime to come forward, confident that they will be taken seriously and that the crime that has been committed against them will be dealt with appropriately.

The working group found evidence of some social groups being proportionately more often the victims of harassment and crime. Much of that is motivated by prejudice against those groups. Research that was commissioned by the Disability Rights Commission in 2004 showed that 47 per cent of disabled Scots had experienced hate crime because of their disability. Research that was undertaken by the beyond barriers project in 2002—Patrick Harvie commented on similar projects—showed that 23 per cent of LGBT people in Scotland had been physically assaulted as a result of their sexual orientation or transgender status. The evidence shows clearly that LGBT and disabled people are much more likely to be the victims of crime—and, too often, crime that is motivated by prejudice against them.

The Justice Committee discussed the fact that our courts can, and do, take into account a wide range of factors when sentencing offenders. Why then focus on hate crime? Hate crime has a destructive effect not just on victims but on whole communities. As the working group discovered, hate crime not only causes greater damage to a victim than crimes that are not motivated by hatred but is socially divisive. Hate crime damages communities. It prevents people from engaging fully in their social and working lives. Hate crime demands a priority response because of its particular emotional and psychological impact on the victim and the victim's community. The damage that hate crime causes cannot be measured solely in terms of physical injury or cost.

Such incidents can damage the fabric of our society and can fragment our communities.

These are hard times for businesses and families, and we need to move forward as a nation. We need a vision of a more successful country—a country that will tackle crimes motivated by hatred or prejudice.

No one in Scotland should be targeted or victimised because of their sexual orientation, transgender identity or disability. Our clear aim is to prevent and deter crimes, but where crime does happen, it will not be tolerated. We want a Scotland where all are treated with dignity and respect. The Government is committed to tackling inequality and creating strong communities. The bill is part of the work that we and many others are doing to help to create a Scotland in which people can live alongside one another, respecting difference and celebrating diversity.

Patrick Harvie is correct to say that the common law is good and has served us well. However, it will be important to take account of aggravations and try to drive attitudinal change.

I thank the Justice Committee for its report, and I thank the Equal Opportunities Committee for its consideration of the scope of the legislation. I congratulate Patrick Harvie on bringing the bill so far. The Government looks forward to it making continued progress. We will give it our full support.

Photo of Bill Aitken Bill Aitken Conservative 3:29 pm, 18th March 2009

I rise to submit the Justice Committee's report on the Offences (Aggravation by Prejudice) (Scotland) Bill. After following sundry parliamentary procedures, the committee called for evidence and received written submissions from 25 individuals and organisations. Those submissions were, largely, supportive of the proposed legislation, apart from two caveats, to which I shall come later.

The committee took oral evidence from 18 witnesses over a three-week period in January. Those witnesses were from equalities groups and groups that work with those suffering from disability. We also heard from the police, the Crown Office and Procurator Fiscal Service, Scottish Government officials, the Law Society of Scotland and Patrick Harvie, the proposer of the bill. On behalf of the committee, I thank all the witnesses for giving their evidence, which they invariably did in a reasoned, courteous and moderate manner, which greatly assisted the committee in the preparation of the report.

The committee's view was, of course, that offences—it is usually assaults that we are talking about in this connection—that are perpetrated against individuals because of their actual or presumed sexual orientation or disability are totally unacceptable. Those convicted of such crimes should be left in no doubt that the courts take a more serious view of those crimes, as we expect them to. In fairness, at the moment, there is little evidence to suggest that they do not.

However, as Patrick Harvie said earlier, there was evidence to suggest that offences of the type that the bill is concerned with are sometimes not reported. It is a valid argument that, by legislating, we will ensure that those who are the victims of this type of crime will be encouraged to report the crime to the police.

At the moment, there is no statistical base for estimating the prevalence of this type of offence. That is another justification for legislating. Crimes are simply recorded as a breach of the peace, an assault, a serious assault or whatever and there are no statistics to indicate the number of crimes that are committed in respect of the prejudices to which the bill refers. Of course, there is a general point to be made about unreported crime, but that is perhaps a debate for another day.

It is important to remember that, as the committee's report stresses, sentencing is a matter that is entirely for the judiciary. Indeed, in paragraphs 76 and 84, the committee agrees that the court should continue to exercise its discretion on whether to impose a greater or, indeed, a different sentence, based on the facts and circumstances of each individual case.

As has been recognised in earlier debates, sentencing is a complex matter and requires that not only should the severity of the offence and the offender's record, or lack thereof, be borne in mind but also whether the circumstances of that case merit the matter being dealt with in a different way from what would be usual in such instances.

There was some interesting evidence from the Equality Network, Enable Scotland and the Scottish Association for Mental Health. Their thinking was that community sentences could be tailored to break down the prejudice that was the basis of the offence. Patrick Harvie stated that, in some situations, that would be appropriate and that the legislation would, perhaps, encourage sentencers down that route in appropriate cases. Once again, however, the committee has recognised that it is for the court to decide the sentence in relation to these offences, as, indeed, it is in relation to all offences. However, it encourages the Scottish Government to work within the system to ensure that disposals of that type are available where that is practical or desirable.

The committee examined in some depth the contrary arguments. One of those arguments was freedom of speech. We took the view that, in light of the fact that, currently, in order to substantiate and prove a crime of breach of the peace, the Crown has to demonstrate that alarm would have been experienced by a reasonable person in the prevalent circumstances, the bill will not prejudice freedom of speech.

I come now to the two caveats that emerged from our consideration. The first comes under the dreaded statute of the law of unintended consequences. At present, the matters that the bill is concerned with are dealt with under common law, and the committee acknowledges the flexibility of the status quo, and the possible problems that the proposed change might cause the police and the Crown.

The other argument against was encapsulated in the evidence of the Scottish Police Federation, which pointed out the danger that the bill might create a "hierarchy of victim", although it recognised that the provisions are an extension of existing statutory aggravations. Nonetheless, its point cannot be overlooked and the committee was mindful of it. We recognised the principled nature of the concern but, having considered all the evidence, which was generally in favour of the bill, and all the arguments, we agreed on balance to take the view that the bill should proceed.

Photo of Paul Martin Paul Martin Labour 3:35 pm, 18th March 2009

I congratulate Patrick Harvie on the progress that he has made so far on the bill. Members who are progressing a member's bill, or who have completed that process, appreciate the hard work and commitment that are required to progress a bill through the Parliament.

At decision time, Labour members will support the motion in Patrick Harvie's name,

"That the Parliament agrees to the general principles of the Offences (Aggravation by Prejudice) (Scotland) Bill."

Most of those who gave evidence to the Justice Committee were genuinely supportive of the aims of the bill and were clear on its provisions and what it would achieve. I will highlight some of the issues that were raised in the stage 1 process. The committee recognised that the common-law system allows courts to take account of aggravating factors in determining sentences. However, a number of witnesses told us that the common law cannot send a clear message that such hate crimes are unacceptable in Scotland. The general feeling was that having a statutory aggravation will address the motivation behind such crimes.

On balance, Labour members are content that the statutory aggravations should be created. We need to ensure that we take every possible step to send out a clear message to those who commit crimes of hatred because of an individual's presumed sexual orientation, transgender identity or disability.

The bill contains no provision for mandatory sentences. Many witnesses made the case that an appropriate response was the way forward and that the judiciary should have discretion in sentencing. Although I accept the right of the judiciary to have discretion in sentencing, I believe that we need to monitor carefully the effectiveness of sentencing policy in dealing with those who commit hate crimes. The Parliament needs to acknowledge the unacceptable fact that some individuals react only to the possibility of a prison sentence. Patrick Harvie has to take that into consideration and he may want to address it in his closing speech.

Although the community sentencing disposals to which Tim Hopkins referred in his evidence can be considered as a serious alternative to prison, I am not convinced that they are always appropriate sentencing options for the perpetrators of the crimes that were described to the committee.

The bill requires that, in recording a conviction that contains an aggravation relating to disability, sexual orientation or transgender identity, the court must do so in a manner that shows that the offence was motivated by prejudice on one of those grounds. The step is to be welcomed, but I would have expected such information to be recorded at present, although we heard evidence about the difficulties of recording such crimes. On a positive note, Superintendent David Stewart told the committee that recording these statutory aggravations will give police forces baseline figures to work from and allow them to target resources. That is a positive step in the right direction.

There can be no doubt that training plays a crucial role in raising awareness of legislation. As we have heard on many occasions in the chamber, it is important for new legislation to be implemented consistently and robustly. In this case, additional resources may be required. I would welcome a commitment from the minister in his closing speech that resources will be provided to the relevant agencies.

There is no point in passing the bill if crimes are not reported, so we must ensure that victims are given respect and proper consideration. In its written submission, the Royal National Institute for Deaf People Scotland stated:

"deaf and hard of hearing people are even less likely to report crimes against them because some find it difficult to access police services. For example, police stations may struggle to find interpreters at short notice when deaf people who use BSL as a first language want to report a crime. As a young deaf man who tried to report a crime at his local police station recalls: 'I had to wait for an interpreter at the police station from 4.30pm to 10pm and in the end, I was tired.'"

If people are to be convinced that they should report crimes and that they will be taken seriously, we must ensure that an action plan is in place to deal with such experiences.

I call on the Parliament to support the motion.

Photo of Gavin Brown Gavin Brown Conservative 3:41 pm, 18th March 2009

The Scottish Conservatives agree with the general principles of the Offences (Aggravation by Prejudice) (Scotland) Bill and we will vote for it at decision time. We agree with the Justice Committee's conclusion that it is appropriate to create new statutory aggravations to protect victims of crime who are targeted as a result of hatred of their actual or presumed sexual orientation, transgender identity or disability.

The debate that took up most of the committee's time at stage 1 of the bill was whether there should be a statutory aggravation or whether we can rely on the common law. A couple of other speakers have already made the point that one of the strengths of the common law in Scotland is its flexibility to adapt to circumstances that arise. To an extent, therefore, it already allows aggravating factors to be taken into account. However, the committee heard persuasive evidence that a statutory aggravation would improve the current position. There are three reasons for that.

First, the common law is not being used in practice. In its evidence to the committee, the Equality Network said:

"It is theoretically possible to deal with the kind of aggravations that we are concerned with under the common law, but that is not happening. Nobody has reported to us that an offence against them has been dealt with in that way."—[Official Report, Justice Committee, 13 January 2009; c 1484.]

A similar point was made by Capability Scotland, which said:

"We have spoken to lots of disabled people about their experiences, and we are not aware of any cases of aggravated crimes being prosecuted. Although the common law is available, it is perhaps not being used in a way that really deals with the issue."—[Official Report, Justice Committee, 13 January 2009; c 1499.]

The common law exists, but it is clear from the evidence that was presented that it is not being used in practice to deal with the issue.

The second reason why a statutory aggravation is helpful and required is that it will send out a clear message and direction to society at large, and particularly to those people to whom it needs to be sent out. The Association of Chief Police Officers in Scotland stated in its written submission:

"The successful introduction and approval of such a bill will increase the public perception and awareness of prejudice/hate crime in addition to the racist and religiously motivated issues which are at the forefront of such crimes."

The third reason, which is not an argument in itself but is helpful, is that the bill will create consistency with the remainder of the United Kingdom. It will bring into play laws that are similar to ones that are already in place in England and Wales and Northern Ireland. On that point, ACPOS stated:

"Similar legislation currently exists in England, Wales and Northern Ireland, therefore in terms of progression under the direction of the Scottish Government this overt enhancement of our approach would be a welcome addition to the Scottish Police Service in line with the rest of the UK."

There are clear benefits in having the statutory aggravation, and I can see why the Justice Committee reached its conclusion.

As members have already pointed out, the bill has a number of other benefits, particularly with regard to the reporting of crimes. As statistics that have already been highlighted demonstrate, there is a general perception that this type of crime is underreported. I believe that all types of crime are underreported, but I think that a specific case can be made in this respect.

It is bad news for any crime to go underreported, so I hope that the bill will encourage victims to come forward. After all, that is their only hope of achieving justice. I add in passing that I hope that victims of this type of crime do not feel that they have to wait until stage 3 or the bill's enactment to come forward. Even though the bill's provisions are not yet in force, I hope that even this stage 1 debate will encourage people to do so.

Another very serious issue is the recording of crime, and sections 1(5) and 2(5) make the recording of the aggravation a statutory duty. The fact is that we need accurate recording from the initial reporting of the offence through prosecution and conviction to sentencing. As Bill Aitken made clear, these crimes are reported simply as breaches of the peace or assaults, without any reference to the hate element of the crime. After all, we can deal with a problem effectively only when we know its full extent.

Of course, certain areas require further consideration. Bill Aitken, for example, talked about the possibility of creating a hierarchy of victims and mentioned the law of unintended consequences. No doubt the committee will examine those points in more detail.

It could also be argued that we need a more realistic financial memorandum. The Scottish Prison Service and the Scottish Police Federation, for example, expressed concern about the current memorandum's statement that

"The effect may be a slight upward pressure on the prison population."

We need to hear more from ministers on that point.

That said, we agree with the Justice Committee's conclusions and will vote for the bill's general principles at decision time.

Photo of Robert Brown Robert Brown Liberal Democrat 3:47 pm, 18th March 2009

The Liberal Democrats support the bill's general principles. After all, its aim was a Liberal Democrat manifesto commitment for this session of Parliament, and we are pleased that it has been taken forward. In that respect, we thank Patrick Harvie for preparing and progressing the bill, which, as others have mentioned, must have put a considerable burden on him.

Although the bill is modest—it has only three sections—it will help to improve and standardise the reporting of crimes aggravated by prejudice against disabled people and the LGBT community; to focus the attention of the police, the prosecuting authorities and the courts on the issue and possible solutions to it; and, in consequence, to improve rates of reporting and people's confidence in the criminal justice system. Like Gavin Brown, I hope that more people will come forward to report such crimes.

It might be an obvious starting point, but the Universal Declaration of Human Rights and various other international treaties oblige signatory states, including the UK, to treat everyone with equal dignity and respect and to ensure that they can enjoy their human rights free from discrimination, including on the basis of disability, sexual orientation or gender identity. It is clear, however, that some people in our society have fewer human rights than they should have. The Cabinet Secretary for Justice illustrated very well the general divisive effects of hate crimes on society, while Patrick Harvie highlighted the various surveys that have been carried out and detailed the abuse, threats and physical assault that disabled and LGBT people have experienced. The fact that the level of such crimes is well above the level for the general population is one of the rationales behind the bill. People with mental health or learning support issues are particularly and peculiarly vulnerable in this respect.

As the Law Society of Scotland has pointed out, the courts may currently take account of aggravating circumstances in a flexible way, as indeed can the Crown Office and Procurator Fiscal Service in determining the charge and forum for prosecution. There is no particular evidence one way or the other that, when faced with a homophobic or disablist crime, the courts do not treat that element as aggravation, but there is no satisfactory recording at present. That is an important background consideration to the bill.

Important information as to the frequency and outcomes of such prosecutions is difficult to pin down, and it is unclear whether the police or prosecutors in individual cases always bring out the aggravating features clearly. The obligations that the bill will place on those people will assist in that regard. As Andrew McIntyre from the Crown Office and Procurator Fiscal Service told the committee,

"the impact of the aggravating factor on the court's handling of the case, particularly on sentencing, will be clear."—[Official Report, Justice Committee, 27 January 2009; c 1556.]

He also pointed out that the bill will provide a much clearer framework in which to operate and more clarity on what is expected from the police and the prosecution.

It is important to realise that the bill sits on top of existing crimes: it creates no new crimes and prescribes no new penalties. The aggravation—unlike the principal offence but like present common law aggravations—will not require corroboration, although sufficient credible evidence will be required to satisfy the court as to the truth of an allegation. The committee recognised that, as with any crime, false allegations might arise, but argued that it will be up to prosecutors and courts to determine their legitimacy. That was the balanced conclusion that we arrived at.

It is important to be clear about the effect of a proven aggravation. There has been discussion both today and in the committee about the fact that, with serious crimes, the aggravation might well add to the length of a prison sentence but, as many witnesses and Patrick Harvie said, for more minor offences the appropriate response might be a community sentence that could impact on the reasons for the offender's ill will towards someone from one of the specified groups. Either way, the bill sends a firm message and is part of the wider range of measures that are needed to undermine and eliminate homophobic crime or crime against disabled people.

As several members have said, rather than take action after crimes are committed, we would prefer to avoid such crimes and the culture that supports them in the first place. Norman Dunning of Enable Scotland told the committee that one of the best ways to tackle the bullying of young people with learning disabilities is to let the offender see them as real people and hear what their lives are like and to start breaking down the barriers and prejudice.

Charlie McMillan of the Scottish Association for Mental Health talked about the relationships between discrimination, prejudice, anger and hatred, and about change. We all know from meeting people who are in institutions or who face the criminal justice system just how much anger and hatred there is. That is one of the difficulties and challenges with which we must deal, and our ability to effect change is central.

Tim Hopkins of the Equality Network, who as always gave impressive evidence, talked about addressing the underlying prejudice that causes people to commit such crimes. We already know about those issues from considering the race and sectarian legislation and programmes. The insights that have come from the operation of that legislation in Scotland and throughout the United Kingdom will help in understanding the best ways to tackle some of the challenges.

I began by saying that the bill is modest but, for all that, it is important. It is part of the progress towards a more enlightened, liberal and tolerant society in which everyone is regarded as an individual with his or her rights and talents and as someone who enhances and enriches our world. I hope that the day will come when specific legislation such as that proposed in the bill is redundant. Sadly, that day is not yet with us, so accordingly the Liberal Democrats support the general principles of the Offences (Aggravation by Prejudice) (Scotland) Bill.

Photo of Linda Fabiani Linda Fabiani Scottish National Party 3:53 pm, 18th March 2009

It is good to hear so much consensus, but we have that because the issue is straightforward. It was correct that offences that are motivated by racial prejudice were recognised in the Crime and Disorder Act 1998; it was correct that, in 2003, the Parliament agreed to introduce a statutory aggravation for crimes that are motivated by religious prejudice; it was correct for the Parliament, at the same time, to consider Robin Harper's amendment that related to disability, sexual orientation, gender and age; and it is absolutely correct for the Parliament to agree to the principles of the Offences (Aggravation by Prejudice) (Scotland) Bill.

I commend Patrick Harvie for his work on the subject and the Cabinet Secretary for Justice and the Government for their commitment and the assistance that they have given. Just as no one in Scotland should be targeted or victimised because of their race or religion, no one in Scotland should be targeted because of their sexual orientation, transgender identity or disability. The proposals will mean that the divisive and scarring crimes that we are talking about are taken more seriously by the justice system and by society more generally.

That is a very positive message to send out, and it should lead to more effective deterrence. It will also bring us into line with the rest of the UK, which dealt with the matter in 2003.

As has been said already, the bill does not propose any new offence; instead a new statutory aggravation will be applied to any crime of motivation by "malice and ill-will" on the ground of the victim's actual or presumed disability, sexual orientation or transgender identity, in parallel with existing statutory aggravations of motivation by "malice and ill-will" on the ground of the victim's actual or presumed race or religion. The perpetrator will be guilty of an aggravated offence and the court will have to take that into account when deciding a sentence.

It is important to remember that the aggravation is based on the motivation of the accused, not the identity of the victim. That will send out a strong message and introduce greater consistency. Like others, I hope that it will encourage more victims of such crime to report offences because of the clear message that society recognises the abhorrence of the motivation behind them. It will ensure the recording of the levels of such crimes, which is crucial for any nation that believes in parity of esteem and respect for all whose actions do not harm others.

Figures provided by Inclusion Scotland show that people with disability are four times more likely to be violently assaulted than people without disability and almost twice as likely to be burgled. The organisation states that visually impaired people are four times more likely to be verbally and physically abused than sighted people. People with mental health issues are 11 times more likely to be victimised and 90 per cent of adults with a learning difficulty report being bullied.

Some people are sceptical of such figures but, whether or not there is doubt about them, one instance of abuse is too many and once is enough for a message to be sent out. The motive of such crimes can be to take advantage of a victim's vulnerability or their being a bit different. If it is about easy targeting and perceiving people as weak, it is about preying on the vulnerable, which is just not acceptable.

Some people think that introducing legislation is unnecessary and that society should consider other ways of dealing with the problem, such as taking action at the other end. The two options are not mutually exclusive, and work goes on at both ends across society. I commend cultural and arts organisations for the action that they take, such as Lung Ha's Theatre Company in Edinburgh, which has long worked with adults with learning difficulties. Many of members have attended their plays, which have portrayed the difficulties of living with learning difficulties and shown how people are bullied, both institutionally and by society in general. More great work is done by Theatre Nemo in East Kilbride, which deals with mental health issues in the health service and justice system. The work that we do is two-pronged, and we have to look at the issues from both sides.

The National AIDS Trust wrote to us all. It has a particular interest in section 1(8) of the bill about the definition of disability, which includes any

"condition which has (or may have) a substantial or long-term effect", such as HIV/AIDS. Stigma and discrimination are a distressing and dangerous reality for many people who live with HIV. One in three people with HIV has experienced discrimination linked to their HIV positive status. Again, it is very important that we take measures to show everyone that that is not acceptable.

The bill has a journey to make through stages 2 and 3, and changes might come its way, but in general I am content that it moves us in the right direction. The ultimate aim of us all is to get to the point where people are accepted with no prejudice and no law is needed to enforce that principle. We are not there yet, so I support absolutely the bill.

Photo of Bill Butler Bill Butler Labour 3:59 pm, 18th March 2009

I support the motion in the name of our colleague Patrick Harvie on the Offences (Aggravation by Prejudice) (Scotland) Bill, and I congratulate the member on the progress that he has made thus far.

As deputy convener of the Justice Committee, I put on record my thanks to the committee clerking team and the Scottish Parliament information centre for their exemplary support. I also thank the witnesses who gave evidence to the committee.

As colleagues will be aware, the aim of the bill is to create new statutory aggravations to protect victims of crime who are targeted as a result of hatred of their actual or presumed sexual orientation, gender identity or disability. Members will also be aware that similar statutory aggravations already exist to protect individuals and groups who are targeted on racial or religious grounds.

Those of us who served in previous sessions of the Parliament will recall that a former colleague, Donald Gorrie, moved an amendment to the Criminal Justice (Scotland) Bill in 2002 to make provision for the statutory aggravation of an offence as a result of religious prejudice. Mr Gorrie's amendment was agreed to and became section 74 of the Criminal Justice (Scotland) Act 2003, which was a good reform. Although Robin Harper's amendment to that bill was not accepted by the then Minister for Justice, Jim Wallace, an amendment similar to the objective of the bill under discussion today led to the setting up of the working group on hate crime in June 2003, whose first recommendation of 14 was the general thrust of Mr Harvie's bill. I am genuinely pleased that we have arrived at a point where all the Justice Committee members agree in principle to the policy intention of the bill. I suspect that Parliament will agree at 5 o'clock.

The cabinet secretary was correct when he said in response to a parliamentary question from Mr Harvie some time ago:

"No one in Scotland should be targeted or victimised because of their sexual orientation, transgender identity or disability. Our clear aim is to prevent and deter crimes but where crime does happen ... it will not be tolerated."—[Official Report, Written Answers, 15 January 2008; S3W-8323.]

Scottish Labour whole-heartedly supports that vision of a tolerant, inclusive, equal Scotland.

In the time remaining, I will touch on two or three specific issues that arise from the bill. First, I will outline some of the benefits that the bill, if enacted, will offer all the groups prescribed it. It will mean that the hate crime laws that offer protection to ethnic minorities and religious groups are extended to the LGBT community and to those who are disabled. It will mean that an approach that has proved successful in tackling racist and sectarian hate crime is naturally extended.

That way of dealing with such offences has not only proved useful in individual cases but focused police attention on the problem. There is no reason to think that that way of proceeding will be any less successful in supporting and protecting the LGBT community and the disabled. Such an increased focus will mean that appropriate recording of such offences will be undertaken, which we hope will lead to a greater level of confidence among those sections of society in the criminal justice system.

As the committee's report concludes at paragraph 93:

"The Committee recognises that under the common law the recording of offences committed against victims who are targeted as a result of hatred of their actual or presumed sexual orientation, transgender identity or disability is not sufficiently robust."

That is why I believe that the committee was correct when it welcomed

"the provisions in the Bill that will ensure the accurate recording of aggravated offences from the initial reporting of an offence through to prosecution, conviction and eventual sentence."

I know that the Parliament is not under this misapprehension, but no one out there should be under any misapprehension: the problem is significant. As the Scottish Association for Mental Health stated in its briefing:

"A survey in 2004 found that 47% of disabled people had experienced hate crime because of their disability, with 31% of those reporting that they suffered verbal abuse, intimidation or physical attacks at least once a month."

If one of the effects of the bill is to focus police attention on the problem, that will be a welcome advance.

A related matter raised by the Law Society of Scotland in its letter to members of 17 March points to a possible gap in respect of one aspect of the bill: the ability to ensure that

"the outcome of the legislation is monitored."

Mr Alan McCreadie, deputy director of law reform for the society, suggests that to improve the legislation's effectiveness monitoring must be improved and that one way to do that is to

"assign crime codes to aggravations. Currently, only offences themselves are given crime codes."

It is argued that, if such a procedure were put in place, monitoring the use of aggravations and the rate of successful prosecutions would be easier. I do not know whether a stage 2 amendment would be required to achieve that, but I intend to pursue the suggestion in whatever way is appropriate.

The Law Society's second concern—the need to ensure that the diversity training that is offered to police officers and police staff is up to date—is a related matter that might require further exploration.

The Justice Committee felt—rightly—that, on balance, it is appropriate to create new statutory aggravations to protect victims of crime who are targeted as a result of hatred of their actual or presumed sexual orientation, transgender identity or disability. The Scottish Labour Party agrees with the committee's conclusion and will support the bill at 5 o'clock. The bill is a focused reform that will help the Parliament's drive to create a modern, inclusive and tolerant Scotland—a Scotland of equals.

Photo of Hugh O'Donnell Hugh O'Donnell Liberal Democrat 4:06 pm, 18th March 2009

I am happy to make a small contribution to the stage 1 debate on the bill. It would be remiss of me not to mention the role in a previous session of Parliament of the former member Donald Gorrie, particularly as he was my employer at the time.

The bill lays down yet another marker that discrimination is unacceptable in this country of ours, although—like other members—I fully recognise that we have a long way to go before we can confidently say that Scotland is free from discrimination.

My small role in the bill's progress at stage 1 involved my membership of the Equal Opportunities Committee. I thank the members of the public and of organisations who gave the committee oral and written evidence as part of our consideration of the bill. My comments are personal views and not those of the committee.

Patrick Harvie must be congratulated on keeping the issue on the agenda and moving forward, notwithstanding the failure of Robin Harper's original proposals. I hope that, with the Parliament's support, the bill will continue to progress through the various stages.

Much of the Equal Opportunities Committee's debate in its evidence sessions hinged on the range of perspectives about what the bill should and should not include. We discussed at length whether it should be adjusted to include a gender aggravation—given the scale of violence against women, that was a legitimate and valuable use of the committee's time.

It was clear from the evidence that opinions were mixed, even among organisations that represent women who are victims of violence. Women's groups told us that they had changed their collective position that a gender aggravation would develop the legislative framework for tackling domestic abuse. They opposed such a provision because it might not be appropriate given the complexities of the motivations behind domestic violence.

We also learned in taking evidence that the Equality and Human Rights Commission would shortly—it might now have begun to do so—gather research on criminal justice reactions to gender-based crime and violence, primarily against women. Evidence shows that the specific domestic abuse legislation that is in place throughout Europe and the wider world has been reasonably successful in highlighting what some argue—legitimately—is an aspect of discrimination. I would like to hear whether the Government has any plans in that area.

The other broad area on which the Equal Opportunities Committee took evidence was age. Once again, the committee was faced with diverse perspectives. On balance, we believed that the weight of evidence was not sufficient to support the inclusion of age in the framework of Patrick Harvie's bill.

In concluding my brief contribution, I again thank and congratulate Patrick Harvie. As Robert Brown said, the Liberal Democrats will support the bill at stage 1. I look forward to some of the issues that have been raised during today's debate being addressed more fully at stage 2 and give a personal commitment to support the bill today.

Photo of Anne McLaughlin Anne McLaughlin Scottish National Party 4:11 pm, 18th March 2009

I congratulate Patrick Harvie on introducing the bill, which provides us with the opportunity to give vulnerable groups in Scotland the same protection and safeguards that they enjoy in our neighbouring countries of Northern Ireland, Wales and England. More importantly, as Robert Brown mentioned, the bill will bring us into line with the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, both of which prohibit discrimination against people on the basis of disability, sexual orientation and gender identity.

I wish Patrick Harvie a happy birthday. As a Sunday newspaper has already nicknamed me Mystic McLaughlin, I thought that I would look at what the true owner of that trademark had to say about the member's fortunes today. Mystic Meg's words of wisdom for Patrick are as follows:

"The Moon focuses on your community chart, helping you bring out the best in people."

So far, so good. However, she slips up when she tells the member to

"Be tactful when your ideas are smarter than the boss's."

That is where it all falls apart—as we know, there are no bosses in the Green party, only co-bosses.

I doubt that many of us would argue with the first part of what Mystic Meg had to say. I am delighted by the consensual nature of today's debate, which is bringing out the best in members. That is not before time, as the issue should have been resolved by the previous Administration when Robin Harper moved an amendment to the Criminal Justice (Scotland) Bill six years ago.

As we have heard, the purpose of the bill is to protect the rights of people who are targeted because of their sexual orientation—or presumed sexual orientation—transgender status or physical or mental disability, or because they are living with certain medical conditions, such as HIV or cancer. If, in 2009, someone is afraid of being who they are simply because part of being them means being homosexual, they are not being afforded equal treatment in our country. For someone to grow up knowing that they have been born in the wrong body must cause more soul searching and stress than most of us can imagine. If they then have the courage to go through gender reassignment, they deserve our admiration and support, not our scorn.

The bill is not about harmless banter. We all know the difference between banter and abuse, and it is up to us to give clear guidance to those who do not. The bill will do that. It is not about harmless banter but about physical attacks and real emotional abuse. We all know the saying, "Sticks and stones may break my bones but names will never harm me". As a child, I always thought that that was nonsense, because it is. If name calling is aggressive and abusive and targets the core of someone's identity, the effects can be dramatic—no more so than for the group on which I wish to focus.

Being a victim of crime is an horrific experience for anyone, but the consequences for someone who suffers from a mental health problem are potentially extremely damaging. The Disability Rights Commission and Capability Scotland published a report on hate crimes against people because of disability. I hope that all members were as horrified as I was to read that 47 per cent of the people who were questioned believed that they had experienced a crime because of their disability. The people participating in the research were broken down by type of disability. One of the most commonly abused and attacked groups was people with mental health problems. SAMH reports that if people are targeted because of a mental health problem, it results in the victims experiencing further isolation, greater stigmatisation and yet more alienation, which often worsens their condition. I applaud the work of mental health organisations such as SAMH, and the see me campaign in particular.

I do not need an organisation to tell me about the damage that we as a society do to people struggling to manage a mental health problem, however. I have first-hand experience from a number of angles and this is a subject that is extremely important to me. I am sure that, at some stage in my parliamentary life, I will share some of those experiences with members. I will not do that today, but I can tell the Parliament that I will work tirelessly, for as long as it takes, to tackle our attitudes to people with mental health problems, to break down barriers and to remove, once and for all, the stigma of something that will affect one in four of us at some stage in our lives—that is 32 and a bit of the members of this Parliament. The bill will not do that on its own, but it sets a standard and, from that basis, we must start to tackle society's attitudes towards all the groups that are mentioned in the bill. That starts with educating our children, many of whom will inevitably fit into one or more of those groups at some point in their lives. I hope that we can consider that in more detail in the near future.

The bill will not only offer protection to individuals, but create a better and fairer society. That, after all, is why we are all here. There are currently no robust statistics around the type of crime that the bill is concerned with but, as we have heard, the research that is being carried out by disability and LGBT organisations clearly demonstrates a problem that needs to be tackled.

As Patrick Harvie said, the bill is not a magic wand, but it sets a standard. It gives us a basis on which to build. It sends a clear message to the perpetrators of these crimes that verbal and physical attacks on people because of their disability, sexual orientation or transgender status will no longer be tolerated. More importantly, it sends that very same message to the victims.

The bill is a good start—a late one, but a good start nonetheless—as long as we remember that there is more to be done. I look forward to working with all my colleagues in this consensual chamber and with the organisations that have contributed so much to the bill to ensure that it gets through.

Photo of Marlyn Glen Marlyn Glen Labour 4:17 pm, 18th March 2009

I am pleased to speak in support of the general principles of the Offences (Aggravation by Prejudice) (Scotland) Bill at stage 1. I hope that the bill will signal that Scottish society takes seriously and condemns incidents motivated by malice and prejudice, and that it will help to put an end to fear of attacks among the minority groups that it covers. The bill at last brings Scotland into line with the rest of the UK, and it begins to meet the requirements of article 7 of the Universal Declaration of Human Rights, on equality before the law.

The bill is short, and it largely mirrors the existing race and religion aggravation provisions. Groups such as the Equality Network recognise and applaud the definitions of disability, sexual orientation and transgender identity as having been well and inclusively drafted. As we have heard, the new statutory aggravations in the bill will be applied to existing offences, which will encourage consistency and transparency. The bill will focus the attention of the police on the problem, and they will ensure proper recording and monitoring. I welcome the changes to the systems that will allow that.

Hate crime can have a major impact on its victims' lives. It can force people to change their habits and even to move their homes. The number of disabled people who have suffered verbal abuse, intimidation and physical attacks is truly shocking. We should be ashamed of the statistics that have been quoted in the briefings that were supplied to us by Amnesty International, Inclusion Scotland and SAMH, the mental health charity. A disproportionate number of disabled people are assaulted, abused, bullied and victimised. That is unacceptable for all victims. For people with mental health problems, the resulting loss of confidence and alienation can seriously exacerbate their condition.

There is a need to build the confidence of both disabled and LGBT people in order to address the problem of underreporting. I await comment from the minister on how that will be developed.

The bill will implement recommendation 1 of the previous Executive's hate crime working group. I welcome the extension of the existing hate crime provisions, and I look forward to the cabinet secretary and the minister presenting proposals to implement the working group's remaining 13 recommendations. The bill implements only the first of three recommendations for legislation; a further seven recommendations were for the criminal justice agencies and a further four related to other areas.

As Hugh O'Donnell, who is a fellow member of the Equal Opportunities Committee, said, the committee took evidence on the bill and concluded that this is not the time to extend the protection in the bill to cover age or gender. However, in its report to the Justice Committee the committee recommended that the bill be amended to

"include a delegated power provision that would allow protection to be extended to other groups by statutory instrument if evidence emerged that such groups would benefit from the measures being proposed in the Bill."

The committee went on to say:

"there should be an element of parliamentary scrutiny and ... the best way to achieve this would be to specify that any statutory instrument introduced under this delegated power must be subject to affirmative procedure, which would allow committee examination and parliamentary approval."

Engender, Scottish Women's Aid and Rape Crisis Scotland all agreed that such an approach would be useful and would allow a discussion on the most workable options.

I accept that there are difficulties with the approach, but I draw members' attention to other recommendations of the working group on hate crime and to the evidence that the Equal Opportunities Committee received. The reasons that have been given for not wanting an amendment on gender seem to stem from a profound distrust of the legal system and the system's inherent sexism, and from a realisation that the problem of men's violence towards women is so vast that such an amendment might add complexity rather than help.

In evidence, the witness from Engender said:

"The gender duty itself offers the opportunity to demand good-quality gender-disaggregated data across the board on conviction rates and on reporting at all levels. The gender duty can be a powerful instrument because many of the problems that we face are about institutional sexism in the criminal justice system and at societal level."—[Official Report, Equal Opportunities Committee, 4 November 2008; c 697.]

We should act to improve the situation as soon as possible, instead of waiting for challenges to be made under the gender duty.

There is a call for a root-and-branch review of our systems. The Equal Opportunities Committee urged the Justice Committee to consider:

"how a domestic abuse aggravation might be framed in legislation and how it could work in practice, by examining the New Zealand Domestic Violence Act 1996; the merits of introducing an incitement to hatred offence against women in relation to, for example, how pornography might be linked to sexual violence; whether to recommend to the Scottish Government that the chief statistician undertake work on gender crimes data; and using EHRC-commissioned research and any other relevant research on gender-based crime."

In time, I would welcome a considered response from the minister on those issues. For now, I am pleased to support the bill at stage 1, with the caveat that this is just a start and a great deal remains to be done.

Photo of Mike Pringle Mike Pringle Liberal Democrat 4:23 pm, 18th March 2009

The bill is perhaps the shortest that I have seen since I was elected in 2003, but it is important and I congratulate Patrick Harvie on introducing it and the Scottish Government on accepting it. As Paul Martin and Robert Brown said, any member who has introduced a member's bill knows how much work and effort are required to do so.

The process was started in 2003 by the then Minister for Justice, Jim Wallace, who established a working group on hate crime, to consider the most appropriate measures to combat crime that is based on hatred of particular social groups. I was pleased that Patrick Harvie gave the working group the credit that it deserved. The group, which reported in 2004, defined hate crime as:

"Crime motivated by malice or ill-will towards a social group."

It went on to say:

"Research consistently shows that some social groups are proportionately more often victims of harassment and crime and that much of this is motivated by prejudice against those groups."

Individuals who have a mental health problem or a disability, or who are gay or transsexual, are significantly more likely to face abuse, threats or violence simply because of who they are. That is completely unacceptable in today's Scotland, as Bill Aitken and other members said.

I think that I am the only MSP who is registered disabled, but I confess that I have never been targeted or victimised because of my disability—-at least, not recently. At school, many of my fellow pupils called me "peg leg" but I did not worry too much about it then. On the other hand, many disabled people are often discriminated against. Linda Fabiani expressed well in her speech how varied disabilities can be and Marlyn Glen told us vividly how often such discrimination happens.

Scotland is currently alone in the UK in not having legislation on sexual orientation hate crime so the bill, which addresses hate crimes relating to sexual orientation and disability, is of the utmost importance. However, it is important that the Parliament focuses not only on legislating, but on working to create a cultural shift towards a more tolerant and accepting society. We must tackle the root causes of people's motivation for committing hate crimes. Issues such as drug and alcohol addiction, mental health problems and poor education must be addressed to prevent people from committing such crimes in the first place.

In 2008, "Homophobic hate crime: The Gay British Crime Survey" found that one lesbian or gay person in five in Britain had been the victim of at least one homophobic hate crime or incident in the previous three years. One in eight had been a victim in the previous year. Those incidents ranged from regular insults on the street to serious physical and sexual assaults.

As Robert Brown and Gavin Brown said, few of those who experienced hate crimes or incidents report them to the police, which is sad. I encourage anybody who is discriminated against in any way to report it to the appropriate authorities. I agree with Gavin Brown that they should not wait until stage 3 of the bill. If somebody is discriminated against, they should report it now.

A third of victims do not report incidents to the police because they do not think that the police could or would do anything about them. Therefore, I am pleased that ACPOS—among many other organisations—has agreed with the need for legislation and welcomed the bill. After all, the police will be at the forefront of enforcing it when it becomes law, as I am sure it will.

The bill seeks to ensure that, when it can be proven that an offence has been motivated by malice or ill will based on the victim's actual or presumed sexual orientation, transgender identity or disability, the court must take that motivation into account when determining sentence. As the minister said, that is only right. The policy memorandum points out that conviction of an aggravated offence may lead to a longer custodial sentence, higher fine or different type of disposal than might have been the case if the offence had not been aggravated. However, the bill will create no new criminal offence.

It is already possible under the common law for Scottish courts to take an offender's motivation into account when determining what sentence will be imposed, along with other factors that the court or jury might feel are relevant in particular cases. However, the proposed statutory aggravations would ensure that the courts must consider evidence that the offender was motivated by hatred towards the groups that are included in the bill and sentence offenders accordingly. As Paul Martin and Gavin Brown said, it is only right that the judges be able to weigh up the seriousness of the aggravation when considering their sentences, but I agree with Paul Martin that that aspect of the bill must be kept under review and considered at a later date.

I congratulate the Justice Committee on providing a good and comprehensive stage 1 report and congratulate the committee clerks who did a thorough job on it.

The Liberal Democrats will support the bill.

Photo of David McLetchie David McLetchie Conservative 4:29 pm, 18th March 2009

Like other members, I congratulate Patrick Harvie on bringing the bill to the stage 1 debate after a long campaign by him and others in support of its principles.

We have heard a number of thoughtful contributions to the debate. If Anne McLaughlin's was her maiden speech, it was good and I look forward to further speeches from her in future.

The concept of creating statutory aggravations for offences committed out of prejudice towards a specific group in our society is not new. As others have pointed out, we already have legislation for crimes motivated by racial hatred in the Crime and Disorder Act 1998, which was passed at Westminster. More recently, in section 74 of the Criminal Justice (Scotland) Act 2003, this Parliament created an aggravated offence for crimes motivated by religious prejudice.

At the time, I did not vote for the provision on offences aggravated by religious prejudice and I still have considerable reservations about the way in which the matter is policed. That is not because I object to having an aggravation for offences arising from motivations of religious prejudice but because, in the specific context of section 74 of the 2003 act, it was said that the purpose of the new law was to deal with sectarian behaviour in Scotland. It manifestly does not do that. On one side of Scotland's sectarian divide, the aggravation clearly applies to malice that is directed towards people of the Roman Catholic faith; however, the contrary sectarian behaviour in Scotland is, in practice, primarily expressed through the glorification of Irish nationalism, republicanism and terrorism against the British state. In itself, such glorification has no religious connotations—nationalist and republican movements in Ireland have historically been of a secular nature—so such conduct cannot fall within section 74 even though it is plainly sectarian in nature. The result, certainly at football matches, is that the police have taken so-called anti-sectarian initiatives that have caused considerable resentment because the emphasis is on one set of supporters. The temptation is to make a point by policing the statutory aggravation rather than the primary offence. Perhaps it is time for a review of the operation of that statutory aggravation and of how it fits in with other aggravations, including those that are proposed in the bill.

One of the most striking features of hate-motivated crime is its ability not only to affect and scar emotionally the individual who is the victim of that crime but to create a whole community of victims. Evidence was presented to the Justice Committee that victims of hate crimes can suffer additional psychological trauma in coming to terms with the offence that has been committed against them. Furthermore, an attack on one person or organisation that is born out of prejudice or hatred is, in essence, an attack on all the people who are members of that group. A climate of fear can be created in members of a community because an aspect of their identity that they cannot change—or certainly would not wish to change—is hated by another person.

Courts in Scotland can and do take account of a wide range of factors—which can be mitigating or aggravating—when deciding on a sentence. By including the aggravations that are specified in the bill in the statute book, the motivation behind such crimes can be addressed. As Gavin Brown said, we welcome the provisions in the bill that will enhance and ensure accurate recording of aggravated offences and enable us to track trends. It was pleasing to hear the Cabinet Secretary for Justice acknowledge that point in his speech. Until now, the monitoring of such offences appears not to have been as robust as it might have been. If we know and have that information, we will be in a better position to tackle such types of crime in the future through a variety of policing, community-engagement and educational strategies. We also welcome the fact that the bill will not impose any mandatory sentence on proof of aggravation. In that respect, the independence of our judiciary is paramount. Judges are best placed to make an informed decision in each case in deciding on the appropriate sentencing option that is available to them.

As many have said, hate crime legislation sends out a signal to society that criminal conduct rooted in intolerant views and values will not be tolerated, but—as Patrick Harvie rightly point out in his opening speech—legislation alone will not drive social change. It would be wrong to adopt such a self-satisfied and complacent approach. Passing the bill is the start, not the finish, of a process. Some people hate their fellow man for reasons known only to them. In itself, such hatred is not criminal, nor should it be. We cannot police thoughts nor should we limit freedom of expression, but we can target and highlight criminal conduct that is motivated by such hatred. The creation of a new statutory aggravation to give specific recognition to victims who are targeted as a result of hatred of their actual or presumed disability or transgender or sexual orientation is now appropriate, given the statutory aggravations that are already in place for other groups and to bring our law into line with that of England, Wales and Northern Ireland.

As Martin Luther King said,

"It may be true that the law cannot change the heart, but it can restrain the heartless."

We cannot outlaw hatred, but we can outlaw the harm that is caused by hatred. That is why we should support the bill.

Photo of Richard Baker Richard Baker Labour 4:35 pm, 18th March 2009

I congratulate the Justice Committee on its scrutiny of the Offences (Aggravation by Prejudice) (Scotland) Bill, and I congratulate Patrick Harvie on bringing it to the Parliament. We very much support it.

This has been a good and consensual debate, in which members have reflected on the fact that the journey to this point has not been short. It was in 2003 that Robin Harper lodged an amendment to the Criminal Justice (Scotland) Bill that would have addressed the forms of prejudice that we are discussing. Since then, the working party on hate crime, which was established in the previous parliamentary session, has produced its deliberations. Marlyn Glen mentioned its wider work. In addition, the Sentencing Commission for Scotland has done work on the issue, and provisions have been introduced in England and Wales on offences that are motivated by the victim's sexual orientation. I congratulate Patrick Harvie on ensuring that the bill has come this far, which has given us the opportunity to debate and pass it.

In the light of the Justice Committee's scrutiny of the bill and the extensive consideration of the issues that has taken place within and without Parliament, I believe that a clear case has been made for the bill. The evidence that the committee received was compelling.

As Patrick Harvie and the cabinet secretary said, the 2002 beyond barriers survey of almost 1,000 LGBT people from across Scotland found that 23 per cent of them had been subjected to a physical assault and 68 per cent of them to verbal abuse, just because they were LGBT. Mike Pringle mentioned the worrying evidence of "The Gay British Crime Survey 2008". Worse still, in 2006-07 eight homicides in Scotland were recorded as having a homophobic motivation. That truly shocking statistic appears in the Scottish Government's criminal justice statistics.

However, it has rightly been pointed out that the bill is not simply about doing all that we can do to ensure that the LGBT community can live free from fear of intimidation and victimisation. It is also about doing more to tackle crimes against people who have disabilities. A survey that was conducted in 2004 by the Disability Rights Commission and Capability Scotland found that some 47 per cent of disabled people in Scotland had experienced hate crime as a result of their disability, with 31 per cent of respondees reporting that they had suffered verbal abuse, intimidation or physical attacks at least once a month.

The problem is clear and the scale of it could not be clearer, so it is vital and absolutely right that Parliament does everything that it can to tackle it. We need to increase confidence in the criminal justice system that deals with hate crime. Too many lesbian and gay people believe strongly that the police cannot and will not take homophobic hate crimes seriously. We must change that, and I believe that the bill will help.

We must improve local responses to hate crime. Ultimately, we must increase the proportion of people who commit hate crimes who are brought to justice. Robert Brown spoke well on how the bill will ensure that such crimes are deal with most effectively in the courts. We in Scottish Labour are keen that even more action is taken to support the victims of crime. We want to increase the proportion of victims or witnesses of hate crime who come forward to report what they have suffered or what they have seen.

We must confront the fact that we are not doing enough for the victims of such offences. We know that three out of four LGBT people who have experienced hate crimes or incidents did not report them to the police and that some seven out of 10 of them did not report them to anyone. I found the evidence of Tim Hopkins of the Equality Network persuasive. He told the committee:

"one of the bill's first effects will be to encourage more people to report crimes. It is likely that in the first couple of years after the bill is passed ... we will see the same thing that happened when the religious aggravation element was introduced, which is that the number of aggravated crimes that are reported to procurators fiscal and prosecuted will go up as people get more confident about reporting them to the police."—[Official Report, Justice Committee, 13 January 2009; c 1489.]

Paul Martin covered the recording of such crimes, which is another vital issue.

SAMH identified the fact that people who have mental health problems can face hate crimes of a prolonged nature and that they are often targeted as a result of fear and ignorance. It can, of course, be even more difficult for people who have mental health problems to have the confidence to face such crimes and to report them.

In Labour, we are proud of our record in standing up for the rights of people with disabilities—for example, through Jackie Baillie's bill on parking—and the rights of members of the LGBT community. However, on whether it is right to pick out certain groups in that way, and whether we are in danger of creating a hierarchy of victims—Bill Aitken referred to evidence to the Justice Committee on that—the case was well made by Stonewall Scotland that what is sought here is not special treatment, but fair treatment. The aggravation is based on the motivation of the accused, not on the identity of the victim. It is also about the accused's perception of the victim. Non-disabled and non-LGBT people can be victims of hate crimes. Stonewall Scotland has provided examples of that.

The bill is not simply about the rights of disabled and LGBT people; it is about the right of all of us to live in a society that does its utmost to tackle hate crimes and to ensure that they are reported and appropriately dealt with in our justice system. It is our responsibility to ensure that we have the right approach, and that we effectively tackle crimes that are targeted at people who are either among the most vulnerable in our community or perceived to be so. That is why Labour welcomes the bill and will vote for it at decision time.

Photo of Fergus Ewing Fergus Ewing Scottish National Party 4:41 pm, 18th March 2009

I add my praise for Patrick Harvie's persistence in what we learned was a seven-year struggle to arrive at this day. I pay tribute to all the colleagues in his working group, and to others who had the courage to speak out, for their work over a long period, which brings us to this afternoon's debate.

The debate has been extremely consensual. The support from all parties should be welcomed when we pass the legislation. The work of the Equal Opportunities Committee and the Justice Committee in scrutinising the bill has, rightly, been acknowledged. The Government, for its part, is keen that the provisions of the bill should come into force and that there should be an improvement in the way in which we deal with hate crimes in Scotland.

As Bill Aitken outlined, the Justice Committee explored a number of lines of inquiry during its consideration of the general principles of the bill. The committee opened up a number of areas of concern for thorough discussion. Those have been considered by various members during the debate.

We are pleased that the committee has acknowledged that the bill does not present a threat to freedom of speech. The bill, in itself, does not create any new offences; it simply allows an existing offence that has been motivated by prejudice relating to disability, sexual orientation or transgender status to be tagged as such. It recognises that when the motivation for a crime has been prejudice against an element of the core identity of a victim or group of victims, that should be reflected in the sentence.

The Justice Committee addressed concerns about the creation of a hierarchy of rights. As Richard Baker pointed out, we must remember that the bill is about not the identity of the victim, but the twisted motivation of the offender. That recognition leads us to conclude that the argument that there would be a hierarchy of rights among victims is wrong. It is not so much about the victims—although we are here to protect the victims in so far as the law can do that—as it is about the motivation of the assailants. Once one recognises that, concerns about hierarchies and so on can be put into proper perspective.

The Justice Committee addressed the broader issue of the necessity of the legislation and came to the conclusion that statutory aggravations are the appropriate response to crimes that are motivated by hatred and prejudice based on the actual or presumed sexual orientation, transgender identity or disability of a victim. The need for the legislation was reflected clearly in the comments from mental health charity SAMH, which said that the bill

"addresses the needs of the community, based on people's experience."—[Official Report, Justice Committee, 13 January 2009; c 1505.]

Many members alluded to the plight and experiences of those who suffer from ill health. I, too, have encountered that in my work as an MSP over the past decade. Like David McLetchie, I was particularly struck by Anne McLaughlin's contribution, in what I gather was her maiden speech.

Photo of Fergus Ewing Fergus Ewing Scottish National Party

Apparently, it was not her maiden speech. It was maiden to me. Putting aside that minor faux pas, I was about to say—before I misinformed myself—that Anne McLaughlin's speech was thoughtful and passionate. It was passionate because of her obvious understanding of the issues. Like David McLetchie, I look forward to hearing more about her experience and her work before she came to this place.

I enjoyed Linda Fabiani's remarks, too. She suggested that all the groups that will be afforded protection by this legislation are united by their vulnerability to attacks caused by prejudice. It is not that the people themselves are vulnerable or in any way weak or inferior, but that they are exposed to a form of prejudice to which the rest of us may not be so exposed. Linda Fabiani brought out that point well.

I was asked to respond to other points and, as the Presiding Officer knows, I try not to disappoint members in that regard. What about protection for women? Many members have asked whether there should be an aggravation for assaults against females if those assaults are because of their gender. The issue is finely balanced. Liberal Democrat members in particular have raised it, and it was the subject of much debate in the Justice Committee. We can all agree that violence against women is a most serious issue. Rightly, it has been debated regularly in the Parliament. The Government is working to address the issue and will continue to do so with the assistance of all members of the Parliament. However, the conclusion that appears to have been reached by consensus is that considering the issue is not necessarily appropriate in respect of this bill. However, we may consider the issue again in due course.

Gavin Brown talked about costs and suggested that the financial memorandum to the bill may be considered to be on the light side. I therefore read the memorandum closely and it appears to me that paragraphs 27 and 28, on the Scottish Prison Service, indicate that the likely additional customers in our jails are likely to be relatively few. Although one might say that the cost of retaining a prisoner in Scotland is £40,000, that cost does not apply where there is a relatively marginal change. That is set out in the financial memorandum, but if the Conservatives wish to pursue the issue, we are of course willing to discuss it with them.

Figures from the United States and the London Metropolitan Police suggest that race hate crimes substantially outnumber crimes that are motivated by sexuality and disability. Whether that will prove to be the case here in Scotland remains to be seen. As Paul Martin pointed out, we do not yet have a clear steer on the numbers because there is as yet no aggravation. Patrick Harvie made that point too.

The main assurance that I want to give to Parliament—although it will not be a blinding surprise—is that the bill requires that the aggravation is recorded throughout the criminal justice process. Those records will enable us to monitor the use of the aggravations. Indeed, I noted that the financial memorandum provides even for the costs of changing the information technology in the prosecution system. The initial cost to record the information will be about £20,000 for the Crown Office and £5,000 for the police. The information will be recorded; it will inform future policy; and it will allow us to get a clear picture. That will be welcomed on all sides of the chamber.

The evidence shows clearly that certain groups in Scotland regularly face crime based on prejudice. That is repellent, repugnant and wrong. Law in itself cannot tackle that; law is just words on a page. Nonetheless, this bill will give a clear signal to everyone in the criminal justice system, and to society as a whole, that such crime is not on and will not be tolerated. It will now be dealt with more seriously and consistently, and with the full will of every member of this Parliament.

Photo of Patrick Harvie Patrick Harvie Green 4:50 pm, 18th March 2009

I am grateful for the many supportive speeches that have been made. I am genuinely delighted at the mood of consensus that has been struck and I hope that it will lead to a unanimous vote on the bill at decision time. I express my gratitude to all those who have argued the case in their party groups for the bill to be supported.

It was encouraging to hear Kenny MacAskill setting out a clear statement of intent. He said that the Government is committed to building a Scotland in which all people are treated with dignity and respect. I am sure that that would be true of the Government no matter which party was in power, but we should not undervalue it.

The cabinet secretary described as shameful the underreporting that we see in relation to such offences. I endorse that, but it is worth exploring a little further the reasons for that level of underreporting. The easy explanation, certainly with regard to offences relating to sexual orientation, would be to dismiss underreporting as simply a hangover from the days of criminalisation that will disappear through time, as generations move forward. However, I do not think that that is the case and I think that comparing it with the level of underreporting that exists with regard to offences relating to disability demonstrates that the existence of prejudice and bullying in schools is one of the things that continually undermine the likelihood of raising those levels.

I commend the Government for the work that it is doing, particularly in its response to the "Challenging Prejudice" document and the education aspects that it contains. There is much in the document that we must build on, and I hope that the bill is seen as being integrated with that approach. We need to ensure that, as the generations move on, we continue to make progress towards that Scotland in which all people are treated with dignity and respect.

Bill Aitken asserted that those who are convicted should be left in no doubt that courts take these offences seriously, and I am glad that he is persuaded of the need for legislation. He also mentioned freedom of speech. While I agree with his conclusion and that of the committee in that regard, I want to pick up on the language that was used in paragraph 118 of the committee's report, which refers to those who hold

"traditional, mainstream beliefs about marriage and sexuality".

I am not aware that any of the mainstream churches submitted evidence on the bill, or that they have expressed a view one way or another. I question whether views on sexuality that I might describe as outdated and antique are still mainstream views. I do not think that they are any more. We need to move beyond that.

Bill Aitken acknowledged that sentencing is a complex matter. It is important to remember that, under the proposals, courts will retain flexibility. Varying a sentence might be necessary if the motivation of the offender demonstrates a continued threat to society. That could, in some circumstances, justify a longer custodial sentence. However, alternative, non-custodial sentences might be appropriate in other circumstances. Paul Martin explored some of those issues, too. I reassure him that I do not want to abolish the jail. We might have disagreed in previous debates about the appropriate use of prison sentences, but I do not think that anyone wants to abolish the jail. I think, however, that we should use it more carefully.

We need to be careful to monitor the effectiveness of sentences. However, the committee agreed—I think that Paul Martin would agree, too—that mandatory sentences are not appropriate for the aggravation of what could be a serious, or a much more minor, offence.

Robert Brown began by referring to the right for all people to freedom from discrimination, as set out in the Universal Declaration of Human Rights. He emphasised that such rights have to be claimed, guarded and protected because they are not automatically accessed by all people equally. The bill will give clarity to the courts and the public, which will help us to do that.

Robert Brown mentioned the efforts that we have to make to overcome prejudice, and argued that building a society without the crimes that the bill is concerned with is dependent on seeing others as real people and overcoming ignorance and prejudice. I endorse that strongly.

Linda Fabiani made some important points about HIV status, which is covered in the disability definition. Although treatment options have improved dramatically and many HIV positive people live long and healthy lives, stigma and discrimination have not gone away.

Bill Butler and other members mentioned the long history of the proposal, which has led, at last, to consensus. It is important to remember that the aggravations under the bill are not restricted to specific victim groups. Racial aggravation is not limited to minority ethnic groups and neither is the sexual orientation aggravation limited to lesbian, gay or bisexual people; they apply to all people who can be given protection in law from crimes that are motivated by prejudice.

Hugh O'Donnell and Marlyn Glen spoke of the work of the Equal Opportunities Committee. I express my thanks to the committee for its work on the bill. It is entirely appropriate for the Parliament to examine the potential for age and gender, too, to come under the mechanism of statutory aggravation. Even if we agree—I think that we have agreed—that the mechanism is inappropriate in tackling the type of offence that is aggravated by prejudice based on someone's age or gender, we should agree, absolutely and universally across the chamber, that that is no reason for us ever to relent from the drive against those forms of violence. When we take account of the circumstances under which the offences are committed, we may agree that we need to approach gender-based violence and violence and prejudice on the ground of age not by way of legislation, but in other ways. That said, I am sure that the whole Parliament agrees that we should not relent from the task.

David McLetchie made one or two contentious comments, but I endorse strongly his clear exploration of the ways in which hate crime can be far more than a crime against one individual and can become a crime against a whole community. I thank him for those comments.

I cannot finish without mentioning Anne McLaughlin. First, I thank her for her birthday wishes, which are much appreciated. However, I am not sure about the moon bringing out my community mindedness. I am more excited by the spring sunshine at the moment; it is having more effect on me than anything else is. As for the horoscope advising me to be tactful in dealing with the boss, I would have thought that the advice was more for SNP members than for someone in my party. I take her comments in good part.

Anne McLaughlin moved on to address the serious issue of mental health. People with mental health problems are another poorly understood outgroup in society. Many people like to think that mental health issues apply to other people and not to themselves, but any one of us can experience mental health issues, and many of us will during our lifetimes. I return to Robert Brown's point: we need to see others as real people, with whom we can have empathy. That is one of the most important ways of overcoming prejudice and discrimination.

The bill has been described as small but perfectly formed. Indeed, as its proposer, I have been described in similar terms. Robert Brown described it as a modest bill. I am not sure that that description is equally applicable. I believe that the bill, and the wider action that Government is taking—right across the policy spectrum—will integrate to overcome prejudice and discrimination. I am grateful for the strong measure of consensus in the chamber. I look forward to further discussion on the detail at stages 2 and 3 of the bill.