The Status of Women In Scotland - Hate Crime and Public Order Act

UN Women invited submissions to the Commission on the Status of Women with information relating to alleged violations of human rights that affect the status of women in any country in the world. Our full submission can be found here but we have also turned each section into the following stand alone blog pieces:

Gender Representation on Public Boards Act I All-Women Shortlists I Census and Data Collection on Sex I Hate Crime and Public Order Act I Prisons I Women’s Services and the Genuine Occupational Requirement I Conclusions

In May 2018 Lord Bracadale published his report on Hate Crime in Scotland.¹ One of the areas he had been asked to address was whether the category of sex should be added in order to address the rising tide of misogynistic abuse. Bracadale said that his investigations into such abuse had made him angry and “I worry that it puts the next generation of young women off politics. So, I feel a responsibility to challenge it, not so much on my own behalf, but on behalf of young women out there who are looking at what people say about me and thinking, I don’t want to ever be in that position.”

The conversation about protecting women in Scottish hate crime law is not a new one. A gender aggravator was first mooted in Scotland in 2003 which led to a working group but no subsequent concrete legal protection for women.²

Bracadale’s recommendation was that sex should be included which, he felt, would also go a way to fulfill the Scottish Government’s international obligations to tackle violence against women. He considered the alternative option forwarded by Government funded feminist organisation Engender of a stand alone offence of misogynistic harassment, but concluded: “I think the clearest and most effective way to mark out hate crime is a scheme involving baseline offences and statutory aggravations which reflect identity hostility. That is the underlying philosophy which I have applied throughout the scheme which I am recommending. I would depart from that approach if I felt that it was necessary in order to achieve effective recognition of gender-based hate crime. However, based on the evidence and arguments which I have heard, I do not think there is any real gap in relation to patterns of conduct against women which ought to be criminal but are not. Any new standalone offence would therefore have a considerable cross-over with other existing offences, which risks causing confusion and undermining the aim of collecting reliable data.”

Despite Bracadale’s carefully considered analysis of Engender’s arguments and his rigorous examination of the evidence presented, the Justice Minister, Humza Yousaf, decided to accept the rejected arguments forwarded by the funded sector and did not include a sex aggravator in the Draft Bill. Instead, he announced that a Working Group would be established tasked with examining the case for a stand alone offence and attempting to identify the gaps in the law which had eluded Bracadale.

In the early stages of consultation on the Bill, Mr Yousaf claimed that he was dedicated to meeting with stakeholders. In practice, however, he relied on a narrow circle of government funded or appointed groups. Questions by MSP Elaine Smith on the breadth of Sottish Government’s consultation process highlighted that, in contrast to previous administrations, they did not regularly call upon diverse groups.³ When Mr Yousaf did engage with groups beyond the funded management organisations and sought input from, as he phrased it, groups working at the “coalface” of women’s rights, he ignored their recommendations (and misrepresented their opinion).⁴

When For Women Scotland undertook to investigate what engagement the funded groups had conducted with wider grassroots organisations, it emerged that they had not. Engender said they were “not funded for a huge amount of engagement and are not presenting our work as advocating on behalf of the members or as representative of women”.⁵ They claimed this was the remit of the Scottish Women’s Convention, however, there is no evidence they attempted to consult either and they did not input into the process.⁶ We believe that the decision to exclude women in the Bill, in defiance of Bracadale’s consideration of UK and International law, came down to the opinion of a handful of policy analysts who are ultimately paid by the Scottish Government.

The veteran Labour MSP Johann Lamont, supported by her party colleagues Elaine Smith, Jenny Marra and Pauline McNeill, and SNP’s Joan McAlpine,⁷ fought hard to have sex included in the Bill and highlighted the delays and the unwillingness to tackle sexism in Scotland. Lamont also argued that any subsequent legislation should recognise the centrality of sex in analyisis of discrimination. For this, she was branded a “bigot” by fellow MSPs⁸ including Scottish Green co-convener Patrick Harvie who is rumoured to be considered for a Ministerial position by Nicola Sturgeon.

The Scottish Government have, instead, commissioned a Working Group on Misogyny. This carries no guarantees of action or funding and is chaired by Baroness Kennedy who was also appointed, personally, by Nicola Sturgeon as a member of the First Minister’s National Advisory Council on Women and Girls (NACWG)⁹ – an undemocratic group who recommended a stand alone misogynistic harassment offence in January 2019.¹⁰ The First Minister has, as previously promised,¹¹ accepted all the recommendations of this group to date. Having committed to implementing this recommendation¹² it is not surprising that the Scottish Government failed to include sex as a characteristic in the Hate Crime Bill, contrary to the conclusion reached by Bracadale. It also explains why NACWG had no need to take part in the Justice Committee’s Call for Views.

We maintain that any stand alone offence which only considered misogynistic harassment would be open to challenge on the grounds of sex discrimination under the Equality Act. Therefore, we believe that the most effective solution would be to follow the example of the gender neutral Domestic Violence Act and ensure that statutory guidance and training for the courts and police reflect the reality that women would be the group disproportionately affected.

Part 2 of the Bill concerning “stirring up” hatred has been hugely controversial and resulted in the alliance of very disparate groups and individuals concerned about the impact on free speech.¹³

One of the major areas of concern has been the impact on women who try to discuss controversial changes and amendments to the Gender Recognition Act and who are frequently targeted by activists who brand them “hateful” for discussing women as a sex class. In our submission to the Committee we gave examples of the many activists who wanted to report feminists under the new law and who considered that lobbying for women’s rights was, in itself, problematic.¹⁴

During the Committee hearing on Part 2 of the Bill, Lucy Hunter Blackburn of Murray Blackburn MacKenzie drew attention to the atmosphere in which women’s rights advocates were working: “We have provided the committee with more examples in our written submission. I stress that they are not hypothetical examples—we are not picking them out of thin air. We mention the veteran feminist Lidia Falcón, the president of the Feminist Party of Spain, who spent her 85th birthday in the office of the prosecutor against hate crimes of Madrid because she had been reported for comments that she had made about the reform of gender recognition law in Spain. Last week, she was cleared—all the charges were dropped—because her comments were found to be legitimate political speech, but not until after an investigation had taken place.

As for the atmosphere in which such events take place, members might or might not be aware that, this week, an effigy of Carmen Calvo, the Deputy Prime Minister of Spain, was found hanging in Santiago de Compostela. I am sorry for showing you the image—it is not a good image, but I think that people need to see it to understand it. It is shocking stuff, but it illustrates the atmosphere in which we are working, which is why getting the law clear is important.”¹⁵

The issue of the suppression of free speech was picked up by various disparate witnesses, including John McLellan of the Scottish Newspaper Society who pointed out that ultimately court judgements of innocence did not weigh as heavily in the balance as the disruption and expense of an investigation and a charge, along with the confiscation of equipment.¹⁶

In evidence to the Committee, the Police Federation had also voiced concerns that the Bill might “devastate” their relationship with the public.¹⁷

In April 2021, our worst fears were realised when feminist activist, accountant, and mother of disabled children, Marion Millar was charged for “Hate Crime”.¹⁸ This criminal activity apparently involved a series of tweets, including a picture of ribbons in the Suffragette colours tied to the fence near a BBC studio where a prominent trans activist actor recorded a BBC soap. There was no reason to suspect she had even tied the ribbon.

Millar has not been charged under the new legislation, so we have good reason to believe that the situation for women’s rights activists will become much worse. A report in the Spectator by Debbie Hayton, a transwoman and activist who supports women’s sex-based rights, covered the event for Millar in Glasgow and the legislative backdrop.¹⁹

Increasingly, in the wake of the passage of the Hate Crime Bill, stories like this are appearing in the Scottish press as Police are tasked with the investigation of stickers supporting women’s rights.²⁰ While these may appear trivial and ridiculous, the police believe they must investigate. An undermining of faith in the Police coupled with more reports against, and prosecution of, Scottish feminists are certain to be the upshot. The police remain concerned that they are being used in a political campaign against women.²¹

References

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Gender Representation on Public Boards Act I All-Women Shortlists I Census and Data Collection on Sex I Hate Crime and Public Order Act I Prisons I Women’s Services and the Genuine Occupational Requirement I Conclusions