We sent the following email to Baroness Kennedy, the Chair of the Misogyny and Criminal Justice in Scotland Working Group on 18th March 2021:
Dear Baroness Kennedy,
We are writing to ask if you would call on the Justice Secretary to use the powers of Hate Crime and Public Order Bill (Scotland) to add sex as a category now, before Parliament goes into recess and at least until the work of your group is concluded. While the argument for inclusion was made in Parliament last week, it was narrowly defeated on a whipped vote. Recent events have made this more, not less, pressing.
As you will be aware, last night, members of the House of Lords backed amendments to ensure that a trial in recording Hate Crime aggravated by a “hostility based on sex” was rolled out across England and Wales, to be informed by the successful Nottingham pilot. We understand you will be examining this trial in detail. It is concerning that, while Lord Bracadale based his recommendation to include sex in the Scottish Bill on the back of the findings from these trials, this was dismissed by the Cabinet Secretary.
The Scottish Crime and Justice Survey was also released this week: it shows a fall of 39% in overall crime in Scotland in the decade to March 2020 except for sexual offences against overwhelmingly female victims, which continue to rise. These figures do not account for lockdown, during which period we know crimes against women rose sharply.
When giving evidence to the Justice Committee many groups argued that adding sex would enable data to be collected and training undertaken. We believe that such data and findings would be valuable in informing the work of your group and potentially identifying those gaps in law which the Justice Secretary believes exist. In the event that your recommendation was to add sex, a vital year – and potentially longer – may be lost. We would add that while Mr Yousaf has pledged to abide by the findings and act swiftly, there is an election in May and he has no guarantee that he will be in a position to fulfill this obligation.
Adding sex now would reassure women worried about the potential loss of momentum. In light of all that has happened and information that continues to emerge, it may reassure women who feel, naturally, frightened and angry by the relegation of their safety by this administration, especially in light of the protection afforded to others. If women were visible in the current public information campaign on hate crimes it would both encourage women to report crimes and provide reassurance that such reports would be taken seriously, and send the vital message to perpetrators that such crimes will not be tolerated in Scotland.
We look forward to seeing the progress and the recommendations of the working group.
A copy of this letter has also been sent to Humza Yousaf, Cabinet Secretary for Justice.
Marion Calder, Trina Budge and Susan Smith, Directors on behalf of For Women Scotland
Update 24 May 2021: No response has been received.
Last year for International Women’s Day we held a fantastic demonstration outside the Scottish Parliament in Edinburgh. Lockdown restrictions prevent us from doing similar this year, but we really wanted to get across the strength of feeling about the Hate Crime Bill and the detrimental impact it will have on free speech and women’s rights in Scotland.
So we are hosting a virtual demo instead! This is our message to our politicians that Women Are Watching what is debated and voted on in Parliament on 10th March, even if we cannot be there in person.
Thank you to everyone who joined in and sent us photographs – a video compilation is on our YouTube and also shown here, along with all the photographs.
The following was sent to all MSPs on 7th March 2021. It can also be downloaded as a pdf here.
Hate Crime and Public Order (Scotland) Bill Briefing for Stage 3, 10th March 2021
For Women Scotland (FWS) is a grassroots women’s rights group concerned with protecting and strengthening existing rights for women under UK and Scots Law. We have twice given evidence to the Justice Committee on the potential impact of the Hate Crime Bill on women, following consultation with our extensive network across Scotland. We have prepared the following briefing on the amendments proposed at Stage 3.
We should first like to highlight our concerns with regard to the process of consultation, especially in consideration of women’s rights. As a consequence of Parliamentary Questions lodged by Elaine Smith MSP on 5th February (refs S5W-35023 and S5W-35024) which concern consultation with women, we have written to the Permanent Secretary, Leslie Evans, this week asking how the Scottish Government attempts to comply with the Scottish Government Consultation Good Practice Guidance, in particular section 2B:
The Hate Crime Bill reaches the final stage in its passage through Parliament next Wednesday 10th March, when MSPs consider the final amendments and vote on whether the Bill passes into legislation.
Time is very short so we are asking for people to email their MSPs today to highlight outstanding concerns with the Bill and to press them to support amendments that will protect women and all our rights to free speech. We are calling for ‘sex’ to be added to Part 1 of the Bill and, since the freedom of expression protections remain weak, we are also calling for Part 2 to be scrapped.
Everyone has one constituency MSP and seven regional MSPs – they will all be voting next Wednesday so please contact all eight of them. To find out who they are and their email addresses just enter your postcode here. Remember to put your address at the bottom of your email so MSPs know you are in their constituency/region.
Please ask your MSPs to SUPPORT the following amendments on Wednesday:
The Justice Committee issued an emergency Call for Views on the options proposed for Freedom of Expression amendments to the Hate Crime Bill. Our submission is as follows, and can also be downloaded as a pdf:
We are troubled that it has taken so long for these crucial amendments to be considered in this Bill. Cynically we are frightened that the Government is running the clock down and is looking for a botched compromise rather than a proper examination of the issues at stake.
As far as the proposals are concerned; Option One is the least worst. However, it does not cover all our concerns. At this stage we would draw the Committee’s attention to a similar hate crime bill in Spain where the hanging of an effigy of the Deputy Prime Minister Carmen Calvo, who has defended women’s rights, is not a hate crime. However, a renowned feminist campaigner, Lidia Falcon (85 years old and who was tortured by Franco) can be prosecuted under their hate crime law for campaigning for the rights of women as a sex class.
If this is what the Scottish Government want for women in Scotland, they need to state this on the face of the Bill. If not, they must incorporate definitions and protections.
We continue to be bemused by the determination of some in the Scottish Government and funded organisation to dismiss and undermine important work on sex in hate crime because it does not suit a predetermined political agenda.
In writing his report, Lord Bracadale consulted widely and concluded that an aggravator of gender (sex) should be added to the Hate Crime Bill.
While taking on board the objections raised by a tight knit group of Scottish organisations, he nevertheless felt that a stand alone offence would be superfluous and risk confusion. He was also concerned that momentum might be lost if there was further delay in meaningful action.
We were disturbed, but sadly unsurprised, that, once again, the Committee passed-up the chance to add sex to the Hate Crime Bill while failing to progress on free speech amendments which might have protected women speaking out against sexism and misogyny.
We agree with the Convener that the events and reactions of recent days have made the need for clarity around free-speech more, not less, acute. We would also say that they indicate the frightening pitch which some activists have reached, and their often barely concealed hatred of women.
To add insult to injury, the Cabinet Secretary remains determined to include “cross dressers” under this bill citing anecdote and supposition as “evidence”: “One of those examples is that a man who is not a transwoman who is dressed for say a drag performance…could be at high risk of transphobic hate crime. It is very likely that a perpetrator could later claim that they had no issue with a transwoman who is really transitioning and only had a problem with men dressing up as woman without transitioning.” (our emphasis).
We do not know how many men have been the victim of crime while on the way to a drag show. We do know there were only seven hate crime convictions under the transgender aggravator (it is unknown how many of these related to cross dressers) in 2018/19, so the evidence does not appear to support the scenario envisaged by Mr Yousaf.
However, we do know that thousands of women are routinely harassed and abused – many because of what they were wearing.
The Committee cited witnesses who were opposed to “gender neutral” legislation when considering the characteristic of sex. Ironic, then, that the bill as it stands is skewed to affording greater protection to men and none to women.
A gender aggravator to crimes was first mooted in the Draft Criminal Code for Scotland some seventeen years ago. Later the same year Robin Harper MSP lodged an amendment to the Criminal Justice (Scotland) Act 2003 to make provision for offences aggravated by disability, sexual orientation, age and gender. Mr Harper’s amendment was not accepted but did lead to the establishment of a Working Group to further consider what improvements could be made to hate crime legislation.
Members of this Working Group included representatives from Equality Network, Stonewall and Engender. 102 individuals and groups responded to the main consultation (although both Engender and Scottish Women’s Aid withheld their submissions from publication). A Hate Crime Report was published in October 2004 detailing 14 recommendations for the Government – protection for transgender identity was in, along with sexual orientation and disability, but women were out.
The minutes of the meetings of the Working Group seem to be lost to the archives but the final report does indicate that a number of women’s groups called for the characteristic of gender to be added, in opposition to the views of the Scottish Executive’s Violence Against Women Unit:
On Tuesday 24th November For Women Scotland will give evidence to the Scottish Parliament’s Justice Committee on the controversial Hate Crime and Public Order Bill.
In our written submission, we made clear our objection to Part 2 of the bill, which seeks to extend the offence of stirring up hatred, but also our objection to the non-inclusion of ‘sex’ as a protected characteristic.
There have already been three oral evidence sessions and we have been closely monitoring the discussions.
Across the three sessions, there have been a total of 32 witnesses, two thirds of whom were men. The Committee, of course, has limited control over the make-up of the panels, but we note that, once again, women have been outnumbered in discussions about an important aspect of law reform that will impact them.
The Delegated Powers Memorandum for the Hate Crime and Public Order (Scotland) Bill contains a clause that states: “Regulations under this section may modify section 14 (meaning of the characteristics) by adding interpretative provision relating to the characteristic of sex. They may also make incidental, supplementary, consequential, transitional, transitory or saving provision, and make different provision for different purposes.”
This means that if the characteristic of “sex” is added to the Hate Crime legislation at a later date then it can be redefined by a Committee, without public consultation or Parliamentary scrutiny, and may differ from the definition given in the Equality Act: