Palestine campaigners welcome hate crime recommendation and call on Scottish Government to reject the IHRA ‘definition on antisemitism’
31st May 2018 – for immediate release
Scottish Palestine Solidarity Campaign (SPSC) welcomes Lord Bracadale’s rejection of the IHRA’s ‘working definition of antisemitism’ and his opposition to the creation of “a statutory aggravation to cover hostility towards a political entity”.
In the light of Lord Bracadale’s analysis, commissioned by the Scottish Government, SPSC calls on the Scottish Government to reject the IHRA ‘working definition on antisemitism’ as publicly as it adopted it.
Lord Bracadale was appointed by the Scottish Ministers in January 2017 to undertake a review of hate crime legislation in Scotland; his final report and recommendations were published today.
One of the questions for his consideration was whether an aggravation should apply “where an offence is motivated by malice and ill-will towards a political entity which the victim is perceived to be associated with by virtue of their racial or religious group?”.
He concluded that:
“I accept the arguments advanced by those respondents who contended that hate crime legislation should not extend to political entities as protected characteristics. I consider that such an approach would extend the concept of hate crime too far and dilute its impact. The freedom of speech to engage in political protest is vitally important. For these reasons I do not recommend extending the range of protected characteristics to include political entities.”
To illustrate his reasoning, Lord Bracadale refers to a case involving five SPSC members:
“In one case, members of the Scottish Palestine Solidarity Campaign shouted slogans during a concert at which the Jerusalem string quartet was performing. These included “they are Israeli army musicians”; “genocide in Gaza”; “end genocide in Gaza”; “boycott Israel”. The accused were members of a political organisation which campaigns against Israeli occupation of the Palestinian Territories and advocates boycott. The content of their remarks was political in nature, including a call for a boycott. The evidence did not permit the inference that their comments were made because they presumed the musicians to be Israeli or Jewish.”
As well as SPSC, the Faculty of Advocates, the Glasgow Bar Association, Law Society of Scotland, Fife Centre for Equalities, Coalition for Racial Equality and Rights, and the Senators of the College of Justice also opposed an extension of hate crime legislation to include hostility to a state body.
Bracadale reported concerns that:
“A new aggravation in this area would be difficult to legislate for and potentially contentious, and would therefore introduce complexity and uncertainty into the law. In addition, a new aggravation would be open to interpretation and abuse for political ends, and open to change over time, depending on the political climate.”
“A further argument was based on freedom of speech. Freedom to hold differing political views, and to debate those views, was fundamental to a democratic society and should be protected. This included freedom to subject political entities and foreign states to legitimate criticism. A new aggravation of this type could, therefore, have unintended consequences regarding the curtailment of freedom of expression and freedom of political debate.”
He goes on to discuss:
“The right to engage in legitimate political protest is fundamental in a democratic society. There is a tension between, on the one hand, freedom of expression, which protects legitimate political protest, and, on the other hand, conduct which is racially aggravated. In the abstract, it can be difficult to distinguish political protest or criticism from racially/religiously aggravated conduct. In chapter 5 I examine the significance, in the context of stirring up of hatred offences, of article 10 of the European Convention on Human Rights (ECHR). What emerges is that context and content of the conduct in any particular case is critical. Freedom of expression carries with it duties and responsibilities.”
“There is an obligation to avoid, as far as possible, expressions of opinion or belief that are gratuitously offensive to others and thus an infringement of their rights (for example freedom of religion), and which therefore do not contribute to any form of public debate capable of furthering progress in human affairs.”
Campaigners noted that the introduction to Question 7 in the consultation document referred almost exclusively to the International Holocaust Remembrance Alliance (IHRA) ‘working definition on antisemitism’ which was adopted by the Scottish Government in 2017.
Mick Napier of Scottish PSC said:
“Solidarity with the Palestinian people against the settler colonial project of Zionism is not going to be criminalised in Scotland anytime soon, despite the Scottish Government’s adoption of the definition that Bracadale has rejected. Bracadale has recognised the assault on free speech that adoption of the IHRA bogus definition of antisemitism would entail and has decisively rejected the claims of those who seek to criminalise Palestine solidarity, above all BDS campaigning. We must remain ever vigilant against those in and out of the Labour Party who seek to silence supporters of Palestinian freedom, who work to smear those who oppose an ethno-religious state in Israel/Palestine.”
“The Scottish Government should urgently review its 2017 adoption of the IHRA definition of antisemitism in the light of Lord Bracadale’s findings.”
Notes to Editor
- Scottish Palestine Solidarity Campaign
Contact: Mick Napier, 07958 002 591
180 West Regent Street, Glasgow, G2 4RW
101 Rose Street South Lane, Edinburgh, EH2 3JG
- Independent Review of Hate Crime Legislation in Scotland, Final Report - Recommendation 6 (page 25-26): http://www.gov.scot/Resource/0053/00535892.pdf
- Scottish PSC response to Question 7: https://consult.gov.scot/hate-crime/independent-review-of-hate-crime-legislation/consultation/download_public_attachment?sqId=pasted-question-1467894590.05-55511-1467894590.71-30316&uuId=176714920
- Association of Palestinian Communities response to Question 7: https://consult.gov.scot/hate-crime/independent-review-of-hate-crime-legislation/consultation/download_public_attachment?sqId=pasted-question-1467894590.05-55511-1467894590.71-30316&uuId=159865511
- Mike Napier, Niel Forbes, Vanesa Fuertes, Sofiah MacLeod, Jim Watson response to Question 7: https://consult.gov.scot/hate-crime/independent-review-of-hate-crime-legislation/consultation/download_public_attachment?sqId=pasted-question-1467894590.05-55511-1467894590.71-30316&uuId=644011820
- Consultation responses to Question 7:
Faculty of Advocates:
“No. This is clearly a sensitive matter but, on balance, it is submitted that such a scenario is not readily equated with the other named “characteristics”. Freedom to hold differing political views and to express them is essential in a democracy, even in circumstances where expression of those views may be motivated by malice or ill will.”
The Glasgow Bar Association:
“An aggravation should not be relevant in such circumstances. Legitimate criticism of political entities is a fundamental democratic right and a person’s Article 10 rights should be protected insofar as legitimate freedom of expression is concerned. It is recognised that the expression of certain views may be controversial but these should not be unduly restricted. Any necessary restrictions to prevent disorder should be proportionate to legitimate aims within a democratic institution. There is a danger in conflating the two issues and racism or prejudice in a criminal context should be readily identifiable in the absence of any politically motivated factors. The offence should be capable of standing alone avoiding ambiguity about any legitimate politically motivated conduct.”
Law Society of Scotland:
“We would not offer comment other than to indicate our concerns about the uncertainty on what might be deemed to be ‘political’. Political entities change from time to time. Introduction of the political concept may well widen the scope of hate crime too far. Even in the examples provided in the consultation paper, the offending behaviour is likely to be included within the working definition of hate crime.”
Fife Centre for Equalities:
“We feel applying aggravation to political entity will be contentious and could potentially undermine the protection being afforded to certain social groups. For example, there are individuals who dislike UKIP because of their potential racist rhetoric. If those individuals choose to protest peacefully against UKIP, under new legislation, UKIP could argue that they are being harassed because of their political beliefs.”
Coalition for Racial Equality and Rights:
“CRER understands that equality law (and the specific protected characteristics) pertains to immutable, intrinsic characteristics that an individual or group has that constitute part of an individual or collective identity. We believe that levels of condemnation levied against identity-based crimes will diminish if aggravations are brought forward that do not pertain to the listed, inherent protected characteristics. In addition, CRER share some of the concerns that have been highlighted by various stakeholders regarding the government’s adoption of the International Holocaust Remembrance Alliance’s working definition of anti-Semitism.”
Senators of the College of Justice:
“It should be appreciated that, if introduced, such a measure could open a potentially wide door. It would depart from the concept of hostility towards a protected group. It would be likely to add a significant layer of complexity and uncertainty to the existing law. In general it is thought that the common law will be able to deal with cases which fall outside the current legislation and where additional condemnation is plainly required.”