Scottish Government accused of leaving courts 'in the dark' over Hate Crime Bill

Justice Secretary Humza Yousaf is set to face a barrage of questions about the drafting of the controversial Hate Crime Bill from MSPs, amid accusations the Scottish courts service was “left in the dark” over the contents and cost of the proposed legislation.

Justice Secretary Humza Yousaf.
Justice Secretary Humza Yousaf.

Mr Yousaf, who will appear in front of Holyrood’s Justice Committee to discuss the Bill today, will be quizzed on why the Scottish Courts and Tribunals Service (SCTS) did not see a final draft of the Bill or its associated financial memorandum, until they were both published by the Scottish Government.

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In a new blow for Mr Yousaf, who is piloting the Bill through the Scottish Parliament, correspondence from the SCTS has revealed that its officials were “disappointed” they were not able to fully contribute to the Bill process and described discussions with the government as “limited”.

They add the proposed cost of changes to the hate crime legislation could not be described as “minimal” and raised concerns it would be a costly exercise to change its IT system to accommodate the new charges.

The letter from the SCTS’ legislation implementation team has been revealed a week after Mr Yousaf officially lodged amendments to the Bill after being forced to accept the law could be used to “prosecute entirely legitimate acts of expression”.

It states: “The SCTS is disappointed that it was not provided with sufficient opportunity to fully contribute and, in fact, only became aware of the final provisions of the Bill and the content of the Financial Memorandum on the Bill being introduced to the Scottish Parliament.

“The Financial Memorandum considers that the costs associated with the Bill may not give rise to significant increases in costs. However, the SCTS is of the view that the provisions of the Bill in relation to the characteristics, introduce what appears to be an entirely new concept of the court having to record another level of information.”

It goes on to say this information “appears to be for the purposes of identifying and monitoring certain trends in the recording of aggravated offences” and the SCTS “does not require, nor would it have any use for this information”.

And the letter adds: “To comply with the provisions of the Bill, specific functionality will require to be developed to record the underlying characteristics. As indicated, the SCTS should have been afforded an opportunity to consult IT colleagues and our system developers to identify the costs that may arise as a consequence of these provisions.

“These changes, in our view, cannot be described as minimal. This is on the basis that no preliminary investigation of potential costs has actually taken place as the SCTS was not aware that the underlying characteristics would require to be recorded as part of the conviction.

"In addition, given the wording of the provisions and the interaction of the recording of the information on conviction, any system changes would also have to be identifiable in the Criminal History System, which may require additional work and associated costs.

"If these costs are significant, we are of the view that these could not be met from current budgets.”

Scottish Conservative justice spokesman Liam Kerr said the reaction of the SCTS “summed up the SNP’s failure to listen properly to key stakeholders” ahead of introducing the legislation.

He said: “The SNP should have been keeping the courts service up to speed on this at every opportunity – instead they were left in the dark. There are serious questions to answer here, and this meeting provides the perfect opportunity for ministers to explain why they chose to take this course of action.

“The SNP have shown their typical we-know-best attitude when introducing the Hate Crime Bill, which is summed up by only having limited discussions with the very bodies who would have to deal with the legislation in the courts.”

He added: “With over 2,000 representations on this Bill, it is clear feelings are extremely strong on its threat to free speech. The SNP must give an urgent commitment that all views will be taken into serious consideration in ample time throughout the progression of the Hate Crime Bill.”

A Scottish Government spokesperson said there had been “dialogue” with the SCTS through the development of the Bill, including the court service’s response to the public consultation in 2018 “which contained full details of what is contained in the Bill now before Parliament”.

"As with all criminal justice legislation, SCTS was involved as the government sought to estimate the impact of the legislation on the criminal courts,” the spokesperson said.

"This engagement will continue as planning begins for implementation of the legislation, subject to Parliamentary approval.

“The Cabinet Secretary for Justice is committed to working with stakeholders and finding common ground on this vital piece of legislation, to afford sufficient protection to those who suffer from the scourge of hate crime and prejudice while respecting people’s legitimate freedom of expression.”

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