Section 2. Legislation
There are a number of legal remedies, both within criminal and civil law, available to assist in supporting victims of racial harassment in housing.
Housing providers should attain good quality legal advice at an early stage and, with the victim's approval, work closely with the Police, the Procurator Fiscal and local authority community safety teams to ensure that all the resources within the law are used. This is the best way to ensure that you support the victim, take action against the perpetrator and end the harassment.
Although all avenues should be explored it is particularly important that eviction proceedings, and the threat of eviction, are used against perpetrators. For too long it has been the victim who has been moved, through transfers or through tenancy abandonment and becoming homeless. Eviction proceedings should not be halted if the victim decides to move, as the underlying problem remains and will affect other tenants.
Specifically, housing providers should be aware that The Housing (Scotland) Act, 2001 incorporates and adds to the Housing (Scotland) Act 1987 in giving anti-social behaviour as a ground for eviction. It also commits housing providers to act in a manner which " encourages equal opportunities" in particular preventing or removing discrimination between people because of a victim's race (Part 7, section 106 (2&3) making reference to Section L2 (equal opportunities) of Part II of Schedule 5 to the Scotland Act 1998 (c. 46).
Also, landlords should be aware that if they fail to act reasonably in dealing with complaints of racial harassment, or any anti-social behaviour, a complaint can ultimately be made to the Scottish Public Services Ombudsman.What follows is a simplified summary of the law as it concerns racial harassment in a housing context.
The Equality Act 2010 came into force on October 1 2010 and replaced the Race Relations (Amendment) Act 2000. However the Equality Act continues to impose on public authorities a general duty to promote racial equality. Section 149 (5) of the 2010 Act requires every public authority "in carrying out its functions, (to) have due regard to the need to –
- Eliminate unlawful discrimination, harassment and victimisation
- Advance equality of opportunity between different groups
- Foster good relations between different groups
The Crime and Disorder Act 1998 amended the Criminal Law (Consolidation) (Scotland) Act 1995 to create a new offence of racial harassment. A person commits the offence of racially aggravated harassment if he or she acts in a way that either causes or is meant to cause alarm or distress. It is an offence if a person carries out a course of conduct which is racially aggravated and which is intended to amount to harassment of another person, or would seem to a reasonable person to amount to harassment of that person.
Section 96 of the Act also provides for courts to take the racial aggravation element into account in determining sentence. Where it is proved in court that an offence has been racially aggravated, the aggravation will be taken into account when sentencing. Racial aggravation occurs if, at the time of committing the offence, or immediately before or after it, the offender displays any malice and ill-will based on the victim's membership (or presumed membership) of or association with members of a racial group. No corroboration is required for the racist element of an incident.
Racial aggravation is most commonly applied to criminal law offences such as Assault; defined as 'a deliberate attack on an individual by another' and Breach of the Peace; a crime which is difficult to define but that covers a great deal of behaviour which could be reasonably said to cause someone to be placed in a state of fear and alarm.
The Crime and Disorder Act 1998 also introduced the availability of Anti-Social Behaviour Orders (ASBOs) in Scotland. ASBOs are preventative orders to protect victims of anti-social behaviour and the wider community from further acts of anti-social behaviour. Breaking an ASBO is often a criminal offence.
Anti-social behaviour is defined in the Act as:
• behaviour that causes or is likely to cause alarm or distress to anyone; or
• behaving in a way that causes or is likely to cause alarm and distress to at least one person not of the same household as them.
In this definition 'conduct' would include speech, and a course of conduct must involve conduct on at least two occasions. This would clearly apply to racist harassment.
The Anti social Behaviour etc. (Scotland) Act 2004 replaces and introduces a number of expansions to the 1998 Act. The definition of anti-social behaviour in the Act includes such behaviour "in the locality" of the house. The aim is to ensure that there is no artificial cut-off which could prevent anti-social behaviour being addressed if it occurs out with the precise boundary of the premises.
Under this Act a local authority may seek an anti-social behaviour order from the sheriff, in relation to any person in their area. A registered social landlord may seek an anti-social behaviour order in relation to any person in or in the vicinity of that landlord's property.
Sheriffs can now grant an ASBO or interim ASBO against an individual aged 12 or over who is continuously involved in anti-social behaviour, and where existing options are not working. Sheriffs also have the power to grant a parenting order if it is decided that this will help prevent further anti-social behaviour by those under 16.
The Act creates a new power for a senior police officer to designate an area, in consultation with the local authority, where there has been significant, continuous and serious anti-social behaviour, for special measures. It gives the police power to disperse groups of two or more people or individuals within groups where their presence or behaviour is causing, or is likely to cause, alarm or distress to any member of the public.
Local authorities now have powers to issue notices to remove graffiti to those responsible for street furniture, i.e. phone boxes, park benches etc. If the graffiti is offensive, local authorities can issue notices ordering that the graffiti is removed within a specific time. If it is not removed, the local authority can carry out this work and claim back the cost from the owner.
The Act also provides powers for a local authority to act against a private landlord in connection with anti-social behaviour by the tenant of a house let by the landlord or by another occupant or visitor to the house. The key power is the issue of an anti-social behaviour notice (ASBN) requiring the landlord to take specified management actions in relation to the tenancy.
Section 140 of the Anti social Behaviour etc. (Scotland) Act 2004 says that any person using any of the measures in it should "do so in a way that encourages equal opportunities and meets the equal opportunities requirements as defined in the Scotland Act". This covers preventing and dealing with racial harassment.
Full information on the options available to different organisations through anti-social behaviour legislations and powers is available at antisocialbehaviourscotland.com
The Protection from Harassment Act 1997 was originally intended to stop the activities of stalkers, but might be used to tackle racial harassment. It states that everyone has the right to live free from harassment. The civil or criminal courts can make non-harassment orders, breaches of which are an offence punishable by fine or imprisonment.
The Criminal Justice and Public Order Act 1994 rendered intentional harassment, alarm or distress, unlawful in certain circumstances. This includes racial and sexual harassment and harassment on the grounds of disability and sexuality.