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Proposed Draft Regulations: Hate Crime and Public Order (Scotland) Act 2021 (Characteristic of Sex) Amendment Regulations 2026
The next item of business is consideration of the Scottish Government’s consultation on a super-affirmative instrument that will add sex to the list of protected characteristics for the offences that are outlined in the Hate Crime and Public Order (Scotland) Act 2021. I clarify that we are not approving the Scottish statutory instrument today; this is an opportunity to ask the cabinet secretary some initial questions. I refer members to paper 3. I invite the cabinet secretary to make a short opening statement outlining her plans for the consultation, after which we will move to questions.
Thanks, convener. As the committee is aware, the Scottish Government intended to legislate for a misogyny bill in this parliamentary session. However, I announced on 2 May that, due to the complexity of this area of law, and the clear and unambiguous provisions that would be needed, which would include the policy implications of the Supreme Court judgment of 16 April, there would be insufficient time for a bill to be finalised and introduced. That was also exacerbated by the short time left in this parliamentary session along with a packed legislative timetable.
I was also clear that I did not want a gap in the criminal law protections for women and girls and that, therefore, I would produce an SSI to add the characteristic of sex to the Hate Crime and Public Order (Scotland) Act 2021. As you said, convener, that SSI is subject to the super-affirmative procedure, which allows for thorough scrutiny before any legislation is finalised. Therefore, the required consultation seeks views on the draft policy of the SSI. We will, of course, carefully consider all feedback and views, including those of the committee. That process will inform the final SSI that will be laid in the Parliament.
The changes that are being consulted on will ensure that the criminal law protections for women and girls are the same as those that are provided through the 2021 act for other characteristics, such as age, race and disability. As the characteristic of sex will be added, men and boys will also be protected. However, we know that women and girls suffer significantly more from threats, abuse and harassment based on their sex, so they are likely to benefit most from those new protections and be able to report matters to the police.
The legislation will make it an offence for a person to stir up hatred against women and girls. Where an offender is motivated by, or demonstrates, malice or ill will towards women and girls in committing a criminal offence, that offence will be aggravated by prejudice relating to the characteristic of sex.
I consider the measures on which we are consulting to represent a significant step forward in strengthening legal protections for women and girls and ensuring that our justice system can respond appropriately to hate crimes that are motivated by prejudice on the basis of sex ahead of any misogyny bill that a future Government could introduce.
I am happy to take questions, convener.
Thank you very much, cabinet secretary. We know that the consultation is under way and I think that I am right in saying that it closes around 10 October. Can I ask you for a wee bit more detail on the consultation process? Specifically, who are all the stakeholders who are being consulted?
Of course. Anyone with an interest is welcome to respond to the consultation. It launched on 28 August, the same day that the draft SSI was published. On the Scottish Government citizen space website, there is the draft SSI and text to explain the small number of policy choices that have been made. My officials proactively sent that information to bodies on the hate crime strategic partnership group and those who had responded to the consultation on the proposed misogyny bill.
Thank you. I will open it up to questions from other members.
12:00
Good morning again, cabinet secretary. When the hate crime bill was being discussed, I recall that I was very critical of the Government for leaving sex out of it. Even then, I argued that there was a need for something more to be considered, and it seems that the working group on misogyny and criminal justice in Scotland has sympathy with that approach. In your view, what is lost by using the SSI as a mechanism for this rather than a stand-alone bill? Does the Scottish Government have any plans to revisit the issue of a misogyny bill in future?
I appreciate the question. I will not rehearse the arguments that were made at the time when the hate crime legislation was passed; I was not prepared to leave a gap in the law and in existing hate crime legislation for women. That does not mean that a future Government will not take forward a misogyny bill but, right here and now, I have come to the conclusion that, to put it bluntly, I am not having a gap in the law for women. That is my straightforward view.
The Hate Crime and Public Order (Scotland) Act 2021 deliberately left a power to address the issue. The definition of sex fits well with the hate crime framework, in that it minimises any overlap with other characteristics, although there is always the potential for overlap. At the end of the day, it felt to me as though the gap that had been left was not justifiable, and I wanted to address it before the end of the parliamentary session.
Misogyny legislation differs from hate crime legislation in that the former is specifically gendered legislation and is a more nuanced approach. Baroness Kennedy led some excellent work to lay out the extent of the misogyny and harassment that women face in this country, if anyone was in any doubt about that.
It is complex legislation—I wish it was not thus, but it is. When 16 Scottish Government bills and 15 members’ bills are still to come to a conclusion before purdah, there is a practical reality that is regrettable. I do not think that Baroness Kennedy’s work in the area will be lost. In my view, there is an opportunity for us to strengthen the law with the SSI, and it is important that we do it because, I repeat, I am not having a gap in the law for women.
I welcome that approach. The working group reported in 2022 and the Government responded in April 2022. What has been done between then and now that will, I hope, allow a future Government to pick up and run with the ball on a misogyny bill?
Extensive policy development work has been done. In a minute, I will ask Mr Lamont to give people a feel for the size and scope of it. The issue is complex. As it is criminal law, any misogyny bill needs to have clear and unambiguous provisions. That has been central to considerations in the Government.
Such a bill must also include the policy implications of the recent Supreme Court judgment. At one point in time, we were waiting on that judgment; we now have it, which means that further work is required. It is accurate for me to say that Baroness Kennedy’s working group left some matters to legislators. I am not saying that she was wrong to do so—it is entirely fair and credible—but some matters were left to legislators to address in and around a misogyny bill, and we have not concluded that policy work.
Philip, would you like to add anything?
Yes, just briefly. The main outward-facing thing that the Government did was to develop draft provisions based on Baroness Kennedy’s report. That is what has changed since 2022. In relation to your question, Mr Kerr, about how the bill could be picked up, there are draft provisions, but they need to be finalised and refined. That is the progress that has been made. As well as the policy blueprint, there are draft provisions in the public domain.
That is very helpful, thank you.
I have one final question. What does the Government project will be the impact on prosecutions from making this change, and how will resource be scaled as a result?
Although we have an informed view of the matter, it is hard to give you a precise figure. Based on other jurisdictions where similar laws exist, with a range of hate crime provisions, we would expect—although this is a very rough figure—around 5 to 10 per cent of cases to be attributed to malice, ill will and harassment of women based on their sex. However, as I said, that is a rough figure.
Much of the pain around resource in relation to hate crime legislation has already been resolved. We continue to engage with Police Scotland on the work that it will need to do to upgrade and update its training guidance.
Thank you.
I agree that there should not be a gap in hate crime legislation, so it is quite right that the Scottish Government is coming forward with proposals. Leaving aside all the debates around the misogyny bill for now—I appreciate that we may come back to that in relation to new offences and that these proposals are perhaps a different and additional approach—I note that Engender thinks that
“the hate crimes model was not designed to address the nature and scale of”
violence and discrimination against women. Moreover, the working group said that it would be very difficult to prove that a specific act had happened based on sex.
Does the cabinet secretary agree with those points? If so, how has that element been taken into account in the drafting of the SSI? Has there been consideration as to whether it is simply a matter of slotting in the word “sex”, which seems to be the case in the SSI, or whether the matter needs to be addressed in a different way, with further redrafting? Did the cabinet secretary grapple with or have discussions with officials about the issue?
In short, yes. The hate crime legislative framework is a proven model for providing legal protections. Although there might be a range of views on the approach that was taken, or, indeed, on our not being able to progress with the misogyny bill, I am taking some comfort from the recognition that there is a gap in hate crime legislation and that it needs to be addressed. Of course, it is never as simple as just slotting things in. Philip, would you like to speak to that, since you have done the slotting in?
To a certain extent, the approach is driven by the enabling power in the act. Therefore, there is not much flexibility for the Government to do anything other than add the characteristics and decide other minor matters, such as whether the protection for freedom of expression in the act applies. I am sure that the Delegated Powers and Law Reform Committee would have words with us if we did more than that. It is the framework that we have and, as the cabinet secretary said, it will close the gap that exists in hate crime law for women and girls.
That is helpful. It seems that there really is not very much flexibility around that, given how the original legislation was drafted.
Perhaps you have considered, especially given some of the complexity of such issues, how the change will be addressed in the training of the police and other agencies that are responsible for implementing the new provision. Has there been discussion about that?
Of course, because these are serious, important and sensitive matters that are not without their complexity. Given the journey that we have travelled with hate crime law and its implementation, I do not expect to need to resolve any further knotty issues, but we will continue to engage with Police Scotland. I also have a series of engagements with other parties, some of which you have mentioned, that are understandably disappointed that the misogyny bill is not proceeding at this time.
I understand. Is any further guidance likely to be provided for the implementation?
The act does not allow the Government to issue statutory guidance, but I am sure that, as happened with the hate crime act, information will be provided about what the change means for people, so that they can understand their new protections. That will definitely be part of implementation.
That speaks to the broader issue, which is that legislation alone does not always change people’s behaviour or rectify the experiences that women have in our communities. We have just had a session about a completely different matter that touched on the need for people to know and exercise their rights.
Thank you.
My questions relate more to the context in which we should consider the regulations, which are clearly at the draft stage—we will come to the specifics in due course. We have found at least one person who can testify to this point, as Mr Kerr said that, at the time of the bill’s passage, he thought that this should be included in primary legislation, and I recall that some constituents who got in touch with me at the time of the bill’s passage suggested something similar. My first question, therefore, is whether we should bear that in mind as part of the context. Yes, we took the approach that we could do it through secondary legislation, but at the time of the bill’s passage there was a cohort that said that we should do this.
I clearly understand your wider point about the misogyny bill but, given that the Parliament legislated for the provision that enabled the Government to bring forward the order, do you think that it is important that we consider it on its own merits, irrespective of whether such a bill comes forward?
Yes, I do. I am conscious that no issue is considered in a vacuum and that many of our stakeholders campaigned for misogyny legislation. However, I believe that filling the gap in the hate crime legislation is a step forward.
The new protections for women and girls might have a bearing on any future work and reduce the size and scope of a misogyny bill. We operate in an environment in which we are highly sensitive to the range of views on the matter. Many of our stakeholders and partners fought very hard for a misogyny bill, so I understand their disappointment. However, as Mr Lamont said, the scope of the SSI—what the legislation allows us to do—is quite specific, and I am very appreciative of the opportunity to lay it.
12:15
Having recently been involved in the legislative agenda, I can certainly testify to the challenges around progressing additional primary legislation between now and the end of the parliamentary session.
A potential misogyny bill is clearly not possible in this session, but you referred to filling the gap. We will probably get more into this when we consider the regulations in more detail down the line, but could you perhaps speak a little bit more about what the SSI means in practical terms and how it fills the gap? I understand that this might be difficult to answer, but what types of incident will be captured by the law that are not, as it stands, and how prevalent are such incidents?
We currently have hate crime legislation that rightly offers people protections based on age, disability, religion, race, transgender identity and so forth. Protections include stirring up hatred offences, which are where threatening or abusive behaviour or communication is essentially targeted at people because of their protected characteristic, such as sex, race or disability.
Also, aggravated offences, which add in the scope to convict on offences aggravated by malice and ill will, are really important, because if an offence is already being committed and it has been motivated by hatred towards women and girls, that should rightly be recorded and taken into account, for example, in sentencing, and it is a salient matter for the court to decide on.
Thank you very much.
To finish off, I have a more practical question, which is in regard to the future timetable beyond the closure of the consultation period. Will the responses to the consultation be published online and will there be an opportunity for the committee to be provided with an update on potential changes or alterations after the consultation?
In response to the process point, the consultation will end on 10 October. The responses will then be published, provided that respondents have given their permission. There will need to be an analysis of the information that we have received, including a form of statistical analysis, as there always is with such consultations.
Then, in due course, we will write to the committee, whether any changes are made to the final SSI or not. I want to lay the SSI before Christmas so that it can be addressed in early 2026. I certainly hope that it will be laid before the February recess, which is when I am aiming for.
Thank you very much to the cabinet secretary and her officials. That brings the public part of our meeting to a close.
Next week, we will again hear from the cabinet secretary, this time on a package of legislative consent memos for the UK Crime and Policing Bill.
12:20 Meeting continued in private until 12:54.Previous
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