Official Report 467KB pdf
Hate Crime and Public Order (Scotland) Act 2021 (Characteristic of Sex) (Amendment and Transitional Provisions) Regulations 2026 [Draft]
::Good morning and welcome to the eighth meeting in 2026 of the Criminal Justice Committee. We have received no apologies this morning.
Our first item of business is an oral evidence-taking session on an affirmative instrument. We are joined by the Cabinet Secretary for Justice and Home Affairs, who is supported by Patrick Down, criminal law, procedure and sentencing team, and Jasmin Hepburn, legal directorate, from the Scottish Government. Welcome to you all.
I refer members to committee papers 1 and 2, and I thank everyone who has provided written submissions. I intend to allow up to 60 minutes for the item.
I invite the cabinet secretary to make some opening remarks on the Scottish statutory instrument.
::Good morning. The Scottish Government is committed to strengthening Scotland’s criminal law to protect women and girls from hate and prejudice. That is why, on 28 January 2026, we laid the SSI before Parliament, setting out our proposal to add the characteristic of sex to the Hate Crime and Public Order (Scotland) Act 2021. This marks a milestone in our work to deliver stronger, clearer hate crime protections, particularly for women and girls, who we know experience disproportionately high levels of harassment, abuse and threatening behaviour that is motivated by prejudice based on their sex. The legislation that we have laid builds on the evidence and ensures that our justice system can respond, as it does already, to hate crime concerning, for example, race, religion or sexual orientation.
As is required under the 2021 act, a draft SSI was laid in Parliament last year, and a public consultation was undertaken to seek views on it. We have published an analysis of the responses that we received, which found that, although there was a range of views, there was support from a significant majority both for the addition of the characteristic of sex to the 2021 act and for the specific approach that was taken in the SSI. I take this opportunity to thank the numerous organisations and individuals who took the time to share their views during the process.
The measures that are set out in the SSI will make it a specific criminal offence to stir up hatred against a group of persons because of their sex and will ensure that, where any offence is motivated by or demonstrates malice and ill will towards someone because of their sex, it may be treated as an aggravated offence, which is rightly recognised as more serious in our justice system.
Designating sex as a characteristic under the 2021 act will ensure that women and girls will benefit from specific hate crime protections that are equivalent to those that are already in place for age, disability, religion and other characteristics. Although the provisions apply to men and boys, too, the evidence is clear and consistent that women and girls face the greatest harms most frequently and most severely. That is why I indicated in my evidence to the committee in September that I was not prepared to allow that gap to continue and that women and girls deserve that protection. The SSI strengthens the tools that are available to police, prosecutors and courts, sends a clear message that abuse driven by misogyny and sex-based prejudice has no place in our communities and ensures that women and girls will receive the same level of legal protection as victims targeted because of other characteristics in hate crime law.
Protecting women and girls from violence and hate is not simply a legislative priority but a moral imperative. The regulations represent a necessary further step towards a justice system that recognises and responds effectively to the lived reality of women and girls across Scotland.
As always, I am more than happy to take questions.
::Thank you. I invite questions from members. We will start with Liam Kerr.
::Good morning, cabinet secretary. You have said that the regulations are about protecting women and girls in law. The policy note suggests that they will implement the first two recommendations in Baroness Kennedy’s report, but they will not, because Baroness Kennedy specifically recommended, for example, the creation of a new statutory misogyny aggravation that would operate outside the Hate Crime and Public Order (Scotland) Act 2021.
You referred to the consultation. Many respondents to the consultation—which, interestingly, resulted in no amendments being made to what is proposed—said that the mechanism was “ill-suited” to dealing with the misogynistically motivated crime that women and girls face.
Do you accept that the proposed mechanism is a poor second to the full misogyny act that women were promised? What else will be lost as a result of that mechanism being used, rather than a full misogyny act being introduced?
::I refute the suggestion that the approach that we are taking in the regulations is a poor second. For the reasons that I have outlined today and previously, it is important that sex is included in the 2021 act. I have said previously that I do not want there to be a gap with respect to women and girls. The model followed in the 2021 act is a proven model for providing legal protections for other characteristics, such as age, religion, sexual orientation, disability and so on, and, in my view, it is imperative that sex is included in those protections. The advantage of the 2021 act is that it offers a proven model for providing legal protections.
Will the regulations be the last step, legislatively or non-legislatively? I expect not. That will be an issue for the next session of Parliament.
Hate crime legislation is effective in responding to overt behaviour, by which I mean behaviour that is evidently based on prejudice. Particular evidence of that requires to be provided. However, I have considerable sympathy for the comments and views that have been expressed in relation to, for example, misogynistic harassment. Work on that has been done by many organisations, as well as by Baroness Kennedy, and I do not think that that will be lost, whatever steps Parliament decides to take in the next session. Is there an argument for further steps being taken to tackle that more nuanced behaviour? I think that there is.
I have an open mind with regard to the future, but I strongly refute the view that the approach that we are taking in the regulations is a poor second. It is a necessary step. We all need to have humility when we look at the scale of misogynistic behaviour, harassment, violence and sexual crime against women and girls. We would be doing women and girls a disservice if we ever pretended that one measure was the silver bullet. I would never be prepared to do that.
::You say that it is important that sex is included in the 2021 act and that it offers a proven model, but that is not how the Government felt in 2020, when it persuaded Parliament that we needed a stand-alone misogyny act.
I well recall, during the passage of the Hate Crime and Public Order (Scotland) Bill, joining colleagues from across the parties in saying that we did not believe that the Government would introduce the promised misogyny bill, and it seems that we were right. Given that Baroness Kennedy reported in 2022, the consultation was launched in 2023 and the decision in the For Women Scotland case was made this time last year, what work has the Government done on a stand-alone bill since it promised the Parliament in 2021 to introduce such a bill so that, following its abandonment of its promise in May 2025, a new Government could pick up the issue and get something in place very quickly? Can the cabinet secretary reassure colleagues that this is not the end of the process? What is she doing to ensure that a new Government can pick up the issue and get something in place?
::I respect the views that have been articulated. Some members in the Parliament, including some who are sitting around this table, argued for a misogyny bill and for sex to be included in what became the 2021 act at the time. The Government most certainly was pursuing a misogyny bill in line with Baroness Kennedy’s recommendations. Indeed, a draft bill was published, so significant work has been done on a stand-alone misogyny bill.
However, it is a complex area of policy and law, and I do not imagine for a minute that anyone who has sat around this table for a considerable time would argue otherwise. Any bill relating to criminal law must be clear and unambiguous. For good reasons, members around this table have always pursued that goal.
There are policy implications following the Supreme Court judgment, so further work needs to be done. There was insufficient time to complete the next stage of that work prior to a bill being introduced and going through three stages of the legislative process in this parliamentary session.
I do not think that it is credible to say that a stand-alone misogyny bill is anything other than a complex policy area. It would certainly take our criminal law into an area that it has not been in before.
::I certainly recognise that it is a complex area, but I have argued that the Government prioritises what it chooses to prioritise and makes time for what it thinks it should do.
On the point about delay, events will not become aggravators until after 5 April 2027, which is more than a year away. On 24 September last year, the cabinet secretary said to the committee:
“I am not having a gap in the law for women.”—[Official Report, Criminal Justice Committee, 24 September 2025; c 33.]
However, it has been acknowledged that there is a gap, which is why we are considering the SSI today.
We know that what is proposed is a different concept from what Baroness Kennedy envisaged—the cabinet secretary has acknowledged that the SSI will not go the whole way in addressing what Baroness Kennedy has said—so it will not fill the gap. That gap will now remain for more than a year. Given that the 2021 act has now been in place for several years, what on earth is delaying the protection of women and girls for another 14 months?
::I understand the question that Mr Kerr has raised—it is a more than legitimate one. My previous commitment was to ensure that we do not have a gap in the law. As members around this table will well understand, more often than not, there is a commencement period to allow for the preparation and implementation of a law. I wanted to take the opportunity to introduce the SSI under the super-affirmative procedure. It is not a simple, straightforward process. It is not overly complex, but it has particular requirements that demand more attention and time than an affirmative or negative procedure. We will address the gap in the law.
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The commencement of the regulations will be on 5 April next year. Via officials, I discussed the matter closely with Police Scotland and the strong advice that the police gave me was that they need adequate time to train their officers in identifying offences and applying the law in the light of the change. I point out that, although the Hate Crime and Public Order (Scotland) Act 2021 was passed in 2021, it was not commenced until 2024, so I have explored and tested the matter with Police Scotland. It has been clear in its assessment and view that an achievable timescale for training its police officers supports a commencement date of 5 April next year.
::I will pick up on the points that you set out with regard to the time that Police Scotland will require to put training in place and develop guidance and policy. I know from experience that responding to hate crime as an operational officer is not necessarily straightforward. It can sometimes be difficult to distinguish between a hate crime and an ordinary criminal act, if there is such a thing. Investigations can also be complex and often merit a partnership response.
Will the cabinet secretary set out a little bit more about plans for training not just for police officers and staff, but for individuals who work in the wider stakeholder space who might have a role in a whole-system response to a hate crime being perpetrated, particularly—assuming that the SSI is agreed to—where the characteristic of sex is appropriate?
::That is an interesting point that speaks to the comprehensive approach that is required to the implementation of, and preparation for the commencement of, the legislation if it is agreed to. It is important to point out that Police Scotland is a partner in the hate crime strategic partnership group, which provides an opportunity for engagement with other partners to explore the issues that you have identified.
::I am interested in the partnership group. Tell us a bit more about its membership, aims and objectives.
::The partnership group has been established for a considerable time. I cannot recall the date of its establishment, but I suspect that it predates my time as Cabinet Secretary for Justice and Home Affairs. It involves a range of stakeholders with whom the Minister for Victims and Community Safety regularly engages. The group helped to drive forward the hate crime strategy delivery plan, which is broader but nonetheless an important underpinning to our legislative approach. If it is not going to be too late for the committee, and unless Patrick Down can recall the membership off the top of his head, I would be happy to supply more information about the group.
I am not a member of the group and would not like to give a definitive list of exactly who is involved, but it includes prosecutors, Police Scotland and various groups supporting victims of hate crime. We could come back to the committee about that in writing if it would be helpful.
::I would certainly be interested in receiving that information so that we can understand a little more about what the group’s role might be, particularly in the context of what we are discussing today. I appreciate the offer.
::Cabinet secretary, if the instrument passes, it might create a situation in which there are different definitions of sex in different parts of the Hate Crime and Public Order (Scotland) Act 2021 due to the use of the terms “sex” and “biological sex”. Do you agree?
::No, I do not agree. The definition of sex that has been used relates to section 12 of the 2021 act, which means that we are enabled to give a definition of sex only for the purpose of the characteristic of sex, which is quite focused.
I certainly hope that members will agree that the documentation makes it clear that sex is defined as biological sex, which is equivalent to sex at birth. That is the definition of the characteristic of sex that is used for the purposes of the act.
::When you gave evidence last year, you were clear that you were relatively restricted in the framing of any subordinate legislation that you introduced, because of the crafting of the original legislation. Did you look at whether it might be possible to use the same terminology on sex throughout the legislation, perhaps not by using the section 12 power but in relation to other consequential powers within it? Is that something that you explored? You will have seen the representations on the issue that a range of organisations have made to the committee and, I am sure, to the Scottish Government. There is a view that the use of different terminology in different parts of the act could mean that there will be different interpretations. Did you explore whether it might be possible to get a consistent definition by using either section 12 or another part of the act?
::That was explored. I may come back in but will ask Jasmin Hepburn to begin by going over the technicalities. The question touches on the commentary around interpretive provisions.
When we were considering which power to use in order to add sex as a characteristic, we looked first at section 12 of the act. As you rightly say, there are other provisions, including an ancillary provision in section 17. We looked at both and came to the view that the power in section 12 was the appropriate one to use. As the cabinet secretary said, that is limited to amending only the characteristic of sex and the associated interpretive provision at section 11, so we were confined to that.
::Does the Scottish Government have a view on how “sex” should be interpreted in relation to sexual orientation? Would having the provision on sex in the SSI interpreted as referring to biological sex mean that the interpretation of “sex” that is used elsewhere in the 2021 act would become uncertain? Is the Scottish Government saying that “sex”—whether described as “biological sex” or simply “sex” throughout the 2021 act—is to be defined in accordance with the Supreme Court judgment as meaning biological sex?
::It is worth emphasising that our work stems from section 12 of the act, and that the definition for the purposes of the instrument is specific to the characteristic of sex.
If I have understood you correctly, you are asking about the interpretive provision concerning sexual orientation and any interplay there. The Government’s view is that that would not have a significant practical effect on the operation of the act. If someone is targeted for being gay, bisexual or heterosexual, the sexual orientation aggravation or stirring up hatred offence will be available, regardless of whether they define their sexual preferences by reference to birth sex or lived-in gender. If someone is targeted not because of their sexual orientation but because they are, let us say, in a relationship with a trans person, that could be covered by the transgender characteristic, as they would be targeted because of their association with a characteristic.
Jasmin, do you want to add anything?
Only to say that the enabling power is very limited, so adding the characteristic of sex is for that characteristic only. It does not read across in that way, as the cabinet secretary said. The SSI amends a particular characteristic, and that is as far as the power goes.
::You will have seen the representations that have been made, and you will be very aware of all the arguments. Is it the Scottish Government’s view that the term “sex” in the act will always be interpreted as “biological sex”, in accordance with the Supreme Court judgment?
::For the purposes of the act, where hate crime is targeted at people on the basis of their sex, yes.
::Thank you.
::Good morning. This is quite complex, to be fair. I think that you said to Katy Clark that, in the section that the SSI refers to relating to characteristics, the Government has decided to define sex as biological sex. Does that mean that sex is not defined in that way elsewhere in the act? Is it fair to say that it is defined for the purposes of section 12, but it is not defined elsewhere? It is just left without being defined. Is that right? That must be the case.
Sorry, but could you repeat your question?
::I am sorry. I am not saying that I understood this. I think that you said to Katy Clark that you have used section 12 to alter the section on characteristics only, as you want to add the characteristic of sex, and that, for that section only, you are defining it as biological sex.
That is correct.
::You are not defining it elsewhere in the act; it is just left undefined. Is that fair?
That is correct.
::Right. So we cannot conclude anything from that as to what is meant by the rest of the act—it is only that bit. Is that fair?
That is correct.
::That is important, because of the representations that we have had, which Katy Clark referred to, from For Women Scotland and Scottish Trans, who have concerns. On a technicality, the rest of the act does not define sex. I think that Jasmin said that it does not define it.
::Before I go back to Jasmin—
::It does not define it. Do not confuse me now.
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::Let me try to explain this in my layperson’s terms. I think of the Hate Crime and Public Order (Scotland) Act 2021 in chapters. It addresses all the characteristics, and we do not want sex to be the only characteristic that is not in the act. That is my view.
The only area in which there was discussion of sex was with regard to sexual orientation. Section 12 is quite limiting in that it is clear that we can define sex only for the purpose of placing the characteristic of sex.
We have received correspondence from the Equality Network and Scottish Trans, which raised concerns directly with ministers and officials, and we have responded. It is fair to say that we have a respectful difference of opinion on various aspects of the legislation.
It is hard to envisage circumstances in which the Scottish Government’s consideration of the meaning of sex in the interpretative provision that concerns sexual orientation, as it stands, would make a practical difference as to whether an offence was aggravated or whether an offence of stirring up hatred on grounds of sexual orientation has been committed.
There was commentary about the issue during stage 2 of the Hate Crime and Public Order (Scotland) Bill when amendments were lodged that sought to alter the definition of sexual orientation. It was explained that the reference to
“persons of a different sex”
in the bill instead of the “opposite sex” was intended to ensure that the definition is more inclusive, particularly for non-binary persons. As such, the definition is intended to cover attraction that is based on birth sex, gender identity or both.
Again, to put it in laypeople’s terms—Jasmin Hepburn or Patrick Down can correct me if I am wrong—the Hate Crime and Public Order (Scotland) Act 2021 is, for want of a better word, siloed into what I consider to be different chapters, protections and characteristics.
::All I was asking was a simple question, but thank you for the explanation. You have defined sex for the purposes of the characteristic but, for everything else—as far as the act is concerned, and for the reasons that you have outlined—you have not defined it. That is all that I wanted to know.
It has been defined for the characteristic of sex.
::Thank you.
I want to address the issue that Liam Kerr mentioned. You said—and, just for the record, you were not the Cabinet Secretary for Justice and Home Affairs at the time of the Hate Crime and Public Order (Scotland) Bill’s passage—that those of us who supported the addition of sex to the bill did so in order to fill a gap. However, that was not the primary argument for doing so. We did so because of the same argument that the Government is putting today, which is that there should be a stand-alone crime.
In your answer to Liam Kerr’s question, you said something about the Supreme Court judgment. Did you mean that it is the Supreme Court judgment that is holding up the work to create a stand-alone offence?
::No. In my time as the Cabinet Secretary for Justice and Home Affairs, considerable work has been done on a misogyny bill. There was a consultation and a draft bill was produced. The only point I sought to make is that further policy work would have been required in light of the Supreme Court judgment.
A stand-alone misogyny bill would involve a complex area. There were issues that the working group that was led by Baroness Kennedy did not address, which relate to if and how the offence of misogyny would apply to trans women and trans men. That is not a criticism in any shape or form of Baroness Kennedy’s work; I am simply making the point that further work following the Supreme Court judgment would have been required to make progress on the bill, but there was insufficient time to do that work and get the bill through the Parliament.
::Given that you have adopted biological sex for the purposes of that section in the Hate Crime and Public Order (Scotland) Act 2021, could you not just have adopted the same definition for the purposes of a stand-alone misogyny crime?
::That would still require significant work to be undertaken. Without rehearsing all the arguments that have played out in the chamber, significant work has been undertaken in a number of policy areas. Some of that work has been concluded and some of it is on-going. I do not think that it is simple or straightforward. In fact, I am convinced that it is not as simple or straightforward as the member suggests.
Do you have anything to add, Patrick?
I simply make the general point that what we are doing here is adding the characteristic of sex. There is already separate provision for the characteristics of transgender identity and variations in sex characteristics. That would not be the case with an entirely new misogyny offence, so a more consequential policy decision would need to be made about how, when and whether it should apply when a victim is or is perceived by a perpetrator to be a trans man, a trans woman or non-binary. That is not to say that the Supreme Court’s definition of a woman is based on biological sex could not be adopted, but that would be a more consequential decision than is required here, where there is already separate protection.
::There is a great deal of disappointment and Engender did not spare the Government, to be fair. The work that Helena Kennedy did is important and there is agreement across the board that we do not want an asymmetrical crime, because of the whole nature of misogyny. Most groups wanted the stand-alone crime. In its written submission, Engender notes that the United Nations Convention on the Elimination of All Forms of Discrimination Against Women—CEDAW—and the Istanbul convention talk about the asymmetry
“between men and women’s experience of gender-based violence”
and the fact that the conventions
“require approaches to reflect the deep inequality, structural injustice and power imbalances”.
It is therefore disappointing that we are not going to see a stand-alone offence by the end of this parliamentary session.
Engender also points out that, in the Government’s consultation, more than half of the consultees did not accept that the SSI that we are looking at today is in any way an answer. I agree with Liam Kerr: I do not think the Government should give the impression that, somehow, it has achieved 25 or 30 per cent of what Helena Kennedy recommended. It has filled the gap, and I will support the Government in doing so, as I would have done in 2021. However, it is disappointing that progress has not been made on the stand-alone crime, given that everyone accepts that that approach is the right one, rather than just including misogyny as a characteristic of hate crime legislation.
::I understand and appreciate the disappointment that has been expressed by Engender and others. I can assure you that a misogyny bill was certainly on my agenda.
Where I disagree is that I do not think the action that we are taking today is contrary to the equally safe approach or that it conflicts with CEDAW. It is entirely correct that policy should reflect the gendered nature of violence. We have to recognise that the 2021 act covers aggravation in crimes where it can be proved that the accused was motivated by or demonstrated malice or ill will to the characteristic that is covered by the act.
We all know that domestic abuse and sexual offending are mainly committed by men towards women. I have always defended that analysis and the approach of looking at the issue through a gendered lens. That is reflected in, for example, the allocation of resources to supporting victims and awareness-raising work. However, in the criminal law, the domestic abuse offence applies to females as well as males, although the vast majority of perpetrators are men.
My final point is that we can take more than one approach to the issue. I deeply respect and understand the fact that people are disappointed that we are not pursuing a misogyny bill, but we can take more than one approach. I think that the action that we are proposing to take is crucially important, and I hope that the committee will support the regulations, but I would never present it as our final resting place.
::Rona Mackay is next, followed by Jamie Hepburn, and then we will have to move on.
::Good morning. I fully support the instrument that we are discussing today, but I am concerned that the transgender community feels less protected by the inclusion of the definition of “biological sex”. I realise that we have been discussing the instrument for the past half hour, but, for the record, can you reassure members of the transgender community that they will still be protected and that the provision in the 2021 act is not being watered down? Is there a differentiation in that regard between people with a gender recognition certificate and people who do not have one?
::My responsibility as justice secretary is to uphold everybody’s rights in accordance with all our laws and expectations as a country. The 2021 act makes specific provision for variations of sex and transgender identity. It protects a range of people on the basis of age, race, religion, disability, transgender identity and sexual orientation. In my view, what we are doing in the regulations is proposing to fill a gap in our hate crime framework.
::I completely understand that. I simply want to reassure members of the transgender community that their rights will be just as strong as they were before once the definition of “biological sex” is added.
::It is my strong view that I am not proposing any action that will reduce the rights of others.
::Thank you.
::I would just like to clarify that what I understand to be the case is, in fact, the case. This picks up on some of the concerns that have been expressed to us, in relation to which Rona Mackay sought reassurance.
I think that I am correct in understanding that the aggravator relates to the motivation rather than the victim’s protected characteristics per se, although I recognise that, in almost every case, there will probably be a correlation between the two. In your letter to the committee, you cite the example of a crime that has been committed against a member of the Sikh religion, but the crime was motivated by Islamophobia. Are you able to confirm that it is what has motivated the individual, rather than the characteristic of the victim per se, that the aggravation depends on? There will almost always be a correlation between the two, but that will not necessarily be the case.
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::It is about the perpetrator’s perception. If a perpetrator commits an offence against an individual on the basis that they perceive them to be of the Muslim faith but, actually, the victim is not, that is irrelevant. It is about the offender’s perception or belief. It is important to stress the fact that, to achieve clarity in the law around hate crime—we need clarity in the law—we tried to limit overlap in our framing of that. The debate was well aired during the passage of the Hate Crime and Public Order (Scotland) Bill, and, when the act was implemented in April 2024, we had to make particular efforts to make the point that it is about the perception of the offender.
::On a related point, could there be more than one aggravating factor from across a range of protected characteristics?
::Yes.
::That is helpful.
::Our next item of business is consideration of the motion to approve the affirmative SSI on which we have just taken oral evidence. I remind officials—not that I need to—that only MSPs may speak in a debate on a motion.
Motion moved,
That the Criminal Justice Committee recommends that the Hate Crime and Public Order (Scotland) Act 2021 (Characteristic of Sex) (Amendment and Transitional Provisions) Regulations 2026 [draft] be approved.—[Angela Constance]
::Do members have any points that they wish to make?
::Yes, please. Cabinet secretary, you mentioned in response to Pauline McNeill that there is a misogyny bill in draft. In order that the next Government can pick up and run with it, is there value in that being published or released in some way, so that stakeholders can comment on it?
Since we are in the debate section of our consideration, the only comment that I have to make is my extreme disappointment that we are at this point, years after women and girls were promised full protection. I recall the powerful and good work done by the likes of Jenny Marra and Johann Lamont—whom the cabinet secretary will remember—in the previous parliamentary session to try to get proper protection for women and girls. Instead, what we have with this SSI is reduced protection, and it is delayed. I am not happy that Baroness Kennedy’s report was published as long ago as 2022, because it is clear that the Government has failed to do the work that would have been required in the interim to get us to a position in which women and girls have full protection. However, I appreciate that what is being proposed might go some of the way, so, for that reason, I will support the SSI.
I think that the cabinet secretary wants to intervene.
::Thank you, Mr Kerr. I just want to note that substantial work has been undertaken on a misogyny bill. A draft bill was published and, indeed, consulted on, and all that information is available. Substantial work has been done, but further work is required.
::Right. I accept that. I wonder whether information on the further work that has been undertaken since the consultation closed, which presumably has been on-going for the past year or so, might be released.
This is my final point, convener. What we have here in the SSI goes some of the way, so I will support it. What I, certainly, and perhaps my committee colleagues would be keen to see is the new Government, however it is constituted, picking up and running with this issue. I make that point in the strongest possible terms on my own behalf—I do not speak for anyone else—because the Government has failed to protect women and girls. I know that the cabinet secretary will do all that she can to protect them and I hope that she will do whatever she can to help the next Government to take that forward.
::As I said in my questions, I will support the Government’s SSI because I have always believed that there is a gap that should have been filled in 2021. We would prefer to see a stand-alone crime for reasons that are eloquently set out by Engender about the nature of misogyny.
The wonderful work that has been done must be recognised. I recognise that the Government and Helena Kennedy have done a lot of work on the matter.
If I am honest, the Government should have been presented in the first place with the point that most women probably want a crime that is based on biological sex. That is not to say that there are not people with other characteristics who should have equal protection in law but the nature of misogyny necessitates it. I am sorry to say that that is probably what has held up the misogyny bill. However, that is for a future Parliament to decide and I wanted to acknowledge the work that had been done by everyone on the matter in the hope that the Parliament will take it on in the next session.
::It seems that everyone supports the SSI so I will not labour the point and take up too much time.
It strikes me that we should not overcomplicate the process. The SSI looks to be an eminently sensible measure. The 2021 act always left open the possibility that an SSI of this nature could be introduced. We recognise that, if we could go back, we might have done it differently and included misogyny in primary legislation at that time but we did not. The Parliament should now ensure that we fill that gap. I am satisfied that adding the category of sex does not restrict or impede charging or, ultimately, prosecuting an individual. It does not disadvantage any other group specified so far.
I hear the disappointment that colleagues express about the misogyny bill not having been introduced. They are perfectly entitled to be disappointed about that and I understand why there is disappointment but that does not strike me as an argument against agreeing to the SSI. We should agree to the motion.
::I share members’ disappointment that the misogyny bill has not been introduced, given the extent to which the work of Baroness Helena Kennedy and the working group was applauded and supported. I note that the Kennedy report says that the idea
“of creating a … stand-alone offence based on misogyny … was finding favour with many women in Scotland and elsewhere, because hate crime legislation is principally designed to protect minorities, and women are not a minority.”
The report goes on to acknowledge the extent of the work that has already been done in Scotland, particularly on tackling crimes of rape, sexual offences and domestic abuse. However, it goes on to say that
“many potentially protective laws are hidden away in myriad pieces of legislation and some behaviours are so normalised that”
the current law can fail to act.
For the record, I am supportive of any work that can be done to ensure that the misogyny bill as previously drafted can be brought back in the next session of the Parliament.
The cabinet secretary has already moved her motion, so the question is, that motion S6M-20601 be agreed to.
Motion agreed to,
That the Criminal Justice Committee recommends that the Hate Crime and Public Order (Scotland) Act 2021 (Characteristic of Sex) (Amendment and Transitional Provisions) Regulations 2026 [draft] be approved.
::Are members content to delegate to me and the clerks responsibility for producing and approving a short factual report to the Parliament on the affirmative instrument?
Members indicated agreement.
::Thank you; that report will be published shortly.
We will have a short suspension and comfort break before we move on to our next item of business.
10:54
Meeting suspended.
11:02
On resuming—
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