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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.

:I will start, but I might ask Kristy Adams to come in.

The raison d’être of taking a UK-wide approach is based on recognition of the cross-border nature of some child criminal exploitation. We are all familiar with the fact that those who traffic people also operate on a cross-border basis.

Child criminal exploitation prevention orders vary in what they can do. An adult can be prohibited from doing anything that is described in the order, and it requires the adult to follow the restrictions that are imposed on them. The order must be in place for a defined period—a minimum of two years—or until a further order is granted.

The chief constable of Police Scotland will be able to apply for child criminal exploitation prevention orders. It is also worth noting that prosecutors can make an application for an order for an adult who has been convicted of any offence—it does not necessarily need to be a child criminal exploitation offence—or who has been acquitted through a special defence, has been found unfit for trial or has had successful appeals against their conviction.

There is potential for overlap, particularly in relation to human trafficking, but I do not think that that has been perceived as being particularly problematic. Such orders are another tool in the box, but I will check with Kristy Adams in case there are other relevant nuances.

: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 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 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.

10:15

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.

:In November, I attended the committee to speak to the draft Management of Offenders (Scotland) Act 2019 and the Prisoners (Early Release) (Scotland) Act 2025 (Consequential Modifications) Regulations 2026, which was the first of two instruments relating to the early removal of foreign national offenders.

That instrument, which was approved by the Parliament on 17 December 2025, brought the point in a sentence from which the early removal period is calculated back into line with the automatic early release point for short-term prisoners, as amended by the Prisoners (Early Release) (Scotland) Act 2025. It also amended the existing order-making power enabling the Scottish ministers, by order, to change the proportion of a sentence that must be served before a prisoner can be removed from prison for the purposes of removal from the United Kingdom.

The purpose of the instrument that you are considering today is to facilitate the early removal from prison of individuals who are liable to removal from the United Kingdom or who have the settled intention of residing permanently outside the United Kingdom.

The instrument, utilising the recently amended order-making power, aligns the provisions with recent changes that have been approved by the Parliament to home detention curfew. Specifically, it provides that the minimum sentence required to be served, before removal is possible, is 15 per cent of the sentence, rather than one quarter. It also increases, from 180 to 210, the number of days, working backwards from the point of automatic release, within which the individual can be removed from prison. These changes will provide a longer and earlier timeframe for removal from prison for the purpose of removal from the country. As the committee will be aware, home detention curfew is not available to prisoners who are liable for removal from the United Kingdom.

I hope that the committee is content to approve the instrument, which helps to provide greater consistency in the management of short-term custodial sentences and may help, albeit in a limited way, to mitigate the high prison population.

:I do not know that I would describe it as a veto. I do have something in my papers about governors’ responsibilities, if you will bear with me, convener. It reads:

“Prison governors in Scotland have the final say on whether a foreign national offender will be removed during their early removal window and must authorise all removals under the scheme.”

That is crystal clear.

: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.

: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.

: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.