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: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?

:Yes.

: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.

:Thank you, convener. I welcome the opportunity to discuss the supplementary legislative consent memorandum that was lodged in December in relation to the additional proposals in the UK Government’s Crime and Policing Bill that require the consent of the Scottish Parliament.

I appeared at committee in October 2025 to give evidence on the LCMs that were lodged in May, June and August 2025. Following that, the Criminal Justice Committee recommended to the Parliament that consent be given for the provisions that were covered by those LCMs. At committee, I set out that further LCMs were anticipated. Since then, we have lodged a third supplementary LCM, on 19 December, covering offensive weapons, child criminal exploitation prevention orders, online child sexual abuse and pornographic images. A fourth supplementary LCM is anticipated covering the remote sale or letting of knives and the application of the definition of “law enforcement employer”.

I have recently addressed the questions that were raised by the Delegated Powers and Law Reform Committee in relation to some of the clauses that confer powers on UK ministers that may be exercised within devolved competence. We have taken a pragmatic approach to the issue wherever necessary and hope to see that reflected in the committee’s report. Where there are benefits to Scotland, the Scottish Government is happy to recommend support for legislative consent to the relevant provisions in the bill.

The bill covers a range of important topics, and I would like to draw the committee’s attention to some of the provisions.

For offensive weapons, changes extend to Scotland that are being made on a UK-wide basis. They relate to penalties that are available for certain offences. That includes increasing the maximum penalty that can be imposed on retailers who sell relevant items to people under the age of 18, or under the age of 16 if domestic knives are being sold. I hope that the committee will support that step. Ensuring that a robust approach is available to take against retailers who flout the law is important in helping to keep our communities safe.

There are also provisions that require remote sellers of knives to report bulk sales to the police. Again, that is for all nations in the UK, and it is a sensible preventative measure to help to keep communities safe.

The bill provides a new UK-wide offence to disrupt adults who criminally exploit children, supporting a UK-wide approach to disrupting child criminal exploitation. The offence was included in the second supplementary LCM, and there is an additional clause that provides further clarity around activity that needs to be proved to establish guilt for the offence. That was omitted from the LCM in error, and it has been included in the third supplementary LCM to rectify the omission.

As well as the new offence, the bill provides new child criminal exploitation prevention orders. Those civil orders are intended to protect children from being criminally exploited by adult perpetrators, and to prevent the adult from future offending.

There are several measures in the bill that are designed to better protect children from the spread of child sexual abuse material online. First, the bill creates a new offence that criminalises the possession, adaptation and distribution of artificial intelligence tools that are used to generate child sexual abuse material. Last month, the Internet Watch Foundation reported that last year was the worst on record for online child sexual abuse material. By extending that measure to Scotland, our priority is clear. We are committed to protecting children and preventing offenders from using AI to create that serious form of abuse.

Secondly, the bill introduces an offence covering the possession of advice or guidance—so-called paedophile manuals—that teach people how to create child sexual abuse material. That has two key purposes. It mirrors the offence that is already in place in England and Wales, and it updates the law so that those instructions also cover AI-generated material. That ensures that our legal framework keeps pace as offenders change their methods.

Finally, the bill introduces a technology-testing defence for designated bodies, such as AI developers and child safety charities. That allows them to safety test AI models to ensure that they cannot be used to generate child sexual abuse material, extreme pornography or non-consensual intimate images. That approach helps to ensure that products are safer before they reach the public, and to address risks proactively.

My final point on the online child sexual abuse and exploitation provisions is that stakeholders, including the national strategic group on child sexual abuse and exploitation, have shown strong interest in those measures, underlining the importance of extending them to Scotland. The national strategic group recognises the serious harm that children face online and the complexity of preventing it. That is also recognised by the Scottish Government.

Later today, the Cabinet Secretary for Education and Skills will make a statement on our progress in protecting children and young people, which will also reflect our work on online safety. Those provisions represent an important step in ensuring that our criminal law keeps pace with evolving online threats.

I am aware of concerns that have been expressed in the Parliament about non-fatal strangulation and the normalisation of strangulation in sexual behaviour. Last year, the UK Government’s independent review of pornography, which was chaired by Baroness Bertin, highlighted the role of pornography depicting strangulation, which is widely available on the internet, in driving the normalisation of that behaviour. The bill seeks to address that by implementing the review’s recommendation to criminalise the possession or publication of pornographic images featuring strangulation or suffocation. The offence will apply across the whole of the UK.

The measures that I have outlined align with Scotland’s policy priorities, and the legislative consent of the Scottish Parliament is essential if those measures are to take effect in Scotland. As I mentioned, we anticipate a further supplementary LCM.

I hope that that brief overview was helpful. As always, I am happy to answer questions.

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.

: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.

:I can give assurances on that process. The Scottish Prison Service works very closely with immigration enforcement with regard to exchange of information or a handover. I have some reticence about speaking about UK immigration enforcement, because it is not within our devolved responsibility, but I understand the motivation for asking the question.

Also, by way of context, the committee might recall that the numbers of foreign nationals that are currently returned are very small. Part of the motivation for this instrument is to increase that number. The figures show that, in the most recent year that the data was recorded, 17 individuals were returned.

11:30

We are quite beholden to support from the UK Government in this area. In reply to a question from Mr Hepburn, I have previously spoken about the fact that only four immigration officers are deployed to work with the Scottish Prison Service and the Northern Ireland Prison Service. They are not connected to Grampian or Inverness, so there are gaps. Of the 77 immigration officers that the UK Government has to work with prisons, only four have been allocated to work with Scotland and Northern Ireland. However, authority over someone’s release rests with the prison governor, so the governor has to be satisfied that appropriate arrangements have been made for the departure of the individual.

:When we look at the low numbers of return, we see that the converse of that is true. Under the Sentencing Act 2026, the UK Government has the power to release foreign nationals, including long-term prisoners, at the very start of their sentence. If people were motivated in the way that Mr Kerr has suggested, I would suggest that our nearest neighbour, a much larger jurisdiction, would be a more attractive proposition in that regard. I am not convinced that that is currently a motivation in Scotland. The numbers that are being returned are small. In part, that is because our release scheme, as it stands—parts of it could only be changed by primary legislation—applies only to short-term prisoners, who are serving three months or more, but fewer than four years.

:I flag to the committee that there are exclusions from the early removal scheme that might be of interest and, I would contend, of importance. Those excluded from the scheme are: prisoners who are subject to notification requirements under part 2 of the Sexual Offences Act 2003; prisoners who are subject to an extended sentence under the Criminal Procedure Act (Scotland) 1995; those who are subject to a release order; a prisoner who is subject to a hospital direction under the Mental Health (Care and Treatment) (Scotland) Act 2003; and prisoners who are subject to a confiscation order being made under the Proceeds of Crime Act 2002.

Motion moved

That the Criminal Justice Committee recommends that the Early Removal of Prisoners from the United Kingdom (Amendment of Specified Time Periods) (Scotland) Order 2026 [draft] be approved.—[Angela Constance.]

Motion agreed to.

I am grateful for the opportunity to discuss the legislative consent memorandum on the amendments that have been tabled to the UK Government’s Sentencing Bill. I thank the committee and the Parliament for their co-operation in expediting the work so that the Parliament’s view can be expressed before the final stages of the bill’s progress in early January.

The UK Government introduced its Sentencing Bill on 2 September this year to take forward recommendations that were set out in the independent sentencing review led by the Rt Hon David Gauke, the report of which was published in October 2024. The bill intends to make significant changes to the sentencing framework and the management of offenders in the criminal justice system in England and Wales. That includes making changes to the sentencing for lower-level offences, release provisions for some prisoners, community order requirements and restrictions that are available for post-prison supervision. The areas of law that are covered by the bill are largely reserved, or the provisions extend to England and Wales only.

However, on 14 October this year, during the bill’s progress, the UK Government tabled amendments that seek to extend the sentencing and release arrangements that currently apply to individuals who have been sentenced for terrorism offences to individuals who have been sentenced for a national security offence. That means that all such prisoners will be considered for parole after serving two thirds of their sentence, rather than those who are serving short sentences being subject to automatic early release after serving 40 per cent or 50 per cent of their sentence, or those serving long sentences being first considered for parole halfway through their sentence, as would otherwise be the case. As a result, several consequential and technical amendments are required to ensure that those provisions can operate as intended in Scotland.

The Scottish Parliament’s legislative consent is required in relation to those amendments, as we consider that the changes that are being proposed will alter the executive competence of Scottish ministers in relation to their functions concerning the release of prisoners of that type. Operationally, both the Parole Board for Scotland and the Scottish Prison Service have confirmed that those changes will have little to no impact, as no individuals are held in Scottish prisons under a national security offence.

The legislative consent of the Scottish Parliament is essential to ensure that there is consistency between Scotland and the rest of the UK with regard to the sentencing for national security offences. Reflecting those changes in Scotland will also ensure that Scotland cannot be seen as a more attractive location for state threat actors compared with England and Wales.

I therefore urge the committee and the Parliament to support the LCM.