SSI to add "sex" as a characteristic to the Hate Crime and Public Order (Scotland) Act 2021

Regulations 2(2) and 2(3) of the instrument add the characteristic of ‘sex’ to the list of characteristics to which the statutory aggravation of offences by prejudice at section 1 of the 2021 Act and the offence of ‘stirring up hatred’ at section 4 of the 2021 Act apply.

This reflects the Scottish Ministers’ commitment to ensure that women and girls have the same protections in respect of hate crimes relating to their sex as other characteristics covered by the Act.

Section 9 of the 2021 Act makes provision to protect the right to freedom of expression in relation to the offence of stirring up of hatred.  It ensures, for the avoidance of doubt, that behaviour is not to be taken to be threatening or abusive solely on the basis that it involves or includes discussion or criticism of matters relating to age, disability, sexual orientation, transgender identity or variations in sex characteristics.

The intention behind section 9 was to address concerns that expressing views on a particular matter could trigger the stirring up hatred offence. For example, that organisations should not be required to make adaptations for disabled access, or that restrictions should be placed on people because of their age could otherwise be taken to be threatening or abusive in and of itself (without having to be expressed in a threatening or abusive manner) and therefore someone expressing such views could be seen as stirring up hatred.

Regulations 2(4) of the SSI extends this provision to the characteristic of sex. 

It is considered that the value of the freedom of expression protection is the same in relation to the characteristic of sex as with other characteristics. This ensures that, as is the case with the other characteristics listed at section 9 of the 2021 Act, in order for the offence to be committed, the accused’s communication or behaviour must be threatening or abusive and intended to stir up hatred. 

Section 11 of the 2021 Act contains interpretive provision relating to the characteristics covered by the Act. Regulations 2(5) of the SSI makes provision relating to the meaning of the characteristic of sex for the purposes of that Act.

It defines sex for the purpose of this SSI as meaning biological sex (so a group defined by reference to their sex is a group defined by reference to their biological sex being either female or male), and “biological sex” means one’s sex at birth.

More information on the interpretative provision can be found in the draft SSI Policy Note.

This reflects the fact that there is separate provision in the Act for the characteristic of transgender identity which covers the stirring up of hatred against people with a transgender identity, and offences motivated by hostility concerning transgender identity.

It should be noted that, for the purpose of the statutory aggravation of offences by prejudice, where an offence is committed against an identifiable victim or victims, it is the perpetrator’s perception as to the victim’s identity rather than their actual identity which is relevant. As such, where, for example, any victim, regardless of their actual identity, is assumed by the perpetrator to be a of a certain sex  and commits an offence against them because of malice or ill-will relating to (the perpetrator’s assumption regarding) their sex, the offence would be aggravated by prejudice relating to their presumed sex.

Sections 14 and 15 of the Act require reports on convictions under the 2021 Act (insofar as reasonably practicable) and police recording of crimes under the 2021 Act to provide additional statistical information about the characteristics in respect of which an offence is aggravated, or an offence of stirring up hatred is committed.

For example, where the characteristic is race, colour, nationality or ethnic or national origins, it requires information to be recorded about the particular race, colour, nationality or ethnic or national origins recorded as being targeted, and where the characteristic is sexual orientation, it requires information to be recorded as to whether the sexual orientation targeted is sexual orientation towards persons of the same sex, towards persons of a different sex, or towards both persons of the same sex and persons of a different sex.

The provision at regulations 2(6) and 2(7) of the SSI amends sections 14 and 15 so as to introduce a requirement that, where the characteristic is sex, information must be provided about whether the sex being targeted is female or male.  This is in line with the kind of information that the 2021 Act requires to be collected for the other characteristics that it covers and will ensure that information is available about the extent to which stirring up hatred offences and the aggravation of offences by prejudice relate to behaviour concerning women and girls, or men and boys.

We will publish impact assessments on the impact of the SSI prior to the final version being laid in Parliament. The aim of these assessments is to identify issues that may affect some groups more than others and to consider how we will address these issues.

In addition, we need to ensure that any reforms to the criminal law comply with the European Convention on Human Rights.

The questions on the potential impacts of the proposals are broken down in line with the formal assessments carried out by the Scottish Government, which are:

• Compliance with ECHR
• Equality Impact Assessment
• Child Rights and Wellbeing Impact Assessment
• Fairer Scotland Duty Assessment
• Business and Regulatory Impact Assessment

We consider that the SSI is unlikely to raise any new issues not already addressed in the Impact Assessment process which accompanied development of what became the 2021 Act in the following areas:

• Islands Community Impact Assessment
• Data Protection Impact Assessment
• Strategic Environmental Assessment

The Human Rights Act 1998 incorporated the European Convention on Human Rights (ECHR) into UK law. It means that public authorities, such as the Scottish Government, must not act in a way that is incompatible with the rights set out on the ECHR. It is therefore vital that we consider how the proposals will impact on human rights.

The Public Sector Equality Duty requires the Scottish Government and other public bodies when they are exercising their functions to have due regard to the need to:

• eliminate unlawful discrimination, harassment, victimisation and other conduct prohibited by the Equality Act 2010
• advance equality of opportunity between people who share a relevant protected characteristic and those who do not
• foster good relations between people who share a relevant protected characteristic and people who do not share it.

For the purposes of the Public Sector Equality Duty, a ‘relevant protected characteristic’ means age, disability, gender reassignment, pregnancy and maternity, race, religion or belief, sex and sexual orientation.

The Equality Act 2010 sets out nine protected characteristics: age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex; and sexual orientation. The Public Sector Equality Duty includes a requirement for the Scottish Government and other public bodies to have due regard to the need to eliminate unlawful discrimination, harassment, victimisation and other conduct prohibited by the Equality Act 2010.

The UN Convention on the Rights of the Child (UNCRC) is an international treaty which sets out the fundamental human rights of all children. Part 1 of the Children and Young People (Scotland) Act 2014 places a duty on the Scottish Ministers to (a) keep under consideration whether there are any steps which they could take which would or might secure better or further effect in Scotland of the UNCRC requirements and (b) If they consider it is appropriate to do so, take any of the steps identified by that consideration.

All new legislation and policy that is developed by the Scottish Government must consider the impacts on the rights and wellbeing of children up to the age of 18.

A Business and Regulatory Impact Assessment (BRIA) is used to analyse the costs and benefits to businesses and the third sector of any proposed legislation or regulation, and to assess the financial implications of a policy more generally, with the goal of using evidence to identify the proposal that best achieves policy objectives while minimising costs and burdens as much as possible. 

It does not appear to us that the addition of the characteristic of sex to the 2021 Act raises new issues relating to the Fairer Scotland Duty, Island Communities, Data Protection and Privacy, Business or the Environment that were not considered as part of the impact assessment process prior to the introduction in Parliament of the Hate Crime and Public Order (Scotland) Bill. However, we would welcome your views on any issues specific to the addition of the characteristic of sex to the 2021 Act which may be relevant to these impact assessments.