Cabinet Secretary for Justice & Home Affairs regarding adding sex to the Hate Crime and Public Order (Scotland) Act 2021: FOI release

Information requested

All written material sent to or from Angela Constance, Cabinet Secretary for Justice, and civil servants/officials relating to adding "sex" to the Hate Crime and Public Order (Scotland) Act 2021. This should cover the period from 01 September 2025 to the current date. [25 January 2026]

Response

I have enclosed copies of some of the information you requested.

While our aim is to provide information whenever possible, in this instance we are unable to provide some of the information you have requested because exemptions under sections:

• s.29(1)(a) Formulation or development of Scottish Government policy;
• s.30(b)(i) Free and frank provision of advice;
• s.30(b)(ii) Free and frank exchange of views;
• s.30(c) Otherwise prejudice effective conduct of public affairs;
• s.36(1) Confidentiality in legal proceedings (covers legal advice); and
• s.38(1)(b) Personal data relating to third party)

of FOISA applies to that information.

Exemptions s.29(1)(a), s.30(b)(i), s.30(b)(ii), s.30(c), and s.36(1) are subject to the “public interest test”. Therefore, taking account of all the circumstances of this case, we have considered if the public interest in disclosing the information outweighs the public interest in applying the exemption.

We recognise that there is public interest in transparency and accountability in the work of the Government. Disclosure of the information withheld under s.29(1)(a), s.30(b)(i), s.30(b)(ii) and s.30(c) could enhance public understanding of the development of policy, the reasoning behind decisions made by Ministers. However, we consider that these interests are outweighed by the need to maintain the space for discussion and advice that supports effective government. Releasing information under s.29(1)(a), s.30(b)(i), s.30(b)(ii) and s.30(c) could compromise the integrity of the policy-making process.

We also recognise that there is public interest in understanding the reasoning behind the legal basis of decisions taken by public authorities. However, withholding information under section s.36(1) ensuresthat legal advice and discussion of the policy implications of that legal advice remains confidential. On balance, withholding information under s.36(1) ensures that officials can obtain confidential, candid legal advice.

Exemptions under s.38(1)(b) are not subject to the 'public interest test', so we are not required to consider if the public interest in disclosing the information outweighs the public interest in applying the exemption.

It may also be useful to know that the Scottish Government laid the SSI to add “sex” to the Hate Crime and Public Order (Scotland) Act 2021 on Wednesday, 28 January 2026. It is available to view online here: The Hate Crime and Public Order (Scotland) Act 2021 (Characteristic of Sex) (Amendment and Transitional Provisions) Regulations 2026.

If helpful, we also published the documents to accompany the SSI on the same date. These are available as follows:

Equality Impact Assessment: Hate Crime and Public Order (Scotland) Act 2021- SSI to add sex as a characteristic: equality impact assessment - gov.scot
Business Regulatory Impact Assessment: Section 5: Next steps and implementation - Hate Crime and Public Order (Scotland) Act 2021- SSI to add sex as a characteristic: business and regulatory impact assessment - gov.scot

• Children’s Rights and Wellbeing Impact Assessment: Hate Crime and Public Order (Scotland) Act 2021- SSI to add sex as a characteristic: child rights and wellbeing impact assessment - gov.scot
• Consultation Responses: Published responses for SSI to add "sex" as a characteristic to the Hate Crime and Public Order (Scotland) Act 2021 - Scottish Government consultations - Citizen Space
• Consultation Analysis: Hate Crime and Public Order (Scotland) Act 2021- SSI to add sex as a characteristic: consultation analysis - gov.scot

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FOI 202600503141 Information released - Annex

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