Hate Crime and Public Order (Scotland) Act 2021- SSI to add sex as a characteristic: business and regulatory impact assessment

Executive summary

Issue and why it needs to be addressed

The 2021 Act consolidated, modernised and extended existing legislative protections against offences aggravated by prejudice relating to disability, race, religion, sexual orientation, variations in sex characteristics and transgender identity, and added the characteristic of age.

The 2021 Act also included a power to add the characteristic of sex to the Act via a Scottish Statutory Instrument (SSI) subject to affirmative procedure. As announced by the Scottish Ministers in May 2025, it has been decided to use that power to add the characteristic of sex to the 2021 Act to ensure that women and girls have the same protections in relation to hate crime as people with the other characteristics covered by the 2021 Act.

This in general terms implements two of the recommendations contained in the report published in 2022 by the Working Group on Misogyny and the Criminal Law which was chaired by Baroness Helena Kennedy KC. These were the creation of a statutory sentencing aggravation concerning misogyny and the creation of a specific offence of stirring up hatred against women and girls. The SSI does so in a gender-neutral way, reflecting the way in which the power to add the characteristic of sex is framed, so that men and boys receive new protections as well as women and girls.

Intended outcomes

To deliver new legal protections for women and girls within the hate crime legislative framework.

Options

The following options were considered

Option 1: ‘Do nothing’

Option 2: ‘To add the characteristic of sex to the 2021 Act’

This would mean using the power at section 12 of the 2021 Act to add the characteristic of sex to the legislative framework set out in that Act. This means that the provision at section 1 of the Act concerning aggravation of offences by prejudice will be extended to cover prejudice relating to the characteristic of sex and the offence of stirring up hatred.

Sectors affected

The SSI will affect bodies involved in administering the criminal justice system: Police Scotland, the Crown Office and Procurator Fiscal Service, the Scottish Legal Aid Board, the Scottish Courts and Tribunals Service and the Scottish Prison Service, as well as local authorities and some organisations that support third party reporting.

Engagement completed, ongoing and planned

In 2017, the Scottish Government appointed Lord Bracadale to conduct an independent review of hate crime law in Scotland. He published his final report in 2018. The Scottish Government undertook a consultation on the report’s findings between 14 November 2018 and 24 February 2019. A total of 1,051 responses were received. Consultation responses and analysis can be found at Consultation on Scottish Hate Crime Legislation - Scottish Government consultations - Citizen Space.

Following the Cabinet Secretary for Justice and Home Affairs’ announcement in May 2025 that the Scottish Government would use the power at section 12 of the Hate Crime and Public Order (Scotland) Act 2025 to add the characteristics of sex to that Act, in August 2025, the Scottish Government published a consultation paper seeking views on a draft SSI to give effect to this. A total of 365 responses were received. Consultation responses and analysis can be found at SSI to add "sex" as a characteristic to the Hate Crime and Public Order (Scotland) Act 2021 - Scottish Government consultations - Citizen Space and http://www.gov.scot/isbn/9781806434152.

Anticipated impacts (intended and unintended, positive and negative) and mitigating actions

Benefits: The creation of a statutory aggravation relating to the characteristic of sex should provide the public, and, in particular, victims, with reassurance that the fact a crime was motivated by malice and ill-will relating to the victim’s sex is accounted for in sentencing. The creation of an offence of stirring up hatred against a group of people defined by reference to their sex will provide new powers to prosecute those who stir up hatred against women and girls (and men and boys) which it is hoped will have a deterrent effect on those who might otherwise commit such crimes.

Costs: The addition of the characteristic of sex to the 2021 Act will result in one-off costs for justice system bodies in terms of updating of IT systems, training and guidance for employees. While the statutory aggravation does not criminalise any behaviour, and the offence concerning stirring up of hatred largely relates to behaviour which is already criminal under existing law, there will also be on-going costs if the addition of the characteristic of sex leads to increased reporting of crimes and higher custodial sentences being imposed than would otherwise be the case.

The offence of stirring up of hatred against women and girls does expand the existing criminal law. However, to a large extent, the behaviour criminalised by this offence would already amount to an existing offence of, for example, threatening or abusive behaviour. Based on experience of the use of existing offences concerning stirring up of hatred, it is anticipated that the number of prosecutions and convictions for this offence will be low. These are estimated in this BRIA.

Enforcement/ compliance

As a criminal law measure, enforcement is via the criminal justice system. Police will be responsible for investigating alleged offences and reporting to COPFS for consideration of prosecution. Where COPFS decide that there is sufficient evidence to bring a prosecution and that it is in the public interest to do so, it will be for the independent courts to determine guilt or innocence. Where individuals are convicted/receive the statutory aggravation, disposals are imposed by the court including custodial sentences and community sentences.

Recommendations/ implementation plans

Option 2 is recommended: to add the characteristic of sex to the 2021 Act creating a new statutory aggravation where an offence is motivated by, or demonstrates, malice and ill-will relating to the characteristic of sex, and a new criminal offence of stirring up hatred against a group of people defined by reference to their sex.

Evaluation and monitoring of implementation/ review of BRIA

Once the changes contained in the SSI take effect, ongoing monitoring will be done via the collection and consideration of police recorded crime and court proceedings statistics and through the publication of specific reports on hate crime as required by sections 14 and 15 of the Act.