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

Section 1: Background, aims and options

Background to policy issue

In 2017, the Scottish Government appointed Lord Bracadale to conduct an independent review of hate crime law in Scotland. Lord Bracadale published his final report in May 2018. The report recommended that laws concerning the aggravation of offences by prejudice should be consolidated and standardised. It also recommended that there should be new stand-alone offences of stirring up hatred applying to all the characteristics covered by the aggravation of offences by prejudice.

Lord Bracadale’s report recommended that hate crime legislation should cover the characteristic of ‘gender’.

The majority of Lord Bracadale’s recommendations were accepted by the Scottish Government and formed the basis of the 2021 Act. However, informed by responses to the Scottish Government’s consultation on Lord Bracadale’s report, the Scottish Government did not adopt its recommendation to add the characteristic of gender to the Act.

Instead, a power was included in the 2021 Act to enable Ministers to introduce an order in Parliament to add the characteristic of ‘sex’ to the Act, subject to the agreement of Parliament.

Further to the Parliamentary consideration of hate crime legislation in 2021, the Scottish Ministers appointed Baroness Helena Kennedy KC to chair a Working Group on Misogyny and the Criminal law to consider how the criminal law deals with misogynistic behaviour, including whether there are gaps in legislation that could be filled with a specific offence or offences, and whether the characteristic of sex should be added to the 2021 Act.

The Working Group’s Report was published in 2022 and recommended

• Creating a new Statutory Misogyny Aggravation which operates outside of the Hate Crime and Public Order (Scotland) Act 2021;
• Creating a new offence of Stirring Up Hatred Against Women and Girls;
• Creating a new offence of Public Misogynistic Harassment; and
• Creating a new offence of Issuing Threats of, or Invoking, Rape or Sexual Assault or Disfigurement of Women and Girls online and offline

The Scottish Government had previously planned to introduce a stand-alone Misogyny Bill to implement these recommendations. However, as set out in the Cabinet Secretary for Justice and Home Affairs letter to the Convener of the Criminal Justice Committee on 2 May 2025^[1], the Scottish Government concluded that there was insufficient time for a Bill to be finalised and introduced in the current Parliamentary session. Therefore, to ensure there are protections for women and girls in law, the Scottish Ministers announced that they would lay an SSI to add the characteristic of sex to the 2021 Act so that they have the same protections as other groups protected by that Act.

The SSI is subject to super-affirmative procedure. A draft SSI was laid in Parliament prior to the final version being laid in Parliament on 28 August 2025.

The Scottish Government undertook a public consultation seeking views on the draft SSI. A copy of the consultation paper, the responses and an analysis of those responses can be found at [ADD LINK HERE]

Purpose/ aim of action and desired effect

The purpose of adding the characteristic of sex to the 2021 Act is to ensure that the stirring up of hatred against women and girls is treated in the same way as stirring up hatred against other groups protected by the 2021 Act, and that offences which demonstrate or are motivated by prejudice against women and girls are treated in the same way as offences motivated by or demonstrating prejudice relating to the other characteristics covered by the Act. While there is little evidence that there is a significant problem with stirring up of hatred against men and boys or crimes motivated by, or demonstrating, prejudice against men and boys, the SSI is gender-neutral and provides the same protection to men and boys.

The aim of the SSI is to ensure that crimes of this kind are treated and recorded in the same way as crimes motivated by prejudice relating to the other characteristics covered by the Act and seek to change public attitudes to misogyny by sending a clear signal that prejudice and hatred against women and girls is just as unacceptable as prejudice relating to, for example, race, religion, or sexual orientation.

Options

The following options were considered:

Option 1: ‘Do nothing’.

This would mean that there would continue to be no specific laws in place to extend to crimes motivated by, or demonstrating, hatred relating to the characteristic of sex.

Option 2: ‘To add the characteristic of sex to the Hate Crime and Public Order (Scotland) Act 2021 (“the 2021 Act”)’

This would mean adding the characteristic of sex to the 2021 Act, so that it becomes a criminal offence to stir up hatred against a group of people defined by reference to their sex, and the statutory aggravation concerning offences aggravated by prejudice applies where, when there is a specific victim, the offender demonstrates malice or ill-will towards the victim because of their sex, or, regardless of whether or not there is a specific victim, the offender is motivated to commit the offence because of malice and ill-will towards a group of people defined by reference to their sex.

Sectors/ Groups affected

The legislation will affect criminal justice agencies: Police Scotland, the Crown Office and Procurator Fiscal Service, the Scottish Legal Aid Board, the Scottish Courts and Tribunals Service and the Scottish Prisons Service as well as local authorities and some organisations that support third party reporting centres.