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

Section 2: Engagement and information gathering

Engagement approach

The impact of the SSI is anticipated to fall largely on the justice system. SG officials have engaged with justice bodies on impact. The 2021 Act followed review by Lord Bracadale and public consultation on his recommendations. A public consultation was undertaken on a draft version of the SSI to add characteristic of sex to the 2021 Act.

Internal SG engagement/ engagement with wider Public Sector

Internal SG engagement

Engagement internal to the Scottish Government has included policy leads in Justice and Equality, Inclusion and Human Rights Directorates as well as relevant Analytical Services Divisions and teams that have an interest in the impact assessments carried out as part of policy development.

Wider Public Sector

The Scottish Government has engaged with justice sector bodies including Police Scotland, COPFS and the Scottish Courts and Tribunals Service as part of policy development.

Business / Third Sector engagement

There have been discussions with various third sector bodies during the process of finalising policy relating to the SSI. The consultation sought views on the impact of the SSI on third sector bodies and businesses.

The previous BRIA undertaken to accompany the Hate Crime and Public Order (Scotland) Bill did not reveal any impacts on business arising from the content of that Bill. The new statutory aggravation does not criminalise conduct but simply provides that where an existing offence is aggravated by prejudice relating to sex, this will be treated as a statutory sentencing aggravation. The offence of stirring up hatred on grounds of sex is committed where an offender behaves in a threatening or abusive manner with the intention of stirring up hatred against a group of people defined by reference to their sex. It is not expected that the addition of the characteristic of sex to the 2021 Act will have any impact on lawful businesses.

Public consultation

The addition of the characteristic of sex to hate crime law was recommended in Lord Bracadale’s Report on Hate Crime Law, which was published in May 2018. The Scottish Government consulted on Lord Bracadale’s findings between 14 November 2018 and 24 February 2019, prior to the introduction of the Hate Crime and Public Order (Scotland) Bill in Parliament in 2020. A total of 1,051 responses were received from individuals and 108 responses from organisations.

A further consultation was undertaken on the addition of the characteristic of sex to the 2021 Act. There were 365 responses to that consultation.

The great majority of responses supported adding the characteristic of sex to both the stirring up of hatred offence and the aggravation.

However, there was a significant division between individual respondents, and responses from organisations. Nearly 90% of individual respondents supported adding the characteristic of sex to the 2021 Act by an SSI, with many highlighting that they thought it was important to address what they saw as a rising problem of misogynistic behaviour directed towards women and girls. By contrast, only around half of organisations that responded to the consultation supported doing so with a roughly equal number opposed to doing so. There was divergent views among organisations about whether the legislative framework of the 2021 Act was appropriate for dealing with hate crime motivated by misogyny, with a number of organisations responding to the consultation specifically stating that they thought that the recommendations of Baroness Helena Kennedy’s Working Group on Misogyny and the Criminal Law were better suited to dealing with the issue.

The consultation was also used to seek the views of consultation respondents on any financial impacts that the SSI may have.