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

Section 4: Additional implementation considerations

Enforcement/ compliance

The addition of the characteristic of sex to the 2021 Act has the effect of creating a new criminal offence of stirring up hatred against a group of people defined by reference to their sex and introducing an aggravation relating to the characteristic of sex.

As these are criminal law measures, enforcement is a matter for Police Scotland, COPFS and the courts, which are independent of the Scottish Ministers.

The Scottish Government will monitor the effect of these changes through the usual mechanisms for monitoring and reporting on matters relating to the criminal justice system including annual publications concerning Police Recorded Crime and Criminal Proceedings in Scottish Courts. The 2021 Act as amended will also include a requirement on the Scottish Ministers to produce reports to Parliament containing more detailed information on recorded offences and prosecutions which will extend to the characteristic of sex.

UK, EU and International Regulatory Alignment and Obligations

Internal Market/ Intra-UK Trade

The addition of the characteristic of sex to the 2021 Act does not have any implications for the internal market or intra-UK trade. The creation of a statutory aggravation relating to sex does not change the criminal law, and we cannot envisage circumstances in which the creation of an offence of stirring up hatred on grounds of sex would criminalise commercial activity which would otherwise be lawful.

International Trade Implications

The addition of the characteristic of sex to the 2021 Act does not have any implications for international trade.

EU Alignment consideration

The addition of the characteristic of sex to the 2021 Act does not have any implications for EU alignment. Different member states of the EU take a range of different approaches to hate crime law in terms of the legislative framework in place and the characteristics covered by such legislation.

Legal Aid

The SSI will not add new procedures or rights of appeal to a court or tribunal or change policy or practice in a way which may lead people to consult a solicitor.

As statutory aggravations can only apply if there is a pre-existing criminal offence, the addition of a new statutory aggravation for sex will not of itself result in additional criminal cases. However, as charges with a statutory aggravator are less likely to be dealt with via a non court disposal and are more likely to be prosecuted in court, some additional legal aid costs may be incurred. These are set out above.

The addition of the characteristic of sex to the offences of stirring up hatred may result in additional costs. However, as the number of such prosecutions is anticipated to be very small and for the most part, such prosecutions would relate to behaviour that would otherwise have been prosecuted using existing criminal offences, any additional legal aid requirements will be minimal.

Digital impact

No digital impact is expected. The 2021 Act has no provisions specifically relating to digital or online content. The aggravation does not criminalise conduct that would not otherwise be a criminal offence. Stirring up of hatred offences that are motivated by prejudice relating to sex are capable of being committed online but there is nothing that indicates that the existing stirring up of hatred offences have had a disproportionate impact on either online or off-line businesses.