Hate Crime and Public Order (Scotland) Act 2021- SSI to add sex as a characteristic: consultation analysis

Approach to addition of characteristic of sex to offence of stirring up hatred and aggravation of offences by prejudice

Application of freedom of expression provision

The consultation asked consultees if they were content for the provision concerning protection of freedom of expression at section 9 of the 2021 Act to be extended to cover the characteristic of sex.

There were 345 responses to this question, of which 323 were from individual respondents and 22 were from organisations.

The great majority of both individual respondents and organisation respondents supported the extension of the freedom of expression provision to the characteristic of sex.

Of the individuals who responded to this question, 303 (94%) supported the extension of the freedom of expression provision to the characteristic of sex while 20 (6%) did not. Of the organisations who responded to this question, 20 (91%) supported it, while 2 (9%) did not.

Support came from both a majority of those who favoured extending the 2021 Act to cover the characteristic of sex (292 out of 304) and those who were opposed to doing so (18 out of 28). All those respondents (11) who were of the view that the characteristic of sex should apply to the statutory aggravation but not to the stirring up of hatred offence were of the view that if the characteristic of sex were to be added to the stirring up of hatred offence, the freedom of expression protection provision should apply.

Organisation respondents

19 of the organisations who responded to this question used the comments box to provide reasons for their views. Of those who supported the extension of the freedom of expression provision to the characteristic of sex, a significant number specifically stated that they did so to ensure consistency with the other characteristics covered by the 2021 Act. A number of other issues were raised by small numbers of respondents. These included the importance of ensuring that the stirring up of hatred offence does not impinge on free discussion and debate of controversial issues, the need for training of those working in the justice system to ensure that they had a consistent approach to what kinds of behaviour or communication are protected by the defence and the importance of the defence in protection of the right to religious freedom, particularly as regards the views of religions on the roles of women and men.

The two organisations which opposed the extension of the freedom of expression provision to the characteristic of sex made comments which actually related to their position on other matters. One stated that they did not support the addition of the characteristic of sex to the 2021 Act, while the other expressed concern that the stirring up of hatred offence sets too high a bar to allow for the prosecution of many forms of misogynistic behaviour which has the effect of encouraging hatred of women and girls.

Individual respondents

67 of the 303 individual respondents who responded to this question used the comments box to provide reasons for their views.

Among those respondents who supported the extension of the freedom of expression provision to the characteristic of sex, the most common reason which was given by around half of respondents, was that it was important to ensure that free expression is protected. This was emphasised particularly by those respondents who opposed extending the characteristic of sex to cover the offence of stirring up of hatred. A small number of respondents raised concerns about specific matters which they were concerned could be made more difficult to debate by the stirring up of hatred offence if it did not include provision protecting freedom of expression. These included the ability to discuss policy concerning single-sex spaces and biological sex differences.

Around half of the 20 individual respondents who opposed the addition of extension of the provision to protection freedom of expression to cover the characteristic of sex used the comments box to set out their reasons. As the total number of individual respondents who were opposed to its extension was small, the number of respondents who held this view for any particular reason was very small.

Issues that were highlighted by more than one respondent included that the protection of freedom of expression provision is not strong enough to actually protect freedom of expression, that it lacks clarity regarding exactly what it protects (it was suggested that examples would help) or conversely, that it goes too far and could risk enabling those who are genuinely seeking to stir up hatred to escape prosecution.