Letter to Delegated Powers and Law Reform Committee

The Delegated Powers Memorandum for the Hate Crime and Public Order (Scotland) Bill contains a clause that states: “Regulations under this section may modify section 14 (meaning of the characteristics) by adding interpretative provision relating to the characteristic of sex. They may also make incidental, supplementary, consequential, transitional, transitory or saving provision, and make different provision for different purposes.”

This means that if the characteristic of “sex” is added to the Hate Crime legislation at a later date then it can be redefined by a Committee, without public consultation or Parliamentary scrutiny, and may differ from the definition given in the Equality Act:

and where Section 212 of the Equality Act states that:
– “man” means a male of any age
– “woman” means a female of any age

The Delegated Powers and Law Reform Committee were due to discuss the Hate Crime Bill on the 25th August, and we sent them the following letter. It has now been published on the Committee’s page.

Dear Mr Bowman and Committee Members,

Ahead of the meeting of the Committee on 25th August we would like to raise a concern regarding the delegated power to add the characteristic of sex to the Hate Crime and Public Order (Scotland) Bill.

While we argued in our submission to the Justice Committee’s Call for Views that sex should be added to Part I of the Bill, this was on the basis that the Policy Memorandum stated that “Although Lord Bracadale used the term ‘gender’, the term ‘sex’ is being used within the Hate Crime Bill, in order to remain consistent with the Equality Act 2010”.

However, we note that Section 15 of the Delegated Powers Memorandum allows for the affirmative procedure to add sex at a later date, and also covers the proposal for an “interpretative provision relating to the characteristic of sex”.

In light of the significant public concern regarding the change in the definition of ‘woman’ in the Gender Representation on Public Boards (Scotland) Act 2018 from that given in the Equality Act 2010, on which Aidan O’Neill QC has proffered the opinion that the Scottish Government exceeded its competence, we would be extremely alarmed if any change in the definition of ‘sex’ was decided upon without full public or Parliamentary scrutiny, or any opportunity to amend.

In order to guard against this we would suggest that any secondary legislation for the Hate Crime Bill should be limited to using the definition of sex in the Equality Act.

Kind regards,

Trina Budge
For Women Scotland

Unfortunately, the Committee took the decision to discuss this matter in private, so there is no public record of the conversation or any outcome of the meeting.

Update: The Committee have now published their report: Hate Crime and Public Order (Scotland) Bill: Stage 1, which states “The Committee therefore reports that it is content with the delegated powers provisions contained in the Bill.” So they retain the power to redefine “sex” should it be added to the Bill at a later stage.