Chamber and committees

:For the purposes of the act, where hate crime is targeted at people on the basis of their sex, yes.

:That is an interesting point that speaks to the comprehensive approach that is required to the implementation of, and preparation for the commencement of, the legislation if it is agreed to. It is important to point out that Police Scotland is a partner in the hate crime strategic partnership group, which provides an opportunity for engagement with other partners to explore the issues that you have identified.

:No, I do not agree. The definition of sex that has been used relates to section 12 of the 2021 act, which means that we are enabled to give a definition of sex only for the purpose of the characteristic of sex, which is quite focused.

I certainly hope that members will agree that the documentation makes it clear that sex is defined as biological sex, which is equivalent to sex at birth. That is the definition of the characteristic of sex that is used for the purposes of the act.

:That would still require significant work to be undertaken. Without rehearsing all the arguments that have played out in the chamber, significant work has been undertaken in a number of policy areas. Some of that work has been concluded and some of it is on-going. I do not think that it is simple or straightforward. In fact, I am convinced that it is not as simple or straightforward as the member suggests.

Do you have anything to add, Patrick?

:It is my strong view that I am not proposing any action that will reduce the rights of others.

:The crux of the question is about immigration enforcement. The UK has the responsibility for the removal and deportation of foreign national prisoners. What we are debating today, for our purposes, is the point at which the Scottish Prison Service can facilitate that in someone’s sentence. My understanding is that immigration enforcement take people to—[Interruption.] Actually, I will pass that to David Doris, because I want to make sure that I am on the right piste.

:The affirmative instrument makes the necessary changes to secondary legislation made under the Rehabilitation of Offenders Act 1974 to allow information about spent convictions and alternatives to prosecution to be shared with a domestic homicide and suicide review in Scotland.

The committee will be aware that the creation of a statutory footing for domestic homicide and suicide reviews was established by the Criminal Justice Modernisation and Abusive Domestic Behaviour Reviews (Scotland) Act 2025, which gained royal assent last year. The provisions to bring domestic homicide and suicide review into effect will commence in full on 1 April this year. The reviews are designed not to apportion blame but to ensure that lessons can be learned following deaths where domestic abuse is known or suspected to have taken place, with the aim of better protecting victims in the future.

Sections 25 and 26 of the 2025 act place a duty on designated core participants in a review to co-operate with and provide information to a domestic homicide and suicide review and on others to provide information to a review in response to a notice requiring it. Sections 25(3) and 26(2) of the 2025 act, however, generally prevent a holder of information from being required to produce it to a review where it is not information that they could be compelled to produce in Scottish court proceedings. Sections 25(4) and 26(3) of the 2025 act specifically disapply that restriction when the material is covered by an exemption under the Rehabilitation of Offenders Act 1974. That was done to ensure that information about spent convictions and alternatives to prosecution could be obtained by a review when needed. These are the exemptions that will now be created by the affirmative SSI.

To fully understand the circumstances surrounding domestic abuse deaths, the review will need to be able to wholly understand a perpetrator’s relevant history, including when a conviction has been spent or an alternative to prosecution was offered. The reason for that is clear. Having access to all the relevant information about the background to a death will ensure that the review can provide meaningful and maximum learning and recommendations.

Importantly, in cases in which that information is sought, the review panels will not make any determinations about a person’s legal rights or liabilities. There will therefore be no direct impact on the person convicted should information on their spent convictions or alternatives to prosecution be disclosed to a review. If a case review report is published, section 28(2) of the 2025 act requires it to be anonymised first, including to prevent jigsaw identification.

As a further stopgap, each report will go through a process of quality assurance. Police Scotland and the Crown Office and Procurator Fiscal Service will form part of that process. Furthermore, prior to publication of a review report, a risk assessment will be undertaken and the Lord Advocate’s approval will be sought.

Collectively, these measures not only help to protect those who have died and their families, they also help to ensure that those with previous convictions are not identified. The SSI will therefore ensure that domestic homicide and suicide reviews in Scotland will be able to access all the information in order to make effective recommendations and, ultimately, to prevent future deaths from occurring. I commend the SSI to the committee.

:Before I go back to Jasmin—

:I understand and appreciate the disappointment that has been expressed by Engender and others. I can assure you that a misogyny bill was certainly on my agenda.

Where I disagree is that I do not think the action that we are taking today is contrary to the equally safe approach or that it conflicts with CEDAW. It is entirely correct that policy should reflect the gendered nature of violence. We have to recognise that the 2021 act covers aggravation in crimes where it can be proved that the accused was motivated by or demonstrated malice or ill will to the characteristic that is covered by the act.

We all know that domestic abuse and sexual offending are mainly committed by men towards women. I have always defended that analysis and the approach of looking at the issue through a gendered lens. That is reflected in, for example, the allocation of resources to supporting victims and awareness-raising work. However, in the criminal law, the domestic abuse offence applies to females as well as males, although the vast majority of perpetrators are men.

My final point is that we can take more than one approach to the issue. I deeply respect and understand the fact that people are disappointed that we are not pursuing a misogyny bill, but we can take more than one approach. I think that the action that we are proposing to take is crucially important, and I hope that the committee will support the regulations, but I would never present it as our final resting place.

:My responsibility as justice secretary is to uphold everybody’s rights in accordance with all our laws and expectations as a country. The 2021 act makes specific provision for variations of sex and transgender identity. It protects a range of people on the basis of age, race, religion, disability, transgender identity and sexual orientation. In my view, what we are doing in the regulations is proposing to fill a gap in our hate crime framework.