Supreme Court ruling is bogus excuse for dropping misogyny bill

The National

07-05-2025

A public consultation on the proposal to create five new misogyny offences closed almost 20 months ago. Since then, no bill has been published. No analysis of the consultation has been published.
As the parliamentary calendar shed weeks and months before next Holyrood election, the Scottish Government produced a range of more and less plausible explanations for these delays.
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At first, questions were fended off on the basis the consultation was being carefully considered and final proposals refined. Once that holding position lost its virtue, we were told a draft bill would materialise 'imminently.' 'Imminently' then transformed to 'after the Supreme Court's judgment in the For Women Scotland case'. Last week, 'imminently' became 'after the next Scottish Parliament election, maybe, depending on who is in power'. Nobody seems all that surprised.
In answer to a parliamentary question on Friday, Jamie Hepburn confirmed that the bill was just the latest Sturgeon-era flagship proposal sunk by changes in the political weather.
Various reasons were given. Many have the merit of actually being true. Hepburn told MSPs this is a 'complex area of law and policy'. Given the short time left in the calendar, he said, there is sadly 'insufficient time for a bill to be finalised and introduced in this session'.
But Hepburn also invoked what a friend defines as the highly useful but normally dubious 'for legal reasons' defence – the perfect escape hatch for the under-pressure politician because it is majestically vague, vaguely menacing, gives the decision an air of responsibility and is difficult to disagree with because it is difficult for anyone without a legal background to dismantle what you're talking about.
The minister stressed that 'clear and unambiguous' provisions would be needed in any misogyny law and 'this would include the implications of the recent Supreme Court judgment'. Reading between the lines, you might come away with the impression that the Supreme Court's judgment has a straightforward read across into what Holyrood can and can't legislate for in terms of misogyny, or all legislation involving concepts such as women or misogyny.
But it doesn't. Lord Hodge's decision dealt with the narrow question of what the concept of 'sex' means in the context of the Equality Act and whether the holder of a full gender recognition certificate is protected from discrimination in their certified sex. As a pretext for dropping the misogyny bill, this is convenient but entirely bogus.
You'll notice naked political calculation wasn't one of the reasons given for discontinuing the progress of the bill at this stage, despite being perhaps the most potent factor in explaining why it was axed.
As minds focus on the next Holyrood election, as the SNP choose their battles and think about the impressions they leave the voting public with about its priorities – you can understand the political calculation which says now is not the time for a misogyny bill.
In its way, last week's controversy was more than a decade in the making. It was Alex Salmond's government which first pursued the illiberal and misconceived Offensive Behaviour at Football legislation back in 2011.
When the SNP lost their majority at the next Holyrood election, the opposition parties found the numbers to repeal the Act, making good on a promise in 2018.
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As part of SNP's defence of this beleaguered legislation, ministers decided to summon Lord Bracadale to lead an independent judicial review of Scotland's fragmented and inconsistent hate crime legislation. It was an area any tidy-minded lawyer was guaranteed to recommend changes to.
The judge turned in his report just two months after the Football Act hit the sod, with most of his recommendations finding their way into the Hate Crime and Public Order Bill, introduced to Holyrood two years later. Unstunningly, the politics, the policy and the detail of the bill proved immediately controversial.
Combining the inflammatory material of race, nationality and sectarianism, religious differences between believers and between believers and unbelievers, human sexuality and its critics, transgender rights and gender-critical advocacy, the bill was a lit touchpaper tossed into a powder store.
Apparently to the surprise of the Government, combustion reactions predictably followed, demolishing whole sections of the bill, burning out concepts and clauses as the government fought to batter out the flames and rescue the singed but intact essence of the proposals from its constructive and unconstructive critics and their attacks on its real and imagined faults.
This time, it was Humza Yousaf's turn to try to farm out a particularly thorny area of controversy. Enter Baroness Helena Kennedy. This grand dame of the law was the perfect figure to hide behind when it came to unresolved controversy about what to do with issues of sex and gender in the bill.
Lord Bracadale recommended 'there should be a new statutory aggravation based on gender hostility', allowing prosecutors to attach an aggravator where an attacker demonstrated malice or ill-will towards the victim on the basis of their perceived gender, mirroring provisions on race, religion and sexual identity.
Some were unconvinced this was a good idea. Hate crime frameworks ordinarily deal with minorities which experience shows us are particularly susceptible to bigotry and mistreatment. Crimes against women and girls are crimes against the majority of our population and have a different dynamic.
Others pointed out that the kind of street harassment women face often doesn't take the form of expressing overt hostility towards the victim, reflected in a recent High Court appeal where an accused person was acquitted on the basis his approaches to uniformed schoolgirls in lonely lanes took the form of a 'polite conversational request' for their numbers and so couldn't reasonably be construed as threatening.
By focusing on crimes motivated by hostility towards people's sex or gender we may be capturing incel extremism and violence, but not the everyday public harassment women face, the perpetrators of which aren't ideological extremists, but ordinary men and boys.
A third strand of the argument suggested that talking about hate crimes on the basis of sex missed the point, arguing instead that the law should give a name to the real problem – and give its proper title, misogynistic harassment.
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In the end, a fudge was settled on. Section 12 of the Hate Crime Act gives Scottish Ministers the power to add sex to the legislation's list of protected characteristics, pending Kennedy's verdict on whether wider changes were needed.
Kennedy pushed the Government to go much further, proposing a raft of new offences including misogynistic behaviour, threats of serious sexual violence and new criminal prohibitions misogynistic harassment.
The law, Kennedy argued, has the power to 'send a message,' and the message it ought to send is that women and girls should be able to go about their daily lives, work, walk up the street, go to gigs or travel on public transport, without facing the routine badgering and learned hypervigilance as a result of unwelcome male attention. This was music to carceral feminist ears.
But the palaver over the Hate Crime Bill should have tutored ministers that navigating proposals like this on to the statute book would be beset with challenges. The proposals would inevitably be subject to the 'how are you defining a woman?' test.
But beyond this, the core of what Kennedy proposed to do was controversial. Nicola Sturgeon may have accepted all the recommendations – but there are many reasons why others would have needed significant persuasion.
Since the 20th century, our legislative frameworks have generally moved towards gender neutral drafting. If misogynistic harassment was prohibited by the criminal law, you can guarantee someone would end up arguing fairness required misandry gets its own look in.
But even more fundamental than that, are questions and doubts about what criminalisation actually achieves.
I don't know about you, but when I hear politicians justifying the creation of yet another raft of offences on the basis of 'sending messages' to the public, my suspicions intensify.
Inventing crimes is not the easy solution to social problems too many politicians seem to think it is, particularly in the context of an understaffed criminal justice system which is currently incapable of dealing with the raft of behaviours our law already says are verboten.
Will criminalising this behaviour achieve primary prevention? And if not, perhaps we should be investing in something else?
There are wider lessons of strategy here for future governments too. The received wisdom in politics is often that 'independent review' equals 'long grass.' At all three stages of this
slow-burning succession of badly handled PR explosions, the Scottish Government attempted to subcontract itself out of political controversy by passing it over to an independent review.
In all three cases, this buck passing and search for political shelter behind the charisma, independence and prestige of a high-profile lawyer has not only extended but materially increased the controversy and criticism the government has ultimately faced.