The Act The characteristics Section 12 – Power to add the characteristic of sex
74.Section 12 provides for a power to make regulations adding the characteristic of sex to one or more of the lists of characteristics set out in sections 1(2), 4(3) and 9(a). Adding the characteristic of sex to the lists in section 1(2) and/or 4(3) would mean, respectively, that an offence can be aggravated by prejudice under section 1 in respect of sex and/or a person’s conduct may amount to an offence relating to stirring up hatred under section 4(2) in respect of that characteristic. Adding the characteristic of sex to the list in section 9(a) would mean that, for the purposes of section 4(2), behaviour or material is not to be taken to be threatening or abusive solely on the basis that it involves or includes discussion or criticism of matters relating to sex.
75.Section 12(2) provides that regulations under section 12(1) may modify sections 14(3) and 15(4) by making provision about the information relating to the characteristic of sex which may require to be included in reports on hate crime convictions and hate crime recorded by the police.
76.Section 12(3) provides that regulations made under section 12(1) may modify section 11 by adding interpretative provision relating to the characteristic of sex.
77.Section 12(4) provides that the power to make regulations includes power to make incidental, supplementary, consequential, transitional, transitory or saving provision, that different provision can be made for different purposes, and that regulations made under subsection (1) are subject to the affirmative procedure (but see paragraph 78, which explains the effect of section 12(5)).
78.Section 12(5) provides that, before laying a draft instrument containing regulations under section 12 before the Scottish Parliament, the Scottish Ministers must lay a proposed draft of the regulations before the Parliament. The Scottish Ministers must have regard to any representations that are made to them within 40 days of laying the proposed draft, and make any changes to the draft instrument that they consider appropriate.