Official Report 641KB pdf
Good morning and welcome to the 13th meeting in 2019 of the Culture, Tourism, Europe and External Affairs Committee. I remind members and the public that they should turn off their mobile phones, and any committee members who are using electronic devices to access their committee papers should ensure that they are switched to silent. We have received apologies from Tavish Scott MSP.
Agenda item 1 is stage 2 consideration of the Census (Amendment) (Scotland) Bill. I welcome to the meeting the Cabinet Secretary for Culture, Tourism and External Affairs, Fiona Hyslop, and her officials.
Section 1—Particulars about gender identity and sexual orientation may be gathered in census
Amendment 1, in the name of the cabinet secretary, is grouped with amendments 2 to 4.
In my response to the committee’s stage 1 report and during the stage 1 debate on the bill in Parliament on 28 February, I committed to lodging amendments to address the perceived conflation of sex and gender identity in the bill as introduced. Amendments 1 to 4 have been lodged to deal with that issue, as highlighted by the committee.
In its report, the committee supported the Equality Network’s proposal that the bill be amended and, as I have previously confirmed, our thinking on the approach was not that different. I undertook to ensure that my officials engaged with stakeholders in developing the amendments, and I confirm to the committee that National Records of Scotland worked with the Equality Network and others on the specific text of the amendments before they were lodged. National Records of Scotland also wrote to other interested stakeholders, including the women’s groups that responded to the committee’s call for evidence at stage 1, to highlight the suggested amendments and seek their views. No issues were raised by any of those stakeholders—indeed, there was only support for the amendments.
As the committee knows, I lodged the amendments much earlier than usual—in fact, before the Easter recess—to give the committee and others as much notice as possible. They seek to place transgender matters into the schedule to the Census Act 1920 as an entry on their own alongside religion and sexual orientation, and to remove the provision that would have added the phrase “(including gender identity)” to the paragraph in the schedule that contains the word “sex”. The amendments also seek to continue to ensure that the census order is able to make the question on transgender status and history voluntary, which is one of the bill’s key purposes.
I am pleased that stakeholders, the committee and the Parliament have supported the bill’s general principles. It is vital that nobody is or feels in any way compelled to answer the proposed questions on transgender status and history and sexual orientation, so it is right that those questions be voluntary. It is also critical that all respondents know clearly that the questions being voluntary means that there will be no penalty if they do not answer them, and work is in hand by National Records of Scotland to ensure that that is achieved.
The amendments deal with the issue, which was raised by the committee, of the perceived conflation of sex and gender identity and, as I said, they are supported by the stakeholders that have been consulted. It is also important to point out that amendment 4 explicitly puts the phrase “transgender status and history” into the bill’s long title.
I am pleased to have been able to lodge the amendments in the group. I move amendment 1.
The amendments, which are very welcome, reflect the wider debate that the committee had. In my view, they give this short bill necessary clarity. I am pleased to see them this morning, and I will support them.
I echo Claire Baker’s comments. We called for the cabinet secretary to do the very thing that she has just explained to the committee she has done, and that is very welcome. As Ms Baker said, the amendments provide the clarity that the committee has been seeking.
As no other member wishes to speak, I ask the cabinet secretary whether she wishes to wind up.
If agreed to, the amendments will allow the focus of the bill to be achieved. At present there is limited evidence on the experience of transgender people in Scotland and there is no fully tested question with which to collect that information. The bill does not determine the text of the questions to be asked, but it paves the way for them and allows them to be voluntary. The census will take a leading role in gathering the evidence that is needed to support and protect Scotland’s transgender population, and the proposed voluntary question on sexual orientation will mirror that which is already asked in most other Scottish surveys.
Amendment 1 agreed to.
Amendments 2 and 3 moved—[Fiona Hyslop]—and agreed to.
Section 1, as amended, agreed to.
After section 1
Amendment 5, in the name of Jamie Greene, is in a group on its own.
I welcome the cabinet secretary’s comments on the previous group of amendments. They address many of the issues that the committee and many stakeholders raised with the Government. The changes are welcome although, on a practical level, they are simply changes to wording that replace the term “gender identity” with “transgender status and history”.
When I spoke to the legislation team about my amendments, I said that their purpose was to address two concerns. First, I wanted to make it explicit in the bill that the questions about what was then “gender identity” would be voluntary, and to ensure that there would be no conflation of questions that were statutory and those that were voluntary. Proposed new subsection (2B)(a) in amendment 5 makes that clear.
Secondly, I wanted to address an issue of guidance. We took a lot of evidence on the confusion about the previous census versus the new census. Although I respect the fact that we do not know what the questions will be or how they will be worded, because they are yet to be discussed and tested, and rightly so, it is important to ensure that explicit guidance is given to those who have to complete the census so that it is clear to them which particulars are required. Also, although this is not specifically stated in amendment 5, I hope that guidance will be given on how people should answer the questions. The issue arose from our earlier debate about the conflation of sex and gender identity. In addition, I want to make it clear that neglecting to provide those particulars in the census will not make someone liable to a penalty.
I hope that amendment 5 is not contentious. I am seeking to ensure that the guidance is clear, given that there will be a substantial change between how people whom the change affects completed the census previously and how they might complete it now. I hope that the guidance will be robust and that it will be made clear that, if people choose not to answer the question and give that information, there will be no penalty thereafter.
I move amendment 5.
Has Jamie Greene had any discussions on the matter with the bill team? My understanding is that guidance is always published. I suppose that we will hear from the cabinet secretary whether what Jamie Greene proposes will be included. The amendment might just be a double way of achieving what is already there.
I also have a question that Jamie Greene might not be able to answer, but that the cabinet secretary might. My understanding is that, in previous censuses in which the question was voluntary, it was stated within the document that it was voluntary. That seems to be the best way to make it clear to people that the question is voluntary, rather than their having to look up guidance to get that information. I seek confirmation that the fact that the question is voluntary will be stated next to the question, as it was in 2011, rather than in notes at the beginning. I think that that is what Jamie Greene is trying to achieve. He wants to make it clear to people who are completing the form that the question is voluntary.
Claire Baker is right about that, but the difference between the new census and the previous one is that, previously, people were answering the sex question in terms of their lived sex. If we are to ask additional questions in the new census, I simply want the guidance to make clear to the people who will complete it, whatever wording we end up with, how they should answer the questions. I got feedback from stakeholders that there might have been confusion about the wording of “sex” and “gender identity”. However, the amendments in the previous group might tidy up that situation and make it more obvious. There is already guidance on the census, but I want to ensure that it is robust and explicit in relation to how people should complete any additional questions that the Government puts into the census, and that people do not feel under pressure to answer them.
I thank Jamie Greene for highlighting this important issue. Amendment 5 reflects the main policy driver for the bill, which is to make these sensitive questions voluntary. No one should think that they are answering the questions under the threat of criminal penalty. We have made it clear from the beginning of the process that the purpose of the bill is to remove the criminal penalty from those questions and make them voluntary rather than compulsory. For that reason, I agree with the principle of amendment 5.
It is important that we are explicit and clear to census respondents about which questions are voluntary. That will be made clear before the census takes place, as it will be set out in advance in the census order and it will be made even clearer in the census regulations.
However, I do not think that amendment 5 is necessary. It would require information on whether a question is voluntary to be placed in instructions separate from the form. National Records of Scotland has been developing plans for some time to embed the word “voluntary” into the text of the new questions so that census respondents are not required to cross-refer to separate instructions to find out that information. That is the point that Claire Baker made, and that approach was taken with the religion question in the 2011 census.
There is scope for the addition of similar clear direction in the covering message from the registrar general for Scotland that will appear on the front page of the census questionnaire, including information making it clear that there will be no liability for a penalty if voluntary questions are not completed. The information will also be covered in the supporting online guidance that is being developed for each question, which Jamie Greene mentioned. That guidance will again make it clear that the questions are voluntary and, therefore, refusal or neglect to state particulars will not make a person liable to a penalty under section 8(1) of the Census Act 1920.
In a number of ways, National Records of Scotland plans to ensure that there is a clear message about the voluntary nature of the questions and that that is communicated to census respondents. On that basis, I do not consider Jamie Greene’s amendment 5 to be necessary, although I support the principle and what he is trying to achieve. I will request that the registrar general, Paul Lowe, writes to Jamie Greene, copying in the committee, to provide the necessary reassurance on the approach that NRS will take to achieve that.
I hope that I have provided Jamie Greene and other committee members with enough information to reassure them that National Records of Scotland is alive to the issue that amendment 5 raises, which is indeed the driving purpose of the bill, and that NRS’s plans to communicate the message go further than the provisions that Jamie Greene suggests. On that basis, I ask Jamie Greene not to press amendment 5.
I thank the cabinet secretary for those comments and reassurances. Naturally, I do not want my amendment to have any unintended consequences with respect to what is printed in the guidance or in the census questionnaire. Those reassurances are welcome and they address the issues that were the premise of the amendment, so I will seek to withdraw it.
Amendment 5, by agreement, withdrawn.
Amendment 6, in the name of Jamie Greene, is in a group on its own.
09:15
I will start by talking about the general purpose of amendment 6. The bill has opened up a wide-ranging social discussion on gender identity issues in Scotland, but, as I said in relation to amendment 5, we do not yet know what the look and feel of the finalised census questions on those issues will be.
I thank the Parliament’s legislation team, who kindly assisted me with the drafting of amendment 6, which provides for a review of the outcomes of the next census. It places on the Scottish ministers a duty to come back and take a stock check of the success or otherwise of the proposed voluntary questions on transgender status and sexual orientation. The purposes of such a review would be to check whether the questions were the right ones, whether they were worded in such a way as to elicit the best response rates and whether their inclusion altered those rates. The committee has discussed the fact that a core aim of the census is to encourage maximum response and the fact that none of the additional questions should affect that. We think that there should also be generic feedback from those census users for whom such questions are relevant on whether they feel that the questions have adequately reflected their needs.
I appreciate that, between now and stage 3, the wording of the questions will go through a tremendous amount of testing and focus, which is welcome. However, I still think that it would be helpful if, after the next census takes place, we were to analyse the implications of the changes that we make for the undertaking of the whole exercise. We should then make recommendations on future changes to the census, such as the addition of new questions, whether they be changes to the ones that we are adding now or ones that we choose to add as society changes and we consider it important that the Government should seek additional voluntary information from people.
The intention behind amendment 6 is not to make things difficult in any way or to create an undue burden as regards post-legislative scrutiny. It is simply that, as the proposed additional questions have been controversial, it will be helpful both to census users and to the Government to be able to look back and decide whether they feel comfortable that the added questions have met the data collection requirements of public services.
I move amendment 6.
I have a question that I hope both Jamie Greene and the cabinet secretary will be able to address. I do not think that any member would disagree with the need for a review after the next census, but my question is about the scope of amendment 6. My understanding is that the review for which it provides would cover only questions that might be changed in the process, which is to say those on sexual orientation and transgender status and history. Depending on what is in the census order, there may be further changes to the next census. Would it not make more sense for any review of that census to cover any changes in it, and so go beyond the scope of amendment 6?
Ross Greer has made a good point and his suggestion is helpful. As he pointed out, the difficulty with proposed subsection (2)(a) in amendment 6 is that the Scottish ministers’ report
“must consider the implications of the changes to the census arising out of this Act”,
which relates specifically to the changes that we are making in the bill. From my discussion with the legislation team, I understood that my amendment could do only that. I think that widening it to include future changes that might be made to the next census would indeed be helpful. Perhaps we could address that technical issue later on.
If it is possible to widen the scope of the amendment, I will be happy to do so, and that might address the issues. I would not want to limit the scope to what is in the amendment, but it is a good starting point. If it is technically possible to widen it at stage 3, I will be happy to do so, but I will need to seek guidance on that.
I appreciate that we are all trying to get this right and ensure that the census does the job that it is supposed to do. As we are talking about official statistics, would it be for the Scottish ministers or the registrar general, who I think completes a report, to produce the proposed report? I am not clear about whether the amendment proposes the best process; I think that it would be for the registrar general to widen his report as necessary.
The amendment says:
“The Scottish Ministers must ... prepare a report on matters mentioned”
and
“lay ... that report before the Scottish Parliament.”
I am sure that, with the wide range of assistance that ministers have from their directorates, ministers might choose to employ the registrar general’s assistance, but the duty would be on ministers rather than the registrar general. I was advised that that was the best way to ensure that Parliament received the report.
I appreciate the amendment’s intention. We had a wide-ranging discussion about the bill, but I am not convinced that the two voluntary questions that the amendment focuses on were where the controversy or debate lay in the committee. The bill limits the focus to those two matters, and I am concerned about attaching a report to those two questions but not covering other changes, unless there is an overall report. I am not convinced of the need to single out the two questions as being different from other questions; that is not where the issues that we discussed lay.
I am happy to respond. Your points are similar to Ross Greer’s feedback. My impression was that I could request the laying of a report only in relation to the changes that the bill will make, as opposed to those in future bills that have not yet been introduced.
I agree that it would be helpful to have a much wider review of the next census in a report to Parliament, but the amendment goes as far as I can go in relation to the bill. I am sympathetic to the notion that we could request a wider review post the census that would give feedback on the success or otherwise of any changes.
I understand the rationale behind the amendment and I agree that the important changes to the census that arise from the bill should be evaluated. However, section 4 of the 1920 act already obliges the registrar general to prepare and lay before Parliament reports on the census returns. Those reports provide information on the data that the census has gathered. National Records of Scotland is also developing plans for an overall report on the operation of the census, as was produced following the 2011 census, to cover a range of matters, including all the new questions. The bill’s implications will be covered by that.
For important reasons, I cannot support the amendment, which would place a one-off obligation on the Scottish ministers to report on
“the implications of the changes to the census”
that the bill will bring about. The amendment focuses on the new voluntary questions on sexual orientation and transgender status and would not encompass other new questions, such as those on veterans. National Records of Scotland plans to report on all the new questions in the 2021 census and not just on the new questions that the bill will make voluntary—Ross Greer and Claire Baker referred to that point. To be fair to Jamie Greene, he had to deal with the scope of the bill, whose purpose is only to ensure that there is no criminal penalty for not answering the voluntary questions.
Importantly, Jamie Greene’s amendment would place the obligation to report on the Scottish ministers rather than on the registrar general. As I said, the obligation to report on census returns and lay those reports before the Parliament falls on the registrar general, as is set out in section 4(1) of the 1920 act. Annabelle Ewing referred to that point.
There are a number of reasons why placing a new obligation on the Scottish ministers to report on
“the implications of the changes to the census”
that the bill will bring about would be inappropriate. The most significant of those is the involvement of ministers in the production of statistical reports, which is something that must remain independent. I cannot support the proposal in that regard. I believe—and I think that Parliament would agree with me—that anything that is involved in the reporting, production and operation of the gathering of statistics should be independent of whoever the Government minister of the day is. That does not stop ministers responding to the report of National Records of Scotland and, of course, the committee can review the census and its operations.
I also consider the amendment to be unnecessary, as the registrar general is already legally obliged to report on the census returns. However, again, I will request that the registrar general, Paul Lowe, writes to Jamie Greene and the committee to provide the necessary assurance around the approach that National Records of Scotland will be taking to achieve the sensible principles of the amendment. As I said, the registrar general has a duty to report to Parliament in that regard.
I hope that I have provided Jamie Greene and the committee with enough information to provide reassurance that National Records of Scotland is alive to the issues that are raised in the amendment and that its plans for the analysis and consideration of the 2021 census go further than the provisions that are suggested in the amendment. Therefore, I ask Jamie Greene not to press the amendment.
I thank committee colleagues for their comments and I thank the cabinet secretary for her kind comments on the premise of the amendment, within the limited scope of the legislation.
I am grateful to receive confirmation that the registrar general’s obligations already include the requirement to report back to Parliament. However, to pose a theoretical situation, I would like to know what the Scottish Government’s next steps would be in terms of changes to future censuses if, after the next census, the strong feedback was that the wording of the questions had not widely been well received by those to whom those questions matter. What would be the process in that regard? Would ministers have the ability to change the questions easily if it was felt that we did not get it right this time? I think that we all agree that it is important that we get it right—that is what sparked my amendment—so I hope that the cabinet secretary will reflect on that.
On the basis of the information that has been given today, I am happy to withdraw the amendment.
Amendment 6, by agreement, withdrawn.
Sections 2 and 3 agreed to.
Long title
Amendment 4 moved—[Fiona Hyslop]—and agreed to.
Long title, as amended, agreed to.
That ends stage 2 consideration of the bill.
09:28 Meeting suspended.Previous
AttendanceNext
Creative Scotland