Meeting of the Parliament

Meeting date: Tuesday, December 12, 2023

Official Report 915KB pdf

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Topical Question Time

The next item of business is topical question time. If a member wishes to ask a supplementary question, they should press their request-to-speak button during the relevant question—or, if online, they should enter RTS in the chat function.

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Gender Recognition Reform (Scotland) Bill (Section 35 Order)

To ask the Scottish Government whether it plans to appeal the decision of the Court of Session that the United Kingdom Government acted lawfully when enacting a section 35 order in relation to the Gender Recognition Reform (Scotland) Bill. (S6T-01686)

We note the judgment and will consider its terms. Devolution is fundamentally flawed if the United Kingdom Government is able to override the democratic wishes of the Scottish Parliament and veto our laws at the stroke of a pen. The Scottish Parliament passed the bill with a large majority, including members of all parties.

That was not really an answer on the timeframe, was it? Scottish National Party ministers were warned on multiple occasions that the gender self-identification bill threatens the protection of women and girls in Scotland. However, the SNP ignored our warnings.

The scandal of the double rapist Isla Bryson proved that predatory men will try to exploit self-identification to gain access to vulnerable women’s spaces, but the SNP ploughed on regardless and took the UK Government to court to get the bill enacted. Does the cabinet secretary think that the £230,000 that was wasted on that court challenge was money well spent?

Until ministers make a decision on the appeal, those are still live legal proceedings, which restricts what I can say on the matter.

With reference to the example that the member gave, I point out that it took place under the current Gender Recognition Act 2004, as passed by Westminster, which is applicable throughout the United Kingdom.

On the issues that were debated in Parliament, I point out that at no point did the UK Government suggest, threaten or even approach the subject of a section 35 order being issued. As the bill went through Parliament, it was the subject of two public consultations and a very large amount of parliamentary scrutiny.

Although the Government is disappointed with the judgment, we will take time to reflect on it and will come back with our decision on the appeal in due course.

The cabinet secretary gave no answer on the timeframe and no answer on the amount of money that the bill has already cost the taxpayer.

Opinion poll after opinion poll has shown that the SNP’s gender bill remains unpopular, with each of its provisions, such as letting 16-year-olds change their legal gender, being opposed by a large majority of the public. When it comes to wasting more taxpayers’ money with a potential court appeal, will the cabinet secretary listen to the public and ditch the bill for good, or will she instead be in favour of her Green coalition partners, who want to spend endless amounts of public money on getting the flawed bill enacted?

I am sure that Meghan Gallacher must be aware that the costs are already in the public domain, because I answered a parliamentary question on them. We are certainly not hiding anything on the costs to date.

The reason why this was an important legal challenge—it was not a decision that we took lightly; we considered it very carefully—is that there is an emerging pattern of interference in devolved matters by the UK Government. It routinely now ignores the constitutional convention that the UK Parliament will not legislate for devolved issues without the consent of the Scottish Parliament.

In 2021, of course, the UK Government referred the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill to the Supreme Court. It has now ignored legislative consent decisions of this Parliament on several occasions, such as with the European Union (Withdrawal) Act 2018, the United Kingdom Internal Market Act 2020, the Professional Qualifications Act 2022 and the Subsidy Control Act 2022. There have also been several instances in which the UK Government has refused to acknowledge the Scottish Parliament’s view that legislative consent has been required, such as with the Nationality and Borders Act 2022.

As we have seen with the breaches of the Sewel convention, once that sort of intervention has happened, the UK Government will find it easier to justify using the power again and further erode devolution. The Scottish Government makes no apologies for standing up for the powers of the Scottish Parliament.

I agree with the cabinet secretary that the Court of Session ruling was a demonstration of the fundamental flaws of devolution.

Of equal note is that last Friday will have been disappointing and traumatic for many. Will the Scottish Government give an unequivocal commitment to continue to do all that it can to support the community? What assurances can the cabinet secretary give today that any decision in relation to the ruling will be treated with the utmost sensitivity?

The section 35 order raises serious questions about devolution, as I said in my previous answers. However, we acknowledge the specific impact on the trans community in Scotland.

Yesterday I had a series of calls with LGBTQI and women’s organisations in which I heard about the disappointment and dismay among the trans community. I want to be clear that, no matter what happens with the legal challenge, the Scottish Government will remain committed to LGBTQI equality. That is why we are taking forward legislation on ending conversion practices in Scotland, we have published our non-binary action plan and we are taking steps to improve access to national health service gender identity services.

When the cabinet secretary made a statement to Parliament in April, in which she outlined the Government’s intention to take legal action, I asked her about wider supports for trans people in the intervening period, because any such legal process can create a vacuum. She said that, although the Government viewed the bill as being important, it was not the only area in which it was working to support the trans community in Scotland. Will she update Parliament further on what is being done to support trans people right now and in any further intervening period before the Government takes a decision?

When we discussed the issue in the chamber previously, Paul O’Kane rightly raised the wider and varied concerns of the trans community. In my answer to Karen Adam, I mentioned some of the other aspects on which we are working, including the non-binary action plan, which is an important piece of work that my colleague Emma Roddick has undertaken. We are absolutely committed to taking forward the bill on ending conversion practices before the end of the year. We are keen to ensure that we make progress with that, particularly on aspects of health services, on which I know that the trans community has concerns. We have started to see improvements there, but there is still much more work to do.

The court judgment has vindicated the concerns of women’s rights campaigners that the Gender Recognition Reform (Scotland) Bill would negatively impact the operation of the Equality Act 2010 and, therefore, existing protections for women and girls. Now that the Government has been forced to face the folly of its position, will it take this timely opportunity to apologise to those campaigners for dismissing their concerns as not being valid?

All the way through the two consultations and the passage of the bill, we had meetings with various groups, including people who supported the bill, those who supported it but suggested changes, and those who were vehemently opposed to it. I point out to the member that although the judgment related to gender recognition, it was based on aspects of the section 35 order, which, frankly, drives a coach and horses through the devolution process. I am disappointed that the member is not more concerned about that.

Some 86 MSPs from across the political spectrum supported the aims and underlying principles of the bill. Equally, many undoubtedly would not have supported any form of change to gender reform through legislation. Given that many of us who supported those principles did so in the face of firm reassurances from ministers that the legal advice that they had sought was sound, would it not now seem prudent for the Government to make that advice public—if nothing else, to demonstrate to Parliament that it acted in good faith?

Neither the Scottish Government nor the UK Government routinely publishes the legal advice that it obtains. That approach is not of special significance to the Scottish Government; the UK Government would have followed exactly the same process, as we have been discussing in relation to the section 35 order. Jamie Greene is right to point out that members expressed differing views as the bill passed through Parliament. However, I point out that it did pass with the consent of the large majority of MSPs, including members from all parties. It is disappointing that the voice of the Scottish Parliament has been vetoed in that way.

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Scottish Government Overseas Meetings (United Kingdom Government Support)

To ask the Scottish Government, in light of the letter from the UK foreign secretary to the constitution secretary, what its response is to reports that the UK Government may withdraw Foreign, Commonwealth and Development Office support for Scottish Government overseas meetings. (S6T-01699)

It might be helpful to the member and others in the chamber if I were to provide some background and context. In April, the former Foreign Secretary, James Cleverly, wrote to me and issued inaccurate and misleading guidance to United Kingdom overseas missions regarding the Scottish Government’s international engagements.

I wrote to Mr Cleverly seeking agreement and consultation on how the guidance could be amended or withdrawn. I did not receive a reply. In October, I received another letter from Mr Cleverly, which raised the matter of a meeting between the First Minister and the Prime Minister of Iceland. That letter also contained inaccuracies. I wrote back to Mr Cleverly, but again I did not receive a reply.

This week, I received yet another letter, this time from the new Foreign Secretary, Lord David Cameron, which included the threat that was referenced by Dr Alasdair Allan. That was all the more surprising as, a few days earlier, Lord Cameron cancelled a meeting that we were due to have this week to discuss those issues.

The Scottish Government’s only interest in pursuing our international work is promotion of Scotland’s interests. Yesterday, we published detailed evidence setting out the way that Scottish Government international offices support trade, jobs and vital business connections. The report also refers, in positive terms, to the working relationship with the FCDO in overseas posts. I look forward to continuing to promote Scotland’s interests and to working with UK Government counterparts.

The framers of the Scotland Act 1998 were clear that

“the reservation of international relations does not have the effect of precluding the Scottish Ministers and officials from communicating with other countries, regions, or international or European institutions, so long as the representatives of the Scottish Parliament or the Scottish Ministers do not purport to speak for the United Kingdom or to reach agreements which commit the UK.”

It would seem that the Scottish Government is being accused of not respecting the devolution settlement. For clarity, can the cabinet secretary confirm whether the First Minister—or any other minister—has purported to commit the UK to any international agreement?

First, Dr Allan was quoting from the explanatory notes to the Scotland Act 1998, so his question is a statement of fact. In answer to the question specifically, no Scottish Government minister has or would purport to speak for the United Kingdom or to reach agreements that commit the UK. I asked James Cleverly for any examples of such a thing happening. He said that he had none.

We invite FCDO officials to attend our formal meetings. It is impossible to predict where and when informal meetings will happen during large-scale events such as the 28th UN climate change conference of the parties—COP28. To threaten Scotland’s interests on the basis of those discussions, arranged at pace, is ridiculous.

The engagement that Scotland undertakes with our international partners plays a key role in helping to attract inward investment and to promote brand Scotland. That is now being threatened by an unelected lord for the sake of the UK’s politics of insecurity and petulance. Does the cabinet secretary agree that, regardless of one’s view on the constitution, anyone who cares about the standing of the Scottish Parliament should recognise and call out that attempt at muzzling Scotland’s elected institutions?

Anyone who doubts the benefits of our work overseas should take a look at the report on the work of Scotland’s international network, which highlights the real benefits that are being delivered to Scotland now. Trying to limit that work will only reduce the opportunities for Scottish businesses, cultural organisations and individuals, and, in so doing, will impact negatively on the lives of us all.

Although Scottish ministers clearly have a role to play in promoting Scotland abroad, that should never infringe on the devolution settlement, which of course reserves foreign affairs to the UK Government. By meeting President Erdogan—of all people—to discuss foreign policy, namely the situation in the middle east, the First Minister acted against both the spirit and the letter of an established protocol that requires FCDO official attendance and is, crucially, a requirement that applies equally to UK ministers as it does to Scottish ministers.

Given that the Scottish Government’s annual report highlighted a number of good examples of joint international working by officials from Scotland’s two Governments where FCDO support has been critical, will the cabinet secretary give a firm commitment that all future Scottish Government meetings with overseas officials will have a representative from the Foreign Office present?

Donald Cameron has brought up the letter of the law. The Scotland Act 1998 is very clear. Let me again share with members what the notes say:

“The reservation of international relations does not have the effect of precluding the Scottish Ministers and officials from communicating with other countries, regions, or international or European institutions, so long as the representatives of the Scottish Parliament or the Scottish Ministers do not purport to speak for the United Kingdom or to reach agreements which commit the UK.”

I have always been happy to be accompanied by representatives of the UK embassies or high commissions whenever I undertake international meetings. That is the position of the Scottish Government. It is unfortunate that, sometimes, FCDO officials do not make themselves available.