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Chamber and committees

Meeting of the Parliament (Hybrid) [Draft]

Meeting date: Tuesday, December 20, 2022

Agenda: Time for Reflection, Topical Question Time, Business Motion, Motion without Notice, Business Motion, Gender Recognition Reform (Scotland) Bill: Stage 3, Motion without Notice


Contents


Gender Recognition Reform (Scotland) Bill: Stage 3

The Presiding Officer (Alison Johnstone)

The next item of business is stage 3 proceedings on the Gender Recognition Reform (Scotland) Bill. In dealing with the amendments, members should have the bill as amended at stage 2—that is, Scottish Parliament Bill 13A—the marshalled list and the groupings of amendments. The division bell will sound and proceedings will be suspended for around five minutes for the first division of the stage 3 proceedings. The period of voting for the first division will be 45 seconds. Thereafter, I will allow a voting period of one minute for the first division after a debate.?

??Members who wish to speak in the debate on any group of amendments should press their request-to-speak buttons or enter RTS—request to speak—in the chat function as soon as possible after I call the group.

Members should now refer to the marshalled list of amendments.

Section 2—Persons who may apply

The Presiding Officer

Group 1 is on applications by 16 and 17-year-olds. Amendment 6, in the name of Rachael Hamilton, is grouped with amendments 93, 94, 7, 98, 24, 15, 25, 99, 8, 26, 9, 12, 101, 37 and 105. I draw members’ attention to the procedural information relating to this group, as set out in the groupings. I point out that, if amendment 9 is agreed to, I will not be able to call amendment 10, due to a pre-emption, and that, if amendment 12 is agreed to, I will not be able to call amendment 101, due to a pre-emption.

Rachael Hamilton (Ettrick, Roxburgh and Berwickshire) (Con)

As drafted, the Gender Recognition Reform (Scotland) Bill would lower to 16 the age at which an individual could apply to obtain a gender recognition certificate. Amendments 6 to 9 and 12 in this group seek to keep the minimum age at which someone can apply for a GRC at 18.

In Scotland, an individual who is under the age of 18 is not considered old enough to stand for election to this Parliament, nor can they serve as a juror, place a bet, buy or sell alcohol, get a tattoo or be permitted to watch certain films at the cinema. As with obtaining a gender recognition certificate, I agree that there is good reason for that.

Earlier this month, the Parliament held a debate on human rights day, in which the Scottish Government set out its intent to incorporate the United Nations Convention on the Rights of the Child into domestic law. The UNCRC defines anyone under the age of 18 as a child. Moreover, in its evidence taking on the bill, the Equalities, Human Rights and Civil Justice Committee heard from Susan Smith that people do not cognitively mature until 25. That contention is also outlined in Scottish prison sentencing guidelines. Despite that, as drafted, the bill would confer the right to apply for a GRC, alongside the great burden of responsibility of applying for one, on individuals as young as 16. Worse still, it would—

Alex Cole-Hamilton (Edinburgh Western) (LD)

If I am called to speak later, I will speak to the number of variances that exist around the age of majority in Scots law. Rachael Hamilton and her group backed the Age of Criminal Responsibility (Scotland) Bill, which set the age of mental capacity for children in terms of being held responsible for their actions and their crimes at 12, which is two years below the de minimis set by the international community.

Does Rachael Hamilton recognise that age is not a guarantor of wisdom and that 16 is the age at which most things in Scotland are now consolidating? If we can credit 12-year-olds with the capacity to commit crimes, we can certainly credit 16-year-olds with having the capacity necessary to understand their identity and apply for recognition of the same.

Rachael Hamilton

I thank Alex Cole-Hamilton for that intervention. By comparing the ages of capacity for criminal responsibility and for obtaining a gender recognition certificate, I do not think that he is comparing like with like. Moreover, the Scottish Government’s own equality impact assessment states that it needs more up-to-date research, because it needs to collect data on the impact on the mental wellbeing of young people. It is important to note that the Scottish Government’s impact assessment does not back up its argument.

The relevance of cognitive maturity, the capacity of children to change and the conference of such a great responsibility on children seem worryingly misguided in the bill as drafted. In committee evidence sessions, group after group, expert after expert, and even an Irish senator, who is generally in favour of those reforms, spoke out against lowering the age. Last night, we heard from Reem Alsalem, who will also make her opinion known to the Scottish Government on the lowering of the age, but she has not yet had the opportunity to do so.

Despite all of that evidence, when I brought these amendments to the committee at stage 2, the cabinet secretary rejected them on the basis of an anecdote. Does she believe that her opinion, which is based on that anecdote, is more valuable than the views of experts who gave evidence in committee or, indeed, the 81 per cent of the Scottish public who were polled on the topic of lowering the age to 16 and thought that it was a bad idea?

Children who are struggling with gender identity need the Government to support them, not place a burden of responsibility on them. That support could be provided in two ways: by gaining a better understanding of their experience and by improving provision of services. Dr Hilary Cass’s review into gender identity services provided this Parliament with a golden opportunity to improve our understanding and gain clarity on how we can improve services, but it has been completely ignored while this legislation was needlessly railroaded through Parliament. Do Scottish children not deserve the same level of care and safeguarding as those who live south of the border? I find it extraordinary that the Cass review was not taken into account.

The interim report from the independent Cass review has led to the closure of the Tavistock clinic in London—a move that was supported by the Equality and Human Rights Commission but ignored by the Scottish Government. The cabinet secretary has continued to play down the relevance of such an intervention; that is in line with her policy of shutting down any conversations that might prolong the scrutiny that is applied to the bill.

In responding to these amendments, will the cabinet secretary explain why she believes that warnings from an independent review of child gender services in the United Kingdom are not linked to children obtaining a gender recognition certificate in Scotland? Does she believe that accessing gender services for children would have no bearing on their decision to apply to change their gender? Should we continue to ignore the opportunity to implement recommendations for improving those services before passing the bill?

Concerned clinicians have yet to hear a single justification from this Government as to why it has chosen to ignore evidence that is deemed worrying enough to close down services in the south. On that point, I fully appreciate the sentiment behind Claire Baker’s amendments in this group. However, the fundamental issue of lowering the age at which an individual can obtain a GRC remains a sticking point on which I cannot support those amendments for the reasons that I have already set out.

In the same vein, I understand the reasoning behind amendment 15, in the name of Kenny Gibson, which would ensure that applicants who are under the age of 18 must seek advice from someone such as a medical professional; amendments 98 and 101, in the name of Jamie Greene, which would require young applicants to be able to provide evidence that they have sought advice regarding obtaining a GRC; and amendment 99, in the name of Christine Grahame, which would require young applicants to

“tell the Registrar General what role the individual”

who is giving guidance to the applicant plays. It is vital that safeguards remain in place in order to make the bill workable, and I absolutely appreciate that those amendments seek to introduce further safeguards for under-18s who are applying for a gender recognition certificate. However, they are fundamentally underpinned by an acceptance that people under the age of 18 should be enabled to obtain a GRC. The fact that we are having a discussion about the need for extra safeguards for that particular group of people is an admission that there are concerns. I urge members who are concerned about that to consider the arguments that I have set out on why now is not the time to extend the ability to obtain a GRC to children who are under 18.

Similarly, Jackie Baillie’s amendment 105 relies on such an acceptance, although I understand that it comes from a position of attempting to clean up a potential loophole that would allow people who are even younger than 16 to begin the process of obtaining a GRC. Nonetheless, that amendment stumbles on the same sticking point of making allowances for under-18s to apply for a gender recognition certificate.

I move amendment 6.

15:45  

Claire Baker (Mid Scotland and Fife) (Lab)

I have lodged amendments 93 and 94 in order to raise the issues that have been identified in Dr Hilary Cass’s interim report of her review of gender identity services for children and young people in NHS England. It is worth highlighting those issues in the context of the proposal to lower from 18 to 16 the age at which someone can obtain a GRC in Scotland.

The report recognises that social transition

“is not a neutral act”

and that it may lead to young people taking a medicalised pathway. Acquiring a GRC is a potent form of social transition. Although it is often stated that it is not a passport to clinical services, it can be an indicator that would strengthen the case for medical intervention.

The stage 1 report by the Equalities, Human Rights and Civil Justice Committee includes consideration of the Cass interim report, and asks that the Scottish Government consider

“a full review into ... gender identity healthcare.”

It would be helpful to know whether the Scottish Government intends to do so.

There is little research into or analysis of the increase in the number of young people who seek to transition. That point was made by the Cass report, which highlighted persisting evidence gaps and areas of uncertainty. Although I recognise that the Cass review looks at services in England, it raises concerns that we should take into consideration. The interim report says:

“There has not been routine and consistent data collection ... which means it is not possible to accurately track the outcomes and pathways that children and young people take through the service.”

There is a lack of consensus and open discussion about the nature of gender dysmorphia. The report says:

“The mix of young people presenting to the service is more complex than seen previously, with many being neurodiverse and/or having a wide range of psychosocial and mental health needs. The largest group currently comprises birth-registered females first presenting in adolescence with gender-related distress ... Primary and secondary care staff”

report that

“they feel under pressure to adopt an unquestioning affirmative approach.”

There are concerns over

“diagnostic overshadowing—many of the children and young people presenting have complex needs, but once they are identified as having gender-related distress, other important healthcare issues that would normally be managed by local services can sometimes be overlooked.”

My amendments 93 and 94 call for a pause—for time to reflect on the emerging evidence on services for children and young people and to consider the reasons behind the high proportion of young women who apply.

A pause would not prevent any 16 or 17-year-old from socially transitioning. They can change the vast majority of their documents; their school, college or university has policies in place to support social transition; a birth certificate is rarely needed as identification; and, as Scottish Trans highlighted in a briefing to MSPs last week, the provision of birth certificates to universities or employers is not a legal requirement—that is also the case if we were to retain the age of 18.

Having lodged amendments at stage 2, and having been a member of the Culture, Tourism, Europe and External Affairs Committee, which scrutinised the Census (Amendment) (Scotland) Bill, I have held many discussions and meetings on the bill, and have worked hard to understand the arguments while being prepared to question and scrutinise some of the assumptions and assertions that are being made. I ask for caution. The Cass interim review has raised important issues around safeguarding, and it is not unreasonable to pause a reduction in age to 16 in order to take full cognisance of emerging evidence and concerns.

Jamie Greene (West Scotland) (Con)

I put on record my thanks to the many organisations and individuals who have sent briefings to members. I know that those take a lot of time and effort. In particular, I thank Stonewall, LGBT Youth Scotland, Amnesty International and the Equality Network—and, more recently, the Scottish Human Rights Commission and MurrayBlackburnMackenzie. Although not all those organisations may agree with me—or indeed with each other—it is important to respect the fact that there are differing opinions on many of the amendments that we will debate today, and I thank them for their efforts.

My two amendments in the group—to be followed by a third anomaly, which I will come on to—are around applications by 16 and 17-year-olds. I understand and appreciate that one of the fundamental changes that the bill makes is to reduce the age at which one can apply for a GRC from 18, the current age in the Gender Recognition Act 2004, to 16. Throughout stage 2, a number of amendments that gathered cross-party support were accepted. I felt that there was room for improvement on those, for many of the reasons that Rachael Hamilton has given.

In the bill as drafted at the moment, before we amend it, section 3A talks about

“Guidance, advice and support for young applicants”.

It is a new section that was added at stage 2 and it is a welcome addition, but at present it states that

“The applicant must ... confirm to the Registrar General that the applicant has discussed the implications for the applicant of obtaining a gender recognition certificate with an individual”.

It then goes on to list two criteria for whom that individual should be.

My amendment 98 provides that, when confirming to the registrar general that they have discussed their application with a suitable individual, an applicant aged 16 or 17 must also

“be able to provide reasonable evidence”

of that discussion, if requested to. Amendment 98 adds no further criteria as to who the person must have that conversation with, nor does it put unnecessary barriers in place. It simply allows for the registrar general to request evidence that the conversation has indeed taken place.

Will the member take an intervention?

Jamie Greene

Yes, in just one a second. I will first speak to amendment 101, which follows on from amendment 98. It provides that, when granting an application to a 16 or 17-year-old, the registrar general must be satisfied that the applicant has received

“appropriate guidance, advice and support”

as detailed in section 3A. The registrar general may reject the application if he or she is not satisfied about that.

Graham Simpson

In relation to amendment 98, I am interested to know what Jamie Greene means by the phrase

“be able to provide reasonable evidence”.

There is a danger in any legislation when we insert such phrases, which are potentially quite woolly legally. I am not sure what that means, so it would be useful if the member could tell us.

Jamie Greene

The member makes a fair point. If we had had more time to discuss the amendments—which would have been excellent—the benefit would have been that they could easily have been tidied up with more succinct language. I understand that members on the Conservative benches will likely oppose my amendments for not going far enough in terms of support and guidance and that members on the Government benches will oppose them because they think that they go too far, so I am somewhat stuck in the middle of that conundrum.

However, the member makes a fair point and I am uncomfortable with the speed at which we have to address the amendments. For that reason, I will listen carefully to arguments that are made, and, indeed, to the response from the Government, which I hope will contain some legal feedback on the wording of my amendments.

The premise of my amendments is simply to try to go a step further than how the bill is currently drafted in order to provide some extra comfort and safeguards that young people are getting appropriate advice. Martin Whitfield’s amendment 25 does something similar—I am sure that we will hear more about that in due course—as does Kenny Gibson’s amendment 15.

In all the amendments in the group there is a common theme, but there are two things that some of the amendments seek to introduce with which I am uncomfortable. The first is the reintroduction of the concept of the medicalisation of the process, which is something that the bill seeks to remove. That is, in my view, contrary to the general principles of the bill, which I support. The other thing is to revert to the status quo of the age of 18. It is no secret that I do not agree with that position.

There is one further amendment in the group that I will speak to, when it is called, on behalf of another member who is unable to be here. I will reserve further comments until that point.

Martin Whitfield (South Scotland) (Lab)

It is a pleasure to follow Jamie Greene and I echo his thanks to those outside the chamber who have provided suggestions, advice and commentary. Much effort has been spent on engagement with people on the bill. Although I am not in agreement with some of what has been said, I thank everyone who has reached out for doing so, because it is our role in this place to listen to our constituents.

I intend to speak to amendment 24 and three others. Amendment 24 is a technical amendment that would pave the way for amendment 25, which has already been discussed by Jamie Greene. To a certain extent, amendment 25 builds on and complements other amendments in this group that we have heard about. It merely seeks for the individual to whom that young person has spoken to be named and identified and requires that an address be provided in order that people can contact that individual. That is not a huge step forward or a reach into something that should be protected or unknown.

It is right that young people take their time to make decisions, and interesting arguments have already been expressed in the chamber about raising the age to 18. I cannot find agreement with that. In Scotland, we support our young people to make increasingly important decisions about themselves, and they do so with the scaffolding that sits around them. The scaffolding is not there to influence those decisions but to protect the young people when they make decisions and to give advice when it is sought. Identifying the person—or people or organisations—to whom a young person has spoken is a reasonable step to show that discussions have taken place and were appropriate.

I understand, having had discussions with the Government—for which I thank it—that there are some steps being taken in relation to the idea that it should be a conversation rather than a written record. All that my amendment seeks to do is to identify the name and contact address of the individual; it does not seek to go behind that and into the discussion that has been held. On many levels, I can understand that confidentiality must exist for discussions to take place properly; indeed, for a young person to reach out to a trusted adult, there must first be trust.

Tess White (North East Scotland) (Con)

The United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill defines children as

“persons under the age of 18.”

Does Martin Whitfield agree that 16 and 17-year-olds are still children?

Martin Whitfield

Here, in Scotland, young people are aged 16 and 17, and I accept the wording of the UNCRC. It seeks to reinforce the protections that exist for children and is a vehicle for young people to question decisions that are made about them that do not encompass or hold up their human rights. I very much look forward to hearing from the Government when that issue comes back to the Parliament and we can fully and properly debate it.

I return to amendments 24 and 25, which seek to make small steps forward to reinforce confidence for the young person and enable those around them to ask, “Who was it that you spoke to?” and ask the young person to provide their name—or names, if they speak to an organisation—and contact information. Amendment 25 does not seek to impinge on any discussions that happen. It certainly does not invite a young person to share the details of discussions or risk criminalising them for doing so in error. It merely asks for factual information, which I believe is reasonable to give.

The other two amendments in my name are 26 and 37. Again, amendment 26 has the benefit of being a tiny technical amendment and it would facilitate amendment 37. Amendment 37 addresses concerns about the capacity of 16 to 18-year-olds to apply for a gender recognition certificate or to understand the implications of possessing one. It would allow a registrar general to reject an application if they were not satisfied that the person applying was capable of understanding the effect of the certificate or the importance of a statutory declaration. Additionally, a registrar general would be obliged to reject an application if they suspected that a young person was under any kind of coercion to apply for a certificate.

In law, young people aged 16 and over are presumed to have capacity, which is right. However, if we liken decisions on this matter with other decisions that can be made by young people of that age in Scotland—such as on consent to or refusal of treatment, or on the refusal of access to medical records—we must respect their consent.

I thank the cabinet secretary for the meeting that took place on 8 December and her letter, paragraph 6 of which states:

“Turning to my own amendment 60, also agreed by the Committee at Stage 2, this introduced a new power for the”

registrar general

“to apply to a sheriff on the grounds that a GRC application was fraudulent or that the applicant was incapable of understanding the effect of obtaining a GRC or of validly making the application.”

If the cabinet secretary is content to confirm on the record that, if a registrar general felt that a young person lacked understanding of the effect of obtaining a certificate, there would be a vehicle open to the registrar general, I will be minded not to move amendments 26 and 37.

16:00  

Kenneth Gibson (Cunninghame North) (SNP)

For reasons of brevity, I will speak to only two amendments: my amendment 15, which simply seeks to strengthen section 3A, and amendment 6.

The bill seeks to demedicalise self-identified transition. Amendment 15 strikes a balance between that aim and the need for effective counselling—a move that I consider to be vital. These days, young people are encouraged to seek counselling even when they fail an exam. A person who can provide such advice should be clarified in guidance, should be suitably qualified, and could be a medical practitioner. However, that person should not be a parent or teacher unless they are qualified to give counselling advice.

Where deemed necessary by the counsellor, the young person concerned could be referred to a suitable clinician. The Cass review states:

“The mix of young people presenting to the service is more complex than seen previously, with many being neurodiverse and/or having a wide range of psychosocial and mental health needs ... once they are identified as having gender-related distress, other important healthcare issues that would normally be managed by local services can sometimes be overlooked ... Clinicians should remain open and explore the patient’s experience and the range of support and treatment options that may best address their needs”.

The Cass review focuses on England, but is the experience of young people with gender distress any different here in Scotland? I think not.

A senior child psychiatrist told The Guardian that

“In the last five to 10 years we’ve seen a huge surge in young women who ... want to become boys. They’ve changed their name and they are pressing … to have hormones or puberty blockers”—

a development that often follows the social transition represented by a GRC. The psychiatrist said that

“Often those girls are children who are going through the normal identity and developmental problems of adolescence and finding a solution for themselves in this way.”

Emma Roddick (Highlands and Islands) (SNP)

I am a little confused. The member seems to be concerned about demedicalisation and also about the current growth in medicalisation. Does he not recognise that demedicalisation will uncouple the two issues and will perhaps allow young people to explore whether they even want to pursue medical transition?

Kenneth Gibson

I am of the view that, with proper counselling, it may be that young people will have to seek a clinician. My point about counselling is that they do not have to go down that road. I am trying to strike a balance between both positions that have been expressed so far today.

There is currently no consensus among clinicians about the matter, and parents have differing explanations of what might have prompted their child’s gender uncertainty. Bayswater Support represents the parents of roughly 500 trans adolescents. Members often describe their child’s trans identity as overshadowing other factors including neurodevelopmental conditions such as autism and attention deficit hyperactivity disorder or social factors such as bullying or not fitting in with peers, emerging same-sex attraction, poor mental health and, often, puberty itself.

Other parents believe that the hypersexualisation of the female body, fuelled by the representation of women in popular television programmes and on social media, and the child’s early understanding of sexism, make them feel that it might be easier to live as a male than as a woman. Transitioning was once predominantly undertaken by middle-aged men; now it is by teenage girls.

Early experience of sexual assault can play an important role. Detransitioner Sinead Watson, who returned to living as a woman after identifying as a man for seven years, said that she was repeatedly sexually assaulted during her teens and felt hatred towards her female body.

A 2020 study in the peer-reviewed academic journal Clinical Child Psychology and Psychiatry found that the degree of social transition did not significantly predict psychological functioning outcomes in a clinical sample of children with a gender dysphoria diagnosis. The journal said that

“claims that gender affirmation through transitioning socially is beneficial for children with GD could not be supported from the present results. Instead, the study highlights the importance of individual social support provided by peers and family, independent of exploring additional possibilities of gender transition during counseling.”

For some people, a pathway towards social and later medical and/or surgical transition may be the right option. However, the examples that I gave show that, for some young people, this is a transient phase and a manifestation of other conditions, experiences or circumstances in their life. I therefore believe that my amendment will provide trans adolescents and their parents with extra support to explore the potential reasons for their gender nonconformity. Where necessary, that will ensure that important underlying healthcare issues and other conditions experienced by young people with gender distress are not overlooked.

I ask members to support amendment 15.

With regard to amendment 6, I recall reading recently, as other members will have done, that on new year’s day 2020, a 15-year-old boy was killed by a 22-year-old hit-and-run speeding driver in Wishaw while walking to his grandparents’ house. His killer, who had previous convictions for speeding and careless driving, avoided a custodial sentence because sentencing guidelines suggest that the brain is not fully developed until the age of 25 and a young person will generally have a lower level of maturity with a greater capacity for change than an older person.

Yet the bill proposes to lower from 18 to 16 the age at which one can legally be perceived to have transitioned. Yes, one can marry at 16 and vote in some elections and drive at 17, but one cannot buy alcohol or cigarettes before the age of 18. Our society is inconsistent. While considering the bill, we must at all times ensure that the welfare of the child or young person is paramount. At the centre of this often fraught debate are children, adolescents and their loved ones, who are often in great distress.

No one is arguing today that gender dysphoria does not exist. However, as the number of children who believe themselves to be in the wrong gender rises exponentially amidst reports of teenage peer cluster effects, we must be cautious about who is recognised socially to have transitioned. Why? Because it will increase the likelihood that they will receive puberty blockers, cross-sex hormones and perhaps surgery—actions that a gender recognition certificate can only accelerate.

Dr Hilary Cass’s review states, regarding a GRC:

“it is important to view it as an active intervention because it may have significant effects on the child or young person in terms of their psychological functioning.”

At primary, secondary and specialist level, there is a lack of agreement about the extent to which gender incongruence in childhood and adolescence can be an inherent and immutable phenomenon for which transition is the best option for the individual, or a more fluid and temporal response to a range of developmental, social and psychological factors.

A 2020 study by Sievert et al in peer-reviewed academic journal Clinical Child Psychology and Psychiatry defined social transition as

“often the first possibility to align with one’s experienced gender”

and to live

“in the preferred gender role different from”

that at birth

“in almost all aspects of life”.

Irreversibility is a fundamental concern. Despite our different views on the bill, we can surely all agree that a gender recognition certificate will lead 16 and 17-year-olds on a pathway of social transition at the very least. However, the Hippocratic oath is quite clear: first, do no harm. As elected representatives, we, too, should pursue that philosophy. Social transition, followed potentially by the prescribing of hormones to young people, which can have short and long-term side effects in themselves, encourages those who might not ultimately pursue full transition on a path leading to not only profound regret, but sterility, anorgasmia and long-term health issues.

Stephen Kerr (Central Scotland) (Con)

I just wanted to intervene to say that I think that the member, like me, attended a meeting that was organised by one of his colleagues, Ruth Maguire. I found it to be one of the most moving experiences that I have had in a long time to sit in a room with two young people who were expressing profound distress—it went far beyond regret. I could not agree more with what the member says, just on the basis of meeting those two young people. I know that they were representative of many others who have gone down a path and then found it impossible to come back up it.

Kenneth Gibson

I thank Mr Kerr for that. As he knows, I was also present at that moving and at times distressing meeting to listen to those experiences.

As for surgery, that should be contemplated only after serious consideration and counselling.

It was said at stage 2 that some people know their own minds, but of course some do not, and we have to protect the most vulnerable of these young people. Allowing more time for reflection on this life-changing decision is important if we are not to experience an upsurge in ruined lives: people who regret becoming trans, with all that that means, who later seek to detransition.

Allowing transition at 18 will still give those who wish to proceed decades in their new identity. I believe that it will also save many from the misery of making a decision too early in life from which they are unable to turn the clock back. As detransitioner Ritchie Herron told a number of us last month, “It’s a one-way ticket. I can’t grow my genitals back.”

I say to colleagues that we are divided into those who genuinely support the bill, those who are opposed and those who may be undecided on the bill and the amendments. Others, for understandable reasons of loyalty, trust and their ambition, plan to vote as advised by their whip. However, I ask members to please think primarily of the young people concerned—those who might be confused, have underlying neurodiversity or mental health conditions—and support amendment 6 to give those young people time and space to grow, mature and be better able to take the right decision.

I call Jamie Greene to speak to amendment 99 on behalf of Christine Grahame.

Jamie Greene

I appreciate that this is a somewhat unusual or perhaps unorthodox way of speaking to and moving an amendment, but I will do my best.

As members may know, Ms Grahame is unwell and cannot be in the Parliament. There were a lot of similarities between her proposals and my previous amendments, which I have spoken about.

I am moving amendment 99 because I feel that it contains a compromise. The amendment provides that when a 16 or 17-year-old applicant confirms to the registrar general that they have discussed their application with a suitable individual, such applicant must also tell the registrar general

“what role the individual mentioned in subsection (2) has, or how the individual knows the applicant.”

That is a step beyond what was agreed to at stage 2. As members who were involved at stage 2 will be aware, the initial amendment that was proposed by Christine Grahame was supported by my colleague Jackson Carlaw. Amendment 99 adds a provision so that when someone is inquiring about the consequences of getting a GRC, they must tell the registrar general what the role of the individual who they have spoken to is and how they know them. For example, it will be for that person to say that they have spoken with a teacher, a family member or, indeed, a trusted counsellor or another organisation. In my view, asking a young person to state who they have spoken to is not onerous; it is sensible, particularly in comparison with some of the other amendments in group 1, nor should it put off a young person from seeking guidance and assistance.

In my view, it would strengthen assurances that a young person will have accessed much-needed advice and support and that they will have carefully considered their application, without adding new evidential requirements, as other amendments propose. Amendment 99 has been widely welcomed by a number of stakeholders and organisations. On balance, I initially thought that I would have supported amendment 99 anyway, because I feel that it is something of a compromise. However, it may be better worded than my amendments 98 and 101. As my colleague Graham Simpson rightly pointed out, those could be subject to the vagaries of legal wrangling, which is not something that I wanted to achieve.

Will the member take an intervention?

Jamie Greene

I will, in a second.

I will reflect on some of Kenny Gibson’s comments. He is right in saying that there are huge inconsistencies, in the law and socially, in how we recognise people of a certain cohort. For example, as I know from my time on the Criminal Justice Committee, the judiciary treats 24 and 25-year-olds differently in sentencing guidelines. We ask 16-year-olds to vote for us in elections, but they are not afforded the same rights as older people for a number of years, nor do they face the same repercussions for their actions. I have long held the view that there are far too many inconsistencies in the application of the law and the definition of a young person—who they are, how old they are and what rights and responsibilities are afforded to them. That is a much wider debate that we certainly do not have time for. However, Kenny Gibson is right to have raised the issue. How we square that circle will be a job for another session of Parliament.

On the medical intervention that may or may not take place as a result of obtaining a GRC, it has been possible to obtain those certificates in Scotland for nearly two decades. At no point does a person have to medically transition to an acquired gender in order to receive and use a GRC. That has been happening for a long time; not everyone who obtains a GRC will go on to transition, seek medical intervention or be introduced to any form of medication as a result. That has been happening, and it will continue, but I am not convinced that Mr Gibson has made it clear that that will be further enhanced, or that there is any risk that more people will transition from a medical point of view as part of a new simplified process.

Will the member take an intervention?

Yes, but I will take Mr Simpson’s intervention first.

Graham Simpson

I thank Jamie Greene for taking an intervention. I appreciate that he is not speaking to his own amendment, but I am sure that Christine Grahame will be grateful that he is speaking to hers.

It comes down to language again. Amendment 99, which relates to guidance that a young applicant must seek, says:

“The applicant must tell the Registrar General what role the individual mentioned in subsection (2) has, or how the individual knows the applicant.”

The bill already includes the provision that such advice must be sought. I appreciate that Jamie Greene did not lodge the amendment, but can he give us his view on what difference the amendment would make to what is already in the bill?

16:15  

Jamie Greene

At the moment, section 3A of the bill says that the applicant must confirm that they have

“discussed the implications for the applicant of obtaining a gender recognition certificate with an individual who ... has a role which involves giving guidance, advice or support to young people.”

That is a welcome addition. Section 3A(2)(b) requires that that individual

“is aged at least 18 and knows the applicant personally.”

That is also a helpful addition.

Amendment 99 goes further than that by saying that the registrar general must be told by the applicant

“what role the individual mentioned in subsection (2) has”.

The reason for that, I suspect, is that others are calling for the person who gives advice to be a suitably qualified medical professional, such as a doctor, which would limit the scope of the type of person who can give such advice and how that person knows the individual.

I appreciate and accept that we could go further and, with the benefit of time, we could have added to the amendment. I probably would have added to it had we not had such a tight deadline. Members will recall that we had an extremely tight deadline to lodge amendments: midday of Wednesday of last week, which feels like a million years ago. Many of us were sitting in other committees and trying to draft amendments on our mobile phones at the same time. None of this is ideal.

Mr Simpson is right that we could have strengthened many of the amendments, but we are where we are. Amendment 99 is a sensible compromise, which is why I am happy to support it.

Rachael Hamilton

An article in The BMJ was drawn to my attention, which says that, currently, 7 per cent of people who apply for a GRC have their application turned down. Jamie Greene talked about medical intervention and the diagnosis of gender dysphoria, which is done by a doctor. Does he believe that the Scottish Government must address the issue of people who were previously refused a GRC by a doctor who will now be able to obtain a GRC through a self-ID system in Scotland?

Jamie Greene

I am not 100 per cent sure that I understand what the member is asking. Although I am happy to have a lengthy discussion, I am not sure that the question is relevant to the amendment. The premise of what the member is asking seems to be that those who have been refused a GRC in the past may now be able to apply for one. There are certain individuals who seek to obtain a GRC who are problematic. We will discuss that issue in a later group of amendments—it might be coming up in the next group. There are some sensible amendments that we should make to the bill that would add further safeguards and protections around a very specific cohort of people.

The big point, which may simply be a point of difference, is that the current process requires a diagnosis of gender dysphoria, which, as I made clear in my comments at stage 1, is a concept that I disagree with, for all the reasons that are already on the record. For that reason, I am unwilling to support any amendments that seek to reintroduce that medicalisation and the need for a diagnosis of gender dysphoria to the process of obtaining a GRC. That is on the record. I am sure that members will respect my position on that.

Jackie Baillie (Dumbarton) (Lab)

I do not intend to detain the chamber for long. I start by associating myself with Jamie Greene’s opening remarks and thanking all the organisations and individuals who have been in touch with us. That has all helped to inform the debate. I also thank the legislation team for all their work on the amendments, including the drafting and redrafting of them as members have honed their thinking.

I support the amendments in the name of Martin Whitfield, as they are proportionate, sensible and reasonable. I commend them to the Parliament.

I will speak to amendment 105, in my name. I welcome the amendments lodged by Christine Grahame at stage 2. They have put safeguards into the bill to ensure that, when such a significant decision is taken by 16 and 17-year-olds, it is taken with due care and support. I agree with her that a person applying for a gender recognition certificate must have lived in their acquired gender for a period of six months rather than three.

Where my concern lies is that, in effect, someone aged 15-and-a-half can start the process in order to obtain the certificate on their 16th birthday. To those who consider that 16 is perhaps too young, that merits some reflection by Parliament. My amendment effectively says that the six months starts on the person’s 16th birthday.

I would therefore be grateful for reassurance from the cabinet secretary, in the absence of Christine Grahame, that the Government has no concerns that 15-and-a-half might be too early. What safeguards does it believe are in place to protect and support young people?

Jeremy Balfour (Lothian) (Con)

I, too, thank all the groups that have been in touch with me. I also thank all the constituents from across Lothian who have emailed me over the past weeks and months. I am sure that all members have received lots of emails putting very strong arguments on both sides. Overall, we have to come to a view on those arguments, and I appreciate the time that we are taking to do that.

I stand briefly to speak in favour of amendment 6. The reason is that I want to follow up on what the First Minister said yesterday. In a television interview, she said:

“This is a bill that doesn’t give any new rights to trans people.”

She went on to claim that the bill affects only the process of obtaining a GRC. That would be true if Rachael Hamilton’s amendments were agreed to this afternoon. If they are not, the bill will give new rights to trans people, because, as it stands, it will reduce the minimum age from 18 to 16.

When the cabinet secretary speaks to this group of amendments, it would be helpful if she would clarify whether the First Minister is right in saying that the bill gives no new rights. If the First Minister is wrong, can the cabinet secretary tell us why those new rights are important and why the First Minister made that statement on TV yesterday?

Maggie Chapman (North East Scotland) (Green)

I am pleased to speak on this group of amendments.

Like other members, I put on record my thanks to all those organisations and individuals who have worked so hard to get us to this point: those who have provided briefings, information and guidance; the parliamentary staff in committee; the legislation team; others who have supported the passage of the bill through the stages; and, of course, trans people themselves, who have waited so long for this day.

Extending the right to obtain a gender recognition certificate to 16 and 17-year-olds is absolutely the right thing to do. It brings us in line with international good practice and, importantly, it allows us to align this important legislation with the age of legal capacity, which, in Scotland, is 16. At that age, young people can get married, join the army, work and vote in Scottish parliamentary and local elections. We trust them to make big life decisions on their own, and I do not see why the bill is any different.

Let us also remember that many young people have already socially transitioned by the time they are 16. That might have included coming out to their friends and families—without applying for a GRC. Not having a birth certificate that matches their identity could cause issues when they apply for jobs and for further or higher education. More importantly, it could leave them open to a lack of privacy regarding their trans status.

I have spoken elsewhere about my vehement opposition to any waiting periods while people live in their acquired gender and the reflection period. At stage 2, the former was extended to six months for young people. Retaining those time periods in any form means that we go against international best practice. There is no evidence for those time periods to exist, and trans people and those who work with them and support them have told us repeatedly that there is no justification for those waiting times. In view of that, the Scottish Greens cannot support Jackie Baillie’s amendment 105, which would mean, in effect, that only trans people aged 16-and-a-half could apply for a GRC. That would make a mockery of one of the very principles of the bill—its extension to 16 and 17-year-olds.

Changing one’s legal gender is not something that one does on a whim. Those who apply for a GRC will likely have thought about, considered and reflected on that decision for months, if not years. Let us believe young people when they tell us that they know their own minds. Let us not pathologise them. Let us be clear that 16 and 17-year-olds should—and will—be able to get a GRC and be recognised in law for who they are.

Alex Cole-Hamilton

On behalf of the Scottish Liberal Democrats, I say how grateful we are for both the work that has gone into the production of the bill to get it to this stage and the briefings that all members have received. I also put on record how grateful I am for the respectful tone in which the debate has been conducted so far. There has been too much heat and hate around the bill, and I am grateful that colleagues have expressed their remarks, concerns and support for the bill with such respect. I hope that we will continue in that vein.

Anyone listening to the well-crafted remarks from members who oppose the legislation or who oppose the process being extended to 16 and 17-year-olds could be forgiven for thinking that we are somehow pioneers in reforming gender recognition in that way. We are not. For example, we are seven years behind Ireland in that regard, and we are behind the international curve. Right now, 250 million people around the planet live in jurisdictions where gender recognition is obtained through a self-identification system. That has not led to a correlation with the issues that we have heard prophesied in debates by those who are against reforming the process or extending it to 16-year-olds.

Since its inception, the Scottish Parliament has grappled with the concept of the age of majority. It did so for the 13 years during which I served in the children’s voluntary sector, at times when I was participating in trying to influence legislation around exactly that; it did so in the years before that; and it has done so in the years since. However, over time, it is fair to say that we have started to see a natural coalescence around 16 years being the age of majority.

We have heard eloquent speeches from members such as Maggie Chapman about the capacity with which we credit 16 and 17-year-olds in our society. However, there is still variance, because we are always on a journey. The Parliament is on a never-ending journey as regards finding the right balance in law. I mentioned one such variance in my intervention on Rachael Hamilton’s contribution. It was around the age of criminal responsibility, which now rests at 12 years; it was at eight. That is the age at which we credit children and young people with having the mental capacity to understand the impact of their actions and decisions. The Conservatives backed that change to the age of 12 years.

If we can credit 16-year-olds with the mental capacity to commit crime, marry and serve in our armed forces, it is only right that we credit them with the ability to recognise who they are and acknowledge their wish to have that recognised in the documents that we, as a state, require them to hold.

Claire Baker expressed concern about the correlation between the process proposed by the bill and medical transition—a theme that was picked up by Kenneth Gibson. However, I refer to my earlier remark about the people who have gone before us. The bill simply creates a mechanism to have recognition of the person that you are transcribed into the forms that you are required to hold. An important debate can be had about medical transition, but it is not the subject of this debate.

Let us also be clear that the bill is about changing the law to remove the barriers and the trauma around having a person’s gender recognition reflected in the documents that we currently ask them to hold. That is real trauma: the GRA is harming people every day. We cannot allow to continue a situation in which the final decision about someone’s identity is entrusted to strangers whom they have never met.

On amendment 98, I am not persuaded that providing evidence of discussion with an appropriate adult will not create unnecessary barriers to 16-year-olds, but I will support the compromise amendment in Christine Grahame’s name, which Jamie Greene spoke about well.

Scottish Liberal Democrats believe that, if we credit 16-year-olds with the mental capacity to do many life-changing things in our society, we should trust them and credit them with the mental capacity to understand who they are and to seek to have that recognised in the documents that we require them to hold.

Carol Mochan (South Scotland) (Lab)

With reference to my colleague Claire Baker’s amendment 94, I feel that it is important to raise the serious concerns that many parents have raised with me, and which young people have, regarding this section of the bill. That is especially the case considering how poor the current support for young people is in this country, despite the fact that they are perhaps the group in greatest need of support. It is essential that young people can access the same level of psychological and social support as any person before making such a decision, and I do not see that that support is available at all.

16:30  

In amendment 94, my colleague quite rightly asks for a pause to this section of the bill. As she has highlighted clearly and very well, that would not prevent 16 or 17-year-olds from socially transitioning. I cannot think of many pieces of transformative legislation that would be passed before something as important as the Cass review had published its conclusions. Although the review is not focused specifically on NHS Scotland, it clearly has great relevance to Scotland, and we should have the opportunity to consider its findings before we change the age.

Ash Regan (Edinburgh Eastern) (SNP)

I intend to set out my wider arguments on the bill in the debate on group 13, in which I have lodged some amendments of my own. My general position on the bill is that I will not be supporting it. However, I intend to support amendments that I feel will increase the safeguarding provision. In that vein, I am happy to support amendments 6 and 15.

I do not think that including children aged 16 is appropriate for what many people would consider to be a very profound change.

I take this opportunity to share with members in the chamber the view of a mother who wrote to me just a few days ago. She wanted me to read out her perspective to members today. She said:

“My 15 year old daughter is on the autistic spectrum and is struggling with anxiety and depression. Despite showing no signs of gender incongruence before the age of 12, she self-diagnosed as having gender dysphoria three years ago and currently identifies as male. I believe she has been influenced by social media and current societal norms. The teen years is a time of flux and how she feels now may change over time as she matures.

The school and the NHS have taken an affirmative approach despite my concerns as a parent. I don’t agree that the Government should be lowering the age that young people can self-ID to the age of 16 as socially transitioning is the first step along an often misguided path to medicalisation and surgery. I was persuaded and coerced that it was the right thing to do to call my daughter by the new name and pronouns when in fact this was bad advice and has led us down a very difficult path as a family. I believe a watchful waiting and holistic approach is best, looking at all the factors in a young person’s life.”

There are also a large and increasing number of detransitioner voices, which I feel have not been well represented in the process. Just a few weeks ago, Ruth Maguire hosted a detransitioners event in the Parliament, which was mentioned earlier. I agree with the other members who spoke about that event that the detransitioners’ stories were extremely powerful—heartbreaking, even—and that there was a real and strong sense that they had been very much let down by those who should, in fact, have been protecting them.

The question was put to those detransitioners: is self-ID at 16 a good change? It was an emphatic “No” from those two young people. Neither of them supported self-ID and, in their view, young people having a bit of paper with their new gender on it would only incentivise them to seek to change how they looked in order to match their new documents. In my view, the age should be 18 and no lower, and, in my opinion, we should exercise extreme caution in this area.

Pauline McNeill (Glasgow) (Lab)

I want to make a short contribution to the debate and to seek clarity from the ministers on a number of points.

I start by saying that there is considerable public concern about lowering the age to 16, and that it is, therefore, right that it should be the subject of deep scrutiny. I thank all colleagues for their contributions in that regard. We already protect young people who have not reached the age of 18, and we will continue to have those types of debates. I thank Jamie Greene, Jackie Baillie, Carol Mochan and Ash Regan for their important contributions on the importance of supporting young people. That is an important principle however members vote, and it is not at all inconsistent with recognising the independence of young people at 16.

It is important to note—I will continue to talk about this as we progress through the groupings—that the model in the bill is a self-identification model, whereas the 2004 legislation has many other requirements, including a period of two years when documents are changed over. It is important to recognise the substantial difference between having a GRC under the 2004 act and having a GRC under the 2022 bill.

I would like clarity from the Government on the issues. Many LGBT constituents have said to me that when they apply for college, they want to make sure that their birth certificate aligns with their gender, but I am unclear about whether colleges actually ask for that information. I have been advised that they can ask for other documents, so it is important to clarify that point.

The Government needs to be clear about why the UNCRC argues that anyone under 18 is a child. It is important for the Government, not anyone else, to address why it has gone for 16. I will listen very carefully to the answer.

Finally, as Claire Baker and others have said, there is, on the table, an important review by Dr Hilary Cass. I am not sure why the Government does not seem to be listening to Dr Cass’s pleas to halt that particular provision. That seems to be a sensible place to go, at least until the provision is reviewed.

I would be grateful for clarity on those areas before I make my final decision.

I call the cabinet secretary to respond to the amendments.

The Cabinet Secretary for Social Justice, Housing and Local Government (Shona Robison)

Like others, I begin by thanking everyone who has helped us to get to this stage of the bill, and for the constructive tone that has been set so far. Two months ago at stage 1, the principles of the bill were agreed by a strong majority in Parliament, with support from members of all parties. Following that and ahead of stage 2, I undertook meetings with many MSPs from across the chamber. Wherever possible, we worked constructively to agree amendments to strengthen the bill at stage 2, and as a result, more amendments were agreed at stage 2 than were voted down: 47 were agreed, 43 were not agreed and 60 were not moved.

I again met with all members who requested a meeting ahead of stage 3 and, again, I have been able to agree to some positive amendments that are consistent with the principles that were agreed at stage 1. I am grateful to members of all parties for working with me on improvements to the bill.

Fergus Ewing (Inverness and Nairn) (SNP)

I welcome the cabinet secretary’s comments about tone and the involvement of all members, but I ask her to respond directly to a point that was made, albeit briefly, by Rachael Hamilton in her opening remarks. Whereas there might be a majority view in the Parliament, all the evidence of the views of the people of Scotland, as recorded in poll after poll, shows incontrovertibly that a very substantial majority of people in Scotland, ranging from 68 per cent to 81 per cent, oppose the reduction of the age to 16.

Shona Robison

I say to Fergus Ewing that I could point to many consultations and polls. I could point to the two large public consultations at the start of the bill process that showed support. I could point to the BBC poll that was conducted earlier this year that showed support for the bill, particularly among women, and support for reducing the age to 16.

However, I acknowledge to Fergus Ewing and others that there has been a difference of opinion on the bill from the start, and that there has been a difference of opinion on age from the start. I think that I said when I opened the stage 1 debate that the issue of age has been among the most difficult to address, for all the reasons that members have raised. I took a lot of time to consider the issues, and listening to the views of young people themselves was an important part of that. Young people have said very clearly that they believe that they should be able to make such decisions. I will go on to say a bit more about the age of legal capacity.

The amendments that I have worked with members on include amendments that were lodged by Christine Grahame at stage 2, which I supported, and, of course, her amendment 99. The extension of legal gender recognition to people aged 16 and 17, with appropriate safeguards, is, of course, one of the principles that the Equalities, Human Rights and Civil Justice Committee showed clear support for in its stage 1 report, and that area of the bill was strengthened at stage 2.

However, there are amendments in the group that we cannot support. Amendments 6 to 9 and 12, in the name of Rachael Hamilton, seek to revert the minimum age of application to 18. Therefore, I cannot support them.

Does the cabinet secretary accept that agreeing to Christine Grahame’s amendments, which give further support for under-18s, means that the Government accepts that lowering the age is a problem?

Shona Robison

I have listened to concerns that have been raised and to what has been said about the need for young people aged 16 and 17 to have additional support. That is why we agreed to the amendments at stage 2 and why we support amendments at stage 3 that are about ensuring that the young person understands the process and that they seek and undertake appropriate support. I think that that strikes the right balance to ensure that young people are afforded the same rights but are given additional support, in recognition of their age.

Emma Roddick

I would like it to be recognised that a young man had his identity challenged in the Scottish Parliament moments ago. Does the cabinet secretary agree that that is wrong, and will she offer support to him on something that should never have happened?

Shona Robison

I am not aware of the details of the issue that Emma Roddick has raised. However, a person’s details should never be revealed. I agree with Emma Roddick, based on what she has just said.

Amendments 93 and 94, in the name of Claire Baker, provide that the minimum age of applicants should be 18 until such time as the Cass review has published its final report. Given that—I have said this on a number of occasions—there is no link between the outcome of the Cass review of NHS England provision of medical services and the bill, which is about trans people obtaining legal gender recognition in Scotland, I cannot support the amendments.

Claire Baker

The stage 1 report from the Equalities, Human Rights and Civil Justice Committee asked whether the Government would undertake a review of gender identity healthcare. It would be helpful to know whether that is the Government’s intention. There are areas of the Cass review that could be considered. Principally, an increasing number of young women are deciding to go through the process. Does the cabinet secretary think that the Government has a proper understanding of the reasons for that, as we consider extending the right to 16-year-olds?

Shona Robison

On the Cass review, it is, of course, important to recognise that the service model in England still provides the services, but there is a different regionalised model. We have continued to state—it is, of course, the health ministers who are the leads on this—that we will consider closely the findings of the Cass review in the context of our work to improve NHS Scotland’s service provision. It is important to do that.

I should also make the point that the services are multiprofessional health services, so there are links to mental health services, child and adolescent mental health services and other services to support the young person in the round. I hope that that will give reassurance on some of the points that have been made.

Amendment 105, which is in Jackie Baillie’s name, would mean that the minimum age for an applicant was 16 years and six months, instead of 16 years. Setting a minimum age of 16 and a half would be confusing. The principle of the bill is that the person will declare that they have been living in the acquired gender; young people will need to have done that for six months. That is a retrospective look at, commitment to and declaration of the fact that they have been living in the acquired gender.

16:45  

I am looking for reassurance about the safeguards that the cabinet secretary thinks will be in place if somebody applies at the quite young age of 15 and a half.

Shona Robison

A person will be able to apply only from 16 onwards—they cannot apply at 15 and a half. The safeguards that we have talked about are there to ensure that the young person understands the process and the commitment that they are signing up to, and that they can say what support they have received and from whom. I will shortly come to amendments that deal with the detail.

It has been clear to me from listening to young trans people that they feel excluded from the system for accessing legal gender recognition, especially at an age when they want consistent documentation before moving on to higher or further education or starting their first job. I take Claire Baker’s point about colleges and universities asking for particular documentation, but young people themselves are saying that they want to get on with their lives with all their documentation reflecting who they are and how they live their lives. That is not an unreasonable thing to ask for.

Young people in Scotland are empowered at 16 to leave home without parental consent, to get a full-time job, to pay national insurance, to enter into a legally binding contract, to consent to medical procedures, to marry, to change their name and to vote for members of this Parliament. It is, of course, possible to point to comparators—others have done that—on what can and cannot be done at specific ages, but being able to apply for legal gender recognition generally aligns with comparable rights and responsibilities that young people obtain at 16. It aligns with the Age of Legal Capacity (Scotland) Act 1991, which provides that, under Scots law, a person who is of or over the age of 16 generally has legal capacity to enter into any transaction that has legal effect.

I will not support amendments 98 and 101, which are in Jamie Greene’s name. They would require a 16 or 17-year-old applicant to provide evidence, if requested, of the support that they had sought. It is not clear how a young person, if required to do so, would evidence conversations that they had had. Would a record have to be made of a personal conversation with a family member, a trusted organisation or a counselling service, for example?

I cannot support the amendments in Martin Whitfield’s name, which would require a young person to provide the name and contact details of the person from whom they had sought support. A teacher, counsellor, doctor or organisation that supports young people should not expect to be approached by a staff member from National Records of Scotland with questions about confidential conversations that they have had with a young person.

I point out that the bill already provides for a GRC to be refused or revoked for an applicant of any age on the ground of incapacity. As the registrar general explained in evidence to the Equalities, Human Rights and Civil Justice Committee, it is not for NRS to make a judgment about an applicant’s capacity; if NRS has concerns, it will apply to a sheriff, who can determine on the basis of evidence whether a person has capacity. I hope that that gives Martin Whitfield the assurance that he looks for.

Martin Whitfield

Is it right to say that the bill gives the registrar general such a power, albeit that capacity will be assessed not by the registrar general but—rightly—by a court? Is the provision there for when the registrar general is uncertain, but on the assumption that there is capacity to begin with?

Shona Robison

That is correct. Of course, the sheriff would be able to make further inquiries and to look at the evidence. The registrar general will not have that ability, but they will be able to raise concerns about capacity, if they have concerns.

I cannot support amendment 15, in the name of Kenny Gibson, either. It seeks to require that the support that is given to the young person must be provided by someone who is “suitably qualified”. In many cases, such support will be best provided by a supportive family member, for example.

I support amendment 99, in the name of Christine Grahame, which provides that, when a young person confirms to the registrar general that they have discussed their application with a suitable individual, they must inform the registrar general of that person’s role or say how they know them. I think that that will, without introducing new evidence requirements, strengthen the assurance that a young applicant has access to advice or support, and that they have carefully considered their application. With that provision in place, I do not believe that the amendments from Martin Whitfield and others are needed.

I call Rachael Hamilton to wind up and to press or seek to withdraw amendment 6.

Rachael Hamilton

My position on allowing children to apply for a GRC has been clear from stage 1. As with so much of the bill, the provisions in question leave an abundance of unanswered questions.

I believe that the Government is deeply confused about the definition of a child. It cannot explain why it believes that the Cass review has no relevance to this part of the bill. It cannot guarantee that it will not lower the age at which someone can obtain a GRC even further. It cannot explain how the bill’s provisions would interact with the educational provisions in the Equality Act 2010.

Relying on assertions from Scottish Government organisations for reassurance that something is all right does not make it all right. The holes in this part of the bill are glaring and are there for all of us to see.

The fact that we are having conversations about extra safeguards is an admission that members are concerned. I urge members to carefully consider the arguments that I have set out for why maintaining the status quo on the age at which an individual can apply for a GRC is important.

Colleagues have raised significant points—I highlight, in particular, the arguments that Claire Baker, Pauline McNeill, Kenny Gibson and Ash Regan have made. If we keep the status quo on the age—

Does Rachael Hamilton think that it is wrong to weaponise neurodiversity and neurodivergent young people in this debate by saying that they are incapable of making decisions for themselves?

Rachael Hamilton

I am very disappointed by Maggie Chapman’s intervention. It is absolutely disgraceful of her to lower the tone of the very respectful debate that we are all having. We have a right to speak about our concerns in this chamber: any member from any party can speak freely and openly. If we do not have a robust debate on the issue, we cannot make good legislation, and that is a problem for the Parliament.

Daniel Johnson (Edinburgh Southern) (Lab)

Although I am very understanding of why the member has concerns about the way in which neurodivergent people might be being discussed, I say, as a neurodivergent person, that it is incredibly important that we think very carefully about how someone with a neurodevelopmental disorder or who is neurodivergent in some other way might approach the issue if they are transgender. It is important that we think that through very carefully indeed.

Daniel Johnson has made a very important point. One of my family members is neurodivergent, so I ask Maggie Chapman never to intervene in that manner again because, on a personal level, it is very upsetting.

Will the member take an intervention?

No. [Interruption.] No, thank you.

Ms Hamilton has made it clear that she is not taking an intervention.

Rachael Hamilton

I urge members to consider the arguments that I have made. I think that we should look at the matter very carefully, in light of the unanswered questions that I asked the cabinet secretary to address, and given that the Scottish Government supported Christine Grahame’s stage 2 amendment that supported lowering the age. The Scottish Government clearly has an issue with lowering the age and it has understood that two thirds of the Scottish public disagree with lowering the age, as my colleague has already highlighted.

I have no more to add, so I press amendment 6.

The question is, that amendment 6 be agreed to. Are we agreed?

Members: No.

The Deputy Presiding Officer

There will be a division. As this is the first division of this stage, Parliament is suspended for a few minutes.

16:55 Meeting suspended.  

17:03 On resuming—  

The Deputy Presiding Officer

I invite everyone who has not already done so to refresh their screens. We will proceed with the division on amendment 6. It is a 45-second division, and members should cast their votes now.

The vote is closed.

For

Balfour, Jeremy (Lothian) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Callaghan, Stephanie (Uddingston and Bellshill) (SNP)
Cameron, Donald (Highlands and Islands) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Dowey, Sharon (South Scotland) (Con)
Ewing, Annabelle (Cowdenbeath) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fairlie, Jim (Perthshire South and Kinross-shire) (SNP)
Findlay, Russell (West Scotland) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gallacher, Meghan (Central Scotland) (Con)
Gibson, Kenneth (Cunninghame North) (SNP)
Golden, Maurice (North East Scotland) (Con)
Gosal, Pam (West Scotland) (Con)
Gulhane, Sandesh (Glasgow) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Hoy, Craig (South Scotland) (Con)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Kerr, Liam (North East Scotland) (Con)
Kerr, Stephen (Central Scotland) (Con)
Lumsden, Douglas (North East Scotland) (Con)
Maguire, Ruth (Cunninghame South) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
McCall, Roz (Mid Scotland and Fife) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Regan, Ash (Edinburgh Eastern) (SNP)
Ross, Douglas (Highlands and Islands) (Con)
Simpson, Graham (Central Scotland) (Con)
Smith, Liz (Mid Scotland and Fife) (Con)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Thomson, Michelle (Falkirk East) (SNP)
Webber, Sue (Lothian) (Con)
Wells, Annie (Glasgow) (Con)
White, Tess (North East Scotland) (Con)
Whittle, Brian (South Scotland) (Con)

Against

Adam, George (Paisley) (SNP)
Adam, Karen (Banffshire and Buchan Coast) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Bibby, Neil (West Scotland) (Lab)
Boyack, Sarah (Lothian) (Lab)
Briggs, Miles (Lothian) (Con)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Brown, Siobhian (Ayr) (SNP)
Burgess, Ariane (Highlands and Islands) (Green)
Carlaw, Jackson (Eastwood) (Con)
Chapman, Maggie (North East Scotland) (Green)
Choudhury, Foysol (Lothian) (Lab)
Clark, Katy (West Scotland) (Lab)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Constance, Angela (Almond Valley) (SNP)
Dey, Graeme (Angus South) (SNP)
Don, Natalie (Renfrewshire North and West) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Dunbar, Jackie (Aberdeen Donside) (SNP)
Duncan-Glancy, Pam (Glasgow) (Lab)
FitzPatrick, Joe (Dundee City West) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Neil (Airdrie and Shotts) (SNP)
Greene, Jamie (West Scotland) (Con)
Greer, Ross (West Scotland) (Green)
Griffin, Mark (Central Scotland) (Lab)
Harper, Emma (South Scotland) (SNP)
Harvie, Patrick (Glasgow) (Green)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Johnson, Daniel (Edinburgh Southern) (Lab)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lennon, Monica (Central Scotland) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Lochhead, Richard (Moray) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Gillian (Central Scotland) (Green)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Marra, Michael (North East Scotland) (Lab)
Martin, Gillian (Aberdeenshire East) (SNP)
McAllan, Màiri (Clydesdale) (SNP)
McKee, Ivan (Glasgow Provan) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McLennan, Paul (East Lothian) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
McNair, Marie (Clydebank and Milngavie) (SNP)
McNeill, Pauline (Glasgow) (Lab)
Minto, Jenni (Argyll and Bute) (SNP)
Mochan, Carol (South Scotland) (Lab)
Nicoll, Audrey (Aberdeen South and North Kincardine) (SNP)
O’Kane, Paul (West Scotland) (Lab)
Rennie, Willie (North East Fife) (LD)
Robertson, Angus (Edinburgh Central) (SNP)
Robison, Shona (Dundee City East) (SNP)
Roddick, Emma (Highlands and Islands) (SNP)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Sarwar, Anas (Glasgow) (Lab)
Slater, Lorna (Lothian) (Green)
Smyth, Colin (South Scotland) (Lab)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Collette (East Kilbride) (SNP)
Stewart, Kaukab (Glasgow Kelvin) (SNP)
Stewart, Kevin (Aberdeen Central) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Sweeney, Paul (Glasgow) (Lab)
Swinney, John (Perthshire North) (SNP)
Todd, Maree (Caithness, Sutherland and Ross) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Tweed, Evelyn (Stirling) (SNP)
Villalba, Mercedes (North East Scotland) (Lab)
Whitfield, Martin (South Scotland) (Lab)
Whitham, Elena (Carrick, Cumnock and Doon Valley) (SNP)
Wishart, Beatrice (Shetland Islands) (LD)
Yousaf, Humza (Glasgow Pollok) (SNP)

The result of the division is: For 37, Against 87, Abstentions 0

Amendment 6 disagreed to.

I call amendment 93, in the name of Claire Baker, already debated with amendment 6. Claire Baker to move or not move.

Not moved.

That amendment is not moved.

On a point of order, Presiding Officer. I seek your guidance. Where members do not move amendments at stage 3, am I right in thinking that it is open to other members to move them to a vote?

You are absolutely correct, Mr Mundell. Do I take it from that that you wish to move the amendment?

Yes.

Amendment 93 moved—[Oliver Mundell].

Therefore, the question is, that amendment 93 be agreed to. Are we agreed?

Members: No.

The Deputy Presiding Officer

There will be another 45-second division. Members should cast their votes now.

The vote is closed.

For

Baker, Claire (Mid Scotland and Fife) (Lab)
Balfour, Jeremy (Lothian) (Con)
Ewing, Annabelle (Cowdenbeath) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fairlie, Jim (Perthshire South and Kinross-shire) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Mundell, Oliver (Dumfriesshire) (Con)
Thomson, Michelle (Falkirk East) (SNP)

Against

Adam, George (Paisley) (SNP)
Adam, Karen (Banffshire and Buchan Coast) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Baillie, Jackie (Dumbarton) (Lab)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Bibby, Neil (West Scotland) (Lab)
Boyack, Sarah (Lothian) (Lab)
Briggs, Miles (Lothian) (Con)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Brown, Siobhian (Ayr) (SNP)
Burgess, Ariane (Highlands and Islands) (Green)
Burnett, Alexander (Aberdeenshire West) (Con)
Callaghan, Stephanie (Uddingston and Bellshill) (SNP)
Cameron, Donald (Highlands and Islands) (Con)
Carlaw, Jackson (Eastwood) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Chapman, Maggie (North East Scotland) (Green)
Choudhury, Foysol (Lothian) (Lab)
Clark, Katy (West Scotland) (Lab)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Constance, Angela (Almond Valley) (SNP)
Dey, Graeme (Angus South) (SNP)
Don, Natalie (Renfrewshire North and West) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Dowey, Sharon (South Scotland) (Con)
Dunbar, Jackie (Aberdeen Donside) (SNP)
Duncan-Glancy, Pam (Glasgow) (Lab)
Findlay, Russell (West Scotland) (Con)
FitzPatrick, Joe (Dundee City West) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gallacher, Meghan (Central Scotland) (Con)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Golden, Maurice (North East Scotland) (Con)
Gosal, Pam (West Scotland) (Con)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Neil (Airdrie and Shotts) (SNP)
Greene, Jamie (West Scotland) (Con)
Greer, Ross (West Scotland) (Green)
Griffin, Mark (Central Scotland) (Lab)
Gulhane, Sandesh (Glasgow) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Harper, Emma (South Scotland) (SNP)
Harvie, Patrick (Glasgow) (Green)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hoy, Craig (South Scotland) (Con)
Hyslop, Fiona (Linlithgow) (SNP)
Johnson, Daniel (Edinburgh Southern) (Lab)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Kerr, Liam (North East Scotland) (Con)
Kerr, Stephen (Central Scotland) (Con)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lennon, Monica (Central Scotland) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Lochhead, Richard (Moray) (SNP)
Lumsden, Douglas (North East Scotland) (Con)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Gillian (Central Scotland) (Green)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Marra, Michael (North East Scotland) (Lab)
Martin, Gillian (Aberdeenshire East) (SNP)
Matheson, Michael (Falkirk West) (SNP)
McAllan, Màiri (Clydesdale) (SNP)
McCall, Roz (Mid Scotland and Fife) (Con)
McKee, Ivan (Glasgow Provan) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McLennan, Paul (East Lothian) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
McNair, Marie (Clydebank and Milngavie) (SNP)
Minto, Jenni (Argyll and Bute) (SNP)
Mochan, Carol (South Scotland) (Lab)
Mountain, Edward (Highlands and Islands) (Con)
Nicoll, Audrey (Aberdeen South and North Kincardine) (SNP)
O’Kane, Paul (West Scotland) (Lab)
Regan, Ash (Edinburgh Eastern) (SNP)
Rennie, Willie (North East Fife) (LD)
Robertson, Angus (Edinburgh Central) (SNP)
Robison, Shona (Dundee City East) (SNP)
Roddick, Emma (Highlands and Islands) (SNP)
Ross, Douglas (Highlands and Islands) (Con)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Sarwar, Anas (Glasgow) (Lab)
Simpson, Graham (Central Scotland) (Con)
Slater, Lorna (Lothian) (Green)
Smith, Liz (Mid Scotland and Fife) (Con)
Smyth, Colin (South Scotland) (Lab)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Collette (East Kilbride) (SNP)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Stewart, Kaukab (Glasgow Kelvin) (SNP)
Stewart, Kevin (Aberdeen Central) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Sweeney, Paul (Glasgow) (Lab)
Swinney, John (Perthshire North) (SNP)
Todd, Maree (Caithness, Sutherland and Ross) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Tweed, Evelyn (Stirling) (SNP)
Villalba, Mercedes (North East Scotland) (Lab)
Webber, Sue (Lothian) (Con)
Wells, Annie (Glasgow) (Con)
White, Tess (North East Scotland) (Con)
Whitfield, Martin (South Scotland) (Lab)
Whitham, Elena (Carrick, Cumnock and Doon Valley) (SNP)
Whittle, Brian (South Scotland) (Con)
Wishart, Beatrice (Shetland Islands) (LD)
Yousaf, Humza (Glasgow Pollok) (SNP)

The result of the division is: For 9, Against 115, Abstentions 0.

Amendment 93 disagreed to.

The Deputy Presiding Officer

Before moving to the next group, I have been asked to provide a reminder of the indication that the Presiding Officer gave earlier that we would aim to have a comfort break at around six o’clock. That will obviously depend on how we are progressing through the amendments, but that is the intention—at around 6 o’clock.

Group 2 is on applicants with criminal charges or convictions. Amendment 18, in the name of Russell Findlay, is grouped with amendments 22, 28, 39, 39A, 39B, 39C, 40, 40A, 40B, 40C, 40D, 40E, 41, 42, 50, 52 and 53.

Russell Findlay (West Scotland) (Con)

I have nine amendments in this group. They are 18, 22, 28, 39A, 39B, 39C, 50, 52 and 53. I am also pleased to be able to support and speak to amendment 39, lodged by Michelle Thomson, which I will come to in a moment.

All 18 of the amendments in group 2 relate to criminals, specifically those charged with or convicted of serious offences including rape and other sex crimes. Many of my amendments are substantially similar to those that I lodged at stage 2. Any tweaks and improvements that I have made between stages 2 and 3 have been in response to concerns raised by the Government and others. Some of those concerns relate to compatibility with the European Convention on Human Rights, which I have addressed. I will come on to that.

It is important to restate what I said at stage 2: these amendments are not about putting barriers in the way of genuine trans people, who are often marginalised and vulnerable. Women’s rights campaigners and others with concerns about the bill are not conflating trans people with sex criminals. Those who attempt to frame their opposition in that way are irresponsible. To do so, as I suspect that they well know, is a gross mischaracterisation. The accusation made this week by one former Scottish Labour MSP that trans people have become “synonymous with sex offenders”, due in part to “hysterical media outlets”, is typically ill-judged and inflammatory.

I repeat: these amendments are entirely about those men who will, inevitably, seek to exploit the inherent weaknesses of the proposed new system of gender recognition certificates.

Alex Cole-Hamilton

With the way in which Russell Findlay describes his amendments, members could be forgiven for thinking that a GRC represented some kind of passport in our society and that it opens doors for people. However, it does not. A GRC is not a valid form of identification. It is not required to be presented to access a single-sex space or any place where vulnerable people go for help, treatment or anything of the kind. It is simply a piece of paper that legally recognises someone’s gender as they know it to be, and we are making it easier for people to obtain that piece of paper. It is not a valid form of identification to gain entry or a passport to such places.

Russell Findlay

I disagree with Alex Cole-Hamilton. It is not just a piece of paper. It fundamentally changes many aspects of society, which I will come on to address.

The proposed new system is radical—some might even say that it is experimental—when anyone can simply declare that they have changed sex, and that will be taken at face value and facilitated by the state. My amendments are intended to prevent those male criminals who already lie and deceive, and whose victims are almost always women and girls, from committing serious wrongdoing.

I agree with Shona Robison’s words at stage 2. She said:

“I want to be clear from the start that the real threat to women and girls is predatory and abusive men.”

However, I strongly disagree with what she went on to say. This perhaps chimes with Alex Cole-Hamilton’s point. She said:

“There is no evidence ... that those men would obtain a GRC in order to abuse women, or that that has happened in any other countries that have similar processes.”—[Official Report, Equalities, Human Rights and Civil Justice Committee, 15 November 2022; c 17.]

The United Nations special rapporteur on violence against women and girls, Reem Alsalem, was clear when she said that the bill

“would potentially open the door for violent males who identify as men to abuse the process of acquiring a gender certificate and the rights that are associated with it”.

She added:

“This presents potential risks to the safety of women in all their diversity”.

Importantly, she also meant the safety of trans women. She also said that the bill

“does not provide for any safeguarding measures to ensure that the procedure is not, as far as can be reasonably assured, abused by sexual predators and other perpetrators of violence.”

In my notes, I have placed a marker here in anticipation of an intervention about what someone else from the United Nations has said, but no intervention has been made. I therefore turn to Victor Madrigal-Borloz, who is the UN expert on protection against violence and discrimination based on sexual orientation and gender identity, and who has said that there is no evidence of such abuse from other countries that have adopted gender self-ID.

Unsurprisingly, Mr Madrigal-Borloz is the UN expert who Nicola Sturgeon and her SNP-Green ministers choose to listen to and agree with, but is he correct? I do not believe that he is. More specifically, I do not think that Mr Madrigal-Borloz has shown any evidence to support his claim of there being a lack of evidence from other countries. The claim is disappointingly naive, at best, and dangerously false, at worst.

Other people agree with me. MurrayBlackburnMackenzie, which is made up of Dr Kath Murray, Lucy Hunter Blackburn and Lisa Mackenzie, have conducted critical work on gender recognition reform. The policy analysis group examined Mr Madrigal-Borloz’s assertion and found it to be seriously deficient. They say that it is demonstrably untrue that no cases have been reported of violent men obtaining access to women’s spaces using a GRC. They say that, in most countries, there has been little or no effort to record such incidents—if you do not look, you will not find. In some countries, publicly recorded data has become fundamentally compromised by replacing a person’s sex with their gender identity.

I turn to amendment 18. Put simply, it would only allow someone to seek a GRC if they were not a registered sex offender—that is, someone who is on the sex offenders register.

17:15  

The previous version of that amendment, at stage 2, was more robust and was an absolute and unconditional ban on registered sex offenders being able to obtain a GRC. When I met with Shona Robison—a meeting for which I was grateful—she advised me that my previous approach might have been incompatible with ECHR, although she was unwilling to share the legal advice on that. I have therefore added a right to appeal. That is amendment 50, which means that a GRC applicant who is on the sex offenders register could bring their case to a sheriff, who would make that decision.

Amendment 28 is connected to amendments 18 and 50. Amendment 28 is largely technical, in that it would ensure that a GRC applicant who is also a registered sex offender would be required to disclose that.

Amendment 22 is not a repeat of a stage 2 amendment. It is entirely new, but has its roots in stage 2. In response to my wider concerns about registered sex offenders exploiting GRCs, Shona Robison told me that the justice secretary, Keith Brown, had a plan, which was to introduce changes to existing regulations about the management of sex offenders. Essentially, we are being told that registered sex offenders who seek a GRC will have to notify the police.

We may be able to take it on trust that that will happen, but we do not know enough detail. I wrote to Mr Brown on 9 December, but have yet to receive a reply. Even if we had Mr Brown’s plan in front of us, it strikes me that that attempted fix has only come about because of the stage 2 amendment. Why were SNP ministers not concerned about registered sex offenders seeking to exploit a GRC until so late in the day? Their plan appears to me to be reactive, lacking in detail and not much more than a last-minute sticking plaster. That is really not good enough.

Amendment 39 has been lodged by Michelle Thomson. I expect that we will hear a very personal account from her about that amendment and I will therefore keep my contribution brief and focus on its purpose and on the practicalities. Amendment 39 would prevent anyone who is charged with rape or another sexual offence from being able to seek a GRC until after the case against them has been disposed of, whether by acquittal or conviction. The primary purpose is to prevent an alleged rapist—and it is worth reminding ourselves that the legislation says that only a man can commit rape, as the crime is defined by the use of male genitalia—from declaring that he is female.

I previously asked the SNP justice secretary and a very senior Police Scotland officer what would happen in the following scenario: would a traumatised female victim have to call her male rapist “she” and “her” in the High Court? It sounds absurd, ludicrous and unimaginable, but the answers that I got were worryingly vague and completely unconvincing. I regard the imposition of a GRC ban in such circumstances as proportionate and similar to the imposition of the bail conditions that courts apply to accused people every single day. Bail conditions can prevent someone from travelling overseas, can limit their movements or who they communicate with and can enforce a curfew. Such conditions are clearly more onerous and restrictive than temporarily stopping someone from seeking a GRC.

At stage 2, my version of amendment 39 was more general; it sought to prevent anyone charged under all solemn proceedings from seeking a GRC until the case against them ends. At stage 3, amendment 39 specifies only those charged with rape and sex crimes.

I turn to amendments 39A, 39B and 39C. Amendment 39A is a paving amendment, linking 39B and 39C. Amendment 39B would pause a GRC application for anyone who is charged with crimes of domestic abuse and violence; 39C applies to anyone who is charged with fraud. The thinking behind amendment 39B is similar to that behind amendment 39, which is to prevent male criminals from using, abusing or exploiting the lax new GRC laws to taunt, torment or re-traumatise their victims.

I turn to amendment 39C. It seems sensible not to allow someone who is accused of fraud to acquire a new identity with the ease that the bill intends. A fake identity is a tool of many a fraudster. A new identity delivered by the state would be a gift and I believe that it would potentially risk fuelling further acts of fraud. Like amendment 39, amendments 39B and 39C are proportionate. What they provide for would be in place only until the criminal proceedings came to an end.

Amendment 52 would allow a sheriff to revoke someone’s GRC in the event of that person being convicted of rape or sexual assault involving the person’s genitals at birth. Let us restate what the law says. Rape can be committed only with male genitals. That is unambiguous. There have already been deeply worrying cases in Scotland and elsewhere in which male sex offenders have decided to identify as women before going on to commit sex crimes using their male genitals. That should not be happening now, but it is. We should most certainly not pass a bill that would enable more of it. Not only would that be an insult to victims, but it would make a mockery of crime statistics. I ask members to think about it. If a trans woman with a penis and a GRC rapes a woman, the law will say that that crime was committed by a woman. That is utterly perverse and an affront to every woman in Scotland.

I lodged a similar amendment at stage 2 that stated that a sheriff “must” revoke a GRC in such circumstances. However, in an attempt to be European convention on human rights compliant, I have changed the wording from “must” to “may”. Amendment 53 further clarifies that the removal of a GRC in such circumstances would not be an absolute and that a sheriff would heed all the relevant facts before making a decision.

I will quickly address some of the other amendments in the group. Gillian Martin’s amendment 40 would allow the chief constable, when applying for a sexual offences prevention order, to prevent the person from applying for a gender recognition certificate. That would involve the chief constable having to notify the registrar general of the application and the making of an interim order that would prevent the person from applying for a gender recognition certificate. The outcome of any application for an order would have to be communicated to the registrar general by the chief constable. An application for a gender recognition certificate that was made in breach of an order would be treated as if the application had never been made.

I will support amendment 40 because it represents a strengthening of the provisions in the bill. Currently, there is nothing in the bill to prevent predatory men from applying for a GRC. A sexual offences prevention order must be made on application to a sheriff court by a chief constable. It applies to offences that are listed in paragraphs 36 to 60 of schedule 3 to the Sexual Offences Act 2003. That is similar to my amendment that seeks to ban sex offenders from applying for a GRC.

However, there is a crucial difference. As per the 2003 act, a person is always subject to notification requirements if they are convicted of an offence that is set out in the act, although the time period for which they will be subject to requirements will vary, whereas sexual offence prevention orders are far less common and are not required when a person is convicted of a sexual offence.

Information on sexual offence prevention orders is not published regularly, as far as I can tell. However, the latest data that is publicly available, which is from 19 October 2020, shows that Police Scotland confirmed that there were 6,016 registered sex offenders in Scotland, which can be compared with the 668 offenders that it managed with sexual offence prevention orders. That means that registered sex offenders outnumbered offenders who were subject to those prevention orders by around 9:1. Although amendment 40 is a welcome step, it is therefore not enough. I would prefer the Scottish Government to endorse my proposals, which are, as I have demonstrated, more comprehensive.

Amendments 40A to 40E are consequential to Gillian Martin’s amendment 40. They would insert sexual risk orders into the wording in her amendment. Equivalent orders are used in England and Wales and, as I understand it, offenders who are subject to them are monitored by Police Scotland should they choose to locate here. It is welcome that that type of order is included, but it will not substantially change the number of people who will be impacted by the substantive amendment 40.

Amendment 41 is also consequential to amendment 40.

I move amendment 18.

The Deputy Presiding Officer (Annabelle Ewing)

Members will note that we will shortly reach the next time limit, and we have a further group of amendments still to debate. As a consequence, under rule 9.8.5A, I am minded to accept a motion without notice to extend the time by 30 minutes. I call the Minister for Parliamentary Business to move such a motion.

The Minister for Parliamentary Business (George Adam)

I will gladly move that motion, Presiding Officer.

Motion moved,

That, under Rule 9.8.5A, the first time limit be moved by up to 30 minutes.—[George Adam]

Motion agreed to.

I call Michelle Thomson to speak to amendment 39 and other amendments in the group.

Michelle Thomson (Falkirk East) (SNP)

I will speak only to amendment 39 in the group. I feel that the case for the other linked amendments has been put eloquently by Russell Findlay.

For the record, I cannot begin to imagine the angst that trans people suffer, and I offer an open heart to people who wish to live with dignity and respect in their chosen gender. My biggest concern about the bill is with regard to bad-faith actors, about whom the First Minister has also recognised concerns.

Amendment 39 specifically relates to men who are applying for a GRC who have been charged with a sexual offence, but have not yet been convicted and placed on the sex offenders register. It simply seeks to pause an application for a GRC until any court case has been resolved. During stage 2, and again today, Russell Findlay pointed out that a woman could end up having to refer to her attacker as “she”. Do members in the chamber understand how that could represent an opportunity for abusers to exert power and control over their victims?

My first point concerns risk, which involves probability and outcome. The probability of the situation that I have depicted occurring is low; however, if it were to occur, the outcome for the victim could be devastating. As a result of my history, I still suffer from post-traumatic symptoms. Feelings of desperation can resurface, sometimes with a sudden need to sleep. I can have lost days of depression. I can have an acute need to feel safe, and I have bouts of anxiety. Such has been the distress that has been caused by the bill that, one day, I had to go home in floods of tears and withdraw from a debate. I am not looking for sympathy. I have privilege; I have agency. The impact of trauma falls hardest on the weakest, the poor and the disenfranchised. I have a voice; they do not. In the past six years, who has spoken for them?

My second point is that, in those six years, the Scottish Government has not undertaken or published any qualitative impact assessment about traumatised women. The Equalities, Human Rights and Civil Justice Committee has failed to meet female sexual survivors, which has created further distress. I thank the cabinet secretary for our meetings; however, I must comment further. I know that amendment 39 will be opposed by the Government on legal grounds that are as yet untested.

My final point concerns the recent case that was won by the Scottish Government, in which it argued that a man with a GRC becomes a woman for all purposes. The logical extension of that position is that the Scottish Government regards a man who has been convicted of rape or sexual assault as a woman for all purposes. Is that really the Government’s view, and what message does it send to women? Does the Government understand that it is putting the rights of a GRC-seeking man who has been charged with sexual assault or rape above the rights of the woman who is the victim?

17:30  

One solution was for the registrar general to question whether the applicant had been charged with a sexual offence. However, I was informed that this could send a message that all trans people were sexual predators, which we all agree is ridiculous. However, the reasoning is also ridiculous. Most insurance companies ask about criminal convictions, not because they believe that all those seeking insurance are criminals but because it is directly relevant to risk.

Presiding Officer, I leave all colleagues and the Scottish Government to answer the question posed by Roddy Dunlop KC. He said:

“I can conceive of no sensible basis upon which this amendment might be rejected … this would not affect trans-rights in any way. It would merely stop those rights being abused by men who are *not trans*. Why would one want to aid & abet such men?”

Thank you, Ms Thomson. I call Gillian Martin to speak to amendment 40 and other amendments in the group.

Gillian Martin (Aberdeenshire East) (SNP)

I will speak to amendments 40, 41 and 42, which are in my name. I seek to address the risk that might be presented by some applicants, notably those on the sex offenders register, and I thank my colleague Jamie Greene for supporting the amendments in the order paper.

The cabinet secretary confirmed at stage 2 that, before the bill was implemented, the Scottish Government would amend the notification requirements for those on the sex offenders register to include having made an application for a GRC. That would mean that additional information would be available to help to identify an individual and inform their subsequent management under multi-agency public protection arrangements, known as MAPPA. That adds to the information that those on the register are already required to provide to the police, such as their name, address, and passport details, so that the police are fully informed about information relating to a person’s identity.

Other stage 2 amendments to the bill allow for the issuing of a gender recognition certificate to be prevented where the application is fraudulent, but there is nothing so far to prevent it on the basis of risk. That is what I want to address.

Amendment 40 would provide the ability for the chief constable to notify the sheriff after a risk assessment is carried out on applicants who are on the sex offenders register. Should that risk be unacceptable, Police Scotland would apply for a sexual harm prevention order or a sexual offences prevention order, which would prevent the applicant—

Will the member take an intervention?

Yes, I will.

I am only privy to data from 2020, which is that one in 10 registered sex offenders is subject to those orders. Does the member have more up-to-date numbers on that?

Gillian Martin

I do not. If I had that information, I would tell you.

I do not think that the numbers really matter. I come from a background where I did a lot of safety work around oil and gas, and just because something is very unlikely to happen, it does not mean to say that we should not be mitigating that risk. That is always the position that I come from when I look at law.

Just because maybe only one person might get through, that does not mean that we should not mitigate risk. We have to be proportionate, but at the same time we have to recognise that some things could happen when we are making law. I look at this in the same way.

I will just find my place in my notes again.

Should that risk be unacceptable, Police Scotland would apply for a sexual harm prevention order or a sexual offences prevention order, which would prevent the applicant from obtaining a GRC—it should stop the application.

Once either of those orders is in place, the chief constable must inform the registrar general, who must take no further steps on the application until the order has ceased to have effect. That could have a timeframe that the sheriff thinks is proportionate.

That will not have any effect on other applicants. By that, I mean that the process in this bill that we are debating is supposed to provide trans people who legitimately want to obtain a GRC with a dignified, respectful and private process, and that is a process that I support.

I have constituents who have had a traumatising experience with the current process and it is absolutely right that we reform it. However, a GRC is for trans people. It is not for sexually violent individuals who want to exploit any systems. Those people are, by definition, exploitative.

My amendment 40 would ensure that people with sexual offences history, who pose real harm, will not be able to exploit the system. That will mean that any sex offender who comes into Scotland from elsewhere in the UK will also be subject to the notification requirements, as they will be resident here.

The amendment makes use of existing police powers under the Abusive Behaviour and Sexual Harm (Scotland) Act 2016, the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005 and the Sexual Offences Act 2003. It allows the chief constable to inform the registrar general that an application to a sheriff for a sexual harm prevention order is being made. Such an order contains prohibitions or requirements that are necessary to protect the public, children or vulnerable adults from sexual harm by the person against whom the order is made.

My amendments would allow for an application for a GRC to be paused to allow for a sexual harm prevention order to be applied for. That would involve Police Scotland notifying the registrar general that, based on continuing risk assessment and risk management under MAPPA, it intends to apply for an order. The National Records of Scotland would then pause the application process for a GRC and not issue a certificate pending the outcome of the application for the order. It would be for a sheriff to consider and agree to the order based on the evidence put forward. That is evidence from agencies that know the person and are well aware of their history.

That is a stronger process than the current system allows for. The gender recognition panel does not use risk assessments to make its decisions. One of the reasons that I am for reform is that the gender recognition panel can sometimes seem arbitrary to people. I referred earlier to someone I know who was refused a gender recognition certificate and felt that the process was traumatising because they had never spoken to anyone in the panel and they could not understand the decision.

I am confident that what I propose would better protect people against the harm that sex offenders might pose if they try to exploit the having of a GRC. A GRC is for trans people, not predators.

I will talk about my amendments 41 and 42 and explain how the process would affect applicants who are on the sex offenders register. I will be clear: trans people would not be asked to make any declaration in relation to the sex offenders register on the application form. I am pleased that Stonewall, Scottish Trans and the Equality Network support my amendments and make it clear in their briefings that the measures that I propose would directly address the harmful conflation of trans people and sex offenders that we have sometimes heard in public discourse.

It is our job in the Parliament to mitigate any risk, no matter how small. Trans people do not pose a risk; sex offenders do. I understand the concerns that many people have about sex offenders applying for a GRC and I share them to a certain extent, but we must do everything that we can within our powers and within human rights legislation to prevent sex offenders from exploiting processes that might allow them to further offend or to abuse other people.

I get what Alex Cole-Hamilton said about a GRC not being a gateway, but it could be used to confuse and exploit people. I feel strongly, as others do, that I had to find a competent way to safeguard against that. The amendments that I lodged are fully compliant with existing human rights legislation, particularly the European convention on human rights, which is where previous amendments fell down at stage 2, as Russell Finlay mentioned.

Amendment 40 is a competent amendment, which I have worked on with the Government to get right. I hope that members who want to mitigate the risk that sex offenders pose can see that it is an effective way to safeguard against them. The registrar general would not be able to grant an application for a GRC as long as a sexual harm prevention order was in force and the offender could reapply only as and when that order had ended. It is up to the sheriff how long an order is in place for and it is an established process that sheriffs are used to considering.

Taken together, my amendments 40 to 42 would mean that people who were on the sex offenders register would not be able to receive a GRC without their risk having been assessed by the agencies that know them.

It is my firm assertion that my amendments would strengthen the current process, in which no risk assessments are done at all, prevent exploitation of the GR process by harmful sex offenders and afford women and trans people additional protection from those offenders.

I thank Jamie Greene for supporting all of my amendments, and colleagues who have told me that they support my proposals so far. I ask everyone to support my amendments.

Shona Robison

I start by saying, as I have said many times before, and as members across the chamber have also said, that the threat to women and girls is of course from predatory and abusive men. Of course, there is no evidence that such predatory and abusive men have ever needed to apply for legal gender recognition to carry out their behaviour. That has not happened in the other countries that have introduced similar reforms.

Russell Findlay referred to the evidence from the UN independent expert, Victor Madrigal-Borloz, who made the point that there are now more than 300 million people living in countries that have adopted a statutory declaration type of approach, and there is no evidence of those issues and concerns coming to fruition.

Ash Regan

That was not the characterisation that was put forward in the additional evidence session that the Equalities, Human Rights and Civil Justice Committee had last night by Reem Alsalem, who is of course the UN special rapporteur with a special mandate for violence against women. She said that the evidence is there. She said that the evidence has not been collated, analysed and put together in one place, but the evidence certainly is there. Is the Government at all concerned that impact assessments of the effects of the proposed legislation have not taken place and that we are increasingly collecting data on the basis of gender identity and not sex?

Shona Robison

First, on the issue of how data is collected, the member will be aware of the guidance on that from the chief statistician, which is that data should be collected by asking the question on male/female, with a voluntary trans question. That is important, because it is about gathering all the evidence. That guidance is what public bodies should follow.

We will come on to some amendments on the data that should be collected regarding the proposed legislation. Amendments will be considered on the data that should be collected for the three-year review.

I also met Reem Alsalem and, during that meeting, which was very constructive, no such evidence was brought forward. We had a discussion about some of the general concerns that are voiced, but that is not the same as hard evidence. We also pushed to hear about some of the safeguards that she described other countries as having, and there were no such safeguards that we were not already putting in place or intending to put in place. As I say, it was a constructive meeting, and I thank her for that.

Fergus Ewing

It was reported several weeks ago in The Sunday Times that, over the past three years, several hundred—I think more than 300—registered sex offenders have changed their name, plainly in order to disguise the fact that they are sex offenders from those with whom they deal. Can the cabinet secretary explain how, if we reject Mr Findlay’s amendments, there will not be additional risk, as Michelle Thomson has argued, from men masquerading and applying for a GRC in order to proceed with their nefarious purposes, having even changed their name before they apply for a GRC?

Shona Robison

Let me be very clear. I cannot speak for what the arrangements are elsewhere, but the arrangements in Scotland—MAPPA, which are the arrangements for the management of sex offenders who are on the register—require the notification of a change of name, a change of address or, which is what we are adding in the bill, an application for a gender recognition certificate.

Will the cabinet secretary take an intervention?

17:45  

Shona Robison

I want to make some progress, and then I will bring in the member.

Importantly, the bill does not change the Equality Act 2010, which is of course reserved legislation that we cannot modify—a point that is now enshrined in the bill following a stage 2 amendment. I recognise that some people have concerns and fears that are of course genuinely held, and throughout the process I have tried to address those concerns.

I point out that, as Gillian Martin referred to, in the current process, which has been in place for 18 years, although someone has to show that they have gender dysphoria, sex offenders or anyone who has committed an offence are not barred from applying. The current assessments that are made by the gender recognition panel are not based on risk of harm. Following stage 2, the bill now introduces mechanisms to allow for a risk-based approach that in many ways goes further than the current system.

Will the cabinet secretary give way?

Yes, of course.

Michelle Thomson

The point that I was trying to make in my speech is that risk assessment needs to be looked at in the round. When we look at risk assessment, we have to look at all the key stakeholders in that risk. I ask the cabinet secretary to give us a sense of the risk of further traumatising victims, because that is as important as the risk assessment around managing offenders.

Shona Robison

I will come on to Michelle Thomson’s amendment 39 in a second, but I absolutely take the point. Whether it is in our court processes or any other processes, we have come on in leaps and bounds in how victims are treated. Obviously, the courts are independent of politicians, but victims should be treated with respect and should not be further traumatised.

Will the cabinet secretary take an intervention?

Shona Robison

I want to make a little bit of progress.

Although I believe, based on all the evidence from other countries, that the likelihood of so-called bad actors seeking to abuse the process is very low, I have listened to members seeking reassurance and therefore propose a proportionate approach to provide useful safeguards based on assessment and management of risk in individual cases. I do not think that it is a bad thing that we have listened.

Will the cabinet secretary take an intervention on that point?

Shona Robison

Let me make some progress, and I will try to come back to the member.

As I set out to the committee at stage 2, before the bill is commenced, the Cabinet Secretary for Justice and Veterans will introduce regulations to amend the sex offender notification requirements so that people who are on the register are required to notify the police with details if they apply for legal gender recognition. That will mean that additional information will be available to help to identify an individual and inform their subsequent management under the multi-agency public protection arrangements, or MAPPA.

That will allow action to be taken either in relation to the application itself, if necessary, or as part of the broader police role in managing the registered sex offender population. If the police believe that an application is fraudulent, they could apply, as a person with an interest, to a sheriff to revoke a GRC. Alternatively, the registrar general, if informed by Police Scotland, could reject such an application following a successful application to the sheriff, meaning that the applicant would be denied a GRC. That means that it will be possible to prevent someone who is on the sex offenders register from fraudulently obtaining a GRC.

Amendments 40 to 42, in the name of Gillian Martin, would further strengthen that risk-based approach. Police Scotland, after considering the evidence of risk in relation to a specific case, can already apply to a court for a sexual offences prevention order or a sexual harm prevention order, and that would prevent a person from applying for a GRC. The amendments would require the chief constable to inform the registrar general and the registrar general to take no further steps on the application until the order has ceased to have effect.

Will the cabinet secretary take an intervention?

Shona Robison

Let me finish this part, and then I will take it.

I therefore support the amendments in Gillian Martin’s name.

Amendment 39, in Michelle Thomson’s name, provides that the registrar general must pause an application from someone who has been charged with certain offences until their case has been disposed of. I sympathise with what her amendment seeks to achieve, and anyone who heard Michelle Thomson’s testimony could not fail to be moved—as members across the chamber were. However, we consider that there is a significant risk of the amendment being incompatible with the ECHR and, as such, outwith legislative competence.

Will the member take an intervention?

Shona Robison

In a second.

To bring it into effect, the registrar general would be required to ask every applicant whether they had been charged with a sexual offence. I think that Michelle Thomson herself recognised that we are talking about a very small risk. However, after meeting with Michelle Thomson on a couple of occasions and hearing how passionately and sincerely she feels about this, I looked at what more could be done. That is why we have proposed a solution that I think would meet the aims of her amendments in a way that is compatible with the ECHR.

The approach in these amendments is to extend the process, which I described earlier, in relation to prevention orders so that it also applies to a sexual risk order. A sexual risk order is a civil preventative order that is designed to protect the public from sexual harm and, unlike with the other types of order, there is no need for a previous conviction or equivalent. This new approach can allow a GRC application from someone accused but not yet convicted to be paused based on an assessment of the risks involved by the police.

I believe that the amendments in my name, in combination with those in the name of Gillian Martin, will allow for a risk-based approach that builds on existing action that the police can already take in relation to the management of offenders. I consider that that will achieve similar aims to those of Michelle Thomson, but it will take a risk-based approach rather than putting a blanket ban on persons who are charged or convicted.

Russell Findlay

At stage 2, there was no secret around the amendments that we lodged, discussed and were ultimately rejected. I subsequently met the cabinet secretary to discuss them again and at stage 3 I attempted to make them ECHR compliant. They were lodged, and we got a letter only at past 10 pm last night that said that they may not be ECHR compliant. It all just seems so slapdash and half baked.

Today, in your summing up, you suggested that the amendments are not ECHR compliant, but it is not an absolute. Can you share the legal advice around that? Members are voting with only half a picture, and that really is not good enough.

I remind members to speak through the chair.

Shona Robison

I was just going to come on to the provisions in the bill having to be compatible with the ECHR. I cannot share the detailed legal advice that I have received, but I think that Russell Findlay would acknowledge that I was very clear with him and others when I thought that amendments were outwith the competence of the Parliament or in breach of the ECHR.

The letter, which was sent to members at about 19:41 last night, was to put beyond doubt that those amendments would put the bill in jeopardy, because we all have a duty, as legislators making good law—

Will the member take an intervention?

Shona Robison

Hang on a minute, and let me finish my point.

We are required to take on board when legal competency, or the potential breach of the ECHR, is at stake. What I set out in that letter could not be clearer in that regard.

Russell Findlay

I think that it actually could be clearer. The letter seemed to suggest that there is a risk of non-compliance, but what the cabinet secretary appears to have said in the chamber is that it would be an absolute non-compliance. Can the cabinet secretary clarify which it is, please?

Shona Robison

I can only say that it was a risk because it would then depend on the action that was taken in a court process, but we have been here before with legislation when ministers have been very clear to Parliament that an amendment is either outwith competence or is in danger of breaching ECHR, and we have ended up in court because of those issues.

All that I can say to members is that I am trying to be as honest as I can about the potential implications of some of those amendments. I set those out in the letter for the avoidance of any doubt.

Oliver Mundell

On a point of order, Presiding Officer. I seek clarification on the role of the Presiding Officer in selecting stage 3 amendments and on the role that the Presiding Officer and Parliament play in ensuring that the amendments that come before us are ECHR compliant.

The Deputy Presiding Officer

I understand that that point might have been addressed earlier. I say to the member, however, in case there is any confusion, that looking at criteria and determining admissibility is not the same as looking at whether a matter is within legislative competence, as far as amendments are concerned at stage 3—they are not the same process. Perhaps that has caused a bit of confusion. Thank you.

Shona Robison

I want to be clear that this is an issue that Parliament needs to look at at some point, because there is no requirement for amendments to be within legislative competence. There is a requirement for bills to be within legislative competence, but the Parliament does not look at the legislative competence of amendments; it leaves that to the Government. As the minister in the Government who is responsible for this bill, I am telling members that there are issues and risks associated with the amendments.

Daniel Johnson

We have had a discussion about the fact that it is the cabinet secretary’s opinion that these amendments are not legal, but she has not detailed on what specific grounds the Government considers that to be the case. She is saying that the grounds are detailed in her letter, but, as I am not aware that the letter is a matter of public record—it is certainly not here before the Parliament—could she explain why she believes that these amendments fall foul of ECHR?

Shona Robison

I was going to come on to the detail of that in group 13, because there we get more directly into some of the issues that have been raised around these amendments. The letter—which I understand was given to members of the press, as some of it was reported—essentially looks at a number of areas of competence under ECHR: article 8, on the right to private life; article 14, on protection from discrimination; and so on. I intended to go into more detail on that under group 13.

I should also say, of course, that it is not my opinion. I am not a lawyer. I have to go by what the law officers tell me in terms of the legal advice that I am given, which I am not at liberty to share the detail of other than the generality.

Daniel Johnson

I understand that, but ultimately we will have to vote on these amendments before some of those issues will have been elucidated by debate in group 13. Although the minister has cited particular articles of the ECHR, she has not detailed precisely why these amendments fall foul of those elements of the ECHR. I do think that Parliament requires to understand the Government’s thinking before we vote on these amendments.

Shona Robison

Members are aware that I am constrained from disclosing the details of the source of the legal advice that has been provided, not least by the ministerial code. We routinely obtain legal advice on the competence and effect of amendments to any bill. It is the same for these amendments as it is for the advice on the competence of any amendments to a bill that are lodged.

As members will be aware, the law officers have the right to refer a bill to the Supreme Court if it includes a provision that they consider to be outwith competence. However, that is a matter for them and not for the Government, under the Scotland Act 1998.

All that I can say is that I have tried to make the concerns about these particular amendments known. It is for members to make a judgment about whether or not they accept that. However, I have to lay out the potential consequences of accepting amendments to the bill that could breach the European convention on human rights or, indeed, be outwith legislative competence.

Will the cabinet secretary give way?

Shona Robison

No—I want to make progress on the points about the amendments.

The amendments in the name of Russell Findlay, as I set out in some detail when speaking to similar amendments at stage 2, are, I believe, disproportionate. We also consider that there is, as I have set out, a significant risk that they would be incompatible with ECHR and, as such, there is a risk that they are outwith legislative competence. I do not support them.

I have set out why a risk-based approach is important. If the issue is to try to deal with a tiny risk that may never happen, that risk must be dealt with on a proportionate basis. That means ensuring that, if an individual poses a risk, the police have the ability to do something about that risk.

18:00  

Members are saying that the outcome that they want is to prevent someone who the police believe to be a risk, whether or not they have been convicted, from gaining a GRC. The measures set out at stage 2, in addition to the amendments by Gillian Martin and those in my name, will achieve that outcome. If that is the outcome that people want, it can be achieved by agreeing to those amendments.

I want to clarify that point. Are there circumstances in which a convicted sex offender, who is still on the sex offenders list, can get a GRC?

I have literally spent the past 10 to 15 minutes outlining why someone who—[Interruption.]

Members, please let the cabinet secretary respond to the point.

Shona Robison

I presume that Brian Whittle is referring to someone who poses a risk. If someone is on the sex offenders register and the police believe that there is a risk that that person may misuse a GRC for nefarious purposes or that they are applying fraudulently because they have no intention of living in the acquired gender, then, as I have set out, the amendments will prevent that person from obtaining a gender recognition certificate. Under the current system, which has been in place for 20 years, there is no such impediment to someone on the sex offenders register obtaining a gender recognition certificate. The amendments will put into the process additional safeguards that are not currently in place.

I say to the member that that is of some interest to the UK Government, which may also be considering that.

I cannot support amendment 22. As we have said, we have made a clear commitment to introducing regulations before the bill comes into force.

Will the member give way?

Shona Robison

No thanks.

Those regulations will expand the existing sex offender notification requirements to include notification of having made an application for gender recognition, which is what amendment 22 seeks to do. It is more appropriate to make that change through the regulation-making powers that are already available. As I have said before, that will provide the outcome that people want of a risk-based approach that is proportionate, legal and compatible with ECHR. I urge members to support the amendments in my name and that of Gillian Martin.

The Deputy Presiding Officer

Members will note that we have passed the agreed time limit for the debate on this group of amendments to finish. Taking into account that there are members who still wish to speak, I have exercised my power under rule 9.8.4A(c) to allow debate on the group to continue beyond the limit, in order to avoid the debate being unreasonably curtailed.

Maggie Chapman

I speak against all the amendments in the group apart from those in the names of Gillian Martin and Shona Robison.

I find the dog whistles that are inherent or implied in some of the amendments in the group—those that equate trans people with sex offenders—to be most disturbing. We know that trans people are more likely than the general public to be victims of abuse. We should certainly not be asking trans people to state that they are not sex offenders when they apply for a GRC. I thank Gillian Martin for stating that so clearly.

It seems that some people in the chamber would benefit from a better understanding of human rights, particularly those that enshrine respect for private and family life. That includes the right to be recognised in one’s real gender. That right applies to everyone, even those who have committed crimes or who are suspected of having committed crimes. As we have heard, several of the amendments in the group, if passed, could cause the bill to fall foul of international human rights conventions. We have heard from every single party in the chamber that predatory men do not need a GRC to abuse women—those men are the issue here, not trans people.

Will the member take an intervention?

Maggie Chapman

No.

Let us not fall into the trap set for us by those who do not support the reforms in the bill at all. Trans people are not the problem. Let us not add hurdles for them in their application process.

Jackie Baillie

I speak in favour of amendments 40, 41 and 42, in Gillian Martin’s name; amendments 40A to 40E, in the name of the cabinet secretary; amendment 39, lodged by Michelle Thomson, who spoke very powerfully this afternoon; and amendments 18, 22, 28, 50, 52, 53, 39A and 39B, lodged by Russell Findlay.

First, let me make it absolutely clear that I do not believe there to be a link between the trans community and sexual offenders. It is important that we make that point up front and continue to emphasise it.

However, I accept that, as we open up the process by which a person can apply for a gender recognition certificate, we must ensure that it is robust and that so-called bad-faith actors cannot abuse the system. It is reasonable for us, as legislators, to ensure that there are checks and balances in place so that those with ill intent are prevented from accessing GRCs. For that reason, I welcome the amendment in Gillian Martin’s name, agreed with the Scottish Government, that will allow for a pause to an individual’s GRC application if they are subject to a sexual harm protection order or a sexual offences prevention order. It is right that, in those circumstances, a proper risk assessment takes place.

I am pleased that the Scottish Government has committed to introducing regulations to ensure that there are notification requirements with regard to GRC applications for those on the sex offenders register. Those regulations, together with the amendments that are being debated today, would result in the police being able to notify the registrar general of the need to pause a GRC application from an individual on the sex offenders register until a sheriff had determined whether it should proceed. That is very helpful movement from the Government, which I acknowledge is helped by Gillian Martin’s amendment. I invite the Scottish Government to confirm on the record, though, that that is, indeed, its intent, because such regulations would be crucial to achieving the safeguards that I believe are the intended purpose of the amendments lodged by Gillian Martin.

I also recognise that there are some concerns about timescales and ensuring that those regulations are passed prior to the bill commencing.

On that point, I can give Jackie Baillie and the chamber a categorical assurance that those regulations will be in place before this legislation is commenced.

Jackie Baillie

That is very helpful reassurance, because Scottish Labour was concerned about the timescales, and it was on that basis that we were supporting Russell Findlay’s amendments 18, 28 and 50, which place safeguards on the face of the bill by requiring a person who is subject to notification to first seek an order from the sheriff, allowing their application to proceed. Putting that on the face of the bill ensures that those safeguards come into force when the bill is enacted. We also welcome the amendment setting out that an appeal process will be in place that allows the sheriff to decide the circumstances under which sexual offenders may be able to apply for a GRC.

We are supportive of the intent behind amendment 39, in the name of Michelle Thomson, which would pause applications for a GRC when the applicant was subject to on-going proceedings relating to sexual offence charges. However, we cannot support amendment 39C, which would bring people convicted of fraud into that category. We believe that that is too broad a suite of offences, which could include those convicted of offences that would have no bearing on an application for a GRC—for example, those convicted of benefit fraud.

I will explore the issue of competence when I come to amendment 127, in group 13, but, for the purpose of this debate, we support the amendments from Michelle Thomson. Members across Parliament are right to listen to the voices of women who are concerned about the system being abused by bad-faith actors who are intent on doing harm. Those amendments are a reasonable and proportionate means of providing that very reassurance, which is why Scottish Labour will vote for them today.

Jamie Greene

I thank members for the debate. It is very healthy that we have extended the time allocated to this group of amendments. It is an important group that deserves a proper airing. The Government absolutely deserves to be scrutinised on any claims that it makes. For the most part, that has been done very respectfully today, which is helpful to members.

I commend the comments made by Michelle Thomson, who eloquently and sensitively provided us with a real-life scenario illustrating what much of that means to people. Many of the discussions are around the what ifs and the maybes, but the risk exists whether it be small, large or otherwise. All members should reflect carefully on what Ms Thomson said and what she has asked of the Government.

I also thank Gillian Martin for her comments. Her philosophy on the bill, and the sentiment with which she has expressed it, very much mirrors mine. It is no huge secret that I want to improve the lives of trans people and, at every stage of the process, have sought to protect that approach and prevent it from being undermined.

However, we are listening to the genuine and valid concerns that are out there, which members have expressed through a number of amendments. Due to their technical nature, I do not agree with them all, but, in principle, I have much sympathy for them. Gillian Martin has sought to work with me. That is not the only unlikely pairing that we have seen in the debate: at stage 2, Christine Grahame collaborated with Jackson Carlaw and Russell Findlay with Michelle Thomson on a shared ambition to strengthen safeguards. Ms Martin and I have sought to ensure that there might be a competent and sensible way through that process. My hope is that a compromise might be acceptable to members with valid concerns about the consequences of such legislation and also those who were happy with the bill at stage 1 and wanted no change to it at all. We have heard comments of that nature from members on all sides of the chamber.

Many members’ concerns about the bill have been focused largely on the possibility of people fraudulently obtaining certificates, what they will do thereafter, the sorts of spaces they will access and, as other members have called them, the nefarious actions that they might go about taking. There have been many unhelpful debates about the validity of such concerns. I do not wish to rehash those here, but that is exactly why, during the bill process, I have lodged amendments, some of which have been passed, and I have lodged another cohort that are still to be debated. It is also why I support Gillian Martin’s amendments.

I have lodged amendments that would ensure that a crime committed using a fraudulently obtained certificate would become an aggravated offence. People who committed such a crime would receive a harsher punishment, which should act as a deterrent. That is only part of the process—it is not all. I hope to introduce measures that would remove fraudulently obtained certificates from individuals. We will debate those in a later group. In addition, I am supporting Gillian Martin’s amendments that would give Police Scotland the power to apply for sexual harm prevention orders for individuals whom they believe could abuse the simplified process.

At stage 1, I made it clear that, whatever someone’s views on the bill might be, the fact that we are simplifying the process for obtaining GRCs will inevitably result in two consequences. One is a potential increase in the number of applicants—that is a fair commentary on what might happen. The other important concern is that there has been a perceived reduction in safeguards. Therefore, I think that there is a duty on us to reintroduce those safeguards where we are able to do so competently and sensibly.

Whether we like it or not, it remains the case that, because of international human rights law and the ECHR, such changes in the bill, if it is passed at stage 3, might leave it in legal limbo, much like many other pieces of legislation. I cite the example of the UNCRC legislation. That is not a place that I want to be in; it may be that others want such a result.

I have listened carefully and intently to the debate. The cabinet secretary is claiming to have taken robust legal advice on the consequences of the amendments. I have to say that I am sympathetic to that on the premise that I do not want them to become a barrier to the bill’s becoming law in the future. However, I have also listened carefully to the comments made by Ms Thomson, Mr Findlay and others, who are right to want to scrutinise the Government on the provenance, veracity and robustness of those claims. I have to say that I am yet to be convinced that those amendments will inevitably lead to such legal problems in the future. It was interesting to hear Jackie Baillie reiterate that point.

The bill has presented a difficult conundrum for people like me, who support its premise but, from a moral point of view, absolutely do not want to see the wrong type of people using the process for the wrong reasons. I am sure that some members will think that Ms Martin’s amendments simply do not go far enough, but I believe that they would provide a safe and competent route for navigation through that conundrum. However, I reassure members that, along with further provisions that can be agreed to, which I and other members will introduce, those provisions will act as both a deterrent and a barrier to those who wish to abuse the system, at the same time as making a positive change to the lives of trans people.

18:15  

I have only one further comment, on amendment 52—which we forget is also part of this group—on the revocation of a certificate. My colleague Russell Findlay, who has an amendment in this group, made his point eloquently. I have another amendment—amendment 115—coming up in group 10, which we will discuss at some point tonight—or goodness knows when. It, too, would automatically revoke a GRC when an offence has been committed as the result of someone either making a false declaration or committing an offence in which the aggravation element would kick in. Those circumstances would result in the automatic revocation of certification. I think that that is the right thing to do, and I have not heard anything to the contrary. I ask Russell Findlay and colleagues to support that amendment when it comes round.

I call Russell Findlay to wind up and say whether he wishes to press or withdraw amendment 18.

Russell Findlay

I thank everyone for what have been, in the main, thoughtful and measured contributions.

In my opening comments, I spoke about the international evidence on which the Government has relied. I expected—or hoped—to hear from the cabinet secretary some elaboration of exactly what that is, because the evidence is that there is no evidence. I found the selectivity in that regard to be revealing and rather superficial, as I did the whole issue of ECHR compatibility. That seems to have been pulled out of the hat late in the day, perhaps in order to cause some members to have a bit of a wobble.

Shona Robison

The member says that the issue of ECHR compatibility has been pulled out of the hat late in the day. Will he acknowledge that, at every stage of the process, including in all the meetings and at stage 2, I made it very clear that there were issues with his amendments around ECHR compatibility?

Russell Findlay

I do, indeed, acknowledge that issues were raised around compatibility, but what seems to be unclear, from the to-and-fro that I had with the cabinet secretary earlier, is the nature of the issue. Is it a risk or a non-compatibility? One minute, it is black and white; the next minute, it is shades of grey. I am none the wiser, and I think that some other members feel the same way.

I do not want to contradict an elder statesman such as Mr Ewing, but he referred to 300 registered sex offenders having changed their names. I think that the figure is actually quite a bit higher—in the region of 500-plus. They have been able to do that since 2019, under the existing MAPPA arrangements.

Last year, in Glasgow, a woman was raped and murdered in her own home. The man who did that had previously raped a woman in her own home. He was legally, under the existing arrangements, allowed to change his name and was living—allegedly—under an assumed name in the community when he committed that crime. It is inevitable, as Jackie Baillie and others have said, that bad-faith actors will exploit and abuse a new system of self-ID.

Fergus Ewing

Is the point not that, although the police and others operate the MAPPA system very well and professionally, there are hundreds and hundreds of people involved, and the probability of error arising where we cannot keep track of or trace people and the fact that the system simply does not work as it should in theory mean that there is additional risk created unless we stop registered sex offenders accessing GRCs?

Russell Findlay

In a word, yes—absolutely. I was going to come to that, because, in the case to which I referred, the system clearly did not work. It was absolutely tragic. There will be the usual inquiry, which will not be made public, and lessons will be learned—quite what they are, no one knows.

What is being proposed in the Government’s amendments falls far short of what is needed. The only reason that those amendments are even being considered in the chamber today is that we pushed amendments on sex offenders at stage 2 and into stage 3.

I find the amendments that the Government is backing to be quite technical. They will create additional work for an underresourced and overstretched police force, which already has to monitor thousands of sex offenders in the community. As Fergus Ewing articulated so well, mistakes will inevitably be made, so who decides? As we know from the most recent data, only around one in nine registered sex offenders is subject to such monitoring restrictions.

I will quickly touch on members’ contributions, which were thoughtful and helpful. I thank Michelle Thomson for her bravery in talking so openly about her trauma, but she does not need my sympathy or that of anyone else here. I suspect that she would like members to give serious thought to doing what I believe is the right thing, which is backing her amendment.

For the reasons that I have mentioned in relation to registered sex offenders, my amendment 18 is also very important. It is an absolute safety net that is clear and would be understood, whereas what is being proposed by the Government is open to interpretation, relies on more work being put on to the police and will inevitably lead to tragedies taking place.

I conclude by thanking Labour for considering what we are proposing and offering its support. I again urge members to give amendments 39 and 18 their support.

The question is, that amendment 18 be agreed to. Are we agreed?

Members: No

There will be a division.

The vote is now closed.

Craig Hoy, who joins us remotely, has a point of order.

On a point of order, Presiding Officer. My app appeared to stutter. I intended to vote yes, and I want to check whether the vote was recorded.

Thank you, Mr Hoy. Your vote was recorded.

On a point of order, Presiding Officer. My app has frozen, and I would have voted no.

The Deputy Presiding Officer

Thank you, Mr McMillan. Your vote was recorded.

For

Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Balfour, Jeremy (Lothian) (Con)
Bibby, Neil (West Scotland) (Lab)
Boyack, Sarah (Lothian) (Lab)
Briggs, Miles (Lothian) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Callaghan, Stephanie (Uddingston and Bellshill) (SNP)
Cameron, Donald (Highlands and Islands) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Choudhury, Foysol (Lothian) (Lab)
Clark, Katy (West Scotland) (Lab)
Dowey, Sharon (South Scotland) (Con)
Duncan-Glancy, Pam (Glasgow) (Lab)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fairlie, Jim (Perthshire South and Kinross-shire) (SNP)
Findlay, Russell (West Scotland) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gallacher, Meghan (Central Scotland) (Con)
Gibson, Kenneth (Cunninghame North) (SNP)
Golden, Maurice (North East Scotland) (Con)
Gosal, Pam (West Scotland) (Con)
Grant, Rhoda (Highlands and Islands) (Lab)
Griffin, Mark (Central Scotland) (Lab)
Gulhane, Sandesh (Glasgow) (Con)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Hoy, Craig (South Scotland) (Con)
Johnson, Daniel (Edinburgh Southern) (Lab)
Kerr, Liam (North East Scotland) (Con)
Kerr, Stephen (Central Scotland) (Con)
Lennon, Monica (Central Scotland) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Lumsden, Douglas (North East Scotland) (Con)
Maguire, Ruth (Cunninghame South) (SNP)
Marra, Michael (North East Scotland) (Lab)
Mason, John (Glasgow Shettleston) (SNP)
McCall, Roz (Mid Scotland and Fife) (Con)
McNeill, Pauline (Glasgow) (Lab)
Mochan, Carol (South Scotland) (Lab)
Mountain, Edward (Highlands and Islands) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
O’Kane, Paul (West Scotland) (Lab)
Regan, Ash (Edinburgh Eastern) (SNP)
Ross, Douglas (Highlands and Islands) (Con)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Sarwar, Anas (Glasgow) (Lab)
Simpson, Graham (Central Scotland) (Con)
Smith, Liz (Mid Scotland and Fife) (Con)
Smyth, Colin (South Scotland) (Lab)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Sweeney, Paul (Glasgow) (Lab)
Thomson, Michelle (Falkirk East) (SNP)
Villalba, Mercedes (North East Scotland) (Lab)
Webber, Sue (Lothian) (Con)
Wells, Annie (Glasgow) (Con)
White, Tess (North East Scotland) (Con)
Whitfield, Martin (South Scotland) (Lab)
Whittle, Brian (South Scotland) (Con)

Against

Adam, George (Paisley) (SNP)
Adam, Karen (Banffshire and Buchan Coast) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Brown, Siobhian (Ayr) (SNP)
Burgess, Ariane (Highlands and Islands) (Green)
Chapman, Maggie (North East Scotland) (Green)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Constance, Angela (Almond Valley) (SNP)
Dey, Graeme (Angus South) (SNP)
Don, Natalie (Renfrewshire North and West) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Dunbar, Jackie (Aberdeen Donside) (SNP)
FitzPatrick, Joe (Dundee City West) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Gray, Neil (Airdrie and Shotts) (SNP)
Greer, Ross (West Scotland) (Green)
Harper, Emma (South Scotland) (SNP)
Harvie, Patrick (Glasgow) (Green)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lochhead, Richard (Moray) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Gillian (Central Scotland) (Green)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Matheson, Michael (Falkirk West) (SNP)
McAllan, Màiri (Clydesdale) (SNP)
McKee, Ivan (Glasgow Provan) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McLennan, Paul (East Lothian) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
McNair, Marie (Clydebank and Milngavie) (SNP)
Minto, Jenni (Argyll and Bute) (SNP)
Nicoll, Audrey (Aberdeen South and North Kincardine) (SNP)
Rennie, Willie (North East Fife) (LD)
Robertson, Angus (Edinburgh Central) (SNP)
Robison, Shona (Dundee City East) (SNP)
Roddick, Emma (Highlands and Islands) (SNP)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Slater, Lorna (Lothian) (Green)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Collette (East Kilbride) (SNP)
Stewart, Kaukab (Glasgow Kelvin) (SNP)
Stewart, Kevin (Aberdeen Central) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Swinney, John (Perthshire North) (SNP)
Todd, Maree (Caithness, Sutherland and Ross) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Tweed, Evelyn (Stirling) (SNP)
Whitham, Elena (Carrick, Cumnock and Doon Valley) (SNP)
Wishart, Beatrice (Shetland Islands) (LD)
Yousaf, Humza (Glasgow Pollok) (SNP)

Abstentions

Carlaw, Jackson (Eastwood) (Con)
Greene, Jamie (West Scotland) (Con)

The result of the division on amendment 18, in the name of Russell Findlay, is: For 59, Against 64, Abstentions 2.

Amendment 18 disagreed to.

The Deputy Presiding Officer

Amendment 94, in the name of Claire Baker, has already—[Interruption.]

We will have to clear the galleries now. We will suspend the meeting for a few minutes while that happens.

18:24 Meeting suspended.  

19:00 On resuming—  

The Deputy Presiding Officer (Liam McArthur)

I invite members to resume their seats.

Following a meeting of the bureau and the earlier suspension, I am minded to accept a motion without notice to suspend the final sentence of rule 9.8.5A, for the purposes of consideration of stage 3 of the Gender Recognition Reform (Scotland) Bill. I invite the minister to move such a motion.

George Adam

Thank you, Presiding Officer.

Motion moved,

That the final sentence of Rule 9.8.5A be suspended.—[George Adam]

On a point of order, Presiding Officer. I apologise for not knowing the standing orders backwards. Could you tell us what we are voting for or against?

The Deputy Presiding Officer

I am very disappointed by your lack of understanding of the standing orders, Mr Balfour. That notwithstanding, the motion allows us to extend the time available without having to keep going back and doing so. We have extended it once; agreement to the motion will allow us to continue to do so, as appropriate.

Motion agreed to.

Jeremy Balfour

On a point of order, Presiding Officer.

I seek some clarification about a question that my colleague, Douglas Ross, asked just before the suspension, in connection with who can use the gallery, both tonight and tomorrow. I have a number of constituents who already have tickets and who hope to come here. They do not intend to make any noise; they simply want to watch. Will they be allowed in? More to the point, if someone else makes a noise, will my constituents be allowed to stay if they remain silent?

The Deputy Presiding Officer

I understand that discussions are on-going in relation to this evening, so I am unable to advise you or the chamber about the situation this evening. That is actively being worked on.

Regarding tomorrow’s proceedings, I can assure you and other members who have constituents who plan to attend in the gallery that they will permitted to come into the gallery as normal. I hope that that is helpful.

Douglas Ross

On a point of order, Presiding Officer.

I realise that we have had a change in the chair and that it was the other Deputy Presiding Officer who ruled earlier, but we were told that the people who had been removed would be spoken to and would be allowed back in. If a decision is still to be taken, what communication is going on with those who hope to get back in? Do you have any idea how much chamber time they might miss? They want to watch our proceedings.

The Deputy Presiding Officer

I understand that, Mr Ross. As I have said, discussions are on-going.

I am now being told that they are being allowed back in. I hope that will happen in the course of the next few minutes.

We must press on with proceedings. Amendment 94, in the name of Claire Baker, has already been debated with amendment 6.

I will not move the amendment.

Amendment 94 moved—[Jeremy Balfour].

The question is, that amendment 94 be agreed to. Are we agreed?

Members: No.

There will be a division.

On a point of order, Presiding Officer. My app froze. I would have voted no.

I will ensure that that is recorded, Mr MacDonald.

On a point of order, Presiding Officer. I would have voted no. My app froze, as well.

I will make sure that that is recorded, Ms Hamilton.

On a point of order, Presiding Officer. My app similarly froze. I would also have voted no.

The Deputy Presiding Officer

Thank you, Mr Hoy. I will make sure that that is recorded.

For

Baker, Claire (Mid Scotland and Fife) (Lab)
Balfour, Jeremy (Lothian) (Con)
Ewing, Annabelle (Cowdenbeath) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gibson, Kenneth (Cunninghame North) (SNP)
Gulhane, Sandesh (Glasgow) (Con)
Maguire, Ruth (Cunninghame South) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Mundell, Oliver (Dumfriesshire) (Con)
Thomson, Michelle (Falkirk East) (SNP)

Against

Adam, George (Paisley) (SNP)
Adam, Karen (Banffshire and Buchan Coast) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Baillie, Jackie (Dumbarton) (Lab)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Bibby, Neil (West Scotland) (Lab)
Boyack, Sarah (Lothian) (Lab)
Briggs, Miles (Lothian) (Con)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Brown, Siobhian (Ayr) (SNP)
Burgess, Ariane (Highlands and Islands) (Green)
Burnett, Alexander (Aberdeenshire West) (Con)
Callaghan, Stephanie (Uddingston and Bellshill) (SNP)
Cameron, Donald (Highlands and Islands) (Con)
Carlaw, Jackson (Eastwood) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Chapman, Maggie (North East Scotland) (Green)
Choudhury, Foysol (Lothian) (Lab)
Clark, Katy (West Scotland) (Lab)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Constance, Angela (Almond Valley) (SNP)
Dey, Graeme (Angus South) (SNP)
Don, Natalie (Renfrewshire North and West) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Dowey, Sharon (South Scotland) (Con)
Dunbar, Jackie (Aberdeen Donside) (SNP)
Duncan-Glancy, Pam (Glasgow) (Lab)
Fairlie, Jim (Perthshire South and Kinross-shire) (SNP)
Findlay, Russell (West Scotland) (Con)
FitzPatrick, Joe (Dundee City West) (SNP)
Gallacher, Meghan (Central Scotland) (Con)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Golden, Maurice (North East Scotland) (Con)
Gosal, Pam (West Scotland) (Con)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Neil (Airdrie and Shotts) (SNP)
Greene, Jamie (West Scotland) (Con)
Greer, Ross (West Scotland) (Green)
Griffin, Mark (Central Scotland) (Lab)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Harper, Emma (South Scotland) (SNP)
Harvie, Patrick (Glasgow) (Green)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hoy, Craig (South Scotland) (Con)
Hyslop, Fiona (Linlithgow) (SNP)
Johnson, Daniel (Edinburgh Southern) (Lab)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Kerr, Liam (North East Scotland) (Con)
Kerr, Stephen (Central Scotland) (Con)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lennon, Monica (Central Scotland) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Lochhead, Richard (Moray) (SNP)
Lumsden, Douglas (North East Scotland) (Con)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Gillian (Central Scotland) (Green)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Marra, Michael (North East Scotland) (Lab)
Martin, Gillian (Aberdeenshire East) (SNP)
Matheson, Michael (Falkirk West) (SNP)
McAllan, Màiri (Clydesdale) (SNP)
McCall, Roz (Mid Scotland and Fife) (Con)
McKee, Ivan (Glasgow Provan) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McLennan, Paul (East Lothian) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
McNair, Marie (Clydebank and Milngavie) (SNP)
Minto, Jenni (Argyll and Bute) (SNP)
Mountain, Edward (Highlands and Islands) (Con)
Nicoll, Audrey (Aberdeen South and North Kincardine) (SNP)
O’Kane, Paul (West Scotland) (Lab)
Regan, Ash (Edinburgh Eastern) (SNP)
Rennie, Willie (North East Fife) (LD)
Robertson, Angus (Edinburgh Central) (SNP)
Robison, Shona (Dundee City East) (SNP)
Roddick, Emma (Highlands and Islands) (SNP)
Ross, Douglas (Highlands and Islands) (Con)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Sarwar, Anas (Glasgow) (Lab)
Simpson, Graham (Central Scotland) (Con)
Slater, Lorna (Lothian) (Green)
Smith, Liz (Mid Scotland and Fife) (Con)
Smyth, Colin (South Scotland) (Lab)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Collette (East Kilbride) (SNP)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Stewart, Kaukab (Glasgow Kelvin) (SNP)
Stewart, Kevin (Aberdeen Central) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Sweeney, Paul (Glasgow) (Lab)
Swinney, John (Perthshire North) (SNP)
Todd, Maree (Caithness, Sutherland and Ross) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Tweed, Evelyn (Stirling) (SNP)
Villalba, Mercedes (North East Scotland) (Lab)
Webber, Sue (Lothian) (Con)
Wells, Annie (Glasgow) (Con)
White, Tess (North East Scotland) (Con)
Whitfield, Martin (South Scotland) (Lab)
Whitham, Elena (Carrick, Cumnock and Doon Valley) (SNP)
Whittle, Brian (South Scotland) (Con)
Wishart, Beatrice (Shetland Islands) (LD)
Yousaf, Humza (Glasgow Pollok) (SNP)

Abstentions

Mochan, Carol (South Scotland) (Lab)

The result of the division is: For 11, Against 113, Abstentions 1.

Amendment 94 disagreed to.

Group 3 is entitled “Meaning of ‘ordinarily resident in Scotland’”. Amendment 19, in the name of the cabinet secretary, is the only amendment in the group.

Shona Robison

I want to be clear that I am very sympathetic to the concern that has been raised that an asylum seeker who is living in Scotland might not meet the requirement of being “ordinarily resident” here if they are unable to satisfy the test that is involved. Whether an asylum seeker meets the test of being “ordinarily resident” would, under a straightforward ordinary residence test, depend on their particular circumstances. In that regard, they would not be treated differently to any other person who applies for a GRC.

An amendment that was agreed to at stage 2 by a majority of the Equalities, Human Rights and Civil Justice Committee provides for different treatment. Its effect is that asylum seekers would be treated as “ordinarily resident” in Scotland in all cases, regardless of their individual circumstances or how short a period they had been in Scotland.

As I set out in our stage 1 response and at stage 2, our concerns about the matter stem from the fact that an asylum seeker seeks asylum not in Scotland but in the UK, and immigration laws are reserved. This Government believes that Scotland should have the power to make decisions on asylum and immigration, but unfortunately we do not have that power.

I have had to write to the committee to explain why it is necessary to remove that provision at stage 3. Keeping it would open the legislation to challenge on the basis that it relates to matters that are reserved by the immigration and nationality reservation in schedule 5 to the Scotland Act 1998. We consider that there is a serious risk that the provision could be found to be outwith the legislative competence of this Parliament. My amendment 19 seeks to remove the provision so as not to compromise the bill as a whole.

This is not the only area where we have competence issues that would endanger the bill. I would not move amendment 19 if there was an alternative, but because of the limits to the powers that this Parliament currently has, it is a necessary move to ensure that the bill is competent within the powers of this Parliament.

I move amendment 19.

Pam Duncan-Glancy (Glasgow) (Lab)

I join others across the chamber in thanking all those who have engaged with us throughout the bill process. I have met countless organisations and have sought throughout to listen to and take seriously everything that I have heard. That is the duty on all of us, and it is a duty that I take seriously.

I am pleased to see that people have been allowed to back into the public gallery. I shared the concerns that were raised before the suspension about the gallery being cleared. We consider that to have been a disproportionate response.

I must speak against the cabinet secretary’s amendment 19, which seeks to remove the wording that was inserted by an amendment in my name at stage 2. That amendment sought specifically to include asylum seekers in the meaning of “ordinarily resident” to ensure that those who seek asylum are not excluded from the process.

I recognise that the Government has some concerns about the competence of including such a provision. However, I am yet to be convinced by the argument that the inclusion of asylum seekers could lead to a court challenge to the whole bill. I am confident that such a provision would not frustrate implementation of the wider bill.

Martin Whitfield

I am grateful to Pam Duncan-Glancy for giving way. Is not it correct to say that her stage 2 amendment did not, in any way, affect the asylum application, which is a power that is reserved to the UK Government, but merely allowed people who are seeking asylum while resident in Scotland to take advantage of obtaining a GRC in that situation?

Pam Duncan-Glancy

I believe that the case is as the member has set it out. My party voted for the bill in principle at stage 1 because we recognise the importance of reforming the Gender Recognition Act 2004, which operates on a UK-wide basis. With that in mind, we believe that it would be unfair for asylum seekers who are living in Scotland to have to go through a different process to people who are living elsewhere in the UK. On that basis, we cannot support amendment 19, which would delete the provision that would have afforded asylum seekers the right that the Labour Party secured for them during stage 2.

Jeremy Balfour

As the cabinet secretary has said, during stage 2, the Equalities, Human Rights and Civil Justice Committee supported an amendment that added asylum seekers to the term “ordinarily resident” in the bill. As I understand it, asylum seekers can be ordinarily resident in Scotland, and that remains the case. However, the cabinet secretary wrote to say to the committee in advance of the stage 3 debate, and has said in the debate this afternoon, that she will seek to remove from the bill the provision that sets out that the term “ordinarily resident”

“includes a person who is seeking asylum in Scotland”

because she claims that immigration is a reserved matter. I do not dispute that. The cabinet secretary went on to argue that a failed asylum seeker would not meet the requirements of being ordinarily resident in Scotland, so the bill would legislate on reserved matters. Amendment 19 therefore seeks to remove the provision that had been added at stage 2.

I am willing to accept the cabinet secretary’s arguments, but before I decide how to vote, I will ask her to help me with what legal advice she has received on whether the provision, as set out in the bill, can be interpreted only to include all asylum seekers, even if they have failed in their applications. If a failed asylum seeker has not been classified as an asylum seeker under the terms that are set out in the bill, then it would not be necessary to remove those provisions, as only lawfully resident asylum seekers would be included.

Of course, we do not want to enact legislation in an area that is reserved to the UK Government; however, I am very keen that when the cabinet secretary sums up, she answers my question adequately so that we can all be sure that we are passing competent legislation. I hope that her answer will provide the clarity that I, the public and others, I am sure, are seeking before members vote on amendment 19.

Shona Robison

As I have said, I cannot disclose legal advice, and members of Parliament understand why that is the case. However, I can reiterate that the provision opens the bill to challenge on the basis that it relates to matters that are reserved by the immigration and nationality reservation in schedule 5 of the Scotland Act 1998, which is why the provision could be found to be outwith the competence of the Scottish Parliament.

Paul Sweeney (Glasgow) (Lab)

I accept the cabinet secretary’s point that the matter could be subject to legal challenge, but that does not necessarily mean that there should not be an attempt to try to reform the legislation and show some moral leadership. Many such matters are grey areas and are not at all well defined. If the matter is challenged, that would be an outcome because we would get a clear judgment on the situation. Perhaps the cabinet secretary might reconsider her position.

Shona Robison

I am sorry, but I do not believe that a bill’s being challenged would be a good outcome, because it would delay the passing of legislation. Bills in the Scottish Parliament have ended up in that position, and I do not think that delaying legislation being passed is a good outcome. At this stage, if we know that that is a risk, then it is incumbent upon us, as legislators, not to take that risk.

I will make another point to Paul Sweeney. I am sure that he will fully understand the politics of the situation. The UK Government has been making it very clear, to anyone who will listen, that because it does not agree with the bill, its intention is to go through it line by line to look for opportunities to challenge it—as others will. The question for members in the Scottish Parliament who support the bill is whether they want to risk that. I support the bill and I do not want to risk it not succeeding.

19:15  

There will be members who do not support the bill who would be quite happy to risk it. I appeal to members who support the bill not to put it at risk. I cannot be clearer.

Pam Duncan-Glancy

I do not want to frustrate the process and I share that concern. However, is not it the case that it is just one specific aspect of the bill that might be challenged and that that would not prevent the whole bill from being enacted?

I see members shaking their heads because of what happened with other bills—I assume that they are referring the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill. However, that bill was challenged because it sought to change legislation across the UK, rather than changing legislation that was specific to Scotland, which is what the Gender Recognition Reform (Scotland) Bill seeks to do.

Shona Robison

I am sorry, but I must be very clear: the whole bill will be challenged because of the competence issue. Potentially, that will land us in the courts and will delay enactment of the bill. I cannot be clearer.

It is with a heavy heart that I press amendment 19. I do not want to exclude asylum seekers from being able to obtain a GRC. However, members must understand the risks, and that some people would be quite happy for the bill to end up in the courts. For those people, that is not a concern.

If members support the bill, they should be concerned about putting in the bill potential barriers and risks that do not need to be there. I urge members to support amendment 19.

The question is, that amendment 19 be agreed to. Are we agreed?

Members: No.

There will be a division.

The vote is now closed.

On a point of order, Presiding Officer. I am not sure whether my vote was logged.

Your vote was recorded, Mr Balfour.

On a point of order, Presiding Officer. My application froze and I am not sure whether my vote was recorded. I would have abstained.

The Deputy Presiding Officer

Thank you, Mr Halcro Johnston. I can assure you that your vote was recorded.

For

Adam, George (Paisley) (SNP)
Adam, Karen (Banffshire and Buchan Coast) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Brown, Siobhian (Ayr) (SNP)
Burgess, Ariane (Highlands and Islands) (Green)
Callaghan, Stephanie (Uddingston and Bellshill) (SNP)
Carlaw, Jackson (Eastwood) (Con)
Chapman, Maggie (North East Scotland) (Green)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Constance, Angela (Almond Valley) (SNP)
Dey, Graeme (Angus South) (SNP)
Don, Natalie (Renfrewshire North and West) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Dunbar, Jackie (Aberdeen Donside) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fairlie, Jim (Perthshire South and Kinross-shire) (SNP)
FitzPatrick, Joe (Dundee City West) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Gray, Neil (Airdrie and Shotts) (SNP)
Greene, Jamie (West Scotland) (Con)
Greer, Ross (West Scotland) (Green)
Gulhane, Sandesh (Glasgow) (Con)
Harper, Emma (South Scotland) (SNP)
Harvie, Patrick (Glasgow) (Green)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lochhead, Richard (Moray) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Gillian (Central Scotland) (Green)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Matheson, Michael (Falkirk West) (SNP)
McAllan, Màiri (Clydesdale) (SNP)
McKee, Ivan (Glasgow Provan) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McLennan, Paul (East Lothian) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
McNair, Marie (Clydebank and Milngavie) (SNP)
Minto, Jenni (Argyll and Bute) (SNP)
Nicoll, Audrey (Aberdeen South and North Kincardine) (SNP)
Regan, Ash (Edinburgh Eastern) (SNP)
Rennie, Willie (North East Fife) (LD)
Robertson, Angus (Edinburgh Central) (SNP)
Robison, Shona (Dundee City East) (SNP)
Roddick, Emma (Highlands and Islands) (SNP)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Slater, Lorna (Lothian) (Green)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Collette (East Kilbride) (SNP)
Stewart, Kaukab (Glasgow Kelvin) (SNP)
Stewart, Kevin (Aberdeen Central) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Swinney, John (Perthshire North) (SNP)
Thomson, Michelle (Falkirk East) (SNP)
Todd, Maree (Caithness, Sutherland and Ross) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Tweed, Evelyn (Stirling) (SNP)
Whitham, Elena (Carrick, Cumnock and Doon Valley) (SNP)
Wishart, Beatrice (Shetland Islands) (LD)
Yousaf, Humza (Glasgow Pollok) (SNP)

Against

Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Balfour, Jeremy (Lothian) (Con)
Bibby, Neil (West Scotland) (Lab)
Boyack, Sarah (Lothian) (Lab)
Choudhury, Foysol (Lothian) (Lab)
Clark, Katy (West Scotland) (Lab)
Duncan-Glancy, Pam (Glasgow) (Lab)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Grant, Rhoda (Highlands and Islands) (Lab)
Griffin, Mark (Central Scotland) (Lab)
Johnson, Daniel (Edinburgh Southern) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Marra, Michael (North East Scotland) (Lab)
McNeill, Pauline (Glasgow) (Lab)
Mochan, Carol (South Scotland) (Lab)
Mountain, Edward (Highlands and Islands) (Con)
O’Kane, Paul (West Scotland) (Lab)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Sarwar, Anas (Glasgow) (Lab)
Simpson, Graham (Central Scotland) (Con)
Smyth, Colin (South Scotland) (Lab)
Sweeney, Paul (Glasgow) (Lab)
Villalba, Mercedes (North East Scotland) (Lab)
Whitfield, Martin (South Scotland) (Lab)
Whittle, Brian (South Scotland) (Con)

Abstentions

Briggs, Miles (Lothian) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Dowey, Sharon (South Scotland) (Con)
Findlay, Russell (West Scotland) (Con)
Gallacher, Meghan (Central Scotland) (Con)
Golden, Maurice (North East Scotland) (Con)
Gosal, Pam (West Scotland) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Hoy, Craig (South Scotland) (Con)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Kerr, Liam (North East Scotland) (Con)
Kerr, Stephen (Central Scotland) (Con)
Lumsden, Douglas (North East Scotland) (Con)
McCall, Roz (Mid Scotland and Fife) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Ross, Douglas (Highlands and Islands) (Con)
Smith, Liz (Mid Scotland and Fife) (Con)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Webber, Sue (Lothian) (Con)
Wells, Annie (Glasgow) (Con)
White, Tess (North East Scotland) (Con)

The result of the division is: For 76, Against 27, Abstentions 23.

Amendment 19 agreed to.

The Deputy Presiding Officer

Members will note that we will shortly reach the next time limit and that we still have more groups to debate. As a consequence, under rule 9.8.5A, I am minded to accept a motion without notice to propose that the time limit be extended by 30 minutes.

Motion moved,

That, under Rule 9.8.5A, the second time limit be moved by up to 30 minutes.—[George Adam]

Motion agreed to.

Section 3—Notice to be given on receipt of application

Amendment 7 moved—[Rachael Hamilton].

The question is, that amendment 7 be agreed to. Are we agreed?

Members: No.

The Deputy Presiding Officer

There will be a division.

For

Balfour, Jeremy (Lothian) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Callaghan, Stephanie (Uddingston and Bellshill) (SNP)
Cameron, Donald (Highlands and Islands) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Dowey, Sharon (South Scotland) (Con)
Ewing, Annabelle (Cowdenbeath) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fairlie, Jim (Perthshire South and Kinross-shire) (SNP)
Findlay, Russell (West Scotland) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gallacher, Meghan (Central Scotland) (Con)
Gibson, Kenneth (Cunninghame North) (SNP)
Golden, Maurice (North East Scotland) (Con)
Gosal, Pam (West Scotland) (Con)
Gulhane, Sandesh (Glasgow) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Hoy, Craig (South Scotland) (Con)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Kerr, Liam (North East Scotland) (Con)
Kerr, Stephen (Central Scotland) (Con)
Lumsden, Douglas (North East Scotland) (Con)
Maguire, Ruth (Cunninghame South) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
McCall, Roz (Mid Scotland and Fife) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Regan, Ash (Edinburgh Eastern) (SNP)
Ross, Douglas (Highlands and Islands) (Con)
Simpson, Graham (Central Scotland) (Con)
Smith, Liz (Mid Scotland and Fife) (Con)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Thomson, Michelle (Falkirk East) (SNP)
Webber, Sue (Lothian) (Con)
Wells, Annie (Glasgow) (Con)
White, Tess (North East Scotland) (Con)
Whittle, Brian (South Scotland) (Con)

Against

Adam, George (Paisley) (SNP)
Adam, Karen (Banffshire and Buchan Coast) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan