Meeting of the Parliament [Draft]

Meeting date: Wednesday, December 20, 2023

Official Report 1026KB pdf

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Section 35 Order Judicial Review

The next item of business is a statement by Shirley-Anne Somerville on the Scottish Government’s response to the section 35 order judicial review. Members will be aware that some of the content of the statement is in the public domain following media coverage. I have received a letter of apology from the Deputy First Minister, and it is appropriate that an apology is made to the chamber—[Interruption.] Members, I would be grateful if I could make my remarks.

I have received a letter of apology from the Deputy First Minister, and it is appropriate that an apology is made to the chamber. Ministers are answerable and accountable to the Parliament for their actions in their ministerial capacities, and it is essential that members, as elected representatives of the people of Scotland, have the first opportunity to hold ministers to account. For that reason, announcements must be made here first.

Having considered the content of the statement, I consider it important that I allow it to go ahead in part. I invite the Cabinet Secretary for Social Justice to focus on those matters that are not already in the public domain. The cabinet secretary will take questions at the end of her statement, so there should be no interventions or interruptions.

15:29  

Before I begin my statement, let me respond to your comments, Presiding Officer. Media speculation on the Government’s decision in relation to the section 35 order is deeply disappointing and regrettable. I am aware that the Deputy First Minister responded to direct questions that were put to her and, although she did not confirm or deny whether the Scottish Government intended to appeal the decision, she has recognised that the Government’s position was inferred from the comments that she made. She in no way meant to pre-empt the statement today, and I know that she has written to you to apologise for the comments that she made in response to the direct questions that were put to her in interviews on the budget.

I would also like to apologise to you and the chamber. The discussions between me and your office, Presiding Officer, led to the late arrival of the statement with Opposition spokespeople, for which I genuinely apologise.

I turn to my reduced statement. One year ago, this Parliament passed the Gender Recognition Reform (Scotland) Bill after much discussion and careful consideration. Not everyone agreed with the bill—some strongly opposed it—but the will of the Parliament was clear: two-thirds of members voted to pass the bill, with members of all parties voting in favour. However, within four weeks, the Secretary of State for Scotland blocked its submission for royal assent with the first-ever use of a section 35 order. The Scottish ministers petitioned for judicial review, as it was clear to us that allowing that unprecedented veto over a decision of this Parliament to go unchallenged would undermine Holyrood’s democratic will and, by extension, the will of the people whom we are sent here to represent.

Let me be absolutely clear that the Scottish Government remains committed to supporting and empowering the LGBTQI+ community, including trans people. We will continue to build on our work across Government to strengthen that. We work closely with the LGBTQI+ stakeholder group and third sector organisations to ensure that the voices of those with lived experience help to improve outcomes for those communities. We are also delivering the non-binary equality action plan to improve conditions for the non-binary community in Scotland. The plan includes actions that are already under way, such as meaningfully including non-binary people in decision making.

We remain committed to consulting on a bill on ending conversion practices in Scotland for both sexual orientation and gender identity, and detailed proposals for legislative change will be published early in the new year. Conversion practices that aim to change or suppress a person’s sexual orientation or gender identity are damaging and destructive acts that violate the human rights of those who undergo them.

We remain committed to our work with NHS Scotland to improve access to and delivery of gender identity healthcare. We are working closely with people with lived experience, organisations that represent trans people and NHS Scotland to implement the actions in the “NHS gender identity services: strategic action framework 2022-2024”, which was published in 2021.

We have established a national gender identity healthcare reference group and commissioned a range of work, including robust collation and reporting of waiting times, a transgender healthcare knowledge and skills framework with training opportunities for NHS Scotland staff, a programme of research on long-term health outcomes for people who access gender identity healthcare, and the development of national standards for accessing and delivery of gender identity healthcare. That work is well under way.

We are also delivering the recommendations of the LGBTI inclusive education working group. The implementation group has, in partnership with the Convention of Scottish Local Authorities, promoted effective delivery of LGBTI inclusive education in all Scottish schools and engaged with young people to seek their views and experience, and it is delivering improved learning environments for all children and young people.

Before the end of the parliamentary year, we will introduce a new human rights bill for Scotland.

I turn to the Gender Recognition Reform (Scotland) Bill specifically. The bill’s reforms remain the Government’s policy and, as we can see from the cross-party support for the bill, they remain what this Parliament would like to see enacted. However, the United Kingdom Government’s intervention means that the bill cannot proceed to royal assent. It remains a bill that has been passed by the majority of this Parliament and we will not be withdrawing it.

There is a strong indication that any divergence of approach would be unacceptable to the UK Government, as Alister Jack stated in the Westminster Parliament:

“In short, two different regimes create adverse effects.”—[Official Report, House of Commons, 17 January 2023; c 218.]

It is therefore impossible to see how progress can be made, particularly when the rules of this Parliament require that amendments at reconsideration stage are consistent with the bill’s general principles as agreed at stage 1.

Nonetheless, our offer is still there. If the current UK Government is willing to work together on the issue, we will happily sit down with it. If a future UK Government is willing, we will work with it so that the section 35 order can be lifted and the bill can progress. It seems clear that the current Government will not do that. It remains to be seen what a future Government will do.

Parliamentary discussion of the Scotland Act 1998 shows that the section 35 power was always intended as a long stop or last resort, and one that would never be needed. It was envisaged that the UK Government should raise issues at an early stage and that the two Governments should seek to resolve them. That is in black and white in the devolution debates in the Westminster Parliament in 1998 and in the memorandum of understanding between the Governments. However, that is not how the Secretary of State for Scotland used the power.

It is the Scottish Government’s view that this UK Government and the secretary of state see section 35 as a veto that they can apply to any legislation that is passed by this Parliament that they disagree with. To ignore the memorandum of understanding sets a very worrying precedent for the democratic powers of this Parliament. Regardless of people’s views and opinions on gender recognition, that is a very worrying place for our Parliament to be in.

Due to the intransigence of the current UK Government, I am confident that any repetition of our offer to seek compromise would again be rebuffed. We will therefore focus on working with an incoming UK Government, which we hope will have more respect for devolution and be willing to work together, even when, at times, we disagree.

I recognise that many trans people will be disappointed by that decision. To them, I say this: the Scottish Government will never waver in our commitment to your rights. You deserve to be respected, included and supported. You are not a threat, and you will always be able to live your lives free from prejudice and abuse in the type of Scotland that we all want to see. We will continue to work towards a society that is equal and fair and one where people can live as they are, just as we will continue to protect the democratic powers of this, Scotland’s Parliament.

The cabinet secretary will now take questions on the issues that were raised in her statement. I intend to allow about 20 minutes for questions, after which we will move on to the next item of business. I would be grateful if members who wish to ask a question would press their request-to-speak buttons.

I welcome the cabinet secretary’s comments on the late arrival of her statement. When Nicola Sturgeon said last year that the debate would be over by Christmas, I do not think that she meant this Christmas. The Scottish Conservatives repeatedly told the Scottish National Party Government that the Gender Recognition Reform (Scotland) Bill was fundamentally flawed. We warned all along that this would happen, but the SNP Government did not listen. Instead, it has spent time and taxpayers’ money on a doomed legal battle to revive laws that the majority of the Scottish public do not want—laws that undermine the rights and safety of women, girls and vulnerable young people. Women’s groups were ignored throughout the debate, and I am delighted that their hard-fought campaign has been won. However, the debacle leaves the SNP’s relationship with the Greens in tatters. I wonder whether Green MSPs will follow through on their threat and quit the Government after the announcement. It might be a lot better for Scotland if they did.

We know that self-identification has been a failed experiment that the Scottish public oppose. Will the cabinet secretary outline whether lessons have been learned? If so, can she reassure women’s groups that their concerns will be listened to in the future to prevent this sorry saga from ever happening again?

I thank Meghan Gallacher for the way in which she took my apology. I know that she and I have had many cross words, including yesterday, but I appreciate the way in which she has responded to my remarks.

However, in my opinion, there were no amendments at stage 3 that would have prevented the secretary of state from laying a section 35 order. I say that because, as I mentioned in my original statement, he has been clear that he is concerned about a divergence and there being two different systems within the UK. On that basis, it is genuinely difficult to see how we could have a bill that could be approved by this secretary of state in the current UK Government.

When it comes to listening to diverging opinions on the issue, I know and I fully appreciate that, in the Parliament and in wider society, there is a range of opinions on the issue. However, those views were listened to. We may not have agreed with them, but I, the now Deputy First Minister and many ministers held meetings both with groups of people who agreed with the bill and with groups of people who did not, and there were two public consultations.

I would say that the legal judgment is about the use of section 35; it does not take any position on the bill itself or the merits thereof. That is why the Government will not be withdrawing the bill.

I, too, voice my disappointment at the late sight of the statement, but I also accept what the cabinet secretary has said in mitigation.

In the six years since the beginning of the process of gender recognition reform in Scotland, Scottish Labour has striven to ensure that the relevant legislation is progressive and that it updates the system while upholding rights and protections for everyone. From the beginning, we sought to engage all parties, including the Government, raising potential issues, offering amendments and seeking repeated assurances that the legislation was secure in law. Indeed, in that regard, the cabinet secretary will recall my amendments that were dealt with this time last year and previous questions that I have raised on issues such as meetings between the Governments about the section 104 process and calls to see the Scottish Government’s legal advice.

Ultimately, I recognise that this will be a difficult day for many people. The simplification of the process of gender recognition has not moved forward, and I welcome the cabinet secretary outlining what further action the Government will take to support trans people in Scotland, which I have been keen to raise each time that we have had the opportunity to discuss the issue. I would appreciate it if the cabinet secretary could further outline how activity across Government will be co-ordinated to measure improvements, particularly in healthcare.

I recognise that many women feel that their concerns have been dismissed and that the debate has become too polarised. The cabinet secretary has essentially said that the bill will remain in limbo after the smoke from the court wrangling between the two Governments clears. I also heard what the cabinet secretary said about people’s willingness to try and work together.

Does the cabinet secretary recognise that the court has judged that the bill modifies the law as it applies to reserved matters? What analysis has the Government carried out in the light of those parts of the judgment that could form the basis for any future dialogue with the UK Government on moving the process forward?

I recognise that the health aspect is an important issue for the trans community. The Government has been working on it for some time and it is important that I recommit the Government to that today.

I have spoken about gender identity services and the strategic action framework, which describes how we are working to improve access to and delivery of national health service gender identity services. Importantly, we will continue to work with those with lived experience to ensure that matters are improved for them, not just in the healthcare sector but in other aspects as well.

Paul O’Kane mentioned the use of section 104 orders. That is a different and technical process to ensure that bills can work correctly. Unfortunately, that would not have got us out of the situation that we are in at the moment. As I said, the secretary of state has made his position clear on having two different systems, but we will continue to work with any Government on that issue.

It is important that, right across Government, we work together to support the trans community in everything that we do, as well as continuing the work on delivering the equally safe strategy, to protect women’s rights and to protect them from violence, intimidation and discrimination.

This time last year, the majority of MSPs voted in this chamber to respect the right of trans women and men to self-identify in accordance with their human rights. The intervention of the UK Government to block that has defied the democracy of this Parliament and shattered the trans community. Will the cabinet secretary expand on the decision that the Government has taken following the legal advice?

It would be inappropriate for me to discuss the legal advice that the Government received, but I would say that the decision not to appeal that judgment has not been an easy one. We have, of course, reflected on that legal advice and the policy advice, covering a wide range of factors. I know that the legal process and the on-going scrutiny that it brings has taken its toll on the trans community. It is the Government’s opinion that the worst possible outcome would be to draw the matter out further and still not be able to have a bill to enact. We want to avoid that outcome, and that is the reason why the Government has come to the decision that it has.

When she announced the Scottish Government’s intention to take the UK Government to court, eight months ago, the cabinet secretary told Parliament that it was keen to be as transparent as possible on the matter. Now that the Scottish Government has abandoned its legal battle against the UK Government, will it publish its legal advice? Given that the Scottish Government has spent more than £230,000 of taxpayers’ money on the failed court action so far, will it also publish the estimates of the costs that would have been incurred if it had challenged the ruling?

As I have already said, the Scottish Government does not publish its legal advice. Given that the UK Government would not publish its legal advice about the court decision, it is a bit hypocritical for Miles Briggs to suggest that the Scottish Government should publish its legal advice. I am happy to stand to be corrected, but I do not think that he would make the same call on the UK Government.

When it comes to wasting public money on court cases, I say gently to Miles Briggs that the UK Government has spent more than £2 million on a case to ensure that it can—how should I put this? It has spent that money on a case to enable it to take some of the most vulnerable people—[Interruption.] Scottish Conservative members might find this funny, but I certainly do not. The UK Government has spent £2 million in an effort to take some of the most vulnerable people in our society—people who have been persecuted right across the world—and send them to Rwanda. It has spent £2 million on that, yet Scottish Conservative members have the hypocrisy to criticise the Scottish Government for standing up for the powers of this Parliament. It is a shame that the Scottish Conservatives have once again shown that they have no interest in defending this Parliament or democracy but are quite happy to defend the Rwanda policy on immigration.

First, I want to acknowledge the harm that the arduous process associated with the bill—particularly the UK Government veto and the court ruling—has had on trans people, their families and their friends.

Will the cabinet secretary update the chamber on the significant impact that the way in which the section 35 order has been used has had on devolution?

Karen Adam is quite right to point out the impact on the trans community in Scotland and, importantly, the impact on devolution. That is exactly why the Scottish Government took the case in the first place. We recognised that, unfortunately, the UK Government has a record of attempting to undermine devolution. The judgment is about how the section 35 power was used with respect to gender recognition, but it is important that we continue to challenge the use of section 35 orders in the future.

I accept the judgment. I accept that the ability to use section 35 is part of the devolution process, but the way in which it has been used in this case is a worrying precedent for anyone who is genuinely interested in Scottish democracy. There is an emerging pattern of interference. For example, although there were no deliberate breaches of the Sewel convention for the first 20 years of devolution, it has been breached 11 times since 2018. That is what happens when power is unfettered. That is why we will continue to challenge the UK Government, if we choose to do so, in the future in relation to any use of a section 35 order.

A year on from the passing of the Gender Recognition Reform (Scotland) Bill, what we have is a sorry and salutary tale for the Scottish Government. It needs to accept and reflect on its level of responsibility, not just for that failed piece of legislation but for how its actions influence wider discussion on a complex and sensitive issue.

In her discussion of upcoming work, the cabinet secretary did not refer to the upcoming final report of the Cass review. What plans is the Scottish Government making to respond to that report, which is due in the new year? Is the national gender identity healthcare reference group considering the delivery of gender identity healthcare for children and young people?

In relation to the section 35 order and the judgment, we all need to reflect on how this Parliament is treated. Regardless of people’s views on gender recognition, there is an on-going issue over how section 35 has been used. Yes, the Government will reflect, and I suggest that it is time for reflection for us all on this.

On the Cass review, the member will be aware that the on-going findings of the Cass review and their implementation by NHS England are being closely considered by the Scottish Government and NHS Scotland. I would be happy to get the minister who is more deeply involved in that issue to write to the member on the specifics.

The cabinet secretary knows that I was and am opposed to the bill, but Westminster should not be interfering in what is, rightly, Scotland’s business. Is the cabinet secretary concerned that future UK Governments might use a veto just because they do not like our legislation?

Yes. The bill is an example, it is fair to say, where the member and I have completely opposing views. However, he is quite right to point to the significance of the section 35 order to devolution. The issue was, rightly, also focused on by Mark Drakeford, who said that the UK Government’s decision to use powers that have never been used in the history of devolution was “a very dangerous moment”, which is the point that I was trying to make to Claire Baker earlier.

This is a turning point in devolution, and it is up to us all to reflect on what we do about that. The Government has taken the matter to court. As I said, we absolutely accept the judgment of the court and will not appeal. However, I think that the UK Government has a worrying habit, if I can put it that way, of interfering in devolution, and I fear that that habit may increase in the future.

The bill commanded support from members of all five parties across the chamber because it sought to allow trans people to be recognised for who they are without trauma in the legal architecture that underpins their lives.

Many trans people suffer discrimination and stigma every day. The process will have harmed them further and left them feeling let down and exposed. That is a great shame, and a humane approach to gender recognition is a problem that remains unresolved. They now look to us to make meaningful progress against the other barriers that stand between them and equality, such as a ban on conversion therapy and ready access to trans-inclusive healthcare. The cabinet secretary touched on some of those issues in her remarks, but, to reassure those who are watching us today and who are hurting, will she commit to a meaningful timeline of action and regular reporting to the Parliament on each of those areas?

Absolutely. Alex Cole-Hamilton is right to begin his remarks by saying that trans people simply want to be accepted for who they are. We should be able to say that about all members of our society. I appreciate that they feel let down, exposed and vulnerable. There is a responsibility, which I feel very heavily on me and my Government, to ensure that we move forward on the issue with whatever we can do across Government.

We have already discussed healthcare, but I will give an example on conversion therapy. We fully intended to have the consultation on the ending conversion practices bill out by the end of the year, but we listened to the concerns of stakeholders—including faith groups and LGBT groups—and the fact that they wished that to happen in the new year, in particular because people might feel particularly vulnerable over Christmas and new year when support services might not be available. That consultation is ready to be launched at the beginning of the new year, when the Parliament returns. Alex Cole-Hamilton has my absolute assurance that the minister will take that forward in due course. Either she or I would be happy to meet him to discuss it in further detail.

We have much interest. I would be grateful if we could have short and concise questions and responses in order to get as many members in as possible.

Following the court’s decision on the use of section 35 to block the Gender Recognition Reform (Scotland) Bill, does the cabinet secretary agree that devolution is fundamentally flawed and that only full independence can ensure that Scotland’s democratic decisions are implemented? [Interruption.]

I heard groans following that question—[Interruption.]—and I can hear more groans now, Presiding Officer.

Let us hear the cabinet secretary.

Let me be very clear: if the Scottish Conservatives do not want the conclusion to be that we need independence to ensure that the will of the Scottish Parliament is recognised, they must also reflect on the fact that section 35 is part of the devolutionary set-up, but how it is used is very important to how this Parliament feels that it is being treated and the respect that it is given.

Anyone who is interested in getting devolution to work—which, allegedly, the Scottish Conservatives are—would also wish to reflect on the use of section 35 in the future. Prove us wrong. Prove that there is a way to get devolution to work. Until then, Evelyn Tweed is quite correct that only with independence will we have Scotland’s democratic decisions implemented.

Women across Scotland were told that their views were not valid, so I applaud their hard-won victory, with the SNP’s dangerous Gender Recognition Reform (Scotland) Bill in the bin where it belongs.

I would like the cabinet secretary to explain why female prisoners are still being used as guinea pigs in the SNP’s gender self-identification experiment. Why should the most vulnerable women in society be told to accept that a rapist such as Isla Bryson or any other male-bodied sex criminal is a woman?

Once again, for the avoidance of doubt, I make clear that the bill is not in the bin; it awaits an incoming UK Government that has more respect for devolution.

I point out to Russell Findlay that the examples that he gives are under a gender recognition process that has been in place throughout the UK for many years. What has happened in the Scottish Prison Service has nothing to do with gender recognition certificates, and he should not conflate the issues.

Russell Findlay will also be well aware of the recent Scottish Prison Service policy on the issue. I would suggest that he looks at that in detail, if he is genuinely interested in the safety of women and transgender prisoners.

The court ruling 12 days ago came as a bitter blow to trans people across Scotland. I know that many of them are feeling very hurt and vulnerable right now, and they now must wait indefinitely for the reforms that the legislation that we passed here overwhelmingly 12 months ago would have delivered.

Trans people are targets just because of who they are. Given that their lives have been and continue to be weaponised as part of a toxic culture war, what assurances can the cabinet secretary give to trans people who need some hope and clear demonstration that they matter and that we value them?

I put on record my thanks to Maggie Chapman for all her work on the issue over the years. I look forward to continuing to work with her as we move forward to protect and enhance trans rights.

It is very important that we provide the reassurances that she has asked for. I hope that my words today in some way reflect my concern about the trans community’s vulnerability at this difficult time and the Government’s commitment on the issue.

Last year, the Scottish Government told us that the bill would make just a small administrative change; that it would grant no new rights; that it would not interfere with the operation of the Equality Act 2010; that safeguards were not required; and that there was no evidence of harm to women. All that was wrong.

This sorry and sad episode created a culture in which women were dismissed as transphobes and bigots. The Scottish Government failed in its duty to analyse the potential impact on women, and it misled Parliament. It must provide clarity on next steps, as the bill must never be implemented.

I renew my calls for the Government to apologise, as its conduct has fatally undermined public trust in Government, and it has no one to blame for that but itself.

I say to Ash Regan that, although the Scottish Government introduced the bill, it was passed by the Parliament. It is now the Parliament’s bill, and the Government will protect the will of the Parliament in any way that we can.

I also say to Ash Regan, as I have said before, that the judgment was about the use of section 35 with respect to the Gender Recognition Reform (Scotland) Bill. It did not discuss the merits of the bill itself, and it is very important that those two items are not conflated.

I fully welcome the Scottish Government’s on-going commitment to LGBTQ people and hope that the trans community will be offered the relevant support in the days and weeks following these events.

Will the cabinet secretary share further information on the reason behind the Government’s decision not to appeal?

As I have laid out already in some of my answers, the decision was one for which the Government had to take a view of not just the legal advice but the policy advice that we had. Reflecting on that advice and on our view that carrying on the process would impact negatively on the trans community, we feared that, because of the Secretary of State for Scotland’s intransigence on the issue, the bill would still not be able to pass. It is for those reasons that we chose not to appeal.

The Scottish Conservatives warned time and again that the SNP-Green gender self-ID bill threatened women’s single-sex spaces, and that was proven by the case of Isla Bryson. [Interruption.] The bill would have impacted on equality laws right across the United Kingdom.

Members!

If the SNP was so caring about the impact of its GRR bill on vulnerable women, why did it vote against those key amendments?

I fully respect that Rachael Hamilton and I have very different opinions on the bill. I appreciate that there are different views on the bill, but, once again, I am very firm in my opinion that we can improve the rights of trans people—one of the most vulnerable and marginalised groups in our society—while ensuring that we protect women’s rights, as well.

I would make the point that there were no amendments lodged at stage 3 that would have prevented a section 35—even if the Government had accepted all the amendments, that would not have been prevented. I say that based on the secretary of state firmly stating—he said this in the House of Commons—that he does not believe in having two systems within the United Kingdom. That is where we run into an intractable problem.

That is why we will continue to support trans rights, but we will also always support women’s rights and protect women from discrimination.

Regardless of the various views on the Gender Recognition Reform (Scotland) Bill, I think that we can all agree that it did not quite work out as intended. Indeed, it has soured relationships across multiple groups in our society.

Our job is simple: to scrutinise and pass good and competent law at best value to the public purse. With that in mind, will the cabinet secretary outline what specific review processes the Scottish Government plans to undertake on its role in this matter and the outcome that we have today?

Again, I think that we are in danger of conflating a judgment that was based on the use of a section 35 order with the merits of the Gender Recognition Reform (Scotland) Bill. The bill, as it was passed by the vast majority of this Parliament, remains a bill that this Government would like to see implemented. We will, of course, reflect on the judgment, but, very importantly, we will also reflect on the use of the section 35 order and how that impacts on the devolutionary process, because that is what the judgment was all about.

The cabinet secretary has spoken a lot today about diverging views and having respect. Many women and girls opposed the SNP-Green legislation in order to protect their rights and safety. Therefore, on behalf of the Scottish Government, will she thank them for everything that they did during the passage of the bill to stand up for those freedoms?

There were obviously diverging views on the bill among the Scottish Conservatives, as some members of Douglas Ross’s group voted for it, although I accept that the majority of them voted against. I have no doubt that every single member of this Parliament respects the rights of women and their need for protection against discrimination and violence. The Government and, I think, the Parliament have already demonstrated that that is the case on many occasions in the past, and they will continue to do so in the future.

That concludes the ministerial statement.

On a point of order, Presiding Officer. Throughout the cabinet secretary’s answers to questions on the statement, she referred to the fact that there were no amendments lodged at stage 3 that would not have resulted in divergence from United Kingdom legislation. There were such amendments, and they were in my name.

I thank Ms Webber for her contribution. I do not believe that it is a point of order, but it is on the record.

We will move on to the next item of business. I will allow a couple of minutes for the front bench members to organise themselves.