Chamber and committees

Convener, I wonder whether I can put another quote to the minister. In its report on the financial memorandum, the Finance and Public Administration Committee said:

“The significant gaps highlighted throughout our report in combination with the Scottish Government’s approach to introducing the primary legislation prior to completion of the co-design process has frustrated the parliamentary scrutiny process.”

Given everything that I said in my previous question and the concerns of other parliamentary committees, does the minister recognise that there is an opportunity here to pause, get back round the table, listen to those concerns and try to address them before we move to the next stage of legislation?

I want to turn to some of the financial implications and the financial memorandum. Last week, we heard from Cathie Russell from Care Home Relatives Scotland and the social covenant steering group, who said:

“What worries me, to some extent, is that we hear figures such as the £500 million cost of the new structure—Audit Scotland thinks that it could be more than £1 billion—but we will not get one extra hour of care for that. None of that will be spent on the front line.”—[Official Report, Health, Social Care and Sport Committee, 13 December 2022; c 38.]

Can the minister explain why existing Government commitments on the reform of social care as listed in the financial memorandum were not included in the bill? Can you give an update on any progress that there has been on fulfilling those commitments?

The minister will hear no complaints from me if he is singing the praises of East Renfrewshire. He makes a fair point about the length of time for which integration has been part of the fabric of certain communities and the importance of trying to learn from that.

I turn briefly to the social work element of that, and the further consultation that the minister intends to undertake on children’s services and criminal justice social work. What are the minister’s intended timescales for that?

What was your rationale for giving a promise of co-design after the bill is passed rather than doing that during the preparation of the bill? Is it your view that co-design after the fact is better than co-design before legislation, and who decided that the bill should proceed in that manner?

Okay. That might be comparing apples to oranges.

I will move on slightly, and quote some of the evidence that we have heard. The minister said that he feels that he has adopted a logical process, but we heard the following:

“at the moment, it feels as though it is a one-size-fits-all system, and I do not think that that will work”.—[Official Report, Health, Social Care and Sport Committee, 25 October 2022; c 38.]

We heard that

“So much is left to secondary legislation and co-design that we do not feel that we have the detail ... to be able to comment”,

and that

“We are talking about a substantial bill on a national care service that has been introduced without clear detail”.—[Official Report, Health, Social Care and Sport Committee, 1 November 2022; c 2, 23.]

We heard that

“this bill does not deliver the changes that are required”,

and, finally, that

“It is like buying a house without ever having seen it or knowing know how many rooms it has or where it is located.”—[Official Report, Health, Social Care and Sport Committee, 15 November 2022; c 35, 39].

That was a cross-section of the evidence that we heard from legal experts, Common Weal, care providers, local authorities and trade unions. Those are very serious concerns about the way that this has been done. Would the minister like to comment on some of those quotes?

Does the minister not recognise that there is a principle here around decisions being taken as close to people as possible and the role of local government in doing that? He is right to say that he and I have both served on local authorities as councillors, as have other colleagues on the committee. I am keen to understand why he feels that there will be more accountability by virtue of 129 MSPs and the minister having that control as opposed to local councillors having it. Does he feel that local councillors are not accountable enough now and do not represent their constituents on these issues?

Martin Whitfield’s point is well made. Everyone wants to have the sense that they know what is available, what they are signing for and that they can be advised accordingly. We want to ensure that lawyers who carry out the notary public or justice of the peace functions are all using the same forms, so that there is no confusion—in particular, for trans people who are applying using the process—and so that they know exactly what is expected of them, too. Indeed, it is my understanding that there is already a common form under the 2004 act, albeit that it applies to the current process as outlined in that act.

I move on to amendment 47A. I note that the cabinet secretary, in amendment 47, proposes that the person witnessing the statutory declaration should be provided with two pieces of ID in order to evidence that the person making the declaration is who they say they are. I support that, as does my party. However, my amendment 47A seeks to add clarity to the cabinet secretary’s amendment with regard to providing proof of identity.

As I understand it, amendment 47 would come under Law Society of Scotland guidance, which the cabinet secretary has shared in a letter to all MSPs. It says:

“It is essential that the notary must be satisfied as to the identity of the deponent. If the deponent is unknown to the notary, the notary should ask for proof of identity, e.g. passport, medical card, etc.”

I am concerned that that definition could be too narrow and unclear and could prove to be challenging for many trans people. My amendment 47A seeks to clarify that proof of identity can be provided from a wider scope of documents.

I have also sought to reflect the guidance that the cabinet secretary has offered on what

“living in the acquired gender”

means. That guidance refers to

“updating other documents like utility bills or bank accounts ... consistently using titles and pronouns in line with the acquired gender ... describing themselves and being described by others, in written or other communication, in line with the acquired gender”

and

“using a name that is associated with the acquired gender”.

I appreciate that my amendment 47A has caused concern for some trans people, but it is offered in the spirit of trying to be clear about the administrative process, in line with the principles of self-declaration and the requirement that the person will have lived in the acquired gender in the process of social transition.

Amendment 100 aims to provide greater clarity on the application process for a GRC by outlining the need for applicants to include certified copies of the pieces of proof of identity, along with their statutory declaration, when submitting their application to the registrar general. I believe that that would allow the registrar general to have confidence that the process has been appropriately followed. The requirement is not overly burdensome, with certified copies costing in the region of £30 for two certified copies from a lawyer.

I appreciate that a range of other amendments in the group seek to explore how the process can be improved, clarified and strengthened. Although I cannot agree with the content of them all, I respect the spirit in which they have been lodged.

I offer the amendments in the spirit of ensuring confidence in the process for everyone, and I hope that that is the spirit in which they are received.

I move amendment 100.

Yes—that is absolutely my understanding. It is why I have just outlined the wording of the 1835 act, which is included in that form, along with the current process. We would seek to replicate the new process on that form along with the wording of the 1835 act.

Through my amendments in that regard, I am trying to be helpful; they are sensible and demonstrate what people would recognise as a common-sense approach. I am disappointed that the Government cannot accept them.

My other amendments follow in the same vein. Through them, I aim to ensure that there is a belt-and-braces approach with regard to those who witness statutory declarations, that the evidence that is provided as proof of identity is lodged with the registrar general and that there is a record that the process has been followed properly. I think that everyone wants to have confidence that it has been followed properly, which is true whether you are a trans person applying for a GRC or a member of the wider public.

I acknowledge Graham Simpson’s amendments and note that he is keen to claim credit for inspiring me to lodge mine. I note, however, that there are some differences between his amendments and those that I have produced. Mine deal with the process of witnessing statutory declarations. There are differences in how I have set out my list of evidence, because I have tried to demedicalise the process, in line with the intent on this side of the chamber, and to ensure that no higher barriers are placed in front of trans people regarding issues such as gender markers.

I have already said that we support the cabinet secretary’s approach to proof of identity and want to take that further.

My colleague Michael Marra and I have spoken at length about the nature of the bill and of his amendments. As I said in my opening remarks, I do not agree with the content of all his amendments, especially that of his countersignature amendment, but I respect his sincerely held views as he brings that amendment to the chamber. I acknowledge that.

The amendments have been offered, as I said in my opening remarks, in a spirit of trying to ensure that the bill is as robust as possible and that it commands the confidence of anyone who has to engage with the process—particularly trans people, but also the wider public. That is the spirit in which I offer my amendments, and I hope that they will command support.

Not moved.

Amendment 104 moved—[Sue Webber].

On a point of order, Presiding Officer. My digital voting platform says that there has been a problem and an error. I would have voted yes.