Chamber and committees

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?

I appreciate what you have just said. I think that everyone would welcome an enhanced financial memorandum. That would be important, not least because of the significant concerns that have been raised by colleagues on the Finance and Public Administration Committee. Will that enhanced financial memorandum include consideration of the VAT liabilities that are involved in this process?

I rise to speak to amendment 100, which is in my name.

Throughout the legislative process I have sought to engage constructively with colleagues from across the chamber to help to deliver a robust and well-considered piece of legislation that serves to reform the process for obtaining a gender recognition certificate and to command the confidence of trans people and the wider public, as I set out in my contribution at stage 1.

The amendments that I will seek to move have the shared objective of seeking to provide greater clarity on the process of applying for a GRC. I wish to speak to the amendments in turn, beginning with amendments 103, 104 and 140. The amendments are rooted in a desire to provide further clarity on the process of statutory declaration, which is outlined in an act of Parliament from 1835. I believe that the nature of the statutory declaration process is not widely known or well understood, due to the act that outlines the process being almost two centuries old. Therefore I seek to move the amendments, which I believe are logical and sensible, in order to clarify the process for everyone.

Amendments 103 and 104 are two versions of similar amendments. I intend to press amendment 103 but will not move amendment 104.

Amendment 103 seeks to make the process explicitly a legal process by removing councillors from the category of witnesses to statutory declarations. It also seeks to provide clarity on how a statutory declaration would be made and the forms that would be used. It seeks to empower the registrar general for Scotland to provide the forms for statutory declarations, which would be drafted in accordance with the Statutory Declarations Act 1835. The relevant regulations would be subject to affirmative procedure, as outlined in my amendment 140.

There are two aspects to my rationale for the amendments. First, I believe that statutory declarations should be taken by a legal professional—that is, a notary public or a justice of the peace. I believe that it could be difficult to expect councillors to witness statutory declarations. That stems from my experience of being a councillor and my signing powers when I was in that role and, indeed, my knowledge of the powers that are placed on council legal departments in times of diminishing budgets. I also believe that it should fall to lawyers, and not to politicians, to administer the process. We know that most solicitors in Scotland can act as notaries public and are required to charge a fee that is set at £5 for such a process.

Secondly, I believe that, for the purposes of transparency and confidence, the forms to be signed should be set out by the registrar general and approved by regulations that are made under affirmative procedure. That would ensure that everyone would sign the same form of words declaring where they are ordinarily resident, that they have lived in their acquired gender for the required time period and that they will do so for the rest of their lives. The forms should then be publicly available so that everyone knows what is being legally declared.

I am grateful to the cabinet secretary for giving way. I appreciate what she is saying. I began a constructive conversation with her officials, although I was disappointed by the tone and attitude of her officials in the subsequent conversations.

I think that my amendments can work. The 1835 act specifies the form of words that is to be used, and that could be attached—it is a statutory declaration. I have no intention to wreck the bill: I make it clear that that has never been my intention.

I am also keen to understand from the cabinet secretary how she intends to clarify the point about councillors if she does not explicitly accept my amendment that would take councillors out of the process.

In summing up, I note that I am disappointed that the cabinet secretary feels that she cannot accept my amendment 103, which, as I said in my opening remarks, I have lodged in the spirit of being supportive and ensuring that the bill commands the confidence of not only trans people but the wider public.

As I said in my intervention, I acknowledge the initial conversations that I had with the cabinet secretary’s official, in which we had a shared intent to clarify who can witness statutory declarations. However, following the exchanges between the cabinet secretary and Rachael Hamilton, I am not entirely sure that I am any clearer. The approach that I have taken on trying to remove councillors from the process is based on the signing powers that councillors hold so that they can witness declarations. Ensuring that we do not overpoliticise the process, and so that legal professionals instead of politicians witness such things, was my intent in trying to remove councillors from the process. It was nothing to do with councillors’ roles as justices of the peace; indeed, I do not think that councillors can perform the role of notary public, which is solely in the purview of solicitors. We need a bit more clarity on that in the guidance that the cabinet secretary has committed to.

As I have said, I was encouraged by initial conversations but, subsequently, I was disappointed by the approach and tone of the official whom I dealt with. I do not agree with the cabinet secretary’s further assertions that my amendment would impact the bill in the way in which she has outlined.

The form of the 1835 act would be explicit in the regulations that would be laid before the Parliament in secondary legislation by the registrar general. Indeed, as I have said, forms already exist under the 2004 act that incorporate the wording of the 1835 act. It is important that the Parliament hears what is in the 1835 act. It says:

“I do solemnly and sincerely declare that I make this solemn Declaration conscientiously believing the same to be true, and by virtue of the Provisions of an Act ... passed in the Year of the Reign of His present Majesty, intituled An Act”,

and the guidance note says that the title of the act should then be inserted. My view is that that wording would be attached to whatever form the registrar general provides and it would be approved by the Parliament through the affirmative procedure.

Will the cabinet secretary give way on that point?

Yes.

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.