Chamber and committees

First, I thank Jamie Greene, who always lodges thoughtful amendments on some of the technical issues around the commission of offences. I will look at the matter from that point of view, so I am grateful that he has responded to a question that I put to him at stage 2.

To prove the commission of any crime, you must show the mental and the behavioural elements to the crime. It is impossible to see into someone’s mind, so you have to look at the actions of the person to establish what they were thinking.

What would be required to be shown around the commission of a fraudulent application, such as that which amendment 108 mentions? The bill is a self-identification model with no specific requirements as to what would constitute living in the gender. As the cabinet secretary pointed out yesterday, the guidance on acquiring gender in the Gender Recognition Act 2004 sets out what is required under that act, which is to gather the documentation.

Under the 2004 act, it is the panel that signs off before the declaration at the end of that two-year period, which is an important difference to understand. When it comes to this legislation, we need to be clear about what kind of evidence would need to be brought before a court before an offence would be brought before it.

Jamie Greene said at stage 2 that you could show the commission of the crime by showing that the person did not really mean to apply for a GRC or had not been using correct pronouns—and I think that the member said something about appearance. I do not think that that would be enough, because nothing in the bill requires a definition of living in the gender.

That is why I am interested in probing the question. How would someone prove such a fraud? Of course, it is possible to reverse a GRC—there is a provision to do that, and rightly so, because people might change their minds. My concern is that, having been charged with a fraud under this offence, someone could use that as a reasonable explanation—that they had changed their mind and reversed their GRC.

I am trying to probe the technical nature of the provision to see whether it is of any value. On balance, I would support having it over not having it, and I would support having the aggravator, because, although it might be unclear to us now why it might be needed, it is better to have a belt-and-braces approach.

Under article 5 of the European convention on human rights, there is a requirement to provide legal certainty of how an offence is committed under any act that we pass. However, I am concerned that the answers that I got from the cabinet secretary at stage 2 do not seem to square with the legislation that we are looking at, which does not require any specifics in order for a person to acquire their gender. To have a birth certificate aligned with that simply requires a declaration that that is the gender that the person now wishes to live in.

I have some difficulty with regard to how someone would prove that fraud to a court, but, on balance, I would rather have that provision in the legislation than not have it.

I am not going to second-guess the judgment and what might happen. I will say the following in response, which I was going to say anyway. The phrase that we have heard is that nothing in the bill changes anything in the Equality Act 2010. In a sense, that really depends on your perspective. Personally, I have always assumed that, where the Equality Act 2010 refers to sex, it means biological sex, although it does not say so, but some people think that it is legal sex. Lady Haldane seems to be saying that it is legal sex, but up to this point I thought that it was biological sex.

My point is that there is a great deal of confusion about what the judgment means. It is the job of the Government, as the movers of the legislation, to take into consideration the judgment and to tell providers and the general public what the effect of having a GRC is. I cannot answer what the effect is, because I am a wee bit confused myself, to be honest.

Let me deal with the question of having a GRC or not having a GRC. We have heard the argument that you can have one but it does not really make any difference whether you have one or not, because you can be excluded under the exemptions. There is a significant level of confusion about that, and it takes time to get your head around where having a GRC really matters.

In March of this year, the cabinet secretary said:

“This Bill does not introduce any new rights for trans people. It is about simplifying and improving the process for a trans person to gain legal recognition”.

I agree that it makes the process simple; what I am not clear about is whether it gives any new rights.

Many commentators are already saying that the Haldane judgment in the For Women Scotland case is likely to

“destabilise existing categories and frameworks for the purposes of the reserved matter of equal opportunities”.

In particular, I refer to an article by Michael Foran for the UK Constitutional Law Association. I realise that he is just one academic, but the issue is being discussed—obviously, because the judgment was passed only on 13 December. Here is the important part for the Government to consider: Michael Foran and others are now of the opinion that

“the possession of a GRC clearly does matter for the assessment of whether exclusion is objectively justified.”

Jackie Baillie made the argument very well. The law requires services to judge whether it is proportionate and legitimate to exclude anyone, and rightly so. They have to say why they think that that is proportionate. Some commentators are saying that, given the judgment that we have just had, we do not know whether the possession of a GRC will make it more difficult for services to make an objective judgment.

I am only posing the question; I am not saying that it is—

Give me a second, because I want to make this point thoroughly.

I am not saying that it will be more difficult, but the fact is that people are already raising questions about the judgment in that regard. The Government has to answer that question, because it is the one that is saying, “There are no problems here—the bill will be totally in line with the Equality Act 2010, and you can use the exemptions.” However, some people are now saying that the fact that someone has a GRC might not be seen as an objective reason to exclude them.

Amendment 84A is a very small amendment that seeks to include in the list of data to be collected those with—and those without—a GRC, for completeness. It just adds to amendment 84’s substantive list.

That is all I wanted to say.

On a point of order, Presiding Officer. I wish to raise a point relating to the groupings of amendments. Please advise whether I should do that now or after this debate. I want to ensure that you know I will raise that point.

I think that it would be helpful if the cabinet secretary would answer my specific point, which was to ask why she is choosing the evidence that has been given by one rapporteur when another clearly said, yesterday, that there is no international consensus on the model of self-identification? I am not talking about safeguards, general reform or anything else; I am talking about the particular model of self-ID processes. We are due an answer to why she prefers the evidence of one rapporteur and seems to be ignoring the other.

I accept that the rapporteur wrote to different countries to say they are not doing enough on legal recognition, but I would like an answer to the specific, important point that I made in my question.

On a point of order, Presiding Officer. My amendment 128 is on data and is in group 13, which is a very large group that will be debated for a long time. I feel that the amendment is wrongly placed in that group. I accept that amendment 128 overlaps with other amendments in that group, but I believe that it should be placed in group 19, which also deals with data.

I am concerned that there is a lot to address under group 13. I have lodged three other amendments and I feel that my contribution on data might be compromised.

The legislation team, who I thank for all that they have done this week, have advised me that there is no time limit on speeches. I know that that is technically correct, but it is important to clarify the point. I certainly do not want to take up unnecessary time in making my points under group 13. There was scope for the legislation team to place amendment 128 in another group, where there would be more space for it, if I can put it that way.

Presiding Officer, if it is your ruling that amendment 128 should remain in group 13, will you confirm that you can indulge me with the time that is needed to speak to my substantive amendments in that group and to address the question of data? Alternatively, will you consider my representation that the amendment would be better placed in group 19?

I do not raise the point to waste the Parliament’s time. It is important for members to feel that they have some ownership of groupings, which can be a bit of a mystery in the legislative process. The placement of amendment 128 stands out to me as being clearly arguable.

Will the member take an intervention?

Will the member take an intervention?

I confess that I am not sure about this intervention, but does Graham Simpson agree that, looking technically at the provision, where the cabinet secretary might possibly be wrong is that the 2004 act sets out a two-year period in which the person is required to submit documentation to show that their gender is aligned with their declaration? My understanding—I wonder whether it is also the member’s understanding—is that, under the bill, there is no similar requirement to provide that documentation, which is partly why Paul O’Kane is trying to press the matter. Does Graham Simpson agree that with the bill as it stands, although the guidance is there, it is meaningless, because the bill does not require that documentation?