Chamber and committees

My app seems to have completely crashed. I would have voted no.

Thank you—I appreciate that.

The issue of international standards and practices is an important debating point and one on which I am listening very carefully, because I want to know what the international best practice is. Do you accept the evidence that was given to the Equalities, Human Rights and Civil Justice Committee yesterday, in which the UN rapporteur on violence against women and girls said that there is not a consensus on the self-identification model, as opposed to legal recognition? Is it fair to say that that is the evidence that the committee was given yesterday?

I do not support the amendments in the group, but I want to speak to amendment 97, in the name of Rachael Hamilton.

I want to test the Government’s position on other reforms that could have been considered, particularly in relation to the two-year period. The 2004 act specifically mentions the two-year period that the applicant has to show that various documents have been aligned to their gender. It seems obvious that the 2004 act could have been radically amended. I fully support the removal of the medical diagnosis and the panel, but leaving in a period such as two years or even one year could have allowed a way for the documentation of the trans person who wants to realign their gender to be done in such a way that some of the issues around how it is shown that someone has acquired their gender could be overcome.

I want to hear from the Government about why it did not do that and why it went for the model of self-identification. That is what we seem to have ended up with. Will the cabinet secretary confirm that I am correct in saying that the current formulation is a self-identification process?

I wonder why the cabinet secretary has not listened to the evidence of the UN rapporteur, who said that there is not necessarily consensus in international law on the self-ID process. Obviously, there is consensus on legal recognition. I would like to hear why the Government has not listened to that and why it could not have looked at a longer process to overcome some of the issues.

Reem Alsalem has said that there is international consensus that

“persons should have access to legal recognition and that that should happen in a way that is consistent with fundamental principles of dignity, human rights and so on.”

I fully support that. However, she went on to say:

“I do not think that there is a consensus ... that countries should adopt a self-ID model.”—[Official Report, Equalities, Human Rights and Civil Justice Committee, 19 December 2022; c 23.]

However, what I see in front of me is a self-ID model. Although I am not arguing for the amendment, I wonder why the Government did not consider that certain elements of the 2004 act could have been removed, such as the medical diagnosis and the panel, but a longer period could have been looked at, and that might have overcome some of the issues that we will discuss when we discuss later groupings in relation to how someone shows that their gender is acquired. Perhaps even the legal question of fraud could be overcome.

In the final stages, and before we vote on whether to pass the bill, it is really important for the Government to set out clearly why it adopted the self-ID formulation and on what basis it rejects the amendments that are in the group.

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 for the Government, rather than anyone else, to address why it has gone for 16. That is important. 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 would seems to be a sensible step, at least until it has considered the review.

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

This relates to my intervention on Graham Simpson, and I am genuinely asking this question because I am not sure about this myself. Perhaps the cabinet secretary can tell me what the right interpretation is. I agree that the 2004 guidance exists and that that is how people acquire their gender, through a two-year process, incrementally, under the Gender Recognition Act 2004. However, the bill does not require people, per se, to provide any documentation in order to get their certificate. Therefore, there is a separate point to be made about how a person acquires that. Am I right in saying that, or am I wrong? I do not mind being wrong, but I would like to know.

I want to ask Gillian a follow-up question. You highlighted that the bail supervision assessment is a potential weakness, because it looks at individual needs and not at wider risks to the public. I was really interested in that, because we have been asked to consider a new test.

Given what you said, does a change need to be made to the way in which things work? Who is best placed to advise the court on the wider risk to public safety? Perhaps that is a Risk Management Authority question. Do you have a view on whose job that would be? Would you have to change the kind of information that you process because of the new test?

I want to come back in on that to try to understand it. In a public safety test, where the question is whether someone poses a risk, are you suggesting that we need to add something into the bill about considering what risk the person poses to the community if they have a level of support? Those are two entirely different questions. That is not what is in the bill currently, although what you are saying makes sense. Of course, that is for repeat offenders, but the same test would apply for a first-time offender, would it not?

Good morning. I will start by asking Lynne Thornhill about the threshold. I am still trying to get my head round the test, so bear with me; I am not certain that I have understood it correctly. As other members have said, the committee has previously questioned the high levels of remand. The Cabinet Secretary for Justice and Veterans said that one thing that the Government would do is introduce the Bail and Release from Custody (Scotland) Bill to change the test and give sheriffs more scope to make decisions that do not involve remanding people in custody. We have received submissions, including from the Crown and the judiciary, who had serious concerns about the initial provisions. The Government therefore adjusted that threshold test. My understanding is that the concern that sheriffs and judges have is that the test has been changed from a public interest test to a public safety test, and the problem is about who defines “public safety”. That is the context for my questions.

I am having difficulty understanding the evidence that I have just heard, because it does not really fit with what I am trying to get my head round. For example, in answer to Jamie Greene, Lynne Thornhill said that there was one piece that is likely to open up, and I did not fully understand that. The provision is designed to give sheriffs some discretion, but their concern is about how they can use that discretion if they do not have a framework for making the decision about what public safety is. Is criminal justice social work’s information, which we have been talking about, integral to a sheriff using that threshold when they are making a judgment about what “public safety” means, as someone has suggested? However, if someone does not have a criminal record in the first place, how can that public safety test be used?

I will ask the others to answer that question in a moment. You have given the example of a repeat offender. Using the public safety test, how will third sector organisations or criminal justice social work help a sheriff or judge to make a better decision on someone? How will that work? What information would you provide for a judge?

Tracey, would you like to add anything?