Scottish Parliament, 20 December 2022

553 contributions from 65 members. The official report.

Time for Reflection

Alison Johnstone (Presiding Officer, Lothian)

Good afternoon. The first item of business is time for reflection. Our time for reflection leader today is the Rev Dr Bruce Ritchie, who is a Church of Scotland minister and a tutor in Scottish church history at Highland Theological College, University of the Highlands and Islands.

The Rev Dr Bruce Ritchie (Church of Scotland Minister and Tutor in Scottish Church History, Highland Theological College, University of the Highlands and Islands)

Presiding Officer, today, we are five days before Christmas, and I would like to reflect on the faith of one of our great Scottish scientists, James Clerk Maxwell, who was brought up in Corsock in Dumfries and Galloway. Every morning, James and his wife Katherine had their own time for reflection. They read the Bible together and they prayed together, and when they were apart, James wrote to Katherine with his thoughts on the passage in question.

Maxwell was a deep-thinking Christian, whose faith affected his science and vice versa. In his physics, he saw that the relationship between entities was part of the entity itself. That field theory transformed physics, from Einstein onwards. In his faith, Maxwell believed similarly that the relationship between God and ourselves is what makes us what we are. We are not individual objects in isolation; we are created to be persons in relation. What we are in relation to God, and what we are in relation to each other, is what makes us persons.

Maxwell drove that relational way of thinking deep into his science and into his faith. In one of his letters to Katherine, he applied it to the central feature of Christmas: namely, that in the Christian faith, Jesus is regarded as fully God and fully man. For Maxwell, God with us, in the enfleshed humanity of Christ, enables us to know him. For Maxwell, God with us in the divinity of Christ enables him to change and transform us.

Maxwell wrote these words to Katherine:

“For [Jesus] is man that we may be able to look to Him; and [he is] God, so that He can create us anew in His own image.”

That was his faith: that Jesus enables humanity to know God, and that when we look at him, we see God himself. As God, Jesus takes our broken humanity and renews it, in order that the fragile, broken and damaged sons and daughters of humanity might become the healed and forgiven sons and daughters of God.

Presiding Officer, that was Christmas for James Clerk Maxwell: the knowledge of God, and the healing of humanity. Our task, as people in Parliament, is to reflect that divine mission: the mission of healing and renewal; the mission of peace and justice; the mission of reconciliation and forgiveness; and the mission of wisdom and compassion. We are made for each other, and we are made for God. May God’s blessing be on you, and may careful wisdom surround all your deliberations.

Thank you.

Topical Question Time

Alison Johnstone (Presiding Officer, Lothian)

The next scheduled item of business was to be business motion S6M-07320, in the name of George Adam. However, amendments to the motion have very recently been submitted, and in order to ensure that all members have adequate time to look at those amendments, I will move to topical questions at this time, and then we will return to the item on the business motion.

Budget 2023-24 (Education)

Willie Rennie (Liberal Democrat, North East Fife)

1. I am glad that so many members have turned up to listen to my very important question.

To ask the Scottish Government what its response is to reported comments by the general secretary of School Leaders Scotland, that a reduction in budget will lead to class sizes increasing, subjects being removed from the curriculum and a reduction in the number of teachers. (S6T-01060)

Jamie Hepburn (Scottish National Party, Cumbernauld and Kilsyth)

I have my own perspective on how pleasing it is to see so many people here, Presiding Officer.

This Government has delivered the highest school spending and more teachers per pupil than in any other United Kingdom nation. In Scotland, we have the lowest overall pupil teacher ratio in the UK at 13.2, compared with 18 in England and 18.5 in Wales.

In our budget, we have sought to protect councils by providing more than £13.2 billion in the local government settlement for 2023-24. That funding package represents a real-terms increase compared with 2022-23 and enables the continued delivery of high-quality education for our children. As part of that, we will continue to provide local authorities with specific funding of £145.5 million per year to support the school workforce. Investment in education is at a record high, with resource and capital spending up almost £200 million this coming financial year, which is one of the biggest rises in the history of the Scottish Parliament.

Willie Rennie (Liberal Democrat, North East Fife)

I do not think that the minister heard what Jim Thewliss said on Sunday. He was clear—and this is direct evidence from the classroom—that teacher numbers would be cut, class sizes would increase and subjects would be removed. Is the minister saying that Jim Thewliss is wrong?

Jamie Hepburn (Scottish National Party, Cumbernauld and Kilsyth)

I do not think that Mr Rennie listened to my answer. His question was predicated on the spending in the budget that we have laid out, and as I have laid out very clearly, there is a real-terms increase. The education and skills resource budget is up from £2.9 billion to just over £3 billion, and the education and skills capital budget has increased from £506 million to £566 million. The budget delivers a funding package that represents a real-terms increase compared with this financial year and enables the continued delivery of high-quality education for our children.

Willie Rennie (Liberal Democrat, North East Fife)

I want to know what that means for the election promises that were made by the minister’s party last year. Will there be an additional 3,500 teachers and classroom assistants; will the poverty-related attainment gap be substantially eliminated in primary and secondary schools; and finally, will teaching contact time be reduced by 90 minutes each week?

Jamie Hepburn (Scottish National Party, Cumbernauld and Kilsyth)

We have laid out our manifesto commitments, and we look to take them forward. The member mentions the Scottish attainment challenge, which is raised regularly in the Parliament, rightly, because it is an important issue. We will continue to invest £1 billion through the Scottish attainment challenge in this parliamentary session, which represents a substantial increase on the previous session’s £750 million. That is specifically designed to tackle the attainment gap and drive education recovery. As I have mentioned, we are providing more than £145 million of additional annual funding to ensure the sustained employment of additional teachers and classroom assistants. We are doing what we can to make sure that we deliver for Scotland’s young people at school.

Kaukab Stewart (Scottish National Party, Glasgow Kelvin)

I welcome the continued investment in our education system. Can the minister advise how education spending in Scotland compares with that in the rest of the UK? [

Interruption

Jamie Hepburn (Scottish National Party, Cumbernauld and Kilsyth)

I can hear the groans already, so it is clear that the Tories already know the answer. Education spend in Scotland is £1,758 per person, which is over £300 more per person than that in England. The figures are £1,439 in England and £1,680 in Wales.

We continue to support the recruitment of students into initial teacher education courses. The number of teachers per 100,000 pupils is 7,573 in Scotland compared with 5,734 in England and 5,636 in Wales.

Stephen Kerr (Conservative, Central Scotland)

Thank goodness for record block grant levels. It is not about inputs; it is about outputs. Scottish education ought to be the gift that we give to Scotland’s young people, with a promise of a better future. However, under the Scottish National Party, there are now 900 fewer teachers; subject choice is down; presentations at highers in science, technology, engineering and mathematics are at a five-year low; and there is a dramatic fall in modern languages education. There is now talk in the councils in Central Scotland of shorter periods, shorter school days, a shorter school week, and even fewer subject choices. There are rising class sizes as ratios are ditched, and teachers are more worried than they ought to be about their safety in the classroom. It is hardly sunlit uplands, is it? Is the minister as embarrassed as he should be?

Jamie Hepburn (Scottish National Party, Cumbernauld and Kilsyth)

Actually, I am very proud when I go out to see the many achievements of young people throughout this country, supported by first-class teachers. That is what I am proud to say that we have in Scotland. Mr Kerr did not mention that, of course. Maybe he has not been out there encountering what is happening on the ground.

I have already made a point about our support for young people and the number of teachers, which I will reiterate—I thank Mr Kerr for giving me the chance to do so. We are investing £145.5 million of additional annual funding to ensure the sustained deployment of additional teachers and classroom assistants. That is why we have the best pupil teacher ratios in the entire UK.

Michael Marra (Labour, North East Scotland)

I have listened carefully to the minister’s responses, and it is clear that he has dodged the core question, which was about the manifesto commitments on which the Government was elected—it was about the 3,500 additional teachers and reductions in classroom time. Is it not right that the pledge on 3,500 teachers is dead in the water under the budget?

Jamie Hepburn (Scottish National Party, Cumbernauld and Kilsyth)

I have fully responded to that question. We have laid out our manifesto commitments, and we will work to take them forward.

Oliver Mundell (Conservative, Dumfriesshire)

Rural schools have already seen whole subjects removed from the timetable. Surely the minister cannot be proud of the fact that, in parts of Scotland, people cannot take whole subject areas. That is not educational opportunities for all. How can it be right that my Dumfriesshire constituents, in the likes of Moffat academy, have fewer opportunities today than I had when I was at school? The minister cannot be proud of that.

Jamie Hepburn (Scottish National Party, Cumbernauld and Kilsyth)

I cannot attest to Mr Mundell’s education, but I can go back to a point that I have already made. If people go out and see what is happening in our schools and consider the area that I have responsibility for, they will see that a much wider array of subject matter is available in terms of technical qualifications at the senior level. I am very pleased to see an increased range of subject matter and an increased range of choices available to young people. Frankly, although I do not know about Mr Mundell’s time at school, those were certainly not available when I was at school.

Budget 2023-24 (Local Government)

Mark Griffin (Labour, Central Scotland)

2. To ask the Scottish Government what its response is to the statement by the Convention of Scottish Local Authorities expressing council leaders’ extreme disappointment with the proposed budget settlement for local government and its presentation lacking consistency with a partnership approach, and their invitation to the Deputy First Minister to attend a special meeting. (S6T-01061)

John Swinney (Scottish National Party, Perthshire North)

Despite the spectacularly difficult current fiscal context, the Scottish Government has increased the resources available to local government next year by over £570 million. I have also invited council leaders to work with us and other partners to design our services around the needs and interests of the people and communities of Scotland. That is how we will deliver sustainable public services in partnership.

In addition to funding from the Scottish Government, local authorities enjoy a range of revenue-raising powers that are not available to other public services, including newly devolved powers over empty property rates relief.

Mark Griffin (Labour, Central Scotland)

I did not hear clearly whether the cabinet secretary has agreed to join the special meeting with COSLA leaders; I hope that that will be clarified now. The Government’s claim on Thursday that local government would get £500 million, and its promotion of a partnership approach, unravelled within hours. As I said at the time, that was little more than smoke and mirrors.

The unanimous response of COSLA leaders across all parties—and, most significantly, of council leaders from the Deputy First Minister’s party—is that the budget represents another massive real-terms cut in councils’ core funding, which will lead to socially harmful job losses. That could not be more serious.

Services as we know them will cease to exist. On Thursday, I asked the cabinet secretary whether he had assessed the cost to the national health service of cutting preventative services, but he did not answer. What is left to cut? Where is the impact assessment of what such austerity will do to the rest of Scotland’s public services?

John Swinney (Scottish National Party, Perthshire North)

The proper comparison of budgets that Parliament expects of me, as the acting finance minister, is between one budget and the next budget. From last year’s budget to this year’s budget, the local government finance settlement has increased by £570 million.

In the dialogue that I had before the budget statement, local government asked me for an increase of £1 billion in its budget allocation. I was clear with local government that £1 billion could not be delivered in the current fiscal context. Local government was expecting a flat cash settlement; it expected no more money next year in comparison with this year, because that is what it was encouraged to believe from the resource spending review, but in fact, I have delivered £570 million more. That is a welcome settlement for local government.

Mark Griffin (Labour, Central Scotland)

There is still no answer on the wider impact of the cuts on Scotland’s public sector landscape. I heard the Deputy First Minister’s comments on Sunday about the need for reform. Where has the Government been for the past decade? Councils have been salami slicing in the face of 10 years of real-terms cuts. The days of salami slicing are over; it is now wholesale cuts—services ended.

Officials in Scottish National Party-run Aberdeen City Council have started looking at everything that the council does—social work, council tax collection, free school meals, dog control, health and safety and even the welfare fund. That could all be privatised and outsourced. Given what Aberdeen—along with all other councils—is considering, is the budget being used not to reform but to dismantle local government?

John Swinney (Scottish National Party, Perthshire North)

No. The budget has been designed to create sustainable public services, with an increase of £570 million in the local government budget that was not expected. I have offered local authorities the opportunity to be partners in how we take forward the reform of the public sector. That was exactly what I did when we designed the Covid recovery strategy, which was agreed with local government. I look forward to building on that as we take forward the local government settlement, which I stress is £570 million higher than local authorities expected it to be.

Paul McLennan (Scottish National Party, East Lothian)

The proposed uplift of more than £500 million in the local government settlement is a welcome real-terms increase in investment in our public services and local democracy, amid the most challenging budget circumstances since devolution. The Deputy First Minister referred to the additional revenue-raising powers that are available to Scottish councils, which are important. Will he underline how local authorities are set to benefit even more significantly in the coming year, if they engage meaningfully with the Scottish Government on a new deal for local government, which could provide new sources of revenue and unlock fiscal reserves?

John Swinney (Scottish National Party, Perthshire North)

I am keen to take forward that approach, as is the social justice secretary, who is sitting beside me. We have embarked on such discussions with local authorities and we look forward to developing that work into the new fiscal framework. Local authorities have other tax-varying powers, such as those in relation to empty property relief. In due course in this parliamentary session, we will legislate on a visitor levy. Local authorities have at their disposal other measures, but they can rely on a £570 million increase in their budget that they were not expecting.

Elizabeth Smith (Conservative, Mid Scotland and Fife)

COSLA has put it on the record that, between its written response to the national care service proposals and the National Care Service (Scotland) Bill’s publication in June,

“There was no meaningful engagement between the Scottish Government and Local Government”.

In combination with the concerns that Mr Griffin outlined, does that represent a serious situation for so-called partnership working between the two forms of government and for the effective delivery of local services?

John Swinney (Scottish National Party, Perthshire North)

Frankly, I do not recognise the world that Liz Smith talks about. [

Interruption

.] Well, okay. Let me explain the dialogue with local authorities. I had several discussions with local government about the preparation for the budget, right up until the eve of the budget. I had discussions with all the political leaders in COSLA of all shades of political opinion. My colleagues who are involved in the work on the national care service have been involved in dialogue with local government, but I stress that local government has made it quite clear, because of its opposition to the national care service, that it does not particularly want to take forward dialogue with the Scottish Government on those questions.

When it comes to wider partnership working, I cite to Liz Smith the work that the Scottish Government did, in partnership with local government, that resulted in the Covid recovery strategy being agreed—it was a jointly agreed proposition. With the president of COSLA, I chair a delivery board to take forward such priorities. I wish that members of Parliament would reflect the reality of what is going on, not the invention of reality that we get from the Conservatives.

Business Motion

Alison Johnstone (Presiding Officer, Lothian)

The next item of business is consideration of business motion S3M-07320, in the name of George Adam, on behalf of the Parliamentary Bureau, on changes to this week’s business. I invite George Adam to move the motion.

Motion moved,

That the Parliament agrees to the following revisions to the programme of business for—

(a) Tuesday 20 December 2022—

delete

8.00 pm Decision Time

and insert

10.20 pm Decision Time

(b) Wednesday 21 December 2022—

delete

2.00 pm Portfolio Questions:

Rural Affairs and Islands;

Health and Social Care;

Social Justice, Housing and Local Government

followed by

Ministerial Statement: Climate Change Committee’s Review of Scottish Emissions Targets and Progress Report 2022

and insert

2.00 pm Stage 3 Proceedings: Gender Recognition Reform (Scotland) Bill

3.15 pm Portfolio Questions:

Rural Affairs and Islands;

Health and Social Care;

Social Justice, Housing and Local Government

delete

5.45 pm Decision Time

and insert

6.30 pm Decision Time

after

12.00 pm First Minister’s Questions

insert

followed by

Ministerial Statement: Climate Change Committee’s Review of Scottish Emissions Targets and Progress Report 2022

delete

12.45 pm Decision Time

and insert

1.15 pm Decision Time—[

George Adam

The Presiding Officer

I call Alexander Burnett to speak to and move amendment S6M-07320.1.

Alexander Burnett (Conservative, Aberdeenshire West)

Here we are, then. After months of warnings from me and my party, which were largely ignored, we now face a vote on a motion that goes to extraordinary lengths to keep the final vote on the Gender Recognition Reform (Scotland) Bill before Christmas. This is the culmination of the many bureau meetings at which I voiced my concerns and the minister, in turn, voiced excuse after excuse as to why the bill should be rushed, all to avoid some bad public relations for the Cabinet.

I confess that, despite all the timetabling motions and the underhanded moves from the convener of the Equalities, Human Rights and Civil Justice Committee, who, of course, is a Scottish National Party MSP, I never actually thought that we would reach a point at which the choice before members was so blatant. Members can support the motion and, in doing so, directly support the SNP’s gleeful push to deny Parliament the scrutiny that it was elected to provide, or they can take the correct path and support my amendment to give the bill adequate time to be considered properly.

In the previous session, the SNP would not have been able to get away with it, but now, with the Greens mindlessly nodding through every cynical political decision, it has shut down scrutiny on any legislation that is considered remotely controversial: the Fireworks and Pyrotechnic Articles (Scotland) Bill, the coronavirus bills or the rent freeze bill, to name a few. That has now become the norm and, sadly, this Parliament, its MSPs and its officials, appear to have accepted that. What a joke.

A future version of Parliament will have to spend a full session going back and repairing or repealing the rushed legislation passed during this sorry stint of government. We should all be thoroughly ashamed of the example that we are setting for the rest of the world of how not to do democracy.

The situation is made even worse when we consider the kangaroo court that took place on Monday, when the SNP finally allowed evidence to be taken from a United Nations expert on violence against women and girls but stacked the evidence session in its favour by re-inviting a Government-backing witness, too. That witness had already given evidence, and I note that organisations and former MSPs have written to complain about being excluded from the process—

The Presiding Officer

Mr Burnett, I will stop you for a second and ask you to take a seat. I advise in the strongest possible terms that there is a code of conduct, to which all MSPs are expected to adhere. We must treat all other MSPs with courtesy and respect, and I object to language that suggests otherwise. The proceedings that took place on Monday evening were parliamentary proceedings, and I ask you to continue, bearing that in mind.

Alexander Burnett (Conservative, Aberdeenshire West)

Thank you, Presiding Officer. I should just point out that a lot of members have not had the opportunity to study the

Official Report

of that committee meeting. I am not sure whether it has even been published yet, but there certainly has not been time for members who did not attend that committee meeting to have considered the evidence that was taken.

We should be doing the sensible and mind-numbingly obvious thing by pausing the bill in order to let the committee examine it further, and scheduling more than two days for consideration of the stage 3 amendments, even if that means that we delay the final vote until 2023.

I have said it before and I will say it again: there is no good reason why the bill process could not be finished in the new year. Sadly, though, the arbitrary completion deadline of Christmas appears to have been accepted by everyone else. Other members of the Parliamentary Bureau have supported the SNP’s timetable multiple times. Labour voted against our sensible amendments that would have given more time to stage 2, which might have meant that some of stage 3’s 153 amendments would have been dealt with already.

This Parliament’s reputation is in free fall, and we are fast approaching rock bottom. I truly believe that schools and universities will use this parliamentary session as a case study of what happens when an Executive is allowed to go unchecked—unchecked by politicians, officials and everyone.

However, we can fix that. First and foremost, there needs to be a serious recognition that the Scottish Government does not respect this place, which was all too clear with last week’s budget fiasco. Presiding Officer, the Government deliberately ignored you and it will do so again. It will push you and this Parliament as far as it can, until it is told not to, and it is time to tell it not to.

I move amendment S6M-07320.1, to insert after “3.15 pm Portfolio Questions: Rural Affairs and Islands; Health and Social Care; Social Justice, Housing and Local Government”:

I move amendment S6M-07320.1 to insert after “3.15 pm Portfolio Questions: Rural Affairs and Islands; Health and Social Care; Social Justice, Housing and Local Government”—

“delete

Stage 3 Debate: Gender Recognition Reform (Scotland) Bill

and insert

Stage 3 Proceedings: Gender Recognition Reform (Scotland) Bill”.

Jeremy Balfour (Conservative, Lothian)

On a point of order, Presiding Officer. I seek your guidance. As we have just heard, today’s business promises to go on late into the evening and, for some colleagues, especially those who have disabilities or caring duties, that is a long time to be required to be in one place. Some people require to take medication at certain times, some require extra time for comfort breaks and some have care responsibilities that we will be unable to attend to.

As a Parliament, we have committed ourselves to be more inclusive and to encourage more people to stand for election. Can you advise me whether a disability impact assessment been carried out on today’s timings? What advice do you have for those members who will struggle due to the extended sitting time? If no assessment has been carried out, could you please tell me why?

The Presiding Officer

I thank Mr Balfour for his point of order. I am responsible for standing orders, but the chair does not govern matters of health and safety in the Parliament. However, I note the member’s concerns, which are on the record.

Comfort breaks will be built into today’s proceedings. I confirm now that I intend for there to be a break of around 15 minutes at around 6 pm. As recommended by the Standards, Procedures and Public Appointments Committee, there are options for members to participate from locations other than the chamber, as required and as agreed by the Parliament. The Parliamentary Bureau has discussed the scheduling of business and I reassure the member that some of the issues that he has raised were considered by business managers.

Neil Bibby (Labour, West Scotland)

On a point of order, Presiding Officer. Mr Burnett spoke to an amendment to the business motion, but that amendment has not been circulated to me or other members by either Mr Burnett or the parliamentary business team, and I am concerned about that.

The Presiding Officer

I thank Mr Bibby for his point of order and I appreciate the points that he makes. However, standing orders allow that any member can lodge an amendment to the business motion if they have sufficient support—that of 10 members—to speak to it. I appreciate what Mr Bibby is saying with regard to the wording of the amendment.

Neil Bibby (Labour, West Scotland)

What is the amendment?

Anas Sarwar (Labour, Glasgow)

What is the amendment?

The Presiding Officer

Mr Burnett, can you advise the

Parliament of the wording of your amendment?

Alexander Burnett (Conservative, Aberdeenshire West)

Well—

Martin Whitfield (Labour, South Scotland)

On a point of order, Presiding Officer. The issue is that the amendment should be published. Members received a business update at 1.38, which I assume was later than when the amendment was lodged. I wonder why it was not published with that update, when the parliamentary manager’s motions were published.

The Presiding Officer

I understand that it was not lodged later than that. The amendments were lodged after that point.

I am going to suspend Parliament for the time being, in order to ensure that all members have the wording that they require.

14:30 Meeting suspended.

14:44 On resuming—

I ask any member who has not yet received the notice of amendments to raise their hand.

Thank you, Ms Webber, we will ensure that it reaches you. We will do the same for Mercedes Villalba—thank you.

Meghan Gallacher (Conservative, Central Scotland)

On a point of order, Presiding Officer. I am concerned by the scheduling of business in this Parliament. As a new mum, I already struggle to find childcare during regular work hours, let alone until late at night. Last week’s business proposal said that we would be here until 11:30 tonight, so I made the best arrangement I possibly could. Today’s revision could mean that we will be here until late tonight and also tomorrow.

First, in line with my colleague Jeremy Balfour’s point of order, I ask whether any existing parliamentary processes include impact assessments of the effect of the scheduling of business on new parents. I ask that because, at the end of the previous session of Parliament, several members stood down citing the impossibility of working here while raising a young family. I fear that matters are becoming worse.

Secondly, is it your understanding that it would be possible within parliamentary processes for this week’s consideration of stage 3 amendments to have been split into three sessions, with the final debate on the Gender Recognition Reform Bill being moved into the first week of work in January, which currently has a blank business slot on Tuesday 10?

The Presiding Officer

I thank Ms Gallacher for her point of order. It is certainly the case that some of the matters the member raises are not matters for standing orders and therefore are not matters for me to rule on from the chair. As I said to Mr Balfour, breaks will be built into this afternoon. The cross-party Parliamentary Bureau is the forum that decides business for Parliament.

We have not yet reached the point of making a decision on the business timetable. That is what is currently being debated. We will continue in that vein.

Sue Webber (Conservative, Lothian)

On a point of order, Presiding Officer. I have a spreadsheet on my computer with a waiting list of members of the public who are desperate to get into the gallery today. The gallery does not appear to be particularly full at the moment, given how many people are waiting to get into proceedings.

The Presiding Officer

I thank Ms Webber for her point of order, which is not a matter that I would usually rule on from the chair. I am aware that tickets have been allocated. Our colleagues from visitor services will be dealing with the matter at this moment.

Pauline McNeill (Labour, Glasgow)

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.

The Presiding Officer

Thank you, Ms McNeill. I suggest that we take that point of order when we reach that stage in the proceedings.

We will now carry on with the proceedings. I call Graham Simpson to speak to and move amendment S6M-07320.2.

Graham Simpson (Conservative, Central Scotland)

Thank you, Presiding Officer. I completely agree with everything that has been said by Mr Burnett, Mr Balfour and my other colleagues about today’s proceedings.

Colleagues have now had a chance to read my amendment to the business motion, which calls for a statement tomorrow on the strategic transport projects review 2. That was issued by the Scottish Government nearly two weeks ago, at the end of the week, but no parliamentary time has been allocated to it so far. There has been no debate and there have been no questions—nothing—yet this eagerly awaited document could have far-reaching consequences.

As a Parliament, we should expect to have statements on important matters such as this one as soon as the documents are issued. There is simply no good reason for the Government to avoid being questioned on STPR2—unless, of course, it does not fancy the undoubtedly tough grilling that it would get from me and others.

To say that STPR2 is a damp squib is a massive understatement. People who live in the south-west who were hoping to get some good news on the upgrading of the A75 and the A77 are still waiting. If people want to find out when the A9 will be fully dualled between Perth and Inverness, the document is not for them, I am afraid. We would think that it might have been.

There are lots of warm words, but they offer cold comfort for communities the length and breadth of Scotland. There is nothing in the STPR2 for people who rely on Scotland’s ageing ferry fleet. There are plenty of ifs, buts and maybes, but no firm commitments to build bridges and tunnels or improve ports. There is no ferry replacement plan. We must wait for that, I suppose.

There are the usual platitudes about wanting to cut car miles by a fifth within seven years, but just how that is going to be achieved is anyone’s guess. People will certainly not discover the answers from the document.

On railways, we have conflicting statements. I quote the document:

“The plan includes the following statement in relation to transport: ‘By 2032 ... we will have decarbonised our passenger railways’”.

However, it goes on to say that, by 2032,

“Scotland’s passenger rail services”

will be

“considerably decarbonised, with just a few years to go until they are fully decarbonised”.

That is not the same thing.

The point is that all of that gives MSPs much to chew over, but with no chance to question the minister. Instead, we have the farce of this week. We have been through that already, with a potential midnight sitting tonight and another late one tomorrow. We should be having statements on things such as STPR2 and dealing with important matters such as that, which affect all our constituents and all our constituencies.

I move amendment S6M-07320.2, to insert after “3.15 pm Portfolio Questions: Rural Affairs and Islands; Health and Social Care; Social Justice, Housing and Local Government”:

“

followed by

Ministerial Statement: Strategic Transport Projects Review 2”.

The Presiding Officer

I call Liam Kerr to speak to and move amendment S6M-07320.3.

Liam Kerr (Conservative, North East Scotland)

I am very grateful, Presiding Officer. I rise to request that tomorrow’s business be adjusted to include a ministerial statement on the Government’s biodiversity strategy, which was laid in Parliament on 13 December 2022. For the benefit of those in the chamber, I note that that is the purpose of the amendment that I lodged.

The strategy is incredibly timely given that, just yesterday, at the 15th United Nations conference of the parties—the biodiversity summit—which many worry too often plays second fiddle to the climate conference COP, a deal was sealed on a new global biodiversity framework. Some have called it a Paris moment for nature. In it, nations have adopted four goals and 23 targets for 2030 to protect our lands, coasts and inland waters.

The loss of species and degradation of our natural environment is an existential threat to humanity that requires that we take urgent and transformative action. Indeed, Minister Lorna Slater states at the beginning of the biodiversity strategy:

“this is an emergency that requires an emergency response.”

Indeed it does, and that is why we must hear a ministerial statement without delay. I note that the strategy is already a week old. Waiting several weeks until after the recess fails to recognise the importance of the strategy.

It is important that the issue is put into context. Scottish Forestry created only 9,500 hectares of new woodland last year, against the Scottish Government’s target of 13,500 hectares for 2021-22. The Government’s “State of Nature Scotland” report states that species abundance has shown a marked and continual decline in the past 10 years. More generally, 49 per cent of species have decreased. A year ago,

The Ferret

reported that 531 habitats and 603 species in Scotland are in poor condition, including island and upland habitats. Species that are in poor condition and in decline include the Scottish wildcat, the hedgehog, the capercaillie and the Arctic skua. Just this morning, the Net Zero, Energy and Transport Committee heard from the Climate Change Committee about the importance of peatland restoration. However the Government’s target of 20,000 hectares per year was missed by well over 10,000 hectares.

In that context, the biodiversity strategy is key. The Climate Change Committee’s report and the evidence that it has given to committee indicate that data, monitoring and proper planning are imperative in order to achieve what we all want. Therefore, it is vital that ministers appear before the Parliament so that MSPs can interrogate the monitoring and evaluation framework that will be used to check that we are meeting our biodiversity targets, ensure that we see how stakeholder engagement will be carried out—engaging the public so that they buy into the biodiversity strategy is key to successful outcomes—and to see whether the priority actions that have been set out for 2030 are the most appropriate for achieving our biodiversity goals. Although I appreciate that the Parliament has a tight timescale before the Christmas recess, the biodiversity and nature crisis will not wait—and nor should we.

Respectfully, I ask the Parliament to grant my request for there to be a ministerial statement on the biodiversity strategy tomorrow.

I move amendment S6M-07320.3, to insert after “3.15 pm Portfolio Questions: Rural Affairs and Islands; Health and Social Care; Social Justice, Housing and Local Government”:

“

followed by

Ministerial Statement: Biodiversity Strategy”.

The Presiding Officer

I call Stephen Kerr to speak to and move amendment S6M-07320.4.

Stephen Kerr (Conservative, Central Scotland)

Last week, a plethora of annual statistics was released about Scotland’s education system. I believe that those statistics ought to have been a focus of the business of the Parliament last week, because they could cause us to sit up and take notice. We should have had the opportunity to have heard from the cabinet secretary last week; however, we did not. I tried every way that I knew to get that issue into the Parliament’s Business Bulletin, but I was unsuccessful.

The minister has just partly answered a topical question about some of the evidence that was delivered through the statistical release—namely, that we have fewer teachers and more pupils and therefore greater class sizes. On top of that, as a consequence of the budget, councils are talking about having shorter lesson periods, shorter school days and shorter school weeks, and there is the question of the diminishing range of subject choices that are available to our young people who are in secondary schools. As I have already mentioned, class sizes are rising as pupil-teacher ratios are ditched—in part for financial expediency, but largely because of Scottish Government neglect. As has been mentioned, there is also grave concern among teachers about a number of issues, not least the level of classroom violence that they encounter. Teachers ought not to have to worry about their safety in the classroom.

If the Parliament is not focused on the quality of our children’s education and the clear issues that we are facing in the education system, especially in the aftermath of the pandemic, then all I can say is that we ought to be. That is why I want a ministerial statement to be added to chamber business tomorrow, so that the Government, represented by the cabinet secretary or the minister, can come to the Parliament and be scrutinised about the data that we are now in possession of: the decline in the number of teachers in our schools, as well as other data that has been released through the summary statistics for schools in Scotland 2022.

Sadly, the sum total of the data does not make for pretty reading. That might explain why the Scottish Government has been so reluctant to come to the chamber to make a statement. It might also explain why the Scottish Government has removed Scotland from international league tables for education. I am afraid that those league tables and the limited data available to us would undoubtedly show that the SNP has mismanaged our education system and that there is a need for greater scrutiny of this policy area—perhaps more than any other.

I worry that there is worse to come, because of the budget and the commentary in the media—of which there has been plenty—about the consequences that flow from it. There will be another round of real-terms cuts to local government, which will undoubtedly have an impact on the education system, which is a big ticket item for every local authority. There will also be an impact on extracurricular activities, which add so much to children’s experience at school.

Scottish education used to be the envy of the world. However, the limited data that is available to us shows us that there have been 15 years of mismanagement at the hands of the Scottish Government. Many of us in the Parliament believe that Scotland’s children and young people deserve better.

That is why it is imperative that the SNP Government makes a statement about the curriculum for excellence data. That should happen tomorrow, so that we can begin a more serious look at those statistics in the context of the work of the Parliament. Fundamentally, that is why the people of Scotland elect us.

I move amendment S6M-07320.4, to insert after “3.15 pm Portfolio Questions: Rural Affairs and Islands; Health and Social Care; Social Justice, Housing and Local Government”:

“

followed by

Ministerial Statement: Curriculum for Excellence Achievement Statistics”.

The Presiding Officer

I call George Adam to respond on behalf of the Parliamentary Bureau.

George Adam (Scottish National Party, Paisley)

On behalf of the Parliamentary Bureau, I say to some colleagues that had they spoken to their business manager to put those points across, their business manager would have been able to argue those points at bureau, which is the place for such discussions to be held in an open and frank manner.

With that in mind, I stand by the business programme that we agreed earlier today at the bureau. I suggest that we carry on in that way.

Neil Bibby (Labour, West Scotland)

I thank the minister for taking my intervention. He will be aware that we have called for several statements, including on the strategic transport projects review 2 and education attainment. I once again put on record our support for those statements being made and hope that the Government will make them early in the new year.

We have been clear that the debate on the Gender Recognition Reform (Scotland) Bill should not be curtailed. We ensured that the bill was delayed until this week and that the debate was originally scheduled to be held over two days. The final debate was doubled in length following our request. Meanwhile, the Conservatives say that they want extra time to debate the bill but are now wasting time when we should be scrutinising the bill. [

Applause

The Presiding Officer

Thank you, members.

Neil Bibby (Labour, West Scotland)

As I said, we do not wish to curtail the debate on the bill and have never sought to do so, at any stage. On that issue, does the minister share my understanding that the Presiding Officer would normally allow every member who wishes to speak on a bill the opportunity to do so?

George Adam (Scottish National Party, Paisley)

I believe that the Presiding Officer mentioned during the meeting that she was of a mind to hear from as many members as possible in order to ensure that everyone has the opportunity to say their piece during the passage of the bill—as is normally the case.

On Mr Bibby’s question about statements, as a business manager, Mr Bibby was right to work through the Parliamentary Bureau, where we found our way to common ground to agree that the statements will be made at a later date. That is how we work in the Scottish Parliament.

Alexander Burnett (Conservative, Aberdeenshire West)

On a point of order, Presiding Officer, I seek your advice on how a member or a minister might correct the record. Both my position at the bureau and the very clearly documented email correspondence between us are contrary to the minister’s suggestion that we have not been seeking to approve the timetable for the bill.

Perhaps the Presiding Officer could remind the minister of how he might correct the record, because he has still failed to come to the chamber to do so. He misled previously when he said that the decision was unanimous. I am not sure whether the minutes of the bureau meeting have been published, but when they are, they will clearly show that the decision was not unanimous. I trust that the Presiding Officer will be able to instruct the minister accordingly.

The Presiding Officer

The content of members’ contributions is not ordinarily a matter for the chair. Members will be aware of the corrections mechanism and how to use it, should they wish to correct anything that is recorded in the

Official Report

The question is, that amendment S6M-07320.1, in the name of Alexander Burnett, which seeks to amend business motion S6M-07320, in the name of George Adam, on behalf of the Parliamentary Bureau, on changes to this week’s business, be agreed to. Are we agreed?

Members

No.

The Presiding Officer

There will be a division. There will be a brief pause, to allow members to access the digital voting system.

15:05 Meeting suspended.

15:08 On resuming—

The question is, that amendment S6M-07320.1, in the name of Alexander Burnett, be agreed to.

The Presiding Officer

The result of the division on amendment S6M-07320.1, in the name of Alexander Burnett, is: For 31, Against 96, Abstentions 0.

Amendment disagreed to.

The result of the division is: For 95, Against 10, Abstentions 21.

Motion agreed to,

That the Parliament agrees to the following revisions to the programme of business for—

(a) Tuesday 20 December 2022—

delete

8.00 pm Decision Time

and insert

10.20 pm Decision Time

(b) Wednesday 21 December 2022—

delete

2.00 pm Portfolio Questions:

Rural Affairs and Islands;

Health and Social Care;

Social Justice, Housing and Local Government

followed by

Ministerial Statement: Climate Change Committee’s Review of Scottish Emissions Targets and Progress Report 2022

and insert

2.00 pm Stage 3 Proceedings: Gender Recognition Reform (Scotland) Bill

3.15 pm Portfolio Questions:

Rural Affairs and Islands;

Health and Social Care;

Social Justice, Housing and Local Government

delete

5.45 pm Decision Time

and insert

6.30 pm Decision Time

after

12.00 pm First Minister's Questions

insert

followed by

Ministerial Statement: Climate Change Committee’s Review of Scottish Emissions Targets and Progress Report 2022

delete

12.45 pm Decision Time

and insert

1.15 pm Decision Time

Alexander Burnett (Conservative, Aberdeenshire West)

On a point of order, Presiding Officer. I seek a motion without notice under rule 8.6.2—

The Presiding Officer

Thank you, Mr Burnett—I am just concluding this item of business.

Motion without Notice

Alison Johnstone (Presiding Officer, Lothian)

I call Alexander Burnett for a point of order.

Alexander Burnett (Conservative, Aberdeenshire West)

Presiding Officer, earlier today, I submitted a request to you under standing orders rule 17.2 to suspend rule 9.8.4A in relation to the Gender Recognition Reform (Scotland) Bill stage 3 consideration of amendments—

The Presiding Officer

Mr Burnett, I am accepting your motion. Please continue, and speak to and move the motion.

Alexander Burnett (Conservative, Aberdeenshire West)

Do you want me to start again?

The Presiding Officer

I have given consent for the motion without notice, so please speak to the motion.

Alexander Burnett (Conservative, Aberdeenshire West)

Thank you, Presiding Officer.

Earlier today, I submitted

a request to you under standing orders rule 17.2, to suspend rule 9.8.4A in relation to the Gender Recognition Bill stage 3 consideration of amendments. That would result in no timetable limits to stage 3 amendments, with proceedings carrying on over multiple days if required.

The request also detailed the alternative provisions for considering stage 3, as is required by rule 17.2. Those were that every member who wishes to speak on any amendment grouping should be granted the opportunity to do so.

That request has been made necessary by the constant curtailing of scrutiny by the Scottish Government throughout the bill process, implemented through the Parliamentary Bureau and other means. I encourage members to support my motion so that the bill can receive the full scrutiny that it deserves.

I move,

That the Parliament agrees that for the purposes of consideration of the Gender Recognition Reform (Scotland) Bill at stage 3, Rule 9.8.4A be suspended and that debate on each grouping of amendments continues until each Member who wishes to speak in a group has an opportunity to do so.

The Presiding Officer

No other member has asked to speak on the motion. The question is, that motion S6M-07325, in the name of Alexander Burnett, on the suspension of standing orders, be agreed to. Are we agreed?

Members

No.

The Presiding Officer

There will be a division.

Rachael Hamilton (Conservative, Ettrick, Roxburgh and Berwickshire)

On a point of order, Presiding Officer. I am sorry to delay proceedings—[

Interruption.

]

The Presiding Officer

Ms Hamilton, please continue.

Rachael Hamilton (Conservative, Ettrick, Roxburgh and Berwickshire)

I raise a point of order under standing orders rule 9.10, which says that members of the Parliament are allowed to speak in support of amendments that they lodge. Last night, after 10 o’clock, my colleagues Russell Findlay, Labour member Jackie Baillie and Scottish National Party member Michelle Thomson were sent a letter that asked them to withdraw their amendments to the bill at the 11th hour. The amendments in question all aim to provide protections for women’s rights. In particular, my colleague Russell Findlay’s proposal would introduce a crucial safeguard to prevent convicted sex offenders from changing their legal gender in order to potentially access vulnerable women’s and girls’ spaces. I consider that amendment to be one of the most important that we will hear today, but, instead of publicly debating that much-needed proposal, the SNP Government has attempted to shut down debate and silence colleagues from around the chamber.

Alison Johnstone (Presiding Officer, Lothian)

The next item of business is consideration of business motion S6M-07321, in the name of George Adam, on behalf of the Parliamentary Bureau, which sets out a timetable for the stage 3 consideration of the Gender Recognition Reform (Scotland) Bill. I call George Adam to move the motion.

Motion moved,

That the Parliament agrees that, during stage 3 of the Gender Recognition Reform (Scotland) Bill, debate on groups of amendments shall, subject to Rule 9.8.4A, be brought to a conclusion by the time limits indicated, those time limits being calculated from when the stage begins and excluding any periods when other business is under consideration or when a meeting of the Parliament is suspended (other than a suspension following the first division in the stage being called) or otherwise not in progress:

Groups 1 to 3: 1 hour 45 minutes

Groups 4 to 6: 2 hours 30 minutes

Groups 7 to 9: 3 hours 50 minutes

Groups 10 to 12: 5 hours 30 minutes

Groups 13 and 14: 6 hours 30 minutes

Groups 15 and 16: 8 hours

Groups 17 to 19: 9 hours 15 minutes.—[

George Adam

]

Stephen Kerr (Conservative, Central Scotland)

rise to speak against motion S6M-07321, on stage 3 timetabling. In doing so, I appreciate that that is quite an unusual position to take. I clarify that, in general, I support the existence of guideline times for stage 3 consideration of amendments but, today, we are presented with a timetable that does not do justice to the complexity of the issue that is before us. At every turn, the Scottish National Party has used all its power to ensure that this business is rammed through Parliament before Christmas. Frankly, it has done so to protect its own political capital. That has come at the expense of scrutiny and reflective consideration of the detail of the bill that is before us this week. It has also meant the exclusion of stakeholder voices at key junctures, which we should all be ashamed of.

I believe that those moves by the SNP high command and, sadly, all too often—[

Interruption

.] I do not think that this is a very humorous point.

The Presiding Officer

Please continue, Mr Kerr.

Stephen Kerr (Conservative, Central Scotland)

I think that the people of Scotland who are watching this will make up their own minds about some of the catcalling that is going on.

The Presiding Officer

I ask members to conduct themselves in a respectful manner at all times. Mr Kerr, please continue.

Stephen Kerr (Conservative, Central Scotland)

As I was saying, I believe that these moves, which are, sadly, too often condoned by other parties in Parliament, are, in the eyes of the people of Scotland, to the detriment of the reputation of our Parliament and of Scottish democracy. That is why I fully supported Alexander Burnett’s comments on the motion on the programme of business.

Graeme Dey (Scottish National Party, Angus South)

On a point of order, Presiding Officer. I am afraid that my app failed; I would have voted yes.

The Presiding Officer

Thank you, Mr Dey. We will ensure that that is recorded.

The Presiding Officer

The result of the division on motion S6M-07321, in the name of George Adam, on behalf of the Parliamentary Bureau, on the Gender Recognition Reform (Scotland) Bill, is: For 95, Against 31, Abstentions 0.

Motion agreed to,

Groups 1 to 3: 1 hour 45 minutes

Groups 4 to 6: 2 hours 30 minutes

Groups 7 to 9: 3 hours 50 minutes

Groups 10 to 12: 5 hours 30 minutes

Groups 13 and 14: 6 hours 30 minutes

Groups 15 and 16: 8 hours

Groups 17 to 19: 9 hours 15 minutes.

Pauline McNeill (Labour, Glasgow)

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.

The Presiding Officer

I thank Ms McNeill for her point of order. As members are aware, the Presiding Officer decides the groupings at stage 3. A number of factors are considered in determining how amendments are grouped, but the principal purpose of grouping amendments is to minimise repetition by debating together amendments that are on a similar topic.

When an amendment is relevant to more than one group, consideration of where to place it will be based on factors such as avoiding repetition, ensuring that alternative ways of addressing the same issue are considered together and avoiding procedural issues, such as amendments being pre-empted before they have been debated.

The grouping of an amendment does not curtail the scope of what a member can say in their contribution. I advise Ms McNeill that amendment 128 will remain in group 13 but, as I have said previously, it is certainly my intention and that of the Deputy Presiding Officers to allow members to contribute as fully as we can.

Ruth Maguire (Scottish National Party, Cunninghame South)

On a point of order, Presiding Officer. Rather reluctantly, given what has happened over the past hour, I seek your guidance on scope. Colleagues from across the chamber have had amendments ruled out of scope for the reason that the bill relates to the process of applying for a gender recognition certificate, not to the effect of having a gender recognition certificate. That has left some of us unable to address concerns that constituents have raised, in particular in relation to the fact that the bill, if passed, will allow a much larger cohort of citizens to change their legal sex.

In raising this point of order, I wish to make it clear that I am not challenging your rulings on any individual rejected amendments. Rather, I am asking you to provide clarity, on the record, as to scope, so that members and our constituents who are watching can be very clear about the parameters for our consideration of the bill at this time.

The Presiding Officer

I thank Ms Maguire for her point of order. As members will be aware, there are four criteria for the admissibility of amendments, one of which is relevance. Relevance is determined by the provisions of a bill at introduction, rather than by the broader policy to which the bill relates. More guidance on admissibility can be found in the guidance on public bills that the Parliament publishes.

Gender Recognition Reform (Scotland) Bill: Stage 3

Alison Johnstone (Presiding Officer, Lothian)

The next item of business is stage 3 proceedings on the Gender Recognition Reform (Scotland) Bill. In dealing with the amendments, members should have the bill as amended at stage 2—that is, Scottish Parliament Bill 13A—the marshalled list and the groupings of amendments. The division bell will sound and proceedings will be suspended for around five minutes for the first division of the stage 3 proceedings. The period of voting for the first division will be 45 seconds. Thereafter, I will allow a voting period of one minute for the first division after a debate.?

??Members who wish to speak in the debate on any group of amendments should press their request-to-speak buttons or enter RTS—request to speak—in the chat function as soon as possible after I call the group.

Members should now refer to the marshalled list of amendments.

The Presiding Officer

Group 1 is on applications by 16 and 17-year-olds. Amendment 6, in the name of Rachael Hamilton, is grouped with amendments 93, 94, 7, 98, 24, 15, 25, 99, 8, 26, 9, 12, 101, 37 and 105. I draw members’ attention to the procedural information relating to this group, as set out in the groupings. I point out that, if amendment 9 is agreed to, I will not be able to call amendment 10, due to a pre-emption, and that, if amendment 12 is agreed to, I will not be able to call amendment 101, due to a pre-emption.

Rachael Hamilton (Conservative, Ettrick, Roxburgh and Berwickshire)

As drafted, the Gender Recognition Reform (Scotland) Bill would lower to 16 the age at which an individual could apply to obtain a gender recognition certificate. Amendments 6 to 9 and 12 in this group seek to keep the minimum age at which someone can apply for a GRC at 18.

In Scotland, an individual who is under the age of 18 is not considered old enough to stand for election to this Parliament, nor can they serve as a juror, place a bet, buy or sell alcohol, get a tattoo or be permitted to watch certain films at the cinema. As with obtaining a gender recognition certificate, I agree that there is good reason for that.

Earlier this month, the Parliament held a debate on human rights day, in which the Scottish Government set out its intent to incorporate the United Nations Convention on the Rights of the Child into domestic law. The UNCRC defines anyone under the age of 18 as a child. Moreover, in its evidence taking on the bill, the Equalities, Human Rights and Civil Justice Committee heard from Susan Smith that people do not cognitively mature until 25. That contention is also outlined in Scottish prison sentencing guidelines. Despite that

, as drafted, the bill would confer the right to apply for a GRC, alongside the great burden of responsibility of applying for one, on individuals as young as 16. Worse still, it would—

Alex Cole-Hamilton (Liberal Democrat, Edinburgh Western)

If I am called to speak later, I will speak to the number of variances that exist around the age of majority in Scots law. Rachael Hamilton and her group backed the Age of Criminal Responsibility (Scotland) Bill, which set the age of mental capacity for children in terms of being held responsible for their actions and their crimes at 12, which is two years below the de minimis set by the international community.

Does Rachael Hamilton recognise that age is not a guarantor of wisdom and that 16 is the age at which most things in Scotland are now consolidating? If we can credit 12-year-olds with the capacity to commit crimes, we can certainly credit 16-year-olds with having the capacity necessary to understand their identity and apply for recognition of the same.

Rachael Hamilton (Conservative, Ettrick, Roxburgh and Berwickshire)

I thank Alex Cole-Hamilton for that intervention. By comparing the ages of capacity for criminal responsibility and for obtaining a gender recognition certificate, I do not think that he is comparing like with like. Moreover, the Scottish Government’s own equality impact assessment states that it needs more up-to-date research, because it needs to collect data on the impact on the mental wellbeing of young people. It is important to note that the Scottish Government’s impact assessment does not back up its argument.

The relevance of cognitive maturity, the capacity of children to change and the conference of such a great responsibility on children seem worryingly misguided in the bill as drafted. In committee evidence sessions, group after group, expert after expert, and even an Irish senator, who is generally in favour of those reforms, spoke out against lowering the age. Last night, we heard from Reem Alsalem, who will also make her opinion known to the Scottish Government on the lowering of the age, but she has not yet had the opportunity to do so.

Despite all of that evidence, when I brought these amendments to the committee at stage 2, the cabinet secretary rejected them on the basis of an anecdote. Does she believe that her opinion, which is based on that anecdote, is more valuable than the views of experts who gave evidence in committee or, indeed, the 81 per cent of the Scottish public who were polled on the topic of lowering the age to 16 and thought that it was a bad idea?

Children who are struggling with gender identity need the Government to support them, not place a burden of responsibility on them. That support could be provided in two ways: by gaining a better understanding of their experience and by improving provision of services. Dr Hilary Cass’s review into gender identity services provided this Parliament with a golden opportunity to improve our understanding and gain clarity on how we can improve services, but it has been completely ignored while this legislation was needlessly railroaded through Parliament. Do Scottish children not deserve the same level of care and safeguarding as those who live south of the border? I find it extraordinary that the Cass review was not taken into account.

The interim report from the independent Cass review has led to the closure of the Tavistock clinic in London—a move that was supported by the Equality and Human Rights Commission but ignored by the Scottish Government. The cabinet secretary has continued to play down the relevance of such an intervention; that is in line with her policy of shutting down any conversations that might prolong the scrutiny that is applied to the bill.

In responding to these amendments, will the cabinet secretary explain why she believes that warnings from an independent review of child gender services in the United Kingdom are not linked to children obtaining a gender recognition certificate in Scotland? Does she believe that accessing gender services for children would have no bearing on their decision to apply to change their gender? Should we continue to ignore the opportunity to implement recommendations for improving those services before passing the bill?

Concerned clinicians have yet to hear a single justification from this Government as to why it has chosen to ignore evidence that is deemed worrying enough to close down services in the south. On that point, I fully appreciate the sentiment behind Claire Baker’s amendments in this group. However, the fundamental issue of lowering the age at which an individual can obtain a GRC remains a sticking point on which I cannot support those amendments for the reasons that I have already set out.

In the same vein, I understand the reasoning behind amendment 15, in the name of Kenny Gibson, which would ensure that applicants who are under the age of 18 must seek advice from someone such as a medical professional; amendments 98 and 101, in the name of Jamie Greene, which would require young applicants to be able to provide evidence that they have sought advice regarding obtaining a GRC; and amendment 99, in the name of Christine Grahame, which would require young applicants to

“tell the Registrar General what role the individual”

who is giving guidance to the applicant plays. It is vital that safeguards remain in place in order to make the bill workable, and I absolutely appreciate that those amendments seek to introduce further safeguards for under-18s who are applying for a gender recognition certificate. However, they are fundamentally underpinned by an acceptance that people under the age of 18 should be enabled to obtain a GRC. The fact that we are having a discussion about the need for extra safeguards for that particular group of people is an admission that there are concerns. I urge members who are concerned about that to consider the arguments that I have set out on why now is not the time to extend the ability to obtain a GRC to children who are under 18.

Similarly, Jackie Baillie’s amendment 105 relies on such an acceptance, although I understand that it comes from a position of attempting to clean up a potential loophole that would allow people who are even younger than 16 to begin the process of obtaining a GRC. Nonetheless, that amendment stumbles on the same sticking point of making allowances for under-18s to apply for a gender recognition certificate.

I move amendment 6.

Claire Baker (Labour, Mid Scotland and Fife)

I have lodged amendments 93 and 94 in order to raise the issues that have been identified in Dr Hilary Cass’s interim report of her review of gender identity services for children and young people in NHS England. It is worth highlighting those issues in the context of the proposal to lower from 18 to 16 the age at which someone can obtain a GRC in Scotland.

The report recognises that social transition

“is not a neutral act”

and that it may lead to young people taking a medicalised pathway. Acquiring a GRC is a potent form of social transition. Although it is often stated that it is not a passport to clinical services, it can be an indicator that would strengthen the case for medical intervention.

The stage 1 report by the Equalities, Human Rights and Civil Justice Committee includes consideration of the Cass interim report, and asks that the Scottish Government consider

“a full review into ... gender identity healthcare.”

It would be helpful to know whether the Scottish Government intends to do so.

There is little research into or analysis of the increase in the number of young people who seek to transition. That point was made by the Cass report, which highlighted persisting evidence gaps and areas of uncertainty. Although I recognise that the Cass review looks at services in England, it raises concerns that we should take into consideration. The interim report says:

“There has not been routine and consistent data collection ... which means it is not possible to accurately track the outcomes and pathways that children and young people take through the service.”

There is a lack of consensus and open discussion about the nature of gender dysmorphia. The report says:

“The mix of young people presenting to the service is more complex than seen previously, with many being neurodiverse and/or having a wide range of psychosocial and mental health needs. The largest group currently comprises birth-registered females first presenting in adolescence with gender-related distress ... Primary and secondary care staff”

report that

“they feel under pressure to adopt an unquestioning affirmative approach.”

There are concerns over

“diagnostic overshadowing—many of the children and young people presenting have complex needs, but once they are identified as having gender-related distress, other important healthcare issues that would normally be managed by local services can sometimes be overlooked.”

My amendments 93 and 94 call for a pause—for time to reflect on the emerging evidence on services for children and young people and to consider the reasons behind the high proportion of young women who apply.

A pause would not prevent any 16 or 17-year-old from socially transitioning. They can change the vast majority of their documents; their school, college or university has policies in place to support social transition; a birth certificate is rarely needed as identification; and, as Scottish Trans highlighted in a briefing to MSPs last week, the provision of birth certificates to universities or employers is not a legal requirement—that is also the case if we were to retain the age of 18.

Having lodged amendments at stage 2, and having been a member of the Culture, Tourism, Europe and External Affairs Committee, which scrutinised the Census (Amendment) (Scotland) Bill, I have held many discussions and meetings on the bill, and have worked hard to understand the arguments while being prepared to question and scrutinise some of the assumptions and assertions that are being made. I ask for caution. The Cass interim review has raised important issues around safeguarding, and it is not unreasonable to pause a reduction in age to 16 in order to take full cognisance of emerging evidence and concerns.

Jamie Greene (Conservative, West Scotland)

I put on record my thanks to the many organisations and individuals who have sent briefings to members. I know that those take a lot of time and effort. In particular, I thank Stonewall, LGBT Youth Scotland, Amnesty International and the Equality Network—and, more recently, the Scottish Human Rights Commission and MurrayBlackburnMackenzie. Although not all those organisations may agree with me—or indeed with each other—it is important to respect the fact that there are differing opinions on many of the amendments that we will debate today, and I thank them for their efforts.

My two amendments in the group—to be followed by a third anomaly, which I will come on to—are around applications by 16 and 17-year-olds. I understand and appreciate that one of the fundamental changes that the bill makes is to reduce the age at which one can apply for a GRC from 18, the current age in the Gender Recognition Act 2004, to 16. Throughout stage 2, a number of amendments that gathered cross-party support were accepted. I felt that there was room for improvement on those, for many of the reasons that Rachael Hamilton has given.

In the bill as drafted at the moment, before we amend it, section 3A talks about

“Guidance, advice and support for young applicants”.

It is a new section that was added at stage 2 and it is a welcome addition, but at present it states that

“The applicant must ... confirm to the Registrar General that the applicant has discussed the implications for the applicant of obtaining a gender recognition certificate with an individual”.

It then goes on to list two criteria for whom that individual should be.

My amendment 98 provides that, when confirming to the registrar general that they have discussed their application with a suitable individual, an applicant aged 16 or 17 must also

“be able to provide reasonable evidence”

of that discussion, if requested to. Amendment 98 adds no further criteria as to who the person must have that conversation with, nor does it put unnecessary barriers in place. It simply allows for the registrar general to request evidence that the conversation has indeed taken place.

Graham Simpson (Conservative, Central Scotland)

Will the member take an intervention?

Jamie Greene (Conservative, West Scotland)

Yes, in just one a second. I will first speak to amendment 101, which follows on from amendment 98. It provides that, when granting an application to a 16 or 17-year-old, the registrar general must be

satisfied that the applicant has received

“appropriate guidance, advice and support”

as detailed in section 3A. The registrar general may reject the application if he or she is not satisfied about that.

Graham Simpson (Conservative, Central Scotland)

In relation to amendment 98, I am interested to know what Jamie Greene means by the phrase

“be able to provide reasonable evidence”.

There is a danger in any legislation when we insert such phrases, which are potentially quite woolly legally. I am not sure what that means, so it would be useful if the member could tell us.

Jamie Greene (Conservative, West Scotland)

The member makes a fair point. If we had had more time to discuss the amendments—which would have been excellent—the benefit would have been that they could easily have been tidied up with more succinct language.

I understand that members on the Conservative benches will likely oppose my amendments for not going far enough in terms of support and guidance and that members on the Government benches will oppose them because they think that they go too far, so I am somewhat stuck in the middle of that conundrum.

However, the member makes a fair point and I am uncomfortable with the speed at which we have to address the amendments. For that reason, I will listen carefully to arguments that are made, and, indeed, to the response from the Government, which I hope will contain some legal feedback on the wording of my amendments.

The premise of my amendments is simply to try to go a step further than how the bill is currently drafted in order to provide some extra comfort and safeguards that young people are getting appropriate advice. Martin Whitfield’s amendment 25 does something similar—I am sure that we will hear more about that in due course—as does Kenny Gibson’s amendment 15.

In all the amendments in the group there is a common theme, but there are two things that some of the amendments seek to introduce with which I am uncomfortable. The first is the reintroduction of the concept of the medicalisation of the process, which is something that the bill seeks to remove. That is, in my view, contrary to the general principles of the bill, which I support. The other thing is to revert to the status quo of the age of 18. It is no secret that I do not agree with that position.

There is one further amendment in the group that I will speak to, when it is called, on behalf of another member who is unable to be here. I will reserve further comments until that point.

Martin Whitfield (Labour, South Scotland)

It is a pleasure to follow Jamie Greene and I echo his thanks to those outside the chamber who have provided suggestions, advice and commentary. Much effort has been spent on engagement with people on the bill. Although I am not in agreement with some of what has been said, I thank everyone who has reached out for doing so, because it is our role in this place to listen to our constituents.

I intend to speak to amendment 24 and three others. Amendment 24 is a technical amendment that would pave the way for amendment 25, which has already been discussed by Jamie Greene. To a certain extent, amendment 25 builds on and complements other amendments in this group that we have heard about. It merely seeks for the individual to whom that young person has spoken to be named and identified and requires that an address be provided in order that people can contact that individual. That is not a huge step forward or a reach into something that should be protected or unknown.

It is right that young people take their time to make decisions, and interesting arguments have already been expressed in the chamber about raising the age to 18. I cannot find agreement with that. In Scotland, we support our young people to make increasingly important decisions about themselves, and they do so with the scaffolding that sits around them. The scaffolding is not there to influence those decisions but to protect the young people when they make decisions and to give advice when it is sought. Identifying the person—or people or organisations—to whom a young person has spoken is a reasonable step to show that discussions have taken place and were appropriate.

I understand, having had discussions with the Government—for which I thank it—that there are some steps being taken in relation to the idea that it should be a conversation rather than a written record. All that my amendment seeks to do is to identify the name and contact address of the individual; it does not seek to go behind that and into the discussion that has been held. On many levels, I can understand that confidentiality must exist for discussions to take place properly; indeed, for a young person to reach out to a trusted adult, there must first be trust.

Tess White (Conservative, North East Scotland)

The United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill defines children as

“persons under the age of 18.”

Does Martin Whitfield agree that 16 and 17-year-olds are still children?

Martin Whitfield (Labour, South Scotland)

Here, in Scotland, young people are aged 16 and 17, and I accept the wording of the UNCRC. It seeks to reinforce the protections that exist for children and is a vehicle for young people to question decisions that are made about them that do not encompass or hold up their human rights. I very much look forward to hearing from the Government when that issue comes back to the Parliament and we can fully and properly debate it.

I return to amendments 24 and 25, which seek to make small steps forward to reinforce confidence for the young person and enable those around them to ask, “Who was it that you spoke to?” and ask the young person to provide their name—or names, if they speak to an organisation—and contact information. Amendment 25 does not seek to impinge on any discussions that happen. It certainly does not invite a young person to share the details of discussions or risk criminalising them for doing so in error. It merely asks for factual information, which I believe is reasonable to give.

The other two amendments in my name are 26 and 37. Again, amendment 26 has the benefit of being a tiny technical amendment and it would facilitate amendment 37. Amendment 37 addresses concerns about the capacity of 16 to 18-year-olds to apply for a gender recognition certificate or to understand the implications of possessing one. It would allow a registrar general to reject an application if they were not satisfied that the person applying was capable of understanding the effect of the certificate or the importance of a statutory declaration. Additionally, a registrar general would be obliged to reject an application if they suspected that a young person was under any kind of coercion to apply for a certificate.

In law, young people aged 16 and over are presumed to have capacity, which is right. However, if we liken decisions on this matter with other decisions that can be made by young people of that age in Scotland—such as on consent to or refusal of treatment, or on the refusal of access to medical records—we must respect their consent.

I thank the cabinet secretary for the meeting that took place on 8 December and her letter, paragraph 6 of which states:

“Turning to my own amendment 60, also agreed by the Committee at Stage 2, this introduced a new power for the”

registrar general

“to apply to a sheriff on the grounds that a GRC application was fraudulent or that the applicant was incapable of understanding the effect of obtaining a GRC or of validly making the application.”

If the cabinet secretary is content to confirm on the record that, if a registrar general felt that a young person lacked understanding of the effect of obtaining a certificate, there would be a vehicle open to the registrar general, I will be minded not to move amendments 26 and 37.

Kenneth Gibson (Scottish National Party, Cunninghame North)

For reasons of brevity, I will speak to only two amendments: my amendment 15, which simply seeks to strengthen section 3A, and amendment 6.

The bill seeks to demedicalise self-identified transition. Amendment 15 strikes a balance between that aim and the need for effective counselling—a move that I consider to be vital. These days, young people are encouraged to seek counselling even when they fail an exam. A person who can provide such advice should be clarified in guidance, should be suitably qualified, and could be a medical practitioner. However, that person should not be a parent or teacher unless they are qualified to give counselling advice.

Where deemed necessary by the counsellor, the young person concerned could be referred to a suitable clinician. The Cass review states:

“The mix of young people presenting to the service is more complex than seen previously, with many being neurodiverse and/or having a wide range of psychosocial and mental health needs ... once they are identified as having gender-related distress, other important healthcare issues that would normally be managed by local services can sometimes be overlooked ... Clinicians should remain open and explore the patient’s experience and the range of support and treatment options that may best address their needs”.

The Cass review focuses on England, but is the experience of young people with gender distress any different here in Scotland? I think not.

A senior child psychiatrist told

The Guardian

that

“In the last five to 10 years we’ve seen a huge surge in young women who ... want to become boys. They’ve changed their name and they are pressing … to have hormones or puberty blockers”—

a development that often follows the social transition represented by a GRC. The psychiatrist said that

“Often those girls are children who are going through the normal identity and developmental problems of adolescence and finding a solution for themselves in this way.”

Emma Roddick (Scottish National Party, Highlands and Islands)

I am a little confused. The member seems to be concerned about demedicalisation and also about the current growth in medicalisation. Does he not recognise that demedicalisation will uncouple the two issues and will perhaps allow young people to explore whether they even want to pursue medical transition?

Kenneth Gibson (Scottish National Party, Cunninghame North)

I am of the view that, with proper counselling, it may be that young people will have to seek a clinician. My point about counselling is that they do not have to go down that road. I am trying to strike a balance between both positions that have been expressed so far today.

There is currently no consensus among clinicians about the matter, and parents have differing explanations of what might have prompted their child’s gender uncertainty. Bayswater Support represents the parents of roughly 500 trans adolescents. Members often describe their child’s trans identity as overshadowing other factors including neurodevelopmental conditions such as autism and attention deficit hyperactivity disorder or social factors such as bullying or not fitting in with peers, emerging same-sex attraction, poor mental health and, often, puberty itself.

Other parents believe that the hypersexualisation of the female body, fuelled by the representation of women in popular television programmes and on social media, and the child’s early understanding of sexism, make them feel that it might be easier to live as a male than as a woman. Transitioning was once predominantly undertaken by middle-aged men; now it is by teenage girls.

Early experience of sexual assault can play an important role. Detransitioner Sinead Watson, who returned to living as a woman after identifying as a man for seven years, said that she was repeatedly sexually assaulted during her teens and felt hatred towards her female body.

A 2020 study in the peer-reviewed academic journal

Clinical Child Psychology and Psychiatry

found that the degree of social transition did not significantly predict psychological functioning outcomes in a clinical sample of children with a gender dysphoria diagnosis. The journal said that

“claims that gender affirmation through transitioning socially is beneficial for children with GD could not be supported from the present results. Instead, the study highlights the importance of individual social support provided by peers and family, independent of exploring additional possibilities of gender transition during counseling.”

For some people, a pathway towards social and later medical and/or surgical transition may be the right option. However, the examples that I gave show that, for some young people, this is a transient phase and a manifestation of other conditions, experiences or circumstances in their life. I therefore believe that my amendment will provide trans adolescents and their parents with extra support to explore the potential reasons for their gender nonconformity. Where necessary, that will ensure that important underlying healthcare issues and other conditions experienced by young people with gender distress are not overlooked.

I ask members to support amendment 15.

With regard to amendment 6, I recall reading recently, as other members will have done, that on new year’s day 2020, a 15-year-old boy was killed by a 22-year-old hit-and-run speeding driver in Wishaw while walking to his grandparents’ house. His killer, who had previous convictions for speeding and careless driving, avoided a custodial sentence because sentencing guidelines suggest that the brain is not fully developed until the age of 25 and a young person will generally have a lower level of maturity with a greater capacity for change than an older person.

Yet the bill proposes to lower from 18 to 16 the age at which one can legally be perceived to have transitioned. Yes, one can marry at 16 and vote in some elections and drive at 17, but one cannot buy alcohol or cigarettes before the age of 18. Our society is inconsistent. While considering the bill, we must at all times ensure that the welfare of the child or young person is paramount. At the centre of this often fraught debate are children, adolescents and their loved ones, who are often in great distress.

No one is arguing today that gender dysphoria does not exist. However, as the number of children who believe themselves to be in the wrong gender rises exponentially amidst reports of teenage peer cluster effects, we must be cautious about who is recognised socially to have transitioned. Why? Because it will increase the likelihood that they will receive puberty blockers, cross-sex hormones and perhaps surgery—actions that a gender recognition certificate can only accelerate.

Dr Hilary Cass’s review states, regarding a GRC:

“it is important to view it as an active intervention because it may have significant effects on the child or young person in terms of their psychological functioning.”

At primary, secondary and specialist level, there is a lack of agreement about the extent to which gender incongruence in childhood and adolescence can be an inherent and immutable phenomenon for which transition is the best option for the individual, or a more fluid and temporal response to a range of developmental, social and psychological factors.

A 2020 study by Sievert et al in peer-reviewed academic journal

Clinical Child Psychology and Psychiatry

defined social transition as

“often the first possibility to align with one’s experienced gender”

and to live

“in the preferred gender role different from”

that at birth

“in almost all aspects of life”.

Irreversibility is a fundamental concern. Despite our different views on the bill, we can surely all agree that a gender recognition certificate will lead 16 and 17-year-olds on a pathway of social transition at the very least. However, the Hippocratic oath is quite clear: first, do no harm. As elected representatives, we, too, should pursue that philosophy. Social transition, followed potentially by the prescribing of hormones to young people, which can have short and long-term side effects in themselves, encourages those who might not ultimately pursue full transition on a path leading to not only profound regret, but sterility, anorgasmia and long-term health issues.

Stephen Kerr (Conservative, Central Scotland)

I just wanted to intervene to say that I think that the member, like me, attended a meeting that was organised by one of his colleagues, Ruth Maguire. I found it to be one of the most moving experiences that I have had in a long time to sit in a room with two young people who were expressing profound distress—it went far beyond regret. I could not agree more with what the member says, just on the basis of meeting those two young people. I know that they were representative of many others who have gone down a path and then found it impossible to come back up it.

Kenneth Gibson (Scottish National Party, Cunninghame North)

I thank Mr Kerr for that. As he knows, I was also present at that moving and at times distressing meeting to listen to those experiences.

As for surgery, that should be contemplated only after serious consideration and counselling.

It was said at stage 2 that some people know their own minds, but of course some do not, and we have to protect the most vulnerable of these young people. Allowing more time for reflection on this life-changing decision is important if we are not to experience an upsurge in ruined lives: people who regret becoming trans, with all that that means, who later seek to detransition.

Allowing transition at 18 will still give those who wish to proceed decades in their new identity. I believe that it will also save many from the misery of making a decision too early in life from which they are unable to turn the clock back. As detransitioner Ritchie Herron told a number of us last month, “It’s a one-way ticket. I can’t grow my genitals back.”

I say to colleagues that we are divided into those who genuinely support the bill, those who are opposed and those who may be undecided on the bill and the amendments. Others, for understandable reasons of loyalty, trust and their ambition, plan to vote as advised by their whip. However, I ask members to please think primarily of the young people concerned—those who might be confused, have underlying neurodiversity or mental health conditions—and support amendment 6 to give those young people time and space to grow, mature and be better able to take the right decision.

The Presiding Officer

I call Jamie Greene to speak to amendment 99 on behalf of Christine Grahame.

Jamie Greene (Conservative, West Scotland)

I appreciate that this is a somewhat unusual or perhaps unorthodox way of speaking to and moving an amendment, but I will do my best.

As members may know, Ms Grahame is unwell and cannot be in the Parliament. There were a lot of similarities between her proposals and my previous amendments, which I have spoken about.

I am moving amendment 99 because I feel that it contains a compromise. The amendment provides that when a 16 or 17-year-old applicant confirms to the registrar general that they have discussed their application with a suitable individual, such applicant must also tell the registrar general

“what role the individual mentioned in subsection (2) has, or how the individual knows the applicant.”

That is a step beyond what was agreed to at stage 2. As members who were involved at stage 2 will be aware, the initial amendment that was proposed by Christine Grahame was supported by my colleague Jackson Carlaw. Amendment 99 adds a provision so that when someone is inquiring about the consequences of getting a GRC, they must tell the registrar general what the role of the individual who they have spoken to is and how they know them. For example, it will be for that person to say that they have spoken with a teacher, a family member or, indeed, a trusted counsellor or another organisation. In my view, asking a young person to state who they have spoken to is not onerous; it is sensible, particularly in comparison with some of the other amendments in group 1, nor should it put off a young person from seeking guidance and assistance.

In my view, it would strengthen assurances that a young person will have accessed much-needed advice and support and that they will have carefully considered their application, without adding new evidential requirements, as other amendments propose. Amendment 99 has been widely welcomed by a number of stakeholders and organisations. On balance, I initially thought that I would have supported amendment 99 anyway, because I feel that it is something of a compromise. However, it may be better worded than my amendments 98 and 101. As my colleague Graham Simpson rightly pointed out, those could be subject to the vagaries of legal wrangling, which is not something that I wanted to achieve.

Graham Simpson (Conservative, Central Scotland)

Will the member take an intervention?

Jamie Greene (Conservative, West Scotland)

I will, in a second.

I will reflect on some of Kenny Gibson’s comments. He is right in saying that there are huge inconsistencies, in the law and socially, in how we recognise people of a certain cohort. For example, as I know from my time on the Criminal Justice Committee, the judiciary treats 24 and 25-year-olds differently in sentencing guidelines. We ask 16-year-olds to vote for us in elections, but they are not afforded the same rights as older people for a number of years, nor do they face the same repercussions for their actions. I have long held the view that there are far too many inconsistencies in the application of the law and the definition of a young person—who they are, how old they are and what rights and responsibilities are afforded to them. That is a much wider debate that we certainly do not have time for. However, Kenny Gibson is right to have raised the issue. How we square that circle will be a job for another session of Parliament.

On the medical intervention that may or may not take place as a result of obtaining a GRC, it has been possible to obtain those certificates in Scotland for nearly two decades. At no point does a person have to medically transition to an acquired gender in order to receive and use a GRC. That has been happening for a long time; not everyone who obtains a GRC will go on to transition, seek medical intervention or be introduced to any form of medication as a result. That has been happening, and it will continue, but I am not convinced that Mr Gibson has made it clear that that will be further enhanced, or that there is any risk that more people will transition from a medical point of view as part of a new simplified process.

Rachael Hamilton (Conservative, Ettrick, Roxburgh and Berwickshire)

Will the member take an intervention?

Jamie Greene (Conservative, West Scotland)

Yes, but I will take Mr Simpson’s intervention first.

Graham Simpson (Conservative, Central Scotland)

I thank Jamie Greene for taking an intervention. I appreciate that he is not speaking to his own amendment, but I am sure that Christine Grahame will be grateful that he is speaking to hers.

It comes down to language again. Amendment 99, which relates to guidance that a young applicant must seek, says:

“The applicant must tell the Registrar General what role the individual mentioned in subsection (2) has, or how the individual knows the applicant.”

The bill already includes the provision that such advice must be sought. I appreciate that Jamie Greene did not lodge the amendment, but can he give us his view on what difference the amendment would make to what is already in the bill?

Jamie Greene (Conservative, West Scotland)

At the moment, section 3A of the bill says that the applicant must confirm that they have

“discussed the implications for the applicant of obtaining a gender recognition certificate with an individual who ... has a role which involves giving guidance, advice or support to young people.”

That is a welcome addition. Section 3A(2)(b) requires that that individual

“is aged at least 18 and knows the applicant personally.”

That is also a helpful addition.

Amendment 99 goes further than that by saying that the registrar general must be told by the applicant

“what role the individual mentioned in subsection (2) has”.

The reason for that, I suspect, is that others are calling for the person who gives advice to be a suitably qualified medical professional, such as a doctor, which would limit the scope of the type of person who can give such advice and how that person knows the individual.

I appreciate and accept that we could go further and, with the benefit of time, we could have added to the amendment. I probably would have added to it had we not had such a tight deadline. Members will recall that we had an extremely tight deadline to lodge amendments: midday of Wednesday of last week, which feels like a million years ago. Many of us were sitting in other committees and trying to draft amendments on our mobile phones at the same time. None of this is ideal.

Mr Simpson is right that we could have strengthened many of the amendments, but we are where we are. Amendment 99 is a sensible compromise, which is why I am happy to support it.

Rachael Hamilton (Conservative, Ettrick, Roxburgh and Berwickshire)

An article in

The BMJ

was drawn to my attention, which says that, currently, 7 per cent of people who apply for a GRC have their application turned down. Jamie Greene talked about medical intervention and the diagnosis of gender dysphoria, which is done by a doctor. Does he believe that the Scottish Government must address the issue of people who were previously refused a GRC by a doctor who will now be able to obtain a GRC through a self-ID system in Scotland?

Jamie Greene (Conservative, West Scotland)

I am not 100 per cent sure that I understand what the member is asking. Although I am happy to have a lengthy discussion, I am not sure that the question is relevant to the amendment. The premise of what the member is asking seems to be that those who have been refused a GRC in the past may now be able to apply for one. There are certain individuals who seek to obtain a GRC who are problematic. We will discuss that issue in a later group of amendments—it might be coming up in the next group. There are some sensible amendments that we should make to the bill that would add further safeguards and protections around a very specific cohort of people.

The big point, which may simply be a point of difference, is that the current process requires a diagnosis of gender dysphoria, which, as I made clear in my comments at stage 1, is a concept that I disagree with, for all the reasons that are already on the record. For that reason, I am unwilling to support any amendments that seek to reintroduce that medicalisation and the need for a diagnosis of gender dysphoria to the process of obtaining a GRC. That is on the record. I am sure that members will respect my position on that.

Jackie Baillie (Labour, Dumbarton)

I do not intend to detain the chamber for long. I start by associating myself with Jamie Greene’s opening remarks and thanking all the organisations and individuals who have been in touch with us. That has all helped to inform the debate.

I also thank the legislation team for all their work on the amendments, including the drafting and redrafting of them as members have honed their thinking.

I support the amendments in the name of Martin Whitfield, as they are proportionate, sensible and reasonable. I commend them to the Parliament.

I will speak to amendment 105, in my name. I welcome the amendments lodged by Christine Grahame at stage 2. They have put safeguards into the bill to ensure that, when such a significant decision is taken by 16 and 17-year-olds, it is taken with due care and support. I agree with her that a person applying for a gender recognition certificate must have lived in their acquired gender for a period of six months rather than three.

Where my concern lies is that, in effect, someone aged 15-and-a-half can start the process in order to obtain the certificate on their 16th birthday. To those who consider that 16 is perhaps too young, that merits some reflection by Parliament. My amendment effectively says that the six months starts on the person’s 16th birthday.

I would therefore be grateful for reassurance from the cabinet secretary, in the absence of Christine Grahame, that the Government has no concerns that 15-and-a-half might be too early. What safeguards does it believe are in place to protect and support young people?

Jeremy Balfour (Conservative, Lothian)

I, too, thank all the groups that have been in touch with me. I also thank all the constituents from across Lothian who have emailed me over the past weeks and months. I am sure that all members have received lots of emails putting very strong arguments on both sides. Overall, we have to come to a view on those arguments, and I appreciate the time that we are taking to do that.

I stand briefly to speak in favour of amendment 6. The reason is that I want to follow up on what the First Minister said yesterday. In a television interview, she said:

“This is a bill that doesn’t give any new rights to trans people.”

She went on to claim that the bill affects only the process of obtaining a GRC. That would be true if Rachael Hamilton’s amendments were agreed to this afternoon. If they are not, the bill will give new rights to trans people, because, as it stands, it will reduce the minimum age from 18 to 16.

When the cabinet secretary speaks to this group of amendments, it would be helpful if she would clarify whether the First Minister is right in saying that the bill gives no new rights. If the First Minister is wrong, can the cabinet secretary tell us why those new rights are important and why the First Minister made that statement on TV yesterday?

Maggie Chapman (Green, North East Scotland)

I am

pleased to speak on this group of amendments.

Like other members, I put on record my thanks to all those organisations and individuals who have worked so hard to get us to this point: those who have provided briefings, information and guidance; the parliamentary staff in committee; the legislation team; others who have supported the passage of the bill through the stages; and, of course, trans people themselves, who have waited so long for this day.

Extending the right to obtain a gender recognition certificate to 16 and 17-year-olds is absolutely the right thing to do. It brings us in line with international good practice and, importantly, it allows us to align this important legislation with the age of legal capacity, which, in Scotland, is 16. At that age, young people can get married, join the army, work and vote in Scottish parliamentary and local elections. We trust them to make big life decisions on their own, and I do not see why the bill is any different.

Let us also remember that many young people have already socially transitioned by the time they are 16. That might have included coming out to their friends and families—without applying for a GRC. Not having a birth certificate that matches their identity could cause issues when they apply for jobs and for further or higher education. More importantly, it could leave them open to a lack of privacy regarding their trans status.

I have spoken elsewhere about my vehement opposition to any waiting periods while people live in their acquired gender and the reflection period. At stage 2, the former was extended to six months for young people. Retaining those time periods in any form means that we go against international best practice. There is no evidence for those time periods to exist, and trans people and those who work with them and support them have told us repeatedly that there is no justification for those waiting times. In view of that, the Scottish Greens cannot support Jackie Baillie’s amendment 105, which would mean, in effect, that only trans people aged 16-and-a-half could apply for a GRC. That would make a mockery of one of the very principles of the bill—its extension to 16 and 17-year-olds.

Changing one’s legal gender is not something that one does on a whim. Those who apply for a GRC will likely have thought about, considered and reflected on that decision for months, if not years. Let us believe young people when they tell us that they know their own minds. Let us not pathologise them. Let us be clear that 16 and 17-year-olds should—and will—be able to get a GRC and be recognised in law for who they are.

Alex Cole-Hamilton (Liberal Democrat, Edinburgh Western)

On behalf of the Scottish Liberal Democrats, I say how grateful we are for both the work that has gone into the production of the bill to get it to this stage and the briefings that all members have received. I also put on record how grateful I am for the respectful tone in which the debate has been conducted so far. There has been too much heat and hate around the bill, and I am grateful that colleagues have expressed their remarks, concerns and support for the bill with such respect. I hope that we will continue in that vein.

Anyone listening to the well-crafted remarks from members who oppose the legislation or who oppose the process being extended to 16 and 17-year-olds could be forgiven for thinking that we are somehow pioneers in reforming gender recognition in that way. We are not. For example, we are seven years behind Ireland in that regard, and we are behind the international curve. Right now, 250 million people around the planet live in jurisdictions where gender recognition is obtained through a self-identification system. That has not led to a correlation with the issues that we have heard prophesied in debates by those who are against reforming the process or extending it to 16-year-olds.

Since its inception, the Scottish Parliament has grappled with the concept of the age of majority. It did so for the 13 years during which I served in the children’s voluntary sector, at times when I was participating in trying to influence legislation around exactly that; it did so in the years before that; and it has done so in the years since. However, over time, it is fair to say that we have started to see a natural coalescence around 16 years being the age of majority.

We have heard eloquent speeches from members such as Maggie Chapman about the capacity with which we credit 16 and 17-year-olds in our society. However, there is still variance, because we are always on a journey. The Parliament is on a never-ending journey as regards finding the right balance in law. I mentioned one such variance in my intervention on Rachael Hamilton’s contribution. It was around the age of criminal responsibility, which now rests at 12 years; it was at eight. That is the age at which we credit children and young people with having the mental capacity to understand the impact of their actions and decisions. The Conservatives backed that change to the age of 12 years.

If we can credit 16-year-olds with the mental capacity to commit crime, marry and serve in our armed forces, it is only right that we credit them with the ability to recognise who they are and acknowledge their wish to have that recognised in the documents that we, as a state, require them to hold.

Claire Baker expressed concern about the correlation between the process proposed by the bill and medical transition—a theme that was picked up by Kenneth Gibson. However, I refer to my earlier remark about the people who have gone before us. The bill simply creates a mechanism to have recognition of the person that you are transcribed into the forms that you are required to hold. An important debate can be had about medical transition, but it is not the subject of this debate.

Let us also be clear that the bill is about changing the law to remove the barriers and the trauma around having a person’s gender recognition reflected in the documents that we currently ask them to hold. That is real trauma: the GRA is harming people every day. We cannot allow to continue a situation in which the final decision about someone’s identity is entrusted to strangers whom they have never met.

On amendment 98, I am not persuaded that providing evidence of discussion with an appropriate adult will not create unnecessary barriers to 16-year-olds, but I will support the compromise amendment in Christine Grahame’s name, which Jamie Greene spoke about well.

Scottish Liberal Democrats believe that, if we credit 16-year-olds with the mental capacity to do many life-changing things in our society, we should trust them and credit them with the mental capacity to understand who they are and to seek to have that recognised in the documents that we require them to hold.

Carol Mochan (Labour, South Scotland)

With reference

to my colleague Claire Baker’s amendment 94, I feel that it is important to raise the serious concerns that many parents have raised with me, and which young people have, regarding this section of the bill. That is especially the case considering how poor the current support for young people is in this country, despite the fact that they are perhaps the group in greatest need of support. It is essential that young people can access the same level of psychological and social support as any person before making such a decision, and I do not see that that support is available at all.

In amendment 94, my colleague quite rightly asks for a pause to this section of the bill. As she has highlighted clearly and very well, that would not prevent 16 or 17-year-olds from socially transitioning. I cannot think of many pieces of transformative legislation that would be passed before something as important as the Cass review had published its conclusions. Although the review is not focused specifically on NHS Scotland, it clearly has great relevance to Scotland, and we should have the opportunity to consider its findings before we change the age.

Ash Denham (Scottish National Party, Edinburgh Eastern)

I intend to set out my wider arguments on the bill in the debate on group 13, in which I have lodged some amendments of my own. My general position on the bill is that I will not be supporting it. However, I intend to support amendments that I feel will increase the safeguarding provision. In that vein, I am happy to support amendments 6 and 15.

I do not think that including children aged 16 is appropriate for what many people would consider to be a very profound change.

I take this opportunity to share with members in the chamber the view of a mother who wrote to me just a few days ago. She wanted me to read out her perspective to members today. She said:

“My 15 year old daughter is on the autistic spectrum and is struggling with anxiety and depression. Despite showing no signs of gender incongruence before the age of 12, she self-diagnosed as having gender dysphoria three years ago and currently identifies as male. I believe she has been influenced by social media and current societal norms. The teen years is a time of flux and how she feels now may change over time as she matures.

The school and the NHS have taken an affirmative approach despite my concerns as a parent. I don’t agree that the Government should be lowering the age that young people can self-ID to the age of 16 as socially transitioning is the first step along an often misguided path to medicalisation and surgery. I was persuaded and coerced that it was the right thing to do to call my daughter by the new name and pronouns when in fact this was bad advice and has led us down a very difficult path as a family. I believe a watchful waiting and holistic approach is best, looking at all the factors in a young person’s life.”

There are also a large and increasing number of detransitioner voices, which I feel have not been well represented in the process. Just a few weeks ago, Ruth Maguire hosted a detransitioners event in the Parliament, which was mentioned earlier. I agree with the other members who spoke about that event that the detransitioners’ stories were extremely powerful—heartbreaking, even—and that there was a real and strong sense that they had been very much let down by those who should, in fact, have been protecting them.

The question was put to those detransitioners: is self-ID at 16 a good change? It was an emphatic “No” from those two young people. Neither of them supported self-ID and, in their view, young people having a bit of paper with their new gender on it would only incentivise them to seek to change how they looked in order to match their new documents. In my view, the age should be 18 and no lower, and, in my opinion, we should exercise extreme caution in this area.

Pauline McNeill (Labour, Glasgow)

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 important for the Government, not anyone else, to address why it has gone for 16. 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 seems to be a sensible place to go, at least until the provision is reviewed.

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

Liam McArthur (Liberal Democrat, Orkney Islands)

I call the cabinet secretary to respond to the amendments.

Shona Robison (Scottish National Party, Dundee City East)

Like others, I begin by thanking everyone who has helped us to get to this stage of the bill, and for the constructive tone that has been set so far. Two months ago at stage 1, the principles of the bill were agreed by a strong majority in Parliament, with support from members of all parties. Following that and ahead of stage 2, I undertook meetings with many MSPs from across the chamber. Wherever possible, we worked constructively to agree amendments to strengthen the bill at stage 2, and as a result, more amendments were agreed at stage 2 than were voted down: 47 were agreed, 43 were not agreed and 60 were not moved.

I again met with all members who requested a meeting ahead of stage 3 and, again, I have been able to agree to some positive amendments that are consistent with the principles that were agreed at stage 1. I am grateful to members of all parties for working with me on improvements to the bill.

Fergus Ewing (Scottish National Party, Inverness and Nairn)

I welcome the cabinet secretary’s comments about tone and the involvement of all members, but I ask her to respond directly to a point that was made, albeit briefly, by Rachael Hamilton in her opening remarks. Whereas there might be a majority view in the Parliament, all the evidence of the views of the people of Scotland, as recorded in poll after poll, shows incontrovertibly that a very substantial majority of people in Scotland, ranging from 68 per cent to 81 per cent, oppose the reduction of the age to 16.

Shona Robison (Scottish National Party, Dundee City East)

I say to Fergus Ewing that I could point to many consultations and polls. I could point to the two large public consultations at the start of the bill process that showed support. I could point to the BBC poll that was conducted earlier this year that showed support for the bill, particularly among women, and support for reducing the age to 16.

However, I acknowledge to Fergus Ewing and others that there has been a difference of opinion on the bill from the start, and that there has been a difference of opinion on age from the start. I think that I said when I opened the stage 1 debate that the issue of age has been among the most difficult to address, for all the reasons that members have raised. I took a lot of time to consider the issues, and listening to the views of young people themselves was an important part of that. Young people have said very clearly that they believe that they should be able to make such decisions. I will go on to say a bit more about the age of legal capacity.

The amendments that I have worked with members on include amendments that were lodged by Christine Grahame at stage 2, which I supported, and, of course, her amendment 99. The extension of legal gender recognition to people aged 16 and 17, with appropriate safeguards, is, of course, one of the principles that the Equalities, Human Rights and Civil Justice Committee showed clear support for in its stage 1 report, and that area of the bill was strengthened at stage 2.

However, there are amendments in the group that we cannot support. Amendments 6 to 9 and 12, in the name of Rachael Hamilton, seek to revert the minimum age of application to 18. Therefore, I cannot support them.

Rachael Hamilton (Conservative, Ettrick, Roxburgh and Berwickshire)

Does the cabinet secretary accept that agreeing to Christine Grahame’s amendments, which give further support for under-18s, means that the Government accepts that lowering the age is a problem?

Shona Robison (Scottish National Party, Dundee City East)

I have listened to concerns that have been raised and to what has been said about the need for young people aged 16 and 17 to have additional support. That is why we agreed to the amendments at stage 2 and why we support amendments at stage 3 that are about ensuring that the young person understands the process and that they seek and undertake appropriate support. I think that that strikes the right balance to ensure that young people are afforded the same rights but are given additional support, in recognition of their age.

Emma Roddick (Scottish National Party, Highlands and Islands)

I would like it to be recognised that a young man had his identity challenged in the Scottish Parliament moments ago. Does the cabinet secretary agree that that is wrong, and will she offer support to him on something that should never have happened?

Shona Robison (Scottish National Party, Dundee City East)

I am not aware of the details of the issue that Emma Roddick has raised. However, a person’s details should never be revealed. I agree with Emma Roddick, based on what she has just said.

Amendments 93 and 94, in the name of Claire Baker, provide that the minimum age of applicants should be 18 until such time as the Cass review has published its final report. Given that—I have said this on a number of occasions—there is no link between the outcome of the Cass review of NHS England provision of medical services and the bill, which is about trans people obtaining legal gender recognition in Scotland, I cannot support the amendments.

Claire Baker (Labour, Mid Scotland and Fife)

The stage 1 report from the Equalities, Human Rights and Civil Justice Committee asked whether the Government would undertake a review of gender identity healthcare. It would be helpful to know whether that is the Government’s intention. There are areas of the Cass review that could be considered. Principally, an increasing number of young women are deciding to go through the process. Does the cabinet secretary think that the Government has a proper understanding of the reasons for that, as we consider extending the right to 16-year-olds?

Shona Robison (Scottish National Party, Dundee City East)

On the Cass review, it is, of course, important to recognise that the service model in England still provides the services, but there is a different regionalised model. We have continued to state—it is, of course, the health ministers who are the leads on this—that we will consider closely the findings of the Cass review in the context of our work to improve NHS Scotland’s service provision. It is important to do that.

I should also make the point that the services are multiprofessional health services, so there are links to mental health services, child and adolescent mental health services and other services to support the young person in the round. I hope that that will give reassurance on some of the points that have been made.

Amendment 105, which is in Jackie Baillie’s name, would mean that the minimum age for an applicant was 16 years and six months, instead of 16 years. Setting a minimum age of 16 and a half would be confusing. The principle of the bill is that the person will declare that they have been living in the acquired gender; young people will need to have done that for six months. That is a retrospective look at, commitment to and declaration of the fact that they have been living in the acquired gender.

Jackie Baillie (Labour, Dumbarton)

I am looking for reassurance about the safeguards that the cabinet secretary thinks will be in place if somebody applies at the quite young age of 15 and a half.

Shona Robison (Scottish National Party, Dundee City East)

A person will be able to apply only from 16 onwards—they cannot apply at 15 and a half. The safeguards that we have talked about are there to ensure that the young person understands the process and the commitment that they are signing up to, and that they can say what support they have received and from whom. I will shortly come to amendments that deal with the detail.

It has been clear to me from listening to young trans people that they feel excluded from the system for accessing legal gender recognition, especially at an age when they want consistent documentation before moving on to higher or further education or starting their first job. I take Claire Baker’s point about colleges and universities asking for particular documentation, but young people themselves are saying that they want to get on with their lives with all their documentation reflecting who they are and how they live their lives. That is not an unreasonable thing to ask for.

Young people in Scotland are empowered at 16 to leave home without parental consent, to get a full-time job, to pay national insurance, to enter into a legally binding contract, to consent to medical procedures, to marry, to change their name and to vote for members of this Parliament. It is, of course, possible to point to comparators—others have done that—on what can and cannot be done at specific ages, but being able to apply for legal gender recognition generally aligns with comparable rights and responsibilities that young people obtain at 16. It aligns with the Age of Legal Capacity (Scotland) Act 1991, which provides that, under Scots law, a person who is of or over the age of 16 generally has legal capacity to enter into any transaction that has legal effect.

I will not support amendments 98 and 101, which are in Jamie Greene’s name. They would require a 16 or 17-year-old applicant to provide evidence, if requested, of the support that they had sought. It is not clear how a young person, if required to do so, would evidence conversations that they had had. Would a record have to be made of a personal conversation with a family member, a trusted organisation or a counselling service, for example?

I cannot support the amendments in Martin Whitfield’s name, which would require a young person to provide the name and contact details of the person from whom they had sought support. A teacher, counsellor, doctor or organisation that supports young people should not expect to be approached by a staff member from National Records of Scotland with questions about confidential conversations that they have had with a young person.

I point out that the bill already provides for a GRC to be refused or revoked for an applicant of any age on the ground of incapacity. As the registrar general explained in evidence to the Equalities, Human Rights and Civil Justice Committee, it is not for NRS to make a judgment about an applicant’s capacity; if NRS has concerns, it will apply to a sheriff, who can determine on the basis of evidence whether a person has capacity. I hope that that gives Martin Whitfield the assurance that he looks for.

Martin Whitfield (Labour, South Scotland)

Is it right to say that the bill gives the registrar general such a power, albeit that capacity will be assessed not by the registrar general but—rightly—by a court? Is the provision there for when the registrar general is uncertain, but on the assumption that there is capacity to begin with?

Shona Robison (Scottish National Party, Dundee City East)

That is correct. Of course, the sheriff would be able to make further inquiries and to look at the evidence. The registrar general will not have that ability, but they will be able to raise concerns about capacity, if they have concerns.

I cannot support amendment 15, in the name of Kenny Gibson, either. It seeks to require that the support that is given to the young person must be provided by someone who is “suitably qualified”. In many cases, such support will be best provided by a supportive family member, for example.

I support amendment 99, in the name of Christine Grahame, which provides that, when a young person confirms to the registrar general that they have discussed their application with a suitable individual, they must inform the registrar general of that person’s role or say how they know them. I think that that will, without introducing new evidence requirements, strengthen the assurance that a young applicant has access to advice or support, and that they have carefully considered their application. With that provision in place, I do not believe that the amendments from Martin Whitfield and others are needed.

The Deputy Presiding Officer

I call Rachael Hamilton to wind up and to press or seek to withdraw amendment 6.

Rachael Hamilton (Conservative, Ettrick, Roxburgh and Berwickshire)

position on allowing children to apply for a GRC has been clear from stage 1. As with so much of the bill, the provisions in question leave an abundance of unanswered questions.

I believe that the Government is deeply confused about the definition of a child. It cannot explain why it believes that the Cass review has no relevance to this part of the bill. It cannot guarantee that it will not lower the age at which someone can obtain a GRC even further. It cannot explain how the bill’s provisions would interact with the educational provisions in the Equality Act 2010.

Relying on assertions from Scottish Government organisations for reassurance that something is all right does not make it all right. The holes in this part of the bill are glaring and are there for all of us to see.

The fact that we are having conversations about extra safeguards is an admission that members are concerned. I urge members to carefully consider the arguments that I have set out for why maintaining the status quo on the age at which an individual can apply for a GRC is important.

Colleagues have raised significant points—I highlight, in particular, the arguments that Claire Baker, Pauline McNeill, Kenny Gibson and Ash Regan have made. If we keep the status quo on the age—

Maggie Chapman (Green, North East Scotland)

Does Rachael Hamilton think that it is wrong to weaponise neurodiversity and neurodivergent young people in this debate by saying that they are incapable of making decisions for themselves?

Rachael Hamilton (Conservative, Ettrick, Roxburgh and Berwickshire)

I am very disappointed by Maggie Chapman’s intervention. It is absolutely disgraceful of her to lower the tone of the very respectful debate that we are all having. We have a right to speak about our concerns in this chamber: any member from any party can speak freely and openly. If we do not have a robust debate on the issue, we cannot make good legislation, and that is a problem for the Parliament.

Daniel Johnson (Labour, Edinburgh Southern)

Although I am very understanding of why the member has concerns about the way in which neurodivergent people might be being discussed, I say, as a neurodivergent person, that it is incredibly important that we think very carefully about how someone with a neurodevelopmental disorder or who is neurodivergent in some other way might approach the issue if they are transgender. It is important that we think that through very carefully indeed.

Rachael Hamilton (Conservative, Ettrick, Roxburgh and Berwickshire)

Daniel Johnson has made a very important point. One of my family members is neurodivergent, so I ask Maggie Chapman never to intervene in that manner again because, on a personal level, it is very upsetting.

Lorna Slater (Green, Lothian)

Will the member take an intervention?

Rachael Hamilton (Conservative, Ettrick, Roxburgh and Berwickshire)

No. [

Interruption

.] No, thank you.

The Deputy Presiding Officer

Ms Hamilton has made it clear that she is not taking an intervention.

Rachael Hamilton (Conservative, Ettrick, Roxburgh and Berwickshire)

I urge members to consider the arguments that I have made. I think that we should look at the matter very carefully, in light of the unanswered questions that I asked the cabinet secretary to address, and given that the Scottish Government supported Christine Grahame’s stage 2 amendment that supported lowering the age. The Scottish Government clearly has an issue with lowering the age and it has understood that two thirds of the Scottish public disagree with lowering the age, as my colleague has already highlighted.

I have no more to add, so I press amendment 6.

The Deputy Presiding Officer

It is important to restate what I said at stage 2: these amendments are not about putting barriers in the way of genuine trans people, who are often marginalised and vulnerable. Women’s rights campaigners and others with concerns about the bill are not conflating trans people with sex criminals. Those who attempt to frame their opposition in that way are irresponsible. To do so, as I suspect that they well know, is a gross mischaracterisation. The accusation made this week by one former Scottish Labour MSP that trans people have become “synonymous with sex offenders”, due in part to “hysterical media outlets”, is typically ill-judged and inflammatory.

I repeat: these amendments are entirely about those men who will, inevitably, seek to exploit the inherent weaknesses of the proposed new system of gender recognition certificates.

Alex Cole-Hamilton (Liberal Democrat, Edinburgh Western)

With the way in which Russell Findlay describes his amendments, members could be forgiven for thinking that a GRC represented some kind of passport in our society and that it opens doors for people. However, it does not. A GRC is not a valid form of identification. It is not required to be presented to access a single-sex space or any place where vulnerable people go for help, treatment or anything of the kind. It is simply a piece of paper that legally recognises someone’s gender as they know it to be, and we are making it easier for people to obtain that piece of paper. It is not a valid form of identification to gain entry or a passport to such places.

Russell Findlay (Conservative, West Scotland)

I disagree with Alex Cole-Hamilton. It is not just a piece of paper. It fundamentally changes many aspects of society, which I will come on to address.

The proposed new system is radical—some might even say that it is experimental—when anyone can simply declare that they have changed sex, and that will be taken at face value and facilitated by the state. My amendments are intended to prevent those male criminals who already lie and deceive, and whose victims are almost always women and girls, from committing serious wrongdoing.

I agree with Shona Robison’s words at stage 2. She said:

“I want to be clear from the start that the real threat to women and girls is predatory and abusive men.”

However, I strongly disagree with what she went on to say. This perhaps chimes with Alex Cole-Hamilton’s point. She said:

“There is no evidence ... that those men would obtain a GRC in order to abuse women, or that that has happened in any other countries that have similar processes.”—[

Official Report, Equalities, Human Rights and Civil Justice Committee,

15 November 2022; c 17.]

The United Nations special rapporteur on violence against women and girls, Reem Alsalem, was clear when she said that the bill

“would potentially open the door for violent males who identify as men to abuse the process of acquiring a gender certificate and the rights that are associated with it”.

She added:

“This presents potential risks to the safety of women in all their diversity”.

Importantly, she also meant the safety of trans women. She also said that the bill

“does not provide for any safeguarding measures to ensure that the procedure is not, as far as can be reasonably assured, abused by sexual predators and other perpetrators of violence.”

In my notes, I have placed a marker here in anticipation of an intervention about what someone else from the United Nations has said, but no intervention has been made. I therefore turn to Victor Madrigal-Borloz, who is the UN expert on protection against violence and discrimination based on sexual orientation and gender identity, and who has said that there is no evidence of such abuse from other countries that have adopted gender self-ID.

Unsurprisingly, Mr Madrigal-Borloz is the UN expert who Nicola Sturgeon and her SNP-Green ministers choose to listen to and agree with, but is he correct? I do not believe that he is. More specifically, I do not think that Mr Madrigal-Borloz has shown any evidence to support his claim of there being a lack of evidence from other countries. The claim is disappointingly naive, at best, and dangerously false, at worst.

Other people agree with me. MurrayBlackburnMackenzie, which is made up of Dr Kath Murray, Lucy Hunter Blackburn and Lisa Mackenzie, have conducted critical work on gender recognition reform. The policy analysis group examined Mr Madrigal-Borloz’s assertion and found it to be seriously deficient. They say that it is demonstrably untrue that no cases have been reported of violent men obtaining access to women’s spaces using a GRC. They say that, in most countries, there has been little or no effort to record such incidents—if you do not look, you will not find. In some countries, publicly recorded data has become fundamentally compromised by replacing a person’s sex with their gender identity.

I turn to amendment 18. Put simply, it would only allow someone to seek a GRC if they were not a registered sex offender—that is, someone who is on the sex offenders register.

The previous version of that amendment, at stage 2, was more robust and was an absolute and unconditional ban on registered sex offenders being able to obtain a GRC. When I met with Shona Robison—a meeting for which I was grateful—she advised me that my previous approach might have been incompatible with ECHR, although she was unwilling to share the legal advice on that. I have therefore added a right to appeal. That is amendment 50, which means that a GRC applicant who is on the sex offenders register could bring their case to a sheriff, who would make that decision.

Amendment 28 is connected to amendments 18 and 50. Amendment 28 is largely technical, in that it would ensure that a GRC applicant who is also a registered sex offender would be required to disclose that.

Amendment 22 is not a repeat of a stage 2 amendment. It is entirely new, but has its roots in stage 2. In response to my wider concerns about registered sex offenders exploiting GRCs, Shona Robison told me that the justice secretary, Keith Brown, had a plan, which was to introduce changes to existing regulations about the management of sex offenders. Essentially, we are being told that registered sex offenders who seek a GRC will have to notify the police.

We may be able to take it on trust that that will happen, but we do not know enough detail. I wrote to Mr Brown on 9 December, but have yet to receive a reply. Even if we had Mr Brown’s plan in front of us, it strikes me that that attempted fix has only come about because of the stage 2 amendment. Why were SNP ministers not concerned about registered sex offenders seeking to exploit a GRC until so late in the day? Their plan appears to me to be reactive, lacking in detail and not much more than a last-minute sticking plaster. That is really not good enough.

Amendment 39 has been lodged by Michelle Thomson. I expect that we will hear a very personal account from her about that amendment and I will therefore keep my contribution brief and focus on its purpose and on the practicalities. Amendment 39 would prevent anyone who is charged with rape or another sexual offence from being able to seek a GRC until after the case against them has been disposed of, whether by acquittal or conviction. The primary purpose is to prevent an alleged rapist—and it is worth reminding ourselves that the legislation says that only a man can commit rape, as the crime is defined by the use of male genitalia—from declaring that he is female.

I previously asked the SNP justice secretary and a very senior Police Scotland officer what would happen in the following scenario: would a traumatised female victim have to call her male rapist “she” and “her” in the High Court? It sounds absurd, ludicrous and unimaginable, but the answers that I got were worryingly vague and completely unconvincing. I regard the imposition of a GRC ban in such circumstances as proportionate and similar to the imposition of the bail conditions that courts apply to accused people every single day. Bail conditions can prevent someone from travelling overseas, can limit their movements or who they communicate with and can enforce a curfew. Such conditions are clearly more onerous and restrictive than temporarily stopping someone from seeking a GRC.

At stage 2, my version of amendment 39 was more general; it sought to prevent anyone charged under all solemn proceedings from seeking a GRC until the case against them ends. At stage 3, amendment 39 specifies only those charged with rape and sex crimes.

I turn to amendments 39A, 39B and 39C. Amendment 39A is a paving amendment, linking to 39B and 39C. Amendment 39A would pause a GRC application for anyone who is charged with crimes of domestic abuse and violence; 39B applies to anyone who is charged with fraud. The thinking behind amendment 39B is similar to that behind amendment 39, which is to prevent male criminals from using, abusing or exploiting the lax new GRC laws to taunt, torment or re-traumatise their victims.

I turn to amendment 39C. It seems sensible not to allow someone who is accused of fraud to acquire a new identity with the ease that the bill intends. A fake identity is a tool of many a fraudster. A new identity delivered by the state would be a gift and I believe that it would potentially risk fuelling further acts of fraud. Like amendment 39, amendments 39B and 39C are proportionate. What they provide for would be in place only until the criminal proceedings came to an end.

Amendment 52 would allow a sheriff to revoke someone’s GRC in the event of that person being convicted of rape or sexual assault involving the person’s genitals at birth. Let us restate what the law says. Rape can be committed only with male genitals. That is unambiguous. There have already been deeply worrying cases in Scotland and elsewhere in which male sex offenders have decided to identify as women before going on to commit sex crimes using their male genitals. That should not be happening now, but it is. We should most certainly not pass a bill that would enable more of it. Not only would that be an insult to victims, but it would make a mockery of crime statistics. I ask members to think about it. If a trans woman with a penis and a GRC rapes a woman, the law will say that that crime was committed by a woman. That is utterly perverse and an affront to every woman in Scotland.

I lodged a similar amendment at stage 2 that stated that a sheriff “must” revoke a GRC in such circumstances. However, in an attempt to be European convention on human rights compliant, I have changed the wording from “must” to “may”. Amendment 53 further clarifies that the removal of a GRC in such circumstances would not be an absolute and that a sheriff would heed all the relevant facts before making a decision.

I will quickly address some of the other amendments in the group. Gillian Martin’s amendment 40 would allow the chief constable, when applying for a sexual offences prevention order, to prevent the person from applying for a gender recognition certificate. That would involve the chief constable having to notify the registrar general of the application and the making of an interim order that would prevent the person from applying for a gender recognition certificate. The outcome of any application for an order would have to be communicated to the registrar general by the chief constable. An application for a gender recognition certificate that was made in breach of an order would be treated as if the application had never been made.

I will support amendment 40 because it represents a strengthening of the provisions in the bill. Currently, there is nothing in the bill to prevent predatory men from applying for a GRC. A sexual offences prevention order must be made on application to a sheriff court by a chief constable. It applies to offences that are listed in paragraphs 36 to 60 of schedule 3 to the Sexual Offences Act 2003. That is similar to my amendment that seeks to ban sex offenders from applying for a GRC.

However, there is a crucial difference. As per the 2003 act, a person is always subject to notification requirements if they are convicted of an offence that is set out in the act, although the time period for which they will be subject to requirements will vary, whereas sexual offence prevention orders are far less common and are not required when a person is convicted of a sexual offence.

Information on sexual offence prevention orders is not published regularly, as far as I can tell. However, the latest data that is publicly available, which is from 19 October 2020, shows that Police Scotland confirmed that there were 6,016 registered sex offenders in Scotland, which can be compared with the 668 offenders that it managed with sexual offence prevention orders. That means that registered sex offenders outnumbered offenders who were subject to those prevention orders by around 9:1. Although amendment 40 is a welcome step, it is therefore not enough. I would prefer the Scottish Government to endorse my proposals, which are, as I have demonstrated, more comprehensive.

Amendments 40A to 40E are consequential to Gillian Martin’s amendment 40. They would insert sexual risk orders into the wording in her amendment. Equivalent orders are used in England and Wales and, as I understand it, offenders who are subject to them are monitored by Police Scotland should they choose to locate here. It is welcome that that type of order is included, but it will not substantially change the number of people who will be impacted by the substantive amendment 40.

Amendment 41 is also consequential to amendment 40.

I move amendment 18.

Annabelle Ewing (Scottish National Party, Cowdenbeath)

Members will note that we will shortly reach the next time limit, and we have a further group of amendments still to debate. As a consequence, under rule 9.8.5A, I am minded to accept a motion without notice to extend the time by 30 minutes. I call the Minister for Parliamentary Business to move such a motion.

George Adam (Scottish National Party, Paisley)

I will gladly move that motion, Presiding Officer.

Motion moved,

That, under rule 9.8.5A, the time limit for groups 1 to 3 be extended by 30 minutes.—[

George Adam

]

Motion agreed to.

The Deputy Presiding Officer

I call Michelle Thomson to speak to amendment 39 and other amendments in the group.

Michelle Thomson (Scottish National Party, Falkirk East)

I will speak only to amendment 39 in the group. I feel that the case for the other linked amendments has been put eloquently by Russell Findlay.

For the record, I cannot begin to imagine the angst that trans people suffer, and I offer an open heart to people who wish to live with dignity and respect in their chosen gender. My biggest concern about the bill is with regard to bad-faith actors, about whom the First Minister has also recognised concerns.

Amendment 39 specifically relates to men who are applying for a GRC who have been charged with a sexual offence, but have not yet been convicted and placed on the sex offenders register. It simply seeks to pause an application for a GRC until any court case has been resolved. During stage 2, and again today, Russell Findlay pointed out that a woman could end up having to refer to her attacker as “she”. Do members in the chamber understand how that could represent an opportunity for abusers to exert power and control over their victims?

My first point concerns risk, which involves probability and outcome. The probability of the situation that I have depicted occurring is low; however, if it were to occur, the outcome for the victim could be devastating. As a result of my history, I still suffer from post-traumatic symptoms. Feelings of desperation can resurface, sometimes with a sudden need to sleep. I can have lost days of depression. I can have an acute need to feel safe, and I have bouts of anxiety. Such has been the distress that has been caused by the bill that, one day, I had to go home in floods of tears and withdraw from a debate. I am not looking for sympathy. I have privilege; I have agency. The impact of trauma falls hardest on the weakest, the poor and the disenfranchised. I have a voice; they do not. In the past six years, who has spoken for them?

My second point is that, in those six years, the Scottish Government has not undertaken or published any qualitative impact assessment about traumatised women. The Equalities, Human Rights and Civil Justice Committee has failed to meet female sexual survivors, which has created further distress. I thank the cabinet secretary for our meetings; however, I must comment further. I know that amendment 39 will be opposed by the Government on legal grounds that are as yet untested.

My final point concerns the recent case that was won by the Scottish Government, in which it argued that a man with a GRC becomes a woman for all purposes. The logical extension of that position is that the Scottish Government regards a man who has been convicted of rape or sexual assault as a woman for all purposes. Is that really the Government’s view, and what message does it send to women? Does the Government understand that it is putting the rights of a GRC-seeking man who has been charged with sexual assault or rape above the rights of the woman who is the victim?

One solution was for the registrar general to question whether the applicant had been charged with a sexual offence. However, I was informed that this could send a message that all trans people were sexual predators, which we all agree is ridiculous. However, the reasoning is also ridiculous. Most insurance companies ask about criminal convictions, not because they believe that all those seeking insurance are criminals but because it is directly relevant to risk.

Presiding Officer, I leave all colleagues and the Scottish Government to answer the question posed by Roddy Dunlop KC. He said:

“I can conceive of no sensible basis upon which this amendment might be rejected … this would not affect trans-rights in any way. It would merely stop those rights being abused by men who are *not trans*. Why would one want to aid & abet such men?”