Seòmar agus comataidhean

No.

I have one question for Fanchea Kelly and Margaret McCarthy. The Scottish Care chief executive, Donald Macaskill, has estimated that 30 to 40 per cent of the country’s residential adult care facilities might close permanently because of the immediate challenges that they face. In your opinion, would the projected £1.3 billion that is earmarked for the national care service be better invested in the local delivery of social care now?

My question is for Sandra MacLeod. In your written submission, you emphasised that

“It is essential that the scrutiny of legislation by Parliament and stakeholders is not diluted by using secondary legislation over primary legislation.”

What would you prefer to see in the bill at this stage? What do you understand as co-design with respect to the bill?

I have two amendments in the group. The main one is amendment 135, which seeks to place a duty on the Scottish ministers to encourage public understanding of not just the act’s provisions but its effects more widely. Amendment 142 requires that the Scottish ministers must prepare and publish a report on how that requirement has been fulfilled,

“no later than 6 months after the day after Royal Assent.”

On amendment 142, during stage 1, we heard evidence that raised question marks over what it means to live in an acquired gender; whether name changes will be required; what it means to make a false declaration; whether GRCs will be recognised by other jurisdictions in the United Kingdom and elsewhere; whether there is a pathway to detransition in the bill; what the bill means for the operation of the Equality Act 2010; and what the bill’s implications will be for single-sex spaces and women and girls. That is just the tip of the iceberg. The number of amendments that have been lodged at stage 2 is indicative of just how little clarity the bill provides on key provisions. One stakeholder described the Scottish Government’s own understanding of the bill as “flawed”.

Of course we seek to improve the bill’s clarity at stage 2, but it remains the case that the public need to understand what the bill will do and will not do once it has been passed; how it will affect people, especially women and girls; how people can use the bill; and what the penalties will be for misuse.

I lodged four amendments in the group. Amendment 143 would create a duty on the Scottish ministers to carry out a review of the operation of the act, focusing on three areas in which we know that its provisions will have an impact—educational establishments, the health system and the criminal justice system. There is potential for unintended consequences in the legislation that we might not be able to foresee at this stage, and reports on those areas every two years would help to facilitate post-legislative scrutiny, which the Scottish Parliament needs to do much more of, especially in relation to the operation of the bill.

Amendment 144 would modify section 15 of the bill to include a duty on the registrar general to report the number of applications each year for a GRC

“where the applicant has previously obtained a gender recognition certificate”.

The Scottish Government has emphasised that the process for detransitioning under the new system will be the same as the process of self-identification, meaning that individuals who seek to detransition will be caught in the data on the generic numbers of applications and GRCs. However, without a specific pathway to detransition in the bill, the challenge is that it will be difficult to capture figures on the people who choose to detransition under the new system, which will make post-legislative scrutiny more difficult.

Section 15, as drafted, creates a new duty on the registrar general to include information about gender recognition alongside the number of births, deaths and marriages in Scotland each year. That provision was drafted by the Scottish Government and it is clearly information that the Scottish Government wants to capture. Amendment 144 would simply modify section 15 to include in the report the annual number of applications made to the registrar general

“where the applicant has previously obtained a gender recognition certificate”.

Amendment 148, which goes hand in hand with amendment 155, would create a duty on Scottish ministers to transparently consult women and girls on how and how often the Scottish Government should report on the impact of the act on that demographic. It would require that regulations be made that set out the details of such a report. For the avoidance of doubt, it would also include a requirement that any data collected for the purposes of a report

“should record the sex as recorded at birth.”

Amendment 148 states that that consultation should take place within six months of royal assent, but the Scottish Government should have started consulting long before the bill becomes law. Women and girls have felt marginalised at every turn during the process. They have been treated as an afterthought; told by Scotland’s First Minister that their concerns about the bill’s proposals are not valid; and vilified on social media for asking legitimate questions about the operation of the act in relation to single-sex spaces and the safety of women and girls. Just last week at this committee, we saw women’s freedom of expression shockingly denied, simply for wearing suffrage colours—the symbol of women’s hard-won rights. I make that point because, in 2018, before the introduction of the bill and the start of public discourse surrounding it, female MSPs from all parties stood together on the steps in the garden lobby, proudly draped in the colours of green, white and purple. We already see the unintended impact of the bill on women and girls and it has not even reached stage 3. That is why amendment 148 is so important.

Crucially, amendment 155 would delay the commencement of section 2 until Scottish ministers have made the regulations that are required to set out plans for reporting on the impact of the operation of the act on women and girls.

I regret that the provisions that I have proposed are necessary. The Scottish Government should have managed the process far better. Nevertheless, I urge the committee to support the amendments.

I am sorry that I was late this morning—I was at another committee meeting.

I have a question for Rosemary Agnew and Kevin Mitchell. Many are concerned that the bill gives too much centralised power to ministers, and we have heard today that it will make the ombudsman function toothless and powerless and that, as Rosemary said, it will make the SPSO unable to do its job. What other conflicts of interest do you foresee?

I am sorry for missing the first part of the meeting. I have one question. We were in Aberdeen city yesterday. One thing that hit me this morning is the huge disparity between mileage rates—it is 61p a mile versus 45p a mile. I know that, when it comes to aligning terms and conditions, there are huge issues in relation to pensions, sick pay and so on; those costs can be huge. However, people will move even for something small, because they cannot afford to move around on a rate of 45p a mile, but perhaps they could on a rate of 61p a mile. Will you comment on that? It might seem like a tiny amount, but the impact is huge.

The Equalities, Human Rights and Civil Justice Committee’s stage 1 report highlighted that there is uncertainty among stakeholders about what “ordinarily resident” means in practice. Amendment 116 seeks clarity from the Scottish Government on what it means to be “ordinarily resident in Scotland” for the purpose of obtaining a gender recognition certificate. The intention is to provide both clarity and a safeguard to prevent the potential for GRC tourism.

The explanatory notes to the bill state that

“The term ‘ordinarily resident’ is not defined by the Bill and thus takes its normal meaning.”

That normal meaning is determined largely by case law—specifically, the Shah test.

The policy memorandum for the bill suggests that

“a person is ordinarily resident in a place if they”

have lived

“there on a settled basis, lawfully and voluntarily.”

However, it also states that

“Whether a person is ordinarily resident in Scotland will depend on their individual circumstances.”

Although the Scottish Government has emphasised that the concept is used in 17 acts of the Scottish Parliament, as well as in UK legislation, it is clear that the term is not understood more widely.

In her evidence to the committee, I note that Jen Ang, a human rights lawyer with JustRight Scotland, which I understand is partly funded by the Scottish Government, emphasised that

“The term ‘ordinary residence’ is used differently in different parts of legislation, so when it is included in a piece of legislation, it is important to define what it means specifically. It is not even to avoid unintended consequences; it is just to make it clear to everyone who is physically in Scotland whether the procedure is available to them.”—[Official Report, Equalities, Human Rights and Civil Justice Committee, 31 May 2022; c 72.]

In Ireland, where self-identification has been in place since 2015, “ordinary residence” is also used to determine eligibility for applying for a GRC. However, the definition of “ordinarily resident” in Ireland is that

“you have been living in Ireland for at least a year or you intend to live here for at least one year.”

My amendment mirrors that approach and I would be grateful if the minister would indicate whether such an approach was considered when the bill was being drafted.

I further note that the Student Awards Agency Scotland website states that the Scottish Government expects someone who is ordinarily resident in Scotland to have made their home in Scotland with the intention of staying and living here, not just to undertake a course of study.

I will briefly address Pam Duncan-Glancy’s amendment 115, which attempts to clarify the definition of “ordinary residence” in relation to refugees. I know that the committee considered that issue during the evidence that it took on the bill and that it sought further clarity from the Scottish Government. I support Pam Duncan-Glancy’s policy intention in the area and urge the committee to consider defining “ordinarily resident” in the bill, so that it is clear from the outset who is able to apply and in order to prevent the potential for misuse.

The concept of “ordinary residence” engages the question of fact and degree, as well as intention. The fact that the Scottish Government chose not to define “ordinary residence” in the bill at the outset does not prevent it from doing so now. I suspect that the Government has pursued the current approach to the concept so that a great deal can go into guidance or its equivalent, which MSPs are unable to scrutinise during the passage of the bill. For that reason, I intend to move amendment 116.

Dr Williams, the NCS risks taking power away from local decision makers. What impact do you expect that to have?

The convener of the Finance and Public Administration Committee, Kenneth Gibson, said that, with the bill, it seems that the Government is

“using a sledgehammer to crack a nut.”—[Official Report, Finance and Public Administration Committee, 25 October 2022; c 24.]

Will you comment on that, please?