Seòmar agus comataidhean

This group of amendments is rightly about the impact of the bill on certain groups and in certain places, as has been discussed by Brian Whittle and Pam Gosal, who make some valid and interesting wider points about people’s choice and understanding. That is really what a lot of this comes down to.

I note that Fulton MacGregor has lodged amendment 111 on the issue of prisons. We both sit on another committee with a shared interest in that area, and I hope that many colleagues can work together on this issue. The reality is that it remains a fact that there are trans people in our prisons and in the custodial estate. It is hard to say, at any given time, how many there are or where they are, or indeed why they are in custody, because such incidents are often reported simply in media outlets or on social media. In fact, as MSPs, we are often asked to comment on individual cases, and it is difficult to pass judgment on the decisions that are made by the Scottish Prison Service without the full details of the individual concerned or the facts of the case. Nevertheless, it is a reality that in the LGBT community, as in any other minority community, there are people who commit crime.

The difficulty that we face concerns how and where individuals should be held in custody. I think that people are rightly concerned about the potential impact of the presence of such individuals in places and buildings that have traditionally been same-sex or binary spaces for hundreds of years, through no one’s fault at all. The task of performing that juggling act is both the grave responsibility of prison governors themselves and a duty on the Scottish Prison Service, which either operates such institutions itself or contracts out their operation. In my view, that does not, however, mean that there should be no transparency in the practice or the policy—or indeed the guidance, if there is any—around that. With my justice hat on, I seek to gain some clarity around those concerns.

My amendment 136 simply aims to gather information about the impact of the act on Scotland’s prison population by requiring the Scottish Government to publish a report on how, if at all, it has impacted on decisions on the placement of transgender people in the prison estate.

As committee members will be aware, the SPS has made it clear that decisions on the housing of transgender prisoners are made on a case-by-case basis and take into account the potential risk with regard to where prisoners should be held. That is, I think, self-explanatory. I cannot imagine that these are easy decisions for governors, but the core of my amendment is to ensure the safety of all prisoners and that they are housed appropriately and, as the SPS has said, according to the needs and security not just of themselves but of those around them.

That is quite a mash-up.

I thank members and colleagues for their input on the issue.

I will first address Maggie Chapman’s comments. I am clear that the purpose of the amendment is not to inhibit or deter any trans people from making good use of the new, simplified process, which she will understand I support, although I appreciate that others do not. In no way is the intention of the amendment to inhibit or deter. It is clear that an aggravator would be used only when an offender was rightly in court for having committed other offences. The concept of an aggravator is commonly used in law in Scotland as a deterrent; that is the point, and I want to be clear about that.

The cabinet secretary referred to the seriousness of committing such an act. If someone fraudulently obtains a GRC with the intention of accessing spaces or people that they should not, and goes on to commit further crime—I am interested in a number of crimes that may fit into the amendment—such acts would be viewed very seriously by judges and courts, and offenders will, in effect, be given a harsher punishment. That is the point of an aggravator.

I thank the committee for allowing me to attend this morning.

I watched last week’s proceedings from afar, and I want to reflect on some of Michael Marra’s comments. Even as someone who supports the general principles of the bill, he eloquently and quite respectfully acknowledged that, although it is already possible to obtain a GRC, the bill changes the process by which that is achieved. It simplifies the process—the whole point of the legislation is to make the process less degrading, humiliating and intrusive. However, he also made a valid point that, whether we like it or not, that simplification removes existing steps that some might see as potential safeguards and as barriers to individuals with malicious intentions, the risk of which, although I hope it remains low, remains nonetheless.

During the stage 1 debate, I made the point that we face a bit of a conundrum: how do we go about such simplification of the process while removing barriers without removing safeguards, be they perceived or actual?

Mr Marra proposed a method that added gravitas to the process of self-declaration, which the committee rejected. I have approached the issue slightly differently. If there is any concern that an individual might use the new simplified process as somehow being an easier way to change their gender, and to do that for all the wrong reasons—including those that people fear—there clearly remains a need to reassure people that the by-product of the new process is not simply a reduction in safeguards or the removal of deterrence. That is what my amendment seeks to do.

Amendment 133 tries to find a sensible balance—one that acknowledges that, by default, the new process is easier, but which also sends a strong message that abuse of the new system will simply not be tolerated.

The amendment creates an aggravator, which would deliver a harsher punishment and sentence to those who use the GRC process to enable them to commit serious crimes. Effectively, a criminal offence would be aggravated if it was proven that the offence in question was connected to the fact that an individual had fraudulently obtained a gender recognition certificate. However, it would not change sentencing guidelines.

I do, actually. I know that other committees have given a great deal of thought to what is a complex and difficult issue. The nature of the offences for which some of the individuals are held in custody rightly gives rise to very public concern, and that concern is often shared with us. For that reason, I actually support amendment 111 in the name of Fulton MacGregor. I know that the cabinet secretary has asked the member not to move it, but I think that it would be helpful if he did, because we would be able to build on it ahead of stage 3 to make it clear that, although these are autonomous decisions made by governors and the Prison Service, there is a general feeling that they must be in everyone’s interest.

With amendment 136, I am not seeking to put in place any prescriptive measures; I am simply asking for data, because in the past we have frequently tried, with great difficulty, to get clarity on decisions made with regard to policy guidance on where people are housed or, indeed, on who is being housed where. Often the response is that the data is simply not available, for reasons of confidentiality. I have asked the Prison Service a number of written questions as well as questions during Criminal Justice Committee evidence-taking sessions, and information has been far from forthcoming. I do not think that there is any particular cause for concern in that respect, but the fact is that without good information we cannot make good decisions.

I think that what I am trying to do with amendment 136 is to improve transparency in the data, even if the numbers involved are small. I also want to address concerns that others have rightly raised that, if a much greater volume of people starts to come through the system and that has a knock-on effect on the transgender prison population, the Government must have a good grasp of the bigger picture. I understand that the Government is willing to accept a number of amendments that place additional reporting requirements on it, and I think that that is a helpful approach. I think that this amendment will be helpful in that respect, too; it casts no judgment on the policy of where people are housed, nor does it interfere with the independent decision making of governors or the SPS. Instead, it allows ministers and the Parliament to get sight of the bigger picture that, currently, we do not have sight of. If we did have sight of it, we could, I would hope, ask the right questions and have them answered.

The format of this amendment, or whatever others may get agreed to at this stage, is not really the point; whatever one’s views on the bill’s general principles, what we as individual members are trying to do is to improve and strengthen the bill itself. Reporting requirements are extremely important in that respect, but such amendments are often rejected by Government ministers. I am therefore pleased to get the feeling that, in this instance, the Government accepts the need for more data and clarity as the bill progresses.

I would be happy to work with any member, or with the Government, ahead of stage 3, either on individual reporting amendments or on a catch-all requirement, as long as that happens and that the provision is in black and white in the bill—that is the main thing—so that we, or indeed whoever sits in the next Parliament, can question Government ministers on the impact of the legislation, in the hope that that addresses some of the concerns that people are raising about the potential impact. I do not always share the concerns, but I appreciate that they exist, and it is important that we future-proof the bill in that way.

Ms McNeill makes a good point. My understanding is that it is already an offence to obtain a GRC fraudulently, so a bar has already been set in the eyes of the law and that bar would remain. Perhaps the cabinet secretary will address that, assisted by the team around her. The matter might be clarified through further guidance after the bill passes or, indeed, through further clarification of the amendment itself. As we move to stage 3, I would be very happy to amend the bill further, should amendment 133 be agreed to, in order to clarify the matter.

Pauline McNeill is absolutely right: court cases are all individual. We should be as clear as possible. I am happy to work with the Government and, indeed, any other member, if that would help.

I make it clear that the amendment does not alter in any way the general principles of the bill or the process for obtaining a GRC, and it should not act as a deterrent to anyone who wants to go about that process for good reason. It does not exclude anyone from obtaining a certificate and it does not set any additional preconditions or requirements for obtaining one.

As the committee will know, I also lodged amendment 134—I withdrew it ahead of the deadline—which went into more detail on the types of offences where an aggravator would be suitable, such as offences under the Sexual Offences Act 2003 or human trafficking, abusive behaviour, sexual harm and domestic abuse. I felt that there was some merit in that approach, but I understand that there are some technical difficulties, which the cabinet secretary might want to explain to me. I am happy to work with the Government if the committee feels that the provision could be strengthened to become more specific or if the general approach is good enough in the eyes of the law.

Simple aggravators are commonly used in other pieces of legislation, such as the Domestic Abuse (Scotland) Act 2018. Members may be aware that, more recently, the Fireworks and Pyrotechnic Articles (Scotland) Act 2022, which went through the Criminal Justice Committee, introduced an aggravator for offences of assault against emergency service workers. There is some precedent.

The whole point of an aggravator is to act as a deterrent, which is the intention of my amendment. I ask the committee to support amendment 133. It will introduce a much-needed counterbalance to address some of the concerns about the new process.

I move amendment 133.

I am far less titled than Mr McGrigor is, but I will do my best.

Cabinet secretary, I believe that you stated that you will support amendment 37. It says:

“For the avoidance of doubt, nothing in this Act”

and so on. It has a very narrow bandwidth. You argued against amendment 111 by saying that amendments that begin

“For the avoidance of doubt”

are completely meaningless, and you asked the member not to move that amendment. Now, for entirely the opposite reason, you are asking members to support amendment 37, which is worded very similarly and therefore should have the same meaningless effect.

I think that what members are saying, by using a series of different amendments, is that the purpose of the bill might not be the same as its effect. We will not know what effect the bill has until after it has been enacted. I believe that there might be a compromise to be had in the catch-all reporting requirement that the Government has indicated that it would be willing to consider. I wonder whether some of the amendments about the interaction between the bill and other legislation might be best dealt with there. If the Government is not willing to support them all, perhaps Pam Duncan-Glancy’s amendment 37, which is very limited and narrow in scope, might provide room for constructive work with members ahead of stage 3.

Would the effect of amendment 76, should it be agreed to, be that all healthcare professionals, in any capacity, would have to disclose their trans identity to their patients and to their employer at every opportunity?

That touches nicely on the point that Pam Gosal raised about patients’ rights and requests in healthcare environments. A valid scenario has been raised that we perhaps had not thought about. However, is not the problem the lack of consistency in guidance and understanding of the rules? Does Claire Baker agree that it would be very beneficial if the Government were to commit to producing and publishing comprehensive guidance for public services—and specifically not just private employers—on what can and cannot be done in the circumstances in which decisions can be made? I think that the lack of consistency is causing issues for some folk.