Meeting of the Parliament [Draft]

Meeting date: Thursday, June 20, 2024

Official Report 1054KB pdf

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Gender Representation on Public Boards (Amendment) (Scotland) Bill: Stage 3

The next item of business is a debate on motion S6M-13664, in the name of Shirley-Anne Somerville, on the Gender Representation on Public Boards (Amendment) (Scotland) Bill at stage 3.

As members will be aware, the Presiding Officer is required under standing orders to decide whether, in her view, any provision of the bill relates to a protected subject matter—that is, whether it modifies the electoral system and franchise for Scottish parliamentary elections. In the Presiding Officer’s view, no provision of the Gender Representation on Public Boards (Amendment) (Scotland) Bill relates to a protected subject matter. Therefore, the bill does not require a supermajority to be passed at stage 3.

15:58  

As we have discussed previously, the bill seeks to remove the definition of “woman” from section 2 of the Gender Representation on Public Boards (Scotland) Act 2018. That follows decisions made by the inner house of the Court of Session, which were effective from 19 April 2022. The court decided that the section 2 definition was outwith the legislative competence of the Scottish Parliament, was not law and accordingly had no legal effect. At that time, our counsel told the court that we would remove the redundant definition from the 2018 act. If passed, the bill that is before members will provide clarity by removing the redundant definition from the statute book to ensure that no one is misled. Removing that definition will eliminate the possibility of any confusion for readers of the 2018 act who are unaware of the court’s decisions in 2022.

I appreciate that introducing such a small bill is unusual. As members will know, the Scottish Government considered other planned legislation and did not find a suitable vehicle that could implement this bill’s aim. Further, as members will also know, the necessary change could not be made through secondary legislation.

I was pleased to read the Equalities, Human Rights and Civil Justice Committee’s stage 1 report on the bill, which stated that the committee was

“satisfied that this Bill provides a technical fix, in order to tidy up the statute book”

and that it was

“content to recommend that Parliament agrees the general principles of the Bill.”

The committee noted, too, that the majority of respondents to the call for views also agreed with the general principles of the bill.

Similarly, at stage 2, the committee was content that the bill should proceed, and I would like to thank the committee for its work on the bill. I note that there have been no amendments to the bill at any stage, which indicates to me that members understand that this is a small technical fix to clear up the statute book. The bill does not change the policy intention of the 2018 act—we still need the boards of our public bodies to better reflect the population of Scotland.

I move,

That the Parliament agrees that the Gender Representation on Public Boards (Amendment) (Scotland) Bill be passed.

I should have invited members who wish to speak in the debate to press their request-to-speak buttons now or as soon as possible. Meghan Gallacher has already done it, so I will reward her by calling her for around six minutes.

16:00  

The cabinet secretary is absolutely spot on. The bill is a short bill, but its contents can be seen as frustrating, because we are spending parliamentary time today fixing yet another mess that was created by the Scottish Government in the previous parliamentary session. The previous Scottish National Party Government changed the definition of a woman when it passed the Gender Representation on Public Boards (Scotland) Act 2018. The definition that was contained in the 2018 act wrongly confused two distinct protected characteristics in a separate law—those of a biological woman and those of people who are transgender. The nature of protected characteristics is also a reserved matter, so the definition of a woman in the 2018 act impinged on matters that were not devolved to the Scottish Parliament. Changing the definitions of a protected characteristic is, of course, not permitted in law and it led to the conclusion that the respected act was outside the Scottish Parliament’s legislative competence.

Had it not been for women’s groups challenging the 2018 act, the amending bill would not be before us today. I am pleased that we have fierce, resilient and brave women right across Scotland who will not tolerate their rights being eroded. They have challenged this Government over its policies and decision making and continue to be unapologetically vocal in their fight to protect women and girls.

It was For Women Scotland that brought the judicial review on the Scottish Government’s new definition of a woman, and the inner house of the Court of Session ruled on 18 February 2022 that 2018 act was outwith the legislative competence of the Scottish Parliament, as it amended the definition of protected characteristics in the Equality Act 2010.

As the 2018 act could not be amended quickly, the court issued an order that declared that the definition should be formally removed from the 2018 act and the statutory guidance. That means that the act has been operating under the Equality Act 2010 definition of a woman since 19 April 2022.

I believe that the outcome that was determined by the court shows that biological sex matters. The bill that we are discussing today removes the unlawful definition from 2018 act, and that is welcome.

It is, of course, a step in the right direction, but it is not one that the SNP Government took on its own. The SNP is continuously tying itself in knots when it comes to its understanding of protected characteristics. Through the Gender Recognition Reform (Scotland) Bill, it tried to create a hierarchy of protected characteristics, pitting groups against each other. We are still feeling the aftermath of the deep division that was sown by the Scottish Government over issues such as self-identification. Women are witnessing their hard-won rights being diluted and feeling that their legislative protections are worth less than those of other vulnerable groups. The Government has not supported them, has not engaged with them and has dismissed their concerns as being not valid. That is not how we create equality. It is a sad reflection that women feel the need to challenge the Government to ensure that their rights are upheld. Lessons need to be learned from that.

That brings me on to the impact of the never-ending legal challenges. Hundreds of thousands of pounds have already been squandered by the SNP on gender-related matters. Whether it be judicial reviews or the Gender Recognition Reform (Scotland) Bill, we are seeing a pattern. In my view, it needs to stop. It creates more division, and I am sure that we agree that taxpayers’ money could be better spent elsewhere.

Here are my asks of the Scottish Government today. Accept the rulings and stop meddling in matters that are reserved. Do not stray into areas that make legislation unlawful. Please listen to women’s groups, because all that they want is for their rights to be protected and respected. There is nothing controversial in any of that.

Given that we are here today because of the hard work and efforts of For Women Scotland, I will end my contribution by thanking them for their hard work, their tenacity and their expertise. They are the women who would not wheesht. For Women Scotland turned six years old today. I congratulate it on its campaigning success so far. The Scottish Conservatives will continue to stand shoulder to shoulder with it on these issues.

I finish by asking For Women Scotland directly to keep powering on to protect the rights of women and girls in Scotland.

16:05  

I am pleased to open the debate on behalf of Scottish Labour. I do not intend to speak for too long, but I want to offer some remarks.

In the stage 1 proceedings on the Gender Representation on Public Boards (Amendment) (Scotland) Bill, I commented that the Equalities, Human Rights and Civil Justice Committee, which I am a member of, had produced the smallest stage 1 report that I had ever seen in the Parliament and had reached the conclusion that the bill should proceed in order to tidy up the statute book. At stage 2, there were no amendments for the committee to consider, and this afternoon, in a rare occurrence, we have no amendments to the bill to consider at stage 3. It is clear that there is consensus on passing the bill and, therefore, taking the action that is required to ensure that the statute book reflects the legal judgment that was handed down in the Court of Session.

There are a number of things that we should take time to reflect on as we bring our consideration of the bill to its conclusion. As has already been outlined, we are here because of a legal judgment on the original act. I have sometimes felt of late that that has become a more common situation. We could look at some of the challenges around bringing the incorporation of the United Nations Convention on the Rights of the Child to its conclusion and other issues. The Scottish Government and the Scottish Parliament collectively need to be better at ensuring that legislation does not end up in the courts and that we produce good legislation at every stage. We need to ensure that the scrutiny of legislation is well considered and well done so that we do not end up with a legal challenge.

It is worth reiterating at this stage in the proceedings the importance of the original legislation. I made some comments on that in my contribution at stage 1. Scottish Labour fully supported the Gender Representation on Public Boards (Scotland) Act 2018. I was not a member of the Scottish Parliament when the 2018 act was passed. However, although we are now seeking to rectify the statute book, I think that everybody recognises that the 2018 act is an important step on the journey to ensuring better gender parity and increasing the representation of women in public life.

We know that the Gender Representation on Public Boards (Amendment) (Scotland) Bill will not change anything that is happening on the ground, because the definition in the 2018 act has been defunct since Lady Dorrian’s initial judgment and the introduction of the Scottish Government’s revised guidance, which was subsequently affirmed by the court. Given that the act has been in effect with revised guidance since the judgments, it would be good to hear from the Government what assessment it is making of the impact of the original act and whether that is living up to its policy intent. We all want to see the original act meeting the policy intent of creating greater parity.

In speaking to colleagues this morning, I was reflecting that we are still falling short on that in many areas in public life. Just because there is legislation for public boards, that does not mean that we always get it right in every sphere of life to ensure gender balance. Indeed, changes today to the Parliament’s Public Audit Committee mean that that committee now has five male members and three male substitute members. It is incumbent on all parties that are represented in the Parliamentary Bureau to reflect on how we show leadership in the chamber and in the Parliament as a whole, and on how to have greater parity in decisions on Parliament committees, and to lead by example. I am sure that the business managers will reflect on that, as I am sure that you will, too, Presiding Officer.

I do not intend to detain members for much longer with my opening speech, and I do not intend to rehearse the old debates to any large degree. It is our job as responsible legislators to consider the court’s judgments, to respect them, and to ensure that we have a tidy statute book to prevent any future confusion.

Given the brevity of the bill, I will leave my remarks there.

16:09  

I thank everyone who has contributed to the bill reaching stage 3 today, including my fellow committee members, Scottish Parliament information centre researchers, Scottish Government officials, the bill team and civil society organisations.

Sadly, there has been a certain amount of misunderstanding about what the bill does and why it has been introduced. As we have heard, all that the bill does is to amend the Gender Representation on Public Boards (Scotland) Act 2018 by removing a three-line definition of the word “woman” in section 2 of the act—no more.

The passing of the bill is not a victory for anyone or any ideological position. The amendment of the legislation follows decisions by the Court of Session—decisions that specifically did not say that the definition was wrong. All that the court said was that it was outside the legislative competence of the Scottish Parliament, on the ground that protected characteristics are a matter reserved to the United Kingdom Parliament in Westminster.

We might very well think that it is a pity that the devolution settlement is so inconsistent as to place human rights within our competence and equalities outwith it. We might also think it more than a pity that the rights and wellbeing of our transgender friends, colleagues, neighbours and relatives, which have been so much better protected here, must be subject to the toxic scapegoating of Westminster and media discourse. Yet again, it seems that independence will be the only way to secure a truly fair and inclusive Scotland.

However, the bill is not about those issues, important though they are. It is simply, as the committee report notes, “a technical fix”. It was not strictly essential, for the definition has had no legal effect since April 2022, as Paul O’Kane has outlined, but the bill has been introduced in order to bring the formal statute book up to date, to provide clarity and to prevent any potential confusion. The use of a stand-alone bill to make the amendment might seem disproportionate, but we are assured that there were no powers in the 2018 act or any other act that would allow the change to be made by way of regulations.

I and my Scottish Green colleagues will therefore be voting in favour of the bill at decision time, as a matter of legislative clarification. We stand, as always, in solidarity with transgender and non-binary people across Scotland and beyond, and we continue to strive for a future that we can all be proud to share.

16:12  

Predictably, the Cabinet Secretary for Social Justice continues to downplay the importance of today’s amendment bill. However, it is a crucial step to align the Gender Representation on Public Boards (Scotland) Act 2018 with the Court of Session ruling that the Scottish Government’s redefinition of “woman” was outwith the legislative competence of the Scottish Parliament and, therefore, not law.

The 2018 act was the Scottish Government’s misguided attempt to redefine “woman” ahead of self-identification becoming law in Scotland. Of course, self-ID is not law in Scotland. So, what has the Government actually done to clarify that self-identifying as a woman is not enough to be eligible for a woman’s place on a public board? Are we now reliant on members of small, self-funded campaigns and policy groups such as For Women Scotland and Murray Blackburn Mackenzie, some of whom are with us in the public gallery today, to be the Parliament’s unofficial revising chamber? If so, would it not be more prudent for the public purse for the Scottish Government to listen to them during the legislative process, rather than responding to them in court in response to their judicial reviews?

I have repeatedly called for competence in Government to raise the bar in the Parliament to rebuild that fragile public trust, but we can only do that when lessons are learned and acted upon. The unlawful definition of “woman” was not in the Gender Representation on Public Boards (Scotland) Bill when it was introduced to Parliament; it was added later, at stage 2, following the publication of the Equalities and Human Rights Committee’s stage 1 report. It is very concerning that such a core parliamentary committee did not understand the Equality Act 2010.

As a Parliament, we can and we should learn and improve our committee stage, by listening widely to those who want to contribute. I am very disappointed that the Government is continuing to show contempt for half of the population of Scotland by not admitting that it has made that mistake—and then not apologising for it. If the Government is still struggling, I will clear it up for ministers now: a women is, and always has been, an adult human female.

16:14  

As has been mentioned by a number of members in the chamber, I clarify again that the bill makes a small technical fix to clear up the statute book in order to remove the redundant definition of a woman from the 2018 act. That is due to the court’s decision about the legislative competence of the Scottish Parliament.

There has been a slight rewriting of history about what happened when the initial bill was going through the Parliament. For the record, I point to the fact that the 2018 act was passed by a large majority in the Scottish Parliament; indeed, all the votes against the bill came from the Conservatives. I note that the definition of a woman was added to the bill that became the 2018 act by a stage 2 amendment that was not lodged by the Scottish Government. The amendment was agreed to unanimously by Equalities and Human Rights Committee members, including Conservative members. Notwithstanding that, the Conservatives voted against passing the bill.

Paul O’Kane raised an important point when he mentioned the need for the Scottish Government and those who lodge non-Scottish Government amendments to be live to the challenge of where legislative competence sits, because that is a complex issue. We must be particularly thoughtful about that given that the Government remains committed to the proposed human rights bill, which will again present challenges of legislative competence as we seek to push the boundaries as far as we can in order to protect rights in Scotland. That is an important aspect that we must continue to look at.

In all sincerity, I hope that the Scottish Government can work with an incoming Labour Government, should that party be successful in the election, on what we can do to ensure that the Government and the Parliament, as they make decisions about important aspects to do with rights, can work together to test where the boundaries of legislative competence lie. I also hope that, if changes need to be made to allow us to further improve rights—whether that be for children, disabled adults and children, or other groups—we can do that together. I look forward to a change of approach.

Paul O’Kane was right to mention the important aspect of the original bill’s policy intent. We are seeing progress, but I think that he would agree that it is not enough and that it is not being made quickly enough. We need to work together. He gave an example of what is happening in the Parliament, and there are other examples across society, in the public and private sectors, of where more needs to be done.

I urge members to allow the bill to pass so that the technical fix can be made and so that we can ensure that the legislation that we have in the statute book is clear and without the potential for misunderstanding.

That concludes the stage 3 debate on the Gender Representation on Public Boards (Amendment) (Scotland) Bill.