Chamber and committees

I am glad that the cabinet secretary and his team can see the work that we are doing on the issue. It is very clear that we need as much transparency as possible. The discussion so far has been about where the Government intends to align, but can you clarify where you do not intend to align? That is critical to businesses, environmental organisations and others, who need to know where EU law will continue to apply. Where are you not convinced that we should retain alignment?

You said that words in my amendment were legally challengeable, and you specified “appropriate support”. What would be legally challengeable in that phrase? I kept it so that it is not heavily detailed in order to give you flexibility in defining what would be appropriate—it would be for ministers to judge what was appropriate.

It is good to hear people’s views on the matter. I have no objection to Christine Grahame’s amendment. It is good, because it would provide a formal process for applying for a gender recognition certificate, but there are wider issues to address before someone gets to that stage, when they need information and support.

Having a wider range of support is critical, which is why I was keen for Scottish ministers to be able to decide what the steps are. For example, there is interdepartmental work across different Government departments such as education and health where wider support is needed. We must also think about the range of available support, because the Scottish Government will no doubt fund the provision of support, not only within Government but with third sector organisations and charities, which the Government does already. I was trying to be helpful in saying that that does not happen at the moment.

I heard that debate.

I was listening to it in my office. I totally welcome that provision, but the people who came to me were not young. It is particularly an issue for young people—16, 17 and 18-year-olds—but there are older people who need such advice. I think that the advice that you have recommended in relation to the registrar general is good, but there is other advice that is needed. In particular, a range of mental health support and counselling is needed, as well as wider advice. That advice would be provided by a range of organisations, voluntary and statutory.

Amendment 128 is meant to be a constructive amendment. If the cabinet secretary is saying that the use of the term “appropriate” is what is wrong with my amendment and that she is prepared to discuss that, I would be prepared to seek to withdraw it today and to come back to the issue at stage 3.

I simply wanted to clarify that I do not see amendment 128 as replicating amendment 71 or amendment 39, both of which are good amendments. Amendment 128 takes those provisions further and opens out support to the wider community of people who need it.

Amendment 128 builds on the recommendation in point 278 of the committee’s stage 1 report. The aim of the amendment is to require the Scottish ministers to

“take steps to ensure that ... appropriate support and information”

is put in place to support any

“individuals who are considering”

and/or who make

“an application for a gender recognition certificate”.

In my opinion, the wording of the amendment gives the flexibility that we need. It would be for Scottish ministers to determine what the appropriate support and information is, but the flexibility will ensure that the information and support that is provided can be tailored to the needs of an individual and can change over time, as required, as a result of experience with the legislation.

The committee recommended in its stage 1 report that the Scottish Government should commit to putting in place “appropriate support and signposting”, and I strongly welcome that recommendation. It followed evidence that the committee heard, particularly that from the children’s commissioner, who said in oral evidence:

“Protection and participation rights are not mutually exclusive, and we are looking for a process that recognises not only the growing autonomy of young people but the need to support and protect them.”—[Official Report, Equalities, Human Rights and Civil Justice Committee, 24 May 2022; c 13.]

That evidence reflects the concerns that have been raised with me by constituents across the Lothians who have already gone through the process of obtaining a GRC. They definitely welcome the simplification of the process for the future. However, they have highlighted to me that it would have been much more helpful for them to have signposting, advice and support. They would have welcomed that before they transitioned, so they think that, for the future, particularly given that more people are likely to take the opportunity of applying for a GRC, support must be provided for them.

In some cases, it could be health support and intervention. However, the latest Public Health Scotland data for June 2022 shows that only 70 per cent of children and young people who were referred to child and adolescent mental health services were seen within the 18-week target waiting time. Similarly, the waiting times for gender identity clinics currently range anywhere from one-and-a-half to three years, so there is an issue about ensuring that a range of advice is available for people. I reiterate that it should not be focused solely on medical support and/or intervention, although that is important, but a range of non-medical advice and support, including from the public and voluntary sectors, could be provided to people who are considering going through the GRC process.

We are looking for signposting and a commitment in principle, but I have been careful not to be specific because I am conscious that if the amendment is too specific the cabinet secretary will no doubt immediately rule me out of order. I am trying to frame my amendment in a way that I hope will be helpful and reflect what the committee concluded from the evidence that it heard.

I move amendment 128.

Absolutely. Those organisations will change over the years. There is no set or perfect list of organisations. I think that the bill will lead to more organisations providing support. The issue is how people know that they exist. That is the issue that I sought to address by lodging amendment 128.

On that basis, I seek to withdraw amendment 128, but I intend to come back to the issue at stage 3, after having had conversations with the cabinet secretary.

Amendment 128, by agreement, withdrawn.

Section 5—Statutory declarations and other evidence in relation to marriage or civil partnership

Amendment 5 not moved.

Section 5 agreed to.

Section 6—Certificate to be issued

Amendment 6 not moved.

Section 6 agreed to.

After section 6

Amendment 49 moved—Shona Robison—and agreed to.

Section 7—Issue of full gender recognition certificate to person with interim certificate

Amendments 50 to 52 moved—Shona Robison—and agreed to.

If the cabinet secretary is prepared to discuss the term “appropriate”, I am happy to seek to withdraw amendment 128. Cabinet secretary, are you objecting totally to amendment 128, or are you prepared to discuss the term that you identified in your comments?

I appreciate the written evidence that the witnesses submitted in advance. It feels unprecedented, because they are all measured witnesses and the background that they all have gives weight to their worrying comments about legal certainty, risks, unintended consequences, lack of scrutiny and lack of Government capacity.

Michael Clancy, in the general comments at the start of your submission, you say:

“there is no reason why retained EU law … cannot be considered a sustainable concept. On the other hand, it would be equally possible following a thorough review and relevant amendments that incorporation into domestic law in the four UK jurisdictions could be completed.”

Will you say a bit more on that? Thus far, the tone has been, “This will be a disaster.” What would be a more positive approach that would enable a degree of scrutiny and accountability for not only parliamentarians but the people whom we represent? Will you kick off, Mr Clancy?

Dr Hancox, you gave us an interesting set of thoughts about what we should be thinking about. Do you have any comments about what we should be doing? Should the legislation go through as is?