Meeting of the Parliament [Draft]

Meeting date: Tuesday, March 26, 2024

Official Report 1062KB pdf

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Gender Representation on Public Boards (Amendment) (Scotland) Bill: Stage 1

The next item of business is a debate on motion S6M-12639, in the name of Shirley-Anne Somerville, on the Gender Representation on Public Boards (Amendment) (Scotland) Bill at stage 1. I invite members who wish to speak in the debate to press their request-to-speak buttons, and I call Shirley-Anne Somerville to speak to and move the motion.

15:24  

The Gender Representation on Public Boards (Amendment) (Scotland) Bill seeks to remove the section 2 definition of “woman” from the original Gender Representation on Public Boards (Scotland) Act 2018. That follows decisions of 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 and 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 the bill is passed, it will provide clarity by removing the definition from the statute book to ensure that no one is misled.

I appreciate that it is unusual to introduce such a small bill. We looked at all other planned legislation but did not find a suitable vehicle to implement the change. Further, the necessary change could not be made through secondary legislation.

Given the importance of fulfilling our obligations to the court, the bill is intended to do that. The bill simply clears up the statute book to ensure that it is not misleading. Removing the definition from the statute book will eliminate the possibility of any confusion for readers of the 2018 act who are unaware of the court’s orders in 2022.

I was pleased to read the Equalities, Human Rights and Civil Justice Committee’s stage 1 report on the bill. The committee was satisfied that the bill provides a small technical fix to clear up the statute book. It was also content to recommend that the Parliament agrees the general principles of the bill. I thank the committee for its considerations.

The committee also noted that the majority of respondents to the call for views agreed with the general principles of the bill. The bill does not change the policy intention of the 2018 act. We still need to ensure that the boards of Scotland’s public bodies better reflect the population of our country.

I move,

That the Parliament agrees to the general principles of the Gender Representation on Public Boards (Amendment) (Scotland) Bill.

I call Karen Adam to speak on behalf of the Equalities, Human Rights and Civil Justice Committee.

15:26  

As noted at the end of our stage 1 report, the Equalities, Human Rights and Civil Justice Committee is satisfied that the Gender Representation on Public Boards (Amendment) (Scotland) Bill is a single-issue bill that provides a technical fix to tidy up the statute book following the rulings of the Court of Session on 18 February and 22 March 2022. As such, we are content to recommend that the Parliament agrees to the general principles of the bill.

Although the Scottish Government did not consult on the bill due to its single-issue nature, the committee agreed that it would be helpful to issue a short call for views to allow interested parties to share their views. The call for views ran from 8 to 29 January and received 56 responses, all of which were published. A breakdown of the responses is set out in paragraph 20 of our stage 1 report, and we are grateful to all those who have provided their views.

Twenty-five respondents supported and understood the bill, recognising that it is in line with the court ruling, but added extra commentary. For example, For Women Scotland questioned what discussion there could be on the minister’s legal obligation to comply with the court order, while others, including Close the Gap and the Young Women’s Movement, noted that the court ruling was based on legislative competence, rather than whether the definition was wrong. Others agreed with the bill but were disappointed with the court ruling.

It is worth noting that 21 of the responses misunderstood the purpose of the bill. It might be worth considering the level of messaging around what, on the face of it, is a fix to update the statute book, focusing on the fact that it is technical and on helping people to better understand its purpose.

In oral evidence, we explored with the cabinet secretary why it had taken the best part of two years from the court judgment to introduce the bill. She explained, in line with the policy memorandum, that that time had been taken to explore whether there was another legislative vehicle through which to make the change. That included, for example, considering whether it could be incorporated in another bill, but that was not possible.

In a written submission, the Scottish Trans Alliance and the Equality Network queried whether an update to the statute book could have been made subordinate legislation, but that, too, was not viable, as the only regulation-making powers in the 2018 act are in sections 8 and 9, whereas the court ruling related to the definition of women as set out in section 2 of the act. The Scottish Parliament information centre advised us that it was not aware of a provision under any other act that would allow for the 2018 act to be amended.

There was general acknowledgement that the process for exploring options and then drafting and introducing a bill, plus subsequent scrutiny of a technical fix to update the statute book, can be time consuming. A couple of areas of learning for the Government and the Parliament are to consider the level of messaging to help people to understand the purpose of bills, particularly technical ones, and to explore whether there are, or could be, less time-consuming processes by which such technical fixes could be addressed.

Thank you, Ms Adam. I now call on Meghan Gallacher to speak on behalf of the Scottish Conservatives. Ms Gallacher is joining us remotely.

15:30  

Today’s stage 1 debate will be relatively brief. The cabinet secretary and the convener have said that the amendment is a technical one.

The one question that many women across Scotland will have is this: how did we end up here in the first place? The Gender Representation on Public Boards (Scotland) Act 2018 set out the objective for public boards to ensure that at least half of their non-executive members were women. That included the definition of the word “women” to include trans women. For Women Scotland brought a judicial review of the 2018 act, and, on 18 February 2022, the inner house of the Court of Session ruled that it was outwith the Scottish Parliament’s legislative competence as it amended the definitions of the protected characteristics in the Equality Act 2010.

The Court of Session declared that incorporating some of those with the protected characteristics of gender reassignment, whether or not they hold a gender recognition certificate, into the definition of women unlawfully

“conflates and confuses two separate and distinct protected characteristics”.

An exception in the Equality Act 2010 allowing provision for women excludes biological males. The SNP Government has therefore introduced the amendment bill to align with that ruling.

Women have fought for hundreds of years to achieve equality and to ensure that their rights are protected, but those rights have been eroded by a Government that is hell-bent on bringing in laws and legislation that put women’s rights at risk. From attempting to bring in legislation that would allow 16-year-olds to change their gender without a medical diagnosis, to moving the goalposts on who can obtain a gender recognition certificate, which would have meant that, if the Gender Recognition Reform (Scotland) Bill had been enshrined into law, predatory men would have been allowed to take advantage of the system, to allowing a convicted rapist to be sent to a women’s prison, it is clear that women’s groups have had enough of laws that create a hierarchy of protected characteristics. It is divisive; it creates more division in our society.

Women’s groups will continue to challenge the Government when it attempts to bring in legislation that will have a detrimental impact on women, their rights and safeguarding. The Scottish Conservatives will support the amendment bill today, but I ask that the Scottish Government begins to work with women’s groups and not against them.

15:32  

I am pleased to open on behalf of Scottish Labour in the debate. Scottish Labour supported the Gender Representation on Public Boards (Scotland) Act 2018 and we continue to support the principle of the act. It is an important step towards achieving gender parity and increasing the representation of women through a robust level to promote equality.

However, we fully acknowledge that the amendment is necessary and therefore welcome the stage 1 debate and process. We recognise what previous speakers have said about the technical nature of the bill and that it has been introduced to tidy up the statute book. Recognising that fact and considering all the judgments that were passed down is the reason why the Equalities, Human Rights and Civil Justice Committee, of which I am a member, produced what is perhaps one of the smallest reports that I have seen for stage 1 of a bill. It is an accurate reflection of the purpose of the bill.

I do not intend to try to rehearse the debates that we had during the passage of the bill, and I note that I was not a member of the Parliament at that time. Today is about acknowledging the judgments of the court and ensuring that we do our job to tidy up the statute book to deflect the possibility of any potential future confusion.

It is important to reflect on the fact that the bill does not change what is currently operating on the ground, because the definition in the 2018 act has become defunct since Lady Dorrian’s initial judgment, and the Scottish Government’s revised guidance has been in effect since its introduction. We are not changing anything today; we are just tidying up the statute book.

In the spirit of constructive criticism for the Scottish Government and for Parliament as a whole, as the convener and others have said, there are opportunities for reflection on some of the issues that the process has raised. We need to reflect on whether the confusion that often arises in legal cases could be avoided in the first place. Nobody wants legislation to end up in the courts, particularly in areas in which it is deemed to be outwith the legislative competence of the Parliament. We need to reflect on that more broadly in respect of a number of pieces of legislation and think about how we deal with those issues, particularly in the drafting process.

Another issue—we have heard this already—is whether this change to the statute book could have been achieved sooner. I appreciate what the cabinet secretary has said today and in committee about waiting to see whether there were alternative vehicles through which the amendment could have been made, rather than through this stand-alone bill. Obviously, the Government has come to the conclusion that there was no opportunity to do that before starting this process, but I note that this is not the first time that we have had to wait quite a while to tidy up legislation or to react to the rulings of the court—we can think back to the process around the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill. It is worth thinking about what we can do procedurally to speed up changes to ensure that issues do not sit unresolved for longer than needed.

Like the bill and its accompanying stage 1 report, I will be brief and leave my remarks there. I look forward to hearing the rest of the debate and hope that we can move forward at pace to update the legislation.

15:35  

I speak in the debate as a new member of the Equalities, Human Rights and Civil Justice Committee. I thank the committee clerks for their assistance in the production of our stage 1 report. The committee received very helpful evidence from a range of expert witnesses and found it extremely helpful in reaching conclusions.

Balanced representation, particularly in positions of influence, is extremely important, and balanced gender representation on our boards ensures that we harness the experience, perspectives and talents that everyone has to offer. That helps to guarantee that any decisions that are made are representative and will benefit the wider group.

After stage 1 consideration, through the support of the Scottish Trans Alliance and the Equality Network, an amendment at stage 2 was lodged to amend the definition of women in the bill to include trans women. The amendment was welcomed by the Scottish Government and was agreed to unanimously by the committee. However, following the rulings of the Court of Session in 2022, it was determined that the definition, as added by the stage 2 amendment, was outwith the legislative competence of the Scottish Parliament and was not lawful. As such, the definition will be removed, and the bill provides a technical fix to tidy up the statute book following the rulings.

The Scottish Government believes that it is required to do that in the light of the court rulings, but the change does not impact how the 2018 act has worked since the rulings. The bill is a short single-issue bill, and its sole purpose is to amend the statute book in the light of the rulings.

The court rulings were a disappointment to the Scottish Trans Alliance, the Equality Network, me and, I am sure, many others. Although alternative approaches were considered, with some suggested by the Scottish Trans Alliance and the Equality Network, it was determined, unfortunately, that those would not be possible.

It is good that, in general, equality groups agree with the bill, but it is understandable that they are disappointed by the court rulings. Our stage 1 report sums it up by using a quote from the equality impact assessment:

“The trans community may perceive the Bill to have a negative impact on their community, as they could mistakenly view it as a step backwards from their work to achieve equality or a sign that the Scottish Government is changing its position on support for trans rights. However any substantive impact on the operation of the law is as a result of the Court’s decisions, not this Bill which simply clears up confusing wording.”

I am glad that officials are engaging with LGBTQI stakeholders to reassure them of the Scottish Government’s on-going commitment to achieving greater equality.

Overall, the committee is satisfied that the bill provides a technical fix to tidy up the statute book, following the rulings of the Court of Session on 18 February 2022 and 22 March 2022. Accordingly, the committee is content to recommend that the Parliament agrees to the general principles of the bill.

It is vital that women’s voices are heard, especially by public bodies that deliver services in our everyday lives. Fundamentally, the SNP Government is committed to ensuring greater gender equality and fairness for all, and it is vital for our future that all voices are heard and that everyone has a seat at the table.

15:39  

I begin by thanking the committee for its work and its report. As my colleague Paul O’Kane said, we accept the committee’s recommendations in full and agree that the legislation is necessary to tidy up the statute book. As we have heard, this is a piece of technical legislation that brings the 2018 act in line with the Court of Session ruling and does so in a manner that ensures that definitions outlined in the Equality Act 2010 are protected.

I note from the committee’s report that the cabinet secretary was pressed on why it took the Government as long as it did to bring forward legislation in the aftermath of the Court of Session ruling. I recognise that the cabinet secretary was keen to pursue other legislative routes to achieve the aims set out within the bill. Clearly, that was not possible and primary legislation has been required. I agree with the cabinet secretary that the bill achieves the requisite removal of any confusion that might be caused.

I am also glad that assurance has been provided stating that the bill has, in effect, a single purpose and that it does not impact the intentions of the act originally passed by the Scottish Parliament. Achieving fairer gender representation on public boards remains of the utmost importance and it is critical that we continue doing all that we can to ensure that women across Scotland are provided with opportunities to sit on the boards of public authorities and that the long-standing barriers to their doing so are removed. The legislation is important and it is right that the bill we are debating today should not detract from its good intentions.

The most recent progress report, which was published in August last year, confirmed that progress has been made, with gender balance being achieved in two thirds of the public authorities listed in the original legislation. However, that also confirms that a further third of public bodies still need to meet that key target. We must redouble our efforts to ensure that the next progress report shows even greater developments in the area.

Women’s contribution to public life across Scotland ought to be recognised. Without doubt, the barriers to women holding the most senior positions and having a seat at the boardroom table have been in place for far too long. We must be absolutely clear that nothing will stand in the way of Parliament breaking down those barriers. I am content that the bill will have no detrimental impact on that effort.

I again thank the committee for its report and support the remarks by my colleague Paul O’Kane.

15:42  

As a very new member of the committee, I am pleased to speak in today’s debate. As the convener said, this is essentially a single-issue bill and an exercise in tidying up. It adjusts the statute book to reflect something that has been the case since 2022 and will provide clarity by removing a redundant definition.

The committee raised the wider point about whether there should be consideration of a way to address technical fixes without requiring primary legislation. The Government may want to reflect on that. I agree with the convener’s comments in that regard.

I take the opportunity to reiterate the importance of legislating for more diversity in leadership, because such diversity benefits everyone. We should continue reducing barriers to participation. Quotas can have a very powerful impact: statistics shared by UN Women show that women’s representation is 5 per cent higher in Parliaments and 7 per cent higher in local government bodies where there is a legislated candidate quota.

Having women represented in positions of power allows women’s needs to be reflected in decision making. In its report “Sex & Power in Scotland 2023”, Engender says:

“Women are not able to participate fully in public life or to exercise equal citizenship with men when they do not have the same access to opportunities and power.”

Research by Engender suggests that the justice sector is one of the least representative spheres of Scottish public life. Domestic abuse and sexual crimes are, unfortunately, all too common, yet those crimes have some of the lowest conviction rates. Having women from a wide range of backgrounds well represented in positions of power is an important step towards ensuring that those highly gendered issues are understood and tackled.

Women’s participation can help to advance gender equality. It also has an impact on the range of policy issues that are considered and, more important, the solutions that are proposed. However, that is not enough on its own. Leadership from everyone in positions of power is vital. We need to ensure that the barriers to participation that women experience are tackled at every level. In my view, that is a positive step, and it is certainly in line with the SNP’s consistent commitment in government to ensuring that representation of women and girls is increased in both the wider public sector and politics. It is amazing that, since 2014, the Scottish Government has been one of only a few Governments in the world to have a gender-balanced Cabinet, and that the current SNP-led Cabinet is the first to be made up of a majority of women. We should all agree that that is a huge achievement.

It is important that messaging on the bill is strong so that people understand its purpose and its technical nature. It is also important that the Government reflects on how technical fixes to legislation can be achieved in a less time-consuming manner.

15:46  

The Cabinet Secretary for Social Justice has described the amendment bill as simply a small technical fix to the statute book, but I completely disagree with that analysis. The bill is the Scottish Government’s very public acceptance, however grudgingly given, that its policy that trans women are women has been thoroughly defeated in Scotland’s highest court. Through a late change in the wording of the law and without any equality impact assessment, the Gender Representation on Public Boards (Scotland) Act 2018 defined women entirely on the basis of self-identification. It was, we were assured, a one-time-only redefinition that would have no meaning outside the act.

However, as women’s rights campaigners predicted, that new definition was soon used as proof that self-ID was now the law in Scotland and could not be argued against. For Women Scotland, some of whom are with us in the public gallery today, brought a judicial review on that new definition of women, and the inner house of the Court of Session ruled on 18 February 2022 that it was unlawful. The short bill that we are discussing today removes that definition from the legislation. Whether the new definition will have to be changed again—in support of For Women Scotland’s belief, and mine, that, for the purposes of the Equality Act 2010, women should be defined entirely on the basis of biological sex—will now be decided at the Supreme Court.

What is already clear today is that the Scottish Government’s policy that all men who identify as women should be treated as women is, in fact, unlawful. In fact, self-ID has no legal standing. Trans women are not women under Scots law, so it is wholly wrong for any organisation or MSP to still rely on a definition that has now been ruled unlawful and, as can be seen today, has been accepted as such by the Scottish Government. At the very least, the Scottish Government should make sure that it does not fund organisations that are advising it incorrectly and that all processes and policies are being updated to ensure that this does not happen again. I would welcome a statement from the Government on that, especially as the Government is saying that it will introduce a bill on conversion therapy this year.

I am also wondering, as others in the chamber might be, when the Scottish Government will advise its MSPs what the law is saying in this regard. This debacle, after all, was the start of a whole suite of legislation, together with the Hate Crime and Public Order (Scotland) Act 2021 and the Gender Recognition Reform (Scotland) Bill, that is based, as far as I can see, on the demands of lobby groups that the Government is funding. It is entirely symptomatic of the failings of a Government that is pursuing legislation costing hundreds of thousands of pounds of public money that does not reflect the view of the public. I am sure that that money would be much better spent elsewhere. All of that has undermined trust—fatally, I think—in the Scottish Government. Most disturbingly for me as an independence supporter, it has also undermined trust in the Scottish Parliament as an institution.

We move to the closing speeches. I call Paul O’Kane to close on behalf of Scottish Labour.

15:50  

I do not intend to detain the chamber for too much longer in having to listen to me, given that I opened for the Labour Party at the beginning of the debate. I will simply reflect on some of the contributions that have been made and then offer again our view on the requirement that the bill be on the statute book and on the lessons to be learned.

I put on record my thanks to the legislation team who prepared the bill and briefed the committee, the legal officers from the Government who gave evidence to the committee, and those who responded to the call for views and gave their opinions on the bill—and, perhaps, on wider issues, which I am keen not to relitigate today, as I have said.

Carol Mochan spoke powerfully, as did Evelyn Tweed and others, about the 2018 act, which was debated in the previous parliamentary session, and the importance of pursuing that further equality in our public bodies in order to ensure that they are more representative of the country and that mechanisms are in place to support that.

I recognise the contributions that were made about what the act does and what it does not do when it comes to the statute book. I reiterate the fact that Labour previously supported and continues to support the fundamental principles of the act, but we are acutely aware of the need to respect the decision of the court and to ensure that the statute book reflects that decision, given that that is now the way in which the law has to be conducted in practice.

In opening, I asked the cabinet secretary for a number of points of clarification on the lessons that can be learned from this process. That is important for both the Government and the Parliament, not least when it comes to how we might avoid such situations but also in relation to how we might learn from the opportunities that we have to clarify and tidy up the statute book before we come to the process of passing a stand-alone bill. I hope that, in her summing up, the cabinet secretary will reflect on the questions that I have asked in good faith, and on the need to ensure that all our processes in this Parliament are well scrutinised and reflected on, so that we do not have to revisit legislation in this way.

I will leave my comments there, Deputy Presiding Officer. I am very grateful for your indulgence this afternoon.

I call Annie Wells to close on behalf of the Scottish Conservatives.

15:52  

I, too, will keep my remarks short, because we have now heard from most of my fellow members of the Equalities, Human Rights and Civil Justice Committee and we are all just going to say the same thing about some of the stuff that we have listened to.

For clarity, the ruling was a result of the judicial review that was brought by For Women Scotland. In response, the Scottish Government has brought forward this amendment bill. We were a bit disappointed by the length of time that it took to introduce the bill, but we listened to the cabinet secretary’s comments in committee and we understand. As Paul O’Kane said, maybe we need to look at how legislation can change and move forward so that—as everyone has said—we do not have to introduce a stand-alone bill just to apply a small technical fix to existing legislation.

We have to look carefully at the Gender Representation on Public Boards (Scotland) Act 2018, which the bill will change, to make sure that, when we talk about gender, we are careful and we listen to judicial reviews—to what the courts say.

I am just looking at my notes to see whether I have anything to add that no one else has said.

There are impassioned views on gender across the political spectrum, and we must be sure to listen to all sides of the argument. On this occasion, I confirm that Scottish Conservatives will vote for the amendment bill.

I call the Cabinet Secretary for Social Justice, Shirley-Anne Somerville, to close on behalf of the Scottish Government.

15:54  

Thank you very much, Presiding Officer. I thank all the members who have contributed to this afternoon’s debate. As I said in my opening remarks, it is very unusual for the Parliament to debate such a small bill, but I am very grateful for the time to engage in the process and to share our views. I am also grateful to the committee for the process that it has undergone.

The committee’s convener, Paul O’Kane, Annie Wells and others have mentioned the need for Government and Parliament to reflect on how we can better deal with small bills such as this one, which are technical fixes. That is not a matter only for Government, but for Parliament. As the institution is still relatively young, it is important that we all learn and understand what more we can do to make the process easier.

Paul O’Kane mentioned the challenge that we all have when we are discussing areas that are to do with legislative competence. That applies not only when a bill is introduced through what the Government does, but also when we debate and vote on amendments at stages 2 and 3. I suggest that we—not only the Government, but the Parliament—reflect on that.

I am conscious that we are making this technical fix because of a Labour amendment that was made at stage 2, which was strongly supported by the Scottish Government at the time. That is an important aspect that we need to reflect on as we go through the bill process, and I hope that the Parliament can come back to discussing that. I am particularly conscious of that given that the proposed human rights bill will go through Parliament in due course. I am sure that we will be pressed by many people—quite rightly—to go as far as possible on that and that we will start having debates about legislative competence on the issue. We all need to be aware of how we can best do that as we go through the process.

Will the cabinet secretary join me in recognising the work of For Women Scotland—some of whom are in the gallery today—whose tenacity and fundraising removed from the act the trans-woman-inclusive definition of woman, which impinged on reserved matters and was unlawful?

As I mentioned in my opening remarks, the Government recognises the court’s decision. It is important that the Government listens to all groups—whether they are all-women groups or other groups—that have a variety of views on any subject.

Meghan Gallacher discussed women’s groups in her opening remarks, and I suggest to her that we also do a disservice to women by suggesting that all groups that represent women share the same views. As a Government minister, I am very cognisant that there are a variety of views on a variety of subjects, and I give my commitment on behalf of the Government that we will consult with everyone, regardless of their views, on contentious issues.

Paul O’Kane was right to point to the fact that the bill is not changing anything but tidying it up. It is also important to recognise the points that Carol Mochan made about the purpose of the act. She spoke, quite rightly, about the barriers that still exist to women and the fact that the Parliament must collectively work together to continue to break down those barriers.

Despite the fact that this is a small bill that applies a technical fix to the statute book, it is important that we reflect on the need for the bill within the context of gender representation on public boards and recommit ourselves to those initial principles, as Carol Mochan suggested. On that note, I draw my remarks to a close.

That concludes the debate on the Gender Representation on Public Boards (Amendment) (Scotland) Bill at stage 1. There will be a short pause before we move on to the next item of business.