Seòmar agus comataidhean

I think that I am getting multiple interventions, as is my wont. That is up to the convener.

I will get a badge.

I have not thought about that point, but my answer off the cuff in thinking about it now is that, no, they could not possibly be present when the activity took place. They would delegate holding the licence to a responsible person, as MSPs do to our staff. However, the buck would eventually stop with the landowner.

The issue is who has their name in the frame at the end of the day. That could be one person or two people. I do not know where “category” comes in.

I will move on to my next amendment before the minister responds. I am beginning to chair the meeting, and I did not mean to do that.

Amendment 161 follows on from that. I heard what was said about victimisation, but there is an element of how people know. This is about exceptions to exceptions. If members of the public or whoever are just swarming about and they see something that should be allowed, how do they know that it should be allowed? They may not know that the area has been licensed for certain pursuits that do not come under the general legislation. On the other hand, they might see something that should not be taking place. There has to be some responsibility there.

Are licences for publicans, for instance, published? I am trying to remember. Is there a list of licensed publicans or a list of licensed taxi drivers somewhere? Are they in the public domain? I appreciate that there might be data protection issues, but there might be ways of dealing with the addresses. Again, I am probing.

I will put that in my diary. That is good, thank you.

This is a wonderful moment for us.

I will have to, will I not?

Strangely enough, I do not know—I have not gone around lobbying for them. All people in the Parliament are intelligent—I hope—and can see the amendments for themselves. At stage 1, I laid the ground with regard to my intention to propose precautions and support for 16 and 17-year-olds, because I shared concerns that they were being put in the same boat as 18-year-olds. The test is on the committee. You have been listening to the evidence in depth, so I am hopeful that my proposal has hit fertile ground.

That is me told already.

I was going to say, “I rise to speak to my amendments”, but I will not be rising. I will speak to amendments 38 to 44 and 46, all of which are in my name and all of which are supported by Jackson Carlaw.

The intention of the amendments is to ensure that, before applying, 16 and 17-year-olds have made use of the opportunity to take advice or guidance or to receive support in making their decision, including considering the implications of getting a GRC. That also relates to an amendment that I will come to later on what the registrar general for Scotland must publish.

The provision, which would be mandatory but is not overly restrictive, would require the person to confirm to the registrar general that they had discussed the issue, either with an adult whom they knew personally—for example, a supportive family member or friend of the family—or someone who had a role that involved giving guidance, advice or support to young people, such as a teacher, counsellor, doctor, guardian or LGBT youth worker. There is a whole range of people. In order to allow for flexibility in individual circumstances, amendment 39 would not restrict the form of the consultation—I am not setting out a list here.

The cabinet secretary has already undertaken to ensure that 16 and 17-year-olds will be offered and encouraged to take up a conversation with National Records of Scotland about the process and effect of a GRC. It is important that, wherever possible, the confirmation should be part of such a conversation, which would take place during the reflection period. I invite the cabinet secretary to confirm whether she agrees with that approach and, indeed, with my amendment.

The offence in the bill of making a false application does not apply to the proposed confirmation. There is no desire to criminalise 16 and 17-year-olds or require them to provide proof.

Carol Mochan’s amendment 117 tries to do much the same thing as my amendments, but it is rather heavy handed. It would put in law a requirement for support services for those applying, but that is unnecessary, as all those services exist just now. In any case, when it came to the registrar general, it would still have to be confirmed that the person had actually taken advice; that would be mandatory, and the onus would be on the person in question. After all, this is a big decision. In short, given that the advice and support are already there—and I hope that Carol Mochan forgives me for saying this—I do not think that amendment 117 is necessary, and I think that mine is better. Of course, I would say that.

The intention behind amendments 42 and 43 is to extend from three to six months the minimum period of living in the acquired gender before an application can be made. I understand Rachael Hamilton’s concerns, which is why I am putting in other precautions for this particular age range—specifically, for 16 and 17-year-old applicants. However, the time period that I have set out would be the very least; they might take longer than that, and so might 18-year-olds.

The amendments would introduce two options into the required statutory declaration: either an applicant must state that they are 18 or over and have lived in their acquired gender for at least three months; or that they are 16 or 17 and have lived in their acquired gender for at least six months. That will provide additional assurance that applicants have had the time to fully understand the change that they are making and that they are confident that they really do want to live the rest of their lives in their acquired gender.

Such a measure will not introduce an additional delay for anyone who has already been living in their acquired gender for at least six months. They will have been doing so, well ahead of turning 16, so they could still apply on their 16th birthday and, after the three-month reflection period—which we must not forget—obtain a GRC.

I will make passing reference to Martin Whitfield’s amendments 120 and 124. Amendment 120 is just a consequential amendment, as are my other amendments. I should point out that we are not in collusion, by the way; we are just sitting next to each other—by mistake. [Laughter.]

If I can be modest, my amendments are better, as they put the onus on the young person to specifically confirm that they have discussed and understand their application. It is a big decision for them, so we need to ensure that the onus is on them to have done all that. I believe that that is a better approach than that in Martin Whitfield’s amendments, which put the onus on the registrar general to be satisfied that the applicant has the “capacity” to understand. The word “capacity” is difficult in law; for a start, I do not know whether Mr Whitfield means legal capacity or some other kind.

A discussion with the registrar general will take place, whether face to face, online or whatever, and at that time, they can decide whether the person really understands what they are doing. As I have said, the word “capacity” is a difficult word to use in law. Perhaps Martin Whitfield should have said “fully understand what they are proceeding to do”, instead. However, he did not, and that is why I do not like his amendment.

I think that I have spoken to all my amendments, have I not?

Amendment 71 in my name is supported by Jackson Carlaw. It inserts a new section on publication of information about the process, which sets out a mandatory duty on the registrar general for Scotland to publish online information covering, inter alia, “the effect of” and

“how to make an application for a gender recognition certificate, ... the requirement to make a statutory declaration”

before applying, and

“the consequences of making”

a false application. One of my amendments, which was agreed to, has made a change so that that will not be a criminal offence for 16 and 17-year-olds.

There is also a catch-all—those are useful when setting out such measures—that is about other relevant information that the registrar general “considers appropriate”. All that will ensure that all applicants can easily access information to inform them about their decision to apply for a GRC.

To address a point that Sarah Boyack raised, I have had clarification from the Scottish Government that it remains the intention that National Records of Scotland would signpost 16 and 17-year-olds to appropriate sources of support. Similarly, NRS would signpost all applicants to information on how to make a statutory declaration.

Sarah Boyack’s amendment 128 is, I think, well intentioned, but it is too broad. For example, it says that ministers “must take steps”, but I do not know what that means. It says that applicants should

“have access to appropriate support and information.”

Is that before the application, during the application process or when transitioning? We need more information on what “appropriate support and information” would be.

Some of that has been dealt with earlier in my amendment 39, certainly in relation to 16 and 17-year-olds getting advice, support and counselling from appropriate people, and of course anybody over that age could do so. That would be mandatory for 16 and 17-year-olds, but not for adults. Amendment 128 is well intentioned, but my amendment 71 is much more specific and links to earlier amendments that were agreed to on support and advice at the point when people make an application. To an extent, that has tightened up the bill.

That is all that I have to say, which was enough.

I say to Maggie Chapman that I agree that the majority of people know their own minds—and I have met some of them. Many people have been living in a different gender for a long time before they ever apply for gender recognition. That is the majority, but there are other people who will be transitional and will need a period of thought. I am looking at the balance. For those who already know and who have already been living in a gender for years, a three-month period will be nothing, because they can demonstrate that they have been doing it for years. The same applies to 16 and 17-year-olds, with regard to the six-month period in advance and the reflection period.

However, there are people for whom I want to have just a little safeguard, and particularly 16 and 17-year-olds. In no way does that take away from the autonomy of the individuals. I have met parents of a child of 10 who knew that they were really a girl—he transitioned to a she in primary school. I have talked to people in both directions about the issue before I lodged my amendments. I want to have something in law that works for as many people as possible and that provides safeguards. That is the reason that I would give to Maggie Chapman. We cannot take away all protections and safeguards.