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Christine Grahame makes the important point that there has been cross-party support for aspects of various amendments, which is a good thing. I have said previously, have said today and will say again that my door remains open for further discussions in advance of stage 3. I feel, and I hope that others feel, that I have had constructive discussions, and where I have been able to support and work with people on amendments—

I welcome the conversations that I have had with Pam Duncan-Glancy about amendments that would require the statutory declaration to include confirmation that the applicant understands that making a false statutory declaration is an offence. It might be circular for the declaration about understanding that making a false declaration is an offence to then be subject to the offence provision itself, but I consider that Pam Duncan-Glancy’s amendment will be an additional measure in ensuring that the applicant is aware that making a false statutory declaration is an offence, just as the notary public or justice of the peace who is administering the statutory declaration is required to ensure that the person understands the contents of what they are signing. Therefore, I ask the committee to support amendment 122.

It is already an offence to knowingly make a false statutory declaration, with the maximum penalty for the offence being imprisonment for up to two years, an unlimited fine, or both. The offence provision in section 14 of the bill also already provides that an offence is made if the declaration or other information in an application

“is false in a material particular”,

and the position is the same for the existing offence.

The amendments that are proposed by Graham Simpson would require ministers to make regulations about what would constitute a false statutory declaration and the evidence that would be required. As the committee will be aware, prosecutorial policy is for the Lord Advocate rather than for ministers. As with any criminal offence, it would for the police and the procurator fiscal to demonstrate, and for the court to determine, whether an offence had been committed in any individual case.

Graham Simpson made reference to living in the acquired gender, but the point here is that there is no change to what living in an acquired gender means. It is exactly the same as it is under the 2004 act. The requirement is not about looking or dressing a certain way; it is about the ways in which a person might demonstrate their lived gender to others. In that respect, the bill does not change the position under the 2004 act, under which examples of appropriate evidence of living in the acquired gender include updating official documents, such as a driving licence or a passport, utility bills or bank accounts. A number of other examples are given in the 2004 legislation.

With all of that said, I urge the committee not to support amendments 22 and 28.

Amendments 2 to 17, in the name of Sue Webber, are obviously not in keeping with the general principles of the bill as agreed to at stage 1 by the majority of the committee and by a clear majority in Parliament, including members of all parties.

Amendment 26, in the name of Rachael Hamilton, which presumes that Sue Webber’s amendments will be agreed to, would remove the requirement for medical reports submitted to a gender recognition panel to include details of treatment that the applicant has undergone, is undergoing or has had prescribed or planned for them for the purpose of modifying sexual characteristics. The other requirements of the 2004 act that relate to medical reports would remain.

Rachael Hamilton asked a question about international evidence. The committee itself looked at that. One of the people who gave evidence was the United Nations independent expert on protection against violence and discrimination based on sexual orientation and gender identity. The expert gave evidence that some of the theoretical concerns that were raised during the adoption of those processes have not materialised in the numerous countries that have implemented similar systems. The committee’s stage 1 report noted that the majority of members recognised that

“when asked about evidence of abuse and concerns, no witness was able to provide concrete examples.”

In short, Parliament has shown its support for the principles and purpose of the bill, which, as the long title shows, aims

“to reform the grounds and procedure for obtaining gender recognition; and for connected purposes”.

I urge members to vote against these amendments.

I will take a moment to set out the process, as I have done in writing for the committee.

Before making an application to the registrar general for Scotland, a person must first make a statutory declaration. In that statutory declaration, the applicant must declare that they are aged at least 16; were born in, or are ordinarily resident in, Scotland; have lived in their acquired gender for at least the previous three months, or six months for 16 and 17-year-olds; and intend to live permanently in their acquired gender. A statutory declaration is an existing feature of the current process for obtaining legal gender recognition, and a feature that we are maintaining in our system.

A statutory declaration is a serious and significant matter. In Scotland, statutory declarations under the bill will be made in the presence of a notary public or a justice of the peace. Guidance on acting as a notary public is provided to solicitors by the Law Society of Scotland. The notary must be satisfied as to the identity of the applicant, based on evidence if the person is not known to them, and they must be satisfied that the applicant understands the contents of the statutory declaration. That could require photographic identification, such as a passport or a driving licence.

A statutory declaration is like an affidavit. It is a formal statement that something is true to the best of the knowledge of the person who is making the declaration. It is provided for by the long-standing Statutory Declarations Act 1835, and it is an accepted way of establishing facts in numerous official contexts.

It is a criminal offence to knowingly make a false statutory declaration or to provide false information in an application. The maximum penalty for those offences is imprisonment for up to two years or an unlimited fine—or, indeed, both.

Once a person has made the required statutory declaration, they must provide that to the registrar general when they make an application for a GRC, with all the safeguards associated with that stage.

I welcomed the discussion that I had with Michael Marra about his amendments. However, I consider that the statutory declaration is sufficient. Michael Marra’s amendments would not materially add to the requirement to make a statutory declaration; indeed, as others have said, they would be further barriers for a person accessing their rights, with a prescriptive list of recognised professions in amendment 48.

I have concerns about the countersigning requirement and how it might work in practice. For example, if an individual has been living in their acquired gender for a long time, that might require them to disclose their trans status to someone whom they have known for years who may be completely unaware of that.

I understand that applying for a passport involves a countersignatory process. However, applying for a passport does not involve making a statutory declaration. As I said, that statutory declaration could well require photographic identification, such as a passport or a driving licence.

Finally, the statutory declaration is clearly a higher threshold, given that criminal offences are associated with it.

Notaries public are quite often solicitors, and justices of the peace can sometimes be city councillors. They are well established in a number of pieces of legislation, and the Law Society of Scotland provides guidance to solicitors who act as notaries public.

Justices of the peace sometimes are city councillors, I think.

My officials tell me that that is correct.

We will try to provide as much information as possible, but that will be based on what is already in the 2004 act and on those examples. We want to provide people with as much clarity and information as possible. The registrar general’s website will have all of that information.

The committee’s stage 1 report asked for clarity on the phrase “ordinarily resident in Scotland”, and we provided that in our response. For today’s purposes, therefore, I reiterate that “ordinarily resident” is an established concept in several areas of law. As Tess White indicated, it is used in at least 17 acts of the Scottish Parliament and in many more UK acts, including section 3C of the Gender Recognition Act 2004, which, in relation to Scotland, enables certain persons to apply under an alternative track for a GRC if they are in a marriage that has been solemnised in Scotland or a civil partnership that is registered in Scotland. One of the conditions for such an application is that the applicant is “ordinarily resident in Scotland”.

Amendment 115, in the name of Pam Duncan-Glancy, seeks to include in the definition of “ordinarily resident” a person who is seeking asylum in Scotland. I am, of course, very sympathetic to the concerns that were expressed during stage 1 about the possibility that asylum seekers who live in Scotland might not meet the requirement of being “ordinarily resident”. However, an asylum seeker seeks asylum not in Scotland but in the UK, through immigration laws, which are reserved.

As I have just said, “ordinarily resident” is an established concept in law, and it is the case that, under the UK asylum and immigration system, some asylum seekers may not meet that test. Asylum seeker applicants who are not ordinarily resident in Scotland and who were not born in Scotland have a tenuous connection with our jurisdiction, which raises an issue of competence. In addition, case law has confirmed that a failed asylum seeker is not “ordinarily resident”, because they do not meet the requirement that their residence is lawful. In correspondence to UK ministers, I have highlighted the committee’s comments about asylum seekers, and I await their reply.

However, a route is open to asylum seekers to gain legal recognition. Although they may not meet the residency criteria in our process, they may be able to apply under the 2004 act as it applies in the remainder of the UK, as that does not specify a requirement for someone to be ordinarily resident in the UK.

For those reasons, therefore—unfortunately—I ask the committee not to support amendment 115.

Amendment 116, in the name of Tess White, seeks to strictly define the term “ordinarily resident in Scotland” as being limited to those persons who have been living or who intend to live in Scotland for a minimum period of one year. Having an intention to live in Scotland does not satisfy the test of being “ordinarily resident”. Tess White’s aim of redefining the term goes beyond the criteria that are established in law, against which an individual’s circumstances are assessed to establish whether they are ordinarily resident: namely, that their residence here is voluntary, is for settled purposes and is lawful—without the need to establish a particular period of residence. For those reasons, I urge the committee not to support amendment 116.

As I said, the justice secretary will put that into place before the bill is enacted, so it will be in advance.

No. That is why I said that, in practice, that would be established through a letter from the applicant’s doctor confirming that the person is

“gravely ill and not expected to recover”,

and that the detail of that would be set out in guidance. It would not be for the registrar general to decide; the decision would be made on the basis of the clinical information provided to the registrar general.