Seòmar agus comataidhean

Convener, I was pleased that you made reference to the fact that, sadly, Henry Black Ferguson, the petitioner, has passed away. It is fitting that I say a few additional words.

Mr Ferguson was an accountant who went to work in the Bahamas and was the chief executive officer of an airline company, but he never lost his love for Scotland, and his commitment to the cause of independence for Scotland was absolute. He was the co-convener of Respect Scottish Sovereignty, and he pursued the petition doggedly—along with many others, some of whom, I should acknowledge, are in touch with me—attracting 7,500 signatures, which is a significant number.

At its heart, the petition is about the principle that is set out in article 1 of the covenant, which Ewan Kennedy quotes in his submission:

“All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.”

I hope that we would all support and endorse that principle in its entirety. However, the implementation of it in Scots law has become ensnared—a matter of principle has become ensnared—in an entirely technical issue; namely, interpretation of the Scotland Act 1998. I am no expert, but I understand the argument that section 30 of the Scotland Act 1998 allows matters to be devolved. That, in turn, requires the permission of the UK Government, which is the superior Parliament in the devolution arrangement. In short, that is where we stand.

This is an argument that a cause that will never die will continue until it is successfully achieved. I pay tribute to Mr Ferguson and all the petitioners, but we are plainly not going to get any further with the petition in this parliamentary session. Although we might have a dream, we are also pragmatists, and that dream will not be achieved in the immediate future. However, thanks to Mr Ferguson’s and others’ dogged pursuit of the cause, we shall prevail one day, if I may be permitted to make that assertion.

I think that we have little alternative but to close the petition, for the reasons that we have discussed before with regard to the limited time that is available in this session of Parliament, and on the basis that the Scottish Government has indicated that it considers the petition’s ask to be not practical and achievable only in part.

The Government’s response makes it clear that ministers are not responsible for reviewing the guidelines or procedures, and amending the 2017 regulations is not considered to be a practical solution to addressing wait times. Moreover, introducing case progress and hearing timelines in primary or secondary legislation would require consultation and comes with cost and resource implications. The Government also points to steps that have been taken in conjunction with the SCTS to address the underlying practical reasons for wait times, including the recent appointment of additional members to the First-tier Tribunal.

That is the Scottish Government’s position, and it is not reasonable to expect that there will be any change in that position between now and the end of the parliamentary session. One might expect the additional members to the First-tier Tribunal to reduce wait times, simply by the fact that there will be more people to deal with cases. That is to be welcomed.

However, if members agree to close the petition, I recommend that the petitioner might wish to see whether the changes have impacted favourably or not, and then think about bringing the petition back in the next session of Parliament, depending on the answer to that.

No ifs, no buts.

I appreciate that you, as chief constable, are not responsible for decisions that are for the Scottish Prison Service to make. The SPS has a process that it says is used to assess whether a biological male self-identifying as a female is housed in a male or a female prison, and in what circumstances, such as confinement, segregation from others and so on. I appreciate that you are not responsible for that. However, I want to put to you a point that the petitioners have made. They are looking to the Scottish Government, and to your good self, for leadership on this.

What I am driving at is that, if you record the biological sex of a potential offender but treat that person as the gender that they wish to be recognised as—we will just stick with the example of a biological male self-identifying as female—does that not open a gateway whereby it facilitates the Scottish Prison Service to conclude that it is safe for a biological male to be placed in female prisons? Are you not inadvertently and unwittingly facilitating that outcome by not only recording a person’s biological sex but treating them according to their self-identified gender?

I am talking about males, principally, but you see my point. Although it is not your decision in which prison—male or female—people are put, if you treat a man as a woman, it is no real surprise if that man ends up in a female prison. I am not at all alluding to any on-going court action; I am purely talking about the principle so that we do not get into any sub judice or prejudice territory. As chief constable, do you need to go further in providing leadership to set out that biological males should not, in fact, be housed in women’s prisons?

I support Mr Torrance’s recommendation and add that, as the petitioner points out, the number of people—they include my partner—who happen to have a latex allergy is not inconsiderable. It is between 1 and 6 per cent of the population. Like many allergies, it can have very serious consequences.

I am surprised, in a sense, that the issue has not been dealt with in the packaging world, which is normally fairly good at dealing with this kind of thing. Perhaps it is something that really needs to be dealt with, and I thought that we could stress as much in our letter.

Good morning. My understanding now, from listening to the deputy chief constable, is that the position of the police fundamentally changed as of October this year. Unlike the position beforehand, which was based on the 2019 policy, the biological sex of every potential offender will be recorded. Is that right?

I started off somewhat sceptical. However, having listened to what Mr Marra said and having refreshed my memory of what has been said, I believe that it is apparent from the evidence that—as the petitioner has made clear from the outset—there have been between 200 and 400 investigations in England each year into deaths abroad, whereas, in Scotland, there have been zero investigations. I looked again at the cabinet secretary’s submission of 26 May, to see whether there was any explanation for that, and the only explanation was that, in essence, it is difficult to hold an inquiry when you do not have jurisdiction. However, that is the case for England and Wales as well, so it is not an explanation.

The petitioner wants there to be a statutory definition of residency, which may be one solution. The Law Society of Scotland says that that is not necessary. However, I wonder whether the wider problem is that the authorities in Scotland are simply averse to having such investigations altogether for practical reasons—and there are practical reasons; we recognise that.

For the people for whom this matters, it matters greatly. When someone loses a loved one abroad in circumstances that are unexplained, that will linger forever. It is a serious matter, and the cabinet secretary has not really answered the points that have been raised, so we should go back to the cabinet secretary. It is a bit like being asked to do an exam paper and saying, “Well, I don’t agree with any of the questions, but will you give me a pass mark?” It is not on.

We are here again and again, in the same situation with cabinet secretaries, Mr Marra. It is unlike Ms Minto this morning, who I thought was excellent in her responses. I am not making a blanket criticism, although it is not rare for me to criticise the current Government. However, on this occasion, the lack of a basic answer is an insult to the petitioners and to the committee. I certainly do not think that the petition should be closed—I am sorry if that is not the view of other members—but I am not sure whether we should go so far as to take evidence, because we just need some clarity.

If we are going to approach the chief constable, we should also approach the Lord Advocate, because, if I am correct, she has the final say in such matters—I could be wrong about that. I had a meeting with the Lord Advocate about the inadequacies of the FAI system in Scotland, and she was very aware, attuned and involved in trying to improve the process. I would certainly want to involve the Lord Advocate as well as the chief constable if the committee were to agree to that approach.

As well as the biological sex of the potential offender, will there be recording of any self-declared gender if it is different from the biological sex? In other words, if a biological man says, “I identify as a female”, would that also be recorded?

Which other bodies, chief constable?

Is that the only body that you are waiting for?