Statutory declarations and even muddier waters

In rebutting criticism of its proposals to reform the Gender Recognition Act 2004 the Scottish Government has placed considerable weight on the provision that requires applicants to make a statutory declaration confirming their intention to permanently live in their ‘acquired gender’. Knowingly making a false declaration constitutes a criminal offence. 

This appeal to solemnity was accepted by the majority of Scottish Parliament Equality, Human Rights and Civil Justice (EHRCJ) Committee members:

The majority of the Committee supports the removal of the requirement for any medical evidence or diagnosis, in line with a self-declaration model, believing that trans people know their own minds… They further believe that the legal status of a statutory declaration (a witnessed, legal oath), the gravity with which such declarations are made, and the fact that making a false statutory declaration is an offence, together create a robust process for accessing a GRC that is in line with international human rights best practice…

EHRCJ Committee 2022: para. 173

Several amendments subsquently put down at Stage Two, including some lodged by the Scottish Government, have sought to make the provision more robust or to provide more clarity. For instance, by requiring a counter-signatory to the declaration (Scottish Labour MSP Michael Marra) or requring the Scottish Government to provide provisions on what would make a false declaration (Scottish Conservative MSP Graham Simpson).

Following a meeting between Cabinet Secretary Shona Robison and Labour MSP Pam Duncan-Glancy earlier this month, Ms Robison recently provided further written information about the statutory declaration. Given that Ms Duncan-Glancy is a prominent supporter of the Bill and an EHRCJ Committee member, the letter is most likely aimed at providing reassurance for other Scottish Labour MSPs. Emphasising the apparent gravity of the declaration, Ms Robison explained: 

A statutory declaration is an existing feature of the process for obtaining legal gender recognition, and the retention of this requirement has been a feature of the Scottish Government’s plans for reform of the process for obtaining legal gender recognition since the first public consultation in 2017. We are of the opinion that retaining the requirement for a statutory declaration ensures the process will continue to be as serious and significant a step as under the current system.

Cabinet Secretary for Social Justice, Housing and Local Government to Pam Duncan-Glancy MSP, 7 November 2022

A recent article published in The Scotsman by Scots Trans manager Vic Valentine pressed this point further, noting ‘there has been a lot of misunderstanding of what the new process might look like. It would continue to be a serious legal step, with a process that reflects this’.

Under the existing 2004 Act the statutory declaration is supported by additional safeguards, most significantly, a diagnosis of gender dysphoria. These are however stripped out in the Gender Recognition Reform (Scotland) Bill, leaving the statutory declaration, along with a provision that makes it a criminal offence to make a false declaration, as the only safeguard against abuse.

The letter from Ms Robison also details the legislative background and process, including who may act as a witness.  

A statutory declaration is similar to an affidavit, and is a formal statement that something is true to the best of the knowledge of the person making the declaration. The relevant legislation on statutory declarations is the Statutory Declarations Act 1835. Statutory declarations under the Bill will be made in the presence of a notary public (most solicitors in Scotland are notaries public) or a justice of the peace…

Once a person has made the required statutory declaration, they can then apply to the Registrar General for Scotland for a Gender Recognition Certificate providing them with their statutory declaration. The Registrar General must issue a Gender Recognition Certificate if the applicant meets the requirements of the Bill, or otherwise reject the application.

The Scotsman article by Vic Valentine states further that a local councillor may act as a witness, although this is not mentioned by the Cabinet Secretary or in the Explanatory Notes accompanying the Bill.

Ms Robison also refers to guidance provided by the Law Society of Scotland to solicitors on acting as a notary public (see here). Under ‘Essential points to remember’, this states that the notary must be satisfied as to the identity of the applicant, and significantly, that they must be satisfied that the applicant understands the contents of the statutory declaration. On the latter point, the guidance notes:

It is essential that the notary is satisfied that the deponent understands what he or she is signing. If the document is short, it is prudent to read over the document to the deponent and ask if he or she understands what is written. Strictly speaking this is not necessary, but if the document is lengthy the notary must endeavour to paraphrase or summarise the contents before signature.

‘The deponent understands the document‘ Law Society of Scotland

The latter requirement appears to place legal professionals in a difficult position, given that the Scottish Government appears unable to define the key terms in the GRR Bill, a point noted by the EHRC in its Stage Two briefing for MSPs. While the same point might be argued in relation to the statutory declaration under the existing Act, under the GRR Bill the responsibility being placed on those acting as notaries is greater, as this is the only remaining safeguard. As a Scottish solicitor commented on Twitter:

The inadequacy of the statutory declaration and attendant criminal offence, as a standalone provision, is well-rehearsed. This includes Scottish Government research which indicates that effective deterrence hinges principally on the certainty of being caught – coupled with the near impossibility of that happening, given that what is true or false in this context hangs entirely on an internal sense of self.

The recent correspondence from the Cabinet Secretary provides no further reassurances for MSPs in this area. In highlighting the requirement that legal professionals need to be satisfied that applicants understand the commitment they are making, it appears that Ms Robison has however, inadvertently drawn attention to yet another area of uncertainty and potential confusion.