Stage 3 of the Gender Recognition Reform (Scotland) Bill: background and resources

grayscale photo of a number three

Stage 3 of the GRR(S) Bill is scheduled for Tuesday 20th and Wednesday 21st December. The parliamentary website for the Bill at Stage 3 is here. The full detailed guidance on rules for Stage 3 of a Bill are available from para 2.128 here.

Day 1: Amendments

The first day is the amending stage. The session will start after other business programmed from 2pm, when business starts, is completed. It has been timetabled to finish at 8pm. We understand that MSPs could vote to finish later, if more time is needed.

The version of the bill MSPs will discuss is the one as amended at Stage 2, here.

The amendments that have been allowed for debate are available here. There are 139 in total.

What are MSPs allowed to change?

We have been told that any amendments that would change the effect of a GRC are “inadmissable”, that is, not allowed, because they are not relevant to the purpose of the Bill (sometimes described in shorthand as being “outside scope”).

The Bill’s purpose is being interpreted as being strictly limited to considering who may obtain a GRC and how they may obtain it, and some very limited connected matters. It excludes making any change to what a GRC does. The Presiding Officer decides what is admissible, although this may often involve some consultation with whoever is promoting a Bill (in this case, the government) about how to understand its purpose.

This means MSPs are being asked to consider legislation which makes a radical change to the size and nature of the GRC holding population, and how easy it is to join it, without being able to consider whether the detail of a GRC’s effect remains appropriate. That includes, for example, the privacy protections, designed for a much smaller, more tightly defined population. We think this restriction is an obstacle to making good law.

We anticipate that the government will argue that those who supported the Bill’s principles at Stage 1 in effect agreed to this limtiation, although equally the government did not spell out explicitly that no amendments relating to the effect of a GRC would be permitted.

How the debate will be structured

The amendments have been organised into 19 themed “groups”: see here, which lists the same 139 amendments as before, but in the order they will be debated.

Each group is debated in turn, so that Stage 3 will in effect be 19 mini-debates. Every MSP who has an amendment included in a particular group can speak in that group. Conventionally, the Minister also speaks, even if there are no government amendments in the group, to explain why the government is supporting or opposing any non-government amendments. Any members can also ask to intervene in the debate at any point with a relevant question or point. It is up to the person speaking at the time whether to allow them to do so.

Government support

Some amendments put down by opposition MSPs will have been drafted by government lawyers, if the MSP has had a successfull discussion/negotiation with the government on a topic. Sometimes these stand out by having substantial detailed technical content (amendments 40 and 114/115 look possible candidates). The clearest indication of any such amendments will be that they have government support on the day. Sometimes a government will support opposition amendments it has not helped to draft, but on this Bill that seems relatively unlikely.

Voting and timing

MSPs decide whether to press their amendment to a vote. They will not do so in all cases. Some amendments will be down simply to provide a hook for getting the Minister to clarify a point (“probing amendments”). At Stage 3, unusually at Holyrood, votes are taken as the debate progresses, not all at the end of the session.

Given the number of amendments and groups, and the need to allow for speaking and voting time, the 8pm finish on Tuesday looks like a demanding timetable.

Briefings sent to MSPs

Our Stage 3 briefing is avaiilable here.

We have also seen the briefing for MSPs from the Equality Network/Scottish Trans and Stonewall (they do not appear to published; we will add links if they are). Both briefings provide MSPs with detailed voting advice on each of the 139 amendments.

The response to amendments 113, 127 and 130 is worth particular attention. Amendments 113 and 130 both provide that nothing in the Bill affects how sex should be interpreted in the Equality Act. Amendment 127 is about the specific provisions of the Act which allow single sex services to exclude (or provide seperately for) those with gender reassignment, whether or not they have a GRC, and says these will continue to apply in Scotland, including to those with a Scottish GRC.

The Equality Network states, “We are very concerned that these amendments could wreck the entire bill, by placing it outwith legislative competence, because the Equality Act is reserved.” Stonewall also suggests they are outwith legislative competence.

We think the reference to legislative competence misunderstands the law. There is nothing in the Scotland Act 1998, as far as we can see, which prevents the Scottish Parliament from legislating specifically that a piece of devolved legislation has no effect on a reserved measure or its interpretation. Indeed, such amendments would at first sight appear more likely to protect against legal challenge.

The use of “wrecking” – an unusually strong argument – against the amendments is therefore worth noticing. The context for it appears most likely to be the ruling in favour of the Scottish Government last week, that a GRC changes a person’s sex for the purposes of the Equality Act. The Equality Network submitted a supporting statement to the court on the government side. The rationale offered for opposing these amendments suggests to us a significant concern to avoid any risk that anything might pass which has any potential whatsoever to interfere with the court’s ruling.

The tight approach taken to admissibility of amendments also, however, suggests to us that any amendments that have been accepted for debate must already have been assessed by the parliament’s (and possibly the government’s) lawyers as having no effect on the effect of a GRC. That is also the most obvious lay reading of the words in each case. The “wrecking” rhetoric here therefore seems at odds with their likely nil legal effect.

Day 2: Final debate

This is the point at which the Parliament decides whether to give the Bill final approval. It has no published fixed start point and will take place after other business starting at 2pm has completed. That looks likely to take at least an hour to complete. There is then other business to fit in after the Stage 3 debate, before Decision Time at 5.45pm. The final vote on the Bill will be taken then, along with other votes from earlier business.

The shorter the slot for the Stage 3 debate, the higher the proportion of the time will be devoted to frontbench speakers from the various parties, and the less opportunity there will be for backbench speakers. A shorter debate will therefore tend to skew contributions towards those supportive of the Bill, given how the parties at Holyrood have positioned themselves so far.