The Scottish Parliament cannot legislate in contravention of the European Convention of Human Rights (ECHR). At the time the Gender Recognition Act 2004 was passed, it was viewed as necessary for ECHR compliance and this appears to remain the official position. In the later stages of the Gender Recognition Reform (Scotland) Bill’s passage, the Scottish Government’s response to several opposition amendments seemed to imply that the Bill would revoke access for those living in Scotland to the current system for issuing Gender Recognition Certificates (GRCs) without fully replacing it. That in turn suggested a possible problem with ECHR compliance, as currently understood, and thus legislative competence.
This blog discusses our correspondence about this with the Scottish Human Rights Commission (SHRC) last December, some of which has since been released in response to a freedom of information request from a third party, and discusses how the issue was addressed at Stage 3.
Correspondence with SHRC
Comments made by the Cabinet Secretary at Stage 2 of the Gender Recognition Reform (Scotland) Bill, in response to opposition amendments, implied that people living in Scotland who would currently be eligible to apply for a GRC from the Gender Recognition Panel under the Gender Recognition Act 2004 would lose the ability to do so under the new Scottish regime.
It had become clear at the end of June that the Scottish government believed that GRCs issued by the Registrar General for Scotland would not be automatically “recognised” elsewhere in the UK and that this would require a separate decision at UK level. So, for example, those living in Scotland but born elsewhere in the UK would be not able to use a GRC obtained in Scotland to obtain a new birth certificate, unless and until any further action was taken at Westminster to enable that.
It appeared to us that coupling loss of access to the existing scheme with this line logically suggested that the Bill of itself would reduce the rights of all those living in Scotland and currently entitled to apply for a GRC, by cutting off their existing access to a GRC with full effect across the UK. That in turn appeared to raise a potential ECHR issue and risk the Bill falling outside legislative competence. We took the view that we should flag this up while there was still time to address it, if need be.
The effect of the Bill’s drafting on this point was, however, difficult to understand and we were not fully confident in our reading. Not wishing to set off alarms in government, parliament, or more generally if we were wrong, conscious it affected a group whom others already had a locus to represent, and being short of resources ourselves, we decided to draw this to the attention of the Parliament’s relevant expert advisers, as being better placed to take it forward, if they agreed there was a problem.
As it raised a possible issue of ECHR compliance, we raised it with the Scottish Human Rights Commission, whose general contribution to the Bill process we have considered here. We wrote to Ian Duddy, its Chair, on 5 December. Our letter, linked here, set out in detail the issue as it appeared to us. On 15 December the Chair wrote back. He declined to take any further action, stating that the Commission ‘is unable to give legal advice to individuals or organisations’. His letter is here.
We had not sought legal advice, nor were we reassured the response otherwise addressed the substance of the matter, and we said so in a response sent on the same day.
… For the avoidance of doubt, we were drawing to your attention a matter that appeared to us to fall within the Commission’s remit, not seeking advice. How the Commission fulfils its remit is of course a matter for the Chair and Commissioners.
Similarly, the issue drawn to the Commission’s attention is that the Bill appears to withdraw access to the existing UK scheme regardless of whether any alternative method of obtaining UK-wide gender recognition is in place, rather than that the UK Government might not recognise GRCs issued in Scotland.
We are not clear if the Commission’s position that the Bill does not raise an ECHR issue is because it does not think the Bill removes access to the UK system, or, because it thinks that such removal would not raise an ECHR issue for the Bill. Past submissions by the Commission do not engage with this specific point, to the best of our recollection.
We were however interested in your observation that, “Once concrete decisions have been taken and communicated, it would then be possible to assess ECHR compliance of those decisions.” Seeking to check our understanding here, we have been directed to the Supreme Court’s decision in the Continuity Bill Reference, where competence was judged as applying at the point the Bill received Royal Assent, unless the provisions have some conditional future effect. No such effect is included in the Bill as drafted.
We understand that such a gap might still be met by an expectation that remedial action will be taken before an Act receives Royal Assent (of which there is no indication here), or if a provision’s coming into effect is going to be postponed, until such time as any remedial action has taken place. The attitude of a court here might though be affected by how confident it is that the needed remedial action at a UK level is happening. The UK government’s position here however remains unconfirmed and Scottish Ministers have in any case not stated any intention to defer implementation unless and until UK recognition is achieved.
That suggests to us that if the Bill does withdraw access to the UK scheme and that does indeed make the Bill itself ECHR non-compliant, then amendments that make the introduction of the Scottish scheme contingent on recognition, or to retain access to the UK scheme, would be needed to avoid ECHR non-compliance.
As before, the Commission is the body retained to provide legal expertise to MSPs in discharging their human rights responsibilities and will take its own view. However, as it is still possible for emergency amendments to be laid to the Bill, we are replying quickly in case clarifying the point above is relevant to the Commission’s assessment of how it should discharge its responsibilities here.
The Commission responded on 23 December, as part of a separate query we had made in relation to the SHRC view on the ability of women to set boundaries based on sex. In respect of ECHR compliance, the SHRC response stated:
The Commission is unable to comment on the future outcome of intragovernmental discussions between the UK and Scottish Governments.
Stage 3 debates
In our Stage 3 Briefing note, sent to all MSPs, we noted our concern that the Bill appeared to remove access to the existing GRC system for those living in Scotland. At this point, it would still have been possible for the government and others to submit late (“manuscript”) amendments to the Bill.
Michael Marra MSP raised this and received the response below (emphasis added).
I will take the opportunity to clarify a point that was raised in a briefing from MurrayBlackburnMackenzie that has been received by MSPs, which says that it is unclear whether or not the bill will remove access to the UK’s gender recognition panel for people who are living in Scotland. Could the cabinet secretary clarify whether people who are living in Scotland will be able to continue to obtain a GRC from the UK’s gender recognition panel, or will that route be closed?
People who are living in Scotland will be able to do that until the bill is enacted. Obviously, there will be delay before the bill’s commencement, once it has been passed into law. Until that point, the UK route will be open to people and, once the bill has been enacted, there will be a new route available.
Whether or not the register entries in the rest of the UK will be updated is a matter for the UK and Northern Irish Governments, which is another important point that I should make. Provision for sharing GRCs can still be made in a section 104 order, if that is agreed to. On Monday, I met the UK Minister for Women and Equalities, Kemi Badenoch, and we agreed to continue to work together constructively on those matters. I am sure that that will continue to be the case.Meeting of the Parliament: 21/12/2022 | Scottish Parliament Website
A timeline of contact with the UK government published later by the Scottish Government suggests that the UK Government was surprised and concerned about this comment. The timeline included this entry, dated 22 December, the day after the response above was given:
Kemi Badenoch writes to Shona Robison asking for urgent clarification (by 1pm that day) that the UK system would remain open to those in Scotland. Shona Robison’s private office replied confirming this is the case and Ms Robison stated this in the Chamber that afternoon.
The Cabinet Secretary included this at the start of her speech opening the final Stage 3 debate on 22 December.
The bill provides a new and improved route to legal recognition in Scotland, but the existing process will continue to be available across the whole of the United Kingdom. The bill does not remove the ability of someone who lives in Scotland to apply under the existing GRC process; it will still apply in law in the rest of the UK once the bill’s provisions come into force, as the requirements in the 2004 act are not restrictive based on where someone lives.
If the United Kingdom Government chooses not to recognise GRCs issued in Scotland, it will be particularly important that the existing system remains open to people in Scotland—for example, someone with an English birth certificate who lives in Scotland must have a route to be able to update that birth certificate in line with their acquired gender. I add, though, that I hope that the UK Government does not choose to take that step.
If we are repealing parts of the Gender Recognition Act 2004 in the schedule, does that not have the effect of removing the access that the cabinet secretary talks about?
No; both routes will be open to people once the legislation is enacted.Meeting of the Parliament: 22/12/2022 | Scottish Parliament Website
It appears that our original concern raised with the SHRC was well-founded.
The Scottish Government making contradictory statements about a substantial point less than 24 hours apart, in the final hours of the Bill process, and not explaining why both positions were consistent with the Bill as drafted, is indicative of its handling of the Bill as a whole. That it had to be prompted to make the second statement at the last minute by the UK government, most probably because of an ECHR compliance concern, does not reflect well on a process that was subject, as we are often reminded, to two consultations and several years’ consideration. We assume that if the SHRC had taken this seriously when we raised it with them, the Cabinet Secretary could have been spared the need to contradict herself in the chamber.
Any challenge on competence would be separate to the issues raised in the current UK government Section 35 Order. None has been made and to the best of our understanding the time for the UK government to do so has run out, so we assume UK Ministers are content to take the ministerial statement on 22 December as enough to address their concerns.
Assuming that the issue had been dealt with at Stage 3, we did not plan to do more with this. However, the SHRC has since advised us it has released our side of the correspondence as part of a Freedom of Information response. For that reason it feels appropriate to bring together all our correspondence with the SHRC and the later statements made at Stage 3, so that the full story is easily available in one place.
Updating note: extracts from the Official Report
For ease of reference, we have added below the discussion of ECHR incompatibility at Stage 2 which led us to believe access to the UK scheme might be being withdrawn. We have also included the further discussion of ECHR issues at Stage 3, which shows the Cabinet Secretary declining to expand on the nature of the Scottish Government’s concerns.
At Stage 2 on 15 November, the Cabinet Secretary, Shona Robison MSP, said:
The Scottish Government considers that amendment 114 is likely to be outwith legislative competence due to its being incompatible with article 8 of the European convention on human rights. A further difficulty is that the ban would depend on when those requirements are imposed. In one case, the requirements could be just about to elapse when an application for a GRC was made; in another, the ban on being able to obtain a GRC could last for a considerable number of years.
Amendment 114 would have prevented any person on the Sex Offenders’ Register from obtaining a GRC. For other amendments to which an ECHR objection was raised at the same time (127, 119 and 113) more detail was provided of the nature of the perceived problem. She made no other comment on the perceived ECHR issue with 114. The absence of any similar argument regarding 114 appeared to us to leave the most obvious explanation being that it would remove from the whole of the group concerned all access to any sort of GRC, and that that could only be because the UK route had been closed.
The following week, still at Stage 2, she added only:
When we discussed these amendments, I explained why a blanket ban is not ECHR compliant. I went into that in some detail, for all the reasons that I am sure that Pauline McNeill and others will understand.
At First Minister’s Questions on 1 December 2022, the then First Minister, Nicola Sturgeon MSP, commented on this, again without providing further detail, saying
We consider that the amendments lodged by Russell Findlay would not be compatible with the European convention on human rights…We are taking these issues seriously, but we are seeking to proceed in a way that will ensure that the bill is compliant with the European convention on human rights.
On the first day of Stage 3, 20 December, Russell Findlay MSP, commented
When I met with Shona Robison—a meeting for which I was grateful—she advised me that my previous approach might have been incompatible with the ECHR, although she was unwilling to share the legal advice on that. [col 79]
At Stage 3 a further amendment (39), put forward jointly by Michelle Thomson MSP and Mr Findlay, would have prevented a person awaiting trial for certain sexual offences from obtaining a GRC by self-declaration under the Bill. These and other amendments were the subject of a letter sent the evening before to various members, asking them to withdraw amendments the Scottish government believed to be outwith legislative competence, due in part to ECHR incompatibility. In discussing this point, the Cabinet Secretary repeatedly refused to be drawn on the specific reason ECHR related problems were anticipated. Although the Cabinet Secretary suggested at one point that further detail on the arguments related to ECHR would be shared in discussing a later group of amendments (Group 13), no reference to the ECHR was made in that part of debate, the following day (there was discussion of legislative competence, in relation to the Equality Act, relevant to other amendments the government has asked to be withdrawn).
Shona Robison: I cannot share the detailed legal advice that I have received, but I think that Russell Findlay would acknowledge that I was very clear with him and others when I thought that amendments were outwith the competence of the Parliament or in breach of the ECHR. The letter, which was sent to members at about 19:41 last night, was to put beyond doubt that those amendments would put the bill in jeopardy, because we all have a duty, as legislators making good law… What I set out in that letter could not be clearer in that regard.
Russell Findlay: I think that it actually could be clearer. The letter seemed to suggest that there is a risk of non-compliance, but what the cabinet secretary appears to have said in the chamber is that it would be an absolute non-compliance. Can the cabinet secretary clarify which it is, please?
Shona Robison: I can only say that it was a risk because it would then depend on the action that was taken in a court process, but we have been here before with legislation when ministers have been very clear to Parliament that an amendment is either outwith competence or is in danger of breaching ECHR, and we have ended up in court because of those issues. [col 92-93]
Daniel Johnson: We have had a discussion about the fact that it is the cabinet secretary’s opinion that these amendments are not legal, but she has not detailed on what specific grounds the Government considers that to be the case. She is saying that the grounds are detailed in her letter, but, as I am not aware that the letter is a matter of public record—it is certainly not here before the Parliament—could she explain why she believes that these amendments fall foul of ECHR?
Shona Robison: I was going to come on to the detail of that in group 13, because there we get more directly into some of the issues that have been raised around these amendments. The letter—which I understand was given to members of the press, as some of it was reported—essentially looks at a number of areas of competence under ECHR: article 8, on the right to private life; article 14, on protection from discrimination; and so on. I intended to go into more detail on that under group 13.
I should also say, of course, that it is not my opinion. I am not a lawyer. I have to go by what the law officers tell me in terms of the legal advice that I am given. I am not at liberty to share the detail of that advice and can only share the generality.
Daniel Johnson: I understand that, but ultimately we will have to vote on these amendments before some of those issues will have been elucidated by debate in group 13. Although the minister has cited particular articles of the ECHR, she has not detailed precisely why
these amendments fall foul of those elements of the ECHR. I do think that Parliament requires to understand the Government’s thinking before we vote on these amendments.
Shona Robison: Members are aware that I am constrained from disclosing the details of the source of the legal advice that has been provided,
not least by the ministerial code. We routinely obtain legal advice on the competence and effect of amendments to any bill. It is the same for these amendments as it is for the advice on the competence of any amendments to a bill that are lodged. [col 93-94]
Shona Robison: The amendments in the name of Russell Findlay, as I set out in some detail when speaking to similar amendments at stage 2, are, I believe, disproportionate. We also consider that there is, as I have set out, a significant risk that they would be incompatible with ECHR and, as such, there is a risk that they are outwith legislative competence. I do not support them…. [col 94]
Russell Findlay: …I found the selectivity in that regard to be revealing and rather superficial, as I did the whole issue of ECHR compatibility. That seems to have been pulled out of the hat late in the day, perhaps in order to cause some members to have a bit of a wobble.
Shona Robison: The member says that the issue of ECHR compatibility has been pulled out of the hat late in the day. Will he acknowledge that, at every stage of the process, including in all the meetings and at stage 2, I made it very clear that there were issues with his amendments around ECHR compatibility?
Russell Findlay: I do, indeed, acknowledge that issues were raised around compatibility, but what seems to be unclear, from the to-and-fro that I had with the cabinet secretary earlier, is the nature of the issue. Is it a risk or a noncompatibility? One minute, it is black and white; the next minute, it is shades of grey. I am none the wiser, and I think that some other members feel the same way. [cols 100-101]
The vote on amendment 39 was tied, and by convention the Deputy Presiding Officer used his casting vote to reject it [col 251 here].
At First Minister’s Questions on 22 December, the then First Minister commented that
The reasons for our not accepting Michelle Thomson’s and Russell Findlay’s amendments yesterday [sic] were set out at length by Shona Robison. Having carefully considered the amendments, we found that they would not have been compatible with the European convention on human rights, which all our legislation has to be.