Scottish-UK Government contact over the GRR Bill: shedding more light on the process

On 21 January 2023 the Scottish Government (SG) published what it termed a Chronology of Gender Recognition Reform (Scotland) Bill and opportunities for engagement, as an annex to a letter to the Secretary of State for Scotland: available here. The letter was written in response to the Secretary of State informing the Scottish Government of his intention to make an order under Section 35 of the Scotland Act 1998, in relation to the Gender Recognition Reform (Scotland) Bill.

The entries in the Chronology which refer to any contact with the UK Government (UKG) are reproduced below, from the point at which the SG acknowledged the two governments’ approaches diverged, to the completion of Stage 3.

The chronology presented below takes the extract above and replaces the SG’s general reference to official-level meetings, including ‘sharing of a draft Policy Summary for a Section 104 process, thematic discussions of relevant policy areas including pensions and benefits, passports and driving licenses, healthcare, young people, education, etc.’ with the meetings and substantial exchanges revealed in the FOI review response. New entries are shown in bold.

Given the weight placed on the regular official-level meetings during 2022 by the Scottish Government, we were interested to know how formally they had been conducted, at how senior a level, and what was reported to Scottish Ministers.

On 17 April 2023, we submitted a Freedom of Information (FoI) request, asking for information on the dates of the meetings referred to in this entry in the annex, and for each one sight of:

• the agenda
• any papers submitted by SG to the meeting and the date submitted
• minutes and any other records held by SG, including any handwritten notes and internal or external email exchanges, of what was discussed and agreed at these meetings
• any records held of reports to any Minister of what was discussed and agreed at these meetings.

1. First Freedom of Information response: 17 May 2023

On May 17 2023 we were told that the only information the SG could share was the dates of four meetings up to 19 May 2022. The response implied that it did not hold information on the later dates.  It added ‘there were not set agendas or minutes of those meetings’. All other relevant information held by the Scottish Government was deemed to be exempt from disclosure.

The SG had said in its original chronology of events, that these meetings included ‘thematic discussions of relevant policy areas including pensions and benefits, passports and driving licenses, healthcare, young people, education, etc’. However, meetings without set agendas or minutes do not create an audit trail, nor provide a basis for later engagement for those not present. Officials attending these meetings for SG should have been aware of this limitation.

We submitted a request for a review of the FoI response on 1 June, including whether as a point of fact the organisation holds information in any form on: 

• the dates of any other meetings 
• the seniority of the attendees at these meetings (specifically, whether any from either Scotland or the UK were sufficiently senior not to have their names redacted) 
• whether any Whitehall departments were represented other that the GEO and if so which
• the dates on which any of the subjects mentioned in the 21 January letter were discussed, and when any other subjects were
• whether the discussion of any of these was based on papers produced in advance by the Scottish government
• the outcome of the discussions
• whether and when the content of the meetings was reported to Ministers

We also asked for a review of the application of the exemption to all other information than the 4 meeting dates provided.

2. Second Freedom of Information response: 29 June 2023

The FoI review response found, unsurprisingly, that the SG did in fact know the dates of all the relevant meetings, and provided six more dates, in addition to the original four. It did not make clear, however, which meetings were with the Scotland Office (SO) and which with the Government Equalities Office (GEO). (We guess that below, based on other information provided.)

The review response confirmed that the only UK Government departments represented at these meetings were the GEO and the SO (but never both at the same time, from what has been released). In addition, the review response confirmed that no-one at senior civil service level in the Scottish or UK Government was involved in any of the exchanges released. The response also noted that Bill work is routinely run day to day by a team staffed at this level: but left unexplained when, how, or if anyone more senior took an interest at any point in these processes.  

The SG did not provide any information on the dates on which subjects were discussed, or whether any of these discussions were based on papers provided in advance. This information would not obviously be exempt under freedom of information legislation just as a point of fact, particularly given the Scottish Government has already published a list of topics discussed. That leaves as the likeliest conclusion that the informality of these meetings extended to the SG holding no records of when particular topics were discussed and no record of producing any papers to support these discussions.

The review response also extracted some email exchanges between SG officials and UK counterparts in the SO and the GEO. Sections 3 to 5 below look at the information provided in these exchanges in more detail.   

3. Scottish Government meetings with the GEO

The second FOI response showed that most liaison with the UK Government was conducted through the LGBT Team of the GEO, based in the Cabinet Office, with occasional input from a GEO legal adviser. No staff from other UK departments were copied into the emails released.¹ In January 2022, the Minister for Parliamentary Business in the Scottish Government was advised ‘Officials have good relationships with officials in the Government Equalities Office and are engaging with them on this matter’.

In early January, SG officials noted to the GEO that, as already mentioned the previous month, ‘it would be helpful to discuss s.104 and mutual recognition further with legal advisers’ and provided some further information. The GEO replied the following day, saying they wished ‘to take the time to consider this before having any further discussion’ and postponed a meeting already planned to allow for this. A meeting took place on 26 January 2022. No emails have been released relating to this, but it probably explains the email sent to the SO and Advocate General’s Office on the same day (discussed in the following section).

On 2 March 2022, the Bill was introduced. The same day, the GEO wrote ‘We understand you’re introducing the Gender Recognition Reform Scotland Bill tomorrow’. The phrasing suggests that they had not been kept informed about introduction. They continued:

While we’ve discussed some of the details of the proposed Bill previously in our calls, in advance of introduction we also wanted to raise a few questions that it would be great to get responses to to support our thinking, including: (redacted).

GEO, 2 March 2022

The comment that ‘we’ve discussed some of the details of the proposed Bill previously in our calls’ implies relatively ad hoc engagement on the Bill’s content up to that point. SG replied the next day, promising responses to the questions raised ‘in due course’. It added,

After our last meeting, we spoke with colleagues in Scotland Office on Scotland Act Orders. We are taking forward the first step of the formal process which we will send to Scotland Office who I think will then take forward liaising with the relevant departments.

Scottish Government, 3 March 2022

It is unclear from the information released how and when other departments were due to be engaged in the Section 104 process. There is no mention of the SO liaising with other departments in the emails released between SG and them. However, if the SG had been told separately that wider departmental engagement would be done through the Section 104 process, then it must also have been aware that the slowness of its responses to the SO (see below) would delay engagement with other UK departments.

Detailed replies were provided to the GEO by SG on 24 March 2022 (the content of these has been redacted). GEO acknowledged these the same day, adding it was ‘considering your responses and may come back to you with some further questions once we’ve worked it all through’. 

There was then an intense round of meetings, on 29 April, 19 May, 31 May*, 16 June*. No emails are provided for period between 24 March and 21 June (when SG answered a question from the GEO about changes to Home Office policy on data with a tweet from an activist critical of self-ID). As these meetings have been described as part of routine liaison, the lack of papers released could be due to exemptions being applied or to the Bill not being a major topic.

* We assume these meetings were with GEO rather than the SO: the SG response is not clear.

From this point onward, most of the information shared is about meeting dates or routine information sharing.

A meeting took place on 4 August 2022, and SG officials provided information about marriage and civil partnership, and parental rights in Scotland.

On 15 August 2022, GEO explained that for the next meeting ‘the plan was to discuss the definition of sex under the Equality Act 2010, which has been under debate in the context of this Bill. I’ve pasted an extract below from one of the SP Committee sessions, which sums up the different views’. The email then reproduced a long extract of evidence from barrister Naomi Cunningham.

It should be noted that by this point campaigners had been pressing the Scottish Government to clarify its understanding of the relationship between the Gender Recognition Act and the Equality Act for several years. Possibly more immediately relevant, a petition had been lodged on 15 July 2022 by For Women Scotland, challenging the SG’s treatment of a Gender Recognition Certificate as changing a person’s sex under the Equality Act, in guidance relating to the membership of public boards.

On 4 October 2022 the GEO wrote in relation to a colleague unable to join the meeting that ‘we’ve just had a chat about the EA2010 definition of sex (which I think is what you wanted to discuss with her?) so I can give an overview of this, and then if there’s any need for further discussion I can get her along to our next catch-up?’. This meeting took place on 6 October 2022.

On the same day, SG officials sent the Stage 1 Committee report on the Bill to the GEO.

On 21 October 2022, SG officials sent a copy of a letter from Shona Robison to the UK Minister for Women and Equalities, setting out the Scottish Government’s intention about the use of Section 104 Orders. A GEO official replied, offering to speak to SG about the implications of a change of Minister at UK level. This is the first reference by the GEO to their Ministers, in the papers released.

A further meeting took place between the SG and GEO on 17 November 2022. On 24 November, the GEO sent on to SG a letter from the UN Special Rapporteur on Violence Against Women and Girls (UNSRVAWG), which expressed strong concern about the Bill, and apologised for delay in passing it on, due to an administrative error.

On 1 December, there was a further meeting (again, the information provided is not clear, but we assume this was with the GEO rather than the SO). On the same day the SG forwarded to GEO  a copy of the Minister’s formal response to the UK government regarding the UNSRVAWG (and a letter supportive of the SG from assorted third sector bodies).     

4. Scottish Government exchanges with Scotland Office officials

The original SG Chronology places all relevant official-level discussion in 2022. However the first email disclosed from SG to SO officials, on 26 January, refers to SG’s earlier meetings with GEO, who ‘have had conversations with other UK Government departments’. That implies some relevant discussion in 2021. The emails between SG and GEO also refer to discussions before 2022, although only between SG and GEO. Why the original SG Chronology places all relevant inter-governmental discussion in 2022 remains unclear.

The approach to the Advocate General from SG seems to have been suggested by the GEO. The SG correspondence also refers to the GEO; but the GEO does not appear to be copied in. Indeed, there is no indication that the SG copied the GEO into its parallel correspondence with the SO about the Bill at any point.  

On 26 January 2022, SG officials told the SO and the Advocate General’s Office that the SG intended to introduce the Bill soon. The message recognised that the wider recognition of GRCs issued in Scotland remained unresolved and that policy had diverged:

There is an outstanding question about whether UK Ministers will want to recognise Gender Recognition Certificates issued in Scotland under the new process in the Bill. They have not stated a formal position on this but decided not to implement similar reforms for England and Wales. I understand we need to initiate a formal process through the Office of the Advocate General ahead of introduction so it would be helpful to have a conversation in the next couple of days to talk that through…Apologies for not initiating this conversation earlier.

Scottish Government, 22 January 2022

The SO replied the next day setting out that the first step of this process would be for the SG to complete a ‘policy summary’ of the Bill, which the SO would aim to comment on within two weeks. The template for a policy summary was provided.

Three months later, on 27 April 2022, the SG replied that they had prepared a draft policy summary but had some points they wished to discuss and seeking a meeting that week. The SO responded the same day, agreeing to an early meeting and providing more technical information about the process for a Section 104 Order. On 4 May 2022 a meeting took place, and the next day the SG provided a draft of the policy summary, which was acknowledged immediately.

On 16 May 2022, the SO replied. The response implies that the SG had provided it with very limited information:

I’m afraid we are going to need greater detail on your proposed changes through the legislation before we can complete our full review. Specifically, we will need to know what legislation, both primary and secondary, you propose should be included in a s.104 Order, and what those amendments might be. I attach an example from a s.104 SAO that we’re currently working on – this is the level of detail it would be really helpful if you could provide us with please.

Scottish Office, 16 May 2022

On 28 June 2022 the Equalities, Human Rights and Civil Justice Committee questioned SG witnesses, as part of its Stage 1 scrutiny of the Bill, and asked about liaison with the UK Government over Section 104. This was an opportunity to explain the current position. However, the SG Head of the Gender Recognition Unit attending in support of the Cabinet Secretary instead told MSPs:

…the formal section 104 process and the formal conversations about mutual recognition have not taken place yet. That is quite normal with a bill; we would not enter into a formal section 104 process until near the end of the bill’s passage or, indeed, after it has passed.” 

SG Head of Gender Recognition Unit, 28 June 2022

Yet as shown above, officials had written to the SO five months earlier ‘to initiate a formal process… ahead of introduction’ in relation to Section 104. By 28 June, the SG had submitted a policy summary, as the first step in that process, and for six weeks had been in receipt of feedback that the information in it was inadequate. It is not clear why the Committee was left with the impression that no formal exchanges had yet occurred.

The SG responded to the SO request for more detail four and a half months later, on 4 October 2022. Its message suggested that there had been some contact ‘in the summer’, but this could be a reference to the meeting in May.

How or whether the SO responded to the SG’s more detailed submission is not disclosed. Earlier emails mentioned SO aimed to respond within two weeks. It did so for the previous draft submitted, implying that SG may have had feedback by around 18 October.

On 21 October 2022, SG officials provided SO officials with a copy of the letter, which the original SG Chronology records as being sent to UK Ministers by Shona Robison. The original Chronology implies that the SG was taking a lead on this issue out of the blue; but viewed in the context of the exchanges with SO officials, it looks more likely to be related in some way to the process that was already underway.

The 21 October letter is mentioned both in the original SG Chronology and in the April Ministerial statement, as the letter to which the UK Government was replying on 7 December. The 7 December letter is mentioned again in the SG’s petition to the court, but the 21 October one is not. Therefore only the text of the 7 December letter has been put before the court by SG.

5.      Exchanges involving Ministers

The FoI review response included an extract from a submission by a Scottish Government official to the Cabinet Secretary, Shona Robison MSP sent on 19 January 2022 (the extract is dated 2023, but we assume in error) which highlighted that ‘A Scotland Act Order is required for mutual recognition. Discussions are continuing with UK Government officials about the Order but there is a risk that UKG Ministers will not be willing to take this forward’. Scottish Ministers were therefore told at least this early that it was not certain that for GRCs issued in Scotland would have the same effect across the UK, and that ongoing discussions at official level were separate from political agreement.

The FoI review response provided one further update to Scottish Ministers from SG officials. On 11 August 2022, Ministers were advised:

1. Officials in the Gender Recognition Unit are undertaking a series of meetings with Officials in the Government Equalities Office (GEO) and the Northern Ireland Executive on cross-border issues connected with the Bill. (redacted)
2. As you know, we intend to work with the UK Government on an order under section 104 of the Scotland Act 1998 to make consequential changes to UK legislation as part of implementation of the Bill if passed. As an initial step a policy summary has been sent to Scotland Office who have requested further information before completing their review. (redacted)

Internal SG correspondence, 11 August 2022

To know how far Ministers were reassured at this point that no issues were arising would require sight of the redacted text, although Ministers will have been aware that the SO had not yet given any view.

The absence of any other minutes, even wholly redacted for content, means either that there is no other written record of Ministers receiving advice about how discussions with Whitehall were proceeding; or else that even the existence of such advice has been treated as exempt from disclosure.

6. Other information about ministerial communications

Recently published court papers for the Section 35 Judicial Review raise questions about how full a picture MSPs were given of the cross-government ministerial contact which took place in the later stages of the Bill , prior to the final votes.

Questions about the UK Government position were raised during the Stage 3 debate, which took place between 20 and 22 December 2022. Jamie Greene MSP commented on 20 December:

I hope that we will hear from the Government about those issues [the cross-border effects of GRC reform in Scotland], about any perceived interactions and about any conversations that the Scottish Government has had with the UK Government or other Governments. I look forward to discussing that later.

Jamie Greene MSP, 20 December 2022

In the Stage 3 debate on 21 December the Cabinet Secretary Shona Robison MSP informed MSPs.

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…

Shona Robison MSP, 21 December 2022

No other reference was made to this meeting or the background to it.

As part of a later ministerial statement, in April 2023, Shirley-Anne Somerville MSP mentioned that the meeting on 19 December had been set up in response to a letter from the UK Minister, but gave no indication of that letter’s contents:

…Cross-border effects were discussed at that meeting, but no changes were requested by the UK Government, and there was no mention of consideration of a Section 35 Order.

Shirley-Anne Somerville MSP, 19 April 2023

The SG petition to the court, first published on 19 April, went somewhat further, stating that the 7 December letter contained a ‘meaningful expression of concern’, but said nothing about what was said at the meeting:

‘The first meaningful expression of concern was raised by the UK Government’s Minister for Women and Equalities (“the Minister”) in a letter dated 7 December 2022…’

Scottish Government, 19 April 2023: para. 10

‘On 19 December 2022, a call took place between the Cabinet Secretary and the Minister. That was the first discussion between the respective governments at ministerial level since the UK Government had been given notice of the Bill.’

Scottish Government. 19 April 2023: para. 11

The SG has included a copy of this letter in the papers it is listed as supplying to the court (these further papers are not published).

The UK Government‘s Answers (to the SG petition), published on 18 August 2023, now describe the meeting as having been set up to discuss serious unresolved problems with the Bill, which had been notified in the letter:

The Minister for Women and Equalities (“the Minister”) wrote a letter to the Cabinet Secretary for Social Justice, Housing and Local Government on 7 December 2022. The letter set out a number of concerns which the Minister had about the Bill, including “the serious implications of the Bill raised by the Equality and Human Rights Commission, including significant cross-border impacts”. The Minister requested a meeting with the Cabinet Secretary to discuss the “serious problems that remain to be resolved”. On 19 December 2022, a virtual meeting took place between the Minister and the Cabinet Secretary to discuss the concerns expressed by the Minister.

UK Government‘s Answers (to the SG petition) 18 August 2023: para. 10

The original SG Chronology and court papers also note that the Cabinet Secretary made a late announcement on a cross-border issue, that is, whether people living in Scotland would have continuing access to the existing UK GRC process if they wished. This mattered because SG had stated publicly in June 2022 that GRCs issued in Scotland would have no automatic effect in other parts of the UK. Withdrawing access to the UK would therefore disadvantage those living in Scotland currently eligible to apply for a GRC. The Cabinet Secretary clarified access would continue, in response to urgent contact from the UK Minister – after Ms Robison had given the opposite response to a question during the second day of the Stage 3 debate. We have previously written about this here, arguing ‘Events in the final 24 hours of the Bill process, as discussed further in this blog, suggested that any official-level discussions relating to the Bill’s cross-border effects had not been conducted in as much depth as might have been expected by that point’.

Note

1. The only copy email addresses for UK government officials are in Cabinet Office, as used by the GEO’s LGBT team. It is possible that one or more of the copy addressees were in another part of Cabinet Office than the GEO; however, there is no reference to involving other parts of Cabinet Office, and no emails from outside GEO.