Is Police Scotland recording policy an ‘operational matter’?
Introduction
In June 2021 we lodged a petition with the Scottish Parliament Citizen Participation and Public Petitions Committee, calling on the Scottish Parliament ‘to urge the Scottish Government to require Police Scotland, the Crown Office and the Scottish Court Service to record accurately the sex of people charged with or convicted of rape or attempted rape‘.
We think this is important for data accuracy, public trust in statistics, and that Police Scotland has a moral obligation to victims to record sex accurately.
Over three years since it was originally lodged, the petition remains under consideration by the Committee. In January 2024 the Committee asked Police Scotland, for a fourth time, to provide further written evidence on its position, including how its policy aligns with its ‘organisational values’.
In its response to the Committee, Police Scotland said that the practice promoted ‘a strong sense of belonging’.
The sex/gender identification of individuals who come into contact with the police will be based on how they present or how they self-declare, which is consistent with the values of the organisation.
This practice adheres to legislative compliance, operational need and the values of respect, integrity, fairness and human rights whilst promoting a strong sense of belonging.
An operational matter?
Following critical media coverage of the Police Scotland response, Conservative MSP Rachael Hamilton raised the policy at First Minister’s Questions (FMQs) on 12 September 2024.
The First Minister stated that recording was an operational matter for Police Scotland.
Police Scotland awaiting ‘direction and guidance’ from Scottish Government
At odds with the First Minister’s response, Police Scotland has repeatedly stated that it is waiting for direction and guidance from the Scottish Government.
In January 2022, a letter from Deputy Chief Constable Malcolm Graham to the Criminal Justice Committee said Police Scotland had introduced its recording policy in 2019 in preparation for gender recognition reform, at which point it had been awaiting guidance from Government.
In 2019, to prepare for proposed reform of the Gender Recognition Act, the Safer Communities Equality and Diversity team considered a draft Police Scotland policy on Gender Identification and assessed that a Police Scotland position statement was required.
The letter also said that Scottish Government guidance on data collection, published in 2021, had not provided sufficient answers, and that Police Scotland was waiting for further direction from the government.
The Scottish Government published their Data Collection and Publication Guidance: Sex, Gender, and Trans Status on 22 September 2021. While this considered many factors in how such information should be gathered in a consistent and respectful manner, it does not provide answers to a number of challenges in how organisations should meet recording standards.
Further direction and guidance from Scottish Government’s Chief Statistician is awaited, due to Scottish Government’s decision to postpone its proposals to reform the Gender Recognition Act 2004, pending further consultation.
Police Scotland internal review
Over a year later, in May 2023, Police Scotland told the Citizen Participation and Public Petitions Committee that it was conducting an internal review of its recording policy, and the outcome was due for consideration at a forthcoming meeting.
Police Scotland is currently undertaking a review of recording policy and I can confirm that this is progressing through our internal governance processes. … the outcome of the review will be presented at our next Professionalism, Strategy & Engagement Management Board (PSEMB). If approved, it will be subject to wider consultation and engagement with relevant stakeholders, with feedback provided to the PSEMB for consideration and progression to the Senior Leadership Board.
We are not aware of any progress on this, nor evidence of wider consultation. We have recently requested a copy of the review.
Still awaiting guidance from Scottish Government
The following year, in March 2024, Police Scotland asserted that its policy promoted ‘a strong sense of belonging’ – but that it was still awaiting direction from the Scottish Government.
We also note the current position of Scottish Government, which is reviewing its guidance on collecting data on sex and gender: Police Scotland will be guided by the outcome of that review.1
What about the Scottish Police Authority?
Established by the same legislation as Police Scotland, the Scottish Police Authority (SPA) is responsible for holding the Chief Constable to account.
In December 2021 the Chair Martyn Evans told us that the Authority supported the policy.
The Authority takes the evidence based view that Police Scotland’s current recording practice makes every effort to comply with the law, the guidance from the Chief Statistician for public bodies on the collection of data on sex and gender (September 2021) and the European Code of Practice.
The Chair also stated:
This is an area of significant public interest and Assistant Chief Constable Gary Ritchie has asked Police Scotland’s Data Governance Board to review internal policies and recording procedures.
Strikingly, at the FMQs session noted above, on the matter of accountability for Police Scotland recording policy, neither the First Minister nor any MSP made any reference to the SPA.
As noted above, we are not aware of any public developments in relation to the internal Police Scotland review. Nor has the Scottish Police Authority commented further on this evidently damaging issue.
Lack of accountability and ownership
The lack of accountability for this sexist, offensive, and statistically incoherent policy is inexplicable.
For over three years, even with recourse to the resources of a Scottish Parliament Committee, it has proved impossible to establish where responsibility for changing the recording policy lies.
The First Minister’s abrogation of responsibility here sits at odds with repeated calls from Police Scotland for guidance and direction.
The Scottish Police Authority appears wholly absent, despite its role in holding the Chief Constable to account and earlier assertion that this is ‘an area of significant public interest’.
Lastly, the inability of Police Scotland to work from first principles, and ascertain why – in an organisation that deals with sex-based offending and victimisation on a daily basis – recording sex accurately matters, is a depressing reflection on the single service.
Notes
In September 2021 the Scottish Government’s Chief Statistician published Guidance for public bodies on ‘Sex, gender identity, trans status – data collection and publication’. Citing privacy concerns, this states that data on biological sex should only be collected and published in very limited circumstances (although it cites serious sexual offending as a possible exception).
In response to concerns about the guidance, in November 2021 the EHRC confirmed that it is legitimate and lawful to collect data on biological sex. It also shared its position with the Office for Statistics Regulation (OSR).
We agree that it is legitimate and lawful to ask questions on legal sex, sex registered at birth, gender identity and trans status, provided that the questions are proportionate and appropriate to the particular purpose for which the data are being collected, and do not discriminate against or breach the human rights of respondents.
In February 2024, the OSR wrote to Scotland’s Chief Statistician to share its new regulatory guidance on sex and gender data collection. The OSR also reminded Scottish Government of its authority in this area and advised it to provide clarification in relation to collecting data on biological sex, taking account of developments in relation to privacy.
As Chief Statistician for the Scottish Government you have the authority to publish definitions and to advise on when they should be used. To help producers use your guidance, we recommend that you provide more information or practical examples on when the collection of each of the definitions of sex set out may be useful or necessary. This should include clarifying the position, reflecting developments since your guidance was published, on when the privacy considerations relating to the collection of biological sex should be applied and when they will not be relevant.
In response to the OSR, SG reiterated an existing commitment to review the guidance, as part of its Non-Binary Equality Action Plan. It also acknowledged data collection in this area can be ‘confusing’.