 Alun Oиниwch i'w cadw gynnig gyda'r division yma yn ysgrifennu, ein dyfodol a dw i'n sgrifennu o'r digwydd i'r membien o'r ddechu. Y dyfodol yn llwycau. Fe oedd Stephanie Callahan o ddefnyddio na ddr. Fe oedda'r ffordd. Felly, fe oeddwn i siaradau'n blyneddol ac yn dddechrau. Rwy'n credu y gafodol. The result of the vote on the amendment number 108, yn y namerd, yn jami Greene, erfn o'r hyn ysgrifennu 94, ni o'r 16, Ond wrth ei iechyd, mae'n r�lio'r rhaglongau. Rwy'n darglwag ar gyfer 16. Rwy'n darglwag ar gyfer 16. Rwy'n ddisganwch ar gyfer 16. Alexander Burnett. Rydw i'n ddigwydd ar gyfer 16.1.3 y bydd pethau a gwiaithio y maes y newid, Y d crease, mae'r methu yna'r sefydliadau ynghyd yn llawer o'r dylliannod, mae'r cyfnod yn cael eu adreu'r cyfnod yn ynghyd yn yr edrych. Y cyfnod yn cael eu cyfnod yn cael eu gwirioneddau rydydd yn y gallu ei ddweud o gyllidol, wrthy mae'n hynny mewn cyfnod gyffredinol, ac mae'n cydweithio sicrhauserau sydd yn ei gyrraethau i gael, ac mae'n cyfrifiadau oherwydd, ac mae'n cyfrifiadau i'r cyfnod yn gynnig Felly, mae'n cyfnodd ar gweithio cyfnod o'r ddechrau i gŷnodd gyfnodd yn rhai. Y ddiddordeb yn y gwylo y gweithio gweld yn cyfnodd gyfnodd gyfnodd gyfnodd gyfnodd cyfnodd gyfnodd gyfnodd gyfnodd gyfnodd gyfnodd gyfnodd gyfnodd, am y ddiddordeb yn yn nesaf, am y ddiddordeb yn yn rhaid o'r parlymenau a'r ddaf yn unig ar 17 dyn nhw, o'r ddau o'r ddau a ddweud o phredigio a gwybodaeth oedd y gwaith oedd ysgrifennidau. A this is, I think, completely understandable given the circumstances, except had I not learned of the following developments this morning. Presiding Officer, I can reveal today that the detailed results of these amendments were passed from parliamentary officials to journalists hours before they were received by elected parliamentarians. At 9.04 o'r ddau o'r ddau i'n mynd, dweud â behaviorrll an trans Whether the detailed results of amendments were passed on to journalists more than three hours before being received by MSPs and their staff in this place. On top of that, those amendments' results were not made publicly available for anyone to access. That of course meant that the details of yesterday's proceedings were not published as soon as possible, because this information was not made public through the proper channels. ond, fel douch yn gyntaf, mae'r gwahaniaeth oherwydd ei wneud o rydym iawn i'r cerddigoedau yn oes o'r angen i'w ffattol yn y gydag o'r rhagëffyddol yn y dyfodol. Felly, mae gael i'r ideidau mewn gwneud, ei wneud i'r gwaith o'r lleiwadau bydd ym mherau ar ygafel o'r amgylcheddau o'r yrheil o'r cyfrifiadau, yn cyfrifiadau o'r cyfrifiadau, mae'n defnyddu cael bywyd am gwneud dechrau a oedd yn siaradol, mawr hwnnw i gael â'i gŷn. I thank Mr Burnett for his point of order. The rules do require that minutes are published as soon as possible by whatever means is considered appropriate. I am aware that divisions were notified to business managers as soon as possible. I believe that this was as close to the suspension of our proceedings last night as possible. Obviously, officials need, Mr Burnett will understand that officials need time to ensure that the minutes are correct before there are any published and that there were several hours of business that had to be checked through before that publication took place. We had an exceptionally late sitting last night, as everyone appreciates. I will look into the points that Mr Burnett raises with regard to information being available to some before others. It is important to ascertain from the chair that it would be inappropriate for that information to have gone to journalists ahead of parliamentarians. I think that that is fundamental and I would be grateful to have your ruling on that. I have just ruled on the point that Mr Burnett raised, and I did say in that ruling that I would look into that matter. I call amendment 50, in the name of Russell Finlay, already debated with amendment 18, Russell Finlay, to move or not move. The question is that amendment 50 be agreed to, are we all agreed? The Parliament is not agreed, we will move to division and members should cast their votes now. The result of the vote on amendment number 50, in the name of Russell Finlay, is yes, 62, no, 64, there were no abstentions, the amendment is therefore not agreed. We move to group 11, late application for review of registrar general's decision, and I call amendment 109, in the name of Jamie Greene, in a group on its own. Thank you, Presiding Officer, hopefully a slightly less contentious group of amendments, single amendment in this, amendment 109, and it's around late application for review of registered general's decisions. We know, Presiding Officer, unfortunately many transgender lives can be filled with much disruption and instability due to a wide range of socioeconomic factors. I have spoken to a number of individuals who have already gone through the GRC process or are about to. Some do not have regular addresses, some have wider health, physical both, and mental health problems, and often require medical supervision or indeed intervention. As currently drafted on the bill, an individual seeking to obtain a GRC, but has had their application refused for whatever reason, does have the right to an appeal. That appeal must be made within 40 working days. There are provisions at the moment that allow the registered general to consider an appeal after this period, if they so wish, but they are not required to. I am concerned that if, for example, there is a higher number of applications, or indeed additions to the duties that fall within the registered general's remit as a result of some of the amendments that may or may not pass, this 40-day deadline may indeed become a strict blanket deadline irrespective of the circumstances of the applicant. I am of the view, sympathetically, that if a person were to have good reason for missing this deadline, perhaps for example due to hospital admission, sickness, change of living circumstances or a family emergency, then this should be taken into account when an appeal is submitted light. Amendment 109 is a relatively simple one. It does allow for late appeals, but only if the registered general is satisfied that the applicant had good reason for not making the request sooner. Who was first? Liam Kerr. It is just by way of clarification, if a way for the member. I followed the articulation of it, but I think what he is talking about is that you can come in later if you have a good reason. I appreciate that the member gave some examples, but is there going to be guidance on what constitutes a good reason? If not, who is the arbiter of what constitutes good in the reason? As stated, the amendment says that if the request is made after that period, the registered general must comply with the request if he or she is satisfied that the applicant had good reason for not making it sooner, but may but not need to comply with it if not satisfied. It does not specify any grounds for which a scenario would be given. I think that the concept of guidance is a very helpful one. I might ask the cabinet secretary to reflect on that in closing comments. I think that it would perhaps benefit from—there will be guidance associated with many other parts of the bill. That may be a good example where rather on the face of the bill we put prescriptive scenarios that the registered general must adhere to, but it gives some flexibility to the registered general who trusts their judgment on whether they believe that the applicant had good reason to make a late application. Of course, some parameters around that and guidance to the registered general will be very helpful. Given that the nature of the role of the registered general and its point that we have not properly debated in all of this is changing as a result of this legislation, it deserves some wider airtime. I am sure that we will talk more about that as the day goes on, but I do not disagree with the comments made by the member whether it was another intervention. Okay, I hope that I answered that. No further comments on that amendment. Presiding Officer, I hope that I will be similarly brief. Under the terms of the bill as introduced, the registered general must comply with a request for review of what is made within 40 days of the application being determined and may but need not comply if the request is made after that time. Amendment 109 provides further clarification on the discretion provided to the registered general to deal with late applications and is a helpful clarification of the review process. I am happy to support that. I can confirm to Jamie Greene and others that national records of Scotland will do guidance and the registered general will apply to the individual circumstances using their judgment. Thank you, Jamie Greene. To wind up press or withdraw amendment 109, Mr Greene. I am happy to see further clarification on the role that NRS will play in producing guidance. I hope that that addresses any concerns that the member has had. Thank you. Thank you, Mr Greene. The question is that amendment 109 be agreed to. Are we all agreed? Are we all agreed? Yes. We are not agreed. There will be a division. Members should cast their votes now. The vote is closed. The result of the vote on amendment 109 in the name of Jamie Greene is yes, 116, no, 4. There were five abstentions. That amendment is therefore agreed to. I call amendment 52 in the name of Russell Finlay. Already debated with amendment 18. Russell Finlay is a mover, not moved. That is moved. The question is amendment 52 be agreed to. Are we all agreed? Yes. The department is not agreed. There will be a division. Members should cast their votes now. The vote is closed. The result of the vote on amendment 52 in the name of Russell Finlay is yes, 61, no, 63. There was one abstention. The amendment is therefore not agreed. I call amendment 53 in the name of Russell Finlay. Already debated with amendment 18. Mr Finlay is a mover, not moved. That is moved. The question is that amendment 53 be agreed to. Are we all agreed? No. The department is not agreed. There will be a division. Members should cast their votes now. The vote is closed. The result of the vote on amendment 53 in the name of Russell Finlay is yes, 60, no, 62. There were two abstentions. The amendment is therefore not agreed. I call amendment 110 in the name of Jamie Greene. Already debated with amendment 108. Jamie Greene to move or not moved. That is moved. The question is that amendment 110 be agreed to. Are we all agreed? No. We are not agreed. There will be a division. Members should cast their votes now. The vote is closed. The result of the vote on amendment number 110 in the name of Jamie Greene is yes, 92, no, 13. There were 19 abstentions. The amendment is therefore agreed. We now move to group 12, manifest the unfounded application to sheriff to revoke certificate. I call amendment 51 in the name of Pam Duncan-Glancy in a group on its own. Pam Duncan-Glancy to move and speak to amendment 51. Thank you, Deputy Presiding Officer. I wish to speak to amendment 51 in my name. The function of the person of interest at section 8S in this legislation is essential. It makes provision for someone with a genuine interest in the person's GRC application to intervene and express concern that the application has been made fraudulently or that the person was coerced or did not understand the effect of obtaining the certificate. The definition of a person of interest has been drawn more widely in this bill than was in the 2004 act to take account of the changed process proposed and Scottish Labour support that definition. My amendment seeks to provide proportionality to this function in the bill, so that it serves the purpose that it is intended and is not used as a means to unfairly block a GRC application. This amendment will give the sheriff due restriction to determine that an application under section 8S is manifestly unfounded, that it is to say that the person making the application to the sheriff has malicious intent is using the request with no real purpose other than to cause disruption, makes unsubstantiated accusations against or is targeting the applicant because they have a problem with them, unless it is proved on the balance of probabilities that it is not. The amendment transfers the burden of proof to the respondent in any civil proceedings so that it is for them to prove that the GRC application should be revoked, ensuring that it is not for the GRC applicant to disprove any claims made against them. My amendment 51 clarifies that evidence used to prove a fraudulent GRC application cannot be based on personal feelings toward the applicant nor their view on gender reassignment itself. Applications under the person of interest powers are important, but they must be based on evidence that transcends personal opinion. I am confident that this amendment will address concerns that a person of interest who disapproves of a trans person's identity and the right to exist may use the courts to interfere in a GRC application. At the end of the clause, there is a definition of manifestly unfounded, and it finishes by saying that that turns on it having no quote, evidential basis. Is there any specification of what might constitute evidence for that evidential basis? Or is there a threshold around sufficiency? I thank the member for the intervention in the language that is used in this part of the amendment that was taken from the date of protection legislation and also information around FOIs, and so there is already some precedence in how to look at that. Ultimately, that would be a matter for a sheriff to determine, because at this point a sheriff has already been involved because the person of interest function has been invoked. It would be for the sheriff to determine whether or not there was evidence, and I hope that that helps the member and provides the clarity that they need. In my view, we must protect trans people from manifestly unfounded claims, and I believe that this is something in which all of us in this chamber can agree. We also believe, as I have said, that the person of interest function is incredibly important. We believe that, together with the amendment and the person of interest function, we have a suite of protections that ensure that trans people and other people get what they need from this legislation. I urge colleagues to support this amendment, and I will. Does she also accept that provision for the award of damages may put off people who have genuine concerns, but would be afraid of this element of the bill? Maybe that is her deliberate design. I do not think that it is, but does she accept that this could have a serious dissuading influence over people who have genuine concerns, but are terrified of what that might mean if the court ruled something differently than they would hope it would, that it would put them off completely? I thank the member for the intervention. I do not, because I believe that if those concerns are genuine, they would be able to prove that. They would be able to have the evidence that would be required. The definition of malicious intent and manifestly unfounded, rather, is that malicious intent is using the request with no real purpose other than to cause disruption and makes unsubstantiated accusations. Anyone who can make substantiated accusations, who therefore has in the member's words a genuine concern, should not be put off by this part of the legislation. It is not designed to deter them. It is designed to deter people who may wish to frustrate the process for trans people who, I think, we all believe, need access to this system. Even people who have voiced concerns about the bill recognise that trans people who need to change their legal gender should not be blocked from doing so just because somebody does not agree with their acquired gender status. With that, I move the amendment in my name. I thank Pam Duncan-Glancy for bringing forward the amendment for her explanation of it. It references unfounded applications under section 85, which allows for gender recognition certificates to be revoked on application to a sheriff if the sheriff is satisfied that, on the balance of probabilities, the application was fraudulent, where a sheriff makes this finding that they must revoke the certificate or take other action that is appropriate in the specifics of the case. I understand Pam Duncan-Glancy's intent in bringing forward that particular amendment, but having considered it very carefully, I am concerned that it is confused and it throws up a number of legal difficulties. The amendment seeks to make a provision that would allow sheriffs to determine that an application to revoke a gender recognition was manifestly unfounded, so a sheriff finding an application as with an application that was fraudulent, a sheriff can judge an application for revocation was unfounded on the balance of probabilities. As has just been mentioned by my colleague Stephen Kerr, the section would also allow for the award of compensation, where injured feelings are found to have occurred as a result of a manifestly unfounded application for revocation. That manifestly unfounded application for revoking a gender recognition certificate is defined as one that was intentionally misleading, made in accordance with the applicant's feelings about gender recognition certificates and had no evidential basis. There are a number of issues with that, and we have, over the course of the afternoon already, had quite lengthy debates around this whole very difficult issue of fraudulent applications and this question of evidence. Somebody can apply for a gender recognition certificate with no evidence whatsoever. That is the whole principle behind self-identification. They are not required to change their appearance or to change their pronouns. They are not required to change the way they dress. They are not requirements for obtaining a gender recognition certificate. I really struggle to see what the evidential basis that is referred to in this particular amendment would actually refer to, because none of those things are prerequisites for the obtaining of a gender recognition certificate if we accept the principle of self-identification. I thank the member for taking the intervention, and all the things that the member has just outlined are not current requirements of what people have to prove in order to access their gender recognition certificate. This amendment neither changes nor affects any of those provisions. I accept that point by pardoning Glancy, but with respect, I do not think that it is actually strengthens her case, because she is putting forward an amendment that refers to evidential basis. Effectively, she is now, I am afraid, arguing against herself by saying that these things are not currently out-required. So what we are doing is we are creating a mechanism with an ill-defined threshold and therefore throwing it on to sheriffs to try and make that judgment against these criteria on the balance of probabilities with no history of case law around these particular areas. I think that it would be extremely difficult for a sheriff to try and make these judgments based on the amendment that is before us. The second point has already been mentioned. The amendment would allow for compensation to be awarded to those who successfully claimed and that application was manifestly unfounded. I think that there is a genuine worry that this will lead to a situation where there are people who know or are concerned that a gender recognition certificate was fraudulently claimed, but they will not apply for a revocation because they are worried about the financial consequences on them should that challenge not be successful, should on the balance of probabilities a sheriff reject that challenge, they would then be liable potentially for financial compensation and that would lack a potential barrier to people seeking to challenge these awards. So I believe that allowing people to apply for revocation of a gender recognition certificate without fear of litigation is important because of the way that this legislating is opening up the whole process with so many safeguards being removed. Threatening individuals with legal action if they take up an option to simply apply for a grant of a gender recognition certificate should not in my view be in this bill. I hope that colleagues will support me in opposing this amendment. I know from the evidence provided to the committee and through our own consultations that there is a concern in the trans community about potential misuse of the ability of a person with an interest to apply to a sheriff for a GRC to be revoked and I can understand that. The bill allows for a person who has an interest in a GRC to apply to the sheriff to revoke a certificate on the ground that the application was fraudulent or that the applicant was incapable of understanding the effect of it or that the applicant was incapable of validly making the application and that is an important safeguard. The person seeking to revoke a certificate would need to have a genuine interest in the certificate in that it would have to affect them personally or professionally and they would be required to produce evidence of their interest and of the ground on which the certificate could be revoked. As you can see, the gallery again is not full. There are people again who have been refused tickets who would like to witness what is happening today. They have been refused tickets, they have been told they cannot access. That is completely unacceptable and will the Presiding Officer take a view please and those women and people who cannot get access please it might be too late but there are some who would like access for the empty seats above. Thank you. Thank you for the point of order. Recognised with a similar point of order yesterday there was no evidence that people had been prevented from coming into the building as far as I'm aware. I have evidence and I will feed that to the thank you. Zoom your seat please. I will not have the chair challenge, Ms White. I am responding to your point of order. I will respond to your current point of order. I will ask that this matter be looked into. It's not something I can rule on from the chair as was said yesterday. We would hope and expect any members of the public that wish to attend proceeding to be in the public gallery that can be accommodated to be allowed to do so. With that I would invite the cabinet secretary to continue her remarks. Thank you. As I was saying that the person is seeking to revoke a certificate would have to have a genuine interest in the certificate and it would have to affect them personally or professionally and they would be required to produce evidence of their interest and of the ground on which the certificate could be revoked. At stage 2 a number of amendments were lodged along similar lines to amendment 51. I indicated at the time that I was sympathetic to the aims of those amendments. Some would consider if there was anything that could address those concerns without raising wider access to justice issues. I have not been able to identify any for this bill because existing mechanisms already allow the courts to dismiss groundless applications in the most efficient manner. In a clear case of lack of genuine interest or bad faith, a sheriff could dismiss a case at the first hearing without even having required GRC holder to formally participate. It is a common statutory requirement that a person has an interest in a particular matter in order to bring precedence to court and the courts are used to determining what amounts to a genuine interest. I thank the cabinet secretary for taking the intervention. Would the cabinet secretary accept though that in those proceedings it is on the GRC applicant rather than the person who is applying to revoke the certificate? If a person was to make repeated vexatious applications to revoke the GRCs of different GRC holders, there is an existing provision in the Courts Reform Scotland Act 2014 that would allow the Lord Advocate in the public interest to apply to the court of session for a vexatious litigation order. That would require the person to get permission from the court before making a further application. The courts also have existing powers to properly compensate the GRC holder for their legal expenses and to sanction a malicious applicant through an enhanced award of expenses against them. We will work with the Scottish Courts and Tribunals Service on any updates or changes to court rules that are needed as a result of the bill, including where those rules could avoid any negative impacts on the GRC holders that arise from the court proceedings. I consider that the law already provides mechanisms that can be used to respond to a malicious application. Of course, the prospect of litigation being used maliciously is a general issue that is not particular to those circumstances. There does not appear to be anything further that could be achieved in the bill without either duplicating the existing machinery or restricting access to justice in a way that would be unacceptable. I am pleased to say however that amendments in group 15 about the requirement to review the bill will include that we will review the provision allowing applications to be made to the sheriff. I hope that that would be enough for Pam Duncan Glancy and indeed Maggie Chapman, who has also expressed an interest in this, to be reassured that we will look and see whether the existing machinery that has worked well to date would also cover the issues that Pam Duncan Glancy raises. I hope that, on that basis, she will not push her amendment. Deputy Presiding Officer, in the interest of brevity, I will be brief and as clear as I can in quick. I do not accept some of the concerns that were raised by my colleagues opposite on the fact that the deterrent of potentially having civil proceedings against someone will stop somebody using the person of interest power. I will come to where I started on this, which is that we believe that the person of interest power in this bill is entirely proportionate and we support it. Indeed, we voted against narrowing the person of interest power at stage 2, because we think that it is incredibly important that it is there. However, I believe that amendment allows us to bring some proportionality to that and ensure that, where someone uses that, they have to bring evidence. The point about being worried about not being able to do it because of the level of evidence is not an accurate one, because in order to bring an accusation of a fraudulent claim or coercion or that someone did not understand the application, evidence is required anyway. The point of amendment is to say that the basis of that evidence was not founded and there was not enough evidence there to prove that it was a fraudulent or unclear application. On the cabinet secretary's point about existing legislation, I think that those points are important and I welcome the fact that they are in the review, but I still think that the burden of proof is therefore left on the trans person. We have to be really clear that in this situation we need to ensure that the burden of proof does not sit with the trans person to prove that someone is trying to deliberately prevent them from accessing a GRC. That is why I cannot accept that the existing mechanisms are enough. However, I will look forward to how the review sees that. The question is that amendment 51 be agreed to. Are we all agreed? We are not agreed. There will be a division member who should cast their votes now. The vote is closed. Point of order, American Galaher, who joins us online. My laptop froze in a month's year if my vote was recorded. Can I please confirm if it has been? Thank you, Ms Galaher. I can confirm that your vote was in fact recorded. The result of the vote on amendment 51, in the name of Pam Duncan Glancy, is yes, 26, no, 98. There were no abstentions. The amendment is therefore not agreed. Is that the move to group set? Under rule 9.10.6, I would like to submit a manuscript amendment to the Gender Recognition Reform Scotland Bill, which would leave out section 15a. As I understand it, Scottish Parliament guidance on amendments reads, and I quote, if no amendment to leave out the section or schedule has been lodged in advance, any member may lodge a manuscript amendment to leave it out. I can submit the wording to the presiding officer if necessary and if it is not already being done. I hope that this can be permitted and I would like to briefly explain why I intend to lodge this manuscript amendment. Section 15a was agreed to as an amendment by the Equalities Committee at stage 2 of the proceedings on the Gender Recognition Reform Scotland Bill. I, along with my colleague Pam Gozzle, abstained on this amendment, which was voted on 22 November 2022. The date is important to remember here. The rush deadline for submitting amendments to the Gender Recognition Bill was 12pm on Tuesday 13 December 2022. Just after this deadline, the Court of Session published its ruling on the judicial review from Four Women Scotland regarding whether holding a gender recognition certificate changes the person's sex for the purposes of the Equality Act. Lady Holding ruled, and I gain, I quote, I conclude that in this context, which is the meaning of sex for the purposes of the 2010 act, sex is not limited to biological or birth sex but includes those in possession of a GRC obtained in accordance with the 2004 act. This clearly has a substantial impact on how the Equality Act 2010 is to be interpreted for the purposes of those who hold a gender recognition certificate, which is what the Gender Recognition Reform Bill relates to, but Parliament has not had the ability to decide on this section since this Court of Session ruling, and no amendments could be submitted in time for the stage 3 deadline because the ruling was made public after the amendment deadline. Given the importance, Presiding Officer, of this Court ruling in interpreting this act, I think it is important that the Presiding Officer accepts the amendment in my name so that the Parliament is able to debate the substantive effect of the Court of Session ruling in relation to how the Equality Act is to be interpreted, as I said, in relation to this act. I seek, Presiding Officer, to move the manuscript amendment in my name to leave out section 15a. Thank you, Ms Hamilton. As manuscript amendments are a matter either for the convener or for the Presiding Officer, I am going to have to suspend this session of the Parliament for the time being.