 We will discuss issues before the next round. THE LEWIS byt extendid by up to two hours? Are we all agreed? We are agreed. The first item of business is the continuation of stage three proceedings on the Gender Recognition Reform Scotland Bill. In dealing with the amendments, members should have, the bill is amended at stage two, that is Scottish Parliament Bill 13A, the marshaled list, the groupings of amendments. The division bell will sound and proceedings will be suspended for five minutes for the first division off the afternoon. The period of voting for the first division will be 45 seconds, and thereafter I will allow a period of one minute for the first division after a debate. Members who wish to speak in the debate on any group of amendments should press their request to speak buttons or enter RTS in the chat as soon as possible after, I call. The group, I would ask members to now refer to the marshaled list of amendments. We move to group 10. I'm grateful, Presiding Officer, for accepting the point of order. I wonder if I could seek your guidance on the official report of this Parliament. The official report is a written record of what is said in public meetings of the Scottish Parliament and its committees, not my words, but the words of the official report website hosted by the Scottish Parliament. Last night, the Deputy Presiding Officer suspended the sitting to, and I quote the official record, we will have to clear the galleries now, we will suspend the meeting for a few minutes while that happens. The official record states that at 1824 meetings suspended at 1900 on resuming, the Deputy Presiding Officer invited members to resume their seats. In the intervening period, the Deputy Presiding Officer had begun proceedings again. I then made a point of order. That is totally removed from the official record, not a single note of it. At that point, I was urging the Deputy Presiding Officer to make it clear that if people have been unruly, they should be removed, but people who had sat through silently and listened to the debate should not be removed. That point was, I think, accepted by the Deputy Presiding Officer. We then had further discussions because I pointed out on the record that people had been threatened with arrest if they did not leave the public gallery. Again, there is no mention of that whatsoever in the official report, which I go back. It's supposed to be a record of what was said in public meetings of the Scottish Parliament. Later on, my colleague Jeremy Balfour said in a point of order that I seek some clarification about the question that my colleague Douglas Ross asked just before the suspension in connection with who can use the gallery. But anyone trying to read what I said in response to what Mr Balfour said will find no record of it in the official report. How can we possibly have a situation where there is an incomplete official report for an important session of this Parliament? I thank Mr Ross for his point of order. My own understanding was that proceedings were suspended, but I will look into the matter that Mr Ross raises and I will be back in touch with Mr Ross. We move to group 10, certificates obtained by fraud. I call amendment 108 in the name of Jamie Greene, grouped with amendments 110, 114, 115, 116, 138 and 139. Jamie Greene, to move amendment 108 and speak to all amendments in the group. I first place on record my thanks to colleagues and, of course, more importantly, the staff of the Parliament who aided and vetted us so diligently last night into our late sitting. Without them, we would not be able to do the jobs that we do, and I wanted to place that on record. I will try not to speak to keep me here until midnight, so that is the good news. I would also like to welcome people back to the public gallery. We are an open Parliament, and it is important that we are a Parliament of the people, for the people as well. This group of amendments group 10, which we did not get through to last night, are largely centered around the concept of certificates that are obtained by fraud. Those of you who were here in the debate yesterday will know that I made comments around what I felt was a much-needed compromise, and this piece of legislation compromise that was notably absent at stage 1, given that many concerns yesterday over the many hours that were raised about the use of this new simplified process for and of various purposes. A number of amendments were proposed by various members to that effect, and we voted on accordingly. My running theme throughout this, has been two points in my desire to amend this bill. It is not to do so to be difficult not to take advantage of it for other purposes, but simply to make the bill better. That is a desire that we all should share. I have come to a view through that desire based on two themes, and that is one of compromise and one of competence. Those two words are recurring themes that I hope we will all bear in mind as we go through today's amendments. The issue of compromise is an important one, because without compromise I do not feel that both sides of the argument will feel fully satisfied that they have been heard and listened to, and that competence is equally important because this is a stage 3 debate, and what we put on the face of the bill will live on the face of the bill in black and white for generations to come. Through that process I have come to a view that the amendments that as they are currently drafted are indeed that of compromise and competence. They are compromise, because they in my view ensure that this new process, whatever your views on the simplicity of it, is not taken advantage of or abused, and my amendments seek to do that through a number of ways. There are six amendments in this group, four substantive and two consequential. The first one, amendment 108, addresses an issue that was raised when introduced to this concept at stage two, a stage that I was happy to participate in constructively. A member in that debate, Pauline McNeill, raised a very valid issue around the definition of what a fraudulently obtained certificate might be and look like. I think that it was quite a challenge set to me. It has been very challenging to get a well-rounded definition of what a fraudulently obtained certificate is without being so defined and limited that it could prevent prosecution in valid cases. My understanding is that this revised amendment 108 is much legally clearer, 108 states that a GRC is fraudulent if the applicant knowingly makes a statutory declaration or includes information in their application that is false and material particular. So what does that mean in practice? That is to say that an application would be fraudulent if there was relevant evidence that the court saw that was sufficient to prove that the application was fraudulent. Of course that would be a matter of the independent judiciary. In the scenario of either a jury or a judge or a sheriff. It could include, by way of example, a broad range of evidence to support that there was suspicion that an application was fraudulently made. That could include a number of factors such as the physical appearance of the offender in question, evidence from those who know the offender, names used, pronouns and prefixes used by the offender before, during and after living in the required gender period. Anything else that the court may deem appropriate? The issue that I have with this section and I raised it at stage 2 is that it seems to me to be virtually impossible to prove fraud if in order to get one of these certificates you don't have to actually present any evidence. So if there's no evidence needed to get certificate, how can there be a fraud committed in order to get one? What would be the fraud? For the only thing that you have to say is I'm a man or I'm a woman and present no other evidence, what fraud can there be? I'm aware of a number of other amendments that were discussed around the production of documentation. I think that there is a valid point in that the 2004 act does not go into great detail in specifying what evidence is required to obtain a GRC. That's been the case where we're for nearly two decades and nothing in this bill actually changes that. What is missing from the 2004 act, which I hope is a point of agreement perhaps that the member will have as others will have, is that I don't feel that it fully addressed the issue that there is the possibility, I believe it to be a low possibility, others believe it to be a greater one, that someone could use this process, whether it's the existing process or the new simplified process of statute declaration and self-identification, as it's otherwise known as, could be used for nefarious reasons. Now, the 2004 act, I think, was weak in that respect. What I'm trying to do with this set of amendments, and I'll go on to explain some of the others and how it goes about that, is introduce the concept that making a false declaration is a very serious offence, making a false statute of declaration already is an offence, but by doing so and by using this new process to then commit further offences that the judiciary will take that extremely seriously, and that will be manifested in another amendment that I have in this group around aggravating offences. Of course, we cannot consider every scenario and every court case in which this may pass. I expect the numbers to be relatively low, but if they do come to pass in a court of law, it will be a matter, a decision making on whether the court believes that a false declaration was made. It should be clear to folk out there that making a statutory declaration is a very grave matter indeed, and a very serious thing to do. I think it's for that reason that we should put faith in the process of statutory declarations, one that has existed for generations. I do want to make some progress or we will be here to midnight. An offence like this will be taken, as I said, on a case-by-case basis. I think it may be difficult to put specific criteria on the face of the bill because that would be counterproductive, because it could be then used as a definitive list rather than an open one. A following on from that amendment 114 in this group creates an aggravation of an offence when a crime has been committed using a fraudulently obtained certificate. To be clear what I mean by the aggravator is a concept that I again introduced at stage 2. It was rightly challenged in terms of its wording. That's the whole point of stage 2 amendments. I've revisited it and I'm confident that, as drafted at the moment, amendment 114 tidies up this concept. What it means is that by having a GRC and committing an offence in which that offence can be linked to the acquisition of a GRC, then that offence will be considered to have an aggravating factor. What that results in is a harsher sentence, a harsher punishment for those who use the GRC process to commit an offence. Now it is important that that link has to be made. Another example being if you hold a GRC and commit a criminal offence—a hit and run, theft, for example—by holding a GRC and committing an offence, the two are clearly unrelated. If the court is confident or has suspicion that the acquisition of a GRC and by holding a GRC enabled someone to commit a specific offence, then the aggravating factor could kick in. That's a commonly used mechanism in sentencing. It's used in domestic abuse legislation. It's a concept that I introduced during fireworks legislation and it's a well-tested and well-known concept in courts. It's also been welcomed and received by many stakeholders. If an individual was found to have fraudulently applied for certificate and or convicted with an aggravator offence, then their certificate would rightly be revoked. Amendment 115 makes for the automatic revocation of a certificate in that scenario. It also fixes a loophole where an applicant could have received an interim certificate based on a fraudulent application and was then converting that interim certificate into a full GRC. Yes, just one second. Amendment 115 closes that loophole and brings fraudulent applications for interim GRCs in line with the rest of the bill. I have to give way to my colleague. Stephen Kerr. Is my colleague by way a tribute to the contribution that Jamie Greene is making to this whole process and the way he is very carefully presenting his views is a credit to him and to the standard debate that he brings to this chamber. In relation to the fraud, is the fraud thereby defined as someone obtaining the certificate? Mr Kerr, sorry, I'd be grateful if you could speak to my colleague. It's very difficult to speak to him. Is the fraud, when someone seeks to obtain the certificate in order to commit a crime, is that the definition of the fraud that he is presenting in his previous, he didn't want to give specifics, but is that the nature of the fraud that he's describing? It's a helpful question and actually the answer therein lies in the wording of the amendment itself in amendment 108. An application for a gender recognition certificate is fraudulent if the applicant knowingly A makes a statutory declaration which is false in a material particular in connection with the application or B includes information which is false in a material particular in the application or a notice of confirmation given under section 8B3 in connection with the application, that's a technical answer. Essentially, if someone makes a false statutory declaration which is entirely a distinct possibility, then the gender recognition certificate will have been achieved through fraudulent means. That's the first scenario that in itself is an offence making a false declaration. If, by then receiving a GRC through the normal process, that person then goes on to commit a further offence, for example a sexual offence, offence of sexual violence, violence against another individual, and the court believes that the acquisition of the GRC was a material factor in that offence or a facilitating factor to enable that individual to commit an offence, then that would be an aggravated offence. It is very likely that it would only be relevant in the scenario where a holder of a GRC commits an offence and the court deems that that offence has been committed and facilitated through the acquisition of a GRC that was acquired through fraudulent means. As I said, there are a number of cases, for example, where I believe my amendment had it already exist in legislation, it would have been helpful. By way of example, the presenting officer permits me, there were a number of cases a few years ago where a number of individuals were convicted of sexual assault, for example. Those individuals held GRCs. At the time, and I could, members are welcome to look them up, the Crown versus Barker, McNally, Wilson, Newland, there are a number of cases in this scenario. Just one second. Those were trans men who had female partners. The female partner only discovered the transgender identity of the offender in most of those scenarios at the point of intercourse. Those people were charged and prosecuted duly with sexual offences. There is no aggravating factor in that. They were simply charged as individuals with sexual offences. In this scenario, under those proposals, the courts would look more severely on that, because there would be a direct link between that person having obtained a GRC and then committing a sexual offence as the nature of it was in that scenario. In my scenario, those people would have received a harsher punishment for that offence because of that link between obtaining a GRC and committing an offence of that type. That is why I believe that these are important and helpful additions to the legislation that does not currently exist in the system. I have to give way to the member. I thank Jamie Greene for taking an intervention. I want to take him back a little too. I listened carefully when he was answering Graham Simpson and he seemed to say that there was no difference between the previous act and this act in terms of evidence, but there is a rather major difference in that people would have had a diagnosis of gender dysphoria. I appreciate that we do not wish to have that moving forward, but does that not mean that the evidence that is remaining is a bit arbitrary and subjective? How do you prove a fraudulent inquiry if it is about how people feel? I respect the member's position on that. To be clear, there are people who believe that the process of a gender dysphoria diagnosis is an important part of that process and an important safeguard in that process, because, clearly, evidence must have been submitted to the panel in obtaining a GRC. Of course, the change in this legislation is not that it is removed. I understand that. However, that does not take away from the fact that making a statutory regulation is still an offence. Whether or not evidence is submitted or not, we have had quite a wide range of discussions. It is not actually part of those amendments around how one proves that one is living in an acquired gender. That has been a matter of debate since the 2004 act. As I said, the scenarios are hypothetical scenarios. However, what the amendment does—and it is quite important—is to give the court that flexibility. If there is a view that a statutory declaration was made falsely and that the acquisition of a GRC enabled and abetted that individual to commit a further offence, then, A, the GRC can be revoked and, B, any sentence given will be harsher than any normal scenario of a similar type of offence made by any other individual. I am not sure if that answers the member's questions, but I am doing my best here. Essentially, what this group of amendments does, and I will close on this, is to reintroduce the things that people believe have been taken away from the simplification of the process. It is to act as a deterrent. It is simply to give a strong message to people that says that they cannot abuse this new process for nefarious purposes. If they do, the law will look harshly upon them. You must know that making a statutory declaration is a solemn and aggrave act and move. Doing so falsely will be looked upon by the law. It is not possible—will not be possible—to use this process to commit further crimes and get away with it. That is the important point here. What I am trying to do is to reintroduce any perception of a loss in safeguards by introducing things that do not even exist in the current process that will have absolutely no effect on trans people whatsoever who go about their business who apply for a GRC under due process. Those amendments, importantly, go back to my second point, which I made at the beginning of my comments, is that they are competent. That is so important in the type of chamber that we have where we are unable to revisit legislation after stage 3. They have been legally reviewed, I believe, are helpful. I believe that they have been welcomed even by those in favour of the legislation. In my view, they are important because that concept of deterrence is an important one. I call Rachel Hamilton to speak to amendment 116 and other amendments in the group. I stand with the comments made by my colleague Jamie Greene. I would like to put on record my thanks as well to parliamentary staff yesterday. I also stand with him on his comments that it is important that we do compromise and that we find shared ground, which I think we did yesterday by supporting a number of the government amendments and others from these benches. Moving on to my amendment 116, which seeks to make it a criminal offence to gain access to a single sex service as a result of having fraudulently obtained a gender recognition certificate to access a single sex space. The amendment seeks to address a key concern of thousands of women and girls who have contacted me, my colleagues and many others in this chamber about the potential unintended consequences of the bill. The provisions of the bill open the ability to obtain a GRC to a much wider and diverse group of people. The danger that this amendment aims to mitigate relates to the potential for bad faith actors to take advantage of the bill by fraudulently obtaining a GRC. The right to access single spaces such as changing rooms, hospital wards, religious spaces can be conferred upon by holders of a GRC, unless, of course, the service provider is confident that they can legitimately exclude people of protected characteristics. My fear is that without this amendment, a bad faith actor, as I said, could fraudulently obtain a GRC to access these spaces. Therefore, I believe that it is imperative that we criminalise such an act, both to deter people from doing so and to convict those who do so. Just on Monday evening, the committee that I sit on heard evidence from the special rapporteur on violence against women and girls and in relation specifically to the harm that this bill could have on the rights and protections for women and girls. During her time giving evidence and in her correspondence to the committee over the last few months, we have heard that women across the country may have to self exclude from women only spaces because of this bill. We need to take these concerns very seriously. Her expert opinion should not be brushed aside. I know that she has consulted widely on this matter and her opinion has been well informed. If this bill passes and these concerns are not addressed, I think it is right that the cabinet secretary takes the time to explain exactly why Mr Salam's comments have been, I suppose, brushed aside by the Government, because they address specifically my amendment in this group. We must take our time to listen to those who have warned us in this chamber about the dangers of the bill to women's spaces. I sincerely hope that Members will reflect on this amendment. I would also like to recognise the points made in interventions by Graham Simpson and Ruth Maguire. A lot of my amendment is based or hangs on some of the amendments that I aimed to achieve yesterday, so I just want to respond to the concerns that individuals have. I am not yet sure until I hear from the cabinet secretary whether I will press this amendment. First of all, I want to thank Jamie Greene for always bringing a thoughtful amendment around some of the technical issues around offences and the commission of offences. I want to look at it from that point of view, so I am very grateful that he has responded to the question that I put to him at stage 2. To prove a commission of any crime, you must show the mental element to the crime and the behavioural element of the crime, so it is impossible to see in someone's mind, so you have to look at the actings of the person to establish what they were thinking. What is it about the commission of a fraudulent application such as in this amendment 108 that is required to be shown? Crucially, the bill is a self-identification model with no specific requirements as to what would constitute living in the gender. As the cabinet secretary pointed out yesterday, the guidance on acquiring gender in the 2004 act sets out what is required under that act, which is the gathered documentation, but, importantly, it must be noted that at the end of that two-year period, it is the panel that then signs off before the declaration. I think that that is an important difference to understand. When we come to this legislation, I think that we need to be clear about what kind of evidence needs to be brought before a court for this offence that would be brought before it. For example, I also said at stage 2 that the member, James Green himself, said, while he could show the commission of the crime by showing that the person did not really mean to apply for a GRC and had not been using the correct pronouns or had said something about appearance. However, because there is nothing on the face of the bill that requires a definition, I do not really think that that would be enough. That is why I am really interested to probe this question. How would you prove such a fraud? Of course, it is possible to reverse a GRC and rightly so because people may change their minds, so we have a provision to reverse it. My concern would be that the way that a reasonable explanation could be used as a reasonable explanation has not been charged with a fraud under this offence that you changed your mind in your reverse to GRC. I am really just trying to probe the technical nature of it and to see whether it is of any value. I would say on the balance that I would support having it, that they are not having it, and that I would also support having an activation because, although it might be unclear to us now why it might be needed, I say that I would rather have a belt and braces than anything else. There is a requirement under article 5 of the ECHR to provide legal certainty on how an offence is committed in any act that we pass. I am concerned that the answers not only from the cabinet secretary got stage 2 do not seem to square with the legislation that we are looking at that does not require any specifics in order to require your gender. It is simply a declaration that that is the gender that you wish to be living in now. I have your birth certificate aligned, so to have some difficulties showing how would you prove that to a court. On the balance, I would say that I would rather have it in the legislation than not. Pauline McNeill raises the fundamental questions here. The issue here is if this bill passes as it is, so right as it is, somebody just, we have self-id, we have a system of self-id, so all you have to do is declare or I could declare I'm a woman. I could tell you now I'm a woman, I'm not a woman, but I could be telling you that. You would then say we'll prove it, I don't have to prove it. All I have to do under this bill is say I'm a woman and apply for a certificate. No evidence required other than me saying I am a woman. So if somebody is to challenge that and say no you're not, you have obtained the certificate by fraud, surely then they would have to prove that I'm not a woman. But I've not had to present any evidence other than state the fact or not that I'm a woman. So how can we have, how can we have a fraud committed? Now people are looking puzzled by this, I am puzzled by the bill, let me tell you. So we have a situation and on these well-meaning amendments and they are well meaning, you want to make an intervention Mr Kerr? Stephen Kerr, in my intervention to Jamie Greene I suggested that the only fraud possible would be someone obtaining a GRC for the purposes of some nefarious act they had in mind to perform or commit. Would you agree? I agree that that is a risk in the bill, that is one of the problems with the bill. But how do you prove it if no evidence is required to obtain one of these certificates? That's something that many of us or several of us have been trying to tackle in the amending stages at stage 2 and stage 3 unsuccessfully. So we're left with a bill which requires no evidence, just self-id. So how then can you have a fraud committed or unless you can prove that I have lied and why would I own up to that? But somebody has to prove it in court. If you're going to have the, yes? Ash, we can... Would the member agree with me that evidence suggests that the risk of getting court committing and offence is a very effective part of deterrents? Criam Simpson. Correct. That would be a deterrent. So where's the risk here? There is very little risk because of the situation I've outlined where no evidence required to obtain a certificate. How can the police, if they got involved, how would the police be able to prove anything? Brian Whittle. Very grateful for Graham Simpson for taking intervention and actually wrestling this with that exact point since speaking to a policeman the other day who said to me that if a transgender person walked into the opposite toilet and was challenged by somebody in that toilet, one of those two people is committing an offence, how did they tell the difference? Criam Simpson. Precisely. Precisely. That is the point. A good point well made by Mr Whittle, as I would expect. So all the amendments in this group are very well meaning and they would work if obtaining a gender certificate required you to produce some evidence because then you could disprove the evidence but we're not asking that. So unfortunately for me none of these amendments work and I would urge the members not to press them. Thank you. I call the cabinet secretary. Thank you, Presiding Officer. Can I just put on record my thanks to Parliament staff for the very late sitting last night. It was very much appreciated by members across the chamber. At stage 2, Jamie Greene lodged an amendment to introduce a new statutory aggravator of an offence connected to fraudulently obtaining a gender recognition certificate. At the time I supported Jamie Greene's amendment with the caveat that it would require some adjustment at stage 3. I'm grateful to Jamie Greene for working with me to develop the updated wording in amendment 114. The introduction of a statutory aggravator supplements the other safeguards in the bill and provides additional assurance against misuse of the system. Jamie Greene's other amendments in this group also strengthen the bill and I'm happy to support them. Revocation was already possible through an application to a sheriff but making it automatic in the case of conviction is sensible and appropriate as he does here and therefore I support all the amendments in this group in Jamie Greene's name. I don't support amendment 116 in the name of Rachel Hamilton, which specifically creates an offence of gaining fraudulent access to single sex services. The bill already creates an offence of making a false application with penalties identical to those in Rachel Hamilton's amendment. Under Jamie Greene's amendments there will also be an aggravator of an offence connected with a fraudulently obtained GRC. Could the cabinet secretary please just say what safeguards would be put in place to prevent those who fraudulently obtained a GRC from accessing women's only spaces? First of all, the protections under the equality act that have exceptions for single sex services spaces are there and are unchanged by this bill and therefore anyone who would be entering a service for example for victims of sexual assault that was for women only and could exclude transwomen. If a transwomen was to try and enter that space then it would be an offence under the common law like breach of the peace for example. If they were then because they may be a genuine transwomen trying to enter a service that excludes them, so in that circumstance that would be. If they have a GRC under fraudulent and have made a false application then clearly that is what is dealt with through those provisions and it is a very serious offence with up to two years in prison and an unlimited fine in the circumstances that would be covered briefly. The whole concept of applying fraudulently means. Will the cabinet secretary spell out for the benefit of all of us what exactly does this offence amount to of applying fraudulently for a GRC? How do you define it and how do you prove it? For example, someone of interest would be able to go to the sheriff for example and provide evidence, enough evidence that the sheriff themselves would look into whether the person was living in the acquired gender and essentially they would have to be able to demonstrate that they have been living in the acquired gender as per the guidance under the 2004 act. The end of the day like any other case in court the sheriff would look at the circumstances of the case and if it was found that the person had made a false application looking at the circumstances of the case then clearly they would then face the penalties for making that false declaration and if they went on to commit a crime which is what those amendments deal with and it was shown that part of the crime involved them having obtained falsely agenda recognition certificate then there would be an aggravator to that crime. I think this is a sensible set of amendments that strengthen the safeguards that are already in the bill and I would ask members to support the amendments in the name of Jamie Greene but to reject the amendment in the name of Rachel Hamilton. Thank you Jamie Greene to wind up and press or withdraw amendment 108. Thank you Presiding Officer and I thank members for their contributions. It is a debate and we on these benches are happy to have these debates I'm pleased to say. I just would say three points really as these amendments I believe are from a legal point of view self-explanatory they're lengthy and just if I could make a little bit of progress then I will thank you. I do want to say three things the point first point made by Pauline McNeill is that I would rather there's something in the bill than nothing I agree with that sentiment I believe that there's something that introduced at stage 2 had technical and legal issues and I've sought to resolve those without the assistance of certainly anyone in these benches I've resorted to getting assistance from legal advice from elsewhere to try and make them competent and I believe they are competent or at least I'm advised they're competent as is always the case with these things such as aggravators that exist in other pieces of legislation they're often not we often don't know until they're tested in courts and in specific cases and they're put through their their rigorous testing in that scenario I did I do have sympathy with the notion that there is a spectrum of having nothing on the face of the bill that states what that criteria is around what constitutes an offence and having a large range of specificity about it and somewhere in the middle might have been a better balance so I do understand that and that's an issue that I wrestled with myself ahead of this amendment the second point though is members are of course as is their prerogative if they don't support them or they don't agree with them or they think they're purely worded don't vote for them that is the point of today's session but the third point is a theme that I've maybe picked up in and that's the conflation of this without both the other clearly parallel issue of that of self-identification which is again a very valid debate to be had on the first point or yeah on the first point on the chair I'm very grateful just if I may take the member back to the legal points because I'm really struggling with I just didn't hear an answer from the cabinet secretary we're talking about fraud here which is a criminal offence and it seems to me that if that's right then proving it requires the act of doing this but it also requires the mens rea the intention and what I'm really struggling with here is to understand what could be adduced what evidence could be brought forward that would show that would prove beyond reasonable doubt that intention because I'm not hearing that so far Jamie Greene yeah and the member makes a very valid point you know the idea that prove that someone has made a statutory false statutory declaration or fraudulently obtained a GRC clearly is a matter for the court to decide now there will be evidence given that that and again it's difficult to foresee that because it so rarely happens and indeed since 2004 I believe it's so rarely been tested in court because it already is possible to get a GRC and already is possible and an offence to make a false statutory declaration so I don't have a huge amount of case study precedent to refer to it would have been helpful if I did actually but there are you know in my view and I don't want to preempt what courts criteria might look at but the scenario where someone has made a declaration and clearly has done so falsely would include some of the factors I raised in my opening statement for example it could be proven demonstrably that that person had not been living in their acquired agenda there there are ways of doing so yeah and in one second I want to answer the other member's point first there are clearly manifest manifest ways that one can do that and that is as as I stated in the opening comments around that of not living in one's acquired agenda for the period defined for example physical evidence of not using pronouns that are claimed to be attributed to the acquired gender of that of those of evidence given from those who know the offender who also believe that the declaration was made false that evidence could be used in a court and as stated in amendment 114 the evidence from a single source is sufficient to prove that an offence is aggravated by a connection of a GRC obtained by fraud and that would be a matter for the court in that case at that time to decide if they were so moved that they do not believe that that that case has been made then that would be a matter for the court did another member have an intervention yeah sure Jeremy Balfour thank you thank you can I find Mr Green for taking this intervention I wanted to ask the cabinet secretary I mean I'm very sympathetic to what you're trying to do here but the test within a criminal trial is beyond reasonable doubt it's a very high test that a sheriff would have to take in regard to that and I am still struggling to follow on perhaps for Mr Simpson Mr Kerr is what evidence can the crown bring in any case that would reach that test of beyond reasonable doubt and I think there's a real danger here that we are making a law that could never be enforced and is that a good way for us to be moving forward jimmy green it may never be enforced but could be enforced Mr Balfour and that's the point is important that it exists so that in such a scenario it could be enforced now that will I hope it doesn't because if it does then it shows that the system has been abused but if we are in that scenario where it is tried and tested and put to the test then as the member rightly said it would be a matter for the court to decide if beyond reasonable doubt the case has been made that a declaration was false and that the aggravator is so relevant and I have every faith in the judiciary to make that decision based on the evidence that is provided by both those prosecuting and those defending and that's common in a number of factors as I said this could be related in many ways to the legislation that this Parliament passed around aggravators that exist around domestic abuse where in that example the abuser was using children as a means for example to further traumatise the victim and in that scenario the court on the balance of the whole would decide that that's an aggravating factor so this is it's not an unusual concept I appreciate if members aren't happy with as it's worded but are sympathetic to the the notion of it and I appreciate that all I can do is try my best to word things in a way with advice that I get that make them competent and I'm sure they are but again all of this would be tested in courts in the unlikely scenario that this came to a court the underlying principle and this is a point I do want to make though is that the principle the underlying principle behind it what I was what I'm trying to achieve is to improve the scenario that there is a greater deterrent you know that perception of the dropped safeguards as a result of simplification of the process whether you agree with the new process or not is that if in any way any member is well you can submit amendments and we're all welcome to the amendments can introduce something that tries to improve the deterrent aspect of this to say no you cannot use this new process for nefarious purposes and if you do the law will will take that very seriously and that's the underlying premise of it if I haven't achieved that you don't think if achieved that don't vote for it if you do please do what I cannot fix though is if members have problems with the concept of self-id that's not a problem I can fix that is your personal view no I think I've probably said enough on this pardon well I'll give way then Ruth Maguire I just wanted to be really clear I was not making a point about self identification in itself I was just pointing out the difference between the two systems and asking how evidence would be proven I mean people may have a concern that folk will be wrongly accused I think I mean I get that prosecution is the business of the prosecution service but laws are business and we need to be really clear what we're legislating for so it's I really was not making a point about self-id I was talking about your amendments Jamie Greene first of all I didn't refer to the member by name and or Glansner direction in general that comment is not directed at any individual members I'm making a point though and I think it's fair to say it'd be unusual for me not to point out that there are members in the room who do not agree with the change that the legislation proposes as a matter of principle I understand that and I respect that as much as members respect my position on this I'm not accusing the member of saying that the member does make it a very valid point and that that is that people may be wrongly accused of such matters that therefore as is the case in any criminal case would be a matter for the defence to make that case and the prosecution to prove it and the court to make a judgment that's the whole point of the independent judiciary now if I have confidence in it other members may have less but I do make that point that members who have a problem with the change in the process the reduction in the living and acquired gender the threshold of evidence that needs to be given as a result of that the removal of the panel all of these things that this bill does if you have a problem with those that's fine this amendment doesn't alter that it doesn't affect that and it won't change any of that people with opposition to that will still have opposition to that all I'm trying to do is improve the bill by adding in what I believe is a much needed turn and I'd be happy to move them when it comes to it thank you Presiding Officer yes can I just confirm um mr green that your intention is to press amendment 108 it is thank you the question is that amendment 108 be agreed to are we all agreed no um the parliament is not agreed therefore there will be a division and as this is the first division of the day I suspend for five minutes