 Felly, gweithio i'r ddigon i'r Gweithgwrs Pwg Morhgyn Daerys Cymru yn 2024. Felly, rydw i'n gwybod i'n gweithio i'r Cyflaid, ac rydw i'n gweithio i niol Bibby MSP yng Nghymru cofoddiad yn Llyfrgell Cymru. Felly, rydw i'n gweithio i'n gweithio i'r Cyflaid, Maggie Chapman MSP, Ash Ragan MSP, Tess White, MSP, Rachel Hamilton and MSP. fautn't we move on, I wonder if I can ask our MSP colleagues who are joining us for the first time today, if they can declare any interest. I'll just go round the room. Thanks very much, convener. I formally worked for Erote Crisis centre. Okay. Thank you very much indeed. I have no interest to declare, but thank you for asking, convener. No relevant interest to declare, convener. That's great. And Neil Bibby. I have no relevant interest to declare. That's great. Thank you very much indeed. Our first item of business today is consideration of the newly updated policy from the Scottish Prison Service on the management of transgender prisoners in Scotland and the two associated SSIs which are on our agenda today. I refer members to papers 1 and 2. We are joined today by the Cabinet Secretary for Justice and Home Affairs and Theresa Meddhurst, chief executive of the Scottish Prison Service, so welcome both. We are also joined by two officials from the Scottish Government, Mr David Dorris, prison's policy team leader with the Scottish Government and Mr Jamie McQueen, solicitor with the Scottish Government legal directorate. Before we start, I want to make it clear that we are considering the updated policy on transgender prisoners today as I recognise the public interest in this matter and because several members of the committee indicated that they wish to do so. The committee does not have a formal role as such in approving the new policy. That is not what we are doing today. The purpose of this meeting is to hear more about its content and the rationale for the new policy. The committee does have a formal role because the policy changes trigger the laying of two SSIs which are on our agenda today. We have to take a view on whether to recommend to Parliament that those SSIs come into force or should be annulled. Let me begin by inviting Ms Meddhurst to make a short opening statement on the new policy and the SSIs, and then I will ask the cabinet secretary if she would like to add anything further. Good afternoon, convener and committee members, and thank you for the opportunity to outline the content of the Scottish Prison Service policy for the management of transgender people in custody, which was published on 5 December last year. As you know, safeguarding the health, rights and wellbeing of all people in our establishments, some of whom are the most marginalised and vulnerable in society, is a key priority for the Scottish Prison Service and is at the heart of this new policy. I understand that there have been various submissions to the committee regarding the policy, and I do recognise that the detail of the policy itself not only interests Parliament but also the wider public in general. The SPS has a proven track record of managing and supporting complex and vulnerable people, and we continue to do this daily on a 24-7 rolling basis with care, compassion and pride. Our commitment to providing person-centred care extends not only to those with clear and obvious additional needs, but to our entire population. As custodians, we manage identified risks bespoken to an individual, which are often not exclusive to transgender people in custody. We are only able to do this with the support of our staff, who continue to demonstrate a long-standing expertise in the management and care of an increasingly complex prison population, which is key to our success. A comment made by one of our stakeholders during the period of consultation is that the recognition of one's gender is essential to human rights and individual wellbeing. This recognition in wider society should, as with all other rights, also apply to prisons. It is therefore essential that our policies reflect and recognise the impact of these wider societal changes. However, I completely understand the need to provide public assurance on how we implement, monitor and review our policies. Our corporate policy review for transgender people in custody has been one of the most comprehensive and evidence-based in recent times. It has been developed following extensive engagement involving over 200 women and men in custody, including transgender individuals, as well as experts in violence against women and a broad range of community organisations and service providers. The policy by its very design is applied on an individualised basis. It outlines how transgender people will be first admitted into custody, where they are accommodated during their sentence and how they will be managed. The personalised approach ensures that any transgender woman with a history of violence against women and girls who presents a risk to women and girls is not placed in the women's estate. Whilst I am clear that the approach supports the welfare of everyone in our care, I am also clear that it provides our staff with the ability to utilise their operational expertise in developing the relationships that are critical to support those who we are entrusted to care for. To support our staff, a transition period has been included in the planning to cater for the necessary training that will assist the operational implementation and application of the policy. Implementation, therefore, will commence from 26 February this year. In addition, we will also publish at that time our operational policy guidance, our gender diversity guidance and an evidence review document that will all underpin the published policy that was published last year. Finally, convener, you will be aware that, since February last year, there has been an unprecedented level of interest in the way that Scotland's prisons manage transgender people. I am acutely aware of the impact and, in some cases, detrimental impact this has had on the health, safety and wellbeing of people we care for. I therefore welcome this opportunity today to set out the policy in more detail and to increase understanding of this important issue in prisons. I do. Thank you very much, convener, and good afternoon to everybody present here at committee and in the public gallery. The Scottish Prison Service has considerable experience as well as a duty of care for the management of people in their custody and their policy upholds its responsibilities to deliver safe, secure and suitable services for all. Although the management of everyone in custody is an operational matter for SPS, I do welcome the updated policy on transgender people, which has been developed following extensive engagement and careful consideration. The policy makes clear that if a transgender woman with a history of violence against women and girls presenting a risk of harm, they will be admitted and accommodated in the men's estate and not have access to the women's estate. I will speak briefly about each of the SSIs. The Prison and Young Offenders Institutions Scotland amendment rules 2023 will change the prison rules to make it clearer that prison governors have a discretion to allow a transgender person to be searched by an officer of their birth sex if it is necessary and proportionate to do so. That will ensure that the health, safety and welfare of the transgender individual and staff are considered in searching decisions. It is necessary to ensure that both the current SPS policy and operations on searching and the updated policy are clearly allowed for in the prison rules and that they are easily understood by those affected. That discretion will only be exercised for the purpose of protecting the health, welfare or safety of any person or the security or good order of the prison. For example, if there is a risk to the safety of an officer, if they are to search a transgender individual in line with their affirmed gender, then the transgender individual will be searched by an officer of the same birth sex as the individual. Amendments are also proposed to make clear that governors have a discretion to allow a transgender person to be observed by an officer of their birth sex whilst providing a sample for drug or alcohol if it is necessary and proportionate to do so. Turning now to the Gender Recognition Disclosure of Information Scotland Order 2023, the order proposes to put beyond doubt that it is not an offence for staff involved in the offender management to disclose protected information acquired legitimately in their official capacity when required for the purposes of offender management. It is vital that SPS staff, just as social work services, the parole board for Scotland and others involved in the management supervision and rehabilitation of those charged with or convicted of offences can, when necessary, disclose protected information, whether a GRC has been applied for or granted without risk of committing an offence under section 22.1 of the Gender Recognition Act 2004. The SSIs have passed will come into effect on 26 February 2024, which aligns with SPS plans for implementation of the updated policy. It will not occur if a prisoner presents an unacceptable risk of harm to those in the women's prison. I have been a bit more detail around the risk assessment and risk management process in this space. Can you reassure us that the Scottish Prison Service will have access to all the relevant information that it would need from, for example, courts, police, social work and other agencies in order to inform such a complex risk? Thank you, convener. That's a really good question and one that I welcome, because the risk assessment processes that we apply and will apply to complex cases, because this will apply to complex cases in any kind of standard case, so it would be exceptional circumstances if someone would be considered. Under those exceptional circumstances, there would be a rigor applied, so the case conference process would go through the risk management team. The risk management teams are multidisciplinary, so we have a range of professional expertise at that table, including forensic psychology. We have criminal justice social work, we have health input as well, so a range of expertise as well as our own operational expertise. Those case conferences will be chaired by either the Deputy Governor or the Governor within the establishment. They look at the full range of information that is contained within the case file of the individual, including their history, not just their history of offending, but their history prior to coming into custody, their behaviour and response while in custody and would identify at that point whether or not there were any gaps in that information. In relation to complex cases, sometimes, not always but sometimes, it's clear that there are gaps and therefore more in-depth psychological risk assessments can be commissioned, and they would be undertaken by very senior forensic psychologists, and those would identify if there are gaps where those gaps exist, what information we would require in order to ensure that we could develop an appropriate and safe manner. If we can't do so, then that case would progress no further, but where all of that information was tied down, it would then move to an exceptional case review, and that exceptional case review panel would be chaired by the Deputy Chief Executive. Again, it would include both internal expertise to SPS but also external expertise through the Office of the Chief Social Work Advisor at Scottish Government. A range of professionals at each level who are very well experienced and have expertise in risk management and well-honed systems and processes that we apply not just to those who are transgender but across a whole range of other high-risk individuals where that's necessary. I know that this is a moving figure, but what is the population of individuals who identify as transgender in the Scottish prison estate at the moment? The last published data was 23 individuals. I'm now going to open up questions. If I can ask for brief questions and fairly succinct responses, just we're tight for time, so with that I'm going to hand over to Russell Findlay. Can you confirm that under this new policy, and that's the question for Theresa Meadhurst, if the rapist, Isla Bryson, or indeed any other male body sex criminal, asked for a transfer to a woman's prison, it could happen? Sorry, I'm a bit confused by your question, Mr Findlay. Under the new policy, if someone like Isla Bryson or any other male body sex criminal, if you don't want to talk about individuals, sought a transfer to the woman's estate, it could happen. Somebody who has committed a crime of sexual nature and who presents a risk to women will not be transferred to the woman's estate. Okay, that presents a risk to women part of it. If it is deemed that someone like Isla Bryson or another male body sex criminal was deemed not to present a risk due to an SPS assessment, they could go to the female estate. I would be struggling to understand in what circumstance is somebody who's been committed of a sex offence would be deemed not a risk to women. Okay, so a male bodied criminal with a history of violence could, under the new policy, move to the female estate. History of violence against? Generally. Generally. It would depend on the circumstances of that individual case, what that violence was related to, what risks were identified, and it would again have to go through. Anyone who has committed an act of serious violence goes through a very rigorous assessment process, both in relation to their management plan as well as their placement. And that applies regardless of whether or not they are a transgender individual or not. I understand the new procedure, but I think the short answer to both those scenarios is yes, that they could in theory. Highly, highly unlikely, Mr Finlay. Okay, thank you. The next question is for the cabinet secretary. Now SPS documents explaining the new policy say that if prison staff misgender and inmate, this could breach the inmate's human rights. And article 3 is cited in relation to inhumane and degrading treatment. Yet, not so long ago, Humza Yousaf said that Eila Bryson was at it. Nicola Sturgeon refused to say if she thought Bryson was a man or a woman. So my question is why should SNP First Ministers be free to speak this very basic truth? Will SPS staff and female inmates are prohibited from doing so? Well, of course, everyone is free to speak as they wish. But as you would expect me to say, Mr Finlay, and of course for this to be reflected amongst practice in the SPS, that we endeavour, where appropriate and in their circumstances necessitate, to respect people's identities. And if I can perhaps explain my view in this, is that given my exposure and involvement and visits to prisons, I know that people wish to live and work in an environment where people are respectful to each other, as that helps to create a more secure and safer environment for everyone as it helps relationships. And maybe one example I can give, again through my contact with prisoners and ex-prisoners, is that they say that when they are referred to by their name as opposed by their number, that that small measure or a measure that may seem small is very helpful in securing and establishing relationships. I mean, I don't think anyone's got a problem with respecting individuals' names and so on, but this is about the discrepancy between what's required of prisoners and staff being at odds with what has been stated by prominent politicians. Do you see that anomaly? I understand your question, Mr Finlay, but I think the reality is that everybody is free to speak as they wish. I'm not aware of significant consequences for any individual involved in the circumstances that you describe. I'm merely stating that, generally speaking, it is better if people respond and react to each other in a manner that respects people's identities. The new policies would require female prison officers to conduct intimate searches of male-bodied prisoners who identify as female. Can female staff decline to search male-bodied inmates, or would they be disciplined if they refused? Staff are not disciplined for any issues that they wish to raise in relation to searching. We have, over a number of years now, had a process in place whereby individuals, our members of staff, are able to discuss their concerns with their manager. We continue to search transgender individuals in relation to their affirmed gender without much in the way of difficulty. That will continue, and we will continue to work with our staff in the most constructive way possible. Nobody will be. There is no intention to discipline anyone. So they have an opt-out? What I would say to you, Mr Finlay, is that our staff are very professional in relation to the work and how they do it. If there are particular concerns that they have, they are entitled to raise them. We will listen to them, and we will work with them to ensure that... Do they opt out? I suppose that it is an individual approach, and each individual... I suppose that what I am trying to say is that we have a responsibility and a duty of care where there are individual concerns. We have always worked with our individual members of staff to listen to those concerns and work around that with them. What that results in is how we manage it. A labourer point sounds like they do not have an opt-out. If I can just come in and move things on, because I do want other members to have an opportunity to come in, and I will bring it back to you if we have time. John Swinney. I would like to follow up the point that Russell Finlay has been making with Theresa Maydhurst in relation to the discretion that is provided for Governors to opt for asserts to be undertaken by the original agenda of an individual. I wonder if Theresa Maydhurst put on the record the approach that she would envisage that a Governor would take in fulfilling the statutory obligation that will be contained within the instruments that the committee is considering this afternoon, in fulfilling that obligation particularly in the scenario that Mr Finlay puts off where an officer has got concerns about what they are being asked to do. What we have with the new policy, which we did not have previously, is that we have a searching and sampling form. That form carries out and conducts an assessment as part of the case conference with the transgender individual around both their preference for searching but also takes account of any concerns around searching. That will all then be recorded and a decision taken as to how the individual will be searched, whether it will be by staff of their affirmed gender or staff of their birth gender. On the basis of that decision, which as I say involves both the individual and that risk assessment process, searching will then be progressed. If a member of staff, if it is in their affirmed gender, has got... It's difficult to hear witnesses when their conversations go on to my left. What does that concentrate on, Mrs Maydhurst, to say this? The governor has a discretion where there is an identified risk of determining whether or not the transgender individual should be searched by somebody from the affirmed or birth gender based on that assessment. That assessment does take account and will involve the views and perspectives of the individual themselves. On that basis, the searching procedure will be put in place where a member of staff to raise concerns about that will be discussed with their line manager. Some agreement reached us to how best to move forward in relation to their concerns and how those concerns have been raised. It's difficult to say what would happen based on not being sure about whether or not it's concerns from a religious perspective or another perspective. Out of that, would you accept that the instrument that the committee is looking at this afternoon places an obligation on the governor to ensure that in their institution that appropriate opportunity for a member of staff to raise their concerns and to have them properly and fully addressed is required of the governor as a consequence of them being allocated this discretionary power? It puts on the surface of the rules that explicit decision making power that they have. They have that at the moment and we have a way of recording it that we didn't have previously. It means that those decisions are not only logged but can be reviewed. They are recorded and reviewed. What it also allows us to do is to look at consistency across the estate in relation to how people are being managed because we can then go in and sample them on the back of that. It means that the governor will now conduct something that is much more formal than it was previously. It goes quite a considerable way to ensuring that we are protecting the safety of everyone. It takes a kind of not just the staff's perspective or the individual's, transgender individual's perspective. It brings both of those together. What is in front of the committee today is a strengthening of the obligation that is on governors to ensure that the perspectives of members of staff, the concerns that they have, are being addressed to a greater extent with greater obligation than was the case before. It is far more explicit and it will now be recorded as well. If I could move on then to the ground that the convener started on, which is on the risk assessment that is undertaken. I wonder if you could explain to the committee the degree of rigor and the scope of the risk assessment that is carried out in these circumstances and whether that rigor and scope is carried out in many other scenarios within the Scottish Prison Service. The rigor and scope that would be applied for exceptional circumstances, and that is what we are talking about here, would require a very in-depth analysis of the individual's life history. You are going through everything from their early years and their early life and their life experiences, how they were raised, any issues or matters that arose during that time, their relationships over the period of their early years and into adulthood, and their response to schooling, any jobs that they may have had. It takes in the whole context of how someone has lived and has commenced down the road of their offending behaviour, as well as taking account in this particular case of where that individual's transgender journey has started and how that has developed over either a number of years or in more recent times. It takes account of basically every element of that individual's life and goes into as much depth and rigor as possible, taking account of social work reports, police reports, our own intelligence focus. Everything related to that individual in the run-up to and including their time in custody is taken into account. Will the sources of information for that? Are there any limitations on the sources of information that the Scottish Prison Service pursues to try to ensure that it has the broadest possible perspective on the history of an individual and the potential risk that they may pose to any other prisoner or to a member of staff within the Scottish Prison Service? Are there any limitations on the scope of the gathering of information that is sought in that respect? We will seek out all information sources that are available to us, where there are gaps identified. That is when we would apply more detailed analysis and in-depth scrutiny by our forensic psychology team. The new prison rules do not appear to have any definition of gender in them. Does that mean that, for the purposes of prison searches, gender is defined by how a prisoner self-identifies? I think that the policy together with the rules means that we are treating gender as the persons-affirmed gender. Is that how they self-identify? Yes. Under the new policy, any male-bodied prisoner who self-identifies as a woman will be treated as a transgender prisoner, even if they change gender while they are in prison. If somebody while they are in custody comes forward and indicates that they wish to identify either as a transgender man or a transgender woman, then we would take that approach seriously and we would deal with it appropriately. There are 23 individuals in the prison system just now. How many of them were transgender when they went into the prison system and how many changed when they were in? I am afraid that I do not have that information. You do not have that information. The Ministry of Justice changed their policy last year. Why did you not follow the same policy as the Ministry of Justice? We are aware of the changes that the Ministry of Justice made last year. It is not normal for the Scottish Prison Service to follow other jurisdictions. As we did in this case, we review the research and the evidence. We look at other jurisdictions and we take good practice from them, but we apply it to a Scottish context because we are quite different from the MOG. That is why we have not followed the process down south. There are some practices from HMPPS that we have taken, for example the searching and sampling arrangements that they have in place. We will look at taking on practice from other areas. What we will do is look at our context and our arrangements and apply the policy in the way that we think will best fit the Scottish Prison Service. The Ministry of Justice policy, regardless of conviction, any trans woman with intact male genitalia is also ineligible for allocation to the general population of the female estate. Why did you decide not to follow that part of their policy? The evidence that we have pulled together, the legal obligations and regulatory obligations that we have as a prison service, we consider the individualised risk-based approach to the most effective method of being able to manage individuals and ensure that we can apply due weight to rights, risks and vulnerabilities to ensure the safety and wellbeing of everyone. That is why we have determined the approach of the individualised risk-based approach. The SPS is a trauma-informed approach to female offenders. The 2019 model of custody for women recognises women who have suffered some type of physical or emotional trauma are often hyper aware of possible danger and survivors of trauma may find it difficult to trust others. How do you reconcile that by looking after the women who are already in the prison if you are putting male bodied trans women into the female estate? Thank you for highlighting the women's strategy and the women's policy. As you know, the approach to women in the SPS has been to take that trauma-based approach. I am satisfied that our policy in relation to women is fit for purpose. That policy is about transgender individuals in custody and I am satisfied that the approach that we are taking takes account of the rights, as I say, the risks, the wellbeing and safety of all. Some of the women who are in the prisons are probably the most vulnerable, so are you discards in there? What I said to the committee when I was here last year and what the evidence base from our consultation with women in custody supported in the evidence that I provided last year is that the women in custody are actually very kind and very understanding of transgender individuals in our care. What they asked for and what transgender individuals asked for was to ensure that our policy in practice would prevent people who are predatory being given access to the women's estate. That is what this policy will do. I am sorry that I am not going to bring in Rona Mackay, followed by Pauline McNeill. Listening to your response to my colleague John Swinney and other remarks to Sharon Rowey, this policy seems to be much more specific and focused on a risk-based approach for everyone, not just the 0.3 per cent of transgender prisoners currently have. Will the policy apply throughout the prison estate in Scotland? I am keen to know how much autonomy Governors might have to bend the rules, if you like, and are they accountable to you if that happens? The policy does apply across the estate. Everyone is accountable to me because I am the accountable officer. Ultimately, what we have concluded from the extensive consultation process that we have undergone and the rigor that we have applied to the new policy is that we need to have better oversight arrangements in place. That is why we will sample decisions that are taking place over the course of a year and monitor case reviews to ensure that we are satisfied that we have that consistency across the estate, because that is one of the things that has come through that review. Given the low number of transgender prisoners, that should be quite easy to do. I want to go back to the question that Russell Findlay posed to Theresa Mayters, which I find that answer helpful. I want to make sure that I have understood what you have said to the committee. The policy is where transgender women who have had a violent conviction against women and girls and pose a risk. That is a policy. The confusion arises with the phrase and poses a risk. Is that what I want to examine? Russell Findlay said that he could not envisage a situation where the fact of a conviction would not be seen as posing a risk. That is clear then. Any transgender woman who is committed in a fence will not go to the female estate. That is what you have said. What I have said is that somebody who is a transgender woman who has committed an offense or has a history of committing offenses of violence against women or girls will not be considered for the female estate or the women's estate unless there are exceptional circumstances. That is what I am trying to tease out so far. He did not say that to Russell Findlay. Does that mean that transgender women who have committed a violent offense will not be required for the multidisciplinary panel? If it is considered that the individual should be in the male estate, an exceptional case would not be required. It would only be where there are circumstances where the vulnerability to the individual may suggest that an exceptional case should be considered. As I said, I am struggling to envisage in what circumstances that would happen, particularly in relation to the kind of example that Mr Findlay referred to, which was somebody who had been convicted of rape. In the interest of time, I would find it helpful if you could elaborate a bit further on what you have said is exceptional circumstances, because I think that the language is important. I understand that exceptional circumstances would be exceptional. I know that he cannot always guess what they might be, but if we could provide that information. My further question is, I think that most of parliamentarians here have taken part in debates about violence against women, and we have agreed that men are the problem. Where a transgender woman has committed a serious violence offense against another man, would that not suggest that they pose a risk to women? I just wondered why you did not include that category. I think that the range of expertise that can be drawn on criminal justice social work, forensic psychology, because what Mr Findlay did reference, was general violence. We would need, as an organisation, to unpick that very carefully, to be very clear and understand what the nature of that violence was, where it stemmed from, and therefore what risks would be posed. That would need to be really, really clear and really explicit before any decision was taken. I am right in saying that the Prisoners' Officers Association did not sign off on the policy. They have remained neutral on it, that is correct. I have read the minute that it says that they did not sign off on the policy. Further to John Swinney's question about, I think that this is an important one in relation to the SSI. I understand the discussion that now the prison governors will have. I just want to try to make that real in my own head. If a female prison officer does not wish to search a transgender woman prisoner, what is the route then? Can she opt out of that? Does she tell her line manager? I understand the discussion lies with the governor, but I think there is a bit in between I would like to understand. What I was saying, Ms McNeill, was that the individual and their line manager would have a discussion, but I cannot say what would be the basis for that refusal. I have not come across a circumstance where it has been necessary either to compel somebody or to discipline somebody. It is something that has not hampered the management and the searching of transgender women in custody so far. I do not envision it going forward. A female officer could go to the line manager and say, I am not happy to search that person. There will be a discussion and there will be follow-up, depending on what the objections from the individual are. As I say, in over 20 years of having transgender women in the prison estate, there has been nobody disciplined and I am not aware of any issue that has resulted in somebody not being searched. Professor Joe Phoenix, from Herring University, had written to the SPS as part of the consultation. I am not questioning why he did not speak to her because he did not have time, but she did say that she was not the only person to say this. You accepted the nature of women's offending and we deal with women offenders very well over the years. The policy is not evidence-based. It does not adequately provide for the safety of female prisoners. I think that you do accept her a vulnerable and modernised group. Do you agree with that? I am satisfied and confident that, given that I have responsibility for keeping people safe in custody, we have a world-leading women's strategy. We are working towards being a trauma-informed organisation. The safeguards, the changes that we are making within that policy, are making it far more explicit for staff, the range of factors that they need to consider, the violence against women and girls being at the core of that, the element of unknown risk being considered at the point of admission, as well as the escalation routes and the risk management team involvement being far more explicit means that there are far more protections within that policy for women than there certainly was evident in the last policy. Can I just intervene? Do you want to ask the cabinet secretary about that as well? No, about something else. The Scottish Prison Service has said that there is no longer going to give any data on where transgender prisoners are. We can debate whether or not transgender prisoners can be identified or not, and we can also debate that there have been some high-profile cases that get into the press anyway. It seems a bit unfair to me that, in order to do our job, to scrutinise such a policy, it is okay for it to be in the daily record. I presume that the SPS still has to answer an FOI request as to where transgender prisoners are. Are you not concerned, as the cabinet secretary for justice, that this committee cannot do its job if the SPS are no longer willing to give us data as to where transgender prisoners are? I make this point before you answer. I fully recognise the balances that have to be drawn about people's privacy and dignity of transgender people. I am not attacking that at all. But there have been some very difficult and publicly controversial cases in Islay Bryson being one of them, and there are many others. How can we do our job if we do not know if they are in female estate or not? The press will just report it, but we as parliamentarians in the democracy cannot know where a transgender prisoner is in the estate. It seems absolutely crazy to me, and I just wondered if you are comfortable with the SPS's decision on that. I would stress to Ms McNeill, convener, that I would not narrate that as a SPS decision as such. I would not narrate that as a position that anybody is comfortable with necessarily. Sometimes, as cabinet secretary for justice, I feel the frustration of not being able to talk in a more free and frank manner. The reality is that, as a minister in this Government, I have to uphold the law. If I am getting advice on information governance or on data protection, I and public bodies have to comply with that. I appreciate some of the frustrations around that. In many circumstances, it would be far easier if it was desirable or appropriate or legal to be discussed. Can you say what law you are referring to? What legislation refers to that? We have obligations under data protection, and we have obligations under information governance. How is it not applied before now? Up until now, we did get that information, but now we know what has changed in that period. Is a law changed or something? I will tell you about the advice that I have received since I have been in office that has come via my officials and the Scottish Prison Service as an executive agency. My question relates to the Scottish Trans briefing that they sent to the committee members, and I am sure other members as well. Generally supportive of the policy, but they have one area where they do not feel that it will achieve its aims in relation to non-binary people. They say that this will result in some non-binary people being held in either the male or female estate when this is clearly inappropriate to the particular personal circumstances. We are concerned that SPS have not properly understood the range of ways in which non-binary people may transition. What would be your views on what the Scottish Trans have said there? That is the only area that they have highlighted. The point that I made at the start in my opening statement, Mr McGregor, is that we recognise that this is a policy purely for transgender individuals, but we recognise that we need to give staff guidance in relation to those who are gender diverse, and therefore there will be separate operational guidance that will be published at the same time as the operational guidance for this policy. I am going to bring in Maggie Chapman and then I will bring in Ash Regan and Rachel Hamilton. Thank you very much, convener. Good afternoon to the panel. Thank you for being here. A quick follow-up on Fulton McGregor's question, the guidance that you indicated, will there be an opportunity to scrutinise or not challenge, but to have a look at what that guidance is and before it is actually in operation, if that makes sense? No, the intention is that we would publish that and operationalise it on the same day as we are operationalising this policy. But you are taking into account the issues that are facing it. A couple of other questions. A question around data, and this follows up on the question asked by Rona Mackay. You indicated that you would take a snapshot sample to see how decisions have been made for consistency issues. Given the numbers involved, would it not perhaps be better to look at all the data overall across the whole estate to better understand not only the consistency of application of the policy but also the impact on prisoners, trans prisoners and other prisoners and do that on a regular basis rather than just a snapshot after a year? It's not going to be just after a year, it's on an on-going basis. Sorry if I must represent that, Ms Chapman. This would happen over the course of each year, but you made a very valid point that sampling during the course of the year should we then review all of the samples at the end of the year. I'll take that on board and discuss that with our team. Thanks for that. Things will change also over the operation of this plan and as society changes as well and it will be useful to have on-going monitoring and evaluation of this policy. Another question I have is around the searching of prisoners and their visitors as well. The policy refers to the searching of visitors. I just wondered if you could say a little bit more about when you would envisage that being necessary and when a search of a visitor might take place by a member of prison staff of a different gender to the visitor? That, again, would be undertaken by a risk assessment. I know that it's different for visitors because we don't necessarily know them. If there were any concerns either in the way that an individual is behaving or presents, that would trigger something or an assessment being made by the staff, the manager and ultimately by the governor, but that would happen on a very infrequent basis, I would suggest. And would instances of that happening be recorded? Yes, absolutely. My final question, if I may, just for clarity, and this follows on from some earlier questions, if a transgender prisoner is convicted of a crime that has absolutely nothing to do with violence of a sexual or other nature, what would be the process for that prisoner in terms of the decision of which estate they would be sent to? What would that process be? So you're talking about on admission? Yes. So when somebody comes in, within the first 72 hours a case conference will be convened, what we would look at is all of the information that's available. If we have all of the information and it is a probe, if we have all of the information, there is no risk, no known risk and the individual identifies a transgender woman. Then they would be transferred to the female estate. If somebody comes in and we have risks or we have unknown information, so an unknown risk, then we would have to defer a decision until we had fuller information. Very often what you get is somebody will come in with a warrant that says assault, with no idea what that assault entails, whether it's being perpetrated on a male or a female, etc. So very often it will take time. Although the case conference says 72 hours, it may take much longer before we're able to align and pull together all of the information that we require on which to base a decision for accommodation. I'd like to pick up firstly on a response that Ms Medhurst made to a question that was raised by Sharon Dowey, where she made comments around the type that women's prisons were kind and they were tolerant. I would consider that to be irrelevant in the policymaking with regard to women's prisoners' safety. Why does this policy prioritise the feelings of trans-identified males over the safety of women prisoners? The policy doesn't do that, Mr Egan. I would disagree. What this policy is for spoke earlier about the strategy for women and that strategy for women is based on trauma, trauma-informed practice. This is a policy which is about how we introduce and manage and search transgender men and women who come into custody. So, as far as I'm concerned, that's what the policy does. We will have to agree to disagree on that because I have in front of me a number of submissions from experts who've been watching this policy development over the last five years very carefully and they would completely disagree with your position on that. They say that it doesn't protect the safety of women and I guess I'm not just referring to physical safety, I'm also referring to issues like psychological harm, which I'm sure Ms Medhurst will understand where I'm going with that. Yes, I absolutely understand that and I accept that entirely. But as I said earlier, this is a policy which is for the management. This is an operational policy for our staff to help them and guide them in the management of transgender men and women who come into custody. I'd like to move on to the policy underpinnings. It seems that the policy has been based on the Yogya Karti principles, which states that it doesn't have status in international law, it doesn't have any legal standing. So it seems a bit disturbing, wouldn't you say, to be basing policy, prisons policy and important policy about protecting people on something like this and not on things like CEDAW, the Istanbul Convention, the Bangkok rules. I would say that this is a serious admission that those international obligations don't seem to be referenced or referred to in the policy. So why is the SPS and the Scottish Government ignoring its international obligations here? We have, during the course of the whole evidence research consultation process, looked at a wide range of rules, regulations, some of which have been referenced in the document, not all of which have been referenced in the document. It is good practice to look at not necessarily just legislation and, in addition to that, things like the Bangkok rules. We are obviously aware of those, we do take cognisance of those, even though it's not referenced in this documentation. I think you'll find it's referenced in the women's strategy, but we would always take cognisance of not just legislation and regulatory guidance, but other references as well that are appropriate. So it's taken five years to develop this revised policy, and that was to correct the serious misjudgment in the fact that the previous policy did not consider the impact on women, that's been admitted. So the Scottish Government and the SPS have now taken five years to make the same mistake again, because if we're accepting the conversation that we've just had that it is not fully undertaking the impact on women and their safety from psychological trauma and physical trauma, et cetera, why have we come to this position five years later where it seems the Scottish Government is making the same mistake again? I'm happy to take that question, convener, if Ms Regan's content for that. It's vitally important to me personally, politically and as a Scottish Government minister, that this policy in terms of managing risks that some transgender prisoners present, that we view that through the whole lens of all what is now mainstream violence against women and girls policy. So there is a ream of policies past and present that have informed the underpinnings of the work that has been undertaken. I am always particularly interested as a minister to understand lived experience, and committee may be interested to know that every female prisoner was served on the policy. A high return rate was received around 40 per cent, and there was a number of in-depth semi-structured interviews. What that said to me is that women in custody were less concerned about living amongst transgender prisoners where that was safe to do so. What they were more concerned about, and this really spoke to me, was that we needed to ensure, both as the Prison Service and Executive Agency and Government, what they were more concerned about is that we get our risk assessment processes right, and that we are alert to people who pose a risk and that we are rigorous about this, that we do this, not in a blanket policy. There is no blanket policy in the UK, by the way. The policy south of the border has a strong presumption in favour of the measures that it wants to achieve and has measures for exceptional cases, too. It is crucial, bearing in mind the learnings of the report that was published last February, where the challenge was put that we needed to rebalance our focus on risk. It is imperative that the focus of the policy seeks to prevent people who will harm women from ever accessing the women's estate that we are looking at everybody, who comes through the door on a case-by-case basis and that they are thoroughly and appropriately risk assessed. That is at the heart of the policy, convener, and it is to make sure that those people who are at risk of harming or who want to harm the women that are in our care that they are not able to do that. I should add a point about the expertise of the Scottish Prison Service in this manner, because it is Theresa Medhurst who developed the women's strategy and the work to pursue a trauma-informed approach in the women's estate. Trauma-informed approach, by the way, also applies to prison staff as well. We should recognise the expertise at officer level, but also at senior operational level within the Scottish Prison Service, who have been doing this for, I think, over 20 years in terms of caring for transgender prisoners and managing the risks where those are presented. I am going to have to move on, Ms Reagan, so I am going to bring in Rachel Hamilton and then I know Pauline McNeill would like to come in and that will have to be our final question. On the risk assessment, cabinet secretary, the new transgender prison of policy states that a risk management team and subsequently an executive panel decide whether a prisoner poses a risk to other female prisoners and therefore eligible to be transferred to a women's prison. Are those the same risk management team and executive panel that decided that Isla Bryson should be sent to a women's prison? The new policy that is just published is that it retains and builds on the core protections that are in the interim policy. The purpose of this policy is to strengthen arrangements by ensuring that those risk management teams within prison establishment, those multidisciplinary teams, are well supported. There is now, as a result of this policy, a very clear and considered approach for where there are exceptional cases. I know that it is difficult for us all to hypothesise about those exceptional cases, but every policy and even the policy south of the border has to acknowledge that we expect the unexpected and plan and have a process to deal with cases that have fling up concerns and circumstances that have perhaps not emerged before or where risk is very low but vulnerability is high. Any policy should have a process, a very clear and rigorous process around those exceptional cases. However, the policy that we now have has a very strong presumption to prevent those who want to harm women, who have a history of harming women from accessing the women's estate, so we have moved forward. Theresa Madhus, can you answer the same question? Are the same executive panel and risk management team the people that placed Isla Bryson in a women's estate? Sorry, I cannot talk about individual cases. Where we have strengthened the policy, as the cabinet secretary has said, is not just about the escalation process but the admission process. The admission process is the most vulnerable area that we have because at the point of admission we have little or no information on individuals. That is why we have introduced, as part of this policy, the category of unknown risk. Very often, as I said earlier, somebody will come in with a warrant and we will have the conviction on it of assault or attempted murder. We have no idea who has been involved, what the nature of that has been and that is why that admission process now talks about unknown risk. Very often what we are dealing with, with the majority of people who we do not know, is unknown risk. That ties down a very clear decision making process, which means that those people who we do not know the risk on will remain in the estate associated with their birth gender. Sorry, I am going to have to move things on. We are really tight for time, so I am sorry. I am going to bring Pauline McNeill back in for a final question. It was just cabinet secretary. I am honestly quite confused about what you said to me about the reason that the SPS have announced that they will no longer give us data on which estate transgender prisoners are in. What is the GDPR that we are talking about? Is it a legal advice change? Can you give this to the committee? Do you like to understand where this is coming from? It is based on information governance and data protection, but I am happy to check whether my legal colleague has anything further that would assist me. Why all of a sudden, if it is the same GDPR law that has not changed, is the legal advice to ministers changed all of a sudden? Sorry, I think that it is just that we have reconsidered the position and we can follow up in writing as well if that would be helpful. You have reconsidered the position. Why? We have reconsidered the data protection position in light of the whole policy review. What is the motive to reconsider something as important as data around a very publicly controversial policy area? As part of the general transgender policy review, we were considering all aspects of it. Again, I am happy to follow up in writing if that would be helpful. It would be helpful. Sorry, I am not trying to... Maybe you can understand just for completeness. From a parliamentarian's point of view, trying to do your job is scrutinising a very important area of public policy. However, do you take on it? This is going to deprive us of information that we used to have. It just seems to be on the sort coming down one day you guess or do you get the information, but today you can't. I would like to understand why that is. Can I come in and suggest that we follow that point-ups, a valid point, but if I can suggest that that is followed up in writing just in the spirit of time being against us? I am sorry, we don't have time. We are under a strict timescale for 230, and we do still have a formal process to go through. Thank you very much, Members, for your questions. I would now like to move on to their next agenda item. We have two negative SSIs on the agenda today that relate to the new transgender prisoner policy that we have just been discussing. I refer Members to papers 1 and 2, and I remind all Members present that only committee Members can participate in this process. Motions to a null have been lodged in the name of Russell Findlay for these two SSIs. I am going to invite the committee to dispose of the motions to a null. I will start by inviting Russell Findlay to move motion 6SM 11817 in his name and make any brief additional comments that he wishes to make. I am sure that I speak for many members and members of the public that today's session has been pretty frustrating. The null is short of really meaningful scrutiny. It is no criticism of the convener or the clerks in the time that we have available, but this policy ultimately puts the rights of male prisoners who identify as women above the rights of voiceless and vulnerable female inmates. It allows for an acceptable risk of harm to women, and it is a retried of the previous flawed policy. I turn to the SSIs. If I understand the first one correctly, which is number 202364, this allows staff to disclose information about prisoners' trans status in the execution of their duty, and that seems entirely proper. SSI 202366. While the default rule is that a trans-identifying male prisoner could be searched by a female prison officer, SSI allows for prisoners of that definition to seek to be searched by someone of their birth sex, and that in itself is controversial. I think that what is much more concerning in relation to the searching issue is, despite repeated attempts, that I was unable to elicit from the Scottish Prison Service today and answer as to whether prison officers have an opt-out to search those who are male-bodied in the female estate. Obviously, we do not have a vote on the policy in its entirety, which I would vote against for all the reasons that we have touched on and many more, which we have not had time to touch on, but in terms of those two particular SSIs, I do not intend to move them. On that basis, can I ask if any other member wishes to object or make any comment? No. Can I confirm that you wish to withdraw both of them? Yes. Okay, thank you very much indeed. That completes our deliberation of the SSIs, and we will now move on to agenda item 3, which should only take a short moment, and I can just ask members to remain in your seats. The final question today is whether members are content that the Firefighters Pension Scheme Scotland amendment regulations of 2023 should come into force. I remind all members that this is not part of our deliberations on transgender prisoners. Can I ask for members if they are agreeing to that? Agreed. Thank you very much. Next week, we will return to the Victims, Witnesses and Justice Reform Bill, with evidence from survivors of sexual crimes with experience of the criminal justice system, and then from victims and survivors organisations. That concludes our meeting today, and I close this meeting.