 Fawr oedden nhw, ac yn bwysig i'r 34 eich bydd y Com�� 8 yn 2018. Mae gennym iawn i fynd i fiancefa ar gyfer ei andymy i gael eu rôl i'r mwyafol. Iewn noddyntau o eu cyflomno cymaint gael ei noddyntau, ac bydd eich cyflomno gael eu cyflomno i gael eu cyflomno i gyflomno i gael ei bydd. Rhyw ffraith gwaith ond sy'n cymdeithasol ond ym Mhemi Gwlldon yng Nghymru. evidence session on article 50 withdrawal negotiations. This morning, we are taking evidence from Michael Russell, the Cabinet Secretary for Government Business and Constitutional Relations, and officials, Ellen Lever, the head of negotiations strategy and delivery, and Alan Johnson, deputy director of EU external readiness at the Scottish Government. I thank you all for coming this morning, and I invite the cabinet secretary to make a short opening statement. Thank you very much indeed, and my apologies in advance. I'm not only stuffed up with the cold, but I was in London, as many of you know yesterday, and I'm sort of deaf in one year at the present moment as a result of that experience, so if I don't hear you, I'm sure you will speak loudly. Thank you for the opportunity to give evidence here today. This is my third Christmas as a member of the Government with responsibility for Brexit, and it seems very strange that we are three years in, and yet things are still so chaotic and difficult to understand. I suppose that one might use the word nebulous about them. I've come before this committee at various stages of the negotiations, and in recent weeks the attention has turned very much to Westminster. It is very sobering to think that we are now less than 100 days away from potentially leaving the EU, and we still have no more clarity about what awaits us. We have a false dichotomy in the choice that is being offered by the Prime Minister between her deal, which would be disastrous for Scotland, and a no deal that would also be disastrous for Scotland. We've rejected that false dichotomy. I hope that today we can talk about the other options that exist, and also about why we have come to this pass. There has been turmoil within the Conservative Party, and there remains turmoil at Westminster. A sensible Government, and we are a sensible Government, has had to prepare for no deal, but very much with the hope that we will not have to implement those plans. In addition to the meeting of the GMC plenary, which I attended with the First Minister yesterday in Downing Street, I also had meetings with other UK Government ministers about the issues of no deal. Our preferred outcome from this at the present moment is to have a referendum. It is to give people the chance not to have a second thought, but to pass judgment on the chaos of the last two and a half years, and to think very carefully about where they see their future line. That second referendum would offer people the opportunity to make that choice, and there is a clear route to that, which I'm happy to talk about. We have continued to publish information, and most recently we published our assessment of the Prime Minister's so-called deal. You will have a copy of that, and clearly I hope that it informs your discussion. There remains time, even at this very late hour, to galvanise the political will and to say that what has taken place over the last two years has been a massive mistake, undertaken with complete incompetence by a Government that is out of time and out of date, and the opportunity exists to do something better. We would like to see that something better being remaining within the EU. Can I start off by going back to the withdrawal agreement and the political declaration. Obviously, the withdrawal agreement, if it was ratified, is a legally binding document between the EU and the UK, but the political declaration doesn't have that status. I wonder if you could say a little bit more about what your view is of the content of the political declaration and what it might mean for Scotland in terms of the future UK-EU relationship. The political declaration, as you know, convener, is very vague and very aspirational, and there are many parts of it in which things are essentially sought to happen without any indication of whether they could happen. I think that, if you read the political declaration, you are very much struck by the fact that there is no clarity about what will take place next, and that's a crucial issue. The Prime Minister and yesterday wished to tell the devolved Administrations that we should listen to the voice of business, which is rather curious, given the, for example, the CBI's view of the migration of white paper that was published yesterday, which no doubt we will want to come on to. Business has an expectation and a need for certainty. The Prime Minister's agreement does not provide certainty in any sense, and indeed I thought that that was very clear yesterday from some of the debate that was taking place in the House of Commons. There is no certainty out of this. There is a legally binding withdrawal agreement, which gets you to the starting gate of saying what will the future relationship be, but then what that future relationship will be will be the subject of the most incredible, complex and detailed negotiations. Moreover, once again, timescale for those negotiations has been completely misstated by the UK Government. The expectation that the Prime Minister is clinging to is that this will be concluded by the end of December 2020. That is utterly impossible. Mr Bonnie, for example, has indicated that there would be 10 strands of negotiation. What we've been through has been meant to be the easy part, so there is no certainty and there is no certainty of an outcome. One of the worrying things about this is that the no-deal preparations with which we are regrettably deeply engaged at the present moment, in which I updated the chamber about on Tuesday, those no-deal preparations will have to be kept on ice for however long the discussions take in terms of a future relationship because they could be needed at any time. We could find ourselves at the stage with no agreement. If anybody is backing the Prime Minister's deal, simply out of—and I fully understand it, out of essentially the scunner factor that we have just had enough of this, and we better just do this and get on with it, they're not going to have the satisfaction of saying, well, at least that's over. The actual fact is just about to start. In terms of those negotiations, what role do you see the Scottish Government having in the negotiations about the future relationship? Well, I'm sure you will realise that my experience over the last two and a half years has made me somewhat cynical. I didn't used to be like this, but I've sort of got there. There are constant assertions from the UK Government that things are going to change. The word intensification has been used, I think, on every second month for the last two and a half years, and we're hearing it again that if the Prime Minister's deal does get through, then there will be a reset of the negotiations between ourselves and the UK, and they will require to see our integral involvement because much of the negotiation will deal with devolved areas of competence. I don't doubt the word of many people who say that, but I have been pretty astonished over the last two and a half years about the lack of knowledge of and understanding of devolution in most UK Government departments, and I think that although there may be a commitment from one or two people to do things better, I think that it will ground pretty quickly on that lack of knowledge and that inability to understand a key fact of devolution, which I keep banging on about, but I'll do it again. There is no hierarchy of Governments in devolution. There is a hierarchy of Parliaments in devolution. Devolution is essentially a set of compromises built around the view of the Westminster Parliament of itself that it is sovereign. I won't go into my own views of that, but that is what devolution is. It is not about one Government being able to second guess or gain see another Government, and indeed what we've saw with the continuity bill was an attempt to interpret devolution in that way, and it didn't succeed and the Supreme Court would not allow devolution to be interpreted in that way. I think that there would be theoretically a need to do things better. It would be tied up within the process of the intergovernmental review, which is presently under way, though not making any progress as far as I can see, and that is a review which the JMC process is committed to reviewing intergovernmental relations in the light of the experience of devolution. That one would have hoped to have led to something better, but I am not hopeful. I want to move on now to the possibility of a differentiated deal for Northern Ireland. You have indicated in the past that that could put Scotland at an economic disadvantage. Can I ask as the Scottish Government plans to do any economic assessment or modelling of that scenario? We have done some partial modelling in the sense that the material that we produced in Scotland is placed in Europe in all its iterations indicates what the effect of a differentiated deal would be on us. I think that there is scope to do more with the Northern Ireland situation, and, certainly, officials are and will discuss that, and are discussing that. I think that there is an extraordinary irony in the present situation that the DUP, speaking for the people of Northern Ireland—which, of course, it doesn't completely—is desperate to oppose the deal, whereas, in actual fact, the bulk of political opinion in Northern Ireland is to accept the deal on the grounds that it gives Northern Ireland a very, very special status and, essentially, keeps it within the single market. Of course, the opposite remains to in Scotland, that the Conservatives are desperately keen to have the deal, but, in the reality, the deal has offered Scotland is very, very much poorer and would be immensely disadvantageous. I move on to the deputy convener, Claire Baker. Thank you, convener. The cabinet secretary has described the present situation in front of us as a false dichotomy, and we had the statement last week around the Court of Justice ruling about the ability of the UK Government to revoke article 50. I had asked some questions at the time around that, so I would like the cabinet secretary to—I think that when we asked questions in chamber last week, he said that there was no written constitution within the UK that would make it clear what the stages would be to revoking. When the committee visited Brussels at the start of the month, in discussions that we had, it was made clear that if the UK Government were to request to revoke, it would have to be on a significant basis that could not be used as a tactic. The cabinet secretary said that he could say more about how he could see that process happening. If it was to happen, what the stages after that would be, because I feel that the UK is still divided over that issue, and there is a question about whether there is any greater certainty if a revocation was to go ahead of where that would then lead us to. Undoubtedly, the divisions that exist are great and profound, but I do not accept the argument that we should simply accept those divisions that exist, paper them over with the Prime Minister's deal and pretend that everything is fine. If you accept that the result in 2016 was bought on a false prospectus, if you accept, as seems likely now, that there was a great deal of chicanery involved, and if you accept that the actions of the UK Government since then have been extraordinarily mind-bogglingly inept, then I do not think that saying that we will just put all that behind us is going to produce any sort of unity whatsoever, so I am not convinced by the Prime Minister's argument for unity. I do not think that there is any template for what constitutional due process would be. I think that there is likely to be a series of actions that could be taken, which would be seen to be by the EU 27 to be constitutional due process. Given the way that House of Commons has operated, a resolution of the House of Commons to revoke article 50, because it was a resolution of the House of Commons that invoked article 50—if you remember, the Prime Minister tried to stop that happening and lost that legally—would be effective. It would seem to me that it would be even more effective if there was a referendum based upon that basis. I think that it is likely that there could be a suspension of article 15, and of course that exists within the treaty, a potential for a six-month extension. If that were requested, it would be likely to be granted on the basis of either an election or a referendum. I think that that route is reasonably clear, but I think that it would be wrong to look for something that was absolutely the right way to do this and that there were wrong ways to do it. I think that the House of Commons would have a strong role to play in it, but I think that we would want to see a democratic will expressed. When I came into this post in August 2016, I was very struck early on by the fact that the EU was very focused on constitutional due process in terms of where Scotland's position was. I had produced a little booklet on the constitution as it operated with Scotland and within the UK, because it is difficult for people within the EU to understand that if there is no written constitution, there is still an understanding of how the constitution operates and it is still possible to seek legal judgment about aspects of the constitution, not that we have a constitutional court. That was clear from the Supreme Court judgment. I have developed that answer since last week to think that there is not a single right track, but if I were to think what the best track would be, it would be a resolution in the House of Commons. I do not think that it could just be a letter from the Prime Minister and double locking that with a referendum result might be the right thing to do. We went to Brussels, the committee, for a couple of days. It was quite interesting and gave us a better understanding of the EU 27's view on the situation that we are in. The political discussion in Scotland and in the UK is aware enough of the EU 27's views. To go back to the convener's question about Northern Ireland, I think that they made it quite clear that Northern Ireland was a unique set of circumstances. The deal was to uphold the Good Friday agreement. They were largely opposed to any other regional variations and discussed what that would mean for the rest of the 27, if they were to start introducing arrangements in different parts of a member state. If you go back to the start of the process, I think that Mr Barnier was clear that were the UK to come to the negotiating table with a set of arrangements that made differentiation, for example, for Wales or for Scotland, that would be what the UK wished to achieve and would become part of the negotiating process. It was a UK that chose not to do that. It is not the place of the EU to do that. Clearly, that would be impossible. This goes back to the way in which the UK approached these negotiations for the very beginning. It approached them in an amateurish, thoughtless way. It approached them also in the view, if you remember the Prime Minister's words, that we entered the EU as one UK and would leave it as one UK. I have described that regularly as constitutional illiteracy. That simply is not the case. The constitution has changed since the UK joined the EU. There is a different constitution and that should be recognised. Devolution has taken place since then. What the UK should have done is gone into negotiations recognising the reality of devolution. I think that it was Ryan Heath, who wrote last weekend in a very important contribution to this. You could list the things that the Prime Minister has failed to do, which have created the present extraordinary mess. You would probably start by saying at a very early stage that she should have taken Jeremy Corbyn, the leader of the liberal Democrats, Nicola Sturgeon, Carwin at that time, Arlene Foster at that stage, Martin and Arlene, into a room and said, how can we together get this to work? This is the imperative that we think we have, but we recognise, for example, that Scotland has voted against. We recognise that Northern Ireland has voted against. How do we get this to work? At no time did that take place. At no time was there anything other than we do it my way, according to the Prime Minister, and nobody else matters. That is at the heart and root of the problem that we presently have. How can anybody talk about bringing people together when their actions at the very beginning have forced people apart? I do not know. Thank you very much, Annabelle. We are picking up on where we are at the moment. It seems to me that the Prime Minister is engaged in an extraordinary act of brinkmanship. I suppose that her tactic must be to hope that, with the fears of no-deal, she gets some change of mind in the House of Commons. Equally, it seems that the House of Commons is hostile to this deal. Therefore, in order for her to sway some of her own backbenchers, she would need to get the EU to do something different. However, what is it that the EU could do differently? Because they have already made it clear that they cannot change the withdrawal agreement itself, which is a legal document, and the political declaration is linked there, too. Therefore, there is quite limited room for maneuver, albeit not in the same way as the withdrawal agreement. Do you think that she is holding out to her backbenchers to get this through? That is not just a question of political semantics. That is a question of whether we then go into a no-deal situation. I have no idea. I did not get any indication yesterday of what that was. There seems to be a confidence that there is something there that can do so, but we were given no indication of what that could be. Jamie Greene asked me a question and a statement on Tuesday regarding this being the only deal that the EU is saying. I think that it is important to reiterate this. This is the only deal because of the red lines that were set in the negotiating process. It is not, in the platonic concept, the best of all possible deals. It is a deal that is dictated by the inputs. The inputs were the red lines, particularly the jurisdiction of the ECJ and the end of freedom of movement. I think that it is beyond bizarre that anybody can claim proudly that they have ended freedom of movement. I find that my mind is blown by that concept. That is what has driven this, the red lines. If you have those red lines, then you end up with this deal. That is where we are. I think that the EU is probably quite proud of itself that it has been able to create a coherent deal around an incoherent set of red lines. There is a slide from the Barnier task force, which you are familiar with, that shows in a step diagram essentially what possible outcomes there are depending on what red lines you set. This has been clear from the very beginning. I think that that slide must be 18 months old. That has been very clear from the beginning that you would get this outcome if you started there. That is what we have ended up with. They are not going to change that because that is dictated by the red lines. If you go and take the red lines away, for example, if you take the four freedoms away and you say that we will accept freedom of movement, in Scottish terms we should say that because we need freedom of movement, if you say that, you will get a different deal, you will get a different outcome. Continued membership of the single market through the EEA becomes an option in those circumstances, as we have always said, because you observe the four freedoms. If you accept the jurisdiction of the ECJ, something else becomes, and you get to the stage where membership is the right solution. However, because of the red lines, the Prime Minister is where she is, and I have no idea what rabbit she believes she has to pull out of a hat, I think that she may find that the rabbit has chewed its way through the hat and disappeared. Indeed, we shall see if we assume that the vote, if it does indeed take place on the 14th, she seems to pull votes when she wants to, but if that does go ahead on the 14th of January, and in fact the House of Commons does not support the deal, going back to Claire Baker's points, presumably then there would be sufficient time to either seek an extension of article 50 or unilaterally revoke article 50 per the recent court judgment, because obviously we are coming up against 29 March, so that would avoid the worst of outcomes in terms of no deal. Time is very much of the essence. When the Prime Minister says that we need to get on with it, she is the person who withdrew the vote. If she had allowed the vote to take place and if she had been defeated, we would be into a understood process, which gave them 21 days to come back and then seven days to make a proposal. The clock would have been set to get some movement. She decided not to do that. If we get to the week beginning on the 14th and that takes place, then there is, I think, a seven-day period that she then has to bring back something. That something is clear. It was a point that the First Minister made very forcibly yesterday at the JMC. That something could be done today, which is to say to the EU 27, we want to take advantage of what is in the treaty, which is an extension of the article 50 process, and here is why we want it. I do not think that you would get it on the basis of, we just have been incompetent in negotiation, but you would get it on the basis of some significant change. Then businesses would then feel that some progress was being made and, politically, you would be on a route to getting a solution to that. But until that vote takes place, that cannot happen, and she is the person who delayed the vote. I do have questions on a different issue. Perhaps we can let this flow a bit and come back. Thank you very much. Tavish Scott to your identity kid. Thank you. It is where you depart from commentary into a question on all this, because I take your analysis, cabinet secretary, about bringing all the leaders together but that would have split the Tory party at the time, of course, and that may be a very desirable objective from some of our perspectives, but I could see why that never happened. Two things I wanted to ask. Amber Rodd said last night on Peston that, for the first time, cabinet secretary basically said that she supported a second referendum—or people's vote—a second referendum. That, I thought, was the most important development yesterday, not what went on in the comments, but a cabinet secretary is now out there seeing what I suspect is, so your thoughts are not. The other one, maybe rather more importantly in the longer term, because I thought we got this out of Brussels when we were there, Claire Baker's questioning. Scotland has done a great job, but won't we need to increase that operation out there, given what's going to happen? I mean, Mike Nielsen and me and Campbell and their team are excellent, have nothing but my admiration, but they are so under staff now, given what's about it to happen. Isn't that the case? Well, I think there are strong arguments for increasing and continuing to increase our representation, not just in Brussels but elsewhere. Given the circumstances, of course, we are constrained financially, and we have to recognise that. I agree with you. I think that the whole team does a fantastic job. There are eyes and ears in Brussels, but there are also ambassadors, and they're doing a fantastic thing in showing people what Scotland's view is and how we have taken this forward. We now have a presence in Paris, we have a presence in Berlin, we have a presence in London, a very effective presence in London, and of course we have a very effective presence in Dublin. We will need to do more, but within the constraints that we presently have. Just in terms of Amber Rudd's contribution, yes, it is significant, but words have to be followed by actions. There needs to be a recognition. The cabinet is probably split, well, who knows how many factions it is in, but it's probably split between those people who might as well continue to support the Prime Minister on the grounds that they owe their careers to her, those people who recognise that the people have to be heard at some stage on this, and those people who are determined to have a no deal, including that ludicrous concept of a managed no deal. If anybody has any doubt about the impossibility of that, then read the document that the commission issued yesterday. There is no doubt at all that the commission has thrown its hands up, it's entered in horror, and said, we will do what we need to do to protect ourselves, and that's not a managed no deal. That's saying we're not going to be derailed as a result of what's taking place here. If Amber Rudd is followed by others today, who were to say, let's have a people's vote, I would be encouraged. You pointed about the commission paper that was published yesterday on their perspective on no deal. Is Scotland House fully engaged in that? They are, they're providing information and they're giving information. They are making sure that people are aware of our preparations, and of course we are in detailed discussion with the UK Government, and with the Welsh Government, and with the Northern Irish Civil Service, all of whom I met with yesterday. I hope none of this happens, but the UK Government wrote 145,000 businesses across the UK, which I assume include a lot in Scotland. Was the Scottish Government involved in that? No, and it's a point that I made to the Prime Minister directly yesterday, that we did not see the letter of the information pack before it went. We launched a toolkit in September or October, I think, for businesses, and it's been very well received. An online toolkit that allowed people to work out what they were going to do. If you haven't seen it, I'm happy to circulate information on it, and it's been well received and it's been helpful, but there have been communications that have not been checked with us, and therefore we have issues about it. The Welsh Government yesterday raised the point that the Department of Health has been saying things in Wales and asking people to contact a white hall number, where in actual fact, of course, there is devolved health administration in Wales, so we've got to guard against that. To be fair, and I want to be fair, where difficulties have been arising, they have been raised and there has been an attempt to try and solve them. I think that that situation on no deal has improved over the last few weeks and months, but it needs to, because this is desperately serious stuff. Thank you very much. Alexander Stewart. Moving on to what you're just discussing, cabinet secretary, you've identified and we are aware that many businesses in commerce, industry and many sectors already are dealing with contingencies in case we have a no deal scenario, and they've been putting them in place and you've touched on the toolkit that the Scottish Government have had. Can I ask about what other guidance has been and is that going to be published by the Scottish Government so that we can see what your preparations are with reference to that? I think that we gave a comprehensive outline of that to the chamber on Tuesday. I undertook to write to members and I'll make sure that all members have that on further details, including financial details. For businesses, we have done publicly. There's material in the toolkit and on further websites and other information that's provided. There is financial aid, which has been well publicised and which is available to businesses, so all that material is out there. I'm not going to publish more documents about a no deal. I don't want a no deal to take place and I want the focus, if it does, to be on making sure that we can mitigate as much as possible. That is where we are and that is, to be honest, where the UK Government is as well. There needs to be a co-ordination of message and again that is the subject that I am addressing with the UK Government so that whatever the message is, it gets through. I made the point yesterday and I'll make it here again today. One of the key issues for Scotland in no deal preparations is we are at the end of the supply chain and therefore the remote and rural parts of Scotland are particularly at risk. We also know that the effect of a no deal would be particularly damaging to those who are most vulnerable in society, both in terms of rurality and geography and also in terms of demography, so we have to be prepared and ready for that and that is something that we are feeding into the system. We will continue to report on, to the chamber, on no deal preparations. I also made a commitment on Tuesday that I'm happy to brief party leaders and party spokespeople on that and, of course, I'm happy to brief committee conveners and committees as we do that, but I'm very keen that we get on with things. Were this to happen, this would be an enormous task and a civil service, we're reallocating time and space so we will be absolutely transparent, but I'm not going to spend a lot of time polishing documents. As you have already indicated, it is a mammoth task to endeavour to ensure that we have the contingencies in place should they and I still am of the opinion that a deal will happen on that and I firmly believe that, but you have to have the contingency there to ensure because, as you have indicated, the rurality, the individuals who are at risk and those who are more vulnerable require that support mechanism to be there to ensure that they are protected and feel protected during the process. The UK has done, I think, about 105 technical notices have been issued. Is it roughly the similar level that we would have here in Scotland? What we've done is, on a number of technical notices, we were able to inject into them at the very last moment information that was of particular relevance to Scotland or to indicate where the information was not of relevance to Scotland actually indicated where Scott's law differed or information differed. I wouldn't see those as specifically UK Government notices. We had no control over the origins or editorialising of them, but where we were able to, we were able to make sure that their relevance was such that they would apply to Scotland. There have been enough indicated occasions where information has been provided to organisations by the UK that we believe that we should have known about or done better, but we're not in a war of briefing on this or a war of information. I've made it very clear, for example, when you look at public information, that the campaigns, if they happen, will have to be nested. They will need to be a distinctive and relevant Scottish campaign and work is well under way on that. There will be a distinct and relatively clear Scottish web presence and information available to us, but it will be nested within the message that is coming from the UK Government so that there is no contradiction. There is a complementary approach, and I have had that conversation at a high level, and we will continue to do that. However, I don't want to get into, on this occasion, using effort on making distinctions where we actually have to just get on and do things. That is a two-way street. The other part of that is that the UK Government has to recognise that we need to do things—again, there is no hierarchy of Governments—we need to do things in our way with the people that we work for. So far, I think that that is recognised, that we will need to continue to be recognised. Can we just look at something that this committee has spent a lot of time on? The status quo around the withdrawal agreement. Is it my understanding—this is a genuine question to you, Mr Russell—that you have less of a problem with the withdrawal agreement because what the withdrawal agreement seems to do, or we were told that the withdrawal agreement does, is, in effect, set out the parameters for our exit of the EU in the sense of guaranteeing EU citizens' rights, offering short-term transition—and I appreciate that it is short-term transition—of continuity of the status quo for business and protects peace on the island of Ireland, but you are less happy with the terms around the political declaration. Is there any possibility to the EU for serious circumstances where, if the direction of travel changed in the political declaration, you could support the basic terms of the withdrawal agreement itself, which would allow us to move into this transitional period and thus avoid any sort of cliff edge that people talk about? That is an interesting question. I mean, I will treat it seriously. It is an interesting question. I think that it is fair to say that there are, of course, things in the withdrawal agreement that would have to be in a legal text of five hundred and something pages with which we didn't take any great exception and some things that we thought were useful. I think that the fact that the four freedoms are not going to continue and the migration issues are of particular worry to us. They just do not work for Scotland and there are a range of other areas. Given that there cannot be a renegotiation of the withdrawal agreement given the red lines, then I think that we could not support the withdrawal agreement as it is drafted. There would have to be changes to the withdrawal agreement to make it acceptable to us. Let me widen that point out because I think that you raised a particularly interesting point. Is there a way we could go from here to some different state where we were having a serious conversation about what happens and avoiding the cliff edge? There is that way, but I do not think that that can be done by taking the withdrawal agreement of the political declaration and trying to get it voted on and saying, that is what we have. Now let us renegotiate it or change it. That was a Michael Gove position. I think that what you need to do is to say that this does not work. We need something different and that is the product of the red lines. You can only get that if you invoke the suspension of article 50. I guess what I am keen to do. It would be very easy for me to sit here and just say, look, there is a deal on the table, why won't you back it? It would be a pointless question because I think that I would know the answer to that. What I am trying to tease out of you given your involvement in this whole process is some practical steps of where you think we could actually take this next to take perhaps some of the politics out of it. I think that if you accept that the withdrawal agreement as it stands has very little room for manoeuvre in terms of change, and this committee and others have been told quite explicitly by the U27 that that very much is what is on offer, and any extension to article 50 would be very short term, we were also told as well. What do you think would be a practical way forward through all of this? I think that there is a real risk that we could leave on 29 March with no deal. I do not think that there is a huge appetite for that, but on a technical level, I think that it possibly could happen. If everyone is so keen to avoid that, knowing what we know, how could it be avoided? I think that the route is very clear. I am concerned about what you say about leaving without a deal. Like Mr Stewart, I hope against it and I hope that we can get some progress, but I think that the progress that we need to see is this. First of all, the Prime Minister accepts that she needs to have at the very least an extension of article 50, and therefore she asks for that. Secondly, there is either an election or a referendum, and I think that the referendum is more likely to pass the House of Commons on an election, but I do not want to second guess it, but that is my expectation. At the referendum process is completed within the period of the suspension, which can only be six months at the present moment, which would really mean that if this was to be done in January, that it would have to be done in June. That does fit in with the timetable for the European elections just. I would have thought that that is what needs to be done. That is the point that the First Minister put to the Prime Minister. It is the position that we find ourselves in now, and it reflects the reality of the situation. Are there other options? I know that, for example, your colleague Donald Cameron has indicated his support for the Norway Plus model. I think that that is helpful. I do not reject the Norway Plus model, but I think that at the present moment it is not a short-term solution. It would require a considerable period of time. If the Norway Plus model were to be followed, then it would require, I think, the Prime Minister to revoke article 50 and to say to the EU that we want to move forward on the basis of Norway Plus, which would be an EEA EFTAR-type arrangement. Whether that is as a member of EFTAR, and of course the Norwegians have indicated, perhaps with some understandably, some nervousness about having the UK within that tent, whether it is a special third pillar of EFTAR, which is something that has been discussed, that needs would take considerable time. Given the seriousness of the present situation and the considerable costs and worry involved, the best way to do this is to seek an extension of article 50 and to have a referendum. My final question on this chain is that you previously had expressed to the Scottish Government official position on this. My understanding is that your official position was first not to leave the EU at all. If we were going to leave the EU to remain a member of the single market in the customs union, at no point was the option of the referendum mentioned in your opening statement that you said that your first preference is for a referendum. Therefore, can I confirm that that is your official position that has changed from previously expressed? If there is to be another referendum, what should the question be? I am tempted and I am sure that members are aware of my fondness for a quote Keynes in these circumstances. When facts change, I change my mind. What do you do? The reality is that the facts of this matter have changed. In recent weeks, we now have something on the table. Our preference all along has been not to get to the stage where you have an appallingly bad deal or no deal as a choice. That was the Prime Minister's doing, not ours. In the circumstances of today, faced with what we are faced with, we believe that the right next move is the revocation of suspension of article 15, a referendum. That is where we are today. In those circumstances, that is what we are going for. Let me just finish. I have taken the issue of after EA, the issue of single market and customs union through endless discussions with the UK Government. That was a compromise that was put on the table by us in December 2006. If only the Prime Minister had taken it, we would not be in this mess. Joe, you have not answered my question. What is the referendum? What are we asking? The question of the referendum has to include remain. Therefore, we would have a discussion on what remain is set against. Given that the only thing that exists to set against it is the Prime Minister's deal, I suppose the likely outcome of that discussion in the House of Commons about the question would be the Prime Minister's deal or remain. However, it is inconceivable that you could have a referendum without remain as an option. Is there a rerun of the last referendum? Well, no. It would not be a rerun because there was no specified option in the last time. The last time, if you remember correctly, was very nebulous, if I may use that term again. Indeed, I have somewhere—I am happy to share it with you—a leaflet about the issue of all the powers that this Parliament would gain if people were to vote to leave. That was the campaign that was run very strongly in Scotland, and we have gained none of them. I think that it was run on a false prospectus. What I am saying is that you have to have remain and you would probably have to have the fruits of the Prime Minister's work over two and a half years, such as they are. Thank you very much, Stuart McMillan. Good morning, Cabinet Secretary. Cabinet Secretary, you were at the GMC meeting yesterday. Did anything positive come from that? Well, I seem to remember wishing each other a happy Christmas. I am not sure that I can think of anything else positive that came out of it. The meeting discussed—I think that the communique was clear—the meeting discussed the withdrawal agreement and the current state of play. It discussed the no-deal scenario. In Tarelia, it discussed the migration of white paper, which, of course, had been issued without, essentially, any real indication of when it was going to come out. It is rather interesting to note that, last Christmas, at the last GMC before Christmas, Brandon Lewis, who was then the immigration minister, who is now the chair of the Conservative Party, I pressed him on when the white paper was coming out. He would not say, but he said that it could come out before Christmas. He meant last Christmas, so this has been going on forever. We had no indication that we knew late on Tuesday evening that it was going to come out on Wednesday. That was within the discussion. We also discussed the intergovernmental review, such as it is. That was a discussion. Points were made on both sides of the table. I will be fair about one thing. I raised significant difficulties in a couple of areas in terms of liaison on no-deal. There was a very quick resolution involving ministers and officials, because they recognised how important it was to resolve it. I think that, on a work-a-day level of no-deal, there was something positive. However, in terms of the mega picture, no. Okay. Thank you for that. You mentioned the immigration white paper and the discussion yesterday. In your opening statement, you mentioned that the immigration white paper would not be positive for Scotland. Can you elaborate on that, please? I hope that I put it more strongly than that. To say that it would not be positive for Scotland is the equivalent of that famous line. How did you enjoy the play, Mrs Lincoln? That is an appalling set of circumstances. The paper says that 85 per cent reduction is an estimate of EEA nationals. I will provide the calculations to you. I think that we have published them in terms of the effect of GDP of a 50 per cent drop, which is catastrophic. However, 85 per cent would be impossible to imagine if it would throw the economy into complete chaos. There are a number of levels in which you want to take the migration white paper. It is a very practical work-a-day level of the economy, which is impossible. It is not just us that say, the Prime Minister keeps saying, listen to business, listen to industry. If you look, for example, at the Tracy Black, the director of the CBI Scotland, which says, the Government tunes out from the economic damage of draconian blocks on access to vital overseas workers. That is the CBI. The Scottish Tourism Alliance potentially devastating effects. The national farmers union, which says that the evidence of our sectors had not been heeded. The policy chairman of the Federation of Scottish Businesses, those proposals will make it nigh impossible for the vast majority of Scottish firms to access any non-UK labour and skills that they need to grow and sustain their operations. The institution of directors, it is fundamentally, it seems that the Government's immigration policy is being driven by the unattainable, distracting and economically illogical net migration target. University Scotland. I declare an interest, I have an interest in the university sector. This is University Scotland and it needs to be remembered. We want to be part of a society that is open, richer culturally and financially. We need to be serious about attracting talent to our nation. It is hard to see how this can be achieved with today's white paper. I have never seen such a unanimity of condemnation. On the basic economics, but it goes further than that. This is wrong morally. This is a country that should be open and inviting and welcoming. This is a country that is enriched by migration, both financially enriched by migration and culturally enriched by migration. Many of us take this as a personal affront to how the world will see us, because we are not like this. We are not involved in dog-whistle politics. We hate and reject that type of approach. I think that it should make those of us who read the paper angry about what we have witnessed and determine not to have it happen. On the back of your comments and the discussions that you have been having in Scotland with particular organisations and others, I would assume that you would encourage as many people and organisations as possible to make further representations to the UK Government to get their points over to the UK Government so that they can change the white paper in the future. I would absolutely encourage them to do so. I do not think that they will need much encouragement because their economic wellbeing is on the line, but I am absolutely certain that they will do so and we will do so. Of course, we are doing so with an alternative in mind. Clearly, independence is the best alternative, but we have long argued for a devolved approach to migration. I remember having conversations about it with David Davis when he was in office and pointing out to him the great advantage of devolving migration because, in actual fact, you could then set whatever targets you wanted in the rest of the UK, but we could meet the needs that we have by ensuring that we had the best approach to it. It is an approach that exists in the Canadian provinces. The approach exists in parts of Australia. It is not difficult to manage. I think that, in all those circumstances, its time has come. I think that these bodies are moving towards it. It was interesting, actually, this year that the CBI annual dinner, the objection to it was not the objection in principle, the objection to it was the timing of it, and that is before they saw this appalling white paper. That is a short-term solution prior to independence of just putting in place a devolved system of migration, and that would be extremely positive. I am quoting the chief executive of the Scottish Tourism Alliance here. It says, I know there is a proposal from the Scottish Government to look at a visa specific to Scotland to allow people to come and work in Scotland under the threshold of a 30,000 salary blend, and hopefully that would enable us to attract people and they would stay with us. That is really important. I know from tourism businesses my own constituency that they have been operating 10 to 15 per cent below target on staffing already this year. That policy will make that much, much worse. We certainly heard from Professor Manning of Mac in early November, and it was clear that there had been no analysis of Scotland's economy and no analysis of any of the recommendations that Mac were going to put forward as to how detrimental that would actually be for Scotland. It has been a constant disappointment. It is a very narrowly focused group without adequate knowledge or information on the Scottish economy and Scottish demography. I commend our evidence to Mac, which was very professionally and scrupulously prepared. I think that that tells you what the situation is. As you will know, we have now set up our own expert, an independent expert policy group, which will start reporting in the new year and contains people who understand and have academic knowledge of the Scottish economy and Scottish demography. That is really important. One final question. You mentioned IGR a few moments ago and the review. Will that review still continue as the negotiations regarding the energy transition period and the post-Brexit situation take place? Yes. The IGR essentially responds to a point that we have made, and I think that Cardwin Jones put it well, when saying that devolution could not bear the weight of Brexit, and that is where we found ourselves. How does it change? I want it to change for Scotland to be independent. I think that that is a far better answer, but, while devolution continues, how does it develop and change? The Welsh published interesting information on that in August 2017. We addressed some issues in that in our first Scotland's place in Europe paper in December 2016. There is material on the table. That is the generality of it. There is a specific of it, which is that the sole convention is not operating at this present time because it has been broken by the UK Government. We need to get an urgency on that, otherwise we will not approve Brexit legislation and not give legislative consent to it. I have raised this regularly. I have made proposals to the UK Government about how we should take this forward. I stressed again yesterday the urgency of this, as did the Welsh. I now want to move to Patrick Harvie. Before you ask your question, Patrick, can I welcome you to the committee and can I also ask you to declare any relevant interests? Thank you, convener. I am very happy to be here as a substitute for Ross Greer. I do not believe that I have any registered interests that I am formally required to declare, but I would like to put on the record just for clarity that I am a member or supporter of several organisations that have expressed views relevant to today's committee business, notably the European movement for Scotland, as well as the equality network and Stonewall Scotland. I would like to ask about some of the environmental aspects of this process, in particular European environmental principles and governance. We have discussed some of that in the chamber already in relation to the continuity legislation, the requirement for both Governments to establish a set of environmental principles, and it may be too soon to be able to say exactly what the Scottish Government will do in response to the Supreme Court ruling on that. However, as a former environment minister, you will also be aware of the importance of environmental governance. In a period of change, if Brexit does go ahead, there is probably a reasonable expectation that there might be a number of challenges or contested issues where governance bodies become very important. I have a twofold question. If, somehow, the withdrawal agreement is approved by the Westminster Parliament and is put into practice, is the Scottish Government any further forward in deciding what will be the environmental governance structures that kick in or which we transition to during the transitional period in respect of what are devolved responsibilities in environmental matters? The flip side of that is that if there is a no-deal situation, if we are marched off the cliff when the withdrawal agreement is voted down, what on earth is the reality in terms of the decision-making authority in environmental governance matters that are currently handled at EU level and which would potentially fall into a vacuum, either at UK or Scottish level? Neither are easy to answer at this stage, as Patrick Harvie will know, but I will give a stab at both of them. We have not, as Patrick Harvie knows, come to a conclusion yet about what we do next under the continuity bill. You were a part of the discussion two nights ago. I will see Mr Scott. I do not think that that is a secret later today to seek his input to these matters, and in the new year we will take this forward. There are a number of options that exist. The environmental issues are some of the issues that have survived the approach that was taken to the bill in the House of Lords, so there is a small exception, which is important, but with a small exception. We have something in there still that we could work on, but there are a number of ways of taking it forward. I understand that my colleague, Rosanna Cunningham, will consult on environmental governance in the new year, so I do not want to gain, say, her position, but we do recognise that there will need to be robust and effective environmental governance procedures in place. I know that there was an announcement yesterday from the UK Government. I am sorry that I am not across it. There were rather a lot of things happening yesterday. I will get up to speed on that in a few days' time, but we will not allow the issues of environmental governance to be eroded or undermined in this process and will work very hard, and there are ways to do so. However, if we come to a no deal, I presently do not know what we will be able to do. The legislation, the environmental legislation, the secondary legislation that we are putting in place will transfer responsibilities, but I am not sure that it will do so in an effective way, which we could totally rely on. I would want to think about that more carefully. I welcome the opportunity, if you would like to take it for you to make representations to myself and to Roseanna on that once we see what the situation is in the new year. We could do with a conversation about the cliff edge at that stage, and I am happy to have that conversation. That is appreciated. If, in early January or mid-January, the withdrawal agreement is rejected by Westminster, then, obviously, notwithstanding the fact that many of us will want to cancel Brexit overall, there will also need to be an acceleration of no-deal preparations just in case. In your no-deal preparations so far, environmental services may have featured, for example, the collection of recyclates, a lot of which go quickly out of the country. There is very little storage capacity or management capacity if that was to build up. Are you able to say anything about the planning that has taken place on those issues today? We are cited on it. It is in the risks and issues register. We know that this will be a concern. Essentially, the system will become blocked very quickly. What we do with material and those circumstances has to be considered. It will have to be stored, but, as you know, there are issues—environmental and other issues—in terms of the storage of it. It is there. It will have to be addressed. It is being addressed alongside the other issues, whether it is best to store that at port and wait for the opening of the circumstances that can happen, whether there are ways in which it can be processed that are highly doubtful in Scotland, but are there ways in which that can happen? Those are under consideration. There are, of course, a series of issues that arise also in terms of environmental regulation, which are the responsibility of Scottish Government agencies, Marine Scotland, SNH, SEPA. They will all have to continue in operation at a time of no deal and at a time of pressure on resources and some insecurity within communities, and we are conscious of that. Good morning, Cabinet Secretary. We had some really interesting discussions in our visit to Brussels. One of them was Labour MEP David Martin, who has been here since 1984. One of the things that he said, which resonated with me, was about post-Brexit, assuming that we were still heading in that direction, Scotland's relationship with Europe and how we interacted in a business sense in particular. As you have mentioned already about the Scottish Government perhaps strengthening its support and networks in Paris and Berlin, he said that if you think about it, Scotland will not be a member state, it will not be part of a member state, it will be a sub-state legislature. Therefore, while Ireland will have direct communication with the Governments in France, Germany and other member states, we will not even be outside the door, we will be outside the outside door. Therefore, he suggested that we will be fair effectively to another lobbying group with minimal influence, which will obviously impact on our trading economy. He suggested that the Scottish Government might want to redirect its efforts towards places that are not capitals like Munich or Barcelona or Milan, where we might actually get a hearing from the local regional Governments, given the fact that we will be so far out of the loop. That is quite a depressing scenario, but I wonder if you think that that is a potential rational way forward once we are through the kind of Brexit mess that we are facing at this time? Well, I can see where David is coming from on that. My own view is that Scotland's aspiration will be to rejoin as a member state at the first and earliest opportunity. Therefore, continuing a relationship with the capitals will be essential in those circumstances in order to keep the dialogue going and also to make sure that we are measuring up to the standards of the Achae. Therefore, I do not think that we will be, as a Government, downgrading our contacts or our aspirations. I tend to say to organisations who talk to me about what they should be doing now rather than weakening their connections in Europe. They should be strengthening at this stage. They should be putting in place stronger and more robust relationships, which can try and survive the shock of Brexit so that, at the other end, they can build from where they are. Therefore, that will be my view, and that is what we will certainly be trying to do. I cannot understand where David is. We have had and continue to have good relationships with a whole range of sub-state entities, but we see ourselves as a nation and we wish to be a nation within Europe. Obviously, I agree with that, but it is whether or not we will get a hearing given what we are likely to face. To move on to something else, you talked about a general election being potentially a way forward. Given the incoherent policy of deliberate ambiguity of the Labour Party, who, as I understand it, although I am not 100 per cent sure, appears to still be pro-Brexit, what would that achieve? Can you comment on some of what we heard over in Brussels, which was that the capitals in Paris, in Berlin, in fear that a common government would be more economically damaging than Brexit? I tend to be of the view that, if we are trying to encourage people to move along with us, we should not necessarily condemn the slowest ships in the convoy. We should perhaps help them to get faster. I am going to try and do that. I would like to see an emotion of no confidence this week. I think that it would have been important to do so. I do think that allowing the Prime Minister to play this to a position in which she can present it as being her deal or no deal is absolutely the wrong thing to do. I want to try and get everybody doing the same thing. That has been my strategy in this Parliament. It continues to be my strategy. I would continue to ask the Labour Party, whatever my opinion is, of the individuals. I would continue to ask the Labour Party to consider that there is absolutely historic juncture. Historic is a much ill-used word, but historic juncture should be active like never before in holding the UK Government to account and endeavouring to change it. Last, that is very diplomatic, given the symbolic position that they put forward. On the possibility of a further referendum, you might have seen Liam Fox on the Mars show on Sunday, saying that, if there is a second referendum, we are going to go for best of threes, people in his wing of the Conservative party. I mean that it is beyond belief, but that is what he is saying. Do you believe that this is anything that would be anything other than kicking the can further down the road and what will achieve in the shot to medium-tier? It gives people the answer. The last thing that I would just say is that Tavish Scott said that Amber Rudd supported a second referendum. She was on BBC this morning and said that she personally did not support that. I think that if you are in the UK Cabinet, you say what you think. Somebody comes around and says to you, you better not be thinking that. Then they are sent out onto television and say that they do not think that it is ludicrous those circumstances, when you are in those circumstances. I have to say that Atley's remark springs to mind in terms of Liam Fox. I think that a period of silence would be in order. He is one of the people who has created this extraordinary mess, and what he has to contribute to getting out of it is zilch, nada, nothing at all. When I don't watch him on these shows because he is part of the problem, not part of the solution, what we should be doing is working with people, and I believe to go back to the point at cross-party, and with elements in the Conservative party too, we should be working to resolve what is an unprecedented national emergency and trying to get ourselves into the right position. I believe that at the present moment, and Mr Greene's question is germane to this, at this particular moment, the right approach to do is to make sure that we defeat the Prime Minister's deal, reject the no deal under us, the means are to hand to do that, the means are absolutely to hand to do that, and then have a second referendum. The issue, of course, for the Prime Minister is that she is helping her to ransom by people like that. I mean, I know you say that he doesn't have anything to contribute, but he probably is resonant of many views within Conservative constituencies up and down the country. I mean, I don't have any truck with his views at all, but that's why we're in this position, because the whole situation was created, as you know, by a civil wall within the Conservative party, and David Cameron's badly judged way of resolving it. Well, Mr Scott's point was the right one. The choice is whether she splits the Conservative party or not. She has the Robert Peale choice in front of her. Does she split her own party in order to create essentially the right solution for inverted commas to the nation? She has proved herself incapable of so doing. She has no Robert Peale. Thank you very much. I thank the cabinet secretary and his officials for coming to give evidence today, and I wish you all a happy Christmas as well. We shall now suspend the meeting to allow for a change over in witnesses. We now move on to the next item in our agenda, an evidence session on the Census Amendment Scotland Bill. This is our final evidence session on stage 1 of the bill. The committee has received a wide variety of views both before and well after the formal conclusion of the call for views. I've been happy to receive those late submissions well after the formal deadline—in fact, as late as I can allow. However, there does come a time where the committee has to finally take stock of all the evidence that it has received. The committee is very well aware of the wide range of views and strong feelings about the issues raised in the bill. We are very grateful to everyone who has shared their views at committee stage 1 consideration of the bill. I welcome my witnesses. Fiona has slipped cabinet secretary for culture, tourism and external affairs. Fiona is joined by four officials—Amy Wilson, the director of statistical and registration services, Scott McEwen, head of collections and operations Scotland Census 2021 at national records of Scotland, Simon Stockwell, the head of the family law unit and Emma Lutton, lawyer for the Scottish Government. I invite the cabinet secretary to make a short opening statement. I am pleased to be here to be able to talk about the Census amendment Scotland bill, but before speaking specifically about the bill, I would like to take a moment to speak more generally about the census. The next Scotland census will be taken on Sunday 21 March 2021, subject to the approval of Parliament. This will be the 22nd census to take place and the 17th to be managed independently here in Scotland. For the first time in 2021, it will be predominantly online. Our country has relied on the census for over 200 years to underpin national and local decision making. The census is the only survey of its kind to ask everyone in Scotland the same questions at the same time and no other survey provides the richness and the range of information that the census does. There are some basic principles underlying the census. The main point of the census is that it counts for collective decision making. It has to be credible. People have to have confidence in it and it needs to be consistent for comparisons. There must be confidence in the census process from all our citizens to ensure that they provide us with their personal information. This confidence is twofold. First, in trusting that we will ensure that the data is kept safely and securely, but secondly, in trusting that we ask the most appropriate questions that reflect our society at that time and that we do this sensitively. Delivering on this trust is why we have over 200 years of data and can proudly demonstrate a consistency of approach over these years. Some questions have come and gone, but we have always been consistent in our professional approach to the census and with the tracking of the core data. I am here today to specifically have a discussion about the census bill. As you know, the purpose of the bill is to amend the 1920 census act to allow questions on sexual orientation and prescribed aspects of gender identity, those being on transgender status and history, to be asked on a voluntary basis. The power to ask those questions on a mandatory compulsory basis already exists in the census act, but refusing to answer a census question or neglecting to do so is an offence under section 8 of the census act in 1920, and we want to avoid that for individuals answering those new questions. The approach of the bill seeks to mitigate concerns about intrusion into private life by placing those questions on a voluntary basis, as was done with religion when it was first included for the first time in the 2001 census. It is important that nobody is or feels in any way compelled to answer those important but sensitive questions. The need for collecting that information has been arrived at through a process of consultation and research. National Records of Scotland has worked and continues to work with stakeholders to understand the needs and concerns of the communities involved. However, NRS recognised that more consultation is required as the actual questions themselves are developed, such as with women's groups, as the NRS has communicated with them. That is now under way as part of the further stakeholder work that is required in order to ensure that all users' data needs can be understood and considered. It is widely recognised that there is limited evidence on the experiences of transgender people in Scotland with currently no fully tested question with which to collect information. Therefore, the census would be taking a big step forward to ensure that we can develop the evidence needed to provide support and protection for Scotland's transgender population. Sexual orientation is already asked in most Scottish household surveys, and it is proposed that the sexual orientation question for the 2021 census would mirror out the question that is already used in these other surveys in Scotland and elsewhere in the UK. Society has changed significantly and rapidly in the 10 years since the last census, so we must ensure that the census in 2021 reflects that. We recognise that, despite the purpose of the bill being about the voluntary nature of those two questions, many stakeholders will be focused on whether or not those questions should be asked and how they relate to other possible questions. The bill is not about the mandatory sex question, but we are aware that there are strong and often very opposed views on whether a question on sex should be binary, non-binary, relate to birth certificates, legal sex, or be more focused on self-identification. Although the bill does not specifically relate to those issues, there are clearly matters that are concerning stakeholders. The bill currently uses the term gender identity to cover transgender status and history to enable an element of future proofing in relation to the legal definition of transgender. It also assists in ensuring that the questions about sex and transgender can be clearly separated, so the question on sex would continue to be asked on a mandatory basis. However, I recognise that this has raised concerns that the bill conflates gender identity and sex, and I want to be very clear. The intention behind the census bill has never been to conflate sex and gender identity. It is about asking questions to obtain information. It is not about the law on gender recognition or inequalities. I am aware that NRS has written to the convener to indicate a willingness to consider how those matters might be perceived in relation to the census and, importantly, to understand the views of the committee. In terms of what actual census questions will be asked, there is still a work in progress. The bill in front of you is not about agreeing whether those questions will be asked or, indeed, the wording of the question. The questions set will be considered as part of the subordinate legislation process, which will happen next year. I want to assure you that the views and evidence that have been submitted around those issues will feed into the further consideration for the questions to be asked on sex in 2021. On the questions to be set and the wording of the questions generally, we expect a period of informal engagement with the committee to begin after the stage 3 of the bill and continue throughout 2019. The informal engagement process, as recommended by the Parliament's committee last time in 2011, is intended to improve on the 2011 census process by ensuring that the committee will be given the opportunity to properly scrutinise the questions for the census in 2021 before the formal consideration of the subordinate legislation. It is intended that the formal census order and regulations will be taken to the Parliament in early 2020. However, we would like to agree the legislative timetable with you, including what you would find helpful to give in the thorough consideration that will be required. Before ending it, I would like to draw the committee's attention to a couple of drafting points in relation to the policy memorandum, the first being in relation to incorrectly including intersex people under the umbrella term trans. This was an unfortunate action during drafting in an area that is constantly developing. We recognise that the needs of trans people and intersex people are different. Going forward, we will ensure that any documentation does not include intersex people within the trans umbrella. The second point being in relation to saying that the 2021 sex question will have a non-binary response. It should have said that the approach is currently being considered and tested. This is a matter that will be brought to the committee as part of the subordinate legislative process. I wish the committee to note those two points. Thank you for giving me the opportunity to come and speak to you today about the census amendment in Scotland. Thank you very much, cabinet secretary, for that statement, which clarifies a number of matters. I particularly welcome your assertion that the evidence that was gathered by the committee on those matters will form part of NRS's consultation. I think that a number of people have come forward for the first time to express their concerns about some of those matters. I start by acknowledging the point that you made about the general principles of the bill about asking those questions and gender identity and sexual orientation on a voluntary basis. It is fair to say that, in terms of all the evidence that we have gathered, that is not controversial in any way. However, in terms of the drafting of the bill, you will be aware that, although you say that the bill is not about the sex question, the drafting of the bill suggests that, after section 1 of the bill, we should insert the words including gender identity. NRS has written to the committee suggesting that it would be open to look again at the drafting of the bill. Actually, since it gave its evidence, the equality network has written to the committee with some very specific suggestions in terms of how the bill could perhaps be redrafted. What it suggests is that it would change gender identity, which is perhaps not the most appropriate term, to trans status and that trans status would be included in section 1-2B of the bill beside sexual orientation. The issue of gender identity would be removed from section 1-2A of the bill. That suggestion strikes me as quite a constructive one that we are probably welcomed by a number of opposing groups. What was your view of that suggestion? Clearly, we want to hear what the committee's view is, having taken the different elements of evidence from different contributions. Clearly, in terms of the drafting of the bill, which was drafted some time ago, a lot of those issues are coming more evident just now in terms of terms that we use and what we mean. The purpose of the bill is for voluntary questions on transgender status and, I would say, history. We need to think about how we would make sure that it was captured both the status and history in terms of the questions that are currently being looked at. The gender identity aspect was to be an umbrella term that would allow a bit more flexibility. However, I very much appreciate the comments that have been made and the contributions that have been made. That might help to differentiate between sex and gender identity, which is also an issue for some women as well as for equality groups, recognising that the purpose of the bill is to capture transgender status and history. That is something that we will consider and, obviously, we will look at what the committee suggests and respond to that. In terms of your point about the words, I suspect that it is not even the issue of using the word gender identity. I think that it is the word that uses the term included, because that is the bit that conflates or can be perceived to conflate sex and gender identity. That is a very serious point that we would certainly look at. I very much appreciate the committee's attention to that and for people bringing that to our attention. Assuming that we did proceed on that basis, as the equality network said and said yourself, the questions of how the questions are going to be asked are for the future, but the committee will have a role in that. You will be aware that the Office of National Statistics has made its views clear on Friday that it does not think that the question of sex should be a self-identified one, and it does not think that there should be a third option on the question of sex. Its equality impact assessment that was published on Friday reflects a lot of the evidence that we have taken in this committee, particularly from data users. It says that the question of sex, male or female, is established in the census and is essential to the evaluation of inequality related to that protected characteristic. Consideration has been given to amending the question to reflect a wider range of options, given that there is greater recognition than previously of individuals who reject traditional binary views. Nevertheless, the protected characteristic of sex has defined in the equality act and is relevant for the public sector equality duties whether the person is a man or a woman. The concept of sex is, in turn, fundamental to the definition of sexual orientation or gender redesign and the law of marriage and civil partnership in many other matters. After a lot of consideration, the committee believed that the sex question should remain a binary question and that it should not be about self-identification, which reflects a lot of the evidence from data users that we have heard. How much will you take that into consideration? We have quite a difference of views there compared to the explanatory notes for your bill. Obviously, we will look at what the UNS is doing and at what we are doing. It will be considering the evidence that I am sure that there will be interests in the experience that we have in this Parliament at looking at this. I would reiterate that you are obviously straying into the areas of what will be the next stage, which is the dialogue in relation to the actual questions for the next stage of the bill, which will be looking at the actual questions. I acknowledge that that has obviously been in an area that, despite it not being the subject of this bill, you have had quite a lot of evidence on. The importance of the sex question is that, when it is mandatory, we have always had that question. In 2011, it was the same question as it has always been, but, clearly, 10 years ago, people were asking—some people, trans people, in particular—how would I answer this? Therefore, as you are aware, there was guidance produced for the 2011 Scottish census that said that you could fill this in on a self-identification basis. I am not sure that it is absolutely clear what the UNS plans to do, unless my colleagues can tell me more about the up-to-date position that they have from that, but, clearly, a self-identified binary sex question is simple. It is the same as it was in 2011. When you start to try and define sex, whether it is legal or biological, you start to complicate the actual question that is in front of you. I am going back to my basic principles that there has to be simplicity around this, and that is part of the testing of the questions. Which questions are more likely to have the best responses? At the next stage, I am keen that the NRS can share with you what their experiences are and testing different questions to see what will give the best response. Perhaps, I can ask my colleague Amy, if you have any latest information as to what you think the UNS is likely to do in relation to the next stage of looking at the actual content of the mandatory sex question. My understanding from talking to colleagues at the UNS is that they are proposing, as you say, a binary question in 2021, but their view is that that question will be consistent with 2011, so they have not, as far as I am aware, said publicly whether that is going to be a self-identification question or not, and that is something that we will be working with them further on. The guidance that you produced in 2011 was online, and most people really did not know about it. Did the UNS produce the same guidance for 2011 in England and Wales? Yes, it did. In fact, we went with the same guidance that they had produced, so the guidance that we provided was the same guidance that the UNS had developed in 2011. That is very helpful. Professor Susan McVey from the University of Edinburgh, who is the co-director of the Administrative Data Research Centre in Scotland, and I believe that she also sits on the board of national statistics for Scotland, said that the general register for Scotland got it wrong when it redesigned the census in 2011 and conflated sex and gender identity into one question. We went on to have a discussion about how that could affect data going forward as more people self-identify. We had some clinical evidence of that, and she talked about the importance of census data, whereas, while you might be talking about small numbers in terms of intersectionality of data and getting down to smaller numbers, it was very important. She thinks that this is an opportunity. Given that we are now giving people the opportunity to express their gender identity in another question, to maintain the integrity of the sex question because of its importance in the Equality Act. To my principles, there has to be consistency, which I think is important, and that is why obviously there is an argument to be consistent with 2011, but it has also got to be credible and people have to have confidence in it. I think that the fact that we are asking a voluntary transgender question would actually help in terms of the statistical basis, but I would say that, in terms of the credibility, the 2011 census was not wrong. I think that, in terms of having the voluntary transgender question, that would help statistically in being able to extrapolate in relation to what the projections might be in relation to the population issues on male and female. Thank you very much. Thank you, convener. We have heard much evidence that is supportive of the questions being placed as voluntary, which is the purpose of this piece of legislation. There have been suggestions that, because they are voluntary and people might not answer them, there might not be enough data collected. Though, to be fair to the witnesses we have heard, most people do not think that that was a problem. Is the cabinet secretary satisfied with the status of the questions being voluntary? The cabinet secretary said that there was limit to evidence on transgender. Do you think that taking this approach will provide greater evidence and improve policymaking? I think that it will. I will go back to the point that I made earlier about the principle of this being the importance of having credibility and confidence. It is also with the transgender community to make sure that they have confidence in being able to fill this in and that that is something that the questions are drafted in a way that would encourage the maximum amount of completion. Therefore, the stakeholder engagement that has taken place with the transgender and equality groups has informed the types of questions that are likely to be asked. Again, the actual content of the questions will be the next stage of the deliberations on the census, which we will share with you. Again, it is about trying to make sure that you maximise the uptake from that. However, if you had it on a compulsory basis, there was a real concern that that would be an intrusion into the privacy of some transgender people. Therefore, the opportunity of having it as a voluntary question is something that I would respect transgender people. However, with the type of activity that we would want around the census completion, I encourage them to be able to fill in the forms. Can I ask about the use of the term gender identity, which the convener has picked up on, and we have received further evidence suggesting that we could change the wording of that? The cabinet secretary and the bill team have described that as a way to protect against what is a future proofing. I was interested in where else you see that question developing, why, to refer to it as a trans question, it would be too limiting. There is a lot of evidence that gender identity is not a recognised term. There is a lot of clarity over what comes under it. What does it mean? That is why the specific aspects of what is being asked—we expect to be asked, but we will have to share the questions with you as to what the actual text of the voluntary questions would be. It would be about not just transgender status but also transgender history. Therefore, the view is that, if we had a broader umbrella term—I think that we are in, I suppose, a movable territory where people are—there is not a clear one definition on gender identity but also, potentially, on transgender identity. Therefore, that was the idea of having flexibility around that. However, if we are going to be specific, there would be an opportunity to specifically say the voluntary questions to allow it. The reason that you need voluntary is to say that it is voluntary so that people do not get fined or be subjected to an offence. You do not want that, especially in a very personal and private area of sexual orientation and transgender. That was the rationale for doing that. However, to separate out the questions of sex and gender identity, but if the bill is perceived to conflate those issues, I think that that does not help us. We need to have, as I said, clarity on what we are doing, so I would rather think that we are quite straightforward and simple. Therefore, although the gender identity might be a useful catch-all umbrella term, it does not necessarily help if it is causing issues as to what should or should not be the voluntary questions that are quite specific in what we are trying to get. That is welcome. The final question is about the guidance that was published at the last time and where, if the future guidance would head. When I had a look at the Public Body's Gender Representation Act, we passed it recently. I do not think that that was the title on public boards. The definition there is quite prescriptive, so it is if you have a certificate or if you are living as a woman, if you are intending to go for this certificate, it is quite prescriptive. The guidance at the last time that was accompanied was very self-identifying. It is where that fits in with the Gender Recognition Act review that is concluded. If we are ahead of ourselves in some areas, that makes sense. That is a really important point. It probably cuts to what a lot of this issue is about, because society has changed hugely in the past 10 years, and it is continuing to change. That is part of what the census does, is to capture where the society is at any point in time. When the guidance would have been given in 2011, it was way before, obviously, the legislation that you have just talked about. We do not even know necessarily what will happen in the Gender Recognition legislation that is yet to come. Of course, we also had the Gender Recognition Act 2004, so it is a moveable—I mean, this area has been society, and indeed, I think the policy around it has been progressively moving. You might argue that the 2011 guidance, which we have heard was in the rest of the UK and Scotland was similar, was probably quite progressive in talking about self-identification, but it was also about it was to be, I think, inclusive. That is the other point about how you make sure that you are including people, to make sure that they can have the opportunity to fill in the form and the way that they are true to them. That is part of that balance. You cannot retrofit looking at what the guidance was in 2011, which I was not involved in, I was not the minister at the time, with legislation that has either come subsequently or is likely to come in terms of the programme for government, in terms of the legislative programme that is coming forward in this place. It is not easy, but the census is a point in time. It captures information as it will be in 2021. I suppose that the point is that the census has to reflect society as it is, not what it might be in the future. It has got to be captured at the point in March 2021, and I think that that is the point about how we make sure that it is fit for purpose for 2021. However, even in the course of this deliberation and your evidence sessions, you can see that there are obviously different issues that have emerged that maybe were not as obvious in 2011. Certainly, the self-identified gender issue was not, perhaps politically, I suppose, as controversial as it currently is just now. It just seemed an obvious way. I personally think that we should need to be inclusive to make sure that people can contribute to the census as part of a citizen of this country to be part of that collective data. That is where, I suppose, as the Government of the day and you as the Parliamentaries of the day have to determine how you reflect society as it is, certainly in 2018, but also how it will be in 2021 when the actual question is going to be asked. It is not easy, but I am trying to explain why there are differences between what happened in 2011 and what happened in the legislation that you have just talked about and what might happen in the future. I think that that is the point about whether we are gender, if we are trying to future-proof. There is a point in time when you maybe just have to draw a line and say, this is where Scotland is just now. I am really pleased about how this country has progressed in different ways in terms of its inclusive agenda, but we also have to recognise that when the census is completed, it is for the millions, and we mean to make sure that it is straightforward for the millions to fill in, but to make sure that we can do so in as an inclusive way as possible, but to get the data that we need. I actually think that the bill in its approach by making sure that the questions are very sensitive and personal in relation to sexual orientation and also in transfer into history and status is the right way to do it by making sure that they are voluntary. I think that that is the stage that we are at in terms of the census. You will be aware, of course, from the evidence that we have taken that there are a number of images that do not believe that self-identification is a progressive move, but that is perhaps for another discussion. Can I bring in Tavish Scott? So, supplementary to Clare Baker's line of questioning there, the objective, of course, is to use data that is helpful for policy makers and service deliverers. I absolutely take your point. If definition is not clear, how do we trust the subsequent data that is collected? Well, we have never defined sex in the 200 years that we have been doing the census, and the simplicity of asking that question means that people do feel that they have that data. So, I think that that is the point, is that sometimes we cannot check if you feel that incorrectly or not. There is not a way of us, because we have got to respect the anonymity of individuals filling it in. That is entirely fair, but are you concerned that, on the other side, if the definitions are not that, just as you were describing to Clare Baker, the definitions are not precise, then policy makers will say, well, this data is very interesting, but how can we be assured that it is accurate? That is why we have got to test the questions and make sure that they are robust. I think that the next stage of the engagement with the committee is to share the evidence around what the successful completion rates are on the testing that has been done to date, and I think that that will be helpful for the next stage of the census when you are looking at the actual questions itself, because it has to be, remember, going back to credibility and confidence, not just for the individual but, as you said, for the data users themselves. It is absolutely essential, because to get the optimum completion of that, one person has to know how important it is. I think that your point about how it helps service delivery and the communication campaigns, the advertising that will take place around it, people have to have confidence and it has to be credible for individuals but also for users as well. Thank you. Jamie, did you have a supplementary on that point? On the theme, yes. Is it a supplementary because we do not have enough time? Well, we respect that, but it would be good to ask a question if I can. I think that one of the problems with this is that what seems to be quite a simple piece of legislation addressing a technical issue around your ability to add mandatory questions has opened up a huge Pandora's box as part of a much wider social discussion around gender recognition identification, which is fine, but we still have a job to do on this committee. It is relevant to what has previously been said. There still is an issue here, though. If the 2011 census, the sex question, which was in guidance, albeit not widely promoted guidance, was based on self-identification, and that question is mandatory and binary. The future census will have voluntary questions around trans-history or status or gender identity, whatever the terminology or questions may be, but those are voluntary. If people are answering the mandatory question through the status quo method of self-identification, what difference would that make to the voluntary questions that you may ask? In other words, there has been confusion over how you answer the mandatory question because there were no other options, but if there are other options, do you think that that will alter the way that people answer the mandatory sex question? Again, that is an absolutely critical point, which is probably for the next section of the process, but you are cutting to the chase of what the issues are. This is about a social discussion, about the census as always social. Believe it or not, asking the religious question was controversial last time, as was the language question, as some of it might remember in 2001. The census itself is not about the status of any individual in terms of giving it recognition. It is not about recognition and identity per se. It is about answering questions for information. Therefore, your point about the interplay between the two questions is really important. That is why my instinct to simplicity in the questions is helpful, but we understand from the voluntary questions that are asking the trans status in history that also allows us to make sure that it is quite clear what we are asking, because somebody might have a history but then recognises themselves currently as in transgender status as something different from where they were previously, and that is what we need to capture. However, we also think that the interplay between that question and the mandatory question will be able to identify in terms of numbers. They are not huge numbers. We do not necessarily expect them to be huge numbers. We do not know because we have not counted them, but that is the point, is to be able to make sure that the statisticians can pull them about. I do not know why, Amy, if you want to add anything to that, I think that it is critical. I would just say that I think that you make very important points. That is why the testing and the work that we are doing, that we have done today and that we are continuing to do, I think, is of prime importance, because that is very much about understanding how people then interpret those questions, whether having a new question either immediately following or in a different part of the form actually changes how somebody would answer that question. That would be the type of evidence that we would want to bring back to the committee as part of the consideration to make sure that we are very clear if there are changes how that might affect people's responses and the consistency of data going forward. I could just ask a quick technical question on the process for the bill, why we are doing it through primary legislation to allow you to add extra questions on a mandatory basis and then using subordinate legislation to get into the nitty gritties. Is it just because you need more time in the consultation or is it easier to do that way than to have done it all in the face of the bill? That is the way it has always been done, but we are being very transparent by bringing a bill in primary legislation. Actually, we could have not had a bill and just asked all those questions on a mandatory basis, but I do not think that for the reasons that I have already stated that that would have been right or fair. The whole purpose of this is just to make sure that there are no fines involved for people answering questions and sexual orientation and transgender. It is quite discreet, but, as you are evident, we have had 15,000 responses to the original consultation. There is a great deal of interest in the census, so we are starting to get into the area, which is the next stage. Clearly, those are the critical points. It has always come. That is why, in 2011, one of the concerns of the committee, the then committee that looked at the actual census questions, because that is the big substance of what it is. It is in support of legislation that is the census order that they said that, rather than giving us a fetic complete at the end of this, we should then have concerns about it. If the Parliament, the committee, can work with the process, they can inform it, so they can then influence what the questions might be, if there are problems with the questions in terms of looking at the actual content. That is why we have a new and improved process. It is probably front-loaded a lot of the issues compared to previous times, but we want to try and be as open and co-operative with the committee, because we absolutely need you. Going back to Jamie's point, this is about society, and if you are here reflecting what society's views are as a committee, your advice on this is going to be very important indeed. Thanks very much, Annabelle Ewing. Picking up on the issue that was raised earlier, just for clarity, the intention of the bill, as has been said, is not about any mandatory question, including the mandatory sex question. Therefore, there has been some error in drafting where there is language that would refer to the mandatory question. Presumably, that is in our schedule, I do not have the bill in front of me, but the intention is that it would be deleted. I will probably now get the section wrong. That is what my understanding is. If that is not the intention of the bill, the presence of that language in the bill in front of us is incorrect, because that is not what the bill is intended to do. Therefore, the intention would be either for the Government to bring forward an amendment or to accept a relevant amendment to delete that, brought forward by a member of this committee or otherwise? The actual wording of the bill itself can be amended at stage 2, and that will obviously take the advice of the committee on that and consider that. The wording in the bill does not affect the mandatory questions at all. It just provides for the opportunity for gender identity to be asked. You could either have it in my understanding and my legal support here to correct me if I am wrong. You could either ask it in relation to the name of sex, the schedule 5 and the census bill, or the schedule on it, to talk about the different things that can be asked. You can either have it there or it is an either or. However, I think that your interpretation that the language is not helpful for those who think that this is conflating sex and gender identity. I think that it is the word including that is the problem. However, if it is clearer to have it another section, that is something that we would consider. Okay, so that would be something that the Government would be open to doing? Yeah. Just really to clarify for that. Going on to where we are at the moment, obviously we have received a lot of evidence, obviously the very strong views on a number of issues. It seems from reading the evidence to me that a view that is consistently clear from many, many people who have given evidence, including before the committee, is that turning to the issue of the magic question that sex does not permit a non-binary option, and so Professor McVie has been quoted by the convener already looking at evidence last week. Sex is about either biologic or legal sex, whichever you decide to use, whereas gender identity has non-binary options. Sex does not have non-binary options. I just wonder, therefore, in terms of where the National Register of Scotland is now, I understand that they are currently testing questions on non-binary options, meaning how did they inform that approach, because it seems to us that many, many people were not even consulted by the National Register of Scotland, they were never spoken to. People who have expertise as statisticians, data users and a number of women's organisations, so far they were not actually spoken to by the National Register of Scotland. How have the National Register of Scotland got to the stage that they are testing a non-binary question? Who has informed that process thus far? What will maybe now change going forward? I asked the question last week to the data users and statisticians. If they were now contacted by the National Register of Scotland, would they be willing to work with the National Register of Scotland? They suggest that they would be, but they have never been contacted by the National Register of Scotland. I will bring in the NRS, but I think that there is a point about making sure that, in terms of the actual content, of the actual mandatory question, that we involve the stakeholders that would have a view on that. Obviously, it is the stage that we are in just now. That would include a lot of the people who have given new evidence to this committee, and I know that the NRS has communicated to the convener that that is now happening, but Amy, do you want to answer that? In terms of why we have been testing that question, the consultation on the topics that was asked was asking for people to come forward with their data, the needs that they had for 2021. What came forward as part of that consultation was an expression that the question in a binary form may not be inclusive enough for some people to respond to. We did not have anybody who came forward as part of that consultation. Up until this point in time throughout the process with the bill, we have not been made aware of concerns around that. We followed up on the needs that were expressed as part of the consultation, but it is absolutely right what you say that now we are being made aware that we have now been in contact. We are starting to get in contact with people who have expressed views on that, and we will be following up on that. I think that you are right. So far, we have been responding to what has been expressed as a data need. I think that there are new needs that are being expressed or previously unexpressed needs to us, and we will be following up on that. That is part of the advice that we take from the committee as to who we should be involving, but, as the Government Minister, I want to make sure that that is as wide as possible. I think that there is a genuine issue when we get to the mandatory question, and whether it is binary or non-binary. If you are starting to define sex, that goes back to the point that we have never defined previously. There can be biological sex, legal sex and so on. Is the right to privacy in MD answering that question? Who might have difficulties in doing that? Is that something that we just have to be aware of? Indeed, but, as I say, the evidence that we have received in the committee raises very significant questions from many perspectives that sex does not permit of a non-binary option. That is a consistent theme of the evidence that we have received. I therefore find that we are a bit surprised and notwithstanding what would be at least accepted view, presumably, in society today among many people with strong views, including experts, including data users, including statisticians, that it did not perhaps occur to the national register of Scotland that this might be an issue. However, we are where we are, and it is good to hear that the national register of Scotland will now speak to a much wider cohort of people who have useful contributions to this debate. Obviously, as a committee, we will look forward to being involved in that process as well. If I can make just one other point briefly, which is on the issue that Clare Baker raised on the voluntary issue, which is the bill, on gender identity, it has been suggested by at least a couple of witnesses that, if you simply equated that with trans and trans history, that would be excluding other possible individuals. Therefore, having a non-exhaustive list under that broad category and broad umbrella might be more helpful if we recall that the purpose of the census is to collect data, which can be useful for planning for health and other public services. Perhaps officials could answer what thought has been given to that, because that is certainly a view that has been expressed to us in our evidence. Following up from the consultation that raised the issue of gender identity in subsequent conversations with stakeholders, it had been apparent that the actual need that was being expressed was around collecting information on transgender people. That has certainly been the way that the work has gone so far. However, as I said to the last question, I think that there has now been other issues raised. Up until now, in the testing that we have done, a question on gender identity, a broad question has not necessarily tested very well and is less able to be understood, which I think reflects the issues around terminology and an actual definition, but I think that it is something that, as we start to follow up with more stakeholders, we will try to establish exactly what that data need is. There could be a range of needs there, but we will bring that back to the committee to explain what the need is and, therefore, any proposals that come back, why we are proposing the questions that we are. In terms of where you are now with the testing, it seems in the documentation that you have been testing a non-binary question. Given where we are now with the evidence before the committee, is that something that you might pause with? Obviously, you still have to hear from a whole host of other people about the efficacy of such an approach. We have been testing non-binary questions, but we have also been testing binary questions, so it has not just been a non-binary question that we have been testing. We will be looking at going forward and reflecting from the evidence that has come in from the committee as to what needs to be tested going forward. I think that we will continue to test with a range of questions. Picking up on something that was raised earlier is partly the interplay of those questions, so we need to look at any proposed question that goes forward, whether it was binary or non-binary, and how it then interplays with other proposed questions. As a real concern is that it has some 15,000 responses to consultation, and yet, for the evidence, we have a huge number of groups that represent women, which are 52 per cent of the Scottish population. I am sure that they were not adequately consulted, so the way that I can back to the drawing board on that is important. Cabinet Secretary, you have mentioned that sex has never been defined, but in the 200 years of the census, I do not think that it would have occurred to most people that there was anything other than male and female. I was growing up, I never thought of anybodies being other than male and female, and I do appreciate that society might have changed in terms of people's self-identification. The evidence that we have had has been quite conclusive on the fact that people are born dimorphic, either male or female. I would have thought that the first question should quite simply be what sex you are when you are born, and then you can go on to ask voluntary questions subsequently. One of the things that I am concerned about is that you have talked about consistency with the 2011 census, but two rights do not make a wrong. If self-identification actually was wrong then and should not have been the question that was asked through the guidance, surely we should change it now to make sure that we are much more specific and that people know what questions they are being asked. I appreciate your points, but that is your view, and I think that people have different views as to whether the 2011 census was wrong, because I do not think that it was wrong, but you can interpret whether that should have happened or not, and that would be an opinion, but that is the point of consulting the committee. In terms of what we do going forward, it goes back to Jamie's point that we have to reflect society as it is. Of course, it might have occurred to those who were transgendered over the decades previously, but perhaps that recognition or understanding about how they would engage with the census was not there. There will have been transgendered people answering those questions for many years. Currently, in society now, we are more conscious and more aware of the fact that society more generally is more aware of the existence of transgendered people. I think that the point about trying to capture the information as it is currently in 2021 is that we are not even there yet and how society views things. However, we have to make decisions now, because the timetable for processing this means to get the orders that you have to see, to have the evidence, etc. That is why it is not defined as male or female. As you said, there is biological sex as legal sex. There is no one definition, but it is only nowadays that we are starting to identify that. Your biological sex, if somebody has a gender recognition certificate, their legal sex will be different. Therefore, it is not right to say that we should never consider what male or female is, because we do now, but my instinct is to try to keep it as simple as possible and to be consistent with what we have asked for the past 200 years. I never said that we should consider what people feel and make their sex to be. I said that we should identify people as they were at birth, but the quality act that we are talking about is a protected characteristic of sex. The quality act 2010 refers to sex in binary terms, man or woman, section 11. It defines women as female of any age and man as male of any age. Those have sex in these definitions generally understood in the biological sense. However, if a trans woman has obtained a gender recognition certificate, she will receive a new birth certificate stating that she is female. That is despite being born biologically male. The point is that in the 2011 census seemed to ignore that, and people could self-identify. The reason why so many women's groups have given evidence to us to express their concern about that is simply because they feel that there is a threat to women in a whole host of areas. I will not get time to answer that, but the evidence that we have taken gives detail on that that self-declaration does threaten women, particularly women who get intimate care from people who may be trans, who are not self-declaring, and all other aspects are still biologically male. No, I absolutely appreciate those points. We cannot retrofit where we were in 2011. We have to deal with where things are now. The issues that have been brought to the attention of this committee are issues that are far more live and current now than they were in 2011. Therefore, that is where the responsibility at any point in time in the census is to say, where does society stand now? What can we do to capture the information that we need now? We have now got the public policy of the quality duties under legislation that public bodies have to ensure that they deal with the quality issues. We have a different position now than we were in 2011 for a whole variety of different areas. We also have to recognise that is there an opportunity—I suppose that I am straying into the next stage of the consultation—whether you can keep the clarity and simplicity of the male-female question, have a voluntary transgender status and history question and would that be satisfactory? Or, if you do not want to conflate gender and sex, it might be in the interests of some women's groups to have an opportunity to have a non-binary part of the mandatory question to exactly do what you are saying, to separate out the gender issue from the sex issue. Having the non-binary might also help the equality representation so that people can then see what their view is and have that as another. There are arguments for the non-binary question from both the women's groups perspective, because it separates out sex and gender, but potentially from the equality perspective. Where that might have problem is people then saying, well, hang on, you are either male or female, and that is it. We should not have a third option there. All I am saying is that there are different views from different perspectives in society, and our role and our responsibility—collectively, in Parliament and Government—is to steer a road that captures enough information that makes it credible, has confidence that we are counting, and we are doing that in a way that is meaningful for those who have to use the data. I am not saying that it is easy, but there are—this is a bit that we will get to in terms of looking at the mandatory question and what should be in it, whether we just have it as a binary and rely on the transgender question to the voluntary question to give us that perspective of people who have a different gender identity from what the sex is defined as. With respect, cabinet secretary, I am not aware of any women's group suggesting that the question should be anything other than a binary question. If there are, I do not know that they have been in touch with the committee, but they all seem to be pretty consistent as far as I am aware. That is what you have to reflect on the evidence that you have given, but remember that the call for evidence for this committee would have been, as the convener said, right at the start, about the bill in front of us, which is about the voluntary questions. If people have a choice of male, female or other, people might just go, I will tell you all that for a laugh. I am not saying that in a facetious manner, because it was at £400,000 when people in 2001 census wrote their religion in his Jedi. Whereas if it is male or female, I think that you will get a much more accurate figure. Everyone in the committee agrees that we can have voluntary questions about orientation. I think that that is an important point because it is about credibility and confidence. That is why the testing is really important to see how people respond to that and what is a temptation for people not to treat it as seriously as they should do, because the census is so serious in terms of the information that it provides us. Is there not a danger by adding a third option of the sex question that that would mean that the census data would not be comparable with the previous data that we had and the whole idea about trying to ensure that the planning process is there to ensure that we have that information and that data is correct and that it is used in many sectors, especially in the health sector, to provide services? I will bring in colleagues as well on this, but the point that I said about it needing to be consistent is important, but I think that you have already taken evidence from NHS, in terms of usage, that they use the sex information at a very high level, but we also anticipate MD filling in either. Even the voluntary transgender will be a small number, it would not necessarily affect some of the global data that we need in terms of the sex question. I do not necessarily think that not being consistent would necessarily be an issue, but in that regard, again, that is a statistical kind of what you can project, but I do not know if you want to come in on that. One area that we have not talked about yet, partly because, as we have said, it is the next stage with the questions around what we would actually output. If we ask a non-binary question—I would say the big if, that is obviously something for users to have the view on—we would not be proposing and all the conversations with stakeholders to produce outputs on a non-binary basis. We have always been consistent in our conversations with stakeholders. That is about allowing people to respond in a way that reflects how they identify. In terms of outputs, we would still produce outputs on a male and female basis. We have discussed with stakeholder groups about the fact that what we would do was randomly assign people back into male and female, given that the numbers are expected to be very small and it will not affect the statistical distributions, and that seems to be acceptable. As long as we do that on a random basis and do not try and establish through other information that they have given whether we believe them to be male or female, that is something that we are working on. We will continue to work going forward to see how, if that were to be the question that was asked, we would deal with that in outputs. That is vitally important that you identify that. By doing that, at least, you are then trying to tackle the situation. Otherwise, it becomes much more complicated and you can open up another kind of worms in many respects as to what might take place. Can I just say that that is the crux of the issue for the next stage, not this bill, but for the next stage? If you are not going to use non-binary data, you are just going to use binary information, why ask the question in the first place? The point is to allow people who otherwise might not feel comfortable responding to respond. That is a decision that has to be taken out. If you are not going to use it and go back to the principles, we are counting people for a purpose. That is the main purpose of the census. If you are not counting them for a purpose, why count them in that way? Therefore, we will then come back to the societal point. Should the census be such to allow responses, even if you are not necessarily going to use that response information and a data purpose? Keeping it simple is more reliable. It reflects what your usage is, but it does not necessarily reflect how people might want to contribute in filling it in the first place. That is the advice. I would be very welcome to hear from the committee as to what your priorities are in determining the next stage, which is the mandatory question. I think that that is quite important. You have mentioned a couple of times that there has not, even prior to 2011, been a specific narrow definition of the sex question, whether in relation to a biological characteristic or any other specific characteristic. It is important to draw out the fact that the guidance in 2011 was not a departure, was not a change, but rather a clarification of the way that the census has always operated. That being the case, I wonder if you have seen the evidence that has been submitted from a coalition of national women's equality and violence against women organisations, including prominent, well-respected organisations such as Scottish Women's Aid in Gender, Rake Crisis Scotland and others. They say that they have a long history of deliberation on the interrelationship between trans equality and rights and women's equality and rights. Quite unlike the representation that was made earlier, suggesting that a huge number of women's organisations were expressing concerns and felt uninvolved in that, they say that they were engaged with the census process in our work. Our view was and remains that the proposals that are consulted upon will have little impact on gendered data gathering and analysis, but they do say that we were concerned to hear calls to the committee to reverse the practice of the census 2011 in 2001 and mandate respondents to describe their sex at birth. They say that they were concerned about that. They say that they were not aware of any problems with the current historical approach and that trans individuals responding to the question on sex with details of their lived identity, this organisation feels that's appropriate, doesn't cause problems and they say that in most instances this will accurately reflect how a broad range of public bodies and providers of goods, facilities and services will understand and treat them and that to have a departure from this would cause problems in relation to breach of privacy. Does the Government agree with that analysis and share that position, and in particular does the Government agree with the suggestion that for most trans people their lived identity is most closely relevant to the way most data users for the census will engage with them and treat them in respect of services? I understand that. I haven't read that particular correspondence or evidence to the committee, but we'll make a point of doing so. I think that it runs somewhat counter to some of the other points that have been made by the committee about some of women's groups that have given evidence and representation, and that's part of the consultation that's taking place that currently was an interest in relation to getting on to the next stage of mandatory. That's the point about what's lived experience as opposed to biological or legal sex, and that's why I think the guidance was the way it was in 2011, but we're not dealing with the 2011 census, we're dealing with the census preparations now. The importance for the Government is to make sure that the census doesn't lead to public opinion, the census has to reflect society as it is just now, and to ask questions that maximise the response rate effectively so that it can be used. However, I appreciate the points that have been made, and I think that that's what we probably have to get to the nub of in terms of women's groups in particular and different organisations and what are the issues that they really want to get at and how much concern there is in relation to self-identification and what that means, but this is not the bill that should resolve these issues, these issues should be resolved somewhere else, and that's why I think we've got to be very clear in terms of what we're trying to do here is we want the census to count people, and we want it to be credible and of confidence, and that to me is the primary thing for my, so I'm not taking a government view as to whether people are right or wrong in saying these things, all I'm saying is it's almost like a guardianship we've got of the census, and that's my role is to make sure that it's as credible and it has confidence that it counts people and that there is a consistency that we can use data properly. Indeed, and it is a 10-yearly population level snapshot, it's not about recording individual information like a national identity database, which I think most of us would oppose on principle. If the government continues, as I would suggest, to stick with the historic situation in which the mandatory sex question is answered by each individual honestly on their own terms, rather than defined in relation to one characteristic, and the government also decides not to have another category, how should a non-binary person answer that binary question? Is there not a fundamental problem if we maintain this position that people answer that question on sex honestly in their own terms, but don't include an other option? Do we not inevitably risk people feeling that they have to give inaccurate information? Well, that's the point about allowing responders to respond accurately, which I think was the point that Alexander Stewart was making. I think that most people, as you've expressed, would want to answer that question and how they live, as opposed to necessarily their sex at birth or, indeed, their legal sex, but that's why the extrapolation of the voluntary question on transgender status would allow us to take that information out to make sure that it's as accurate as possible. However, that's the balancing act that we'll have to come to, and we've not determined that yet. That's why we're engaging with the committee and we want to engage earlier than has previously been in the 2011 status census to get that view as to where the committee is on that. There is something about keeping it the way it's been previously, but there are new issues that have been brought to attention in the committee, and we've got to take your views that balance it. Particularly, I think, the convener's point about women's groups, and I haven't seen this other collective letter, and I presume that that's been submitted into the committee. In the letter from NRS on 5 December, which, as far as I understand it, is the first point at which the suggestion of changing the reference to gender identity to one about trans status was suggested, and the idea of being open to that change was in the letter on 5 December. If that is an active consideration, if that's an ongoing consideration, would there be any potential problems if amendments were made to the bill that restricted the kind of question that can be asked? Is there a change that has to happen, or is it more the question that we need to resist making restrictive changes to the bill that would close down that consideration of the options? I don't think—well, I don't think—legally, this is why we'll have to reflect on this as to what changes—this is the stage 2 part—what changes could be made to give clarity, which I think that's what everybody's wanting to see. We've always been quite clear that the questions that we're wanting to ask about—unless you're about to tell us otherwise—it's not the questions that we wanted to ask about transgender status and history. If that's what we want to ask on a voluntary basis, we might be able to be explicit about that, that's exactly what we'll ask in terms of drafting, and that's where the amendments at stage 2 could be limited to that. I don't think that that would limit us in any other way, because the irony is that the mandatory questions—we could actually ask anything—is far more flexibility in scope. All we're trying to do is protect people from being fined or committing an offence by answering those questions. I don't think limiting it in the suggestions that was made earlier on by the convener and herself in relation to restricting that wording to transgender status and history. I don't think that that would unnecessarily restrict us unless our lawyers would tell me otherwise, but that might be something that we need to respond in writing to the committee about. I think that that's something that we should consider further down the line, is not for this moment in time to discuss the specific effects of specific changes or suggested amendments to the bill. That's something that we consider going forward into stage 2. Just for clarity on the equality network's own submission to the committee, when they suggested including trans status, they said in their submission that they did not think that that would pin down the question and that the consultation process was open to further develop that question. It didn't seem to be a concern of theirs. I think that we're just having the caution of lawyers in the room, because that's probably what we have, but that's my understanding as well. Okay, Stuart McMillan. No, thank you. Good morning, Cabinet Secretary. I was on the committee 10 years ago that I went through the process, so I had to go on. All will be revealed in it. Generally, I found this process to be, it has been helpful. You mentioned earlier on regarding the front-loading on some issues, and I generally think that it has been helpful in what this committee has been doing and teasing out some of the particular issues for the actual next stage, but I just wanted to make you aware of that. One of the, there's been a number of points that have been raised in terms of evidence, but certainly last week we heard some issues regarding the guidance that was available for 2011 and the direction of people to the online guidance. Has any consideration been given to that to, so when we do get to the next stage of the actual census itself, to actually have a potentially improved process and to make more people aware of that online guidance is actually good? The one thing about the guidance is obviously that different questions come and go, and the guidance is very important, but also for particular groups, and you remember the language issue, there were a lot of particular stakeholder groups that were trying to encourage people to answer that question, so there was quite a lot of activity around that as a new question and what that meant and how people should engage, and that's what we'd also want particularly in the voluntary question on transgender to encourage people to fill that in so that in terms of getting that information, we've got some information on that. But your point about guidance, again what this process has identified is although the bill itself in a sense is straightforward because it's about the voluntary aspects, the next stage is the more complicated aspect because it will be about the mandatory questioning and that will be very detailed, but alongside that is the guidance within that, and I think that this process in the evidence sessions has shown that the 2011 guidance was obviously something that came along during the process of that census development, but it's obviously clearly very important. In terms of our transparency and engagement with the committee, I think that it's really important that we ensure that the guidance that's there is given the attention that it deserves and to make sure that some of the issues potentially controversial or indeed otherwise, that the guidance has given as much importance as the questions itself, so that there is that transparency, so I think that your advice on that I think is well taken. I know, thank you. A second question is in a different aspect, so hopefully the convener will allow me. You mentioned earlier on regarding the census will actually be mostly online, but in terms of other people in society, particularly people who maybe have a visual impairment, I take it that there will still be copies of the census and paper copy, but also in various other formats, including Breil. Absolutely, and that is something we are, in fact, even picking up your last point, we will be continually testing with individuals, with groups as well, to make sure that all the information that we provide is accessible, is easy to understand, and we are fully working alongside equality groups and groups that represent people with different needs to make sure that what we're doing is actually appropriate for them. I thought I'd pose that question, because I chair the crossbar to give one visual impairment. Yeah, yeah, no, very good. I would say, convener, obviously there's different aspects of the census. We're focusing on particular issues in relation to the voluntary questions, sexual orientation, transgender, and obviously we've touched a great deal on the mandatory question on sex, but there's an awful lot else around the census, so we want to make sure that there's an offer to the committee to make sure that we keep you up-to-date about the whole project itself. Yeah, we'd appreciate that. Is that you? Finish your questions. Just to conclude, Cabinet Secretary, Patrick Harvie mentioned the number of women's organisations that I had written collectively under the umbrella of engender. In that particular submission, they raised issues of concern about how public bodies collect data on protected characteristics, and they believed that there was a lot of confusion out there that sex is a protected characteristic, and it's defined, as Kenneth Gibson said earlier, it's defined by the equality act as gender reassignment as a protected characteristic. In the equality impact assessment for the census amendment bill, the NRS dealt with sex and gender reassignment under the same heading, and it mainly talked about gender reassignment, and it contrasts very sharply with the ONS equality impact assessment, which dealt with those two protected characteristics separately. Do you acknowledge that there is perhaps some work to be done across Government and in your department to make sure that every area of Government in all public bodies are adhering to their obligations under the equality act to deal with sex as a protected characteristic independently of gender reassignment? I think that the answer to that is yes, and I think that across Government we can always be improving, and I think that the exercise in this process has identified that as well. However, I would say that the equality statement for this bill is about this bill, and this bill is about transgender identity. It's not actually about sex, so therefore it's not about the mandatory question on sex, it's not about the sex issue, it's about gender reassignment effectively and gender status, which should be captured by the voluntary question and sexual orientation, so the equality statement will be in relation to the bill in front of us, not about the census process generally. Finally, I welcome the fact that you're going back to various groups to gather views. You'll be aware that there are differences of opinions even within lesbian and gay communities. There are many lesbian and gay people who have got concerns, for example, about self-identification, and there are women's groups who disagree with some of the comments made in the submission that Patrick Harvie mentioned, and they have made submissions to our committee. Can you give us assurances that you will take all those views into account and that you won't just go to certain suspects who are funded by the Government and whose money depends on them taking a particular position on those issues? I hear what the convener says, and I think that it's really important that we have as wide a consultation as possible when we get to the next stage, which is determining the final questions and the actual content of that. I think that you're right in saying that a lot of people have different views and opinions, but if you take on everybody's views and opinions, you still have to come to a judgement at some point. That's why I hope that I've given you some perspective that at the end of the day, as the guardian of the census, it's got to be credible, have confidence, count people and to have some consistency. We're not going to be able to please everybody in this, but we have to—I think that it is a snapshot in time. We're going to have to make sure and determine the questions based on that snapshot in time as to where society is. That's why I don't think—as one individual, although I'm the responsible minister—that I have to make final decisions. I really need to do so with the advice of this committee, because you can help me to do that. I very much appreciate your consideration in doing that.