 The next item of business is a statement by Shirley-Anne Somerville on a challenge to the UK Government's section 35 order on the Gender Recognition Reform Scotland Bill. The cabinet secretary will take questions at the end of her statement, therefore there should be no interventions or interruptions. I call on the cabinet secretary around 10 minutes, please. Thank you very much, Presiding Officer. Parliament has already been informed of the petition lodged by Scottish Ministers last Thursday for judicial review of the Secretary of State for Justice. The decision to make an order under section 35 of the Scotland Act preventing the Gender Recognition Reform Scotland Bill from preceding to royal assent. I must make clear that, as always, with live legal proceedings, there are strict limits on what I can say and I must not enter into the substance of our petition or the UK Government's statement of reasons. I am sure that members will understand that restriction. However, I wanted to make this statement today to explain the decision as fully as possible to Parliament. We have not taken this decision lightly. We have considered it carefully and it was clear to us in our deliberations that allowing the UK Government's veto on the democratic decisions of this Parliament to go unchallenged would undermine our democracy. Equally, the veto was used with no prior discussion or warning and without ever hearing from the UK Government about what amendments it would have wanted in the bill. That cannot go unchallenged because of the implications for future legislation and for devolution, particularly as the Secretary of State refused our offers to work on potential changes to the bill. To this day, I can confirm that the UK Government has not offered up a single area for amendment that would satisfy them in relation to the issue of gender recognition reform. Therefore, if we want to take a stand and protect our democracy and devolution, there is no option but to pursue this legal challenge. The 1998 Scotland act that established devolution included the section 35, which allows the Secretary of State to make an order prohibiting the Presiding Officer for submitting a bill for royal assent, even though the bill is within this Parliament's legislative competence. The intention for how power should operate was made clear in comments made by the UK Government Minister Lord Sewell in July 1998 when he said, and I quote, These powers of intervention are of course meant to be long stops. Their existence should be sufficient to ensure consultation between Whitehall and Edinburgh so that there may be no need for them to be used. There were concerns at the time that powers under the Scotland act could amount to a veto in devolved legislation. There was discussion of the need for controls on how the powers might be used and that they could be used as a political tool. Indeed, it was dubbed the Governor General clause and described by Conservative MP Michael Ancrum as having, and I quote, A power to bring the actions of the Scottish Parliament to a halt. The need for some control around the use of the Scotland act powers is reflected in the memorandum of understanding between the UK Government and devolved administrations. Updated in 2013, it clearly states that, whilst the legislation contains powers for the Secretary of State to intervene in devolved matters, those powers should be used, and I quote again, very much as a last resort. In fact, the UK Government's unprecedented use of section 35 was the very opposite of a last resort. The memorandum goes on to state that the UK Government and the devolved administration concerned will therefore aim to resolve any difficulties through discussion so as to avoid any action or amendment. There was discussion by the devolved administration having an adverse impact on non-devolved matters. If formal intervention should become necessary, the UK Government will, whenever practicable, inform the devolved administration of its intention in sufficient time to enable that administration to make any representations it wishes or to take remedial action. There were no such representations from the UK Government. There were no such representations made in the consultations of 2017 and 2019 when, of course, the UK Government planned to make similar reforms. There were no representations through the nine-month passage of the bill. The UK Government took no steps to resolve their concerns and did not raise the possibility of a section 35 order with us. The Scottish Government has been proposing gender recognition reforms since 2016 to bring it in line with international best practice. We held two public consultations, including on a full draft bill and impact assessments. With over 30,000 responses combined, this was some of the widest consultation ever undertaken on Scottish legislation. The UK Government made no response and did not provide a view. In fact, the UK Government proposed similar reforms and, in its 2018 consultation, explicitly recognised that Scotland could take its own approach, stating that gender recognition is devolved to Scotland. That means that Scotland can have its own system for gender recognition if it wants to. The UK Government undertook to work closely with the Scottish Government on the implementation of Scottish proposals, especially on the implementation of its proposals where powers are not devolved, mutual recognition of certificates issued in different parts of the UK across the UK. While the UK Government subsequently dropped its proposed reforms, the joint work on implementation went ahead. At official level, there were fortnightly meetings between UK and Scottish officials as the bill progressed through Parliament, including early work on a section 104 order, which is the usual method for resolving impacts between devolved and reserved law. Far from raising concerns, the UK Government explicitly endorsed Scotland's ability to take forward reforms and otherwise made no comment. It gave no response to the committee's call for evidence, and there was no ministerial contact until the UK Minister for Women and Equalities responded to a letter sent in October by my predecessor, Social Justice Secretary Shona Robison, which led to a meeting the day before stage 3 of the bill. Cross-border effects were discussed at that meeting, but no changes were requested by the UK Government and there was no mention of a consideration of a section 35 order. The Secretary of State for Scotland's first contact in the bill was a letter on 9 January 16 informing us that he would be laying the section 35 order the next day. A House of Commons motion seeking to annul the order was not allocated at debating time by the UK Government. Far from raising concerns or amendments to the normal Government channels, rather than following the memorandum of understanding, the Secretary of State used to section 35 power exactly as even Conservative MPs feared at the time of the 1998 act. An absolute veto to strike down any devolved legislation passed by a majority of this Parliament he dislikes without discussion based on political not policy judgment. Immediately after receiving Mr Jack's letter in January, Shona Robison offered a meeting with the Secretary of State in which he offered a potential way forward. The Scottish Government would work with the UK Government at both ministerial and official level to explore potential amendments to the bill. The Secretary of State absolutely refused this offer, stating that there would be no further meetings between the Governments on this issue. He set out three options for the Scottish Government. We could drop the bill passed by a majority of this Parliament altogether. We could address his concerns in an amended bill but without providing what areas needed to be amended to allow the section 35 to be dropped or we could pursue legal action. The UK Government statement of reasons does not provide a basis for amending the bill, and Mr Jack, in direct contradiction to the position in the UK consultation, has stated that any divergence of approach in Scotland would be unacceptable, saying in short, two different regimes create adverse effects. It has therefore proved impossible to find a way forward or to consider a form of amended bill that this Parliament would agree to and that would also lead to the Secretary of State to revoke the order. The Scottish Government remains committed to the bill, as amended and as agreed by a majority in this Parliament, which would make it easier for trans people to live their lives and access their existing rights. Over 350 million people around the world already live in countries and regions with the type of systems proposed in the bill. Irrespective of your view on the bill, and I recognise that some people remain firmly opposed to it, challenging the UK Government's use of section 35 is the only option for a Government that wants to uphold and defend the democratic will and devolved powers of this Parliament. To not challenge the order would mean accepting that the Secretary of State can ultimately strike down any devolved legislation, even after a full and detailed scrutiny by Parliament and after MSPs have amended, debated and voted on a bill. If after all that one person can simply decide that a bill should not proceed without that decision being questioned, it sets a precedent that calls into question devolution itself. If the UK Government can use this power once, without being challenged, how long will it be before it uses it again? As we have seen with the sole convention, once a precedent has been set, the UK Government will find it easier to justify using a power again and again, gradually eroding the hard-won devolved powers of Scotland. To conclude, I know that, although the bill was passed by an overwhelming majority of members, not all MSPs or all of the wider Scottish public agree with the aims of this bill. I hope that we can agree that the unprecedented intervention of the Secretary of State for Scotland to halt a bill on devolved issues already passed by this Parliament must be challenged. That is why Scottish Ministers have lodged the petition for a judicial review. We will fight to defend the devolved competence and democratic function of this Parliament, and it is right that we do so. Thank you. The cabinet secretary will now take questions on the issues raised in her statement. I intend to allow around 20 minutes after which we will need to move on to the next item of business. I'd be grateful, as ever, if members were wishing to ask a question. You could press the request-to-speak buttons now or as soon as possible, and I call firstly Donald Cameron. I refer to my register of interests as an advocate and also thank the cabinet secretary for early sight of her statement. It is, of course, deeply disappointing that the Scottish Government has chosen to challenge the section 35 order in the courts and is plainly doing so now to divert attention from a serious crisis that is currently engulfing the SNP. A lengthy and expensive litigation is the wrong choice for this legislation and for all those it impacts. It doesn't benefit the trans community, it doesn't benefit women and it doesn't benefit the Scottish taxpayer. Lord Hope, one of Scotland's most eminent judges and a former deputy president of the Supreme Court, has described the prospects of success here as very low and implied it is a waste of public money. Let us remember that the Scottish Government was warned of the impact of the Bill on the Equality Act during the passage of the Bill and yet plowed on regardless. Furthermore, despite the UK Government publishing its very detailed statement of reasons behind its decision to make the order, we are yet to see the details of the Scottish Government's legal position. I am fully aware of the restrictions that apply here but if it is in the public interest for the Scottish Government to challenge the section 35 order then logically it follows it is also in the public interest for the Scottish Government to publish its legal advice. My questions are very specific. Will the cabinet secretary confirm whether the Lord Advocate has tended legal advice on the prospects of success in this judicial review? Will she now publish that advice and will she advise Parliament on the estimated cost of this litigation if it is appealed all the way to the Supreme Court? As the member will well know, there is a convention not to publish legal advice and it is exactly the same position that the UK Government will take as well as they move forward with this. I highly doubt that Donald Cameron will be suggesting that the UK Government published their legal advice. Let's have a debate about what we can and can't do in that realistic basis. We are very keen to be as transparent on this as possible and that's exactly why we have asked for the agreement of the court to publish the petition. We have recently received an agreement that we can do that and we hope to publish that in due course. I hope tomorrow now that that confirmation from the court has been received. I would again strongly caution against any suggestion that we are doing this out of desire to take this as our first course of action. We have no option. I'm detailed in the statement, the alternatives that we had were closed down to us by the UK Government, not through our decisions but by the UK Government. That is a position that I did not want to get into. It's a position that the Scottish Government does not want to get into. However, if we are going to have a UK Government that is refusing to have discussions with us, I make no apology for standing up for the rights of this Parliament and for a bill that this Parliament has passed. When it comes to the matter, of course, I appreciate that this is a matter of concern for members and indeed for the public. This is not the way that we would have wanted to go about things and therefore we didn't want this cost to take place. Yes, we will publish the costs for this once the action is completed. It is impossible for us to be able to do so beforehand because we do not know how that will proceed within the courts. Once that has gone through due process, we will be very transparent and publish the costs on this issue. I would like to thank the cabinet secretary for advance sight of the statement and for outlining to Parliament the decisions taken during the recess. It is critical that we do not lose sight of the purpose of reform. Every day that the bill spends in court, there is another day that trans people do not have access to a reformed process. The use of the section 35 order by the UK Government was the wrong approach and it is a mechanism, as the cabinet secretary said, to be used in a last resort. This issue is too serious and too important to be reduced simply to a political debate or a constitutional football. The cabinet secretary mentioned the section 104 meetings between the UK and Scottish Governments held in relation to the UK Government's 2018 proposals. In response to a letter sent by my predecessor in this role, Pamdan Glancy, the former cabinet secretary confirmed that the Scottish Government had committed to working with the UK Government on section 104 in relation to this bill. Therefore, can the cabinet secretary outline the detail and outcome of those discussions in relation to section 104 for this bill, as we asked for throughout the process of the bill and we were confirmed that it was in hand. Moreover, given the length of time the case is likely to take, as has been widely reported, will the cabinet secretary give an outline guide to the Parliament of how long she expects this matter to be in the courts in line with the legal advice that she will have received? Finally, while reform is locked in legal proceeding, can the cabinet secretary outline what specific action the Government is taking to support trans people, particularly to access important services such as healthcare, where waiting lists remain too long? As many people will be concerned as we progress to legal action, we will be concerned because of the delay to this bill and the impact it is having on the trans community. I am deeply sorry that it has come to this and that we are not moving directly towards royal consent. The section 104 meetings were progressing. Discussion was on-going. That was positive and constructive between officials. There was nothing that was raised to ministers that would flag that we would have a section 35 order coming our way or that there was anything that would not suggest that we were moving forward with that section 104 in due course, as we do on many bills in this area. How long it will take in court is obviously a matter for the court. It will be for the court to decide when this is heard. Obviously, the UK Government is not too late for a change of heart from the UK Government and for them to withdraw that section 35 order and save us all the challenge of a court process and the impact that will have on the trans community and others who are concerned about this bill. It is not a matter for me to be able to lay a timetable out when I am afraid that I am unable to do so. He does raise a very important point about other matters relating to the trans community that it is important that we do step forward because, while this was an important piece of legislation, it is not the only aspect of my portfolio that can assist or, indeed, other cabinet secretary's portfolios and he has my full assurance that we will continue to move forward on these issues across government. Alex Cole-Hamilton to be followed by Clare Adamson. Thank you very much indeed, Presiding Officer. Along with members of all parties, Scottish Liberal Democrats voted for the provisions of this bill in good faith after repeated assurances from the Scottish Government that it was both legally competent and within the reach of the Scottish Parliament. As such, it would have been surprising had the Government not taken the section 35 order to court. Alasdair Jack has signalled several times that he does not believe that this form of gender recognition is appropriate. That should imply that there is a form of gender recognition which is appropriate in his sight. The Government has signalled that there has not been further contact since the section 35. Has there been any signal from either officials in his department or from other Scottish Government ministers as to what reforms could be made to the bill to make it competent in their arms? Alex Cole-Hamilton raised the real crux of the matter here. The alternative to court action was only possible if we could work with the UK Government on what amendments would be. The sum total of those discussions, I would have to say, is zero. We have not had any suggestions and I am not saying that we are asking the UK Government to write the amendments. Of course we are not. We are not ratting them to write the legislation, but what it would be the first step in this process would be getting in the room and having a discussion about where those areas of concerns were and working out where the bill could be amended. Of course then we would have to then see whether that is something that the Scottish Government and indeed the Scottish Parliament, because this is now the Scottish Parliament's bill, would be keen on amending, but at least we would have been able to go down that process. We have been absolutely unable to even get to step one during that. That is a deep disappointment to us. It gives us no option but to move to the court action, but it is a deeply unfortunate set of circumstances that the Secretary of State did not take up the invitation to do so. The cabinet secretary post Brexit has seen a dramatic shift to executive power decision making by the UK Government on devolved matters. The still convention that underpinned inter-governmental relations has been ignored nine times and we now have the unprecedented use of a section 35 order in a devolved area of competence on a bill passed overwhelmingly by this chamber. UK Government ministers have declined invitations to allowed committees of this Parliament to scrutinise the use of the order for the first time in 23 years, both on policy and on constitutional implications. Cabinet secretary, is it not imperative that our democratic settlement currently being eroded at every opportunity is protected and not challenging this order as a matter of principle would be to step back and let the western executive power run roughshod over this Parliament? Clare-Armson raises a very important point. We have an obligation as a Government to ensure that we stand up for this Parliament and the decisions of this Parliament. To not do so would be a dereliction of duty on our part. The reason why that is particularly important is that it is with deep regret that we now have a UK Government that does not pay attention to soil motions, rides roughshod over many aspects that we would normally see as usual due process. Because we are in that state and because this is a series of decisions that the UK Government has taken over a number of issues that have certainly suggested very strongly a challenge to devolution, we really do have an obligation to ensure that we stand up for the rights of this Parliament. We have another eight colleagues who wish to ask questions. We have got just under nine minutes before we need to move on to the next item of business, so I would appreciate slightly shorter questions and slightly brief answers as well. First, Rachael Hamilton to be followed by Fulton MacGregor. The SNP dragged the UK Government to court over a referendum. Now they are pursuing another unnecessary grievance over gender reform. The new First Minister is desperate to divert from the scandals, tearing his own party apart rather than focusing on the priorities of the people of Scotland. Humza Yousaf knows that the vast majority of the public oppose this absolutely reckless self-id bill, but he is picking a fight with the UK Government anyway. Having failed to answer the question to my colleague Donald Cameron, how much will the SNP's manufactured and divisive court battle cost the taxpayer? You know the easiest way to save the taxpayer money, Presiding Officer, would be for the UK Government to revoke the section 35 order. Let's just get on with passing this to Royal Assets. The deadline for when this announcement was made was based on when the section 35 order was laid by the Secretary of State. Let's get back to the facts about why the decision was made last week and the announcement was made last week. Again, that was based on the deadline set by the UK Government. It is in deep disappointment, but perhaps not surprising that the Scottish Conservatives are once again not standing up for the Scottish Parliament. Thank you, Presiding Officer. As the cabinet secretary has already touched on, offers to work with the UK Government on potential changes to the bill have been refused by the Secretary of State leaving a legal challenge as the only reasonable means of resolving the situation. Can she say any more about the justification that the UK Government has provided for this complete lack of engagement? One of the many areas that is deeply disappointing is the fact that the UK Government has not set out why it is also refusing to gauge on this. I fully understand that we might have different views on what was in the bill and different views on whether a section 35 order could be used. The fact that UK ministers were invited to give evidence to the Westminster Women and Equalities Committee on the section 35 but refused to give evidence to parliamentary committees in the Scottish Parliament is deeply disappointing as well. At the very least, I think that this Parliament deserves a better explanation from the UK Government about why they have decided to go down the chute and left this Government with no option but to seek legal challenge. Has the cabinet secretary been advised that there are reasonable prospects of success for this petition? Can she confirm the main legal principle that the Scottish Government will be advancing in court? Is it that the gender recognition and reform bill, if enacted, would not impact on the operation of the Equality Act? If Katie Klatt will forgive me, I will not comment on what she said. I read out on my statement that I cannot get into the substance of our petition or the UK Government's statement of reasons as there are live legal proceedings on going. I hope that the fact that we are willing and are keen to publish the petition will assist with some of the points that she has raised. It appears that the UK position on gender recognition in Scotland has shifted since 2018 when, I quote, Scotland can have its own system and that no amendment or amendments have been proposed and suggested by the UK. Can I therefore ask, as a last resort, to truncate litigation, while protecting the Scottish Government's position, would the Government be sympathetic to assist proceedings with agreement with the UK and leave of the court to see if the bill could be amended to both parties' satisfaction while still protecting the right to proceed if that does not happen? I cannot comment on how the legal challenge could progress as it relates to live legal proceedings. All I would say to Christine Grahame is that that is not a decision that would be up to the Scottish Government and would also require the UK Government to act in a certain manner as well. Maggie Chapman, to be followed by John Mason. I thank the cabinet secretary for advance sight of her statement and I would like to pay tribute to Shona Robison for her steadfast commitment to this bill and equalities. The cabinet secretary made it very clear that there was no meaningful engagement by the UK Government ministers on the GRR Bill and no amendments that would satisfy them. Does she agree that this is a very clear indication of the UK Government acting in bad faith with no intention of genuine discussion and against the principles of devolution and what the section 35 order is being used as a weapon in the culture war against trans and wider LGBTQIA plus rights? Cabinet secretary. I think this is an example very definitely of the UK Government acting in bad faith. Maggie Chapman is quite right to point out that there is no intention in her part in having genuine discussion on this issue and members can draw their own conclusions about why that might be. John Mason to be followed by Russell Finlay. Thank you. As the cabinet secretary knows, I was opposed to the bill and I remain opposed to the bill. However, it does seem to me that if Westminster is allowed to veto this legislation, they could veto any legislation. Can she confirm that that is the case and they could stop her budget or absolutely anything else? I thank John Mason for his question, because he raises a very important point. There will be members, indeed. There are members in here from different parties, including my own, that held a different position on this bill, but the dangerous constitutional precedent that this sets should be a worry to all of us, regardless of our position that was in the bill. Indeed, that was the position of why Mark Drakeford, the First Minister of Wales, was also quick to criticise the order. As he said, I think that the UK Government's decision to use powers that have never been used in the whole history of devolution is a very dangerous moment. I agree with the then First Minister of Scotland that this could be a very slippery slope. He is quite right to point out that there is a principle behind this that all of us should be aware of and all of us should be willing to stand up for this Parliament when the UK Government intervenes. Russell Finlay, to be followed by James Dawn. Thank you. Humza Yousaf has said that a double rape is sent to a woman's prison is, I quote, at it, but if Humza Yousaf gets his way, there will be no way of stopping any predatory man who is at it. So can the cabinet secretary explain how this legal action will resolve this fundamental contradiction? Cabinet secretary. Of course, not for the first time, Russell Finlay is trying to connect this bill with something that has nothing to do with someone who has a gender recognition certificate or not. So I say again that I fully appreciate and respect that members across this Parliament have different views on this bill. But when we're looking at why the section 35 order was made by the UK Government and why we've taken the decision to lodge this judicial review, let's ensure that we recognise that this is because we cannot, cannot have a UK Government that has a veto over something which was, yes, hotly contested but it was amended and passed by an overwhelming majority in this Parliament. I'm finally James Dawn and we'll join us online. Thank you, Presiding Officer. To ask the Minister for any possible further clarity as to why the UK Government used the section 35 order against the clear will and competence of the Scottish Parliament rather than section 33 reference to the Supreme Court. Cabinet secretary. Well, the UK Government have not used a reference under section 33 as they are not challenging the legislative competence of the bill. So that does show that they accept that the bill is within the devolved competence of this Parliament. The use of the section 35 order is unprecedented because it therefore vetoes a bill within the devolved competence that has already been passed by this Parliament and it is now up to the courts to look at that in detail. Thank you, cabinet secretary. That concludes this item of business. There'll be a brief pause before we move to the next item of business to allow members of the front bench to change.