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Equalities and Human Rights Commission Interim Update (United Kingdom Supreme Court Judgment)
To ask the Scottish Government what its response is to the interim update from the Equalities and Human Rights Commission on the practical implications of the recent UK Supreme Court judgment in For Women Scotland v The Scottish Ministers. (S6T-02484)
The Scottish Government accepts the judgment of the Supreme Court, and work has begun on implementation. I have asked the permanent secretary to stand up a short-life working group to ensure support and consistency across Government on that work.
Following publication of the EHRC’s update late on Friday evening, I wrote to ask the EHRC to confirm that it agrees that no public body, service provider or other association should issue specific guidance before the EHRC code of practice and guidance is finalised.
As the EHRC is the enforcer and regulator of the Equality Act 2010, all organisations must consider and comply with its revised code of practice and guidance to ensure that there is a consistent and clear understanding of the correct application of the law for all involved, in what is a complex area.
The EHRC’s update was crystal clear, and there is a vacuum right now. Biological males should not be permitted to use the women’s facilities in workplaces or public buildings such as schools or hospitals. That is compulsory. It is the law, as the Supreme Court ruling and the EHRC have clearly laid out, yet John Swinney said yesterday that public bodies should wait for the “legal certainty” of full EHRC guidance in June before implementing new policies.
The Scottish Government is dragging its feet. Will it now finally stop kicking the can down the road and remove biological men from women’s spaces across the public sector—yes or no?
As I have mentioned, work has already begun across Government to consider the implications of the judgment in areas such as legislation, guidance and cost. A working group, led by the permanent secretary, has been established to take that work forward.
We wished, at ministerial level, to meet the EHRC to ensure that our work and its can operate well together. Unfortunately, the EHRC cancelled that meeting at short notice. We are keen within Government to meet it, at both ministerial and official level, as a matter of urgency. I have made clear to the EHRC that I am happy to meet it any time. I understand that officials are due to meet it this week.
In the meantime, this Government is already continuing with its work to implement the Supreme Court judgment.
The cabinet secretary talked about that meeting. We all know the truth behind that meeting. Last week, the First Minister stood up in this chamber and said that he would respect the rule of law and abide by the Supreme Court’s ruling. This morning, Scottish National Party łÉČËżěĘÖ voted to keep Green MSP Maggie Chapman as deputy convener of the Equalities, Human Rights and Civil Justice Committee after she shockingly attacked the highest court in the land following the verdict.
Maggie Chapman has shown contempt for the rule of law and has brought the committee into disrepute, when it should be scrutinising the implementation of the Supreme Court’s judgment. Does the cabinet secretary agree that the SNP’s decision to keep her in post on the committee risks undermining trust in Holyrood itself—yes or no?
The First Minister made it absolutely clear—as did I in my statement last week—that we respect the rule of law and the judgment of the Supreme Court. It is important that everyone in this matter is aware of their tone and the temperament of debate during this time.
It is very important that the Scottish ministers do not take a view on what happens within a parliamentary committee, in relation to this and other issues. It is inappropriate for Government ministers to opine in such a manner.
Will the cabinet secretary advise what engagement the Scottish Government has had with the EHRC on the UK Supreme Court ruling, and when it will next meet the EHRC to discuss the matter further?
As I mentioned, the Scottish Government had a scheduled meeting with the EHRC for Thursday 24 April, which the First Minister referred to during First Minister’s question time. Unfortunately, at short notice, the EHRC cancelled that meeting because it had not yet met or discussed the judgment with the UK Government. I am extremely disappointed by its decision to cancel, and I stand ready to meet it at its earliest convenience. In the meantime, Scottish Government officials will meet the EHRC this week.
Scottish Government officials are also continuing their dialogue with UK Government officials. I await a reply to my letter to UK Government ministers asking for an urgent meeting to discuss the shared interests on the matter.
Those who have been trying to undo decades of progress on LGBT people’s human rights and inclusion in society may be keen to carry on doing more as quickly as they can, but does the cabinet secretary recognise the extraordinary level—
On a point of order, Presiding Officer. This bears no relation to the topical question in hand.
Thank you, Ms White, but I am chairing this meeting of Parliament, and I will do that as I see fit.
I was about to ask whether the cabinet secretary acknowledges the extraordinary degree of fear and anxiety that is being caused to the trans community around the country as a result of the update late on Friday night from the EHRC.
I have heard from people who were not even sure whether they should go to work the next morning, because they did not know whether they would be able to do something as simple as go to the toilet. Does the cabinet secretary agree that the UK is now at risk of breaching trans people’s human rights—just as it did decades ago, before the Gender Recognition Act 2004 was in place—as well as breaching the freedom of the wider LGBT community to organise in the inclusive manner that the vast majority of our members wish to? When the Government meets the EHRC, will the cabinet secretary make it crystal clear that it is unacceptable to see decades of progress on equality and human rights rolled back in that way?
Patrick Harvie is quite right to point to the fact that the EHRC’s update—I stress that it is an update and not guidance—has caused real fear and concern in the trans community. The fact that it landed on a Friday evening added to that. I have read with interest the comments made subsequently, including that of Roz Foyer, who was quoted as saying:
“We are going to have to make sure we protect all parties’ rights, but we actually have to find a way forward that makes sure we have some sort of provision for trans men and women in our public bodies, in our institutions.”
I agree with the sentiment behind that comment. It is very important that we recognise that such fear and concern exist—and remain—because of the EHRC update. Any concerns that individuals have with the EHRC—and the update that it has issued—are for the body itself, which is responsible for regulating around and enforcing the Equality Act 2010.
We do not have a lot of spare time this afternoon. The more concise that members can be, the better, in order that I can accommodate more speakers.
I welcome the EHRC’s interim guidance, which provides clarity on the Supreme Court’s judgment. The law is clear, and the SNP has no more excuses. Will the cabinet secretary challenge lobbying groups and organisations that fail to accurately implement the EHRC’s interim guidance? Can she provide assurance that no taxpayers’ money will go to such groups or organisations that do not follow that interim guidance?
On a point of order, Presiding Officer. I note that the member is interested in accuracy. Is it in order for members to misrepresent that late-night interim update as guidance? “Guidance” has statutory meaning. The update is not guidance. That is an inaccurate statement.
As I said previously, I am chairing the meeting and I will intervene where I feel that it is required.
It is appropriate for Ms Hamilton to reflect on the exact terminology that the EHRC used. It has issued an update, and not guidance. Direct, relevant requirements are introduced when guidance is implemented. The EHRC’s publication is not guidance; it is an update.
Having said all that, it is exceptionally important that, as well as accepting the Supreme Court’s judgment, we accept the rule of law in this case. That is exactly why the Scottish Government is continuing its work on the implementation of that judgment. I look forward to discussing the matter with the EHRC at its earliest convenience.
The Supreme Court has clarified the law, which is an absolute win compared with our simply having guidance, whether it be interim or otherwise. Having to wait until the summer to tell public bodies that they must act where they are able to do so seems highly risky, given the absolute clarity contained in the Supreme Court’s 88-page judgment. What assessment has the Scottish Government made of the risk of further court actions being initiated in the interim and of the associated cost to the public purse?
As I have said on a number of occasions, across Government, work has already begun on the implementation of the judgment by assessing matters for review of guidance, policy, practice and legislation. That work is exceptionally important.
I will give an example of the challenges that the Government faces. In the same way that the Scottish Government was not made aware in advance of the issuing of the EHRC’s update, I do not currently know whether it plans to issue other updates before it produces its guidance during the summer. That lack of knowledge about what might or might not happen within the EHRC illustrates exactly the need for us to have clarity as we attempt to move forward at speed.
The Scottish Prison Service has confirmed that it will not immediately change its policy on housing trans women in the female estate and that, instead, it is still “considering any potential impact” of the Supreme Court’s decision on existing policies. However, the judgment made the law very clear by saying that statutory references to sex mean biological sex. Will the cabinet secretary therefore ensure that the SPS takes immediate action to remove any biological men from the women’s estate?
As I have said, consideration is being given across Government and by our public services, including the Scottish Prison Service, to the outcome of the Supreme Court judgment and the EHRC interim update. Under the present policy, no transgender women with a history of violence against women and girls who present as a risk to women are placed in the female estate.
Regulation 24 of the Workplace (Health, Safety and Welfare) Regulations 1992 provides as follows:
“Suitable and sufficient facilities shall be provided for any person ... in the workplace to change clothing”
and those facilities
“shall not be suitable unless they include separate facilities for ... men and women where necessary for reasons of propriety and the facilities are easily accessible, of sufficient capacity and provided with seating.”
I understand that all 14 regional health boards are reported to be in breach of this absolutely crystal-clear duty. I have raised the issue two or three times in the chamber before, without comment from the Scottish Government. Will the Scottish Government use its statutory powers under the relevant NHS Scotland legislation to get every health board to comply with the law without further delay?
I have already made reference to the fact that the Scottish Government expects all public bodies and agencies to act within the law and to obey the rule of law. That includes the Supreme Court judgment, but it also includes any other regulations, including the 1992 regulations.
The cabinet secretary said that she wants to bring clarity to the debate. Following on from Sharon Dowey’s question, can the cabinet secretary tell us how many biological men are currently incarcerated in the female prison estate in Scotland? What is the issue with dealing with that right now? The judgment was very clear that there should no longer be biological men in the female prison estate, and the Scottish Government should deal with it immediately.
I referred to some of the information on that in my response to Sharon Dowey. The SPS reports the total number of transgender people in custody on a quarterly basis. The latest figures show that there are a total of 16 transgender women and transgender men located across the male and female estate. That represents less than 0.5 per cent of the total prison population in Scotland.
Thank you. That concludes topical questions. [Interruption.] My apologies. We are clearly behind schedule, but that is not the way to get us back on track. We move to question 2 from Martin Whitfield.
Early Years Provision (Affordability)
To ask the Scottish Government what action it is taking to ensure greater access to affordable early years provision, in light of reports of the rising cost of childcare for families with children under the age of three. (S6T-02486)
Scotland is the only part of the United Kingdom to offer 1,140 hours a year of funded early learning and childcare to all three and four-year-olds and eligible two-year-olds, regardless of their parents’ working status, which puts children first. We have invested about £1 billion every year in funded early learning and childcare since 2021, because that is fundamental to giving children the best start in life.
The Scottish Government continues to work with local authorities to reach more young children through maximising uptake of our ELC offer for eligible two-year-olds. The 2025-26 budget provides up to an additional ÂŁ8 million of investment for work with our early adopter communities in six local authorities to build our understanding of what models of childcare work best for children and their families.
The 2025 survey by the charity Coram Family and Childcare shows that childcare costs for under-threes in Scotland have risen by 7 per cent since last year, to approximately £122 per week or £6,300 per year. Meanwhile, fewer than one in three Scottish councils report having enough childcare places to meet the demand for places for the three and four-year-olds the minister talks about. Only 7 per cent of councils have adequate provision for older children. Does the minister accept that, after years of promises, the Government is failing to deliver affordable and accessible childcare and that Scotland’s young families are being let down?
I do not accept that. I accept that, in the current climate, families are finding things difficult, and childcare costs are a part of that, but in Scotland we are increasing our childcare offer and providing for families. As I said in my first answer, we continue to work with local authorities to reach more young children through maximising uptake of our early learning and childcare offer for two-year-olds. Work in our early adopter communities continues to expand; it has recently included involvement with younger children and the needs of those families. In addition, we are taking a range of other actions in relation to childcare. I will always continue to look for ways to support families, but I believe that our offer in Scotland is positive for children and families.
I am grateful for that answer, but I am disappointed that the Government is not accepting the challenge that exists. Over the past 18 years, childcare costs have risen by nearly 50 per cent, and fewer than one in three councils have enough places to meet demand. In the light of the minister’s response, when will all councils be able to meet the demand for childcare for children who are aged three-plus years?
We are continuing to work with local authorities to ensure that our childcare offer is what families and children need, as I have laid out in my previous answers. I have set out what the Scottish Government is doing and my willingness to continue to listen to members and to families and providers about what they require.
However, the member needs to reflect on some of the decisions that his United Kingdom Government colleagues have made and the impact that they will have on families. The UK Labour Government’s increase to national insurance contributions is creating a financial burden on early years providers in Scotland, and there is deep concern across the childcare sector about those changes. Given the lack of support from the UK Government, it is likely that those providers will have to pass costs on to families because of those decisions. I find the member’s response quite difficult in the context of some of the decisions that his UK Government colleagues are making.
The Scottish National Party Government increased the provision of free childcare from 412 hours a year under Labour to 1,140 hours now. Can the minister explain, however, the logic in providing childcare for non-working parents of two-year-olds, who clearly have more time to spend with their children than do parents who work? It is a disincentive for them to move into or stay in the workforce, and only 59 per cent of non-working parents currently take up the offer of a place.
As I said in my response to Mr Whitfield, I appreciate that costs on families are increasing at the current time, and I want to do what we can to support them, as I appreciate that childcare costs are an issue in that regard.
In Scotland, our offer is for all families with children, and specifically for children who are living in poverty. For children who are aged under three, the picture is quite different, and how much they benefit from ELC is determined by crucial factors such as their family background; what age they start in ELC; the quality of services; and the balance between the hours that they spend in care at home and in ELC settings.
I want to ensure that there is equity for all Scotland’s children, and I do not want to further entrench some of the inequalities that exist. I believe that our offer in Scotland does what I described.
Nurseries are essential in ensuring that children get the best start in life and in helping parents to return to work. However, the SNP Government’s refusal to properly address the issues with its funding model has now come back on it, and it is working families who are suffering.
In England, funding is available for working families with children from nine months old. My question is simple: when will the Scottish Government take swift and decisive action, change course and support Scottish working families?
I have made it clear that our offer in Scotland is to ensure equity for all Scotland’s children. As for the issues that the member raises around funding for providers, I have been clear that paying sustainable rates to funded providers is critical in ensuring that childcare is affordable for families and that private, voluntary and independent providers do not have to pass on any extra costs to families. That is why, in 2025-26, we are making available a further £9.7 million to enable childcare staff who are delivering funded hours in the private and third sectors to continue to be paid at least the real living wage. We are the only country in the United Kingdom to do so.
I am also taking on further work regarding sustainable rates in our cost collection exercise with the Diffley Partnership. A range of actions are being taken to improve costs for families and to improve our offer in Scotland, and I will continue to look for ways to improve things further.
None of those actions are working, are they? The rates for under-threes are so high and are increasing because the Government is underfunding private, voluntary and independent nurseries for the provision of the 1,140 hours. Why cannot the minister understand that it is her policy that is costing parents so much?
I regularly meet childcare providers and families to discuss those exact issues, so I am not blind to the issues that our providers face, and that is why I am taking further actions. I have listed some of those actions and I have spoken to Mr Rennie about the cost collection exercise, which will be key in understanding the rates that need to be paid to providers. I have been clear that I want as much involvement from our providers as possible, and I have received positive feedback about that. It is difficult to say that that approach is not working when the work is not yet complete. I am positive about the outcomes.
I apologise to members who were not able to ask questions, but I have to draw topical question time to a close so that we can move on to the next item of business.
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