Swinney: I have no power to intervene in Police Scotland policies on self-ID

First Minister John Swinney has claimed he cannot take any action over the ability of sex offenders to self-declare their gender after being repeatedly pressed on the issue during today’s session of FMQs.

At the weekend it was reported that Police Scotland told Holyrood’s Citizen Participation and Public Petitions Committee that allowing people charged or convicted of rape or attempted rape to self-declare their sex fosters “a strong sense of belonging”.

The force had written to the committee as part of a probe initiated after academic research organisation Murray Blackburn Mackenzie (MBM) lodged a petition calling on the government to require Police Scotland, the Crown Office and the courts to accurately record the sex of people charged or convicted of sexual offences.

They said that allowing male sex offenders to self-declare as female would lead to skewed data and that in turn would lead to bad policymaking.

During today’s session of First Minister’s Questions Conservative MSP Rachael Hamilton referred to the case of convicted offender Isla Bryson, who was last year jailed for eight years for raping two women while living as a man, and asked whether Swinney is “content to let another Isla Bryson situation happen”.

Self-identification, she said, “opens the door to a grotesque situation where a male rapist can demand to be called a woman and further traumatise his victim”, and asked whether the first minister agreed that “male rapists should not get their own way” on the issue.

Swinney said he would “not be associated” with the language around letting a male rapist have their own way, but told parliament that he has no power to intervene in Police Scotland policies.

“In relation to the specific question about the guidance from Police Scotland, these are operational matters for Police Scotland,” he said.

“There would be outrage if I was to interfere in the actions and the decision-making of Police Scotland – the law is clear that I cannot do that.

“I'm sure that Police Scotland will have heard the exchanges in parliament today and will consider if there any issues that they wish to address.”

Labour MSP Pauline McNeill went on to push Swinney on the matter, asking whether it “makes a mockery of the government's violence against women strategy if violent male offenders can present as women”.

Swinney said the government’s policy on violence against women is “absolutely crystal clear” that there is “no place for violence against women in our society” and that “the perpetrators of that violence must be confronted with their behaviour and must be held to account for their behaviour”.

However, he reiterated that he “cannot interfere in the operational business of Police Scotland”.

“Indeed, the law prevents me from doing so, but the issues have been aired here in parliament today and Police Scotland will have the opportunity to consider that,” he said.

With reference to the specific point made in the MBM petition, Alba’s Ash Regan, who as an SNP member stood down from government over the party’s policy on gender recognition reform, said the skewing effect self-declaration was having on data collection was offensive to women and  “grossly disrespectful to the victims of these crimes”.

“Stories have actually been running in the media this year discussing the increase in women committing sex crimes when the reality, of course, is that these crimes are committed by men,” she said.

“They are being recorded as women's crimes. This is offensive to women and it is grossly disrespectful to the victims of these crimes.

“Why are Scottish institutions still acting as if self-ID is the law when it is not? Will the first minister show leadership and address this horrible situation urgently?”

Again, Swinney said he was not in a position to influence Police Scotland policy-making.  

“I acknowledge the concerns that are being expressed in parliament today, but I come back to the fundamental point that the recording of information on those committing crime is an operational matter for Police Scotland,” he said.

“They must be accountable for the decisions that they take, and it is not for the first minister to interfere or specify in operational matters of Police Scotland.”

When she appeared before the Citizen Participation and Public Petitions Committee last year, MBM’s Lisa Mackenzie said she and her colleagues had lodged the petition with the parliament because statistics are used to “generate an understanding of offending patterns” and it will be impossible to make sense of those patterns if the data held is incorrect.

“Trust in statistics is very important,” she said. “It's not as if data just sits in the ether and we don't do anything with it.

“This is foundational for public policymaking. Public policymaking and public resource allocation is made on the basis of data so if we suddenly see what looks like an explosion in female rape or female sexual assault, then we might want to divert public resources to deal with this new phenomenon but actually it turns out it isn't a new phenomenon.”

In its written evidence to the committee Police Scotland confirmed that “the gender identification of individuals who come into contact with the police will be based on how they present, unless an alternative gender is disclosed”, adding that it “requires no evidence or certification as proof of biological sex or gender identity”.

The committee wrote to the force at the beginning of this year to “seek a clear explanation of how its policy on recording the sex of perpetrators of crimes aligns to the organisation’s values”.

It was its response to that letter that has led to the renewed focus on the matter.

As reported in The Herald, Police Scotland wrote that the “sex/gender identification of individuals who come into contact with the police will be based on how they present or how they self-declare”.

It added that that is “consistent with the values of the organisation” and the “legislative compliance, operational need and the values of respect, integrity, fairness and human rights whilst promoting a strong sense of belonging”.