To ask the Scottish Government what its justification is for pursuing legal action in relation to its policy on transgender prisoners, in light of the judgment in the case, For Women Scotland Ltd v the Scottish ministers. (S6T-02747)

Presiding Officer, with the greatest of respect to you and all members in the chamber, as the question relates directly to live court proceedings, it is not appropriate for me or any member of the Scottish Government to comment.

In April, the United Kingdom’s highest court ruled that the legal definition of a woman is based on biological sex. Yet, as the months have passed, the Scottish Government has ignored that judgment and failed to direct its public bodies to adhere to it. Instead, it has dithered and delayed, and now sees fit to defend its policy that allows biologically male prisoners to be housed in women’s prisons. Does the Cabinet secretary support single-sex spaces—yes or no?

As well as referring to my earlier remarks, I advise the member—and I am sure that she has heard this before—that every key area of Government that is, or might be, affected by the Supreme Court judgment is carrying out assessments across legislation, guidance and policies. One example thus far would be the action that the Government has taken on guidance around gender representation on public boards.

Under my responsibilities as justice secretary, the safety and wellbeing of all prisoners and staff are at the core of everything that I and the Scottish Prison Service do.

Scotland’s prison system is a shambles and it needs leadership from the Cabinet secretary. While the Scottish National Party is preparing to let more criminals out early, because its soft-touch approach to justice means that our prison estate is buckling under the weight of a surging population, its prison guidelines leave vulnerable women and girls at serious risk. If those guidelines remain, I am extremely concerned about the spine-chilling risk of a repeat of the Isla Bryson case in which, under the Scottish National Party’s watch, a dangerous male criminal was put in a women’s prison.

My understanding is that the cabinet secretary can answer my question. Does she still agree with what she said on 28 November 2017, which was:

“Women should feel safe in every space they wish to inhabit—this is a matter of fundamental human rights.”

Does she stand by what she said—yes or no?

Of course I remain firmly of the view that every woman has the right not only to feel safe, but to be safe.

I advise members that, as of last night, the lock-up figure for our prison population was 8,441 prisoners, which hardly speaks to the soft-touch justice that the member mentioned.

With regard to the early emergency release scheme, as members well know, there are very stringent safeguards to ensure that those who have committed domestic violence or sexual offences are excluded from it.

On a point of order, Presiding Officer. I want to allow the member who lodged the question to complete her series of questions. However, in the Cabinet secretary’s first response, Angela Constance said that she could not comment on the on-going case. Section 5 of the Contempt of Court Act 1981 clearly allows the cabinet secretary to give full answers in the chamber today. Therefore, has the cabinet secretary misled Parliament? What action can we, as members, take to ensure that section 5 of the 1981 act is applied in the chamber? Given that ministers are freely able to answer those serious questions, I believe that the Minister has misled Parliament by saying that she cannot do so.

Thank you, Mr Ross. It is a matter for the Scottish Government, as a party to the case, to consider the level of detail that it wishes to go into.

We turn to supplementaries. Pauline McNeill is joining us remotely.

What safeguarding concerns do Scottish ministers have for transgender prisoners that would justify not implementing the Supreme Court judgment and going to court to defend the Scottish Prison Service’s unlawful policy, which contravenes the requirement for single-sex spaces in Scottish prisons? [ Interruption .] Can Scottish ministers, including the Cabinet secretary, say today why the SPS would continue to deny female prisoners the right to serve their sentence with other women?

If I have understood Ms McNeill correctly—I apologise if I have not, because there was some interruption in what I heard her say—I believe that she is asking me, ultimately, to lay out here the position that we will advance before the court. That is what I cannot do. The Scottish Government does not regard it as appropriate to engage in public comment in respect of live court proceedings.

I say with the greatest respect, Presiding Officer, that I know that people will have different views on the law. I appreciate that there has been public commentary on the matter in the course of the weekend, but I advise members that I do not take legal advice from people on social media.

We have heard from the Government over many years that female prisoners are among the most vulnerable women in society. They are often victims of terrible crime and abuse and are very likely to have suffered domestic violence. Given that, why on earth does the Government see fit for them to be housed alongside male-bodied inmates, some of whom are convicted rapists?

Without commenting on live proceedings, I remind members of the evidence that was given to the Criminal Justice Committee some time ago with respect to the SPS trans policy, which states that no transgender woman with a history of violence against women and girls and who presents a risk of harm should be placed in the female estate.

I agree that there should be clarity on the transgender policy. We know that when the Prison Service gets it wrong, it can lead to tragic outcomes. I refer members to the case of Sarah Jane Riley, a transgender prisoner who was endlessly moved around the prison estate and then kept in solitary confinement for weeks on end. Sarah Jane took her own life in custody, and the fatal accident inquiry report on that case stated that she was “unlawfully segregated”, despite having done nothing to merit it.

What lessons might be learned from that tragedy in relation to the revised update of the policy on transgender prisoners? More importantly, does the Cabinet secretary agree that all prisoners in custody are human beings who deserve dignity and that the state has a duty of care whether prisoners are transgender or otherwise?

I assure Mr Green that the recommendations of the fatal accident inquiry into the case of the prisoner who committed suicide are being taken very seriously. I have reviewed the results of that FAI, the Scottish Prison Service will respond formally and I will be happy to keep the member up to date.

The crucial point that he makes is that I am often at this podium being, rightly, held to account for the care and treatment of all prisoners—whether they are men, women, transgender men, transgender women, younger or older—who are in the care of the Scottish Prison Service. I, and the SPS acting on behalf of ministers, have a duty to ensure that all prisoners are appropriately cared for, safe and protected.

When did the Cabinet secretary last either receive or request a briefing on section 5 of the Contempt of Court Act 1981, and has that been shared with Cabinet colleagues, including the First Minister, who is also hiding behind that fake argument? Given that the question revolves around the Supreme Court ruling, can the cabinet secretary explain to Parliament, and to For Women Scotland, why, more than half a year on from For Women Scotland’s success in the Supreme Court, where it defeated the Scottish Government, the Scottish Government is still withholding the costs awarded to For Women Scotland?

I cannot comment on the issue of costs, because I do not have the information to hand. I am quite sure that Mr Ross is well aware that it is not the practice of the Scottish Government to publish its legal advice and that there is such a thing in this country as legal privilege. However, I assure him that full legal advice is always taken on a range of matters, because ministers must ultimately comply with the law.