Dear Bill Team Leader,
Subject: Consultation on ending conversion practices in Scotland
The Equality and Human Rights Commission (the Commission) welcomes the opportunity to respond to the Scottish Government’s consultation on ending conversion practices in Scotland.
As Britain’s equality and human rights regulator we have considered the consultation in line with our general duty under Section 3 of the Equality Act 2006, and the requirements of the Equality Act 2010, in accordance with our regulatory remit. Our human rights powers in Scotland extend to reserved matters. The Scottish Human Rights Commission has a mandate to promote and protect human rights in Scotland that fall within the competence of the Scottish Parliament.
The Commission is supportive of measures to end conversion practices and the general principles of the Scottish Government’s proposals.
The proposals as outlined have likely significant and wide-ranging implications for criminal and civil justice matters, clinicians, therapists, families and religious organisations. It is critically important that there is appropriate specificity within any legislation, and that it is drafted in such a way as to avoid unintended consequences - including the risk of inhibiting or criminalising legitimate activity, which the consultation says the proposals are keen to avoid. Sufficient specificity will ensure that if and when the proposals become law, it can be appropriately and effectively enforced without over-criminalising legitimate activity.
Before forming a view on whether the proposed legislation should cover both sexual orientation and gender identity, and whether it should be applicable to all age groups, the Scottish Government must establish a robust evidence base on the prevalence and nature of conversion practices for each of these categories.
In the absence of fully developed legislation, which we appreciate will follow in due course, our comments here focus on the principles within the consultation, and the key areas of risk as we see them. Once legislation has been prepared, we will be in a position to provide more specific and detailed advice, and we stand ready to advise the Scottish Government as work on drafting the Bill progresses.
We would particularly like to emphasise at this point in the process the critical importance of both specificity and coherence in the legislation to avoid unintended consequences and ensure the legislation is clear so that it can be properly enforced. Definitions of harm, liability, sexual orientation and gender identity need to be drafted both robustly and coherently with existing equality law, to make absolutely clear what they are intended to mean and how they are intended to operate in practice.
We recommend that similarly close consideration be given to proposals on consent, which are complex and carry risks. Doing this will assist both those seeking to access justice and those seeking to implement the law in understanding how it is compatible with the existing structure of rights and duties in our equality legislation.
We understand there will be further opportunities for us to scrutinise the legislation and provide advice as part of that process. We look forward to engaging with you and your team in the coming months.
Yours sincerely,
John Kirkpatrick
Interim Chief Executive
Equality and Human Rights Commission
