Debate contribution: Justice Bill: Consideration Stage

Debate contribution by Mr Timothy Gaston on 23 June 2026.

MLA

Mr Timothy Gaston

Party at the time

Traditional Unionist Voice

Date

23 June 2026

Type

Debate contribution

Business

Executive Committee Business

Heading

Justice Bill: Consideration Stage

Assembly identifier

Official Report component 5637448

Read the official Assembly record

Text

We have already heard the ideology train in full flow this afternoon. Let me be clear at the outset that amendment No 97 is based not on ideology but on biological reality and that those who will not support it are following their ideology and their vision of events. They are certainly not following the biological reality that we see and that the person with common sense on the ground — the Christian, conservative person from Northern Ireland — sees. Members will knock on doors in a number of years and find that they are out of touch with what the people of Northern Ireland want. I will speak primarily to amendment No 97, which I tabled. I did not recognise it at the time, but I am indebted to the long-winded speeches by my North Antrim colleagues, which ensured that the Consideration Stage debate lasted for the time that it has. Now that I come to speak to my amendment, the arguments that I present in the Chamber are significantly more robust than they would have been prior to Friday's ruling. I say that because we debate the amendment at a particularly opportune moment, as, just last Friday, Scotland's highest civil court, the Court of Session, handed down its verdict in a case brought by For Women Scotland on the very issue of whether men should be accommodated in female prison spaces. The answer from Scotland was clear and emphatic. Let me read from paragraph 181 of the judgement:

"The statutory scheme imposes a bright line rule and sex segregation in prisons does not admit of exceptions".

Following the decision of the Supreme Court in the For Women Scotland case, the words "man" and "woman" in that context refer to biological sex. That has sent the woke brigade into a tailspin ever since. Of course, Lady Ross is referring to the rules on prison accommodation in Scotland, but the words "man" and "woman" in that context refer to biological sex. Do we have a similar rule? Is it spelt out in legislation? Yes, indeed it is. I draw Members' attention to the Prison and Young Offenders Centre Rules (Northern Ireland) 1995, which is a statutory rule made under section 13 of the Prison Act (Northern Ireland) 1953. It is not guidance; it is the law. It is something that sits above any other document produced by the Justice Department or the Northern Ireland Prison Service on the issue. What has it got to say about the issue? Part 10 of the 1995 rules deals specifically with women prisoners. The opening rule in Part 10, rule 90(1), addresses the question before us today:

"Women prisoners shall be held in separate accommodation."

Whatever the House decides in relation to my amendment, the law is already clear. Men have no business being held in the same prison accommodation as women. That is not just my opinion; it is the position of the highest court in Scotland when dealing with a similar question. Most significantly, it is the position of our legal framework. Let us look at the guidance on the care and management of transgender prisoners, which has been mentioned in today's debate. Paragraph 2 of that guidance states that people's gender identities can be different from the sex that they were assigned at birth. The solution that the current guidance has in order to get around that idea is to house prisoners who identify — identify— as female in female accommodation. What did Lady Ross's judgement say about similar guidance in Scotland? She was clear. She drew attention to rule 126 of the Prisons and Young Offenders Institutions (Scotland) Rules 2011, which is remarkably similar to our rule 90(1). Rule 126(1) states:

"Female prisoners must not share the same accommodation as male prisoners."

I will remind the House once again that our parallel rule 90(1) reads:

"Women prisoners shall be held in separate accommodation."

"Must" and "shall": there is not a lot of difference between those two words. Yet, currently, the Northern Ireland Prison Service has guidance that disregards that. Let us consider paragraph 179 of Friday's judgement and see what it said about similar guidance.

"Insofar as the Prisons Guidance allows SPS"

— the Scottish Prison Service —

"to accommodate trans prisoners in prisons for the opposite biological sex, it is in conflict with the requirement that prison accommodation be provided separately for men and women. That constitutes a mis-statement of the law."

So that is in conflict with the requirement. It is a misstatement of the law. The reality could not be clearer as to what faces the House tonight, with the providence that that judgement happened last Friday and the amendment is being debated tonight. Has the Minister sought her own legal advice on the robustness of the guidance that she currently operates? I presume that she has not. Is she just waiting for someone to take a judicial review of the guidance?

I remind the Minister of the argument that activist organisations such as the Northern Ireland Human Rights Commission hid behind, which was that article 2 of the Windsor framework means that the situation is radically different in Northern Ireland, or so they claim. That was blown out of the water by the Dillon judgement. I turn the House's attention to paragraph 157 of that judgement, which applies specifically to Northern Ireland and the extent to which article 2 can be applied:

"We agree with the Court of Appeal that it is not sufficient that an EU competence may be engaged and that the Charter has no application unless it is “anchored” in a provision of EU law which is being implemented. It is not so anchored in this case."

That was the Dillon judgement. Where is the anchor in relation to housing men in women's prisons? Let us look at the practice in Poland, an EU member state that has not been captured by the trans agenda. Put "transgender women" in the female prisons there and see what answer you get. In a previous debate on the matter, some Members put much weight on the fact that a risk assessment was carried out in relation to transgender prisoners. I read the guidance in preparation for the debate. The word "risk" is mentioned only twice. Tellingly, on those occasions, it addresses the risk to transgender prisoners. The risk of transphobic harassment and transphobic hate crime is mentioned in paragraph 7. Only in paragraph 9 is the risk that a prisoner might pose mentioned. That comes as an afterthought. The transgender person is given primacy over those with whom they serve in prison. Interestingly, the Scottish guidance did the same in that it built in provision for a risk assessment. Did that remove women's legal right to their own space in prisons? I bring Members back to paragraph 179 of Lady Ross's judgement: arguing the like of that constitutes a misstatement of the law. I draw the House's attention to paragraph (3B) in my amendment:

"Nothing in this rule shall prevent the Department of Justice from making individualised accommodation arrangements for a prisoner, in accordance with guidance issued under paragraph (3A), where the Department considers it necessary to do so to safeguard the welfare or dignity of a prisoner, provided that the arrangements do not include the accommodation of a man in prison accommodation in which one or more women are held."

I pay tribute to the Bill Office. I confess that that element of the amendment would not have occurred to me, but it occurred to Bill Office staff owing to their professional expertise. I have made provision for those who do not accept that they conform to the gender binary to be accommodated in prison, but the amendment builds in a careful proviso: it stipulates that ensuring their welfare or dignity must not come at the expense of women. I am neither a prophet nor the son of a prophet, but, clearly, the official in the Bill Office who assisted with the amendment could lay claim to that title. I say that, because paragraph 181 of Friday's judgement in Scotland states:

"Trans prisoners have rights under Article 8, but this does not extend to a right to be accommodated in a prison for the opposite biological sex."

Lady Ross accepted that those who claim a transgender identity have rights that should be respected, and I do not challenge that. My amendment does not challenge that. It respects what Lady Ross said. Significantly, however, she found that the Scottish Prison Service guidelines went beyond those rights in placing biological men in female spaces.

I invite the House to consider paragraph 174 of her judgement, which states:

"The effect of qualifying the scope of separate (or single) sex provision by reading in 'primarily' would, in the prisons context, be that women's prisons accommodate biological women and a subset of biological men."

That is exactly what the current system operating in our prisons does. Ironically, a TUV amendment gives more consideration to the rights of those who identify as transgender than the current guidelines do to the rights of women. I will draw the House's attention to one final point in Lady Ross's judgement. In paragraph 149, she notes comments from the equality and human rights impact assessment that was carried out by the Scottish Prison Service to defend a policy that, as I have noted, is strikingly similar to the one that pertains to Northern Ireland. It is worth quoting again from the judgement. It states:

"In their pleadings and note of argument, the respondents referred to the EHRIA and to evidence referred to therein relating to risk of suicide. However, the extent of information contained in the part of the EHRIA referred to in the respondents' pleadings is, in full: 'In relation to Article 2, there is a known increased risk in relation to death by suicide during the first three months in custody and a known increased risk in relation to death by suicide for transgender individuals.' The first point has as its source a publication issued by the first respondents on the mental health of prisoners generally and is not specific to trans prisoners. The second point appears to be a reference to risk in the general trans population rather than risk in the trans prisoner population. It has as its source, according to the footnote in the EHRIA, a survey carried out by the organisation Stonewall in relation to mental health in the LGBT community. Beyond these quite general points, there was no further or more specific information about risk and nothing before the court that would allow any conclusion to be drawn about the likelihood of any breach of trans prisoners' rights under Articles 2 or 3."

I ask the Minister directly: in June 2022, when the current guidelines came in, what was the role of Stonewall? How captured is your Department? The Scottish Prison Service relied on information that Stonewall provided as gospel, but when it was examined by the Scottish courts, it was found not —

— to hold any water.

Thank you very much, Deputy Speaker. I am making reference to the guidance on the care and management of transgender prisoners. I am purely trying to get out of the Minister and the Department what role the discredited Stonewall had to play in the creation —

— of that guidance.

With respect, Deputy Speaker, I am referring to the guidance that is currently in operation, and, on that basis, I feel that it is very relevant to my amendment. However, I will take your guidance, and I will move on.

Towards the beginning of my remarks, I quoted from the Prison and Young Offenders Centre Rules (Northern Ireland) 1995 — the document that I am holding. It is not guidance; it is law, and it is clear. It is as clear as the corresponding legislation in Scotland. For the benefit of the House, rule 90(1) states:

"Women prisoners shall be held in separate accommodation."

The five pages of guidance cannot get around the fact that that is the law. That is what the Prison Service should be operating from. The current guidance that is operated for prisoners in Northern Ireland takes five pages to try to get around that, but the truth is that it does not get around that point in rule 90. One document is guidance, and the other is law; the former cannot supplant the latter. I tell the House plainly that, if my amendment is voted down today, it will not be the end of the matter. If my amendment is voted down, and the Northern Ireland Prison Service continues to blindly disregard the law, the Prison Service will, I believe, continue to be acting illegally. Not only does it defy logic and common sense; it defies the law on the basis of guidelines that were never brought before any legislative Chamber and were, I suspect, written by one or a combination of several lobby groups. I appreciate that the Alliance Party is happy to outsource responsibility for its decisions to lobbyists, but that is not how the Chamber should do business. Will the Minister read out the list of organisations to which the guidance on transgender prisoners was outsourced? The same thing was done when it came to increasing the minimum age of criminal responsibility. I am sure that that list would enlighten the Members who are here tonight. Even if that is not produced today, the Minister can expect me to table questions or submit FOI requests on that matter. Mr Deputy Speaker —.

I am happy to give way.

I look forward to tomorrow's Executive Office Committee, when we will have the Equality Commission in front of us. That —.

I am happy to give way to Mr Burrows.

That is the reality that we are faced with. Yes, we hear all the good chat about risk assessments, but the law is the law. If we go back to operating the law, no man should be allowed in a women's prison. As I said, the guidance that I have gone through consists of a number of pages but cannot get away from or around that reality. We have situations in which a man who claims to be a woman can say, "Oh, I have to be housed in a women's prison". They are then taken and have an absurd risk assessment carried out. That could, indeed, become reality, but the law is very clear, as is my amendment, that, if such a situation were to arise, it is up to the Prison Service to accommodate the man who is pretending to be a woman in their own space. If that person does not want to be part of the men's wing, that is up to them, but they certainly should not be allowed to go into a women's prison. That is what the law states, and I can see nowhere in any legislation that has been brought before the House where there has been a change to that definition. Let us get back to the Supreme Court judgement, which refers to a person's sex being based on their biological sex, so a man is a man, and a woman is a woman. What someone is born with should determine how they are housed in prisons. I say again that my amendment includes a proviso that allows a man who wants to pretend to be a woman and does not want to abide by that law, reality or logic to be housed in separate accommodation.

Thank you very much, Mr Deputy Speaker. I remind the House of recent polling that has been carried out by LucidTalk and the 'Belfast Telegraph' in the aftermath of the Supreme Court judgement. It found that around 99% of TUV voters, 94% of Ulster Unionist voters, 93% of DUP voters, 58% of Sinn Féin voters, 57% of SDLP voters and 47% of Alliance supporters agreed with the UK Supreme Court ruling that sex is binary. What we have heard from the contributions today defies what the general public want their representatives to do. That is something that the parties in the House will not be able to get away from.

I am happy to give way to the Minister.

In the Minister's intervention, she said that my view can be disputed. The Minister talks about the Scottish judgement as not being relevant. She talks about it as not being relevant because it relies on the Equality Act 2010, which does not, generally, extend to Northern Ireland. Therefore, let us step that through. Let us assume for a moment that she is right. Let us assume that the Equality Act is entirely irrelevant in this debate. That does not solve —

— the Minister's problem.

Thank you very much, Mr Deputy Speaker. I will continue with the train of thought that I was on. If the Equality Act does not apply, I ask the House this very simple question: what provision of Northern Ireland law permits a biological male — a biological man — to be treated as a woman for the purposes of rule 90? Rule 90 has never been changed and states:

"Women prisoners shall be held in separate accommodation."

The Minister has not tried to challenge me on that. She has not got to her feet to say that I am wrong in pointing that out. It is obviously correct then that that indeed is the law. I can find no provision that redefines the word "woman". Let us take this because that is exactly where we are at. This is the law. It is what the Prison Service should be following, and I am gravely concerned that, in the current system, the guidance that the Minister is following is based on ideology. It is not based on law, and, on that basis, I believe that it is dangerous. My amendment is clear. It sets out a provision where, for a man who pretends to be a woman and does not want to go to a male prison — a men's prison — there is that individualised opportunity. That risk-assessed —.

I will sum up and bring my remarks to a close, Mr Deputy Speaker. The law clearly states:

"Women prisoners shall be held in separate accommodation."

That is not guidance but law. The law has not been amended, so that law stands. The Justice Minister is not fulfilling and following that law, so she is leaving the Prison Service open to a judicial review. Why should we have to wait for a court case to be taken, as has happened in Scotland, for the Minister to act? I presume that it is because I am the one who tabled amendment No 97, and it is about her dislike for me. That is why she has decided not to back the amendment and, indeed, will instead wait until somebody takes a judicial review, which will cost the public money. That is shameful.

I am happy to give way to Mr Burrows.

3,185 words. Text as published by the Northern Ireland Assembly.

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