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How Government In Westminster Can Override Scotland's Gender Bill

The Gender Reform Bill seeks to make it easier for trans people to legally change their gender (Alamy)

6 min read

The Westminster government's decision to use powers to override Scotland's Gender Recognition Reform (GRR) Bill, passed under the devolved administration, has triggered an almighty constitutional row.

Ministers have confirmed they will use a Section 35 order to block the Scottish government's gender recognition reform legislation citing concerns over its impact on UK-wide legislation.

The legislation, which was passed by MSPs last month, seeks to make it easier for trans people to legally change their gender but there are concerns that it clashes with the Equality Act, a reserved piece of legislation.

Scottish Secretary Alister Jack has now said he will make a section 35 order under the Scotland Act to prevent the legislation receiving royal assent. It is the first time the power has been used in its history. 

The Scottish government legislation was passed by MSPs with cross-party backing before Christmas after years of consultation and debate.

Passage of the legislation was met with concerns from critics of the bill that it is ill-defined and its impacts on the UK-wide Equality Act have not been fully considered.

Now the UK government has blocked the Scottish bill's passage into law, there could be major political consequences.

How can the UK government intervene?

Holyrood parliament
The Gender Reform Bill was originally passed in Holyrood, the Scottish devolved parliament (Alamy)

Scotland Secretary Alister Jack raised the possibility of a Westminster challenge as soon as the bill was passed in late December. 

"We share the concerns that many people have regarding certain aspects of this bill, and in particular the safety issues for women and children," he said at the time. 

"We will look closely at that, and also the ramifications for the 2010 Equality Act and other UK-wide legislation in the coming weeks – up to and including a Section 35 order stopping the bill going for royal assent if necessary."

The order he refers to is part of the Scotland Act and gives the Secretary of State the "power to intervene in certain cases".

It allows Jack to order the Presiding Officer of the Scottish Parliament not to send the GRR bill to the King for royal assent, therefore preventing it from becoming an Act of Parliament and becoming law.

When has this ever happened before?

The answer to that is never – the measure was included as an emergency option, and there has not so far been cause to employ it. If Jack does so now, he is making political history and pushing our politics into untested waters.

The gender recognition reform bill has already proved contentious, meaning there will also be questions around the politics of using the nuclear option of section 35 for the first time in relation to this issue. 

Gender reform bill scotland

Why has the UK government decided to block the bill?

The UK government has decided that the Holyrood bill makes changes to the law "as it applies to reserved matters" which it believes "would have an adverse effect on the operation of the law as it applies to reserved matters".

That's where the Equality Act 2010 comes in. Set in Westminster and applied across the UK, it is legislation that the Scottish Parliament does not have the legal powers to change. 

The Scottish government has said the GRR Bill is competent and does not create such a circumstance.

However, the Secretary of State for Scotland disagrees, and Jack has now said he will make a section 35 order under the Scotland Act to prevent the legislation receiving royal assent.

LGBT rights protestHe said: “I have decided to make an order under section 35 of the Scotland Act 1998, preventing the Scottish Parliament’s Gender Recognition Reform (Scotland) Bill from proceeding to royal assent.

“After thorough and careful consideration of all the relevant advice and the policy implications, I am concerned that this legislation would have an adverse impact on the operation of Great Britain-wide equalities legislation. 

“Transgender people who are going through the process to change their legal sex deserve our respect, support and understanding. My decision today is about the legislation’s consequences for the operation of GB-wide equalities protections and other reserved matters. 

“I have not taken this decision lightly. The Bill would have a significant impact on, amongst other things, GB-wide equalities matters in Scotland, England and Wales. I have concluded, therefore, that this is the necessary and correct course of action. 

“If the Scottish government chooses to bring an amended Bill back for reconsideration in the Scottish Parliament, I hope we can work together to find a constructive way forward that both respects devolution and the operation of UK Parliament legislation." 

What are the political impacts?

The political ramifications of a challenge are now a major talking point.

Scotland's First Minister Nicola Sturgeon said in a press conference on Monday that there are "no grounds" for challenge and her administration will "vigorously defend the legislation".

"If there is a decision to challenge, then in my view it will quite simply be a political decision and it will be using trans people, already one of the most vulnerable stigmatised groups in our society, as a political weapon," she said. 

In a tweet, Sturgeon added: "This is a full-frontal attack on our democratically-elected Scottish parliament and its ability to make its own decisions on devolved matters.

"The Scottish government will defend the legislation and stand up for Scotland's parliament. If this Westminster veto succeeds, it will be first of many."

Former Scottish Labour leader Kezia Dugdale has said blocking the GRR bill's enactment "will anger nationalists and devolutionists", while former Conservative MSP Adam Tomkins has said that "no parliamentary majority can make an unlawful enactment lawful, if unlawful it is".

"Blocking it should not 'anger devolutionists'," he said, "given that the power to block laws that interfere with reserved powers is baked into the devolution settlement. It would be upholding devolution to use s35."

Maggie Chapman of the Scottish Greens said a challenge of the GRR Bill "would be a shocking attack on trans rights and democracy" and would "totally undermine devolution and all of Downing Street's rhetoric and claims about us supposedly being better together and part of a union of equals".

Sections of this article originally appeared on Holyrood.

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