Scotland Act 1998: Section 35 Power

Statement

The following Statement was made in the House of Commons on 17 January.

“Today I will make an order under Section 35 of the Scotland Act 1998 preventing the Gender Recognition Reform (Scotland) Bill from proceeding to Royal Assent. This order will mean that the Presiding Officer of the Scottish Parliament will not submit the Bill for Royal Assent. This Government believe, however, that trans- gender people deserve our respect, our support and our understanding.

My decision is centred on the consequences of the legislation for the operation of reserved matters, including equality legislation across Scotland, England and Wales. The Scottish Government’s Bill would introduce a new process of applying for legal gender recognition in Scotland. The changes include reducing the minimum age at which a person can apply for a gender recognition certificate from 18 to 16, and removing the need for a medical diagnosis and evidence of having lived for two years in their acquired gender. The Bill would amend the Gender Recognition Act 2004, which legislated for a single gender recognition system across the United Kingdom, and which received a legislative consent Motion from the Scottish Parliament.

The approach taken in the Scottish Government’s Bill was the subject of intense debate in the Scottish Parliament. A number of significant amendments were tabled right up until the end of the Bill’s passage, and the Minister for Women and Equalities, my right honourable friend the Member for Saffron Walden (Kemi Badenoch), corresponded with and met the Cabinet Secretary, Shona Robison, to discuss the UK Government’s concerns before the Bill had reached its final stage.

I have not taken this decision lightly. The Government have looked closely at the potential impact of the Bill, and I have considered all relevant policy and operational implications, together with the Minister for Women and Equalities. It is our assessment that the Bill would have a serious adverse impact on, among other things, the operation of the Equality Act 2010. Those adverse effects include impacts on the operation of single-sex clubs, associations and schools, and on protections such as equal pay. The Government share the concerns of many members of the public and civic society groups about the potential impact of the Bill on women and girls.

The Bill also risks creating significant complications through the existence of two different gender recognition regimes in the UK, and allowing more fraudulent or bad-faith applications. The Government are today publishing a full statement of reasons alongside the order, which will set out in full the adverse effects that they are concerned about.

Let me now address the claims put forward by those who would seek to politicise this decision and claim that it is some kind of constitutional outrage. The Section 35 power was included in the Scotland Act, which established the Scottish Parliament. This is the first time the power has been exercised, and I acknowledge that it is a significant decision, but the powers in Section 35 are not new, and the Government have not created them; they have existed for as long as devolution itself.

We should be clear about the fact that the Section 35 power was included in the Act by the architect of that devolution for a reason. Donald Dewar himself noted that the power struck an important balance. It provides a sensible measure to ensure that devolved legislation does not have adverse impacts on reserved matters, including equalities legislation such as the Equality Act 2010. This is not about preventing the Scottish Parliament from legislating in devolved matters, but about ensuring that we do not have legal frameworks in one part of the United Kingdom which have adverse effects on reserved matters.

We should also be clear about the fact that this is absolutely not about the United Kingdom Government’s being able to veto Scottish Parliament legislation whenever they choose, as some have implied. The power can be exercised only on specific grounds, and the fact that this is the first time it has been necessary to exercise it in almost 25 years of devolution emphasises that it is not a power to be used lightly.

I have concluded that the Gender Recognition Reform (Scotland) Bill would have serious effects on the operation of the Equality Act, and, as I set out in my correspondence with the First Minister yesterday, I would prefer not to be in this situation. We in the United Kingdom Government do all that we can to respect the devolution settlement and to resolve disputes. It is open to the Scottish Government to bring back an amended Bill for reconsideration in the Scottish Parliament. I have made clear to the Scottish Government my hope that—should they choose to do so—we can work together to find a constructive way forward that respects both devolution and the operation of the United Kingdom Parliament’s legislation. I commend this Statement to the House.”

My Lords, in politics there are those issues about which we should, and do, fight hammer and tongs across these Dispatch Boxes and in the other place—issues of taxation, health, Brexit, schools or foreign policy. Gender recognition and the rights of trans people does not have to be one of those hot-button issues. I am afraid that watching the exchanges in the Commons yesterday will delight those who seek to use this issue as a political football. Sure, there is disagreement, but disagreeing well, with respect, is what is needed. What we have, far too often, is denigration, name-calling and attempts to shut down or silence others.

It has been obvious for a very long time that the Scottish and UK Governments just cannot and will not work together, and this latest stand-off is not going to resolve anything. The shadow Secretary of State, Ian Murray, reminded us yesterday that Donald Dewar, the father of devolution, designed Section 35 to protect devolution. It was intended as an enabling mechanism, allowing the Scottish Parliament to pass legislation on devolved competences without changing reserved functions. That was the point of it. The memorandum of understanding that was agreed in response to concerns that Section 35 could be used as a veto was clear. It stated that Section 35 should be used as a “last resort” and that the UK Government and the Scottish Government should

“aim to resolve any difficulties through discussion”.

Have they? The Secretary of State did not have extensive enough discussions with the Scottish Government before taking this action.

Section 35 has never been needed before, not in a quarter of a century of devolution, despite many disagreements, because, in the end, Governments have known that it is their duty to work together. But now, on this of all subjects, the Scottish and UK Governments have decided to make sure that they are in conflict with one another. The SNP Government in Edinburgh are determined to break devolution; UK Ministers are just not interested in it and are prepared to weaponise it. In the end, it is the public who lose out: trans people suffering devastating discrimination, and women’s groups who want their concerns addressed, are put in the middle while a constitutional fight rages on and on. How is it that the Secretary of State can say that there is a version of the GRR Act that the UK Government could support but then not share an outline of what that Act could look like? Perhaps the Minister will do so this evening.

Will the Minister accept—I think he has to—that it was a very controversial decision to use this power for the first time since devolution, especially, as the noble Baroness, Lady Chapman, has said, when the Government lack trust in many quarters regarding their respect for devolution? It has generated a predictable response from the SNP, which is itself divided on the issue and struggling to find a way forward in its interminable campaign for a second referendum.

Will the Minister confirm, nevertheless, that the Government accept that the passing of the gender recognition Bill falls entirely within the powers of the Scottish Government? The Scottish Parliament is adamant that nothing in the Bill impacts on the UK Equality Act. The UK Government say that they have legal advice to the effect that it does, although some lawyers—not all—see the grounds as thin and not justifying the scale of this action. However, as the First Minister has indicated, it appears that it will inevitably be referred to the Court of Session and thence possibly to the Supreme Court. Are the Government’s legal advisers confident of success?

I agree with the noble Baroness, Lady Chapman, that it is regrettable that trans people are caught in the crossfire of this dispute. I suggest to the Minister that this is a distraction that suits both Governments, because they are failing to deal with the manifold crises we face in the health service, energy, cost of living, education and transport. These are the central issues dominating the worries and concerns of everyone across Scotland and the whole of the UK. They want their Governments to concentrate on finding ways through the perfect storm that they have helped create. This distraction does not address the needs and priorities of anyone in the UK. Trans people do not deserve to be caught in the middle of it.

My Lords, it is only after very careful consideration that the Secretary of State for Scotland has decided to make an order under Section 35 of the Scotland Act 1998 to prevent the Scottish Parliament’s Gender Recognition Reform (Scotland) Bill from proceeding to Royal Assent. He has considered policy and legal advice and determined that he has reasonable grounds to believe that the Bill would have an adverse impact on the operation of Great Britain-wide equality legislation.

Transgender people deserve our respect, support and understanding. The Secretary of State’s decision is about the consequences of the legislation for the operation of GB-wide equalities protections and other reserved matters. He has therefore concluded that this is the necessary and correct course of action. The decision has not been taken lightly, as he said repeatedly in the other place yesterday.

The Government would prefer not to be in this situation. We do all we can to respect the devolution settlement and resolve disputes. This is the first time that the Section 35 power of the Scotland Act has been used. The Government recognise that this is a significant decision, but Section 35 was included by the Act’s architects to ensure that, in a situation such as this, devolved law and law throughout the United Kingdom can work together effectively.

If the Scottish Government choose to bring an amended Bill back for reconsideration in the Scottish Parliament, we can work together to find a constructive way forward that respects both devolution and the operation of UK Parliament legislation. We have set out the detailed concerns that the UK Government have with the Bill in the Statement published yesterday. We want to work with the Scottish Government to resolve these issues. The EHRC stands ready to help; its ongoing concerns are on the record.

My Lords, it is not just trans people caught in the crossfire but women. Internationally, women are losing their rights in some countries as to what they wear, how they are educated, where they can work, their reproductive rights and protection against violence. They are even losing their freedom of speech; I sometimes feel the same is true here for us women. We risk here the undermining of our hard-fought rights, as in the Equality Act. Can the Minister confirm that the Government will do nothing to undermine that Act, either in this or in their repeal of the European Union legislation, which also threatens women’s rights?

The Equality Act 2010, to which this Government are entirely committed, is a reserved matter. On the basis that we have a unitary state in the United Kingdom, we believe that it is a key matter that must be applied equally across all four nations of the United Kingdom. That is precisely why we are concerned that the Bill passed in Scotland, putting aside the merits of the case, will have an adverse impact on the Equality Act 2010. That is why Section 35 has been triggered.

My Lords, this is a very difficult issue to get your head around. In a previous incarnation, I was a non-executive director of the Scottish Prison Service. I saw the terrible vulnerability of women in prison, many of whom had been abused since being babies. They wanted to be in prison because they felt safe there.

In this morning’s Scottish edition of the Times was the very distressing case of a 22 year-old woman, a sex offender held in Cornton Vale women’s prison, who was up on a charge when she was male for attacking somebody in the male division of Polmont young offender institution. The sexual offences she committed were on a 10 year-old and a 12 year-old in supermarkets in Fife. If we look at this legislation as it stands, there is nothing that can give the kind of protection that is needed for those women. She had male genitalia and there was no third-party verification, as there is not in this new Bill.

Let me be political. I have a very real concern that we have been caught in a trap. Nobody in Scotland is talking about the fiasco over the ferries, the fact that the Scottish education system has gone from being one of the best in the world to one of the worst, or the chaos in our National Health Service, despite the fact that the National Health Service in Scotland gets more money than elsewhere because of the Barnett formula. What will the Minister do about it? This is attacking the devolution settlement. I find it quite odd that the First Minister wants to support devolution; she is against devolution—she wants independence. The irony is that she can now say that big, bad Westminster is interfering in good Scottish Parliament decisions. How will the Minister get out of that one?

The noble Baroness’s well-informed comments indicate the sensitivities that we are dealing with in Scotland and the wider UK. The Bill as its stands risks creating significant complications from two different gender recognition regimes in the UK, which could allow for more of the fraudulent or bad-faith applications that we are very worried about. Adverse effects could include impacts on the operation of single-sex spaces, particularly for women and children, whether in prisons, clubs, associations or schools. There could be adverse effects on protections for equal pay and single-sex spaces.

The question was on whether the UK Government should have engaged more with the Scottish Government in the process. We set out our concerns. The Minister for Women and Equalities met the Scottish Cabinet Secretary for Social Justice before the Bill moved to stage 3 in the Scottish Parliament. In the last two to three years, the UK Government have consulted widely on the GRA. It remains the Government’s view that this legislation strikes the right balance in the protections mentioned by the noble Baroness. This was well known to the Scottish Government. All the concerns that have been raised on behalf of women’s groups and from notable folks—whether the UN special rapporteur, the independent EU expert on protection for violence against women, or the Equality and Human Rights Commission —were put to the Scottish Government, but they have continued to push ahead with this legislation.

We have not been alone in expressing concerns regarding the Bill’s impact on the Equality Act and women and girls specifically. This has been a constant issue since these proposals were first published. It is very unfortunate that those ongoing concerns were not given more weight and that the legislation was not paused to allow further discussions between the Governments.

Does my noble friend the Minister agree that what the noble Baroness, Lady Liddell, has ably demonstrated in referring to concerns about the fraudulent use of this provision is the importance of the Government and the Official Opposition being united in their position on the steps proposed by the Scottish Parliament, so that we can put on a united front as the United Kingdom Parliament in exposing that the Scottish Government are using something so profound and sensitive for political purposes and, if there is a difference of view on some of the substance of the matter, object to it on those grounds?

Yes, I agree with the noble Baroness. What is happening is that the boundaries of devolution are being pushed to the limit. Perhaps the architects at the time did not anticipate that we would be here on such an issue, but they put Section 35 into the Act for a reason. It was there at the start and it was voted for by the SNP. It is a means to enable devolution and allow it to work, and to allow the Scottish Parliament to act within the Scotland Act on devolved matters, but there is a requirement to examine whether they will have an impact on the rest of the United Kingdom.

When the Gender Recognition Act was passed in 2004—the former First Minister of Scotland at the time, the noble Lord, Lord McConnell, will know this—the Scottish Parliament gave legislative consent, through an LCM, to that Act, because it is a devolved matter. The reason they gave was the desirability of having a single coherent gender recognition regime applying uniformly across the UK, and we have not had any evidence of why the desirability of that has changed.

My Lords, I reassure the noble Baroness, Lady Liddell, that prisoners are allocated prisons on a case-by-case basis, according to how suitable they are. I wanted to have a word with the Minister; I am quite sad in my heart that the trans community in Scotland is being used as a political football in this way, as several noble Lords have said. Might the Government give some potentially more optimistic news on what is happening? There are suggestions in the press that the Government intend to have talks with the Scottish Government on the legislation. Can the Minister tell us whether that is likely to happen? I think he intimated that earlier. If so, when is it likely to commence?

On one level, we are just in the legal mechanics at this point, because concerns were raised by the UK Government—and by many other credible groups—with the Scottish Government, and those were not taken care of in the passing of the Bill. That now moves into a four-week legal process under Section 35 of the Scotland Act 1998 for us to reject the Bill and for it not to go to Royal Assent. It now goes back to the Scottish Parliament on that basis, and the channels are very open and clear that we are prepared to have a conversation about it. We want to move this forward, but we need to do it on a basis that satisfies the whole of the United Kingdom.

My Lords, I do not recall every individual discussion we had in Cabinet during my time as First Minister, but I do recall this discussion in 2004 in great detail. It was quite possibly the most complex discussion we ever had on a single piece of legislation, and that decision to go for a legislative consent Motion and legislate consistently across the UK was not taken lightly at the time. It was taken primarily to protect the interests of transgender people—not to protect the state or the union, but to protect the interests of individuals who had to live and work across the whole of the United Kingdom. So, this issue needs to be taken very seriously and from a point of principle.

The Scotland Act was designed to make sure that we also did not have conflicting legislation that caused difficulties across the UK; therefore, this does need to be looked at in the detail outlined by the Secretary of State. Will the Government guarantee to have constructive discussions with the Scottish Government about finding a way through the difficulties that have been outlined? Will they publish the minutes of the meetings that took place between the Ministers, because there are conflicting claims about those meetings? If there is an agreement reached that allows this legislation to work across the whole of the UK, will the Government withdraw the Section 35 order in the spirit of unity that this would then mean?

A number of these matters lie fundamentally in another place and in another department. Right now, the Scotland Office is in a situation where, under the architecture, it is pressing the button on Section 35. The Bill now goes back to the Scottish Government, and discussions need to be had with the relevant UK department on this matter. That will require discussion with the UK Minister for Women and Equalities. My understanding is that these channels are open and that a discussion will be had. As to whether minutes are published, et cetera, I cannot comment on that. I guess that if that is the normal procedure, it will be done. There is no attempt to be anything other than fully transparent on this matter. The Scottish Government are within competency in matters of gender. This issue has come to this House and the other place because there is a knock-on effect on the rest of the United Kingdom in relation to the Equality Act.

My Lords, one of the points that has been made clear by the First Minister is that she wants to take this issue to court. That is a waste of public money, and it is certainly a waste of time. Think of the time it would take to go through the Outer House, the Inner House and then to the Supreme Court—we are talking about something like 18 months before there is a solution. To pick up a phrase from the noble Baroness, Lady Chapman, it is not going to take us anywhere. The solution is to get around the table; I think I am echoing something that the noble Lord, Lord McConnell, has already said. Judging by what the First Minister said last night, I think there is a suspicion that the Government are not acting in good faith. We need a clear declaration from the Minister that the issue the Government take with the Bill is based on thorough research of its effect; there is no question of bad faith here at all. There is an issue to be discussed, but the sooner it can be, the better. Every effort must be made to bring the two parties together so that we can resolve these various very difficult problems.

I thank the noble and learned Lord for his contribution. As a former Supreme Court judge, he knows these matters very well. I completely agree that it would be a waste of public money to go to the courts. In fact, in pressing that button, it was almost as if that was anticipated. Therefore, we need to get around the table and discuss this issue. The UK Government have consulted on this matter, as we have said, over the last two years and believe that the legislation currently provides the right checks and balances. However, the Bill is obviously an attempt to move that legislation forward and therefore should be considered. The Equality and Human Rights Commission has concerns about the Bill, as do many others, and they are on the record. What that says to us is that this is a sensitive issue which requires further consultation.

My Lords, the Government were absolutely correct in preventing this Gender Recognition Reform (Scotland) Bill gaining Royal Assent. Some 347 Bills have gained Royal Assent in the Scottish Parliament, so to take a step to prevent this one in particular shows that there is a clearly a problem. While MSPs and others fully support it, I do not believe that the majority of the Scottish people support it as it stands. There is an obvious and serious adverse impact on the operation of the Equality Act 2010. To suggest, for example, that a 16 year-old with no parental or medical support should be encouraged and lawfully allowed to change gender in weeks is a catastrophe in waiting.

For too long now, the safety and security of women and girls has been continually undermined. This situation is too important to ignore. Would the Minister agree that this issue needs much more discussion and that, as it stands, the Bill should not be allowed to gain Royal Assent at any cost?

I thank my noble friend, and I agree. We are in a situation now where we cannot proceed, on the basis that the Scottish Government have pushed forward with the Bill, it has come to us and we have to consider it under Section 35. It needs further consideration. That is why Section 35 has been triggered.

My Lords, I have a very short question—

My Lords, the Green Benches have been waiting to get in all through these questions, so we will hear from the Greens first, and then I think the House would probably like to hear from the noble Baroness, Lady Kennedy.

I thank the noble Baroness. This debate has made many references to the Scottish Government and the Scottish First Minister. I ask the Chamber to acknowledge that we are talking about a law passed by the Scottish Parliament by a significant majority—I hope everyone would acknowledge that. I note also that the First Minister of Wales has said that he would like to introduce the same provisions in Wales and will ask the Government for the right to do so.

I entirely sympathise with the desire for compromise and talks expressed by the noble Baroness, Lady Chapman. The Statement says, and the Minister has repeated, that the Government want to talk to the Scottish Government and get around the table to come to a compromise. But they are arguing that it is impossible to have different gender recognition certificate systems in different parts of the UK. If this is the case, what kind of compromise are the Government going to offer? How can the Bill be amended rather than just being thrown out, if that is what the Government are demanding?

That just indicates the sensitivity of the matter we are dealing with. On the face of it, the Scottish Government Bill allows the Equality Act to continue, because the GRC works within the architecture of that Act, but the Bill has changed the criteria for applying for that GRC, and that has a significant impact, as we have discussed. Therefore, it will need to be discussed in detail and sensitively.

At the end of the day, the issue we are dealing with in this Chamber right now is that the Government believe it would be significantly complicated to have two different gender recognition regimes in the UK, and that this would create a lot of problems between Scotland and England. As the noble Lord, Lord McConnell, said, up until now, and at all points through the discussion, it was considered that the Scottish system should remain within the UK system. We do not see any evidence for why that has changed.