The UK government’s threat to block Nicola Sturgeon’s Gender Recognition Reform Bill took many by surprise. The powers, under Section 35 of the Scotland Act, have never been used before. The assumption from some observers, this one included, was that this was a negotiating tactic ahead of inter-governmental discussions on the Bill’s implementation and cross-border issues that might arise. That assumption appears to be wrong. I understand that raising the spectre of Section 35 is not a negotiating tactic: ministers are seriously contemplating it and legal advice is being sought. Among ministers’ concerns are questions over passports, driving licences and public safety.
Michael Foran, a lecturer in public law at Glasgow University, beat everyone to the punch on this, penning a blog earlier this week for the UK Constitutional Law Association website. In it he contended: ‘The Gender Recognition Reform Bill, coupled with the recent decision in For Women Scotland will likely destabilise existing categories and frameworks for the purposes of the reserved matter of equal opportunities.’
The For Women Scotland decision, handed down at the Court of Session ten days ago, saw Lady Haldane rule that, for the purposes of the Equality Act, ‘sex is not limited to biological or birth sex, but includes those in possession of a [Gender Recognition Certificate]’. Foran argued that this judgment – in combination with the new Bill – provided grounds for the Secretary of State for Scotland Alister Jack to invoke Section 35. This permits his intervention in Bills which ‘make modifications of the law as it applies to reserved matters’ and where he has ‘reasonable grounds to believe’ these modifications ‘would have an adverse effect on the operation of the law as it applies to reserved matters’. Should the Secretary of State issue a Section 35 order, the Scottish parliament presiding officer could not lawfully progress the Bill for royal assent. His decision would be subject to judicial review and so the Scottish and UK governments could be heading for another Supreme Court showdown.
Opposition to a Section 35 order would be cross-party
As I said the other day on Coffee House, when flagging up potential problems that Westminster might have with the Bill, I’m not a lawyer and have no idea whether the present Bill meets the criteria set out in Section 35. I recommend anyone who is interested in the legal questions read Foran’s blog, which is clear, concise and makes a compelling case. However, at least as important as the points of law are the political considerations.
Under successive prime ministers, Westminster has shown itself highly averse to constitutional rows with Holyrood, whether it was the SNP’s attempt to incorporate international treaties, hold a unilateral independence referendum, pursue a separate foreign policy or ‘delegitimise’ the UK rule of law. It may be that ministers have finally lost patience with Holyrood. The SNP has spent years trying to pick a fight with Whitehall – now it’s got one. Still, ministers will have to balance a number of factors in deciding how to act. A legal (and therefore political) battle with the Scottish government will eat up valuable time and political capital, neither of which this government has in abundant supply.
Ministers would be accused by the SNP and the nationalist Scottish establishment of interfering in the democratic process and showing disrespect for the Scottish parliament. Given the SNP passed the Bill with the help of votes from the Greens, Labour and the Lib Dems, opposition to a Section 35 order would be cross-party. Ministers would also have to decide whether they wanted a row over trans rights given the differences of opinion within the Conservative party. There would also be political costs to losing a judicial review of the order.
On the other side of the scales is the potential impact of the Bill on the operation of the Equality Act and reserved policies and services in Scotland and elsewhere in the UK. If UK legislation can be effectively rewritten – or rendered weaker – by devolved legislation, that strikes at the very heart of parliamentary sovereignty. If ministers were to accommodate the Bill, they would find themselves under pressure to adopt similar legislation in England. They would open themselves up to a series of political headaches, such as how sex should be recorded on passports and whether a self-identification gender recognition certificate should be recognised in England in the same way as a medically supported one.
Since ministers are concerned about the public safety implications of the Bill, especially given the open border between Scotland and England, they will have to consider the consequences of failing to block the Bill should any of their concerns prove well-founded. Another factor to bear in mind is that, while standing up to Westminster plays well with the SNP’s hardcore voters, even the party’s supporters are split over this issue. The wider Scottish public is strongly against many of the measures contained in the Bill. Polling shows clear majorities (between six in ten and two-thirds) of Scots oppose three key provisions: removing doctors from the transition process, cutting the waiting period to six months and reducing the age of eligibility from 18 to 16. On the latter question, 63 per cent of SNP voters oppose their own government’s plans. So, while Sturgeon will characterise any intervention as an affront to Scottish democracy, it’s not clear the Scottish demos will agree.
In short, provided ministers are satisfied that doing so would survive judicial review, the balance of risks points in favour of issuing a Section 35 order. It is a political fight Downing Street could not only win, but one which might improve its standing among the public north of the border. In arriving at its decision, it should remember that the passage of this Bill was a landmark moment to many trans people – and its failure to become law would be acutely distressing. Some will have made plans on the expectation of the Bill’s passage and delaying the legislation would be seriously disruptive. Whatever ministers decide – and however this ends – the impact is going to fall on real people and their lives.
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