Gender Recognition Reform (Scotland) Bill: Section 35 Power

Bernard Jenkin Excerpts

Tuesday 17th January 2023 Commons Chamber

[Stephen Flynn (Aberdeen South) (SNP)]

I beg to move,

That this House has considered the Government’s decision to use section 35 of the Scotland Act with regard to the Gender Recognition Reform (Scotland) Bill.

Here we have it, eventually: the statement of reasons, which I am expected to read while also speaking. I have to admit that there is a real temptation for me to stand here and read every single word of it into the record right now. [Interruption.] They want me to! They probably should not goad me to; I will. On a more serious note—[Interruption.] Calm down. On a more serious note, I want to start with an apology to those people—and this should apply to everyone, irrespective of their views on the GRR—who have hopes and aspirations for the future and who have fought so hard for a piece of legislation for so long and now see their hope being taken away from them. It is being taken away from them by a Government whom they did not vote for and whom we have not voted for since 1955.

That goes to the heart of the issue, which is about democracy on these islands and what democracy looks like in the United Kingdom. In Scotland’s democratically elected Parliament in Holyrood, legislation has been passed that relates directly—directly—to a devolved competency. The GRR Bill is the most-consulted-on legislation in the history of the Scottish Parliament. It received support from not just the Scottish National party, but the Labour party in Scotland; Conservative party members in Scotland, including the predecessor of the hon. Member for Moray (Douglas Ross), as I understand it; the Liberal Democrats in Scotland; and the Greens in Scotland.

[Sir Bernard Jenkin (Harwich and North Essex) (Con)]

Will the hon. Gentleman give way?

[Stephen Flynn]

I will give way in a moment.

In total, the Bill received support from nearly two thirds of Scotland’s democratically elected Parliament in Holyrood. It is an outrage that the United Kingdom Government are seeking to overturn the mandate and the legislation put down by our Scottish Parliament.

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[Stephen Flynn]

If we are going to talk about losing, the hon. Gentleman lost the debate in Scotland. I repeat once again that it is not democratic to try to overturn that legislation here in this place.

[Sir Bernard Jenkin]

Will the hon. Gentleman give way?

[Stephen Flynn]

I will not. I want to make a little progress.

It has been inferred by some Conservative Members that GRR is in some way in conflict with the Equality Act 2010. Indeed, I am sure that, in this tome before me, that is the case, yet there are also senior Members on those Benches who have been vocal about the fact that it does not interfere with or overturn the Equality Act in any way, shape or form, so which one is it?

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[Stephen Flynn]

I share my hon. Friend’s views. I am deeply concerned about that, and about the culture war that the Government are seeking to stoke.

Let us also reflect on what we have here. We have a Conservative Government, who have not been elected in Scotland since 1955. Perhaps most intriguing, we have a Secretary of State for Scotland who, in the coming months, will be walking out of this place. He will not be walking anywhere except along to the undemocratic House of Lords. Baron Jack, as he will come to be known, is trying to tell Scotland’s democratically elected parliamentarians what they can and cannot do, while at the same time knowing that he will end up in an unelected Chamber. Shame on him and shame on his Conservative colleagues.

[Sir Bernard Jenkin]

Why does the hon. Gentleman think that the gender recognition Bill has been such a protracted dispute in the Scottish Parliament and so divided the Scottish National party?

[Stephen Flynn]

I do not agree with the hon. Member on that. I think it is healthy in a democracy for discussion to be had within a Parliament, and that is exactly what has happened in Holyrood. It may have escaped his notice, but I will repeat that parliamentarians from each and every party in Holyrood voted in favour of the legislation. The question to him and his colleagues is: why are they seeking to overturn Scotland’s democratic view in this way? I am more than happy to invite him back in to answer that specific point. He is not interested.

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[Ian Murray]

Let me finish my point.

The Government have come forward with 13 pages that they think show that the Bill adversely affects UK-wide legislation. I think the statement of reasons is thin, although I have not had a chance to read it all the way through. [Interruption.] It might be rubbish, but people have concerns that we have to alleviate. We have to bring people with us. What the SNP has forgotten about this entire process—Labour is very experienced at this because we do it all the time—is that when a Government are passing major equalities legislation they have to bring people with them. If that means they have to get people around the table—[Interruption.] Should you not have to bring people with you? If people raise concerns, you should just dismiss them? [Interruption.] No, this is me saying it. Equalities legislation is difficult and you have to bring people with you. These adverse effects might be “rubbish”—as I have said, at an initial glance I think they are pretty weak and flimsy—but the courts will have to decide whether they like this or not, because that is where this is going. The Scottish Parliament has the right to pass this legislation, because this is devolved, but the Scotland Act, protecting the Scottish Parliament, also contains a mechanism, written by Donald Dewar, to ensure that if there are cross-border concerns, those are dealt with. That is the way it is in this particular process.

[Sir Bernard Jenkin]

Will the hon. Gentleman give way?

[Ian Murray]

I have not even gone through the first bit of my speech, but I will give way to the hon. Gentleman if he will apologise for saying that we were “weasels”. I hope that he has gone back and read my speech, which is not what I said during my contribution on the statement.

[Sir Bernard Jenkin]

With the greatest respect, what I am hearing from the hon. Gentleman now is that he supports neither the position of the Scottish Parliament nor the position of the Government. He says that we need to win public support, but how much of that has the Labour party got in Scotland? Is this not the problem he has to face: leaving himself with nowhere to stand in Scottish politics and falling between stools, he is hardly standing up for the devolution settlement, which he should be so proud that Donald Dewar established?

[Ian Murray]

Obviously, the hon. Gentleman did not listen to my contribution during the statement and has not listened to my contribution since. I have no idea which debate he is listening to, but it is certainly not the one I am participating in at this moment.

The bottom line here—this is the undeniable fact, whether we like it or not—is that the only way to resolve this today would be for both Governments to come together to try to find an accommodation. I am surprised that they have not done so, as this has been on the cards since 2016 and all we are getting now is a statement of adverse effects one day— 24 hours—before the expiry period for Royal Assent for the Bill. The Government are coming in at the eleventh hour with a section 35, with 13 pages of adverse effects that have not been communicated or worked on with the Scottish Government before. I am not involved in detailed discussions at ministerial level, although perhaps the Labour party will be at some future point, but perhaps it takes two to tango in these discussions. If the SNP genuinely wants this legislation to be passed and the Government genuinely want to see whether any adverse effects could affect residents in England, Wales and Northern Ireland, is it not incumbent on both Governments to get together to do everything they can to resolve this? That would allow us to get this on the statute book; section 35 could be removed and the Bill could go for Royal Assent, as was supposed to have happened some time ago.

That is the grim reality in Scottish politics the moment. It happened with the children’s rights Bill, which the UK Government challenged through the Supreme Court, which said that certain aspects had overreached under section 33 of the Scotland Act—that was another section that Donald Dewar wrote in to protect devolution. The Scottish Government were asked to remove those aspects from the Bill in order to get Royal Assent, and two and a half years later nothing has been done. That just shows that we are in political paralysis in Scotland at the moment, where nobody can do anything because it is turned into a political football about the constitution, and the trans community and others are sitting there in disbelief today that this cannot proceed.