Gender Recognition Reform (Scotland) Bill: Section 35 Power

Ian Murray Excerpts

Tuesday 17th January 2023 Commons Chamber

[Ian Murray (Edinburgh South) (Lab)]

I think that the time the Minister took to respond to the motion shows that the Government do not have much to say about this particular issue—or perhaps the Minister did not get the statement of reasons either, in relation to what the Government were actually proposing.

May I begin by restating, once again, that this Labour party is the party of devolution and the party of equality? It will not be lost on many that all the Acts we are discussing today—the Scotland Act 1998, the Equality Act 2010 and the Gender Recognition Act 2004—were Labour Bills that we introduced for the advancement of devolution and equality in this country. It is difficult to conclude anything other than that today’s debate is about two Governments who are incapable of working together.

I have read, or skimmed, the 13 pages of reasons—the farce that we have had trying to get these reasons today is part of this debate—and when I got to the end, my initial reaction was, “What are the Government going to do about it?” They cannot just bring an unprecedented section 35 order to this House and lay out reasons, then get to the end of those reasons and decide what to do about it. As we stand here today, the Gender Recognition Reform (Scotland) Bill is dead unless both Governments can come together and resolve the perceived issues, or otherwise.

[Sir Chris Bryant]

I wonder whether my hon. Friend has looked at paragraph 3. The Minister, who was not taking interventions earlier, suggested that all the Scottish Government had to do was bring forward a Bill with amendments, but as far as I can see they would have to come forward with a Bill that did not have anything in it. Is not that the only Bill that the Westminster Government would accept, if we go by the amendments suggested in paragraph 3?

[Ian Murray]

That is where we get to the crux of this process. My hon. Friend the Member for Rhondda (Sir Chris Bryant) made a similar point earlier about wanting to make sure that trans rights and women’s rights were protected in this country, and about doing it properly. This is certainly not the way to do it. We will now have a process whereby the First Minister and the Scottish Government will take the UK Government to court on the basis of these reasons and the unseen legal advice, and the courts will have to decide whether the reasons that the UK Government have put forward are legitimate and reasonable in terms of the bar they have to reach—namely, that there would be adverse consequences for reserved legislation. I think that at the end of that process the courts will have to resolve these arguments because both Governments are unwilling to do so together.

[Dr Whitford]

Is the shadow Minister concerned, as I am, that although gender recognition is devolved, half of the blather in here is that it conflicts with the Gender Recognition Act 2004? The whole point of devolution is that we can change legislation in Scotland in a devolved policy area.

[Ian Murray]

That is a very helpful intervention, because paragraph 14, on the first category of adverse effects, talks about different regimes across the United Kingdom. That, to me, suggests that the Government do not want this to be devolved. There are other devolved issues, such as abortion, that would have cross-border implications. But I would also gently say in response to the hon. Lady that Donald Dewar designed section 35 for the very question that she has just asked—[Interruption.] I hope she will not mind me repeating that he did not envisage all the issues that would come through. Devolution was always a journey for the Labour party and it will continue to be so. The key point was that section 35 was put there to enable the Scottish Parliament to legislate in devolved areas that might have an impact on the rest of the UK, but that it was to be used only as a last resort when there might be a conflict. If the first adverse effect is that the Government do not want different circumstances for gender recognition certificates between Scotland and the rest of the UK, surely they are saying that this should not be devolved.

[Alan Brown]

I agree with a lot of the points the hon. Member is making on devolution. Obviously he has read what we should really be calling the “clutching-at-straws reasons,” rather than the statement of reasons. He mentioned judicial review. I am not a lawyer, but I am sure that, like me, he can read this and see how weak the UK Government’s arguments are. On that basis, and if he believes in the protection of devolution and that Scotland should be able to do things differently, does he not agree with us that the UK Government should drop this action now? The Labour party should be four-square behind the Scottish Parliament on this.

[Ian Murray]

The point that the hon. Gentleman forgets is that this is going to end up in the courts regardless, because the section 35 order has been brought forward. Anyone who prays against it will get a debate and a vote, but the vote is not going to be won. It has already been said that the Government have a majority of 80, and perhaps a working majority of 100 on this issue. This will therefore have to be settled in the courts. As much as I do not want this constitutional battle to be fought on the backs of trans people’s and women’s rights, it would be good if the courts did settle these issues because maybe we could then move on with substance and do what is right by trans people and equality in this country.

[Mr Carmichael]

Paragraph 20 of the purported statement of reasons says that one of the barriers that would be encountered is existing IT infrastructure. Has the hon. Gentleman ever come across a case in which, apparently, the law has to be designed to fit IT infrastructure, rather than IT infrastructure being designed to fit the law?

[Ian Murray]

The right hon. Gentleman makes a valuable intervention. I am getting all the questions on the adverse effects, but this is a Government document. What we have missed in the debate over the past few months is that people in this country currently have gender recognition certificates under a different process, and the IT systems have to deal with that. How a person gets a gender recognition certificate is the argument here, not how they are implemented, because we implement them already.

[Sir Chris Bryant]

On how people get a gender recognition certificate, the key thing is that we should take the suggestion that it is a pathology out of the process. I do not want it to feel like we are treating trans people as if they have a pathological condition. Is that not the key thing we need to change?

[Ian Murray]

Yes, I agree. That should be part of this argument. We should be taking pathology out of the process, as this is not a medical disorder.

I wish we were having a debate about all these things, as we should be, rather than having a constitutional debate between two Governments who want not to resolve these issues but to fight about them in different ways.

[Dave Doogan]

The shadow Minister seeks to cast this conflict or tension—whatever we want to call it—as being between two Governments. In fact, depending on how the Labour party decides to act, the conflict and tension are between two Parliaments. There is cross-party support for this Bill in the Scottish Parliament, from the Liberal Democrats, the Greens, the SNP and the Scottish Labour party, whereas in this House it is simply the Conservatives who are standing in the way. Can he advise on how the Labour party will move on this?

[Ian Murray]

The hon. Gentleman is fundamentally wrong. What we are dealing with today is a debate between the UK Government and the Scottish Government—[Interruption.] This is in the Scotland Act 1998, and it has to be resolved by the two Governments. If SNP Members want the Labour party to resolve this, we are happy to take the seats of Government either in the Scottish Parliament or here, but it has to be resolved by the UK Government and the Scottish Government. That is the black and white of this issue.

[Steven Bonnar (Coatbridge, Chryston and Bellshill) (SNP)]

There is no Scottish Labour party.

[Kirsten Oswald]

Will the hon. Gentleman give way?

[Ian Murray]

I will give way to the hon. Lady while the hon. Member for Coatbridge, Chryston and Bellshill (Steven Bonnar) chunters nonsense in the background.

[Kirsten Oswald]

I am interested in how the hon. Gentleman characterises some of what we have heard today, but if he thinks that the Labour party has no role in this, and if he does not think the Labour party ought to have a view or an opinion, or to take a position, he needs to make that clear, because his colleagues in the Scottish Parliament do have a view. They voted for these provisions, as did SNP, Liberal Democrat and some Scottish Conservative Members. He should stop being disingenuous and be clear. Where does the Labour party stand? Will it defend the right of the Scottish Parliament to act or not?

[Ian Murray]

I will tell the hon. Lady exactly where we stand: we want this legislation to work. At the moment, the legislation is dead because—

[Kirsten Oswald]

Because of them.

[Ian Murray]

The hon. Lady might say that from a sedentary position, but the hon. Member for Aberdeen South (Stephen Flynn) quoted Donald Dewar at great length. Donald Dewar will be turning in his grave at what is happening in relation to devolution and Scottish politics, because he created the section 35 process for the very reasons the hon. Lady just said. Section 35 is a process to enable cross-border problems to be resolved.

[Angela Crawley]

Will the hon. Gentleman give way?

[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.

[Several hon. Members rose—]

[Ian Murray]

Let me make some progress. I wanted, because of accusations that have been made, just to go through a little of the Scottish Labour party’s response to the Bill in the Scottish Parliament. We had a multitude of concerns about the initial Bill. Nobody could have said that the Bill that was presented in draft to the Scottish Parliament was in any way fit to become final legislation, but we worked constructively with the legislation, with the UN rapporteur for women and girls, with the LGBTQ+ community and with women’s groups, which were raising concerns about the Bill. We tabled amendments. We got the Equality Act on to the face of the Bill, which is referred to in a lot of the adverse effects in the Government’s document. We made many other amendments to that Bill to help alleviate concerns, but, unfortunately, the only way we are going to settle these arguments now is through the courts.

[Douglas Ross]

I am grateful to the shadow Scottish Secretary of State for giving way. The leader of the UK Labour party said at the weekend that he had serious concerns about reducing the age from 18 to 16. However, when my Scottish Conservative colleague, Rachael Hamilton, moved an amendment to keep the age at 18 rather than reducing it to 16, Labour MSPs joined the SNP to vote the amendment down. What is the shadow Secretary of State’s position on the age limit in Scotland?

[Ian Murray]

We put in protections on the age limit in Scotland. We have the leader of the SNP at Westminster accusing the Scottish Labour party and the UK Labour party of different positions on this. There is nothing between the positions, but we should have devolution at the same time. The leader of the UK Labour party has made his position perfectly clear, and Anas Sarwar, the leader of the Scottish Labour party, and his team put in significant protections for 16 and 17-year-olds, including the notary public measure, which means that a person has to swear in front of a notary public for this to take effect and they have to get a responsible adult over the age of 18 to be able to do any of this under the age of 18.

Essentially, the hon. Gentleman is challenging people not to have different views on this, but two of his Front-Bench MSPs voted for the legislation. People are entitled to have slightly different views on what is an incredibly important subject. He has managed to do only one thing in the past week, which was not to get both Governments together to try to resolve this, but to write to me to ask my position on the Bill. I would rather that the two Governments came together. [Interruption.] We want the Bill passed and we want section 35 resolved; it is as simple and as straightforward as that. It has been our position for some time that we should modernise the GRA. That position has been eloquently expressed by my hon. Friend the Member for Rhondda, and it is still the one that we hold.

My right hon. Friend the Member for Leeds Central (Hilary Benn) made the crucial point—and this goes back to an earlier intervention—that gender recognition certificates can already be issued under the Equality Act. As we sit here today, single-sex spaces are protected by exemptions under the Equality Act. The adverse reasons that the Government are giving us on that are not about the process of getting a GRC, but about the process that is currently already in place. The Government are all over the place on this, and it is little wonder that the only result is to fan the flames for people who wish to break up the United Kingdom.

[Lloyd Russell-Moyle (Brighton, Kemptown) (Lab/Co-op)]

Is it not right that, in the passing of the Equality Act 2010, it was noted then that the GRA needed to be reformed and depathologised? The party that came in straight after the passing of that Act—the party currently in Government—has spent 12 and a bit years twiddling its thumbs and fanning the flames of fear and hatred, and then, when one Parliament of this United Kingdom takes decisive action, rather than stepping up and working to resolve the issue, the party has constructed a constitutional crisis that will benefit its voting.

[Ian Murray]

That is what I have been saying. We desperately want the legislation to pass, but we also desperately want to make sure that the issues raised under section 35 are resolved. There are only two ways to do that: either through the courts, which is where I think this is heading, or through the Governments getting together. We do not have the power to make either of those things happen.

Opinion polling shows that the overwhelming majority of people in Scotland just want their two Governments to work closely together in the interests of the country, and, on this particular issue, in the interests of equality. Let me say to both Governments that these issues are not irresolvable. We can create an environment where protections exist for women at the same time as strengthening the rights for trans people. We can create a legal framework where GRCs issued in Scotland are entirely compatible with the UK-wide equality legislation. We can have a country where both the Scottish and UK Governments act like grown-ups, get round the table and resolve these issues. That is what used to happen. That is the way that Donald Dewar designed the legislation that this Government are now implementing. We need genuinely constructive discussions between the two Governments. Let us lock them in a room and not let them out until they find a solution. I can assure Members that there is a way through this, but both Governments are unwilling to take it.

[Several hon. Members rose—]