Scotland Act 1998: Section 35 Power

Lindsay Hoyle Excerpts

Tuesday 17th January 2023 Commons Chamber

[The Secretary of State for Scotland (Mr Alister Jack)]

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 hon. 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—[Interruption.] And you can hear them, Mr Speaker; you can hear them. 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.

[Mr Speaker]

I call the Shadow Secretary of State.

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[Mr Jack]

Yes, and fortunately that addresses one of the points that the shadow Secretary of State for Scotland raised. I can address it here. I have written to the First Minister and suggested that we meet to resolve these issues. It is the case that the Scottish Government’s Bill has adverse effects on those two pieces of legislation. We can see that in the statement of reasons that has been produced by our legal advisers. What is missing are sufficient protections and safeguards for women and children that are reflected in existing Westminster legislation, and that is why I have had to lay this order.

[Mr Speaker]

We now come to the SNP spokesperson.

[Dr Philippa Whitford (Central Ayrshire) (SNP)]

The vetoing of this legislation is an unprecedented attack on the Scottish Parliament, which passed the Gender Recognition Reform (Scotland) Bill by 86 votes to 39, including MSPs from every party. Gender recognition is a devolved policy area and this does not change the Equality Act 2010 or give any additional rights to those with a certificate. It shortens and simplifies the process and, particularly, ends the requirement for a psychological diagnosis of gender dysphoria. This is in keeping with the guidance from the World Health Organisation and from the United Nations, which recommends change to a legal statutory process based on self-identification. This change has already been made by many countries over the last decade, including neighbours such as Ireland, Belgium and Denmark. This Government are threatening to end UK acceptance of international certificates. I find this bizarre, considering that the former Prime Minister, the right hon. Member for Maidenhead (Mrs May), suggested a similar proposal in 2017.

Will the Secretary of State explain exactly which parts of the Equality Act are changed by the Bill? Why did he not raise specific concerns during the two consultations carried out by the Scottish Parliament or in response to the Cabinet Secretary’s letter in October, rather than in a response that came three days before the final debate on the Bill? What modifications to the Bill is he suggesting that would not include a return to the outmoded medicalised process? Why is he using one of the most marginalised groups in society to pick a fight with the Scottish Parliament? Is he seriously, after 300 years of different marriage ages and voting ages, suggesting that there can no longer be legal or age differences north and south of the border? And does he recognise that vetoing the Bill simply highlights the hollow reality of devolution?

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[Mr Jack]

Absolutely.

[Mr Speaker]

I call the Chair of the Scottish Affairs Committee.

[Pete Wishart (Perth and North Perthshire) (SNP)]

This is the single biggest attack on Scottish devolution and Scottish democracy since the establishment of the Scottish Parliament in 1999. A move to strike down a piece of legislation that is supported by every single party in the Parliament is as provocative as it is anti-democratic. When the Scotland Act went through Parliament back in 1997 and ’98, the Conservatives called section 35 the “colonial general rule”. Is the Secretary of State now the real-life colonial general imposing his view on a reluctant Scottish Parliament in the name of his and his party’s culture wars?

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[Pete Wishart (Perth and North Perthshire) (SNP)]

On a point of order, Mr Speaker.

[Mr Speaker]

No, I want to get through the ten-minute rule Bill. I will take points of order after that, depending on what the House decides.