Scotland Act 1998: Section 35 Power

Lord Bruce of Bennachie Excerpts

Wednesday 18th January 2023 Lords Chamber

[Baroness Chapman of Darlington (Lab)]

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.

Extensive and clear guidance will need to be issued—of course it will—if the Act is ever going to be implemented, which the Scottish Government say should be provided by the EHRC. Ministers could instruct the EHRC to provide the guidance; why is this not happening? If they genuinely wanted to be helpful and resolve this, Ministers could publish guidance on how the GRR Act would interact with the Equality Act 2010; is this going to happen? The publication of legal advice—I accept that this would be unusual—would assist those who want to see the situation resolved and who want to build trust. Transparency could demonstrate the good intentions that the Government say they are acting on. Will they consider this, in this unique situation?

The Labour Party is proud to be the party of the Equality Act—unlike the Government, I am afraid, who used to laugh at the Act, even though they now rely on it so heavily. Ministers have claimed that they want to protect women and girls, but if the UK Government care so much about this, will the Minister explain why female homicide is skyrocketing and rape convictions have plummeted under their leadership?

We support the principle of updating the Gender Recognition Act; when it was introduced, in 2004, it was world-leading, but it now requires modernisation. But to put this as simply as I can, if there is no discussion about a way forward, this Bill will fall, without any resolution of the issues or any modernisation of the GRA, and those who want to see it fail on issues of substance will not succeed in resolving anything either. This debate will rage on and on, with more vitriol, more anger and less respect, less care and less understanding. Surely the Government can do better than that.

[Lord Bruce of Bennachie (LD)]

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.

[The Parliamentary Under-Secretary of State, Scotland Office (Lord Offord of Garvel) (Con)]

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.