Gender Recognition Reform (Scotland) Bill: Section 35 Power

Philippa Whitford Excerpts

Tuesday 17th January 2023 Commons Chamber

[Stephen Flynn]

With all due respect, I think that the hon. Member is missing the point. Democratically elected Members in Scotland’s Parliament have voted for legislation in a devolved competency and the UK Government—her party—are seeking to block that legislation. That is simply not fair, and it is not democratic in any way, shape or form.

What comes next in the continual democratic deficit we experience in these here islands? It is incumbent on reasonable Unionists, of whom I think there are many—I do not see very many in front of me, but I think there are many in society—to come forward.

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

In part 2 of this big flabby document, the heading states:

“Adverse effects of different GRC regimes across the UK”.

If there is no allowance for different GRC regimes, how come gender recognition is devolved in the first place?

[Stephen Flynn]

Indeed. A very powerful and eloquent point by my hon. Friend, as always.

The point of what comes next is incredibly important. Where do we go when Scotland’s Parliament, our views and our purpose is just being ignored by Westminster? What are we to do? How are people in Scotland to respond? When will reasonable Unionists stand up and say, “You know what? This isn’t on. If you believe in this Union of equals, then you put the Scottish Parliament first.” I do not see that and I do not hear that in Westminster, and this is the clearest example of that.

--- Later in debate ---

[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.

--- Later in debate ---

[Douglas Ross]

I have two minutes left and a lot to get through, so I apologise to the hon. Lady for not giving way. I would have liked to hear from her, as a Liberal Democrat MP, because it seems that, both in Holyrood and here, the Liberal Democrats and Labour are supporting Nicola Sturgeon and the SNP on this.

I worry that the Scottish Government are treating the issue in the same way that they treated children and young people in passing the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill. We were told then that it was absolutely essential legislation. The Scottish Government then legislated under the competencies of the UK Government, and the UK Government took the Scottish Government to court. That was controversial at the time. Nicola Sturgeon said it was an “absolute outrage”. Yet after the Supreme Court ruling on 6 October 2021, which said that the legislation was flawed, the legislation went back to the Scottish Government and the Scottish Parliament.

What has happened since 6 October 2021? Well, let me tell the House. On 1 February 2022, the Deputy First Minister of Scotland, John Swinney, wrote to the Secretary of State for Scotland and said that the Scottish Government were looking to reintroduce the amended legislation to the Scottish Parliament. Given how important the UNCRC was to SNP Members and the SNP Government, can any SNP MP tell me when that Bill will be reintroduced to the Scottish Parliament?

[Dr Whitford]

rose—

[Douglas Ross]

I will give way to the hon. Lady if she can tell me.

[Dr Whitford]

I am not sure whether the hon. Gentleman is aware, but over the last two and a half years there has been this thing called the covid pandemic, which kept several Governments fairly busy.

[Douglas Ross]

Perhaps the hon. Lady did not hear me. I said that there was a letter from the Deputy First Minister on 1 February 2022—almost a year ago. We had passed omicron by then, and John Swinney was telling us that he would reintroduce the legislation. This is another example of the SNP—the Deputy First Minister—using legislation and vulnerable people to promote a battle between the UK Government and the Scottish Government. We can do far, far better than that.