Gender reforms: Scottish Government to challenge UK Government block on bill

The Scottish Government will challenge the UK Government’s block on the Gender Recognition Reform Bill.

Social justice secretary Shirley-Anne Somerville has confirmed the government will lodge a petition for judicial review of the section 35 order.

That order was made by Scottish secretary Alister Jack in January. It blocked the presiding officer of the Scottish Parliament from submitting the bill for Royal assent.

Jack has said the government will “robustly defend” its position.

Somerville said: “In seeking to uphold the democratic will of the parliament and defend devolution, Scottish Ministers will lodge a petition for a judicial review of the Secretary of State for Scotland’s decision.

“The UK Government gave no advance warning of their use of the power, and neither did they ask for any amendments to the bill throughout its nine-month passage through parliament. Our offers to work with the UK Government on potential changes to the bill have been refused outright by the Secretary of State, so legal challenge is our only reasonable means of resolving this situation.

“It is important to have clarity on the interpretation and scope of the Section 35 power and its impact on devolution. These matters should be legally tested in the courts.”

The move has been confirmed to the Scottish Parliament using a government inspired question, the standard mechanism for announcing major decision while in recess.

It says the Scottish Government does not consider the reasons set out by the Scottish secretary to provide “sufficient justification” for the decision, nor does it believe the move is in line with the memorandum of understanding between the UK and devolved governments.

The bill was passed by Holyrood in December by a margin of 86 votes to 39, though the SNP suffered its biggest rebellion ever as nine members voted against it.

It aims to make the process of obtaining a gender recognition certificate easier for trans people, but concerns have been raised on the impact on women and single-sex spaces.

Jack confirmed he would prevent the legislation from becoming law earlier this year, stating that the bill would have “serious, adverse effects” on the 2010 Equality Act, a reserved piece of legislation.

Responding to today’s announcement, Jack said: “The UK Government will robustly defend the decision to prevent the Scottish Government's Gender Recognition Reform Bill from becoming law.

“I made the order under Section 35 of the Scotland Act 1998 after thorough and careful consideration of all the relevant advice and the policy implications.

“I was very clear in the accompanying statement of reasons how the bill would have an adverse effect on reserved matters, including on the operation of the law as it applies to Great Britain-wide equalities protections.”

Throughout the SNP leadership contest, First Minister Humza Yousaf said he would challenge the veto not only because he supported the bill, but also as a matter of principle of Westminster blocking laws made by Holyrood.

The two other contenders for leadership, Kate Forbes and Ash Regan, said they would not challenge the UK Government.

Previously, Nicola Sturgeon described the block as a “profound mistake” and warned it would "inevitably end up in court.”

The Scottish Conservatives, who largely opposed the bill, have accused the First Minister of trying to "divert attention" from the SNP's internal problems. Deputy leader Meghan Gallacher said: “A strong leader, acting in the national interest, would revisit and amend a profoundly flawed bill. It’s a measure of Humza Yousaf’s weakness that he has chosen the opposite course.

“The First Minister should be focused on the real priorities of the Scottish people rather than a costly, self-serving legal battle.”

Scottish Labour, who supported the bill in December, said the election of Yousaf should have "provided a reset moment". Equalities spokesperson Paul O'Kane said: "This issue is too important to be reduced to political point scoring or culture wars.

“A fraught and expensive legal battle could have been avoided if both of our governments had been more willing to work in good faith to deliver a bill that works for everyone."

The Scottish Greens, who support the legislation, have welcomed the announcement. Equalities spokesperson Maggie Chapman said: “If the Tories get away with overriding our parliament on such a clearly devolved area then it will set a dangerous precedent that could be used time and again. That is why everyone who believes in equality or devolution must support this challenge and oppose the Tory veto.”

Scottish Trans, an equality organisation which sits under the Equality Network, has also welcomed the move. Manager Vic Valentine said: “For the UK Government to seek to block the Scottish democratic process in this way, simply because they disagree with the welcome decision the Scottish Parliament has made to improve trans people’s lives, is unacceptable.”