Ian Murray: We won’t lift block on Scottish gender reform laws

Scottish secretary Ian Murray has reiterated that he will not lift the block on the Scottish Parliament’s gender reform law.

Appearing before the Commons’ Scottish Affairs Committee for the first time in his capacity as a minister, Murray said the courts had ruled the former government’s use of a section 35 order on the Gender Recognition Reform Act was lawful.

“I have said clearly we won’t lift the section 35 order that was put in place on that basis. It’s probably a question for the previous government in terms of whether they should have used it, but it’s a political question for them, not a legal question for us,” he added.

The act was passed by the Scottish Parliament in December 2022 but was blocked by Alister Jack, then Scottish Secretary, the next month.

Section 35 orders can be laid using a part of the Scotland Act which provides the Scottish Secretary with the power to intervene where law passed in the devolved parliament would impact UK legislation.

The Scottish Government took the UK Government to court over the matter but lost that legal challenge. Supreme Court judge Lady Haldane concluded Jack had acted appropriately when making the intervention.

Murray confirmed to Holyrood earlier this year he would not lift the veto, but he criticised the previous government for how it went about the matter.

At the Scottish Affairs Committee on Wednesday, he was asked about his approach to the use of section 35 going forward.

He said that while the “primary role” of the Scotland Office was to uphold the constitutional settlement, which may include use of any section of the Scotland Act where appropriate, he would work hard to ensure a row like that which occurred over the gender reform law was not repeated.

He said: “[Kirsty] McNeill and I are in the Scotland Office and want to look to the future, not the past. All the answers we’ve given already to resetting the relationship, to the priorities we have at the Scotland Office, it’s all about making sure we can deliver the UK government’s manifesto, its promises and our missions.

“That means we have to work very closely together with the Scottish Government. They are of the same view.

“The use of a section 35 is at the end of a process. I would hope that the answers you’ve heard from the advocate general, from minister McNeill and myself so far in this committee would assure you that we would do everything in our power to make sure nothing got to that stage.

“That means we need cabinet secretaries and secretaries of state working very closely together across all departments on issues of common interest. But also, of course there’ll be differences – that’s the way asymmetric devolution works – but we have to work through those carefully and we have to make sure that we’re doing the right thing by the Scottish people.”

The Gender Recognition Reform Act remains on the statute books but has not come into force.

Speaking after the judicial review outcome in December, social justice secretary Shirley-Anne Somerville confirmed the Scottish Government would not move to withdraw the act even though the section 35 prevents it from receiving royal assent.

At the time, she said: “If the current UK Government is willing to work together and indicate the changes they would find acceptable we will happily sit down with them. However, it seems that my counterparts at Westminster will not do this, and it remains to be seen what a future government will do.”

The Scottish Government has argued the use of section 35 showed the devolution settlement was “fundamentally flawed” because it allowed Westminster to override Holyrood.

But Murray said on Wednesday the fact that was the first use of the power in 25 years of devolution proved the Scotland Act was working.

The Scottish Greens, who are supports of the gender reforms, described Murray's stance as “utterly shameful”.

Equalities spokesperson Maggie Chapman said: “Self-identification is normal and is used in countries around the world. It is a small change in a clearly devolved area, and one that would give people the respect they deserve to live authentically as the people they are.

“The Tories chose to undermine our decision and now Labour is doing the same. It is an affront to devolution and it is actively harming the lives of trans people who have already waited far too long for the recognition that our parliament voted for.”