UK Government should stop Scottish Gender Recognition Reform Bill becoming law, report claims

A former Advocate General for Scotland has backed a report calling for the UK Government to stop the Gender Recognition Reform Bill becoming law.

MSPs passed the Gender Recognition Reform Bill after days of heated debate in the final sittings before winter recess.

Unique in the UK, it passed by 86 votes to 39 and the Westminster government has raised concerns about the cross-border impacts of the change.

Now Lord Richard Keen, who served as Advocate General from 2015-20, has said it would "not only be impractical but constitutionally improper for the UK Government to permit a devolved legislature to enact a provision that had a material impact upon the operation of the law throughout the United Kingdom".

The comment comes in the foreword of a report published today by the conservative Policy Exchange think tank which claims that the UK Government can and should use provisions under the Scotland Act to block Royal assent for the bill and prevent it from becoming law. 

Keen, who served as Lords Minister for the Ministry of Justice, says there is an "immediate concern" over the potential impact of the Scottish Government legislation on the operation of the UK-wide Equalities Act. He said: "Such concerns were voiced during the passage of the bill in the Scottish Parliament. It is therefore unfortunate that the position of the Scottish Government has remained opaque and at times contradictory."

the Scotland Act was drafted to include this power in order to deal with the precise issues raised

The legislation includes measures to simplify and speed-up the process of legally changing gender, reducing the age threshold to 16 and removing the need for a medical diagnosis of gender dysphoria in order to change the markers on legal documents.

Opponents argued that it could create problems for the provision of single-sex services for women and girls, as allowed under the Equality Act, and present safeguarding risks.

However, the legislation makes false declaration an offence and supporters said there is a lack of evidence of such issues in countries which have already enacted gender recognition reforms.

Policy Exchange claims the new regulations will "fundamentally alter the law relating to equal opportunities across the United Kingdom" and the bill is "arguably beyond the powers" of the Scottish Parliament.

Written by Glasgow University lecturer Dr Michael Foran, a senior fellow at Policy Exchange, it says it would be "sensible" for the UK Government to enact section 35 of the Scotland Act to block the bill's enactment.

It states that this "might seem like it is an extreme measure, given that one has never been made before" but "the Scotland Act was drafted to include this power in order to deal with the precise issues raised" by the bill.

any attempt to undermine the democratic will of the Scottish Parliament will be vigorously contested

The report says: "It is not an outright veto power, it merely prevents the bill, it merely prevents the bill from receiving royal assent and in practice this opens a dialogue between the two governments to ensure that a revised version of the bill will not affect the operation of the law relating to reserved matters in a manner unacceptable to the UK Government.

"Given the degree of uncertainty currently within this area and the significance of the implications for equality related issues, that is a sensible course of action to take."

The Scottish Government has said the bill is "within legislative competence and was backed by an overwhelming majority, with support from all parties", saying that “any attempt to undermine the democratic will of the Scottish Parliament will be vigorously contested".

The UK Government has said it is "considering our next steps" and the ramifications for UK-wide legislation, but "no decision has been made on a course of action at this time".