SCOTTISH TRANS RIGHTS AND THE FUTURE OF THE UNION
Joshua Rosenberg KC is one of the leading legal affairs journalists and his sub- stack articles are usually worth reading from a lawyer’s point of view. However like many practicing lawyers he is quite a literalist about legal issues and does not seem to be able to give much insight into the political moods behind the process of legislation. He has however written an interesting article which does set out the mechanics of the situation very well. For those who do not get his sub-stack here is the text:-
“Scottish gender recognition: who decides?
Members of the Scottish parliament voted by 86 votes to 39 on 22 December to approve the Gender Recognition Reform (Scotland) Bill. That completed what the parliament calls stage three of its legislative journey, the equivalent of a third reading at Westminster. But the bill needs royal assent before it can become law.
Members of the Scottish parliament applaud the vote on 22c December
The Scottish bill would amend the Gender Recognition Act 2004 as it applies in Scotland. By removing the need for a diagnosis of gender dysphoria, the bill would make it easier for trans people who were born in Scotland or who live there to obtain a gender recognition certificate. It also lowers the minimum age for applicants to 16 and reduces the time required for the applicant to live in an acquired gender from two years to three months — or six months for those aged 16 and 17. There is also a three-month reflection period.
A section 35 order?
However, the UK government may try to stop the bill becoming law. Alister Jack, the secretary of state for Scotland, said on 22 December:
We share the concerns that many people have regarding certain aspects of this bill and, in particular, the safety issues for women and children.
We will look closely at that, and also the ramifications for the Equality Act 2010 and other UK-wide legislation, in the coming weeks — up to and including a section 35 order stopping the bill going for royal assent if necessary.
Before looking at section 35 of the Scotland Act 1998, it’s helpful to consider the history of this provision.
The Royal Commission on the Constitution, which reported in 1973, envisaged that UK ministers would retain a power to block legislation passed by a devolved administration:
However unlikely this may be, circumstances could arise in which a veto would have to be considered, whether to ensure compliance with international obligations, or to safeguard some other essential British interest, or to prevent adoption of policies considered to be inconsistent with the maintenance of the essential political and economic unity of the UK.¹
That approach was followed by the Labour government when it introduced devolution legislation in 1998.
Sections 28 to 33 of the Scotland Act 1998 deal with the powers of the Scottish parliament and rulings that may be given by the UK Supreme Court on its legislative competence. The Scottish parliament cannot legislate on matters that were reserved to the UK parliament under the devolution settlement.
However, as the UK government explained in explanatory notes at the time the Scotland Act was passed, there are certain limited circumstances where the UK government can exercise a policy control or veto over what legislation is enacted by the Scottish parliament, even although it is within its competence.²
[Section 35] defines what those circumstances are.
The thinking behind section 35
To understand the thinking behind section 35, it’s a good idea to look at the parliamentary debates on what became the Scotland Act.
In the Commons on 12 May 1998 (at column 267), the then secretary of state for Scotland Donald Dewar said:
We have a situation in which there is a division of responsibility as between reserved and devolved powers. If one takes a simplistic view, one might say that the writ of the Scottish parliament runs in devolved areas and that there will be reserved areas with which the Scottish parliament cannot meddle and where its writ does not run…
However, the world of politics and of legislation is not as neatly divided as that — there are no exact demarcations or neat barriers that cannot be crossed — so legislation in a devolved area of responsibility will often have implications for reserved areas and reserved functions…
Almost any legislation in Scots private law could have an impact on reserved powers, Dewar suggested. Without further protection, it would be too easy to challenge acts of the Scottish parliament.
I was not prepared to take the rather narrow view that, if there were a reaction, that legislation would probably be called incompetent or would be open to challenge. We therefore sought a balanced way to ensure that the competence of the parliament — its range of responsibilities — would be exercisable and at the same time would not give rise to abuse.
We have struck an important balance in the clause. The secretary of state will have recourse to the power, but it will be subject to a number of important safeguards. The first is that he or she must believe that there would be an adverse effect on the operation of an enactment as it applied to reserved matters. Secondly, the reasonableness test is built in. There is also the important safeguard that if the power is to be used, a majority in this house must be in favour, and that would not be given lightly.
An important safeguard… is that the decision would be open to judicial review. In my view, it would be open to judicial review in the Scottish courts. The courts would have to consider the adverse effects of such an order and apply the reasonableness test…
I stress that the process of government is a process of negotiation and discussion; it is a matter of bilaterals and discussions at an official level… Common sense dictates, consensus emerges and agreement is reached 999 times out of 1,000.
Later, Dewar confirmed:
The judicial review would be taken in the Court of Session in Scotland. It would be a challenge from Scotland and would be dealt with by the Scottish courts.
The bill was amended before it was debated in the House of Lords on 28 July 1998. Lord Sewel, for the government, explained (at column 1391) what the provision would do:
While, for the Scottish parliament to have a workable legislative competence, its legislation for devolved purposes needs to be able to have ancillary effects upon reserved matters, the government recognise that there need to be safeguards in cases where acts of the Scottish parliament could have adverse effects on the law as it applies to reserved matters. For example, legislation about housing or local taxation could possibly have an impact on the operation of social security legislation.
Clause 33 [which became section 35] therefore empowers the secretary of state, by order, to prevent a Scottish bill from being submitted for royal assent in certain circumstances…
These powers of intervention are of course meant to be long stops. Their use would require to be justified and would be liable to be scrutinised by judicial review. The amendments establish a series of tests which limit the extent to which legislation by the Scottish parliament can affect reserved matters. But the powers of intervention provide essential balance to ensure that there is a sensible outcome in relation to reserved matters.
Their existence should be sufficient to ensure consultation between Whitehall and Edinburgh so that there may be no need for them to be used. But there should be no doubt that this government will be willing to use the powers of intervention if it became necessary.
What section 35 says
Alister Jack’s reference to a section 35 order clearly envisages an order under subsection (1)(b): he is suggesting he reasonably believes the bill “would have an adverse effect on the operation of the law as it applies to reserved matters”.
The UK government is understood to be concerned about the potential impact of people with gender recognition certificates moving from Scotland to other parts of the UK, where where applicants for a gender recognition certificate must be 18 or over and have had a diagnosis of gender dysphoria. Jack also appears to be arguing that the bill might breach the Equality Act, which is a reserved matter.
The Scottish government’s justice secretary, Shona Robison, said “the legislation makes no change to the reserved Equality Act 2010 and that principle is enshrined in the bill”.
However, Kemi Badenoch, the UK government’s minister for women and equalities, took a different position:
What next?
It’s clear that the UK government wants the Scottish government to think again. It’s equally clear that the Scottish government is unwilling to do so. So we are facing, for the first time, what ministers believed in 1998 would be a rare occurrence. A more recent Cabinet Office memorandum of understanding confirms that the power to prevent a bill from becoming law is seen “very much as a matter of last resort”:
The UK government and the administration concerned will therefore aim to resolve any difficulties through discussion so as to avoid any action or omission by the devolved administration having an adverse impact on non-devolved matters.
We see from subsection (3) of section 35 that a secretary of state has four weeks from 22 December to decide whether to make an order. Any order would be subject to the negative resolution procedure in parliament.
As Dewar confirmed in 1998, an order made under section 35 can be challenged in the Scottish courts. We can expect the Scottish government and the UK government to disagree over whether the bill would have an adverse effect on reserved matters.
Any section 35 order would remain in force — and Scotland’s gender recognition legislation would remain on hold — unless and until the order is overturned by the courts. Regardless of who won the earlier rounds, you would expect a challenge brought by the Scottish government against the UK government to end up in the UK Supreme Court.
Is there another option?
Section 33 of the Scotland Act allows the UK government — acting through the attorney general or the advocate general for Scotland — to “refer the question of whether a bill or any provision of a bill would be within the legislative competence of the parliament to the Supreme Court for decision”. There is a four-week deadline.
Subsection (3)(c) of section 35 extends the normal deadline if a bill is referred to the Supreme Court under section 33 of the act. The secretary of state has four weeks after the court has delivered its ruling to make an order under section 35.
Since section 33 is mentioned within section 35, parliament must have envisaged a reference to the Supreme Court in the case of a bill that the secretary of state reasonably thinks would have an adverse effect on reserved matters.
So it looks as if the UK government could refer the issue to the Supreme Court instead of making an order under section 35 and waiting for it to be challenged by the Scottish government. Section 32 of the act says the presiding officer must not submit a bill for royal assent until all this has been sorted out.
On the other hand, section 33 is intended to deal with disputes over whether a bill is within legislative competence. The UK government would find it difficult to deny that the Scottish parliament has the competence to pass the gender recognition bill. The dispute is over whether that bill would have an adverse effect on other laws.
That may not be the sort of dispute that section 33 was intended for. On the other hand, the Supreme Court took a very pragmatic approach to its devolution jurisdiction last month when considering the Scottish government’s proposed independence referendum.
If the UK government can choose between being taken to the Court of Session by the Scottish government and referring the gender recognition bill to the Supreme Court itself, which should it prefer?
Obviously, it would be quicker to go straight to the Supreme Court. On the other hand, the UK government may be in no hurry to resolve the issue. The Scottish government would no doubt prefer the question to be considered by the Court of Session.
What would happen to the bill?
If the Supreme Court decides that the gender recognition bill would not be within legislative competence of the Scottish parliament — or if an order is made by the secretary of state under section 35 — section 36(4A) of the Scotland Act provides for the parliamentary proceedings to be re-opened and the bill to be amended.
But then the UK government could start the whole process again.
Statutory construction is difficult at the best of times and this is uncharted territory. I will be happy to update this piece further if I have got anything wrong.
1
Report of the Royal Commission on the Constitution 1969–1973 (the Kilbrandon report 1973), Cmnd 5460, para 765.
2
Emphasis added”
As a solicitor experienced in dealing with Judicial Review cases that article, I think, makes clear that there is a real risk attached to challenging this legislation by the “Conservative” Government. There is a likelihood of the challenge failing and therefore the legislation being upheld by the Supreme Court as being within the powers of the Scottish Parliament.
That leads to a conundrum for the “Conservative” Government. If they do not challenge it, they will look weak; If they do challenge it and loose the case it will damage their credibility and also further damage the Union.
If the legislation is not upheld then Nicola Sturgeon has a clear argument that the UK constitutional structure interferes with Scottish independence of action.
A further interesting development is that Sir Kier Starmer, the Labour Leader, has now come out in favour of extending Nicola Sturgeon’s “Trans” rights throughout the UK.
I am sure in ideological terms this is opportunistic. It is howeveralso worth considering what impact his approach has on bridge building with the SNP. Starmer is probably calculating that, after the next General Election; in January 2025, Labour may well be the largest party in the Westminster Parliament without having an overall majority and will therefore need to have the support of the SNP to get Starmer into Downing Street!
You may ask whether that has any impact on the future of the Union. I would reply by asking what the electoral politics were behind the passage of the Home Rule Bill for Ireland before the First World War? The answer is that the Liberals needed the support of the Irish Nationalists in order to retain power and the price of that support was Home Rule!
