Holyrood's Gender Bill blocked on two grounds: Jack

The Scottish Parliament’s Gender Recognition Reform Bill would have an adverse effect on two aspects of reserved UK law, Scottish Secretary Alister Jack told the House of Commons today.

Mr Jack was making a statement in the House of Commons on the UK Government’s decision to make an order under s 35 of the Scotland Act 1998 to prevent the bill from being given Royal Assent.

The Government has decided to exercise the power under s 35 for the first time since devolution to block the contentious bill, which passed Holyrood just before Christmas with a vote of 86 to 39 at its final stage. 

Section 35 applies even where a bill is within the competence of the Scottish Parliament. It allows the Secretary of State to order the Presiding Officer not to submit a bill for Royal Assent in two situations. One is that the bill makes “modifications of the law as it applies to reserved matters”, and the Secretary of State has “reasonable grounds to believe” that that would have “an adverse effect on the operation of the law as it applies to reserved matters”.

The Secretary of State said the Government’s detailed reasons would be laid before Parliament with the s 35 order, but he believed the bill would have an adverse effect on two parts of reserved UK law – the Equality Act 2010 an the Gender Recognition Act 2004 –concerning operations of single sex clubs, associations and schools, and protections like equal pay.

There would be "significant complications of having two systems" of gender recognition in the UK and the Scottish bill would enable "more fraudulent and bad faith applications".

He said he was not exercising the power as a “last resort”, nor had he taken the decision lightly. The order was not about preventing the Scottish Parliament from legislating on devolved matters: s 35 struck an important balance to ensure devolved legislation did not have an adverse impact on powers in the rest of the UK.

Dr Philippa Whitford, for the SNP, said the order was “an unprecedented attack" on the Scottish Parliament. The bill was a devolved policy area and did not impact the Equality Act. First Minister Nicola Sturgeon said ahead of the announcement that it would be an “outrage” to block the bill.

Roddy Dunlop KC, Dean of the Faculty of Advocates, has argued via Twitter however that as s 35 is part of the Scotland Act, its use showed “democracy in action”.

In a statement, Law Society of Scotland President Murray Etherington pointed out that there was scope for an order under s 35 to be challenged in the courts by judicial review.”