UK Government may seek to block Gender Reform Bill
UK ministers are considering whether to use for the first time a provision of the Scotland Act 1998 in order to prevent royal assent being given to the Gender Recognition Reform (Scotland) Bill.
The controversial measure passed its final vote in the Scottish Parliament yesterday by 86 to 39, after a marathon final stage involving two sittings until midnight and a spillover into a third day. Nine SNP MSPs voted with the Conservatives to oppose the bill, which passed with the support of Labour, Liberal Democrat and Green MSPs as well as the majority of the SNP.
It enables trans people to obtain a gender recognition certificate by a process of self identification, lowering to 16 the age from which this can be done. Women's groups have argued that this puts safe spaces for women and girls at risk due to the possibility of abuse by predatory men. Trans campaigners celebrated the bill's passing as meaning the end of a drawn out and to them degrading process of obtaining a certificate under the Gender Recognition Act of 2004.
The provision being considered by UK ministers is s 35 of the Scotland Act, which states that if a bill contains provisions which the Secretary of State has "reasonable grounds to believe would be incompatible with any international obligations or the interests of defence or national security", or "which make modifications of the law as it applies to reserved matters and which the Secretary of State has reasonable grounds to believe would have an adverse effect on the operation of the law as it applies to reserved matters," they may make an order prohibiting the Presiding Officer from submitting the bill for royal assent.
The power is in addition to the power under s 33 of the Act to refer a bill to the UK Supreme Court if it is thought to be outside the legislative competence of the Scottish Parliament, and can be exercised after the decision of the Supreme Court on such a reference, but always within a four week time limit.
UK Minister for Women and Equalities Kemi Badenoch said the Scottish Government had not addressed the implications of the bill on the lives of women and girls. She said in a statement: "The UK Government is now looking at provisions that can prompt reconsideration and allow MSPs to address these issues."
Scottish Secretary Alister Jack confirmed that the Government was looking at the ramifications for the 2010 Equality Act and other UK-wide legislation.
No order has ever been made under s 35 and it is thought that the Scottish Government would be able to challenge an order through the courts by judicial review.
A Scottish Government spokesperson said that any attempt by the UK "to undermine the democratic will of the Scottish Parliament will be vigorously contested". Scottish Social Justice Secretary Shona Robison said it would be "very disappointing if the UK Government didn't respect Scottish democracy and the decision of the Scottish Parliament".