Meeting of the Parliament

Meeting date: Tuesday, January 17, 2023

Official Report 944KB pdf

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Urgent Question

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Gender Recognition Reform (Scotland) Bill

To ask the Scottish Government what its response is to the Secretary of State for Scotland making an order under section 35 of the Scotland Act 1998, preventing the Scottish Parliament’s Gender Recognition Reform (Scotland) Bill from proceeding to royal assent.

The decision by the United Kingdom Government to make an order under section 35 of the Scotland Act 1998 preventing the Gender Recognition Reform (Scotland) Bill, which was passed with an overwhelming majority, from proceeding to royal assent is a dark day for trans rights and for democracy.

I question why the UK Government has chosen for the very first time to use a section 35 order, against the clear will of this Parliament, on an issue that is within this Parliament’s competence rather than, for example, a section 33 order, if there were issues with reference to reserved matters. I also question what the implications are for the future legislation of this Parliament.

The secretary of state has said that he wants to find a constructive way forward. The UK Government had multiple opportunities to provide constructive comments during the extensive consultation on the bill and during its passage, but it did not do so. It does not agree with the bill, so it has blocked it. The decision that it has taken is political. This is a sad day for democracy and for devolution.

However, I want to be very clear to all trans people—who, I know, will be incredibly upset by this decision—that this Government will seek to uphold the democratic will of this Parliament.

As the statement of reasons was made available only just over an hour ago, we will now take time to consider it fully, and I will return to the Parliament to update members on the next steps.

The cabinet secretary is correct in saying that the Scottish Parliament passed the GRR bill by a significant majority, and we did so because we believe that trans people should be able to live, work and die with dignity. That is what the bill is about. It is about dignity, fairness and equality for a marginalised group of trans citizens.

The secretary of state may hide behind legal advice, but the truth is that the Tories at Westminster have proven that they are no friends to trans people—and, as they are the architects of the rape clause, we know that they are no friends to women and girls. Does the cabinet secretary agree that this is a cynical and dangerous power move by an out-of-control UK Government that is determined to wreck the bill at any cost?

Yes, I would agree with that. The strength of the legislation is in the fact that it had support from members of all parties, who came together to provide support and improve the bill through the amendments that were made at stages 2 and 3.

I fear the truth is that, whether the Parliament had passed the legislation in December, this month or in February, we would always have ended up here, with a section 35 order, because the United Kingdom does not like or want the bill and it will do everything to block it. However, I want to be clear that we will do everything that we can to uphold the democratic will of this Parliament, and I hope that those who supported the bill will work together with us to achieve that.

I am pleased that, in her original response, the cabinet secretary set out that trans people are at the centre of this. They need our support and friendship at this time.

We are seeing political reaction across the UK. Our Labour colleague and the First Minister of Wales, Mark Drakeford, rightly said today that this is a “dangerous” situation. He said that it could be a “slippery slope” in terms of devolution. Many of us are concerned that the UK Government, which is a bad actor in this process, could strike again on other legislation that we seek to pass. This is a direct attack on not only self-identification for trans people but Scottish devolution.

What discussions can the Scottish Government have with the UK Government and other Governments to defend our democracy, devolution in Scotland and people’s human rights?

Monica Lennon is right to point out that at the centre of this is one of the most marginalised groups in society. The bill was designed to make their lives that bit better—that was all.

It is quite telling that Mark Drakeford has made those comments about the danger of this step and the slippery slope that it could lead to, because, whether it is in the setting aside of the Sewel convention or other attacks on devolution and the powers of this Parliament and that of Wales, a pattern of behaviour is clearly there for all to see. When we hear the Secretary of State for Scotland put forward the defence that we cannot have divergent systems in the UK, that rather questions the other divergent systems that are put in place to make the lives of people in Scotland better. It is very much a slippery slope.

As for working with others, I absolutely want us not only to work together across this Parliament but to reach out. We work with Mark Drakeford and the Welsh Government on a number of issues, and I would be pleased to work with him on this—and, indeed, with members of the UK Parliament, where some very probing questions were asked on what was a very thin statement with a very late, rushed-out statement of reasons. We want to work with all those who want to uphold democracy and, importantly, improve the rights of transgender people.

There are many requests to speak, and I would like to get through as many questions as possible. Concise questions and responses would be helpful in that regard.

The Gender Recognition Reform (Scotland) Bill was passed overwhelmingly by this Parliament, with a two-thirds majority. It had the support of members from all parties, and it was passed after months of extensive scrutiny.

Six years ago, when the bill process started, all parties agreed that reform of the Gender Recognition Act 2004 was needed, as did the UK Government until a couple of months ago. At the Equalities, Human Rights and Civil Justice Committee, we heard lots of evidence, but we did not hear from the UK Government regarding its views on the bill or what changes it wanted. Did the cabinet secretary?

To be clear, the UK Government at no point raised its concerns with me until a reply was finally received months after my letter of October last year, when I wrote to the UK Government seeking further discussions on cross-border issues. In reply to my letter, a meeting was finally established with Kemi Badenoch on the day before stage 3. At that meeting, no mention was made of a section 33 order or a section 35 order being considered. Those are the facts. Parliament will judge for itself whether the UK Government has made any efforts to be constructive around the bill.

The Secretary of State for Scotland has acted on legal advice taken on the cross-border implications of the Gender Recognition Reform (Scotland) Bill. Legal experts arrived at the conclusion that the bill would have consequences for the operation of UK-wide equalities protections. That is a reserved matter that falls outside this Parliament’s devolved competence. We have also heard Monica Lennon’s Labour counterparts at Westminster agreeing with the Secretary of State for Scotland.

However, the secretary of state has recognised that the intention of the bill is to respect, support and understand the needs of transgender people who are going through the process of changing their legal sex, and he has offered to work with the Scottish Government to create a bill that is legally competent and that falls within the devolved powers of the Scottish Parliament. Will the cabinet secretary accept—[Interruption.]

Let us hear Ms Hamilton. Ms Hamilton, I could not hear your question and I would be grateful if you would repeat it.

Will the cabinet secretary accept the secretary of state’s offer to work with him?

It would have been better if the secretary of state had made contact at the start of the process instead of through a section 35 order.

As I said this morning, I am always up for discussions with the secretary of state or anyone else. However, I thought that it was quite telling that, in answer to one of the questions during his statement, the secretary of state said that there cannot be

“two different gender recognition regimes in the UK.”

I am struggling to understand what amendments would need to be made to the bill and what amendments would be “allowed” to the bill in order to avoid having two different regimes for gender recognition. Does that mean that, in essence, we just have to revert to the 2004 process? The secretary of state was unable to answer any of the questions from across the chamber asking for specifics on what amendments would be required. I am all up for discussion, but the onus is on the secretary of state to make his position clear and explain what he means by that.

Let me be clear: I am proud of reform and the work that many of us across the chamber did on the Gender Recognition Reform (Scotland) Bill. I continue to support the bill and hope that it gets royal assent as soon as possible, because at the heart of this is trans people’s lives.

In response to a letter that I sent, raising concerns about potential cross-border issues, the cabinet secretary confirmed that the Scottish Government had committed to working with the UK Government on a section 104 order. Can the cabinet secretary give Parliament an update on those discussions? Does she admit that the Scottish Government knew that there could be potential cross-border issues with the bill prior to stage 3 although she reassured Opposition parties that that was in hand?

First, I say to Pam Duncan-Glancy that it is important that we come together over this issue. We must work together to ensure that the bill that all of us passed collectively and worked together to amend is the one that is finally enacted.

With reference to the section 104 order, every piece of legislation has cross-border issues, and ensuring that those are resolved often involves the making of such an order. Officials have been talking to their counterparts in the UK Government about such issues for many months. However, despite all that work having gone on, behind the scenes there were obviously plans afoot for a section 35 order.

Let us therefore put the blame where it lies. We passed the bill in good faith, in order to improve the lives of trans people. I do not think that that is the motivation of the UK Government here. Let us work together to ensure that the expectation that the legislation will be enacted is met.

The cabinet secretary will share my confusion at Rachael Hamilton’s line of questioning, given that the reasoning published this afternoon suggests that no amendment to the bill would satisfy the UK Government’s concerns and that no divergence in the process for obtaining a gender recognition certificate would ever be legally competent, yet Conservative members of the Scottish Parliament were still offered a free vote on the bill.

Throughout the process, Conservative members in both Parliaments have said that the bill is a danger and is riddled with holes, yet their spokespersons on health and justice and their respected former leader Jackson Carlaw all voted in favour of the bill. Does the cabinet secretary agree that the allowing of a free vote and the division among Conservative members suggest that those legal arguments do not carry any weight at all and that a swift application for judicial review in the UK Supreme Court would demonstrate that, offer reassurance to the general public and deliver much-needed reforms for our trans constituents?

Yes, I agree. Alex Cole-Hamilton is right to suggest that it is a false idea to suggest that simple amendments could be lodged whereby, if we simply amended the bill around the fringes, it would be acceptable to the UK Government. None of the statements made today by the secretary of state gives me any confidence in that whatsoever. Whether we call it a smokescreen, a fig leaf or anything else, the UK Government has no intention of allowing the bill to proceed. That leaves us with no option but to take the action that we need to take to ensure that that will happen.

Alex Cole-Hamilton made the important point that the bill was supported by members of all parties in the chamber. I pay tribute to the Conservative members who voted for the bill, because I am sure that they did so against much pushback from the powers that be in the Conservative Party.

Let us go forward on the basis that this Parliament has spoken and has made its position very clear. We now need to work together to ensure that we can enact legislation that, as I have said, will, for a small number of people, make an important difference to their lives.

That the UK Government has chosen an equalities issue on which to use its section 35 powers for the first time speaks volumes. The Scottish Government has—rightly, in my view—said that no nuclear energy power will be developed here, and the UK Government has confirmed that it would not impose nuclear reactors on Scotland. Energy is a reserved matter. The Scottish decision on that issue has an impact on the energy market of the whole of the UK.

It is interesting, therefore, that it is an equalities issue that the UK Government uses to attack the Scottish Parliament’s powers. Does the cabinet secretary believe that that is part of a cynical and despicable culture war on trans people and other minorities? What will it mean for other equalities and human rights issues in Scotland?

A number of MPs from across the chamber at Westminster made that very point: the UK Government is in its death throes and is looking to distract people’s attention from some of the serious issues that it faces, and the culture war is a convenient way of doing that. That is what others have said, and there is a lot of evidence to support that contention.

Maggie Chapman also makes an important point about a pattern of behaviour. We are seeing increasingly draconian behaviour from the UK Government on this issue, in undermining the right of people to take strike action and in threatening to roll back on human rights protections. There is a pattern of behaviour of attacking people’s fundamental rights. We need to be really clear that this is the thin end of the wedge in relation to the powers of the Scottish Parliament. We need to stand united to push back on any attempt to undermine the powers of the Parliament and devolution.

According to the list on the UK Government website, as of 21 December 2022, there were 41 countries from which the UK does not require medical reports in relation to applications for gender recognition in the UK. I presume that that does not impact on the Equality Act 2010. Can the cabinet secretary advise members why breaching the Equality Act 2010 applies only when the Scottish Parliament, by an overwhelming cross-party majority, merely does what many other countries have done, or will the UK Government’s position result in the UK removing 41 countries from that list?

Christine Grahame makes a good point, which is that, for years now, the UK Government has recognised gender recognition certificates from countries that have a similar system to the one that we were seeking to introduce. That speaks volumes. We have not seen any evidence that that approach has caused any difficulties in the United Kingdom. Indeed, the processes used in the self-declaration systems in so many other countries show that there is no evidence of any of the harms that have been alluded to by the UK Government.

I refer to my entry in the register of members’ interests: I am an advocate.

Prior to the passing of the bill, many people—most notably, the Equality and Human Rights Commission—raised with the Scottish Government the specific issue of the bill’s cross-border implications and the impact on UK equality law. Did the Scottish Government obtain legal advice on those particular matters and, if so, was that advice followed?

We have taken legal advice on various aspects of the bill throughout its passage. Let me say two things about that. I have already said in response to Pam Duncan-Glancy that we accepted that, as with many pieces of legislation, there would be some practical issues that would need to be resolved and that a section 104 order would be the settled way of doing that. Officials had been working in good faith—I think—to make that happen.

The Equality and Human Rights Commission has given its views on several aspects of the bill. I point out that it was the Equality and Human Rights Commission that was the biggest advocate for the proposed change to the process—it actively lobbied all parties in advance of the 2021 Scottish Parliament election to make the reform of gender recognition a top priority for parties. We are delivering on that request from the EHRC.

The move by the UK Government is as cruel as its reasons are flimsy. It weaponises the lives of trans people as part of a culture war on equalities. As many others have said, there are real people at the heart of this.

Can the cabinet secretary outline what we can do to ensure that trans people do not face further hate and prejudice? Will she meet me and colleagues to discuss what additional support we can provide for trans people in the light of the increasing bigotry that they face?

Gillian Mackay makes an important point. The work that Christina McKelvie has been leading on tackling hate crime is very important in that regard, because we know that hate crime towards the trans community has been increasing, which is partly down to some of the public and media discourse around these issues. I do not think that that has helped at all.

The trans community is one of the most marginalised groups in society, and it is important that we reassure trans people that we will collectively fight for this piece of legislation, and that we will work together to do that.

As the cabinet secretary knows, I was opposed to the bill and remain opposed to it. However, a democratic decision has been made by the Parliament, so does she agree that Westminster is, in effect, telling Scotland that we are second rate and should get back in our box?

John Mason makes an important point. I have seen a lot of commentary from people who are not in favour of the bill and have made that position clear but who are in favour of Scottish democracy and the right of the Parliament to decide. The Parliament was not established on the basis of only being able to legislate if one happened to agree with the legislation. People from all parties who have been elected to the Parliament come to conclusions about proposed legislation, and whether or not we agree with every aspect of it, once a decision is made, the democratic decision of the Parliament should be respected. That is why it is so important that we draw a line and say to the UK Government, “This far and no further.”

The First Minister told the BBC that the Scottish Government will inevitably end up in court over the Gender Recognition Reform (Scotland) Bill and that it will vigorously defend the legislation. If the matter ends up in court, will the cabinet secretary commit to respecting the court’s decision, regardless of the outcome?

Perhaps the member and the UK Government should have respected the decision of this Parliament. That is where respect starts.

We will vigorously defend the legislation and our democratic process—of course we will; it would be a democratic outrage not to. Perhaps there are questions for Tory members about the position that they find themselves in, because they are being told to have warm words about amending the bill and bringing it back, but the reality of what Alister Jack said in his statement to the Westminster Parliament makes it clear that that could not be on the cards, because there could not be two different systems of gender recognition in the UK. That is a very cynical approach and, as I said earlier, it is a fig leaf and entirely disingenuous.

Given that we saw the section 35 order details only this afternoon, I will come back to Parliament with our next steps in due course. I am happy to meet Opposition members who support the legislation and to work together with them to ensure that the democratic will of the Parliament prevails.

That concludes the urgent question.