Meeting of the Parliament

Meeting date: Wednesday, April 19, 2023

Official Report 1049KB pdf

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Gender Recognition Reform (Scotland) Bill: Section 35 Order

The next item of business is a statement by Shirley-Anne Somerville on challenge to the United Kingdom Government’s section 35 order on the Gender Recognition Reform (Scotland) Bill. The cabinet secretary will take questions at the end of her statement, so there should be no interventions or interruptions.

14:54  

The Parliament has already been informed of the petition that was lodged by Scottish ministers last Thursday for judicial review of the Secretary of State for Scotland’s decision to make an order under section 35 of the Scotland Act 1998 preventing the Gender Recognition Reform (Scotland) Bill from proceeding to royal assent.

I must make it clear that, as always with live legal proceedings, there are strict limits on what I can say, and I must not enter into the substance of our petition or the UK Government’s statement of reasons. I am sure that members will understand that restriction. However, I wanted to make this statement to explain the decision as fully as possible to Parliament.

We have not taken this decision lightly—we have considered it carefully, and it was clear to us in our deliberations that allowing the UK Government’s veto on the democratic decisions of this Parliament to go unchallenged would undermine our democracy. Equally, the veto was used with no prior discussion or warning, and without ever hearing from the UK Government about what amendments it would have wanted in the bill. That cannot go unchallenged, because of the implications for future legislation and for devolution, particularly as the secretary of state refused our offers to work on potential changes to the bill.

I can confirm that, to this day, the UK Government has not offered up a single area for amendment that would satisfy it in relation to the issue of gender recognition reform. Therefore, if we want to take a stand and protect our democracy and devolution, there is no option but to pursue a legal challenge.

The Scotland Act 1998, which established devolution, included section 35, which allows the secretary of state to make an order prohibiting the Presiding Officer from submitting a bill for royal assent, even though that bill is within this Parliament’s legislative competence. The intention behind how the powers should operate was made clear in comments by the UK Government minister Lord Sewel in July 1998, when he said:

“These powers of intervention are of course meant to be long stops ... Their existence should be sufficient to ensure consultation between Whitehall and Edinburgh so that there may be no need for them to be used.”—[Official Report, House of Lords, 28 July 1998; Vol 592, c 1392.]

There were concerns at the time that powers under the 1998 act could amount to a veto on devolved legislation. There was discussion of the need for controls on how the powers might be used, and of the fact that they could be used as a political tool. Indeed, the clause was dubbed the “governor general clause” and was described by Conservative MP Michael Ancram as having

“a power to bring the actions of the Scottish Parliament to a halt.”—[Official Report, House of Commons, 12 May 1998; Vol 312, c 265.]

The need for some control around the use of Scotland Act 1998 powers is reflected in the memorandum of understanding between the UK Government and devolved Administrations. Updated in 2013, the memorandum clearly states that, although the legislation contains powers for the secretary of state to intervene in devolved matters, these powers should be used

“very much as a ... last resort.”

In fact, the UK Government’s unprecedented use of section 35 was the very opposite of a last resort.

The memorandum goes on to state:

“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. If formal intervention should become necessary, the UK Government will whenever practicable inform the devolved administration of its intentions in sufficient time to enable that administration to make any representations it wishes, or take any remedial action.”

There were no such representations from the UK Government. There were no representations made in the consultations of 2017 and 2019, when, of course, the UK Government planned to make similar reforms. There were no representations throughout the nine-month passage of the bill. The UK Government took no steps to resolve its concerns and did not raise the possibility of a section 35 order with us.

The Scottish Government has been proposing gender recognition reform since 2016, to bring the law into line with international best practice. We held two public consultations, including on a full draft bill and impact assessments. With over 30,000 responses combined, that was some of the widest consultation ever undertaken on Scottish legislation. The UK Government made no response and did not provide a view.

In fact, the UK Government proposed similar reforms and, in its 2018 consultation, explicitly recognised that Scotland could take its own approach, stating:

“Gender recognition is devolved to Scotland. That means Scotland can have its own system for gender recognition if it wants to.”

The UK Government undertook to work closely with the Scottish Government on the implementation of the Scottish proposals,

“especially on the implementation of its proposals where powers are not devolved”,

and on

“mutual recognition of certificates issued in different parts of the UK across the UK.”

Although the UK Government subsequently dropped its proposed reforms, the joint work on implementation went ahead. At official level, there were fortnightly meetings between UK and Scottish officials as the bill progressed through Parliament, including early work on a section 104 order, which is the usual method for resolving impacts between devolved and reserved law.

Far from raising concerns, the UK Government explicitly endorsed Scotland’s ability to take forward reforms and otherwise made no comment. The UK Government gave no response to the Equalities, Human Rights and Civil Justice Committee’s call for evidence, and there was no ministerial contact until the UK Minister for Women and Equalities responded to a letter sent in October by my predecessor as social justice secretary, Shona Robison, which led to a meeting the day before stage 3 of the bill. Cross-border effects were discussed at that meeting, but no changes were requested by the UK Government, and there was no mention of consideration of a section 35 order.

The Secretary of State for Scotland’s first contact on the bill was a letter on the night of 16 January informing us that he would be laying a section 35 order the next day. The UK Government did not allocate debating time for a House of Commons motion seeking to annul the order, so rather than raising concerns or amendments through the normal Government channels and rather than following the memorandum of understanding, the secretary of state used the section 35 power exactly as even Conservative MPs feared would happen at the time of the 1998 act—as an absolute veto to strike down any devolved legislation passed by a majority of this Parliament that he dislikes, without discussion and based on political, not policy, judgment.

Immediately after receiving Mr Jack’s letter in January, Shona Robison offered a meeting with the secretary of state and a potential way forward: the Scottish Government would work with the UK Government at both ministerial and official levels to explore potential amendments to the bill. The secretary of state absolutely refused that offer, stating that there would be no further meetings between the Governments on the issue. He set out three options for the Scottish Government: we could drop the bill, which was passed by a majority of this Parliament, altogether; we could address his concerns in an amended bill, but he did not say which areas would need to be amended to allow the section 35 order to be dropped; or we could pursue legal action.

The UK Government’s statement of reasons does not provide a basis for amending the bill, and Mr Jack, in direct contradiction to the position in the UK consultation, has stated that any divergence of approach in Scotland would be unacceptable. He has said:

“In short, two different regimes create adverse effects.”—[Official Report, House of Commons, 17 January 2023; Vol 726, c 218.]

It has therefore proved impossible to find a way forward or to consider a form of amended bill that this Parliament would agree to and that would lead the secretary of state to revoke the order.

The Scottish Government remains committed to the bill, as amended and agreed by a majority in this Parliament, which would make it easier for trans people to live their lives and access their existing rights. More than 350 million people around the world already live in countries and regions with the type of system that is proposed in the bill.

Irrespective of people’s views on the bill—I recognise that some remain firmly opposed to it—challenging the UK Government’s use of section 35 is the only option for a Government that wants to uphold and defend the democratic will and devolved powers of this Parliament. To not challenge the order would mean accepting that the secretary of state can ultimately strike down any devolved legislation, even after full and detailed scrutiny by Parliament and after MSPs have amended, debated and voted on a bill. If, after all that, one person can simply decide that a bill should not proceed, without that decision being questioned, it sets a precedent that calls into question devolution itself.

If the UK Government can use that power once without being challenged, how long will it be before it uses it again? As we have seen with the Sewel convention, once a precedent has been set, the UK Government will find it easier to justify using a power again and again, gradually eroding the hard-won devolved powers of Scotland.

I know that, although the bill was passed by an overwhelming majority of members, not all MSPs and not all of the wider Scottish public agree with the bill’s aims, but I hope that we can agree that the unprecedented intervention of the Secretary of State for Scotland to halt a bill on devolved issues that has already been passed by this Parliament must be challenged. That is why the Scottish ministers have lodged the petition for judicial review. We will fight to defend the devolved competence and democratic function of this Parliament, and it is right that we do so.

The cabinet secretary will now take questions on the issues raised in her statement. I intend to allow about 20 minutes for questions, after which we will need to move on to the next item of business.

I refer members to my entry in the register of members’ interests, which shows that I am an advocate. I thank the cabinet secretary for early sight of her statement.

It is, of course, deeply disappointing that the Scottish Government has chosen to challenge the section 35 order in the courts. It is plainly doing so now to divert attention from the serious crisis that is currently engulfing the Scottish National Party.

A lengthy and expensive litigation is the wrong choice for the bill and for all those whom it impacts. It does not benefit the trans community, it does not benefit women, and it does not benefit the Scottish taxpayer.

Lord Hope, who is one of Scotland’s most eminent judges and a former deputy president of the UK Supreme Court, has described the prospects of success in the case as “very low” and has implied that it is a waste of public money.

We should remember that the Scottish Government was warned of the impact of the bill on the Equality Act 2010 during the bill’s passage, yet it ploughed on regardless. Furthermore, despite the UK Government publishing its very detailed statement of reasons behind its decision to make the order, we are yet to see the details of the Scottish Government’s legal position. I am fully aware of the restrictions that apply here, but if it is in the public interest for the Scottish Government to challenge the section 35 order, it logically follows that it is also in the public interest for the Scottish Government to publish its legal advice.

My questions are specific. Will the cabinet secretary confirm whether the Lord Advocate has tendered legal advice on the prospects of success in the judicial review? Will she now publish that advice, and will she advise Parliament on the estimated cost of the litigation if it is appealed all the way to the Supreme Court?

As the member well knows, there is a convention of not publishing legal advice, and the UK Government will take exactly the same position as it moves forward with the matter. I highly doubt that Donald Cameron will be suggesting that the UK Government publish its legal advice. Let us have a debate about what we can and cannot do on a realistic basis.

We are very keen to be as transparent as possible on the matter, which is exactly why we have asked for the court’s agreement to publish the petition. We have recently received an agreement that we can do so, and we hope to publish the petition in due course—tomorrow, I hope, now that that confirmation from the court has been received.

Nevertheless, I again strongly caution against any suggestion that we are doing this out of a desire to take this route as our first course of action. We have no option—as I detailed in my statement, the alternatives that we had were closed down to us not through our decisions, but by the UK Government. Neither I nor the Scottish Government wanted to get into that position, but if the UK Government is going to refuse to have discussions with us, I make no apology for standing up for the rights of the Scottish Parliament and for a bill that the Scottish Parliament has passed.

When it comes to the cost, I appreciate that that is a matter of concern for members and, indeed, for the public. This is not the way that we would have wanted to go about things, and therefore we did not want this cost to be incurred. However, we will, of course, publish the costs for the action once it is completed. It is impossible for us to be able to do so beforehand because we do not know how the matter will proceed in the courts. However, once it has gone through due process, we will, of course, be very transparent and publish the costs regarding this issue.

I thank the cabinet secretary for advance sight of her statement and for outlining to Parliament the decisions that were taken during the recess.

It is critical that we do not lose sight of the purpose of reform, and every day that the bill spends in court is another day in which trans people do not have access to a reformed process.

The UK Government’s use of a section 35 order was the wrong approach. As the cabinet secretary said, it is a mechanism to be used as a last resort. The issue is too serious and too important to be reduced simply to a political debate or a constitutional football.

The cabinet secretary mentioned the section 104 meetings between the UK Government and the Scottish Government, which were held in relation to the UK Government’s 2018 proposals. In response to the letter that was sent by my predecessor in the role of Scottish Labour spokesperson, Pam Duncan-Glancy, the former Cabinet Secretary for Social Justice, Housing and Local Government confirmed that the Scottish Government had committed to working with the UK Government under section 104 in relation to the bill. Can the cabinet secretary outline the detail and outcome of those discussions? We asked for that confirmation throughout the bill process, and it was confirmed that that was in hand.

Moreover, given the length of time that the case is likely to take, as has been widely reported, will the cabinet secretary give an outline guide to the Parliament on how long she expects the matter to be in the courts, in line with the legal advice that she will have received?

Finally, while reform is locked in legal proceedings, can the cabinet secretary outline what specific actions the Government is taking to support trans people, in particular, to access important services such as healthcare, for which waiting lists remain too long?

In the same way as many people will be concerned as we progress to legal action, we will be concerned because of the delay to the bill and the impact of that on the trans community. I am deeply sorry that it has come to this and that we are not moving directly towards royal assent.

The section 104 meetings were progressing. Discussion was on-going between officials—that was positive and constructive—and nothing was raised with ministers that flagged that a section 35 order was coming our way or that suggested that we would not move forward with a section 104 order in due course, as we do with many bills in the area.

How long it will take in court is a matter for the court. It will be for the court to decide when the case is heard. Obviously, it is not too late for a change of heart on the part of the UK Government and for it to withdraw the section 35 order and save us all the challenge of a court process and the impact that that will have on the trans community and, indeed, others who are concerned about the bill. It is not a matter for me to lay out a timetable; I am afraid that I am unable to do so.

However, Paul O’Kane has raised an important point about other matters relating to the trans community on which it is important that we step forward, because, although this was an important piece of legislation, it is not the only aspect of my portfolio—or, indeed, of other cabinet secretaries’ portfolios—that can assist. Paul O’Kane has my full assurance that we will continue to move forward on those issues across Government.

Along with members of all parties, the Scottish Liberal Democrats voted for the provisions of the bill in good faith after repeated assurances from the Scottish Government that it was both legally competent and within the reach of the Scottish Parliament. As such, it would have been surprising had the Government not taken the section 35 order to court.

Alister Jack has signalled several times that he does not believe that that form of gender recognition is appropriate. That should imply that there is a form of gender recognition that is appropriate, in his sight. The Government has signalled that there has not been further contact since the section 35 order. Has there been any signal from officials in his department or other Scotland Office ministers as to what reforms could be made to the bill to make it competent in their eyes?

Alex Cole-Hamilton raises the real crux of the matter, which is that the alternative to court action was possible only if we could work with the UK Government on possible amendments. I have to say that the sum total of those discussions is zero. We have not had any suggestions. I am not saying that we are asking the UK Government to write the amendments—of course we are not; we are not asking it to write the legislation—but the first step in the process would, of course, be getting in the room and having a discussion about where the areas of concern are and working out where the bill could be amended. Of course, we would then have to see whether that would be something that the Scottish Government and, indeed, the Scottish Parliament—because the bill is now the Scottish Parliament’s bill—would be keen to amend, but at least we would have been able to go through that process.

We have been absolutely unable to get even to step 1. That is a deep disappointment to us, and it leaves us no option but to move to court action. However, it is deeply disappointing that the secretary of state did not take up the invitation to go through that process.

Cabinet secretary, post-Brexit, we have seen a dramatic shift to executive power decision making by the UK Government on devolved matters. The Sewel convention underpinning intergovernmental relations has been ignored nine times, and we now have the unprecedented use of a section 35 order in a devolved area of competence on a bill passed overwhelmingly by this chamber.

UK Government ministers have declined invitations to allow committees of this Parliament to scrutinise the use of the order for the first time in 23 years, in terms of both policy and constitutional implications. Cabinet secretary, is it not imperative that our democratic settlement, which is being eroded at every opportunity, is protected? Is it not the case that not challenging the order as a matter of principle would be to step back and let the Westminster—

I call the cabinet secretary.

—executive power grab—

I call the cabinet secretary.

—ride roughshod over this Parliament?

Clare Adamson raises a very important point. As a Government, we have an obligation to ensure that we stand up for this Parliament and the decisions of this Parliament. Not to do so would be a dereliction of duty on our part.

The reason why that is particularly important is that—I say this with deep regret—we now have a UK Government that does not pay attention to Sewel motions and rides roughshod over many aspects of what we would normally see as usual due process. Because we are in that state and because this is a series of decisions that the UK Government has taken over a number of issues, which have certainly suggested very strongly a challenge to devolution, we have an obligation to stand up for the rights of this Parliament.

Another eight colleagues wish to ask questions and we have just under nine minutes before we move on to the next item of business, so I would appreciate slightly shorter questions and slightly briefer answers.

The SNP dragged the UK Government to court over a referendum; now it is pursuing another unnecessary grievance over gender recognition reform. The new First Minister is desperate to divert from the scandals that are tearing his party apart, rather than focusing on the priorities of the people of Scotland. Humza Yousaf knows that the vast majority of the public oppose this absolutely reckless self-ID bill, but he is picking a fight with the UK Government anyway.

Having failed to answer the question from my colleague Donald Cameron, will the cabinet secretary say how much the SNP’s manufactured and divisive court battle will cost the taxpayer?

We know that the easiest way to save the taxpayer money would be for the UK Government to revoke the section 35 order and let us get on with proceeding to royal assent.

The deadline for when our announcement was made was based on when the section 35 order was laid by the secretary of state. Let us get back to why the announcement of the decision was made last week—again, that was based on the deadline set by the UK Government.

It is a deep disappointment, but perhaps not surprising, that the Scottish Conservatives are once again not standing up for the Scottish Parliament.

As the cabinet secretary has already touched on, offers to work with the UK Government on potential changes to the bill have been refused by the secretary of state, leaving a legal challenge as the only reasonable means of resolving the situation. Can the cabinet secretary say any more about the justification that the UK Government has provided for the complete lack of engagement?

One of the many things that are deeply disappointing is the fact that the UK Government has not set out why it is refusing to engage with us. I fully understand that we might have different views on what was in the bill and on whether a section 35 order could be used, but the fact that UK ministers were invited to give evidence to the Westminster Women and Equalities Committee on the section 35 order but refused and that they refused to give evidence to parliamentary committees in the Scottish Parliament is deeply disappointing. The very least that this Parliament deserves is a better explanation from the UK Government of why it has decided to go down this route and has left this Government with no option but to seek legal challenge.

Has the cabinet secretary been advised that there are reasonable prospects of success for the petition? Can she confirm the main legal principle that the Scottish Government will be advancing in court? Is it that the Gender Recognition Reform (Scotland) Bill, if enacted, would not impact on the operation of the Equality Act 2010?

If Katy Clark will forgive me, I will not comment in detail on what she has said. I laid out in my statement that I cannot get into the substance of our petition or the UK Government’s statement of reasons, as there are on-going live legal proceedings, but I hope that the fact that we are willing and keen to publish the petition will assist with some of the points that Katy Clark raised.

It appears that the UK position on gender recognition in Scotland has shifted since 2018, when it was that

“Scotland can have its own system”.

I know that no amendments have been proposed by the UK Government. As a last resort, to truncate litigation, would the Scottish Government be sympathetic to a sist of proceedings, with the agreement of the UK Government and leave of the courts, to see whether the bill could be amended to both parties’ satisfaction, while still protecting the Scottish Government’s right to proceed if that does not happen?

I cannot comment on how the legal challenge could proceed, as that relates to live legal proceedings. All that I would say to Christine Grahame is that that is not a decision that would be for the Scottish Government; it would also require the UK Government to act in a certain manner.

I thank the cabinet secretary for advance sight of her statement. I also pay tribute to Shona Robison for her steadfast commitment to the bill and equalities.

The cabinet secretary has made clear that there was no meaningful engagement by UK Government ministers on the GRR bill and no amendments that would satisfy them. Does she agree that that is a very clear indication that the UK Government is acting in bad faith, with no intention of genuine discussion and against the principles of devolution, and that the section 35 order is being used as a weapon in the culture war against trans and wider LGBTQIA+ rights?

It is very definitely an example of the UK Government acting in bad faith. Maggie Chapman is right to point out that there has been no intention on its part to have genuine discussion on the issue. Members can draw their own conclusions about why that might be.

As the cabinet secretary knows, I was opposed to the bill and I remain opposed to the bill. However, it seems that if Westminster is allowed to veto this legislation, it could veto any legislation. Can she confirm that that is the case and that it could stop our budget or absolutely anything else?

I thank John Mason for his question, because he raises a very important point. There are members in here from different parties, including my own, who held a different position on the bill, but the dangerous constitutional precedent that this sets should be a worry to all of us, regardless of our position on the bill. Indeed, that was why Mark Drakeford, the First Minister of Wales, was quick to criticise the order. He said, referring to the then First Minister:

“I think the UK Government’s decision to use powers that have never been used in the whole history of devolution is a very dangerous moment, and I agree with the First Minister of Scotland that this could be a very slippery slope indeed.”

He is quite right to point out that there is a principle behind this that all of us should be aware of. All of us should be willing to stand up for this Parliament when the UK Government intervenes.

Humza Yousaf said that a double rapist who was sent to a women’s prison was “at it”, but if Humza Yousaf gets his way, there will be no way of stopping any predatory man who is at it. Can the cabinet secretary explain how the legal action will resolve this fundamental contradiction?

Of course, not for the first time, Russell Findlay is trying to connect the bill with something that has nothing to do with whether someone has a gender recognition certificate. Again, I fully appreciate and respect that members across the Parliament have different views on the bill. However, in considering why the section 35 order was made by the UK Government, let us ensure that we recognise that we have taken the decision to lodge this petition for judicial review because we cannot have a UK Government that has a veto over a bill that was—yes—hotly contested but was amended and passed by an overwhelming majority in this Parliament.

Finally, I call James Dornan, who joins us online.

Can the minister give any further clarity as to why the UK Government used the section 35 order against the clear will and competence of the Scottish Parliament rather than a section 33 reference to the Supreme Court?

The UK Government has not used a reference under section 33 as it is not challenging the legislative competence of the bill. That shows that it accepts that the bill is within the devolved competence of this Parliament. The use of the section 35 order is unprecedented because it vetoes a bill within devolved competence that has already been passed by this Parliament. It is now up to the courts to look at that in detail.

That concludes this item of business. There will be a brief pause before we move to the next item of business to allow members on the front bench to change over.