Alister Jack insists UK Government 'respects' devolution as it blocks Scottish gender reform bill

Alister Jack has insisted the UK Government using a section 35 order will not become “commonplace” as he stressed the move to block the Gender Recognition Reform Bill was “not about preventing” Holyrood legislating on devolved matters.

The Scottish Secretary confirmed ministers would be making their first ever use of a section 35 order, which stops a Scottish Bill from becoming law. However, he claimed the reasoning was about how the Bill interacted with the UK’s Equality Act.

Making a statement in the Commons, Mr Jack told MPs using the order was a last resort.

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First Minister Nicola Sturgeon has already branded the move a “full-frontal attack on our democratically-elected Scottish Parliament and its ability to make its own decisions on devolved matters”. She said the decision would “inevitably end up in court”.

Scottish Secretary Alister Jack claimed he wanted a "constructive way forward".

In Westminster, the UK Government was understood to be braced for drawn-out legal wrangling.

Mr Jack said: “I have not taken this decision lightly. The Government has looked closely at the potential impact of the Bill and I’ve considered all relevant policy and operational implications together with the minister for women and equalities.

“And it is our assessment that the Bill would have a serious adverse impact among other things on the operation of the Equality Act 2010. Those adverse effects include impacts on the operation of single-sex clubs, associations and schools and protections such as equal pay.

“The Government shares the concerns of many members of the public and civic society groups regarding the potential impact of the Bill on women and girls. The Bill also risks creating significant complications from having two different gender recognition regimes in the UK and allowing more fraudulent or bad faith applications.

“The Government is today publishing a full statement of reasons alongside the order which will set in full the adverse effects the Government is concerned about.”

Some SNP MPs shouted “shame” in the Commons as Mr Jack confirmed the UK Government would block the reforms. The senior minister also told MPs blocking the Bill was not about stopping the Scottish Parliament legislating, but ensuring consistent legal frameworks.

He said: “The section 35 power provides a sensible measure to ensure that devolved legislation does not have adverse impacts on reserved matters, including on the equalities legislation such as the Equality Act 2010.

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“This is not about preventing the Scottish Parliament from legislating on devolved matters, but about ensuring that we do not have legal frameworks in one part of the UK, which have adverse effects on reserved matters, and we should be clear that this is absolutely not about the UK Government being able to veto Scottish Parliament legislation whenever it chooses, as some have implied.

“The power can only be exercised on specific grounds and the fact that this is the first time it has been necessary to exercise the power in almost 25 years of devolution emphasises that it is not a power to be used lightly.”

Closing, Mr Jack insisted he wanted to work with the Scottish Government to find a resolution. He said: “As I’ve set out in my correspondence with the First Minister, I’d prefer not to be in this situation. The UK Government does all we can to respect the devolution settlement and to resolve disputes.

“It is open to the Scottish Government to bring back an amended Bill for reconsideration in the Scottish Parliament. I have set out to the Scottish Government that should they choose to do so. I hope we can work together to find a constructive way forward that both respects devolution and the operation of the UK Parliament legislation.”

Downing Street earlier suggested it was “forced” to block the law to uphold the Scotland Act. The Prime Minister’s official spokesman said: “It’s with regret that we’ve been forced to take this unprecedented approach. It’s significant that this is the first time we’ve ever had to consider using section 35.

“And, of course, it’s important to understand that if we did not take this action, we would not be upholding the Scotland Act, which set out that Scottish Parliament should not legislate in areas where there may be adverse effects on GB-wide legislation and of course equalities is part of that.”

The UK Government would not accept any revised Bill that would have “such a significant impact” on equalities matters across Great Britain, the spokesman added.

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MSPs voted to pass the Gender Recognition Bill by 86 votes to 39 last month, making it easier for people to obtain a gender recognition certificate (GRC) to change their legally recognised gender. The changes lower the age that people can apply for a GRC from 18 to 16, and also remove the need for a medical diagnosis of gender dysphoria.

In the same session at Westminster, shadow Scotland secretary Ian Murray claimed Labour supported the principle of reforming gender rights law, but stressed the Westminster and Holyrood governments had ended up in a “constitutional bun fight” due to political differences.

He told the Commons: “In this case, it is the public who are let down. Trans people who suffer intense discrimination will now not see this legislation take effect any time soon, if at all, and women’s rights’ groups will likely not see their concerns addressed or their fears alleviated because the simple truth is that this has turned into a constitutional bun fight.

“We support the principle of updating the GRA (Gender Recognition Act 2004), which when the Labour Government introduced in 2004 was world leading, but two decades on now requires modernisation to humanise and to remove the indignities in this dreadful process.

“We have ended up in a legal and constitutional impasse. My final question to the Secretary of State is – what is he going to do to resolve it?”

SNP Westminster leader Stephen Flynn shouted “find a backbone” during the Labour MP’s speech.

He later said the UK Government’s decision was “simply not fair and it’s not democratic”, adding “If this is a union of equals as it is portrayed, if Scotland’s Parliament is to be the most powerful devolved legislature in the world, as we are often told that it is, then why is this section 35 order being used?

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“I hope that he [Alister Jack] will reflect upon the damage that he seeks to do to his own union in this regard.”

SNP spokesperson for Scotland Dr Philippa Whitford called the move an “unprecedented attack” on Holyrood.

She said: “Vetoing this legislation is an unprecedented attack on the Scottish Parliament, which passed the Gender Recognition Reform Bill 86 to 39 [votes], including MSPs from every single party.

“Gender recognition is a devolved policy area, and this does not change the 2010 Equality Act or give any additional rights to those with a certificate. It shortens and simplifies the process, and particularly ends the requirement for a psychological diagnosis of gender dysphoria.

“This is in keeping with the guidance from the World Health Organisation and UN, which recommends change to a legal statutory process based on self-identification.

“This change has already been made by many countries over the last decade, including neighbours Ireland, Belgium, Denmark, but this Government is threatening to end UK acceptance of international certificates.”

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