Home > News > Statement on the UK Government’s blocking of the GRR Bill
17 January 2023   |    News
Yesterday, the UK Secretary of State for Scotland, Alister Jack MP, wrote to the Scottish Government to say that he would be using section 35 of the Scotland Act to block the Gender Recognition Reform (Scotland) Bill.
We are bitterly disappointed that the UK Government have taken this decision. We consider that it is unjustified and anti-democratic. It shows a similar level of contempt from the UK Government towards trans people that their predecessors 35 years ago showed towards LGB people when they introduced section 28.
The GRR Bill was passed by a large majority of MSPs – including overwhelming support from the SNP, Labour, the Greens and the Liberal Democrats, and votes in favour from members of every political party. This was after the bill went through the usual scrutiny process at the Scottish Parliament, including consideration of whether the parliament had the powers to pass the bill – something that happens to all legislation at Holyrood. It also included serious and significant consideration of the impacts of the bill, with hours of evidence taken by the committee in charge of it, as well as debates between all MSPs on proposed amendments to the bill.
The bill would make important changes to the process that trans men and women can use to update the sex recorded on their birth certificates, making it much simpler and fairer than the one they must currently use. It would mean Scotland had a process much closer to the ones used in more than 30 places around the world, that better protect trans people’s human rights. This was achieved after years of campaigning and work, including trans people the length and breadth of Scotland being willing to share the stories of their lives and explain why these changes matter to them.
There have been opportunities throughout the parliamentary process, and indeed in the six years in which the Scottish Government and Parliament have been considering these issues, for the UK Government to raise any concerns that they have. The fact is that when Theresa May was Prime Minister, the UK Government supported reform of gender recognition – unfortunately their attitude towards trans equality has since got much worse. There are also less extreme options they could have used if they do have concerns – blocking a bill of the Scottish Parliament in this way has never been done before in the past 25 years of devolution.
It seems that the UK Government have chosen to take the most combative and obstructive approach – one that challenges both a progressive decision of the Scottish Parliament that would improve trans men and women’s lives, but also that challenges the authority of the Scottish Parliament to make laws in areas devolved to it.
Why are the UK Government able to block the bill?
The Scotland Act (the law that set up the Scottish Parliament) lays out the rules for devolution. This includes setting out which areas of law continue to be reserved to the UK Parliament – this includes areas like immigration, foreign policy, and equal opportunities. Anything that isn’t specifically reserved to the UK Parliament is instead devolved to the Scottish Parliament, and can be changed at Holyrood.
It seems clear that the GRR Bill covers only matters that are devolved – in other words, it is fully within the competence of the Scottish Parliament. However, like many Scottish Parliament bills, there may be consequences for the operation of UK Parliament laws – for example, will Scottish GRCs continue to be recognised in the rest of the UK? The UK Government also claim there will be consequences for the operation of the Equality Act 2010 – we dispute that there will be any significant adverse consequences.
The usual way for the UK Government to deal with such consequences of a Scottish bill is something called a “section 104 order”. That allows the UK Government to make changes to reserved law and law in the rest of the UK to deal with the consequences of the Scottish bill. That has been done many times before.
But in this case, the UK Government has chosen instead to do a “section 35 order”. This has never been done before, and its effect is to block the Scottish bill completely, by refusing it “royal assent”. Section 35 of the Scotland Act allows the UK Government to block a bill passed at the Scottish Parliament if they believe that something in the bill would make modifications to laws that apply to reserved matters, and would also have an adverse effect on the operation of the law that applies to reserved matters. We dispute that those criteria apply in the case of the GRR Bill, and we know that the Scottish Government dispute that also, and so we expect the Scottish Government to challenge the use of the section 35 order in the courts.
What does this mean for the bill now?
It means that, for now at least, the bill will not become law. The next step for the bill would have been to send it for royal assent – this order prevents that from happening.
As noted above, we expect that the Scottish Government will challenge the section 35 order in the courts. This would be considered, in the first instance, at the Outer House of the Court of Session in Edinburgh. However, there would then be the possibility for either government, if they lost the first case, to appeal – initially to the Inner House of the Court of Session, and then one final time to the UK Supreme Court. It is therefore not impossible that it could be many months, and likely more than a year, until we know what the ultimate decision is.
Until that final decision is made by the courts, the bill will simply stay on the Scottish Parliament’s books, without being sent for royal assent.
If the Scottish Government were to ultimately win a case against the decision to use section 35, then the bill would proceed as normal once that was decided.
If the UK Government were to win, then it is a little less clear. In theory, the two governments could work together to make changes to the bill that would cause the UK Government to withdraw the section 35 order. However, given the UK Government’s attitude to trans issues, it may be that they would only accept changes that would fundamentally undermine the purposes of the bill. In which case, the bill will sit on the Scottish Parliament’s books until there is a change of government at Westminster, and a new UK Government that respects trans equality.
We would like to thank again everyone who campaigned to support the GRR Bill. The Scottish Parliament delivered for us. It overwhelmingly passed a very good bill. We know you will be scunnered that after all that work and careful consideration and debate, the bill cannot proceed while the UK Government veto it. For now, it looks like court action is the best way to try to overcome that veto.
In the meantime, we will continue to work on trans and LGBTI equality, including to improve gender identity services, and for a ban in Scotland on conversion practices. And as always, we will keep you updated whenever we can about further developments.
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Scottish Trans is the Equality Network project to improve gender identity and gender reassignment equality, rights and inclusion in Scotland. The Equality Network is a leading Scottish lesbian, gay, bisexual, transgender and intersex (LGBTI) equality and human rights charity.
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