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Scotland Act 1998: Section 35 Power
17 January 2023
Lead MP
Alister Jack
Debate Type
Ministerial Statement
Tags
ScotlandForeign AffairsWomen & Equalities
Other Contributors: 59
At a Glance
Alister Jack raised concerns about scotland act 1998: section 35 power in the House of Commons. A government minister responded. Other MPs also contributed.
How the Debate Unfolded
MPs spoke in turn to share their views and ask questions. Here's what each person said:
Government Statement
Today, I will make an order under section 35 of the Scotland Act 1998 to prevent the Gender Recognition Reform (Scotland) Bill from proceeding to Royal Assent. The decision is based on concerns about the adverse impact this legislation might have on reserved matters, including equality laws across Scotland, England and Wales. The Scottish Government's proposed changes would reduce the minimum age for applying for a gender recognition certificate from 18 to 16 and remove the requirement of a medical diagnosis or evidence of living in an acquired gender. These alterations could undermine protections like equal pay and create complications with existing reserved legal frameworks. Despite extensive discussions, I have concluded that these adverse impacts necessitate this action under section 35.
Ian Murray
Lab
Edinburgh South
Question
Did you have extensive discussions with the Scottish Government before invoking this power? What are your plans to resolve the current constitutional impasse?
Minister reply
Extensive discussions were indeed held, and I expressed hope for a constructive resolution. The invocation of section 35 is regrettable but necessary given the potential adverse impacts on reserved matters such as equality legislation. It remains open to the Scottish Government to amend their Bill or negotiate further.
Na h-Eileanan an Iar
Question
What is your assessment of the SNP's reaction, and how do you justify this unprecedented use of section 35?
Minister reply
The SNP's reaction is understandable given their position. However, it was clear that the Bill had significant implications for reserved matters and could undermine equality protections across the UK. Section 35 exists precisely to address such issues.
Fiona O'Donnell
Lab
East Lothian
Question
What specific areas of the Equality Act are you concerned about, and how will this impact women's rights?
Minister reply
The Bill could affect single-sex clubs, associations, and schools, potentially undermining protections for women. These concerns necessitated the invocation of section 35 to prevent adverse impacts on reserved legislation.
Easington
Question
Will you provide details about where you believe the Bill conflicts with the Equality Act?
Minister reply
A full statement of reasons alongside the order will detail all concerns, including specific impacts on reserved legislation and cross-border complications.
Ian Murray
Lab
Edinburgh South
Question
The SNP designed Section 35 as an enabling mechanism rather than a veto. The shadow Secretary of State asked whether this was indeed a last resort, and inquired about the extent of discussions between Westminster and Holyrood before taking action.
Minister reply
This is not seen as a last resort but a necessary step based on legal advice that identifies adverse impacts on reserved legislation. Officials have been discussing concerns with their Scottish counterparts since the Bill was introduced.
Douglas Ross
Con
Ochil and South Perthshire
Question
The SNP is turning this into a political battle, while Westminster aims to protect women’s rights. The MP asked if bringing forward legislation in Holyrood that protects women's rights could resolve the issue.
Minister reply
Yes, the Scottish Government can bring forward a Bill that sufficiently addresses concerns regarding protections for women and children as reflected in Westminster legislation.
Central Ayrshire
Question
The SNP Member expressed concern about the attack on devolution, emphasising that gender recognition is a devolved area. She questioned why specific concerns were raised so late in the process and whether international best practices are being ignored.
Minister reply
Legal advice determined adverse impacts on reserved legislation like the Equality Act 2010. The statement of reasons will clarify these impacts, which include concerns for women's safe spaces and single-sex schools.
Laura Farris
Con
Wirral West
Question
The MP congratulated the Government on standing up for women’s sex-based rights. She asked whether an agreed UK-wide position is essential, especially regarding age limits for gender recognition.
Minister reply
Absolutely, it is crucial to reach a consensus across the United Kingdom on matters affecting reserved areas like women's rights.
Pete Wishart
SNP
Perth and Kinross-shire
Question
This is the single biggest attack on Scottish devolution and Scottish democracy since the establishment of the Scottish Parliament in 1999. A move to strike down a piece of legislation that is supported by every single party in the Parliament is as provocative as it is anti-democratic.
Minister reply
I come back to my original point. This is a decision that I did not take lightly. It was taken after much consideration of the legal advice that we received and it is based on a section 35 order, which is in the 1998 Scotland Act—an Act brought forward by the Labour party, led through Parliament by Donald Dewar and voted for by the Scottish National party.
Jeremy Wright
Con
Kenilworth and Southam
Question
Is not the central point here that devolution is not the same as independence? [Interruption.] To the disappointment of some, I accept, but in every devolution settlement, including ours, every devolved legislature has to legislate with consideration for the other parts of the United Kingdom. If that does not happen, section 35 is the appropriate instrument for the UK Government to consider the use of.
Minister reply
My right hon. and learned Friend is absolutely right. Devolution is about granting powers, not giving away or ceding them. That is what the devolution Act does. Through that Act, Westminster gave powers to the Scottish Parliament but the Act was very clear, and it kept section 33 and section 35 for when there were conflicts. A conflict has arisen here in terms of adverse effects on UK-wide legislation in the two Acts that will be referred to in the statement of reasons.
Warrington North
Question
The Secretary of State claims there is a version of the Bill that the UK Government will accept. Indeed, it has been noted by the Chair of the Women and Equalities Committee that the Bill is broadly in line with the recommendations made by the Committee following its inquiry into the Gender Recognition Act. Will the Secretary of State explain why he did not work with counterparts in Holyrood to avoid this unnecessary and unprecedented constitutional collision?
Minister reply
I am carrying out my constitutional role as Secretary of State for Scotland, and this section 35 order is where the legal advice has taken me. The Minister for Women and Equalities, my right hon. Friend the Member for Saffron Walden (Kemi Badenoch), who is sitting next to me on the Front Bench, is dealing with the policy, and the hon. Lady should raise the point with her.
Question
There are many in this House who agree with the content of the Scottish Government’s Bill, and there are many in this House, including me, who object to its content, but that is not the point at issue. We live in a unitary state, so having different gender recognition certification processes in different parts of the United Kingdom is likely to produce conflict and confusion.
Minister reply
I absolutely agree.
Rosie Duffield
Ind
Canterbury
Question
I welcome the Government’s invoking of section 35, as the Bill clearly conflicts with the Equality Act and would have repercussions for women across the UK. Does the Secretary of State recognise the strength of feeling among women, women’s rights groups and activists in Scotland that this Bill seeks to allow anyone at all to legally self-identify as either sex and, therefore, enter all spaces, including those necessarily segregated by sex, such as domestic violence settings, changing rooms and prisons?
Minister reply
The hon. Lady deserves a lot of respect for her courage in standing up on this issue. When she reads the statement of reasons later today, she will be proved right in what she says.
Question
Having served as a Minister in the Scotland Office alongside my right hon. Friend for a couple of years, I know how compassionately and diligently he has looked into these matters. This is a complex issue with lots of consequences, but do we not owe it to everyone to look at these matters dispassionately, to work through the points of conflict and to turn down the dial on some of the heat that has been generated?
Minister reply
My hon. Friend is absolutely right that tone is important in these matters, and I have not taken this decision lightly. I took it after due consideration of the legal advice. Yes, let us take the heat out of these matters by dealing with the legal issues, and then let us see if we can find a resolution.
Question
We have had six years of wide consultation, and two thirds of MSPs supported the legislation. That includes MSPs from every single political party in the Scottish Parliament—the SNP, the Conservatives, Labour and the Liberal Democrats—so the Tory Government’s actions are shameful and, actually, quite scary. Does the Secretary of State share my concern that this decision sets a dangerous precedent whereby Westminster dictates and Holyrood must simply shut up and do as it is told?
Minister reply
No, obviously I do not. In 24 years, the Scottish Parliament has passed 347 Acts and the United Kingdom Government have never used a section 35 order. The legal advice deems that we should use a section 35 order this time, which is what we have done because there are adverse effects on UK-wide legislation.
Bernard Jenkin
Con
Harwich and North Essex
Question
As the Opposition spokesman during the passage of the devolution Bills in 1998, I took part in the debate in which the devolution of equality rights was explicitly debated. I pointed out that the “imposition of anti-discrimination laws has to be handled with great care, because it is all too easy to substitute one type of intolerance of minorities for another”.—[Official Report, 31 March 1998; Vol. 309, c. 1121.] That is exactly what the SNP’s Bill does by denying the rights of women and girls. The important point is that the Labour Minister, Henry McLeish, one of the architects of devolution, responded by saying that human rights might be devolved, but equal opportunities should not be devolved, and that the Scottish Parliament should not “be able to impose new duties or additional regulation in equal opportunities matters.”—[Official Report, 31 March 1998; Vol. 309, c. 1127.] It was expressly debated in the House of Commons, it was voted on in the House of Commons and the SNP lost their amendment on this topic. Is it not time the SNP respected the devolution settlement?
Minister reply
We are fortunate to have among us a colleague of great political sagacity who was there when the legislation was debated. He is right that that democratic Bill went through Parliament with the support of all parties. Section 35, the instrument we are using today, is part of that Bill brought forward by the Labour party and supported by the Scottish National party back in 1998.
Tonia Antoniazzi
Lab
Gower
Question
Whatever our views about the Gender Recognition Reform (Scotland) Bill, Nicola Sturgeon’s obsession with independence has clouded her judgment and she is showing disregard for the rest of the United Kingdom and its laws. Her own party voted in favour of including section 35 in the Scotland Act. The rights of women and other vulnerable groups should not be pawns in her constitutional game. Does the Secretary of State agree that invoking section 35 of the Scotland Act is deeply unfortunate but is, however, necessary because the GRR Bill does not take due consideration of UK-wide laws?
Minister reply
I absolutely agree. I thank the hon. Lady for her comments. As will be in the statement of reasons, we do not believe there are sufficient protections and safeguards for women and children in the GRR Bill.
Question
I am a committed Unionist, like every Conservative Member, and I respect the devolution settlement, but the principle of one legislature intervening on another could set a significant and serious precedent. Can my right hon. Friend reassure me that he is using a section 35 order because of specific legal concerns about the impact of this legislation on all parts of the United Kingdom, including Scotland?
Minister reply
Yes.
Question
When we hear talk of agreed positions across the UK, the Tory right wingers mean, “Scotland, do as you’re told.” Labour MPs who are being cheered by those guys over there ought to have a look at themselves. We have had six years of consultation and discussion about the GRR Bill. When did the Secretary of State and this Government suddenly discover that the Bill somehow threatens equal pay?
Minister reply
The Minister for Women and Equalities raised that subject with the Bill Minister, and it will be explained in our statement of reasons. The adverse effects are numerous and, if the hon. Gentleman reads the statement, he will see those points.
Question
I believe the liberties and responsibilities of all citizens across the four nations of the UK are equal, which is why, among other things, I keenly supported the extension of same-sex marriage to Northern Ireland. I share the concerns about the rights of biological women to single- sex spaces, but I am most concerned about the capacity of children—minors—to determine their own gender and embark on potentially life-changing physical transformations. This dispute has been confected by the SNP in pursuit of its separatist agenda.
Minister reply
Yes.
Karin Smyth
Lab
Bristol South
Question
The SNP has landed us in a position where sex-based rights are disregarded. What does the UK Government expect the SNP Scottish Government to do to help protect the rights of transgender people and women?
Minister reply
The Government would like the Scottish Government to address concerns about sufficient protections and safeguards for women and children across UK-wide legislation.
Question
Is it true that this legislation is affecting not just Scotland, but women and girls across the UK?
Minister reply
Yes, indeed.
Question
The Government opened up a consultation on GRA reform almost five years ago but did nothing. Is it time that this Government brought forward proper GRA reform based on the Scotland legislation?
Minister reply
I am here to answer on the constitutional decision I have taken, and suggest that the hon. Gentleman goes to oral questions and asks those questions of the Minister for Women and Equalities.
Question
Does the Secretary of State acknowledge the need for protections for 16 and 17-year-olds, who would be able to self-ID as a legal opposite sex under the new Bill?
Minister reply
This is absolutely about safeguards and protecting safe spaces for women and children. She is absolutely right about that.
Question
Does the Secretary of State envision section 35 being used against any other Bills progressing through Holyrood?
Minister reply
This decision was not taken lightly, and legal advice advised for section 35 to be used. This is unprecedented but justified in this case.
Caroline Johnson
Con
Sleaford and North Hykeham
Question
Does the Secretary of State agree that the SNP should respect the devolution agreement it voted for and not use women, girls or transgender individuals as pawns in its separatist agenda?
Minister reply
Yes. This is entirely a legal debate we are having about the Scotland Act 1998.
Question
Does this not demonstrate that power devolved is power retained, and does it show the need for Scotland to become independent?
Minister reply
The decision is entirely about the legal advice received and adverse effects on UK-wide legislation.
Lee Anderson
Reform
Ashfield
Question
Does the Secretary of State agree that this gender reform Bill from the SNP is a cynical attempt to use young people on its path to independence?
Minister reply
The issue here is adverse effects on UK-wide legislation, such as the Equality Act 2010 and the Gender Recognition Act 2004.
Question
Why does the Government believe that the Scottish gender recognition legislation conflicts with the UK Equality Act?
Minister reply
The changes include allowing 16 to 18-year-olds self-identification without medical diagnosis, which impacts two pieces of UK-wide legislation.
Question
Does the Secretary of State agree that the SNP would do better focusing its energies on fixing failures across Scotland?
Minister reply
We could add ferries and many other things to the list of issues the SNP needs to focus on.
Question
Can the Secretary of State say what he thinks the point of the Scottish Parliament is?
Minister reply
The point of the Scottish Parliament is to serve the people of Scotland in devolved areas, but within terms of the Scotland Act.
Question
Does the Secretary of State agree that this is simply about protecting the right of young girls and women to have safety in single-sex spaces?
Minister reply
It is also about protecting the devolution settlement and two UK-wide Acts.
Alison Thewliss
SNP
Glasgow Central
Question
I have been contacted by Mackenzie, an inspirational woman I met recently in my constituency. She says: “I did not choose to be trans. I did not choose to have my rights taken away, and I certainly did not choose to have my life up for debate from people who don’t even know or empathise with my community.” Can the Secretary of State tell me why, in the absence of the UK doing anything whatsoever about improving trans rights, he is standing in the way of the Scottish Government making progress?
Minister reply
First of all, of course we respect and support the trans community. If the hon. Lady wants to raise specific issues, the Minister for Women and Equalities is very happy to have a meeting with her.
Paul Bristow
Con
Leigh
Question
Does my right hon. Friend agree that, if this House passed legislation that impinged on what should be a devolved competence, there would be howls of protest from the SNP Benches. [Interruption.] The fact that they are shouting down women in this House over UK-based equality legislation shows that this is not about equality at all; it is all about bashing the UK, and, for them, single sex-based rights is just collateral damage.
Minister reply
My hon. Friend makes a very fair point. For me, this is not about anything other than following the legal advice on the adverse effects on UK-wide equality legislation, which of course involves safe single-sex spaces.
Hilary Benn
Lab
Leeds South
Question
Clearly, as we have heard, there is disagreement about the process contained within the legislation that the Scottish Parliament has passed. Will the Secretary of State clarify something? Whether or not one agrees with that, the net result is that someone would be issued with a gender recognition certificate. In evoking section 35, the Secretary of State argues that this would have serious adverse impacts on the operation of the Equality Act. Can he explain why the same certificate issued under the Equality Act 2004 does not have those adverse impacts?
Minister reply
What we are trying to do is avoid having two conflicting regimes either side of the border.
Woodford Green and Essex Wick
Question
I stand in full support of the Secretary of State’s decision this morning. Does he agree that the SNP is using this subject to deliberately cause division to further its single-issue campaign of creating an independent Scotland, regardless of the consequences for children and women across this nation?
Minister reply
That is the conclusion that some people might have reached when listening to the question of the right hon. Member for Ross, Skye and Lochaber (Ian Blackford).
Chris Stephens
SNP
Glasgow Southside
Question
Conservative Members impinged on devolved competencies in legislation last night when they voted for the anti-strike Bill. Can the Secretary of State tell us this: since the Scottish Parliament passed the gender recognition reform Bill and his decision today, what correspondence has he had with the Scottish Government to try to resolve the issue, or is it him who is a bad faith actor?
Minister reply
As I think I have said, the Minister for Women and Equalities and civil service officials had a number of engagements. My involvement comes after the event, because it is a constitutional involvement. On the gender policy area, it is absolutely for the Minister to have that engagement, and she not only wrote but had a meeting.
James Daly
Con
Londonderry
Question
I warmly welcome my right hon. Friend’s statement today. Does he agree that it seems quite extraordinary that the criticism of his decision today seems to be that SNP Members would have him not act on legal advice that states that this legislation impinges on the rights of women, children and some of the most vulnerable in our community? If the Secretary of State was not undertaking this action today, that would be a bigger outrage than what we have heard here today. This Government are the defender of the rights of those who are the most vulnerable and who need protecting in our society. It is a disgrace that this has been painted in the constitutional light that it has been by the SNP for its own end, rather than for the rights of women and children in our country.
Minister reply
Absolutely.
Hannah Bardell
SNP
Livingston
Question
This Tory Government make me sick to my stomach. If this Secretary of State is going to come to this House and trample all over trans rights, Scottish democracy and equality, he should at the very least do his homework. Clearly, he knows as little about this Bill as he does about devolution. Are he and his Government so scared of democracy and equality that he really thinks it is justifiable to use one of the most marginalised groups in our society as political fodder in their anti-trans, anti-equality and anti-democratic endeavours?
Minister reply
I do not recognise any of those remarks. This is about following legal advice—and not taking the decision lightly—on the adverse effects that this Bill has on two UK-wide, or GB-wide, Acts. That is the position we are in. We have written to the Scottish Government to explain our position. We will lay the statement of reasons later. This has nothing to do with trampling over transgender rights. This is entirely to do with following a legal process and taking the legal advice that we sought.
Christine Jardine
Lib Dem
Edinburgh West
Question
The Secretary of State knows the value I place on the Union, so I am sure that he will understand how difficult this is for me. However, as a Scottish woman, as the mother of a Scottish daughter, and as someone who has campaigned and continues to campaign and work for women’s safety, I have heard the concerns. I have looked at every clause and amendment of this Bill and spoken with MSP colleagues from all parties, searching for the place where it undermines the Equality Act and the protections that Act offers me and every other woman I know, in single-sex and other spaces. I cannot find it. Some of the UK’s finest legal minds have pored over this hugely scrutinised Bill in great detail and found no conflict. What I can see is where the Bill guarantees that it will not challenge the primacy of the Equality Act. Can the Secretary of State point me to the exact lines of this Bill that he feels undermine my rights and those of every other woman, and justify why he is playing fast and loose with the Union and doing so much to hurt the most vulnerable people in our society?
Minister reply
That is simply not true. I am looking to protect the vulnerable, as the hon. Lady will see. Legal opinion may well be divided on this, but the legal opinion we have taken is that there are adverse effects on the Equality Act and the Gender Recognition Act 2004. I note the First Minister’s comments earlier today that she intends to take this matter to judicial review; we will find out whether the court of opinion that I have been hearing is right or wrong when we go to the legal courts.
Olivia Blake
Lab
Sheffield Hallam
Question
I would love to hear more detail from the Minister on the legal advice that has been given, because I am still unclear how this Bill would undermine the Equality Act. Also, is it not true that the only reason we are here is because of the Government’s failure to listen to their own consultation and the 100,000 people responding to it, and because the Government are using trans people as a political football, for example by leaving them out of a conversion therapy ban until—conveniently—this week?
Minister reply
I urge the Opposition to reflect the tone here. This is a legal decision. We need to take the heat out of this debate. We are dealing with a reduction in safeguards for women and children. That is the legal advice we have, and later, when they read the statement of reasons, they will be able to draw their own conclusions.
Stewart McDonald
SNP
Islay
Question
I am sure that the United Kingdom’s first ever female First Minister is enjoying the lecture from the Secretary of State and the various Cicero tribute acts behind him on feminism and the protection of women’s rights. Is it not the case that we have here a decaying Government in their last months of office needing some red meat for their base, and an utterly supine Labour party trying to triangulate through all of this, while trans people are the collateral damage? Just as section 28 haunted Thatcher’s Government, section 35 will always be associated with the Secretary of State. He must have the statement of reasons in that folder on his knee—let him read it out from the Dispatch Box.
Minister reply
We will publish the statement of reasons. On the other remarks the hon. Gentleman made, opinions may vary.
Dwyfor Meirionnydd
Question
This is a calculated attack on devolution, democracy and trans rights. It is increasingly clear that this tired and bitter Tory Government will weaponise any issue, no matter how sensitive, to subvert devolution. If this is really about the Equality Act, Ministers would be referring this matter to the courts; they would not be withholding their own legal advice, but would be seen to have it tested in the courts, rather than taking, as they are, unprecedented unilateral action. What do they have to say to the Unionist Welsh Labour Minister Vaughan Gething, who today said that this UK Government undermines the Union?
Minister reply
I entirely disagree. We are supporting the Union. The Scotland Act is what we believe in. Section 35 was democratically put there and we believe we must take the legal advice we have. People are telling me to read out the statement of reasons: the statement of reasons and my order have been submitted to the parliamentary authorities, and they will be available within the timeframe that those authorities decide to release them this afternoon. Hon. Members will be able to read everything they want to read there about the reasons behind the decision, but essentially it is about protecting and safeguarding women and children where we believe there are adverse effects.
Kirsty Blackman
SNP
Aberdeen North
Question
Against a background of rising hate crime, my trans siblings will be horrified and terrified at the level of misinformation and lies in this Chamber today. Given that the Secretary of State has had a lot of legal advice on this, presumably he has also had briefings. Can he tell us what is the effect of a gender recognition certificate? What does it entitle someone to do?
Minister reply
We believe, as the hon. Lady will see in the statement of reasons—I have made this point very clearly—that there is a reduction in safeguards for women and children. She will have plenty of time to read that today.
Nadia Whittome
Lab
Nottingham East
Question
The reason the Government cannot tell us exactly what the conflict is with the Equality Act is that there is not one. The Gender Recognition Reform (Scotland) Bill does not affect the operation of the Equality Act, and everyone in this House knows that full well, because Labour MSP Pam Duncan-Glancy put it on the face of the Bill with her amendment. Will the Minister admit that this section 35 order is really about fanning the flames of a culture war that is harming trans people across the UK?
Minister reply
No—that is an appalling thing to say. This order is entirely addressing the legal advice I have been given, and the legal advice tells me that there is a reduction in safeguards, conflicting with two UK-wide Bills. That is the reason for the section 35 order and that is why the advice was to use it. The advice will be available to all this afternoon.
Question
As has been clarified by my hon. Friend the Member for Paisley and Renfrewshire South (Mhairi Black), this Bill has been under consideration by the Scottish Parliament for six years. If the UK Government thought there was some legal basis for challenging the Bill, why did they not do so in the Supreme Court through a section 33 order before now, as they have done previously?
Minister reply
I do not want to be rude to the hon. Lady, but I am afraid what she has just said shows that she does not understand the Scotland Act or what actions are available to the United Kingdom Government. We cannot bring forward a section 33 order, or invoke section 35, while a Bill is going through the Scottish Parliament. Once the Bill has finished its third and final stage, there is a 28-day process and the legal advice—which I must say is taken on all Bills that the Scottish Parliament passes as part of the devolution settlement—and then we decide what course should be taken, based on the advice we get. On this occasion, the advice is that section 33 is not appropriate, but that section 35 is.
Question
I think it is exceptionally discourteous of the Secretary of State to refer consistently to a statement of reasons that nobody in the Chamber except him appears to have seen. This was not an urgent question or something he did not know about; this was a statement he brought himself. We should have had the statement of reasons before he made this statement. What is it about persistent electoral failure in Scotland that makes him so averse to following the principles of basic democracy?
Minister reply
This is beyond parody. Democracy is what the Scotland Act is. Section 35 is in the Scotland Act. The SNP voted for the Scotland Act with section 35 in it. It is a democratic instrument.
Jim Shannon
DUP
Strangford
Question
I thank the Minister for his statement and agree that women and girls must be protected and safeguarded. He will be aware that a precedent was set for the circumnavigation of devolution when the UK Government brought in abortion on demand legislation for Northern Ireland. With great respect to my colleagues and friends—I call the hon. Members representing Scotland my friends—I do not recall those hon. Members defending the cause of Northern Ireland then. Will the Minister confirm that that precedent, supported by many who are opposing this decision today, means that the Government retain the right to step in on what they deem to be questions of equality or human rights?
Minister reply
I am not an expert on the Northern Ireland Bills, so I will not stray into that area, but we have been advised that protections and safeguards for women and children need to be looked in light of those adverse effects. That is what we are dealing with through section 35 of the Scotland Act.
Dave Doogan
SNP
Angus and Perthshire Glens
Question
You would think that before pulling the trigger on section 35 the Secretary of State would be absolutely across his brief, but it seems that he does not have a clue about this at all. We have heard very little about process and even less about substance. He says that the Bill would have a significant impact on, among other things, GB-wide equality matters in Scotland, England and Wales, so what consultation did he have with the Welsh Government or the Senedd before this drastic intervention, or is this really a priority issue for the de facto English Government? With independence looming larger than ever before this crumbling Union, is this not an act of desperate democratic vandalism?
Minister reply
No. The Minister for Women and Equalities, my right hon. Friend the Member for Saffron Walden (Kemi Badenoch), tells me that the UK Government consulted a number of years ago, and Wales would have been included in that consultation. The point is that there is no democratic vandalism, or whatever the hon. Gentleman was saying. The Act that contains section 35 is entirely democratic, and we are now using that order to protect women and children’s safeguards, which we believe are undermined by the cut-across in two GB-wide laws.
Question
In his response to the shadow Secretary of State, my hon. Friend the Member for Edinburgh South (Ian Murray), the right hon. Gentleman said that section 35 of the 1998 Act was not an instrument of last resort, but the memorandum of understanding signed in 2012 made it an instrument of last resort by common agreement, so what discussions on a constitutional basis has the Secretary of State had with the First Minister of Scotland to avoid this impasse?
Minister reply
It is not the last resort. What I said to the shadow Secretary of State was that we have 28 days in which to take legal advice and act. Failing that, the Bill goes for Royal Assent. That is the timeframe we operate in. There is then the opportunity for further discussions with the Scottish Government to see if we can get the legislation in scope. We made the same offer with the UNCRC (Incorporation) (Scotland) Bill, which we took to a section 33 order, and that offer still stands. We are happy to discuss with the Scottish Government what amendments could be made to the Bill to get it in scope so that it does not have adverse effects on UK-wide legislation. There is never quite a last resort when you can go on talking, discussing and trying to resolve your differences.
Question
It is true that under section 35, UK Ministers have the right to interfere in Scottish legislation on the grounds of defence, national security or international obligations, or if the Scottish legislation modifies or has an adverse effect on UK reserved law—that much is clear. But given that the Tory Chair of the Women and Equalities Committee, the right hon. Member for Romsey and Southampton North (Caroline Nokes) said that the GRR legislation ‘doesn’t change the Equality Act’ and that the Scottish Secretary has been signally incapable of giving a single example of where it might do so, this is not a debate about process; it is a debate about principle. Would it not be better, instead of interfering and engaging in a rather crass culture war, if the Scottish Secretary apologised to trans people, apologised for trampling over Scottish democracy, folded up his little red folder, and removed the threat to interfere?
Minister reply
I say again: let us take the heat out of this debate. This is about the Equality Act 2010, which is a GB-wide piece of legislation. The legal advice we have is that there are adverse effects to that law—that is entirely what it is—and it will be published this afternoon in the statement of reasons.
Question
I stand in solidarity with Scottish colleagues across the political spectrum. It is worth pointing out that we work to harmonise equality rights issues, but the UK is not a unitary state in these matters. The Secretary of State has jumped backwards and forwards in describing the Equality Act either as UK-wide or Great Britain-wide, but to make very clear for the record, it does not apply in Northern Ireland. Does he recognise that similar legislation has been in place in the Republic of Ireland for more than seven years now? We in the UK have a common travel area with Ireland, which has reciprocal rights in freedom of movement, social security and other areas. If the Government can manage to live with Ireland’s different system for gender recognition, why can they not do so for Scotland?
Minister reply
Last time I looked, the Republic of Ireland was not part of Great Britain or the United Kingdom. It is absolutely the case that we are talking about British citizens being affected. I am told that no devolved Administration anywhere in Europe has different gender rules from the state.
Question
It is regrettable that the Secretary of State has come here today with so little information on the issue. I think that all those in the very vulnerable group who are impacted by what he wants to do deserve significantly better than him standing up repeatedly with absolutely no information and telling us that a statement of reasons will be published later. Yet he is unable to tell us what those reasons are. It is his job to tell us what they are, and he has signally failed to do so. It is no wonder that his former colleague Andy Maciver, the former head of communications for the Scottish Conservatives, has described the UK Government’s intervention as ‘an act of constitutional vandalism’ that demonstrates ‘Westminster’s superiority complex in overdrive’. Does the Secretary of State recognise that people will reasonably and rightly feel that way, and that, as well as their concerns about this marginalised group, they will feel extremely unhappy about the overriding of our democracy?
Minister reply
No. I hope people will realise that the United Kingdom Government have been given legal advice that raises concerns for women and children, for their safeguards and protections, and about adverse effects to UK-wide legislation, and that we are acting on that advice and have the backs of women and children across the United Kingdom, including in Scotland, if safeguards and single-sex spaces and so on are impinged upon. If that is the concern in the statement of reasons, we believe it right to act on it for all citizens of Great Britain.
Question
In 2021, the Women and Equalities Committee published a report stating clearly that the gender recognition certificate did not—as is still the case—impinge on the rights of women or girls. It stated unequivocally that the exclusions applied in all instances and that women and girls would continue to be protected regardless of the gender recognition certificate. The same applies in the case of the Gender Recognition Reform (Scotland) Bill, and nothing in the proposals contradicts that. Will the Minister outline clearly to the House what legal advice he has been given? We are still waiting for an answer.
Minister reply
In short, two different regimes create adverse effects.
Stuart McDonald
SNP
Glasgow South
Question
Is that it? These answers are absolutely pathetic. Why can states and territories in the US, Canada and Australia successfully operate self-ID without interference or complaint from either neighbouring territories or central Government, but it cannot happen here even though we are supposed to have the most powerful devolved Parliament in the world? The equalities unit fact sheet produced by the Government for their own consultation on self-ID states clearly: “There will be no change to the provision of women-only spaces and services… This has been the law since 2010 and will not change”. Is the Secretary of State scrabbling around for legal advice to peddle myths in this Chamber?
Minister reply
I did say that there was no devolved Administration in Europe that had different gender rules to the state. The hon. Gentleman raises the USA, Canada and Australia, where there is no central ID law, because, differently, they have federal structures.
Peter Grant
SNP
Glenrothes
Question
Can the Secretary of State confirm that this rushed piece of legislation has been under six years of scrutiny by the Scottish Parliament? Can he confirm that during that period and the last Scottish Parliament elections, an overwhelming majority of MSPs were elected on explicit manifesto commitments in favour of this legislation? Will there be a chance for another debate and another vote?
Minister reply
I did not catch everything the hon. Gentleman said—my tinnitus gets the better of me sometimes. As to all the legal reasons, we have covered that a hundred times today. As to whether there will be a chance for another debate and another vote, my understanding of section 35 is that the Opposition have 40 days to pray against it, and that would then lead to a debate in this Parliament.
Patrick Grady
SNP
Glasgow North
Question
If a motion is tabled praying against the section 35 order, will the Government guarantee that time will be made available for a debate and a vote on the Floor of the House?
Minister reply
That is a question for the Leader of the House.
Allan Dorans
SNP
Glasgow Cathcart
Question
What provisions would need to be added or taken away from the original Bill to make it acceptable to this Government?
Minister reply
Regarding any amendment to the Bill, if the Scottish Government want to bring it back, they have to address the central issue—I know there are difficulties for them with this—which is that we do not believe, in the cross-cut against GB legislation, that there are sufficient protections and safeguards for women and children, as reflected in existing Westminster legislation.
Shadow Comment
Ian Murray
Shadow Comment
I thank the Secretary of State for advance sight of his statement. This is a significant moment as it marks the first invocation of section 35 since devolution's inception in 1998. I question whether this action represents a last resort or if extensive discussions were held prior to its execution. The fact that this power has never been used before suggests it was intended for emergencies rather than routine political disagreements. Labour’s commitment to equality is evident from our past legislation, including the Gender Recognition Act 2004 and the Equality Act 2010. However, the invocation of section 35 risks undermining these efforts by creating legal uncertainties and public confusion.
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