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In one of its last acts of 2022, Scotland’s devolved parliament voted to pass the Gender Recognition Reform Bill. The Bill, if enacted, would have removed the need for an individual to obtain a medical diagnosis of gender dysphoria before obtaining a gender recognition certificate. In addition, the Bill would have lowered the minimum age for applicants, to sixteen years.
The Bill was the subject of an emergency debate in the House of Commons earlier this year after it was blocked by an order under s.35 of the Scotland Act 1998. This is the first time the section has ever been used.
The Scotland Act allowed for the creation of a Scottish government and Parliament. The Act is a result of a referendum, held in 1987, in which Scotland voted, by a majority of 74%, in favour of the creation of a Scottish Parliament. The Act was amended in 2012, and again in 2016. The devolved Parliament officially convened, for the first time, on the 1st of July 1999. In 2016, in the aftermath of the 2014 Scottish Independence Referendum, further powers were devolved to Scotland’s Parliament.
This Act coincided with the Good Friday agreement, and the Government of Wales Act 1998. The Good Friday agreement led to the creation of the Northern Ireland Assembly and the Northern Ireland Executive, provision for which is made by the Northern Ireland Act 1998, while the Government of Wales Acts of 1998 and 2006 make provision for devolution in Wales.
Section 35 of the Scotland Act allows a Secretary of State to prohibit a Bill from obtaining royal assent. Royal assent occurs when a monarch agrees to make a bill into an Act of Parliament. When royal assent is given it is then announced in the House of Lords and the House of Commons. The legislation contained within the Bill can come into effect immediately, after a set period of time, or after a commencement order by a government minister.
Section 35 of the 1998 Scotland Act has never before been invoked, and it can be used only in limited circumstances. It provides as follows:
“If a Bill contains provisions—
(a) which the Secretary of State has reasonable grounds to believe would be incompatible with any international obligations or the interests of defence or national security, or
(b) which make modifications of the law as it applies to reserved matters and which the Secretary of State has reasonable grounds to believe would have an adverse effect on the operation of the law as it applies to reserved matters,
he may make an order prohibiting the Presiding Officer from submitting the Bill for Royal Assent.”
Equal opportunities falls under the umbrella of “reserved matters” and it is this that gives the Scottish Secretary the power to intercede.
Similar powers are accorded to the Secretaries of State for Wales and Northern Ireland. These powers are provided by s.114 of the Government of Wales Act 2006 and s.14 of the Northern Ireland Act 1998, neither of which has ever been invoked.
It is the contention of the UK government that the proposed bill will come into conflict with the Equality Act 2010. The 2010 Act, it is argued, works in tandem with the Gender Recognition Act 2004; and, while the Scottish government argues that the bill would not modify the 2010 Act, the UK government suggests that having two gender recognition systems in the UK could prove problematic. It has said that the creation of two parallel regimes in respect of Gender Recognition Certificates will have an adverse effect on “equal opportunities”, and could, according to the Scottish Secretary, result in situations whereby someone could have one legal gender in Scotland and a different legal gender elsewhere in the UK. The government said:
“The legislative consent motion that was passed by the Scottish Parliament alongside the GRA 2004 recognised, at that time, the desirability of having a single coherent regime for obtaining a GRC which applied uniformly across the UK. That desirability has not changed.”
The Scottish Parliament does not have the power to overturn the s.35 order. It only has two options: it can either amend the Bill, or challenge the order by way of judicial review.
If the matter does arrive before a Court, it would have to consider if the Scottish Secretary has grounds to believe that the bill is likely to adversely impact the operation of the 2010 Act, and would, therefore, make modifications to the law in respect of reserved matters.
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