The Gender Recognition Reform (Scotland) Bill: where now?

A report yesterday attributed this position to the Leader of Scottish Labour, on the Gender Recognition Reform (Scotland) Bill:

Mr Sarwar earlier suggested to journalists that the Section 35 order from the UK Government – which blocked the Bill from achieving Royal Assent – should be rescinded while the differences between the two governments on the legislation are resolved.

This misunderstands the technical effect of having the s35 Order, and of lifting it. This piece explains why and also considers where responsibility lies for taking any further action to resolve problems identified by the UK Government, as set out in its statement of reasons for making the s35 Order.

The effect of the s35 Order

An Order under Section 35 of the Scotland Act has two effects:

• it prevents a Bill from being sent for Royal Assent, and
• it allows a Bill to be amended, even though it has completed Stage 3: s36(4)(c) of the Scotland Act requires the Scottish Parliament to make provision in its standing orders, so that a Bill subject to a s35 Order can be sent back to an earlier stage in the process, where it can be altered, to address issues raised by the Order.

Rule 9.9 of Scottish Parliament’s Standing Orders deals with the reconsideration of Bills that have completed Stage 3. Rule 9.9(2)(b) allows this when “an Order is made under section 35” and Rule 9.9(4) limits any amendments to matters covered by the Order. Other circumstances where taking a Bill back for amendment after completing Stage 3 is permitted under Rule 9.9 are all related to the involvement of the Supreme Court in some way. For good reason, there is no general provision in the Scottish Parliament’s standing orders allowing Bills to be sent backwards in the process: Stage 3 is intended to be conclusive in all but exceptional circumstances.

Sarwar has previously stated that using section 35 was “the wrong approach” and called on the UK Government to instruct the Equality and Human Rights Commission to issue guidance on contested aspects of the bill. However, as discussed further below, it is clear from the UK Government’s statement of reasons that the sort of changes that would be needed to address its concerns would require alteration to the face of the law. While guidance may be considered by the courts, it is not binding and cannot alter the substantive content of legislation. An amendment made to the Bill at Stage 2 of the legislative process which states that the Act does not modify the Equality Act 2010, to which Sarwar also referred in the same interview, similarly does not address the UK Government’s concerns. (The amendment was described as “vacuous” by barrister Naomi Cunningham at the time.)

Lifting the s35 Order would therefore appear to mean that Anas Sarwar’s proposal of resolving differences over the legislation by further discussion would become technically impossible, because there would no longer be an Order under s35 in place and no other part of Rule 9.9 would apply. The Bill would no longer be open to amendment. Lifting the Order would however allow one thing to be done with the Bill, that could not be done now: it could be sent for Royal Assent, exactly as it stands.

There is therefore a separate point, more to do with political judgement, raised by suggesting that the UK Government gives up the only mechanism it has to stop something happening that it says it does not want to happen. Even if it were somehow possible to amend the Bill without the Order still being in place, UK Ministers might be expected to reject Sarwar’s advice, both for practical reasons (absolute loss of ability to prevent Royal Assent and thus of any leverage in discussions) and presentational ones (clear risk of being portrayed as an admission of error). That sort of judgement is less our concern here, however.

Whose responsibility?

Sarwar’s comments raise a further question, about where responsibility should be placed for any revision of the Bill. The same report says Sarwar wants “both the UK and Scottish governments to ‘knock their heads together’ and work in good faith to come to a solution” and quotes him as saying that “a good faith approach, where we try and move forward to try and build consensus and find a way through” is needed. 

The UK Government statement of reasons already sets out its objections. The document details a range of impacts it regards as unacceptable. All the problems, however, clearly stem from the same point: the Scottish Government’s decision to apply its particular model of self-declaration to GRCs in their precise current form. The effect of a GRC under the Equality Act has been the most discussed point, but is not the only issue raised as relevant to the UK Government’s objections.

Applying self-declaration to existing GRCs is central to the Scottish Government’s project here. This was spelt out clearly in the first Scottish consultation paper:

6.16. Under the proposed self-declaration system for legal gender recognition, the Scottish Government wants the rights and responsibilities of those obtaining recognition of their acquired gender to remain the same as they are now under the 2004 Act.

This combination – same GRC as now, easier access – explains why the Bill takes the complex approach of amending the existing Gender Recognition Act 2004, rather than legislating from scratch, with a new fully freestanding Scottish Bill. We presume that this is the only way that the Scottish Government felt able to get past the consensus position in 2004 that the Scottish Parliament’s legislative competence did not allow it to legislate for GRCs with effects in reserved areas.

In order to meet the UK Government’s objections, one of two two things in the Bill would therefore need to change: either GRCs issued under the Bill would have to be much more limited in their effect, or the rules for obtaining them from Scotland would need to be less radically altered. In other words, there is a high-level strategic political choice that would need to be made between these two priorities, that only the Scottish Government could make, before there would be any point it discussing anything further with UK counterparts.

Despite this, a series of letters (many available on the correspondence section of the Equalities Human Rights and Civil Justice Committee’s web page) have been sent by the Scottish Government and conveners of Scottish Parliament committees (in what looks like a choreographed set of moves) insisting more clarification is needed from the UK Government. The pressure for that additional input may reveal a failure on the part of the Scottish Government to understand the criticisms already put to it. That would be par for the course here: the points made by the UK Government are similar to ones made by the Equality and Human Rights Commission (EHRC) over the past year, the substance of which the Scottish Government appeared to have trouble processing. Otherwise, this correspondence might be a way of playing for time, or an attempt to get the UK Government to make additional statements which can in some way be used in any court proceedings.

Up to now, the Scottish Government has not looked inclined to change the Bill and suggested its preference is to challenge the lawfulness of the s35 Order. The current First Minister stated, even before having seen the UK Government’s reasoning, that the Scottish Government was looking at challenging the Order through the courts. That position might of course change with a change of First Minister. However, the desire for an all or nothing position on the Bill from its key backers outside government and inside the Parliament seems likely to remain the context. There has been no sign that any of the organisations which have been instrumental in persuading Ministers, and opposition parties, to support the Bill are likely to be advising compromise on any major aspect. Alex Cole-Hamilton MSP, Leader of the Scottish Liberal Democrats and one of the most prominent supporters of the Bill outside the governing coalition, has already rejected a suggestion that the Bill might be rescued by being changed, saying “if you look at the reasons, there is no way this bill can be amended to the satisfaction of the UK Government.” Sarwar has also previously been reported as arguing that the UK Government should release its legal advice to understand the basis on which it was taken so that others “see the basis on which [the Order] was made”, but no government can do this while any facing risk of legal action exists.

Conclusion

The Scottish Labour position, that the s35 Order being in place is an obstacle to any further work on the Bill, is technically back to front, even before the political or presentational issues of lifting it are considered. The suggestion that contested areas of the Act might be resolved by EHRC guidance is simply mistaken. The legal effects of acquiring a Gender Recognition Certificate on the operation of the Equality Act 2010 cannot be avoided by EHRC guidance, and are not the only objection raised by the UK Government.

More generally, however, in arguing that the UK Government needs to do more than it has to identify the way forward, both the Scottish Government and Scottish Labour fail to grasp a key point. UK Ministers have already made it clear that before any changes can be considered, the Scottish Government faces a strategic choice that only it can make, about its own priorities in reforming the GRA (what a GRC does vs who can get one and how), and whether it is willing to concede on either. Anyone advocating further negotiation faces that choice too, of course. UK Labour deputy leader Angela Rayner MP’s responses to questions about the Bryson case, in an interview just published here, suggest that UK Labour is also still processing what recent events in Scotland should mean for its own position.