Cross-border discussion on the Gender Recognition Reform Bill
On 21 January 2023 the Cabinet Secretary for Social Justice, Housing and Local Government Shona Robison MSP wrote to the Secretary of State for Scotland regarding the Gender Recognition Reform (Scotland) Bill and Section 35 order, which had been issued by the UK Government a few days earlier.
The letter from Ms Robison to the Secretary of State for Scotland referred to ongoing communication between the two governments ‘over the course of 2022’, described in the following terms:
‘Regular official-level meetings between SG, UKG and Northern Ireland officials on the GRR Bill and related issues. This included sharing of a draft Policy Summary for a Section 104 process, thematic discussions of relevant policy areas including pensions and benefits, passports and driving licenses, healthcare, young people, education, etc.’
Shona Robison, 21 January 2023
This blog looks further at that claim, and at what steps the Scottish Government took to engage with the UK Government over concerns being raised with it by the EHRC about the interaction of the Bill with the Equality Act 2010. Our analysis is also covered in The Times.
Meetings with UK Government officials
On 17 April 2023 we submitted a Freedom of Information request, asking for the following information relating to each of the meetings referred to in the passage from the 21 January letter quoted above:
MurrayBlackburnMackenzie, 17 April 2023
- ‘the agenda
- any papers submitted by SG to the meeting and the date submitted
- minutes and any other records held by SG, including any handwritten notes and internal or
external email exchanges, of what was discussed and agreed at these meetings.’
In response, the Scottish Government stated:
‘In 2022, a meeting between Scottish Government officials and officials from the UK Government Scotland Office took place on 4 May 2022. Meetings between Scottish Government officials and officials in the UK Government Equalities Office and Northern Ireland took place on 26 January 2022 and 29 April 2022. From and including 19 May 2022 meetings were the scheduled to take place every two weeks. It may be that some meetings were rescheduled or cancelled but we do not hold that information. There were not set agendas or minutes of those meetings.’
Scottish Government Gender Recognition Unit, 17 May 2023 FoI Response
The Scottish Government withheld any further information in its possession relevant to answering the request, citing various exemptions that allow government some necessary ability to conduct business and deal with other administrations in private, and not to disclose legal advice, where that is deemed to outweigh the public interest in disclosure.
We have asked for a review of this decision, as set out below, and will post the response here, once we receive it. The review request includes asking specifically about the availability of types of information that we would normally be expect to be recorded as standard in official minutes, and to clarify whether the absence of documents regarded as falling into that category also means that this information is not held.
‘The response suggests that the only non-exempt information the Scottish Government holds on the meetings referred to in its letter of 21 January, is the dates of 4 of these meetings between January and May.
This is a request for the refusal to provide any further information to be reviewed and specifically for it to examine and report on:
(a) whether as a point of fact the organisation holds information in any form on
- the dates of any other meetings
- the seniority of the attendees at these meetings (specifically, whether any from either Scotland or the UK were sufficiently senior not to have their names redacted)
- whether any Whitehall departments were represented other that the GEO and if so which
- the dates on which any of the subjects mentioned in the 21 January letter were discussed, and when any other subjects were
- whether the discussion of any of these was based on papers produced in advance by the Scottish government
- the outcome of the discussions
- whether and when the content of the meetings was reported to Ministers
and (b) where it does hold any such information, whether the various exemptions quoted can be reasonably applied to all of it, to the extent that copies of no papers held have been provided, even with some content redacted.’
MurrayBlackburnMackenzie, 1 June 2023
The Scottish Government has suggested that we should request information from the UK Government. For completeness, we will do that, although our focus here is to shed more light on what the Scottish Government did to engage with UK counterparts on a Bill it was promoting, in an area previously identified as having potential impacts in reserved areas, what it took from any such engagement, and on what basis.
Equality and Human Rights Commission
In January 2022 the Equality and Human Rights Commission wrote to the Scottish Government, setting out a number of serious concerns about the Bill, including the effects on the operation of the Equality Act 2010. The Commission reiterated these in correspondence with the Scottish Government over the course of 2022. Given the gravity of this intervention, we asked the Scottish Government if it had shared and discussed the concerns with the UK Government.
‘In relation to the letters sent to the Chair of the EHRC by the Cabinet Secretary for Social Justice, Housing and Local Government in relation to the above Bill on 31 January 2022, 21 February 2022, 19 May 2022 and 19 October 2022, please could you provide any information held on whether these were also sent to any UK government addressee, and if so who, on what date(s) and with what further comment. Please could you provide any records held of any discussion within the Scottish Government, and any involving any external organisations, of whether and how to share this correspondence with the UK government.’
MurrayBlackburnMackenzie, 17 April 2023
In response, the Scottish Government stated that:
‘As the correspondence was made public through the Committee at the time, there was no need to share with any UK government addressee. This is a formal notice under section 17(1) of FOISA that the Scottish Government does not have the information you have requested.’
Scottish Government, Gender Recognition Unit, 17 May 2023 FoI Response
It added that it could only provide a short extract from an email sent from the Scottish Government to the UK Government on 21 October 2022:
‘The Committee has also published our latest correspondence with EHRC here.’
It referred us to correspondence published on the Equalities, Human Rights and Civil Justice Committee website.
Analysis
In objecting to the use of powers under Section 35, the Scottish Government has drawn specific attention to the existence of cross-government meetings during 2022. Yet the FoI responses above show that whatever meetings there were between officials over the year were highly informal, to the extent that there were no agendas or minutes and the Scottish Government appears not even to have any record of the dates on which such meetings took place, after late May.
The Scottish Government’s response to today’s piece in The Times confirms the impression that any properly structured engagement was left very late:
‘As ministers have said previously, Scottish government and UK government officials met regularly to discuss the bill and its passage through the Scottish parliament. Scottish ministers also wrote directly to UK government ministers on the subject several months before a response was received.’
The Times, 1 June 2023
Unless a Scottish ministerial letter was omitted from the timeline produced by the Scottish Government in January (linked above), the reference here to a letter from Scottish Ministers appears to be to the one which Shona Robison MSP sent to Nadhim Zahawi, then UK Minister for Equalities, on 21 October 2022 “highlighting relevant policy decisions for UKG, committing to work together on a Section 104 process”. The Scottish Government’s timeline records that the reply to that was sent on 7 December (not after “several months”). Both letters are to date unpublished.
The EHRC first raised serious concerns with the Scottish Government about the potential impact of the Bill on the operation of the Equality Act in January 2022, before the Bill was introduced to Parliament, and continued to do so throughout the Bill’s progress. It is remarkable that at no point did Scottish Ministers think it was their role to alert their UK counterparts formally to the existence of these concerns, and their own responses, and that the Scottish Government does not even hold records of any internal discussion about whether this was needed.
The Scottish Government’s own court papers further describe Scottish Ministers taking no initiative to keep in touch with their opposite numbers as the Bill progressed through Holyrood. The first Scottish ministerial action noted in its petition to the court is:
‘On 19 December 2022, a call took place between the Cabinet Secretary and the Minister. That was the first discussion between the respective governments at ministerial level since the UK Government had been given notice of the Bill.’
Scottish Government court petition, 2023: paragraph 11
The Scottish Government’s petition, surprisingly, omits reference to the letter sent by Shona Robison on 21 October (both in the general narrative and in the list of relevant documents under in its possession or its control), although it does mention Kemi Badenoch MP’s response.
Conclusion
Events in the final 24 hours of the Bill process, as discussed further in this blog, suggested that any official-level discussions relating to the Bill’s cross-border effects had not been conducted in as much depth as might have been expected by that point. Responses by the then Minister and her officials at Committee in June had already indicated that the Scottish Government was not giving cross-border effects especially careful attention.
Not all inter-governmental discussion needs to happen through meetings, but the Scottish Government itself has chosen to highlight official-level meetings during the year as playing the central role here. The FoI response suggests, however, that these meetings were highly informal, calling into doubt any decision to rely on them, when it came to properly establishing the UK Government position on a piece of sensitive legislation, acknowledged since 2017 to have potential cross-border (including the devolved-reserved border) complications. In parallel, the Scottish Government assumed it had no obligation to copy its responses to the EHRC on issues affecting the Equality Act to the UK Government. It is difficult to look at this history and not conclude that, for whatever reason, the Scottish Government’s approach to cross-government liaison in relation to this Bill was surprisingly casual.