Conservative peer Lord Richard KeenImage caption: Conservative peer Lord Richard Keen
Legal minds are wondering whether there is a way through this.
Could the Scottish legislation be redrafted?
Lord Richard Keen, a Conservative peer, was Advocate General for Scotland from 2015 to
2020.
This morning, he told Radio 4's Today programme he hopes there can be a solution, but exactly what it would look like, is "a more complex question".
"It would require them to look again at what is actually meant here by gender reassignment and gender recognition
"Under the present legislation, it's necessary that there should be a medical diagnosis of gender dysphoria. The Scottish legislation would do away with that, it needs to be revisited with care."
WATCH: 'Bill would have serious adverse affects'
Video content
Video caption: I'd prefer not to be at legal loggerheads - Scottish secI'd prefer not to be at legal loggerheads - Scottish sec
Earlier this afternoon Scottish Secretary of State Alister Jack told the House of Commons why the gender reform bill will not be submitted for royal assent.
However, he did say he hoped there would be a constructive way forward between Holyrood and the UK government.
Government explains legal position of Section 35
HoCCopyright: HoC
The SNP's Westminster leader Stephen Flynn takes part in the emergency debateImage caption: The SNP's Westminster leader Stephen Flynn takes part in the emergency debate
The government has now published its "Statement of reasons" for invoking Section 35.
The document was referenced by Scottish Secretary Alister Jack repeatedly during his statement, but only published after the debate concluded.
The SNP's Westminster leader Stephen Flynn asked for the House of Commons to be suspended so MPs can read the documents before the start of the emergency debate on Section 35.
The chamber however is not suspended.
Several SNP MPs complain about the lack of detail they were given in the statement by Alister Jack. Pete Wishart calls the prcoess "an utter mess".
And they are supported by former Scottish secretary Alistair Carmicahel, who said the Scottish secretary "does not understand the concept of parliamentary accountability".
'The Tories are creating a diversion tactic'
Speaking to BBC Radio 5 Live, Veronica, who is a transgender woman, says: “Politically, the Tories are creating a diversion tactic to divert our attentions away from the mess we’re in like the cost of living, inflation and strikes”.
She added: “It’s a healthy distraction for them and they have some influential supporters who support the collapse of this bill”.
When questioned on the concerns raised about the bill impacting things such as same sex spaces and prisons, Veronica answered: “I don’t believe it has any effect on the issues that they raise.
“I just see those concerns as mudslinging and it makes the debate so toxic.”
Round up on Section 35 statement
If you're just joining us here's what you missed:
The Scottish Secretary Alister Jack said he will use
Section 35 of the Scotland Act for the first time to prevent the Scottish Gender
Recognition Bill from becoming law
The Bill would “have a serious adverse impact
among other things on the operation of the Equality Act 2010” including impacts
on “the operation of single-sex clubs, associations and schools and protections
such as equal pay," Jack argued. The use of Section 35 is "not about
preventing the Scottish Parliament from legislating on devolved matters"
but to ensure devolved legislation "does not have adverse impact" on
powers in the rest of the UK
Labour’s
shadow Scottish secretary Ian Murray said his party supports the principle of
reforming the Gender Recognition Act 2004 gender rights law, but said the
Westminster and Holyrood governments had ended up in a "constitutional bun
fight" due to political differences
SNP
spokesperson for Scotland Dr Philippa Whitford told the Commons: "Vetoing
this legislation is an unprecedented attack on the Scottish Parliament, which
passed the Gender Recognition Reform Bill 86 to 39, including MSPs from every
single party"
Senior
Conservative MP Sir Bernard Jenkin said it was time “for the SNP to respect the
devolution settlement”
Labour
MPs Rosie Duffield and Tonia Antoniazzi welcomed the government’s decision, but
several MPs including Hilary Benn questioned why the Scottish Recognition Bill impacts equalities law but the UK-wide Gender Recognition Act does not
The SNP's former leader in Westminster Ian Blackford said the use of Section 35 shows Scotland needs to "take away the threat" of intervention from the UK Government by leaving the Union
Conservative MPs, including Lee Anderson and Caroline Johnson accused the SNP of using the Gender Recognition Bill to create conflict with the UK government as part of its campaign for independence
Commons to debate Section 35 order
SNP Westminster leader Stephen Flynn asks the Speaker to allow an emergency debate in the Commons this afternoon on the Section 35 order.
The Speaker agrees and there will now be a two hour debate on the Section 35 order coming this afternoon.
For what is swiftly becoming a broad and ill-tempered
debate, it will ultimately hinge on a very specific question of law.
Nicola Sturgeon has promised a judicial review, which means
today’s section 35 order will be examined by the Court of Session in Edinburgh
– and perhaps, ultimately, the Supreme Court.
The Scotland Act sets out very specific tests which the
order must meet, and those are what will be scrutinised in court.
The UK government will need to show that the Holyrood bill
would “make modifications of the law as it applies to reserved matters” –
meaning matters which only Westminster can legislate on – and which they
“believe would have an adverse effect on the operation of the law” in the rest
of the UK.
This two-part test means there is a hard legal question to
answer – would the Holyrood bill actually modify UK law, in this case the 2010
Equality Act?
The UK government believes it would, but the Scottish government
rejects that outright. It will ultimately be down to judges to decide.
What happens next?
Helen Catt
Political correspondent
The UK government plans to enact the mechanism (section 35) to block the bill later today.
Alister Jack has suggested the Scottish Parliament could go back and alter the bill.
The Scottish First Minister Nicola Sturgeon has already said she's going to challenge the decision in the courts though, so it looks like that's where this is headed.
Tory MPs accuse SNP of using trans issues to push for independence
Several Conservative MPs have accused the SNP of using the Gender Recognition Bill as part of its campaign for independence.
Dr Caroline Johnson, Tory MP for Sleaford & North Hykeham, said the SNP were "using women, girls and transgender people as pawns in a separatist agenda".
The SNP rushed the bill through parliament to create conflict with the UK government, she argued.
Later, Lee Anderson, Conservative MP for Ashfield said the bill was "a cynical attempt on their pathetic pathway to independence".
Independence would protect our parliament, says Blackford
Ian Blackford, the Scottish National Party MP for Ross, Skye and Lochaber, says this case "absolutely demonstrates that power devolved is power retained".
"We accept that the Secretary of State has the powers enshrined in the Scotland Act under section 35", he says, "but what the Secretary of State has just done is ignored the fact that parties that voted for this in Scottish Parliament had a manifesto commitment."
What the UK government is doing, he argues, is show everybody in Scotland that they need to take away the threat of action from ministers in Westminster.
"The only way we protect our parliament is by Scotland becoming independent, " he says.
Alister Jack clearly anticipated Blackford's response, because he says: "Mr Speaker, I've just won a £10 note."
Former Attorney General says SNP do not accept devolution
Former attorney general Jeremy Wright, a Conservative, has argued that the SNP's response to section 35 demonstrates the party do not accept devolution.
"The central point is devolution is not the same as independence... much to the disappointment of some I accept" Mr Wright said to jeers from the SNP benches.
"Every devolved legislature has to legislate with consideration
for other parts of UK," he added.
"If that does not happen section 35 is appropriate instrument
to use."
In response, Alister Jack said devolution was "about granting power no giving powers away".
A bad tempered display in the Commons
Helen Catt
Political correspondent
The anger on the SNP benches is clear - and vocal.
Alister Jack’s statement was short but provoked angry
heckles throughout.
They shouted “shame” as he said he would enact the legal
blocking mechanism today.
His argument that there couldn’t be two different systems
of gender recognition operating in the UK drew the reply: “change yours then”.
Labour’s Shadow Scotland Secretary Ian Murray was heckled
too as he criticised both the UK and Scottish governments.
Urgent question to be raised at Holyrood at around 17:00
In Holyrood, the Scottish Parliament's presiding officer has selected an urgent question on the constitutional situation which will be taken in the
chamber this afternoon.
Labour MSP Monica Lennon will ask the Scottish government what its response is to
the Secretary of State for Scotland making an order under section 35 of the
Scotland Act 1998, preventing the Scottish Parliament’s Gender Recognition
Reform (Scotland) Bill from proceeding to royal assent.
An unprecedented attack on Scottish Parliament - SNP
BBCCopyright: BBC
Dr Philippa Whitford, for the SNP, says "vetoing this legislation is an unprecedented attack" on the Scottish Parliament.
She says the gender reform bill is a devolved policy area and it does not impact the 2010 Equality Act.
Whitford says the change is in keeping with guidance from bodies such as the UN regarding the legal statutory process based on self-identification which has been made by many other countries.
She asks why the Scottish Secretary of State Alister Jack is "using one of the most marginalised groups in society to pick a fight with the Scottish Parliament?"
Sturgeon has tried to turn this into a political battle - Douglas Ross
Douglas Ross says the UK government has sought to constructively engage with the Scottish government during the passage of this bill prior to it being voted on at Holyrood.
The Scottish Conservative leader adds: "Yet Nicola Sturgeon has tried to turn this into a political battle between the Scottish and UK governments, when all, as I understand it the Scottish secretary and this government are trying to do is protect women's rights."
He says: "Despite the howls that we're getting from the SNP can the Scottish secretary confirm that all the SNP have to do is bring forward a bill in the Scottish Parliament that protects the rights of women and girls across the UK."
The Scottish secretary says yes and adds he has written to the first minister and suggested they meet to resolve these issues.
Labour support updating Gender Recognition Act
House of CommonsCopyright: House of Commons
In his response to the statement, Labour's shadow Scottish secretary Ian Murray says this is an "incredibly serious moment".
He says the procedure being invoked by the UK government to block the gender reform bill - section 35 - was designed to be used as a "matter of last resort".
He says there is now a situation where the Scottish government in Edinburgh is "hellbent on breaking devolution", and a Conservative government in Westminster that's "hellbent on ignoring it".
He went on to say his party would support updating the UK-wide Gender Recognition Act.
He says that when it was introduced in 2004, under a Labour government, it was "world-leading".
"Two decades on it needs modernisation to humanise and remove the
indignities in this dreadful process," he added.
"We have ended up in a legal and constitutional impasse.
"What is [Alister
Jack] going to do to resolve it?"
Jack sets out 'adverse affects' on UK Equality Act
Jack lists what he calls "adverse adfects" of the bill on the operation of the Equality Act 2010, saying the government will publish this in full.
He says the Scottish bill would affect the "operations of single sex clubs, associations and clubs and protections like equal pay".
He says there would be "significant complications of having two systems" of recognition in the UK and the Scottish bill would enable "more fraudulent and bad faith applications".
Section 35 is not about exercising vetos, says Jack
Jack says this is the first time the power has been exercised. He says the power was included by the architects of devolution for a good reason.
It provides a sensible measure, he says. It's not not about preventing Scottish parliament from deciding devolved matters.
And it is not about the UK government being able to veto Scottish legislation.
He says he'd prefer not to be in this situation. He says he does everything he can to respect the devolution settlement but Scotland needs to bring back an amended bill.
'Section 35 is not a constitutional outrage'
Alister Jack turns to the SNP MPs in the chamber, who he says are "seeking to politicise this decision".
He argues that the Section 35 order is not "some sort of constitutional outrage".
The Scottish Secretary says: "This is the first time the power has been exercised and I acknowledge this is a significant decision."
But he argues Section 35 "strikes an important balance" to ensure devolved legislation "does not have adverse impact" on powers in the rest of the UK.
This is "not
about preventing the Scottish Parliament from legislating on devolved matters", he adds.
I have not taken this decision lightly - Alister Jack
BBCCopyright: BBC
Scottish Secretary of State Alister Jack is on his feet in the House of Commons.
He says the Scottish parliament's gender reform bill will not be submitted for royal assent as it will have an "adverse impact" on the Equality Act of 2010, which affects legislation in Scotland as well as England and Wales.
Jack says transgender people "deserve respect, support and understanding," and that the decision has not been taken lightly.
Live Reporting
Edited by Jeremy Gahagan and Alex Binley
All times stated are UK
Get involved
Is there a solution?
Legal minds are wondering whether there is a way through this.
Could the Scottish legislation be redrafted?
Lord Richard Keen, a Conservative peer, was Advocate General for Scotland from 2015 to 2020.
This morning, he told Radio 4's Today programme he hopes there can be a solution, but exactly what it would look like, is "a more complex question".
"It would require them to look again at what is actually meant here by gender reassignment and gender recognition
"Under the present legislation, it's necessary that there should be a medical diagnosis of gender dysphoria. The Scottish legislation would do away with that, it needs to be revisited with care."
WATCH: 'Bill would have serious adverse affects'
Video content
Earlier this afternoon Scottish Secretary of State Alister Jack told the House of Commons why the gender reform bill will not be submitted for royal assent.
However, he did say he hoped there would be a constructive way forward between Holyrood and the UK government.
Government explains legal position of Section 35
The government has now published its "Statement of reasons" for invoking Section 35.
The document was referenced by Scottish Secretary Alister Jack repeatedly during his statement, but only published after the debate concluded.
The SNP's Westminster leader Stephen Flynn asked for the House of Commons to be suspended so MPs can read the documents before the start of the emergency debate on Section 35.
The chamber however is not suspended.
Several SNP MPs complain about the lack of detail they were given in the statement by Alister Jack. Pete Wishart calls the prcoess "an utter mess".
And they are supported by former Scottish secretary Alistair Carmicahel, who said the Scottish secretary "does not understand the concept of parliamentary accountability".
'The Tories are creating a diversion tactic'
Speaking to BBC Radio 5 Live, Veronica, who is a transgender woman, says: “Politically, the Tories are creating a diversion tactic to divert our attentions away from the mess we’re in like the cost of living, inflation and strikes”.
She added: “It’s a healthy distraction for them and they have some influential supporters who support the collapse of this bill”.
When questioned on the concerns raised about the bill impacting things such as same sex spaces and prisons, Veronica answered: “I don’t believe it has any effect on the issues that they raise.
“I just see those concerns as mudslinging and it makes the debate so toxic.”
Round up on Section 35 statement
If you're just joining us here's what you missed:
Commons to debate Section 35 order
SNP Westminster leader Stephen Flynn asks the Speaker to allow an emergency debate in the Commons this afternoon on the Section 35 order.
The Speaker agrees and there will now be a two hour debate on the Section 35 order coming this afternoon.
It will ultimately be down to judges to decide
Philip Sim
BBC Scotland political correspondent
For what is swiftly becoming a broad and ill-tempered debate, it will ultimately hinge on a very specific question of law.
Nicola Sturgeon has promised a judicial review, which means today’s section 35 order will be examined by the Court of Session in Edinburgh – and perhaps, ultimately, the Supreme Court.
The Scotland Act sets out very specific tests which the order must meet, and those are what will be scrutinised in court.
The UK government will need to show that the Holyrood bill would “make modifications of the law as it applies to reserved matters” – meaning matters which only Westminster can legislate on – and which they “believe would have an adverse effect on the operation of the law” in the rest of the UK.
This two-part test means there is a hard legal question to answer – would the Holyrood bill actually modify UK law, in this case the 2010 Equality Act?
The UK government believes it would, but the Scottish government rejects that outright. It will ultimately be down to judges to decide.
What happens next?
Helen Catt
Political correspondent
The UK government plans to enact the mechanism (section 35) to block the bill later today.
Alister Jack has suggested the Scottish Parliament could go back and alter the bill.
The Scottish First Minister Nicola Sturgeon has already said she's going to challenge the decision in the courts though, so it looks like that's where this is headed.
Tory MPs accuse SNP of using trans issues to push for independence
Several Conservative MPs have accused the SNP of using the Gender Recognition Bill as part of its campaign for independence.
Dr Caroline Johnson, Tory MP for Sleaford & North Hykeham, said the SNP were "using women, girls and transgender people as pawns in a separatist agenda".
The SNP rushed the bill through parliament to create conflict with the UK government, she argued.
Later, Lee Anderson, Conservative MP for Ashfield said the bill was "a cynical attempt on their pathetic pathway to independence".
Independence would protect our parliament, says Blackford
Ian Blackford, the Scottish National Party MP for Ross, Skye and Lochaber, says this case "absolutely demonstrates that power devolved is power retained".
"We accept that the Secretary of State has the powers enshrined in the Scotland Act under section 35", he says, "but what the Secretary of State has just done is ignored the fact that parties that voted for this in Scottish Parliament had a manifesto commitment."
What the UK government is doing, he argues, is show everybody in Scotland that they need to take away the threat of action from ministers in Westminster.
"The only way we protect our parliament is by Scotland becoming independent, " he says.
Alister Jack clearly anticipated Blackford's response, because he says: "Mr Speaker, I've just won a £10 note."
Former Attorney General says SNP do not accept devolution
Former attorney general Jeremy Wright, a Conservative, has argued that the SNP's response to section 35 demonstrates the party do not accept devolution.
"The central point is devolution is not the same as independence... much to the disappointment of some I accept" Mr Wright said to jeers from the SNP benches.
"Every devolved legislature has to legislate with consideration for other parts of UK," he added.
"If that does not happen section 35 is appropriate instrument to use."
In response, Alister Jack said devolution was "about granting power no giving powers away".
A bad tempered display in the Commons
Helen Catt
Political correspondent
The anger on the SNP benches is clear - and vocal.
Alister Jack’s statement was short but provoked angry heckles throughout.
They shouted “shame” as he said he would enact the legal blocking mechanism today.
His argument that there couldn’t be two different systems of gender recognition operating in the UK drew the reply: “change yours then”.
Labour’s Shadow Scotland Secretary Ian Murray was heckled too as he criticised both the UK and Scottish governments.
Urgent question to be raised at Holyrood at around 17:00
In Holyrood, the Scottish Parliament's presiding officer has selected an urgent question on the constitutional situation which will be taken in the chamber this afternoon.
Labour MSP Monica Lennon will ask the Scottish government what its response is to the Secretary of State for Scotland making an order under section 35 of the Scotland Act 1998, preventing the Scottish Parliament’s Gender Recognition Reform (Scotland) Bill from proceeding to royal assent.
An unprecedented attack on Scottish Parliament - SNP
Dr Philippa Whitford, for the SNP, says "vetoing this legislation is an unprecedented attack" on the Scottish Parliament.
She says the gender reform bill is a devolved policy area and it does not impact the 2010 Equality Act.
Whitford says the change is in keeping with guidance from bodies such as the UN regarding the legal statutory process based on self-identification which has been made by many other countries.
She asks why the Scottish Secretary of State Alister Jack is "using one of the most marginalised groups in society to pick a fight with the Scottish Parliament?"
Sturgeon has tried to turn this into a political battle - Douglas Ross
Douglas Ross says the UK government has sought to constructively engage with the Scottish government during the passage of this bill prior to it being voted on at Holyrood.
The Scottish Conservative leader adds: "Yet Nicola Sturgeon has tried to turn this into a political battle between the Scottish and UK governments, when all, as I understand it the Scottish secretary and this government are trying to do is protect women's rights."
He says: "Despite the howls that we're getting from the SNP can the Scottish secretary confirm that all the SNP have to do is bring forward a bill in the Scottish Parliament that protects the rights of women and girls across the UK."
The Scottish secretary says yes and adds he has written to the first minister and suggested they meet to resolve these issues.
Labour support updating Gender Recognition Act
In his response to the statement, Labour's shadow Scottish secretary Ian Murray says this is an "incredibly serious moment".
He says the procedure being invoked by the UK government to block the gender reform bill - section 35 - was designed to be used as a "matter of last resort".
He says there is now a situation where the Scottish government in Edinburgh is "hellbent on breaking devolution", and a Conservative government in Westminster that's "hellbent on ignoring it".
He went on to say his party would support updating the UK-wide Gender Recognition Act.
He says that when it was introduced in 2004, under a Labour government, it was "world-leading".
"Two decades on it needs modernisation to humanise and remove the indignities in this dreadful process," he added.
"We have ended up in a legal and constitutional impasse.
"What is [Alister Jack] going to do to resolve it?"
Jack sets out 'adverse affects' on UK Equality Act
Jack lists what he calls "adverse adfects" of the bill on the operation of the Equality Act 2010, saying the government will publish this in full.
He says the Scottish bill would affect the "operations of single sex clubs, associations and clubs and protections like equal pay".
He says there would be "significant complications of having two systems" of recognition in the UK and the Scottish bill would enable "more fraudulent and bad faith applications".
Section 35 is not about exercising vetos, says Jack
Jack says this is the first time the power has been exercised. He says the power was included by the architects of devolution for a good reason.
It provides a sensible measure, he says. It's not not about preventing Scottish parliament from deciding devolved matters.
And it is not about the UK government being able to veto Scottish legislation.
He says he'd prefer not to be in this situation. He says he does everything he can to respect the devolution settlement but Scotland needs to bring back an amended bill.
'Section 35 is not a constitutional outrage'
Alister Jack turns to the SNP MPs in the chamber, who he says are "seeking to politicise this decision".
He argues that the Section 35 order is not "some sort of constitutional outrage".
The Scottish Secretary says: "This is the first time the power has been exercised and I acknowledge this is a significant decision."
But he argues Section 35 "strikes an important balance" to ensure devolved legislation "does not have adverse impact" on powers in the rest of the UK.
This is "not about preventing the Scottish Parliament from legislating on devolved matters", he adds.
I have not taken this decision lightly - Alister Jack
Scottish Secretary of State Alister Jack is on his feet in the House of Commons.
He says the Scottish parliament's gender reform bill will not be submitted for royal assent as it will have an "adverse impact" on the Equality Act of 2010, which affects legislation in Scotland as well as England and Wales.
Jack says transgender people "deserve respect, support and understanding," and that the decision has not been taken lightly.