‘Outrageous decision’ - Scotland’s social justice secretary
Shona Robison has criticised Westminster’s
move to stop the Gender Recognition Reform Bill from obtaining royal assent, dismissing
the suggestion it would impact on wider equalities legislation.
In her role as Scotland's cabinet secretary for social justice, she introduced the bill to the Scottish Parliament.
“This is a dark day for trans
rights and a dark day for democracy in the UK,” she said, adding that Westminster
had “multiple opportunities to comment during the extensive consultation on the bill and during its passage.
“We are confident that the legislation
as passed is within legislative competence of the Scottish Parliament.
“We will examine the reasons
which the UK Government give for their order once we have them, but take
whatever steps we can to ensure that the democratic will of the Scottish Parliament
is not frustrated.”
Earlier First Minister Nicola Sturgeon described the move as a "full-frontal attack on our democratically elected Scottish Parliament".
Scotland's Social Justice Secretary Shona RobisonImage caption: Scotland's Social Justice Secretary Shona Robison
Scottish secretary says he has 'not taken this decision lightly'
If you're just joining our live coverage, the UK government has decided to block a controversial Scottish bill designed to make it easier for people to change their legally recognised gender.
Scottish Secretary Alister Jack has written to Scotland's First Minister Nicola Sturgeon and Social Justice Secretary Shona Robison outlining his reasons for the decision.
Mr Jack will take the legal steps on Tuesday to confirm the veto and said he had "not taken this decision lightly".
He said the bill would have a "significant impact" on GB-wide equalities law, citing the impact on single-sex associations and clubs and rules on equal pay.
He added that UK ministers would "work together" with the Scottish government if agreed to bring forward an amended bill.
You can read the full text of his letter in the tweet below.
The comments were reported far and wide and may have led the UK government to show their hand a little earlier.
The Scottish Secretary Alister Jack said late this afternoon that he was concerned the legislation would have an adverse impact on GB equalities legislation - and triggered the block.
With the first minister saying this was a full-frontal attack on devolution, it’s now “see you in court” time.
Meanwhile, Scottish Labour have been sitting quietly and not taking questions on why their MSPs voted for 16 and 17 year olds to legally change gender after the UK leader Sir Keir Starmer said they were too young.
Who voted for the bill?
Jane Barlow/PACopyright: Jane Barlow/PA
Campaigners outside of the Scottish parliament ahead of the voteImage caption: Campaigners outside of the Scottish parliament ahead of the vote
The Scottish Parliament held a marathon debate ironing out the details of the Gender Recognition Bill in December.
MSPs considered 150 proposed amendments, including failed attempts to restrict rights for sex offenders, add safeguards in women's prisons, protect single sex services for vulnerable women and faith groups, along with measures for women's sport and commitments to data collection.
There was anger from some MSPs over attempts by the Scottish Conservatives to delay the process in the chamber by raising repeated points of order and pushing every amendment to a vote.
Two thirds of the Scottish MSPs voted in favour of the reforms, including opposition parties. The bill was backed by most SNP, Labour, Liberal Democrat and Scottish Green MSPs.
It was opposed by the majority of Conservatives, who accused the government of attempting to avoid proper scrutiny of the legislation by rushing it through before Christmas.
Analysis
A major and unique intervention by UK government
Glenn Campbell
BBC Scotland Political Editor
This is a major and unique intervention from the UK
government.
They have successfully challenged Holyrood legislation
before on the basis that MSPs exceeded their powers.
They have never blocked a Scottish bill on the basis that
they think it will have a negative impact on UK law, in this case the
Equality Act.
This decision turns a dispute about the process for
legally changing gender into a significant constitutional clash between the
Scottish and UK governments.
I am told the UK Labour party will not challenge this
intervention but some Scottish Labour MSPs are furious that gender reforms they
helped pass are being stopped.
While UK ministers have suggested the bill could be
modified, Scottish ministers have made clear they intend to defend what
Holyrood has approved - which probably means this dispute ends up in court.
"The Section 35 procedure has never been used before. Although it looks like it is a prohibition from Westminster, like any order or decision of a secretary of state it is open to legal challenge."
Professor Trench thought this was a way of kicking this legislation across to the Supreme Court.
He said ultimately it would be for the court to decide the legal issue which had been raised - the interplay between the Scottish legislation and reserved equalities legislation.
Professor Trench said any judicial review would move very quickly to the Supreme Court and there was little doubt the Scottish government would want to challenge this in court.
Why is the bill controversial?
PA MediaCopyright: PA Media
Trans campaigners welcomed the bill as it would make the process of legally transitioning easier.
It would see a self-identification approach to gender adopted in Scotland, which would streamline the process and remove the need for a medical diagnosis.
Campaigners say the current system, which requires trans people to live as their preferred gender for at least two years before obtaining a gender recognition certificate, is needlessly drawn out and complicated.
However critics of the plans raised concerns that allowing anyone to "self-identify" as a woman could affect women's rights and access to single-sex spaces like refuges, hospital wards and changing rooms.
They have also said that people under 18 should not be able to make decisions about legally changing their gender.
The Equalities and Human Rights Commission said that the current system provides "the correct balanced legal framework that protects everyone."
What do the public think?
BBCCopyright: BBC
More women than men supported the reformsImage caption: More women than men supported the reforms
A survey conducted for the BBC last year suggested general sympathy towards trans people alongside uncertainty over some of the details of Scotland's gender reforms.
On every question asked in the survey, support for transgender rights was higher among younger people. Women were also generally more supportive than men.
A majority of people (57%) supported making the process to acquire a gender recognition certificate easier - but that support dropped when asked about specific proposals.
However reducing the minimum age a person can apply for legal gender recognition from 18 to 16 was opposed by a majority of people.
Sir John Curtice: Public don't feel strongly about this issue
Sir John Curtice, a professor of politics at the University of Strathclyde, told BBC Radio Scotland's Drivetime that although the gender reform legislation was overwhelmingly passed at Holyrood, the proposals were not particularly popular in the wider public.
He cited the two polls before the Holyrood debate in December which suggested two and three to one against the proposals among the wider public.
Sir John said there was a latent feeling among the Scottish public that once you get beyond foreign affairs and defence, Scottish decisions should be made by the Scottish Parliament.
The psephologist told the BBC the issue of gender recognition was not one which many members of the public feel very strongly about.
He said even amongst supporters of the SNP it was not clear there was support for this legislation and he was not sure in the end, big and controversial though this debate is, it will move the dial on the constitutional question on independence.
The Scottish political parties react
Jane Barlow/PA WireCopyright: Jane Barlow/PA Wire
Scottish Green Party MSP Maggie ChapmanImage caption: Scottish Green Party MSP Maggie Chapman
The UK
government’s use of a Section 35 order to block the controversial Scottish bill
from becoming law “sets a very alarming new precedent”, the Scottish Greens’
equalities spokesperson has said.
Maggie Chapman MSP says the
move should “concern everyone who believes in devolution and wants the Scottish
Parliament to exist”.
She adds it
is a “dark day for our devolution settlement, for democracy, and for
trans rights".
The Scottish Greens have a power-sharing agreement with the SNP, meaning they are part of the Scottish government.
Meanwhile the Scottish Conservatives said the UK government were left with "little option" to make a Section 35 order, accusing the Scottish government of trying to rush through the legislation "at breakneck speed".
Their equalities spokesperson Rachael Hamilton added: “I hope, rather than turning this issue into a constitutional football, the first minister will now revisit this legislation.”
Scottish Labour's Ian Murray called on both governments to "get round the table and find workable solutions", warning against "political posturing".
How can a bill be blocked?
UK ministers can stop a bill becoming law by using Section 35 of the Scotland Act, the legislation which created a Scottish Parliament with powers to make laws on a range of issues.
If they think a Holyrood bill would modify laws reserved to Westminster and have an "adverse effect" on how those laws apply, they can block it. But the power has not been used up to now.
A Section 35 order allows UK ministers to stop a Scottish bill from getting royal assent, which is when the King formally agrees to pass the bill into law.
Only the secretary of State for Scotland has the power to block a Holyrood bill. As we have been reporting, Alister Jack has done this calling it "the necessary and correct course of action".
Analysis
How the first minister could defend the gender reform bill
The first minister says the Scottish government will defend
its legislation. But how?
There are two places where a Section 35 order can be
challenged.
One of them is Westminster – when the order itself is
tabled, it could be annulled by a vote in either the Commons or the Lords. The
SNP is likely to at least push for a vote, and there will be pressure on Labour
to take a side.
The other is the courts. Most constitutional showdowns end
up in the Supreme Court in London, but this one could at least start in
Edinburgh.
The Scottish government could lodge a judicial review at the
Court of Session challenging the terms of the order, if they believe they can
show that there were not reasonable grounds to make it.
We should find out what those grounds were when the order
itself is published tomorrow – under the terms of the Scotland Act, UK
ministers must provide the precise legal reasons why they have sought to block
this legislation.
For Women Scotland, an organisation who describe themselves as "working to protect and strengthen women and children's rights", has tweeted in support of the UK government's decision to block the Gender Recognition Reform (Scotland) Bill.
The group, which campaigned against the bill, says the Scottish Parliament has 'no "right" to pass legislation that pertains to reserved matters'.
They also say that Section 35 - the mechanism UK ministers are using to block the bill - was supported by the SNP. "They have never tried to amend it," the group added.
In a separate post on Twitter, they say they hope no more parliamentary time or money is wasted "on railroading this terrible bill".
'This is the nuclear option' - Stonewall
Stonewall says the decision to block the Gender Recognition Reform (Scotland) Bill is the "nuclear option", calling it an "unprecedented
move which significantly undermines the devolution settlement and will unlock
constitutional and diplomatic strife.”
The charity says Westminster should be focussed on “developing and implementing a strategy
that improves the lives of all LGBTQ+ people, including trans people, not
causing them more harm”.
“This is a piece
of legislation that simply seeks to make the process for legally recognising a
trans man or trans women’s gender more respectful and straightforward.”
Meanwhile Scottish Trans - which is a trans equality project under the Equality Network charity - said it fully expected the Scottish government to challenge the decision through the courts.
Manager Vic Valentine said: "For the UK government to seek to block the Scottish democratic process
in this way, simply because they disagree with the welcome decision the
Scottish Parliament has made to improve trans people’s lives, is unacceptable."
What were the proposed Scottish gender reforms?
The Scottish government wanted to simplify and speed up the existing process for obtaining a gender recognition certificate (GRC), the legal recognition of a trans person's gender.
The bill sought to remove the previously-required medical diagnosis of gender dysphoria.
This is a "mismatch" between their biological sex (whether they were born physically male or female) and their gender identity (the way in which they see and describe themselves).
The bill would also lower the age that people can apply for a GRC from 18 to 16.
And it would shorten the amount of time a person would need to have lived full-time in their acquired gender from at least two years to three months, or six months for those under 18.
MSPs voted to pass the Gender Recognition Bill by 86 votes to 39 in December.
Blocking gender reform is full-frontal attack on Scottish Parliament - Sturgeon
First Minister Nicola Sturgeon has called the decision to block the Gender Recognition Reform (Scotland) bill a "full-frontal attack" on the Scottish Parliament.
She warns if the Westminster veto succeeds, it will be the "first of many".
A spokesperson for the first minister added: "It is an outrage and will be contested vigorously by the
Scottish government."
Scottish secretary says blocking bill was 'necessary and correct'
PA MediaCopyright: PA Media
Alister JackImage caption: Alister Jack
Scottish Secretary Alister Jack said he had not taken the decision lightly.
"The bill would have a
significant impact on, amongst other things, GB-wide equalities matters in
Scotland, England and Wales," he said.
"I have concluded, therefore, that this is the
necessary and correct course of action.
“If the Scottish government chooses to bring an amended bill back
for reconsideration in the Scottish Parliament, I hope we can work together to
find a constructive way forward that both respects devolution and the operation
of UK Parliament legislation."
BreakingUK government to block Scottish gender bill
The UK government has decided to block a controversial Scottish bill designed to make it easier for people to change their legally recognised gender.
Live Reporting
Edited by Jeremy Gahagan and Alex Binley
All times stated are UK
Get involved
‘Outrageous decision’ - Scotland’s social justice secretary
Shona Robison has criticised Westminster’s move to stop the Gender Recognition Reform Bill from obtaining royal assent, dismissing the suggestion it would impact on wider equalities legislation.
In her role as Scotland's cabinet secretary for social justice, she introduced the bill to the Scottish Parliament.
“This is a dark day for trans rights and a dark day for democracy in the UK,” she said, adding that Westminster had “multiple opportunities to comment during the extensive consultation on the bill and during its passage.
“We are confident that the legislation as passed is within legislative competence of the Scottish Parliament.
“We will examine the reasons which the UK Government give for their order once we have them, but take whatever steps we can to ensure that the democratic will of the Scottish Parliament is not frustrated.”
Earlier First Minister Nicola Sturgeon described the move as a "full-frontal attack on our democratically elected Scottish Parliament".
Scottish secretary says he has 'not taken this decision lightly'
If you're just joining our live coverage, the UK government has decided to block a controversial Scottish bill designed to make it easier for people to change their legally recognised gender.
Scottish Secretary Alister Jack has written to Scotland's First Minister Nicola Sturgeon and Social Justice Secretary Shona Robison outlining his reasons for the decision.
Mr Jack will take the legal steps on Tuesday to confirm the veto and said he had "not taken this decision lightly".
He said the bill would have a "significant impact" on GB-wide equalities law, citing the impact on single-sex associations and clubs and rules on equal pay.
He added that UK ministers would "work together" with the Scottish government if agreed to bring forward an amended bill.
You can read the full text of his letter in the tweet below.
From smiles in Inverness last week.... to 'see you in court'
Andrew Kerr
Scottish political correspondent
It was all smiles when the prime minister met the first minister in Inverness last Thursday night ahead of the green freeports announcement.
Perhaps that was a bit of good news the UK government had to get out the way before this week’s deadline.
Nicola Sturgeon warned in her health briefing this morning that trans people should not be used as a “political weapon”.
The comments were reported far and wide and may have led the UK government to show their hand a little earlier.
The Scottish Secretary Alister Jack said late this afternoon that he was concerned the legislation would have an adverse impact on GB equalities legislation - and triggered the block.
With the first minister saying this was a full-frontal attack on devolution, it’s now “see you in court” time.
Meanwhile, Scottish Labour have been sitting quietly and not taking questions on why their MSPs voted for 16 and 17 year olds to legally change gender after the UK leader Sir Keir Starmer said they were too young.
Who voted for the bill?
The Scottish Parliament held a marathon debate ironing out the details of the Gender Recognition Bill in December.
MSPs considered 150 proposed amendments, including failed attempts to restrict rights for sex offenders, add safeguards in women's prisons, protect single sex services for vulnerable women and faith groups, along with measures for women's sport and commitments to data collection.
There was anger from some MSPs over attempts by the Scottish Conservatives to delay the process in the chamber by raising repeated points of order and pushing every amendment to a vote.
But the bill was finally passed by 86 votes to 39.
Two thirds of the Scottish MSPs voted in favour of the reforms, including opposition parties. The bill was backed by most SNP, Labour, Liberal Democrat and Scottish Green MSPs.
It was opposed by the majority of Conservatives, who accused the government of attempting to avoid proper scrutiny of the legislation by rushing it through before Christmas.
A major and unique intervention by UK government
Glenn Campbell
BBC Scotland Political Editor
This is a major and unique intervention from the UK government.
They have successfully challenged Holyrood legislation before on the basis that MSPs exceeded their powers.
They have never blocked a Scottish bill on the basis that they think it will have a negative impact on UK law, in this case the Equality Act.
This decision turns a dispute about the process for legally changing gender into a significant constitutional clash between the Scottish and UK governments.
I am told the UK Labour party will not challenge this intervention but some Scottish Labour MSPs are furious that gender reforms they helped pass are being stopped.
While UK ministers have suggested the bill could be modified, Scottish ministers have made clear they intend to defend what Holyrood has approved - which probably means this dispute ends up in court.
'We are in uncharted territory'
Constitutional expert Alan Trench told BBC Radio Scotland's Drivetime: "We are in unchartered territory.
"The Section 35 procedure has never been used before. Although it looks like it is a prohibition from Westminster, like any order or decision of a secretary of state it is open to legal challenge."
Professor Trench thought this was a way of kicking this legislation across to the Supreme Court.
He said ultimately it would be for the court to decide the legal issue which had been raised - the interplay between the Scottish legislation and reserved equalities legislation.
Professor Trench said any judicial review would move very quickly to the Supreme Court and there was little doubt the Scottish government would want to challenge this in court.
Why is the bill controversial?
Trans campaigners welcomed the bill as it would make the process of legally transitioning easier.
It would see a self-identification approach to gender adopted in Scotland, which would streamline the process and remove the need for a medical diagnosis.
Campaigners say the current system, which requires trans people to live as their preferred gender for at least two years before obtaining a gender recognition certificate, is needlessly drawn out and complicated.
However critics of the plans raised concerns that allowing anyone to "self-identify" as a woman could affect women's rights and access to single-sex spaces like refuges, hospital wards and changing rooms.
They have also said that people under 18 should not be able to make decisions about legally changing their gender.
The Equalities and Human Rights Commission said that the current system provides "the correct balanced legal framework that protects everyone."
What do the public think?
A survey conducted for the BBC last year suggested general sympathy towards trans people alongside uncertainty over some of the details of Scotland's gender reforms.
On every question asked in the survey, support for transgender rights was higher among younger people. Women were also generally more supportive than men.
A majority of people (57%) supported making the process to acquire a gender recognition certificate easier - but that support dropped when asked about specific proposals.
However reducing the minimum age a person can apply for legal gender recognition from 18 to 16 was opposed by a majority of people.
Sir John Curtice: Public don't feel strongly about this issue
Sir John Curtice, a professor of politics at the University of Strathclyde, told BBC Radio Scotland's Drivetime that although the gender reform legislation was overwhelmingly passed at Holyrood, the proposals were not particularly popular in the wider public.
He cited the two polls before the Holyrood debate in December which suggested two and three to one against the proposals among the wider public.
Sir John said there was a latent feeling among the Scottish public that once you get beyond foreign affairs and defence, Scottish decisions should be made by the Scottish Parliament.
The psephologist told the BBC the issue of gender recognition was not one which many members of the public feel very strongly about.
He said even amongst supporters of the SNP it was not clear there was support for this legislation and he was not sure in the end, big and controversial though this debate is, it will move the dial on the constitutional question on independence.
The Scottish political parties react
The UK government’s use of a Section 35 order to block the controversial Scottish bill from becoming law “sets a very alarming new precedent”, the Scottish Greens’ equalities spokesperson has said.
Maggie Chapman MSP says the move should “concern everyone who believes in devolution and wants the Scottish Parliament to exist”.
She adds it is a “dark day for our devolution settlement, for democracy, and for trans rights".
The Scottish Greens have a power-sharing agreement with the SNP, meaning they are part of the Scottish government.
Meanwhile the Scottish Conservatives said the UK government were left with "little option" to make a Section 35 order, accusing the Scottish government of trying to rush through the legislation "at breakneck speed".
Their equalities spokesperson Rachael Hamilton added: “I hope, rather than turning this issue into a constitutional football, the first minister will now revisit this legislation.”
Scottish Labour's Ian Murray called on both governments to "get round the table and find workable solutions", warning against "political posturing".
How can a bill be blocked?
UK ministers can stop a bill becoming law by using Section 35 of the Scotland Act, the legislation which created a Scottish Parliament with powers to make laws on a range of issues.
If they think a Holyrood bill would modify laws reserved to Westminster and have an "adverse effect" on how those laws apply, they can block it. But the power has not been used up to now.
A Section 35 order allows UK ministers to stop a Scottish bill from getting royal assent, which is when the King formally agrees to pass the bill into law.
Only the secretary of State for Scotland has the power to block a Holyrood bill. As we have been reporting, Alister Jack has done this calling it "the necessary and correct course of action".
How the first minister could defend the gender reform bill
Philip Sim
BBC Scotland political correspondent
The first minister says the Scottish government will defend its legislation. But how?
There are two places where a Section 35 order can be challenged.
One of them is Westminster – when the order itself is tabled, it could be annulled by a vote in either the Commons or the Lords. The SNP is likely to at least push for a vote, and there will be pressure on Labour to take a side.
The other is the courts. Most constitutional showdowns end up in the Supreme Court in London, but this one could at least start in Edinburgh.
The Scottish government could lodge a judicial review at the Court of Session challenging the terms of the order, if they believe they can show that there were not reasonable grounds to make it.
We should find out what those grounds were when the order itself is published tomorrow – under the terms of the Scotland Act, UK ministers must provide the precise legal reasons why they have sought to block this legislation.
For Women Scotland group back gender bill block
For Women Scotland, an organisation who describe themselves as "working to protect and strengthen women and children's rights", has tweeted in support of the UK government's decision to block the Gender Recognition Reform (Scotland) Bill.
The group, which campaigned against the bill, says the Scottish Parliament has 'no "right" to pass legislation that pertains to reserved matters'.
They also say that Section 35 - the mechanism UK ministers are using to block the bill - was supported by the SNP. "They have never tried to amend it," the group added.
In a separate post on Twitter, they say they hope no more parliamentary time or money is wasted "on railroading this terrible bill".
'This is the nuclear option' - Stonewall
Stonewall says the decision to block the Gender Recognition Reform (Scotland) Bill is the "nuclear option", calling it an "unprecedented move which significantly undermines the devolution settlement and will unlock constitutional and diplomatic strife.”
The charity says Westminster should be focussed on “developing and implementing a strategy that improves the lives of all LGBTQ+ people, including trans people, not causing them more harm”.
“This is a piece of legislation that simply seeks to make the process for legally recognising a trans man or trans women’s gender more respectful and straightforward.”
Read their full statement here.
Meanwhile Scottish Trans - which is a trans equality project under the Equality Network charity - said it fully expected the Scottish government to challenge the decision through the courts.
Manager Vic Valentine said: "For the UK government to seek to block the Scottish democratic process in this way, simply because they disagree with the welcome decision the Scottish Parliament has made to improve trans people’s lives, is unacceptable."
What were the proposed Scottish gender reforms?
The Scottish government wanted to simplify and speed up the existing process for obtaining a gender recognition certificate (GRC), the legal recognition of a trans person's gender.
The bill sought to remove the previously-required medical diagnosis of gender dysphoria.
This is a "mismatch" between their biological sex (whether they were born physically male or female) and their gender identity (the way in which they see and describe themselves).
The bill would also lower the age that people can apply for a GRC from 18 to 16.
And it would shorten the amount of time a person would need to have lived full-time in their acquired gender from at least two years to three months, or six months for those under 18.
MSPs voted to pass the Gender Recognition Bill by 86 votes to 39 in December.
Blocking gender reform is full-frontal attack on Scottish Parliament - Sturgeon
First Minister Nicola Sturgeon has called the decision to block the Gender Recognition Reform (Scotland) bill a "full-frontal attack" on the Scottish Parliament.
She warns if the Westminster veto succeeds, it will be the "first of many".
A spokesperson for the first minister added: "It is an outrage and will be contested vigorously by the Scottish government."
Scottish secretary says blocking bill was 'necessary and correct'
Scottish Secretary Alister Jack said he had not taken the decision lightly.
"The bill would have a significant impact on, amongst other things, GB-wide equalities matters in Scotland, England and Wales," he said.
"I have concluded, therefore, that this is the necessary and correct course of action.
“If the Scottish government chooses to bring an amended bill back for reconsideration in the Scottish Parliament, I hope we can work together to find a constructive way forward that both respects devolution and the operation of UK Parliament legislation."
BreakingUK government to block Scottish gender bill
The UK government has decided to block a controversial Scottish bill designed to make it easier for people to change their legally recognised gender.
We'll bring you reaction to this breaking story.