Westminster may use rare power to block Scotland’s gender recognition bill on women’s safety grounds, UK minister says

We share the concerns that many people have regarding certain aspects of this bill, and in particular the safety issues for women and children.

We will look closely at that, and also the ramifications for the 2010 Equality Act and other UK wide legislation, in the coming weeks – up to and including a section 35 order stopping the bill going for royal assent if necessary.

Alister Jack, the Scottish secretary, has hinted that the UK government might block the gender recognition reform (Scotland) bill passed by MSPs this afternoon. In a statement responding to the vote, he said:

Kemi Badenoch, the equalities minister, has suggested the Scottish bill could have a detrimental impact on the rest of the UK because it would not be possible for the legislation to be “fully contained” within Scotland. She set out our concerns in a letter to Nicola Sturgeon, Scotland’s first minister, that was leaked to the Times earlier this month.

Under the Scotland Act that set up the Scottish parliament, the UK government has the power to block a bill passed by the Scottish parliament if it can argue that it would have an “adverse effect” on the operation of the law on a reserved matter (a policy area where Westminster, not Holyrood, is in charge). In this case, the UK government would be arguing that the Scottish legislation would have a harmful effect on equality law.

This power has never been used and, if Rishi Sunak’s government were to invoke it now, that would be seen as highly provocative in Edinburgh.

But during first minister’s questions today Douglas Ross, the Scottish Conservative leader, argued that opinion polls have repeatedly shown that the bill is not popular with Scots, and that claim could embolden Westminster to intervene.

Michael Foran, a law lecturer, has written a good blog on how section 35 orders work at the UK Constitutional Law Association website. Here is is conclusion.

If the secretary of state did issue a s.35 order it would certainly be subject to judicial review. Given that the order must be made within four weeks of the bill’s passing, any challenge will be based on whether there were reasonable grounds for concluding that the advancement of equal opportunities for biological women would be frustrated. Whether the UK government wishes to wade into this political quagmire, given both the gender politics and the devolution politics, is another question entirely.

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