The fine print of the legislation stopping Holyrood’s gender reforms becoming law shows Alister Jack signed it at the Scotland Office at 12.25pm yesterday.
The Scottish Secretary didn’t rush to take it from Dover House to the Commons. When he got to his feet 90 minutes later, MPs were still waiting to see the text and Mr Jack said he didn’t want to read out the rationale for making his unprecedented Section 35 order in case it “bored” people.
The opposition rightly smelled a rat.
Mr Jack’s was a voluntary statement.
He hadn’t been dragged to the chamber at short notice to make it. Indeed, he had been muttering darkly about blocking the Gender Recognition Reform (Scotland) Bill since MSPs passed it by 86 votes to 39 last month.
And yet, over the course of more than an hour, he ducked and dodged questions about exactly what the UK Government was objecting to in the Bill, and how he thought the Scottish Government and Holyrood could amend it to make it palatable to him.
When, finally, the statement of reasons behind the first use of Section 35 of the Scotland Act 1998 did appear, it wasn’t hard to work out why Mr Jack dragged his feet.
It was plain he was objecting to such fundamental elements of the Bill that their removal would gut and destroy it.
Read more: Nicola Sturgeon confirms judicial review bid over gender reforms veto
Despite the UK Government’s claim that the Section 35 order would allow time for Holyrood to rethink and recast the Bill, it’s hard to imagine how it can possibly be changed to satisfy ministers in London and still be a worthwhile exercise.
The Bill’s aim is to simplify and speed up the process for a person to acquire a gender recognition certificate (GRC) and change their sex in the eyes of the law.
This would be done by removing requirements in the Gender Recognition Act 2004, which currently governs the process.
Namely, ending the need for a medical diagnosis of gender dysphoria and allowing ‘self-ID’ instead; lowering the minimum age for applicants from 18 to 16; reducing the period for living in an acquired gender from two years to six or nine months; and removing the need to satisfy a panel that an application met the required GRC criteria.
The UK Government said it regarded all these steps as “important safeguards” and so changing them was unwelcome. Which is tantamount to objecting to the entire Bill.
The UK Government even complained the Bill would change the threshold for a GRC “from one that is very hard to meet” to one that isn’t. But that’s the whole point of it.
Mr Jack sided with critics of the Bill, who said it goes too far and puts women and girls at risk with a lax system, giving predatory men a new tool to access their victims.
Read more: Shona Robison says UK 'has no showstopper' to block gender reforms
A schedule to the Section 35 order also said Mr Jack believed the Bill would impinge upon UK tax, pension and equal opportunities law, and have an “adverse effect” on the operation of the law as it applied to matters reserved to Westminster.
In particular, “the creation of two parallel and very different regimes” for GRCs in the UK; an impact on the safety of women and girls and significantly increased potential for fraudulent applications to succeed; and an impact on the UK-wide Equality Act 2010.
There was also a concern that having two GRC regimes in the UK could have an adverse affect on single sex clubs, public sector equality duties, and equal pay.
Read more: Tory MSP 'does not buy' UK Government argument to block gender reforms
This “dual system” would create a “general lack of clarity” and could make IT systems for state benefits “unmanageable”.
Many of the UK’s objections boiled down to scale, and the expectation that more people will get GRCs thanks to the Bill, leading to more “problematic” issues.
But again, lowering the bar to getting a GRC is at the heart of the Bill. It’s not something that can be refined out of it.
The UK Government seems to be arguing that, while Holyrood is technically able to legislate in this area, it can’t make any meaningful changes in practice.
The lawyers will now have a field day.
The Scottish Government will seek a judicial review at the Court of Session, Scotland’s highest court, to have the Order set aside. The losing government will almost certainly appeal to the Court’s inner house.
That could well take up most of 2023.
There is then expected to be an appeal to the UK Supreme Court for a final definitive ruling, which could take up most of 2024.
If we’re lucky, we could have a decision by the general election. And if SNP members decide to fight that election as a de facto referendum on independence, expect this row to feature throughout the campaign.
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