A New Battlefront for Scottish Nationalists in the United Kingdom

The Gender Recognition Reform (Scotland) Bill is a bill passed by the Scottish Parliament on 22 December 2022. The Bill seeks to make it easier for people to change their legal gender. To this end it purports to amend the Gender Recognition Act 2004, a statute passed by the Parliament of the United Kingdom. The Scottish Parliament has the authority to amend UK statutes as they apply in Scotland in respect of devolved matters, but on 17 January 2023, the United Kingdom Government invoked section 35 of the Scotland Act 1998 to block the Bill from receiving royal assent, the first time section 35 has been used. This provision allows a UK minister to make an order prohibiting the Presiding Officer  of the Scottish Parliament – equivalent to the Speaker in Parliament – from submitting a Bill for Royal Assent if the Bill contains provisions “which make modifications of the law as it applies to reserved matters and which the Secretary of State has reasonable grounds to believe would have an adverse effect on the operation of the law as it applies to reserved matters.”

The UK Government has stated that the Bill will have an adverse effect upon “equal opportunities” which is a reserved matter, particularly insofar as the Scottish Bill purports to modify the law relating to equal opportunities by changing the operation of the UK-wide Equality Act 2010.

What does the Bill purport to do?

The Gender Recognition Act 2004 is an Act of Parliament that applies across the UK and which addresses both reserved and devolved matters. It provides that to change one’s legal sex one must first be diagnosed with gender dysphoria and undergo a two-year period of medically supervised social transition. The Scottish Gender Recognition Reform Bill would, for those born or resident in Scotland, remove the requirement to be diagnosed with gender dysphoria to change legal sex for the purposes of the Equality Act, reduce the statutory waiting time from two years to three months, and lower the minimum age for a legal sex change to sixteen from eighteen. It would also, arguably, change the meaning of the protected characteristics of “sex” and “gender reassignment” within the Equality Act 2010, which applies across the UK and is a protected enactment which cannot be changed by the Scottish Parliament.

In a recent case – For Women Scotland v The Scottish Ministers (FWS2) – heard in the Scottish high court, the Court of Session, the court decided that a Gender Recognition Certificate, issued under the 2004 Act, does alter one’s sex for the purposes of the Equality Act. This strengthens the argument that the Scottish Bill, in the changes it makes in Scotland to the nature and effect of such certificates, does modify the law as it applies to reserved matters. One commentator argues that under the Scottish Gender Recognition Reform Bill:

“a Gender Recognition Certificate changes sex for all purposes, those possessing Scottish Gender Recognition Certificates who travel to England, Wales or Northern Ireland will have to be legally recognised in their acquired sex, including 16-18-year-olds. This will be open to all those born in Scotland, wherever they live in the UK, and anyone who is ordinarily resident in Scotland, including students. Ordinary residence need not be permanent and so it is possible that people may cross the border into Scotland from elsewhere in the UK, temporarily reside there until they become ordinarily resident, and then return to elsewhere in the UK once they have obtained a Gender Recognition Certificate.”

The Bill also carries further potential implications for the operation of single-sex services, making it potentially more difficult for women-only spaces to exclude biological males; and by lowering the minimum age for a legal sex change to sixteen from eighteen, anyone who holds a Gender Recognition Certificate could not be excluded from a relevant single-sex school. It would arguably also impact on the Public Sector Equality Duty under the Equality Act by bringing in different categories of individual who would be covered by the protected characteristics of sex and gender reassignment.

In this post I do not address further the substantive changes to the law which the Bill purports to make, nor do I assess further any potential impact it might have on the Equality Act. It is open to the Scottish Government to challenge before the courts the use of s.35 by the UK Government on the basis that the UK Secretary of State has not acted reasonably. The Scottish Government could also amend the Bill and re-introduce it to the Scottish Parliament.

Constitutional issues

Instead I refer to three points of constitutional interest:

1. what the first use of the s.35 procedure tells us about the current state of UK-Scottish Government relations;
2. how this issue should be set in the context of recent court decisions concerning the competence of the Scottish Parliament; and
3. the very open-textured nature of UK devolution which arguably leaves the central government in a weaker position than other federal governments through the lack of a doctrine of supremacy, paramountcy or pre-emption.

1. The Scotland Act 1998 contains a procedure whereby the competence of bills can be challenged before the courts. Under s.33 of the 1998 Act the Law Officers, including the UK Law Officers – the Advocate General or the Attorney General – may refer the question of whether a Bill or any provision of a Bill would be within the legislative competence of the Scottish Parliament to the Supreme Court of the United Kingdom for decision within four weeks of the passing of a Bill. Notably the UK Government has not chosen to wait for the Bill to pass but has cut it off before it is introduced to the Scottish Parliament. The approach taken can on one view be seen as confrontational – blocking a bill and putting the onus for the testing of its legality upon the Scottish Government. Alternatively, it might be argued that the Equality Act is of such foundational, and cross-UK, significance, that the UK Government is correct to step in and protect the integrity of a coherent and consistent state-wide approach to fundamental human rights.

2. Regardless of one’s views of the merits of using the s.35 process, doing so has provoked a furious reaction from the Scottish Government which is led by the separatist Scottish National Party. The Bill is the latest example of high profile draft legislation which has produced intense political debate; two other draft bills being recently the subject of important Supreme Court judgments.

In the first case (‘Att. Gen. and Adv. Gen. Reference’) the Supreme Court was asked to determine whether two Bills were within the competence of the Scottish Parliament. The first Bill purported to incorporate the United Nations Convention on the Rights of the Child (UNCRC) into Scots law, and the second proposed to do the same for the European Charter of Local Self-Government (ECLSG). The general competence of the Scottish Parliament to incorporate these treaties was not in question. Issues arose as to the means by which this was being done. The Court took the view that the Bill, in giving instructions to the courts in how to interpret UK legislation, went so far as to purport to modify the Scotland Act itself, which the Scottish Parliament is not empowered to do.

The Supreme Court was, unusually, very critical of what it saw as a deliberate attempt by the Scottish Government to go beyond the competence of the devolved institutions:

“what is striking in the present case is that there has been no attempt to draft section 6 of the Bill [concerning the compatibility of acts of public authorities] in such a way as to provide a clear and accessible statement of the law. On the contrary, there has been a decision to draft and enact a provision whose plain meaning does not accurately represent the law, and to rely on the courts… subsequently to impose a variety of qualifications upon the provision, on a case by case basis, so as to give it a different effect which is lawful…. that cannot be how Parliament intended [the relevant provision of the Scotland Act] to be interpreted and applied.” [para 74]

In the second case, Lord Advocate’s Reference 2022, the Scottish Government in fact referred the legality of its own proposed legislation – the Scottish Independence Referendum Bill – to the Supreme Court. Once again the Court found the Bill to be beyond competence. Such a Bill would relate to the reserved matters of the Union and of Parliament and so was unlawful.

To most commentators this decision was inevitable. A question therefore arises as to whether draft legislation, and/or the courts themselves, are being instrumentalised for political purposes. Is the Scottish Government pushing the boundaries of its own competence with the intention, or at least with little regard for the risk, of provoking a legal dispute with the UK Government? Such strategies are of course far from unusual in federal systems, but one characteristic of devolution since 1998 is that the UK courts have not in general been the site of many competence disputes between the different governments. It seems that this is now changing and that the courts are becoming a forum for the playing out of political battles.

3. The United Kingdom system of devolution is unusual for various reasons. One is that it is very lop-sided, offering very extensive autonomy to the Scottish Parliament and Scottish Government, and the two other devolved territories, without any dedicated restructuring of the government of the central state through associational rule. Also, the Scotland Act 1998 allows powers to be shared without, in general, giving the UK institutions an expressly superior role in any particular area of competence. There is, for example, no provision in the Scotland Act similar to a supremacy clause (such as the supremacy of federal law over Länder law in Germany – Basic Law, Article 31), a paramountcy clause (such as the Constitution of India, Art. 254), or a judicially recognised principle of pre-emption – recognising the authority of the central authorities to supersede or pre-empt sub-state action, as in the U.S.A., where state laws which conflict with federal law are “without effect”. There a crucial test is the purpose of Congress. The power of Congress to supercede the States even applies “in a field which the States have traditionally occupied”, provided that supercession is “the clear and manifest purpose of Congress”. It is also the case that the U.S. Supreme Court, through the 14th amendment, effectively ‘nationalised’ the Bill of Rights, applying it to the States in a way that supersedes rival claims to legislate in the area of civil rights, and imposing uniformity in the application of fundamental civil rights.

The idea of federal supremacy or paramountcy works in a similar way to pre-emption. As International IDEA observes:

“If supremacy rests with the national or federal level (e.g. as in Germany and India), then the area of concurrent legislative authority is essentially that which the federal legislature chooses, by non-intervention, to leave to the states; at any time, the federal level can intervene to impose its will over concurrent matters.”

Such an area would include fundamental rights and concepts such as equality. Also relevant to this debate are the conditions imposed in Germany upon the Länder to comply with the constitution’s fundamental principles, including republicanism and democracy (Art 28(1)). This ‘homogeneity clause’ imposes a set of conditions upon Länder powers that “significantly limits subnational constitutional autonomy.” (Palermo and Kössler, 135)

In light of these comparative examples it is not at all unusual that the Equality Act in the UK should have protected status, nor that it should be read to supersede and hence pre-empt any attempt to modify its application in part of the UK. The fact that jurisprudence surrounding the Scotland Act 1998 has not so far generated such an approach is perhaps surprising. Arguably s.35 goes some way to filling this gap, but it is less satisfactory than a specific legislative provision or a clear statement by the courts.

Conclusions

To conclude, the UK Government is showing that it is now ready to police the boundaries of devolved competence more robustly, especially when it believes legislation is being used deliberately to veer into reserved matters. It is perhaps also now asserting a more homogeneous approach to fundamental human rights values, an assertion which is the hallmark of other federal systems. The current debate also exposes that the radical devolution of so many powers to sub-state institutions over the past two decades without serious thought being given for the potential impact of this process upon the maintenance of coherent state policy was perhaps ill-advised and requires correction.