How often in the sad journey of the human species have the rights of individuals been exploited and trodden upon for political gain? It could well be argued here that London’s Tory government is doing just that by having Alister Jack, the Secretary of State for Scotland, announce in the House of Commons, Section 35 of the Scottish Act 1998, thus preventing royal assent of a devolved government’s legislation; namely Holyrood’s Gender Recognition Reform (GRR) bill, passed last month by a definitive cross-party vote of 86 to 39.
Scotland’s Social Justice Secretary, Shona Robison, who steered the GRR through Holyrood, called London’s action, “an outrageous decision”, adding it was
“A dark day for trans rights and a dark day for democracy in the UK”.
Tory MSP and the Scottish Conservative and Unionist party’s equalities spokesperson, Rachael Hamilton, jumped to Jack’s defence in a flash, claiming the Scottish Government left little choice but for Jack to decide to go ahead with a Section 35 order because the SNP rushed through “flawed legislation at breakneck speed”.
“In their desperation to force this legislation through Holyrood before Christmas, the Scottish Government ignored the warnings that the Bill would have implications beyond Scotland’s borders.”
Rushed at “breakneck speed”? Really?
This isn’t a bill fresh off the SNP presses. It’s a bill that is actually an amendment to the Gender Recognition Act 2004 passed by none other than the Parliament of the United Kingdom, thanks in part to the European Court of Human Rights decision in Christine Goodwin v. United Kingdom from11 July 2002, which the UK lost. However, according to the report by the European Commissions Directorate-General for Justice and Consumers released in July 2020, the UK government’s follow up was still not good enough.
The UK’s Gender Recognition Act 2004 was 27th out of 28 European countries thanks to “intrusive medical requirements” that lagged behind international human rights standards. The Directorate-General’s report pointed out that procedures in the UK are “costly, bureaucratic, and time-consuming” for trans people, with successful applicants having to wait two years until they can change their legal gender.
A footnote to the above: Tony Blair’s Labour party was the government of the day in Westminster.
Scotland’s SNP Government launched the first consultation on the proposed bill on 9 November 2017, more than five years before the GRR bill was voted on at Stage 3 by the full Scottish Parliament on 22 December 2022. It was passed with a majority of 86 to 39, with 0 abstentions and 4 members not voting; one being the Presiding Officer who does not vote. Except for the Tory’s front man in Holyrood, Doug Ross, all party leaders voted in favour of the GRR bill, including former Tory leader Jackson Carlaw.
Rushed at “breakneck speed”, Ms Hamilton? If 5 years and 43 days is “breakneck speed”, I fear to think what you would consider to be ample time!
Now, enough of history; what is the Scotland Act Section 35 all about? You can click on the link or read what’s here – or even better: do both.
Section 35 Power to intervene in certain cases:
- If a Bill contains provisions –
- which the Secretary of State has reasonable grounds to believe would be incompatible with any international obligations or the interests of defence or national security, or
- 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,
he may make an order prohibiting the Presiding Officer from submitting the Bill for Royal Assent.
One can only wonder … “international obligations”? Defence or – the bug-a-boo that governments love to hide behind – national security? What “adverse effect on the operation of law”? To which of these are gender rights a threat? Or I should say, which of these are a threat to gender rights?
A clear and present danger
Green MSP Maggie Chapman tweeted, “To attack a minority group like this shows just how low the Tory Govt is prepared to sink. They are creating a constitutional crisis by weaponising the lives of trans people. They don’t care about trans people. They don’t care about devolution. And they don’t care about Scotland.”
Shona Robison called the Section 35 order “the thin edge of the wedge”.
Nicola Sturgeon declared the UK government’s action “an attack on democratically elected Scottish Parliament.”
Welsh First Minister, Mark Drakeford, immediately threw his support behind Scotland.
And where will the slippery slope of uncertainty lead?
On the same day the GRR bill was passed in Holyrood, Spanish lawmakers approve their transgender rights bill. It allows citizens aged over 14 to change their gender without evidence, although 14- to 16-year-olds still require parental consent. It also does away with health reports as well as the need for medical and legal guardianship. The official registry is faster than in most countries, with up to four months from the first application to the change finally appearing in official documents. Spain’s Equality Minister, Irene Montero said:
“We are making progress on rights as a country. We want all LGBTI people to be able to be themselves, without closets.”
The London-based Tory government only has England voters to thank for handing the Conservative and Unionist Party 345 seats and the power to govern not only England but all the devolved nations as well. By tabling Section 35 in the House of Commons, the current Tory government have clearly demonstrated that devolution, independent parliaments, is for naught; as if London is the seat of power and the devolved nations looked down upon as nothing more dependencies of Mother England.
So what’s next? Bringing Scotland’s education, health and social care in line with England? Why not take away our free prescriptions? The Scottish government will likely challenge the UK government by taking them before the UK Supreme Court justices. However there is fear that these justices will deliver the same unanimous verdict they reached on 24 November 2022 over Scotland’s Section 30 rights.
If we are indeed on that slippery slope the Scottish first minister referred to, where will it lead?