The UK and Scottish governments appear set on a court battle on constitutional powers after Westminster ministers formally blocked a law passed by Scotland’s parliament creating a self-identification system for people who want to change gender.
Nicola Sturgeon, Scotland’s first minister, said the decision by Alister Jack, the Scottish secretary, would “inevitably end up in court”. Announcing the decision to the Commons, Jack also said he expected the issue to be decided this way.
Jack told MPs he was making a so-called section 35 order under the 1998 Scotland Act, which created the devolved parliament, which meant the gender recognition reform Scotland bill would not receive royal assent.
The Welsh first minister, Mark Drakeford, said the decision to use a section 35 order marked “a very dangerous moment”, adding: “I agree with the first minister of Scotland that this could be a very slippery slope indeed.”
The SNP called the decision “an unprecedented attack on the Scottish parliament” and on devolution. The party secured a further emergency Commons debate after Jack’s statement to discuss the constitutional implications.
But in near-farcical scenes, both debates took place before most MPs had been able read the “statement of reasons” in which the UK government set out its legal basis for imposing section 35, which was published nearly two hours after Jack’s announcement.
Answering an urgent question on the matter at Holyrood on Tuesday afternoon, Scotland’s social justice minister, Shona Robison, told MSPs that the order represented “a pattern of behaviour” of attacks on devolution by the UK government.
Robison said: “I want to be very clear to all trans people that I know will be incredibly upset by this decision: this government will seek to uphold the democratic will of this parliament.”
She said the UK government had failed to share its concerns with her government until December, in a belated reply to a letter Robison wrote in October, after which a last-minute meeting with the UK equalities minister, Kemi Badenoch, was arranged.
“At the meeting no mention was made of a [section 35] order being considered,” Robison said. “Parliament will judge for itself whether or not the UK government made any efforts to be constructive around this bill.”
The legislation, passed by Scotland’s parliament in December, would make it easier for transgender people to obtain official gender recognition certificates, including by reducing waiting times, removing the need for a medical diagnosis and bringing the minimum age down from 18 to 16.
Jack and Badenoch have both argued it waters down protections for single-sex spaces and contravenes UK-wide equality legislation by imposing a different regime for just one devolved country.
In an interview with the BBC on Tuesday, Sturgeon said the Scottish government would “vigorously defend this legislation” by seeking judicial review of Jack’s decision. “It will inevitably end up in court,” she said.
Answering questions in the Commons, Jack conceded this appeared the way forward, telling MPs: “We will find out whether the court of opinion that I’ve been hearing is right or wrong when we go to the legal courts.”
Announcing the veto, Jack insisted it was not an attack on transgender people, who he said “deserve our respect, our support and our understanding”. He had made the decision after extensive legal advice about “the legislation’s consequences for the operation of reserved matters, including equality legislation across Scotland, England and Wales”.
But the SNP’s Westminster spokesperson on Scottish matters, Philippa Whitford, said: “Why is [Jack] using one of the most marginalised groups in society to pick a fight with the Scottish parliament?”
While Jack was at pains to present it as a purely legal and technical issue, the involvement in the decision of Badenoch, a keen participant in culture war issues, will create the suspicion that some ministers want to create a political wedge over transgender rights.
The Guardian understands that another key Conservative player in culture war issues, the longtime No 10 aide Dougie Smith, is working in Downing Street again under Rishi Sunak.
Jack said this was the first time section 35 had been used. “This is not about preventing the Scottish parliament from legislating on devolved matters, but about ensuring that we do not have legal frameworks in one part of the United Kingdom which have adverse effects on reserved matters,” he said.
The statement of reasons, when finally published by Badenoch’s equalities office, sets out three reasons why the Scottish bill has UK-wide implications.
The first warns of the supposed impact on single-sex clubs and others, and on equal pay, of having two “parallel and very different regimes” in the UK for deciding gender. The second argues that the Scottish system will bring “significantly increased potential for fraudulent applications” to change gender, while the third says it will affect the working of the UK-wide Equality Act.
Whitford said Jack’s arguments made no sense, asking: “Is he seriously, after 300 years of different marriage ages and voting ages, suggesting there can no longer be legal or age differences north and south of the border?”
Ian Murray, the shadow Scotland secretary, criticised the Westminster and Scottish governments for what he called “a constitutional bun fight”, but did not explicitly say whether or not Labour backed Jack’s move.
Keir Starmer has expressed doubts about the plan to reduce the minimum age to 16, but party spokespeople did not respond to questions about whether or not it backed the use of section 35.
Labour’s stance was mocked by Bernard Jenkin, the senior Conservative backbencher, who asked Jack: “Can he write to the official opposition and ask them exactly what their response to his statement means?”
