Gender Recognition Reform (Scotland) Bill: Section 35 Power

Alistair Carmichael Excerpts

Tuesday 17th January 2023 Commons Chamber

[John Lamont]

Thank you, Mr Speaker. I will continue.

The Bill would also amend the UK-wide Gender Recognition Act 2004, which legislated for a single gender recognition system across the entirety of the United Kingdom. It is this United Kingdom Government’s assessment that the Bill would have a serious adverse impact on, among other things, the operation of the Equality Act 2010. The effects would include impacts on the operation of single-sex clubs, associations and schools, and on protections such as equal pay. There are also significant complications from having different gender recognition regimes in the UK and a danger of allowing more fraudulent or bad-faith applications.

[Mr Alistair Carmichael (Orkney and Shetland) (LD)]

If the Minister has regard to paragraph 15 in what purports to be the statement of reasons, he will see that it states:

“It is practically and legally undesirable for all, including in particular the individual holder of the GRC, that a person will have one legal sex in Scotland and a different one in England, Wales and Northern Ireland.”

Is he satisfied that this test of practicality and legal desirability or undesirability is sufficient to meet the tests set out in section 35?

[John Lamont]

We do have concerns. We believe that the creation of the two different processes for legal gender recognition in different parts of the UK will cause complications, which is why we have taken this action. If the right hon. Member does not agree with that assessment—if he disagrees with the reasons set out in our reasons paper—there is the opportunity to pray against the order, the opportunity to vote it down, and the opportunity of a judicial review of the decision-making process. Other options are open to the right hon. Member, enabling him to raise his concerns. The Government have taken their decision on the basis of the legal advice we have received, and we stand by that decision. The Secretary of State stands by that decision, and if Opposition Members disagree, they too have other options if they wish to challenge it.

I believe, and this Government believe, that transgender people deserve our respect, support and understanding. We have a long-established, world-leading equality framework that protects everyone, including transgender people, from discrimination, harassment and victimisation, and advances equality of opportunity for all. The section 35 power has always been part of the architecture of the devolution settlement because it is an integral part of the Scotland Act, which, as we have already heard, was supported at the time by all parties in the House. It provides a sensible measure to ensure that devolved legislation does not have adverse effects on reserved matters, including equalities legislation. As the Secretary of State has said, it is open to the Scottish Government to bring back an amended Bill for reconsideration in the Scottish Parliament that would deal with the concerns raised by this Government and many others about the impact this legislation would have.

--- Later in debate ---

[Ian Murray]

The point that the hon. Gentleman forgets is that this is going to end up in the courts regardless, because the section 35 order has been brought forward. Anyone who prays against it will get a debate and a vote, but the vote is not going to be won. It has already been said that the Government have a majority of 80, and perhaps a working majority of 100 on this issue. This will therefore have to be settled in the courts. As much as I do not want this constitutional battle to be fought on the backs of trans people’s and women’s rights, it would be good if the courts did settle these issues because maybe we could then move on with substance and do what is right by trans people and equality in this country.

[Mr Carmichael]

Paragraph 20 of the purported statement of reasons says that one of the barriers that would be encountered is existing IT infrastructure. Has the hon. Gentleman ever come across a case in which, apparently, the law has to be designed to fit IT infrastructure, rather than IT infrastructure being designed to fit the law?

[Ian Murray]

The right hon. Gentleman makes a valuable intervention. I am getting all the questions on the adverse effects, but this is a Government document. What we have missed in the debate over the past few months is that people in this country currently have gender recognition certificates under a different process, and the IT systems have to deal with that. How a person gets a gender recognition certificate is the argument here, not how they are implemented, because we implement them already.