A constitutional clash looms on gender reforms

Westminster is poised to obstruct Scotland’s historic self-ID laws, says Sean O’Grady

Protesters display a banner in the public gallery of the Scottish parliament on Thursday (Getty)

To set aside sensitive moral questions and competing human rights is the best way to analyse the purely political aspects of the Gender Recognition Reform (Scotland) Bill. It is about to provoke a protracted constitutional wrangle. On balance, it is one that will serve the Scottish National Party best.

Having passed through the Scottish parliament, the bill awaits royal assent. However, the secretary of state for Scotland, Alister Jack, has 28 days to impose in effect a temporary veto on the bill reaching the King. This power, hitherto unused, rests in the foundational document of Scottish devolution, the Scotland Act 1998. Section 35 of the act states: “If a Bill contains provisions – (a) 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 (b) 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.”

In this case, the “reasonable grounds” refer primarily to the Equality Act 2010. Equality is a matter reserved to Westminster, but matters of personal status, such as gender recognition, are devolved. The UK government cites the potential for the legislation to affect people outside Scotland if those who obtain new rights under it should travel elsewhere in the UK – in short, how it might affect the rights of women in England, Wales and Northern Ireland.