As a few people have noticed, I published a blog ianssmart: A big change in 2023? yesterday. I commend to you.
In truth however most of it wasn't written yesterday but on January 2nd. I planned on finishing the next day but it turned out I was much busier work wise than I anticipated over the next few days so I couldn't get it done until Saturday. I wondered if I had perhaps missed my moment but concluded ultimately that I hadn't, for what I have had to say would have relevance for several months ahead.
I say that only because what I have to say today will have a shelf life of less than a fortnight. But it is important.
The Gender Recognition Reform (Scotland) Bill was passed by the Parliament on 22nd December 2022. As with any other (ordinary) Bill there is now a period of twenty-eight days before the Presiding Officer sends it to (now) The King for it to be given Royal Assent.
And during that period The Secretary of State for Scotland can intervene.
All the attention in the press has been about whether that intervention will be under s,35 of the 1998 Act. Firstly however, there seems to me to be a misapprehension both about what the provenance of s.35 is and what it exactly allows. Invoking s.35 would not be "an attack on devolution". It is part of devolution. It's original author was none other than that arch anti-devolutionist, Donald Dewar. The always excellent Joshua Rozenberg summarises the history here Scottish gender recognition: who decides? (substack.com). It is not difficult to see various scenarios where this provision might need to be utilised. If, for example, Holyrood reduced the age of consent, you can well see the rest of the UK objecting to their young teenagers being able to engage in sex with older men legally simply by getting driven by them over the open border to North Berwick. Certainly, s.35 has not been used to date but that's because Holyrood hasn't done anything so stupid to date.
Creating a situation where Scots born people can have the benefit of being women in the rest of the UK based on a birth certificate that the other home nations can't be sure is accurate surely falls in to a similar category?
So, for that and other reasons a s.35 challenge would. in my opinion, be likely to succeed. But just for the avoidance of doubt s.35 does not give the UK Government an absolute veto. It can only be invoked if certain criteria are met, reasons must be set out in writing and, as big Donald says in the debates Mr Rozenberg refers to, these reasons would be subject to judicial review leading potentially to the s.35 objection being quashed.
And a s.35 challenge would have one other huge advantage for the Tories. It is a long, long time since they were on the right side of Scottish popular opinion. Even the sale of council houses, hugely popular in its uptake, enjoyed that popularity largely in secret. But on Gender Recognition reform, popular opinion would side overwhelmingly with them. It is difficult to argue that a step taken to protect women's rights, with overwhelming public support, could ever be plausibly portrayed as an "insult to the people of Scotland", (sic). Particularly if it leads you logically to arguing that one of the "advantages" of full independence would be to make Scotland a less safe place for women.
The power of s.35 challenge lies with Alister Jack but the decision would surely be taken in conjunction with the Equalities Minister, Kemi Badenoch. And if the Tories had the sense to make Ms Badenoch the public face of any announcement it might also give them the advantage of being seen to have modernised their act, contrary to nationalist propaganda that they are all still middle aged men in mourning over, at best, their lost bowler hats and, at worst, their tweed plus fours.
So it would be daft for them not to act under s.35. But they won't.
Because, at first at least, they will act under s.33.
The legislative powers of the Scottish Parliament in terms of the 1998 Act proceed logically. s.28 provides the authority to make legally enforceable legislation. s.29 restricts that power to matters within legislative competence and defines that legislative competence. The famous s,30 allows for legislative competence to be expanded by Westminster, either permanently or, as happened for the 2014 referendum, on a temporary basis. But here now is the interesting bit.
s.31 provides that for a Bill to be introduced at all its introducer must certify that it is within legislative competence. That is stage one at which a Bill could be stopped.
s.32 provides that once passed the Presiding Officer must submit the Bill for Royal assent but not for a period of twenty eight days or the final conclusion of any reference under s.33 if (almost inevitably) later.
s.33 provides that within that twenty eight day period various law officers, the relevant one here would be the Advocate General for Scotland, may refer a Bill to the Supreme Court for their opinion on the Bill's legislative competence. Their view is final. That is stage two at which a Bill could be stopped.
s.34 has been repealed you'll be pleased to learn, although possibly not when you realise why.
s.35 gives a final opportunity for the Secretary of state to block a Bill. As I say above, that is subject to judicial review but subject to that caveat, this is stage three, and the final stage, at which a Bill might be stopped.
But here is the point. s.35 is clearly intended as a long stop only to be used if s.33 cannot be deployed or has been deployed unsuccessfully. Indeed the wording of s.35(3)(c) as good as says that. For the time limit for a s.35 challenge is 28 days from the passing of the Bill or 28 days from the determination of any s.33 challenge. It doesn't expressly say the s.33 challenge has to have been unsuccessful but that is as good as expressly said, for if the s.33 challenge has succeeded then there is no Bill needing blocked under s.35.
HOWEVER! If you go down the s.35 route and are then judicially reviewed successfully then the UK Government can't go back and try to use s.33, for the 28 day window for that would have been long since up. For while a s.33 reference postpones that 28 days insofar as it relates to the Bill being sent for Royal Assent there is no such reference in s.35.
So, essentially, by going directly to the option of a s,35, the UK Government would be giving up, forever, on the potential earlier remedy of s.33. Why would they do that? And it seems to me at least that, in changing the definition of a woman, the Bill itself trespasses in to the subject matter of the (reserved) Equality Act, particularly (now) in light of the Judicial conclusions in the two For Women Scotland cases.
So, watch this space. If the UK Government is going to act at all, they have until 17th or (arguably) 18th January. But it is never good legal practice to bang up against a time bar for the sake of it so they will act next week. And it will, firstly, be under s.33.
Footnotes.
I don't normally do footnotes but a few things occurred to me, or were drawn to my attention on the way, and couldn't be easily fitted in to the text already written.
1. I have previously written on why the Bill might be beyond devolved competence. The link is here. ianssmart: A dead duck
2. Failure to challenge under s.33 by the UK Government would not, of course, prevent challenge by members of the public even after Royal Assent standing the terms of s.29. I wrote about that here. ianssmart: Section 29.
3. As I didn't want to be too wordy, I didn't put the sections of the Scotland Act directly in the blog but you'll find them here et seq. Scotland Act 1998 (legislation.gov.uk)
4. In relation to fronting up the challenge for the UK Government, I was intending to say something slightly disparaging about Alister Jack's lack of public profile until it was drawn to my attention that he is one of only two cabinet ministers continuously in post since December 2019. So he may simply want a low profile. The only other survivor is Ben Wallace.
5. There has been much criticism of Lady Haldane's judgement in For Women (Scotland) No.2 . I think this is unfair, She simply applies the law. It is the law, particularly s.9 of the original GRA, which is an ass.
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