– in the House of Commons at 3:15 pm on 17th January 2023.
I beg to move,
That this House
has considered the Government’s decision to use section 35 of the Scotland Act with regard to the Gender Recognition Reform (Scotland) Bill.
Here we have it, eventually: the statement of reasons, which I am expected to read while also speaking. I have to admit that there is a real temptation for me to stand here and read every single word of it into the record right now. [Interruption.] They want me to! They probably should not goad me to; I will. On a more serious note—[Interruption.] Calm down. On a more serious note, I want to start with an apology to those people—and this should apply to everyone, irrespective of their views on the GRR—who have hopes and aspirations for the future and who have fought so hard for a piece of legislation for so long and now see their hope being taken away from them. It is being taken away from them by a Government whom they did not vote for and whom we have not voted for since 1955.
That goes to the heart of the issue, which is about democracy on these islands and what democracy looks like in the United Kingdom. In Scotland’s democratically elected Parliament in Holyrood, legislation has been passed that relates directly—directly—to a devolved competency. The GRR Bill is the most-consulted-on legislation in the history of the Scottish Parliament. It received support from not just the Scottish National party, but the Labour party in Scotland; Conservative party members in Scotland, including the predecessor of Douglas Ross, as I understand it; the Liberal Democrats in Scotland; and the Greens in Scotland.
I will give way in a moment.
In total, the Bill received support from nearly two thirds of Scotland’s democratically elected Parliament in Holyrood. It is an outrage that the United Kingdom Government are seeking to overturn the mandate and the legislation put down by our Scottish Parliament.
I will give my hon. Friend a chance to look at the first page of the reasons for this appalling decision. My hon. Friend Dr Whitford spoke earlier about the World Health Organisation and the other European and Commonwealth nations that already have such legislation, and how Scotland would be brought into line with them. The statement talks about
“removing a number of measures which the UK government regards as important safeguards”, which are the very measures—[Interruption.] If hon. Members pipe down and listen, they might learn something. Those measures, which include the medicalisation of the process and breaches of human rights, such as a trans person having to present themselves to a panel to justify their existence, are the very things that we sought to remove because they so affected the rights of trans people.
I thank my hon. Friend for her worthwhile contribution, which I did not hear in its entirety because of the rabid gammon on the Conservative Benches. None the less, it was an incredibly important point that we should reflect on.
Some of the questions from Conservative Back Benchers to the Secretary of State during the statement were about re-running the debate that has already happened in Holyrood. Numerous Conservative Members suggested that they oppose the GRR Bill for different reasons, but those reasons have already been exhausted in Scotland’s democratically elected Parliament. If Conservative Members have issues with what the Scottish Parliament has put forward, perhaps they should jump on a train to Scotland, get themselves elected to the Scottish Parliament and try to change the legislation there, rather than using this place to overturn Scotland’s democratically elected Parliament.
My hon. Friend rightly said that the GRR Bill passed with cross-party support in Holyrood, including from some Conservative MSPs. One of those was Jamie Greene, the Conservative party’s spokesperson for justice—given his role, he showed good courage in voting for it. Is it not the case that his leader, Douglas Ross, has just sold him down the river?
I entirely agree; perhaps the hon. Member for Moray would like to address that.
The hon. Gentleman is talking about people who supported and opposed the Bill. Can he confirm that a Scottish Government Justice Minister resigned to oppose the Bill; a former Scottish Government SNP Cabinet Secretary voted against it; and in total, nine SNP MSPs felt that the legislation was deeply flawed and wrong, and voted against it?
The hon. Member, although he sits in this Chamber, already sits in Holyrood as well. He will be familiar with the fact that the overwhelming majority of parliamentarians elected to Holyrood voted in favour of the legislation. I appreciate that he lost that debate in Holyrood, but he should not support this Government trying to overturn the decision. I would be interested to hear about the conversations that he has had with his elected colleagues in Holyrood about the decision.
I am grateful to the hon. Gentleman for giving way a second time. Of course, I did have conversations, because I was the only party leader in Scotland to make this a free vote and allow my party Members to come to a conclusion, as Jamie Greene did. Nicola Sturgeon and the SNP refused to do that, which is why she lost Government Ministers as a result.
If we are going to talk about losing, the hon. Gentleman lost the debate in Scotland. I repeat once again that it is not democratic to try to overturn that legislation here in this place.
I will not. I want to make a little progress.
It has been inferred by some Conservative Members that GRR is in some way in conflict with the Equality Act 2010. Indeed, I am sure that, in this tome before me, that is the case, yet there are also senior Members on those Benches who have been vocal about the fact that it does not interfere with or overturn the Equality Act in any way, shape or form, so which one is it?
Does my hon. Friend agree with me in finding it ridiculous that Conservative Members keep claiming they want to protect women and children’s rights given the fact that, just last night, the Government undermined workers’ rights, they want to get rid of the Human Rights Act, they introduced the rape clause and they want to remove us from the European Court of Human Rights. Is it not the case that if we want to defend rights, we get them as far away from this lot as possible?
Absolutely. My hon. Friend has made an incredibly important point about the Strikes (Minimum Service Levels) Bill. The UK Government are seeking to overturn and ignore Scotland’s democratically elected politicians not just in relation to the GRR, but, without making any grand assumptions, on the right to strike, because I can say with wholehearted confidence that an overwhelming majority of parliamentarians in Holyrood are opposed to that Bill, but they will be ignored on that too.
Tomorrow, a Bill will come before the House on the 4,000 pieces of EU legislation that the UK Government want to throw into the wind. It is Bill that puts our food standards at risk, that puts workers’ rights at risk and that puts overwhelming power in the hands of Tory Ministers—unelected in Scotland, of course—to do as they please. The Scottish Parliament has been clear once again that it opposes that, yet that too will be ignored: Scotland’s democracy ignored and ignored.
My hon. Friend is making a powerful point about what is, at its core, an attack on the rights of Scottish people and the Scottish Parliament. His comments about attacks on the Scottish Parliament have been echoed by the Welsh Labour First Minister, Mark Drakeford, who has called the section 35 interference a “dangerous move”. Is there not a deafness, not only on the Government Benches but on the Labour Benches, about how dangerous such moves are for democracy across the nations of the UK?
Absolutely. It appears that Mark Drakeford has more of a backbone than the vast majority of those in the parliamentary Labour party put together, and they could do well to learn from his views in that respect.
Democracy matters, and this UK Government are consistently seeking to ignore Scotland’s democracy. I mentioned the right to strike and the Retained EU Law (Revocation and Reform) Bill, but it is also true of Brexit as a whole in that 72% of Scots want to rejoin the European Union, yet the UK Government and indeed the Labour party have absolutely no interest in that position whatsoever.
I know my hon. Friend has not had an opportunity to look at the statement of reasons, some 57 paragraphs of which have just been served up to us. I have had a chance to have a quick look at it, and maybe my hon. Friend should not bother doing so in any great degree detail because it is specious, hypothetical and poorly informed. One example is that, on equal pay, the Government seem to believe that a trans man would take advantage of the opportunity to be paid less. That is the type of rubbish included in this. What does he think of that?
I have obviously not had the opportunity to look at it, but if that is the case it is a complete and utter embarrassment. It shows that, just as the Secretary of State was unprepared today on this matter, so too are his Government on the arguments they are putting forward. I am a little bit embarrassed for them in that regard.
My hon. Friend is incredibly generous in giving way. Regarding what the Government are trying to take out of the legislation and that they have concerns with, point 4 is particularly worrying. It states:
“Taken together, these amendments remove any requirement for third party verification or evidence from the process.”
If I am not wrong, when I came out I did not have to seek verification from anybody to be a lesbian. I do not understand why we are treating trans people as if they are applying for some kind of arbitrary, inanimate thing. This is about their identity. It is about their lives and livelihoods, and we should treat them with the dignity and respect they deserve.
You will be unsurprised to know, Mr Speaker, that I very much agree in that regard.
Let me return to the points I was making about democracy, on the right to strike, EU legislation, Brexit, but also, importantly, on Scotland’s right to choose. As we found towards the end of last year—if the Father of the House wishes to awaken from his slumber—[Interruption.] No, Mr Speaker, he does not appear to awaken from his slumber. It is very distracting to see that in front of you in a democratically elected Parliament.
If we are to reflect on democracy, last year Scotland was denied its right to choose by this UK Government. The Supreme Court was clear that we do not have power under the constitutional settlement to have a second independence referendum, irrespective of the views of the people of Scotland. Yet the only answer that the UK Government can give to any question in relation to that is, “No. You cannot have your say.” No matter which way we turn or what the issue of the day is, this UK Government are not interested in Scotland’s democracy. Let us look in closer detail at the Conservative party position on that.
Does the statement of reasons not clearly state that the Government do not have any legal basis on which to challenge this legislation? The simple fact is that the Secretary of State for Scotland has opened himself up to judicial review, because he will simply find that he has no modification of the Equality Act 2010, and that there are no examples—none—indicating that he has justifiable reasons for outlining a section 35 order.
The Secretary of State has opened himself up to many things, ridicule among them, by his failure to see the blindingly obvious.
To revert to my previous point about the wider Conservative position, let us be clear and in no doubt whatsoever that the Conservatives are seeking to utilise this issue for a culture war—nothing more, nothing less. These are the dying embers of a failing Government who see the polls, who know they are on their way out, and who know their Members will lose their seats. In a last gasp attempt to create division, they are using some of the most vulnerable people in society to create a culture war.
My hon. Friend is kind in giving way. He is absolutely right. The SNP was accused earlier of trying to use this issue as a vehicle to create a constitutional schism and conflict, but like all parties in Holyrood that voted the Bill through in the Scottish Parliament, the SNP had a mandate from the electorate in Scotland. Is my hon. Friend concerned, as I am, that the Conservative Government have no mandate from anybody for the action they are taking?
I share my hon. Friend’s views. I am deeply concerned about that, and about the culture war that the Government are seeking to stoke.
Let us also reflect on what we have here. We have a Conservative Government, who have not been elected in Scotland since 1955. Perhaps most intriguing, we have a Secretary of State for Scotland who, in the coming months, will be walking out of this place. He will not be walking anywhere except along to the undemocratic House of Lords. Baron Jack, as he will come to be known, is trying to tell Scotland’s democratically elected parliamentarians what they can and cannot do, while at the same time knowing that he will end up in an unelected Chamber. Shame on him and shame on his Conservative colleagues.
Why does the hon. Gentleman think that the gender recognition Bill has been such a protracted dispute in the Scottish Parliament and so divided the Scottish National party?
I do not agree with the hon. Member on that. I think it is healthy in a democracy for discussion to be had within a Parliament, and that is exactly what has happened in Holyrood. It may have escaped his notice, but I will repeat that parliamentarians from each and every party in Holyrood voted in favour of the legislation. The question to him and his colleagues is: why are they seeking to overturn Scotland’s democratic view in this way? I am more than happy to invite him back in to answer that specific point. He is not interested.
I have been generous in giving way so far.
Of course, this is not just about the Conservatives; it is about the Labour party, too. Should Labour Members rise from their seats and remove the splinters on this topic? Labour is the party that last year released a document by Gordon Brown that was meant to put devolution front and centre. Critics like me said, “We’ve all heard it before. It’s not going to happen,” and when Scotland’s Parliament is under attack from Westminster, where is the Labour party? It is nowhere to be found.
I am grateful to the hon. Gentleman for giving way; this is the final time that I will intervene on him. Do all his SNP MPs in the UK Parliament support the SNP’s Gender Recognition Reform (Scotland) Bill?
I will tell the hon. Member what my colleagues support, and that is enabling the people of Scotland to make decisions over their future without interference from his Westminster Government.
We have heard it all before from the Conservatives in their culture war, and we know that, under the Leader of the Opposition, the Labour party is rowing back from its support for the LGBTQ+ community on this topic. It is deeply disappointing to hear that. When we go to the Scottish electorate again, we will have a Labour party that is against the biggest issue that dominates Scottish politics at the moment. It is also against Scotland having its view in respect of our membership of the European Union, and supports the UK Parliament overriding Holyrood. Shame on Labour, too.
I am grateful to my hon. Friend for giving way once again. Is not this political act of the Tory Government, grubbing around for one last dying ember of distraction and producing this vacuous document as an excuse, an example of desperation? Is it not also, as he has outlined, an example of desperation to get into power that the Labour party will not even take a position to support the devolution that it was supposed to champion in the first place?
Absolutely. I am confident that the people of Scotland will be watching and listening to Labour’s position. I am more than happy to let Ian Murray intervene if he so wishes. [Interruption.] No, he just wishes to chunter from a sedentary position.
I am listening to the hon. Member’s argument, which appears to be about democracy. In some respects, I can see the power of it, but I am a bit confused. It seems to me that the SNP, with representatives from Scotland, voted for the Scotland Act 1998 and for the section 35 measures that are being used today. Furthermore, they can be used today in the UK Parliament because the Scottish people voted to remain in the UK in a referendum just in 2014.
With all due respect, I think that the hon. Member is missing the point. Democratically elected Members in Scotland’s Parliament have voted for legislation in a devolved competency and the UK Government—her party—are seeking to block that legislation. That is simply not fair, and it is not democratic in any way, shape or form.
What comes next in the continual democratic deficit we experience in these here islands? It is incumbent on reasonable Unionists, of whom I think there are many—I do not see very many in front of me, but I think there are many in society—to come forward.
In part 2 of this big flabby document, the heading states:
“Adverse effects of different GRC regimes across the UK”.
If there is no allowance for different GRC regimes, how come gender recognition is devolved in the first place?
Indeed. A very powerful and eloquent point by my hon. Friend, as always.
The point of what comes next is incredibly important. Where do we go when Scotland’s Parliament, our views and our purpose is just being ignored by Westminster? What are we to do? How are people in Scotland to respond? When will reasonable Unionists stand up and say, “You know what? This isn’t on. If you believe in this Union of equals, then you put the Scottish Parliament first.” I do not see that and I do not hear that in Westminster, and this is the clearest example of that.
My hon. Friend is making a really powerful speech and putting the democratic deficit front and centre for people. As well as the huge disappointment I am sure we all feel about what the UK Tory Government are doing, is he disappointed that the UK Labour party, it is reported, will not challenge this intervention, to the great disappointment of a number of its Scottish MSP colleagues? Those colleagues of Labour Members are deeply disappointed, and no wonder.
Indeed. As we are looking for reasonable Unionists, they are clearly not found on the Labour Benches. If the shadow Secretary of State wants to clarify that that is not the case, then I am more than happy for him to do so, but I will be unsurprised if he does not.
I am very reluctant to be goaded by the SNP, but none the less here we are.
Just to be clear, I certainly wanted to make sure that there is a proper gender recognition plan across the whole United Kingdom, because I am sick and tired of people setting women’s rights against trans people’s rights. That is where I want to get to and I am looking for solutions to that problem, not anything else.
I respect the sincerity with which the hon. Gentleman delivers his points in that regard and I see a lot of hon. Members nodding. Well, if that is the case, I am sure he will support us, because we have a solution in Scotland. That solution is the legislation put forward in the Scottish Parliament, which has received democratic support in the Scottish Parliament and which this UK Government are blocking. He should share my anger, and I hope the anger of his colleagues in the Scottish Parliament, on that particular point.
It is a rarity in this place—I am sure she will forgive me—that I agree with some of the comments made by Christine Jardine. We heard from her earlier about the difficulty this situation is causing her in respect of the Union. Hers is the sort of voice we need to hear at this moment in time—the voices of reasonable Unionists about where they seek to go. If this is a Union of equals, as it is portrayed, and if Scotland’s Parliament is to be the most powerful devolved legislature in the world, as we are often told it is, then why is the section 35 order being used?
I am grateful to my hon. Friend for giving way once again. He is talking about reasonable Unionists and said he could not see any on the Labour Benches. However, there are reasonable Unionists who have been on those Benches. Would he be interested in the words of Ged Killen, the former Labour MP, who said:
“The idea that one man, elected by 22,000 people, can overturn devolved legislation brought in by the Scottish Parliament and supported by the vast majority of our MSPs is outrageous and will surely not stand up in court.”
Indeed, that is very much the case.
While I am on the point about reasonable Unionists, I want to reflect on the words of Donald Dewar in relation to the Scottish Parliament, because that is, after all, what we are talking about. He said:
“Walter Scott wrote that only a man with soul so dead could have no sense, no feel of his native land. For me, for any Scot, today is a proud moment;
a new stage on a journey begun long ago and which has no end. This is a proud day for all of us. A Scottish Parliament. Not an end: a means to greater ends. And those too are part of our mace. Woven into its symbolic thistles are these four words: ‘Wisdom. Justice. Compassion. Integrity.’”
Wisdom, justice, compassion and integrity: each of those words is reflected in the legislation brought forward in the Scottish Parliament. That is why it received overwhelming support from Scottish parliamentarians; it is why Members from each and every party in the Scottish Parliament voted in favour of it; and it is why it is so important that we stand up for Scotland’s Parliament, stand up for Scotland’s democracy and ensure that the people of Scotland’s views are heard in this place.
I sincerely hope—I say this to him in all sincerity—that the Secretary of State will reflect on the damage that he seeks to do to his own Union in this regard. I hope that he makes a volte-face, shows that he does respect Scotland’s democracy and allows the legislation to pass as it should.
A short time ago, the Secretary of State for Scotland made a statement to the House regarding the Government’s decision to exercise a power under section 35 of the Scotland Act 1998 with regard to the Gender Recognition Reform (Scotland) Bill. For the benefit of Members who were not present at that statement, I shall summarise what action this Government are taking and why.
Today, the Secretary of State is making an order under section 35 of the Scotland Act 1998 preventing the Gender Recognition Reform (Scotland) Bill from proceeding to Royal Assent. As the Secretary of State said, this is the first time the power has been exercised, and it is not a decision that has been taken lightly. However, it is a decision based on the legislation’s consequences for the operation of reserved matters across Scotland, England and Wales, including on equality legislation.
The Scottish Government’s Bill would introduce a number of changes around gender recognition in Scotland. They include reducing the minimum age at which a person can apply for a gender recognition certificate to 16, and removing the need for a medical diagnosis and evidence of having lived for two years in their acquired gender.
It is up to the Minister what he wishes to say.
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.
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?
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.
The Minister has given it away: the Government have concerns. Well, there we have it. The Conservatives had their objections voted down in the Scottish Parliament, so the Minister is using the device of section 35. The statement of reasons is not worth the paper it is written on. The Minister knows that he can use his parliamentary majority in any praying motion to strike down an Act of the Scottish Parliament. What price Scottish democracy? What price the right of the Scottish Parliament to enact legislation based on the majority in that Parliament, based on a mandate given by the people of Scotland, which this Government are going to throw away because this Government and this Parliament know better? A Union of equals, Madam Deputy Speaker? You have to be joking.
As I have made clear repeatedly, it was always intended that at moments such as this, when unintended consequences of legislation being passed by the Scottish Parliament would have an impact across the United Kingdom, section 35 of the Scotland Act would give us the opportunity to act in this way. The letter from the Secretary of State to the First Minister is clear about the amendments that can be made to the Bill to allow it to be approved by the Scottish Parliament and to meet the concerns about the impact it will have on other parts of the UK. We want very much to work with the Scottish Government constructively to secure those amendments so that legislation that meets our concerns can be passed, and we hope that the First Minister and the Scottish Government will bring back the amended Bill for reconsideration by the Scottish Parliament.
I hope that Opposition Members will acknowledge that the United Kingdom Government have set out their desire to work with the Scottish Government to find a constructive way in which to amend this Bill so that it can be passed by the Scottish Government and given Royal Assent.
I think that the time the Minister took to respond to the motion shows that the Government do not have much to say about this particular issue—or perhaps the Minister did not get the statement of reasons either, in relation to what the Government were actually proposing.
May I begin by restating, once again, that this Labour party is the party of devolution and the party of equality? It will not be lost on many that all the Acts we are discussing today—the Scotland Act 1998, the Equality Act 2010 and the Gender Recognition Act 2004—were Labour Bills that we introduced for the advancement of devolution and equality in this country. It is difficult to conclude anything other than that today’s debate is about two Governments who are incapable of working together.
I have read, or skimmed, the 13 pages of reasons—the farce that we have had trying to get these reasons today is part of this debate—and when I got to the end, my initial reaction was, “What are the Government going to do about it?” They cannot just bring an unprecedented section 35 order to this House and lay out reasons, then get to the end of those reasons and decide what to do about it. As we stand here today, the Gender Recognition Reform (Scotland) Bill is dead unless both Governments can come together and resolve the perceived issues, or otherwise.
I wonder whether my hon. Friend has looked at paragraph 3. The Minister, who was not taking interventions earlier, suggested that all the Scottish Government had to do was bring forward a Bill with amendments, but as far as I can see they would have to come forward with a Bill that did not have anything in it. Is not that the only Bill that the Westminster Government would accept, if we go by the amendments suggested in paragraph 3?
That is where we get to the crux of this process. My hon. Friend Sir Chris Bryant made a similar point earlier about wanting to make sure that trans rights and women’s rights were protected in this country, and about doing it properly. This is certainly not the way to do it. We will now have a process whereby the First Minister and the Scottish Government will take the UK Government to court on the basis of these reasons and the unseen legal advice, and the courts will have to decide whether the reasons that the UK Government have put forward are legitimate and reasonable in terms of the bar they have to reach—namely, that there would be adverse consequences for reserved legislation. I think that at the end of that process the courts will have to resolve these arguments because both Governments are unwilling to do so together.
Is the shadow Minister concerned, as I am, that although gender recognition is devolved, half of the blather in here is that it conflicts with the Gender Recognition Act 2004? The whole point of devolution is that we can change legislation in Scotland in a devolved policy area.
That is a very helpful intervention, because paragraph 14, on the first category of adverse effects, talks about different regimes across the United Kingdom. That, to me, suggests that the Government do not want this to be devolved. There are other devolved issues, such as abortion, that would have cross-border implications. But I would also gently say in response to the hon. Lady that Donald Dewar designed section 35 for the very question that she has just asked—[Interruption.] I hope she will not mind me repeating that he did not envisage all the issues that would come through. Devolution was always a journey for the Labour party and it will continue to be so. The key point was that section 35 was put there to enable the Scottish Parliament to legislate in devolved areas that might have an impact on the rest of the UK, but that it was to be used only as a last resort when there might be a conflict. If the first adverse effect is that the Government do not want different circumstances for gender recognition certificates between Scotland and the rest of the UK, surely they are saying that this should not be devolved.
I agree with a lot of the points the hon. Member is making on devolution. Obviously he has read what we should really be calling the “clutching-at-straws reasons,” rather than the statement of reasons. He mentioned judicial review. I am not a lawyer, but I am sure that, like me, he can read this and see how weak the UK Government’s arguments are. On that basis, and if he believes in the protection of devolution and that Scotland should be able to do things differently, does he not agree with us that the UK Government should drop this action now? The Labour party should be four-square behind the Scottish Parliament on this.
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.
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?
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.
On how people get a gender recognition certificate, the key thing is that we should take the suggestion that it is a pathology out of the process. I do not want it to feel like we are treating trans people as if they have a pathological condition. Is that not the key thing we need to change?
Yes, I agree. That should be part of this argument. We should be taking pathology out of the process, as this is not a medical disorder.
I wish we were having a debate about all these things, as we should be, rather than having a constitutional debate between two Governments who want not to resolve these issues but to fight about them in different ways.
The shadow Minister seeks to cast this conflict or tension—whatever we want to call it—as being between two Governments. In fact, depending on how the Labour party decides to act, the conflict and tension are between two Parliaments. There is cross-party support for this Bill in the Scottish Parliament, from the Liberal Democrats, the Greens, the SNP and the Scottish Labour party, whereas in this House it is simply the Conservatives who are standing in the way. Can he advise on how the Labour party will move on this?
The hon. Gentleman is fundamentally wrong. What we are dealing with today is a debate between the UK Government and the Scottish Government—[Interruption.] This is in the Scotland Act 1998, and it has to be resolved by the two Governments. If SNP Members want the Labour party to resolve this, we are happy to take the seats of Government either in the Scottish Parliament or here, but it has to be resolved by the UK Government and the Scottish Government. That is the black and white of this issue.
I will give way to the hon. Lady while Steven Bonnar chunters nonsense in the background.
I am interested in how the hon. Gentleman characterises some of what we have heard today, but if he thinks that the Labour party has no role in this, and if he does not think the Labour party ought to have a view or an opinion, or to take a position, he needs to make that clear, because his colleagues in the Scottish Parliament do have a view. They voted for these provisions, as did SNP, Liberal Democrat and some Scottish Conservative Members. He should stop being disingenuous and be clear. Where does the Labour party stand? Will it defend the right of the Scottish Parliament to act or not?
I will tell the hon. Lady exactly where we stand: we want this legislation to work. At the moment, the legislation is dead because—
The hon. Lady might say that from a sedentary position, but Stephen Flynn quoted Donald Dewar at great length. Donald Dewar will be turning in his grave at what is happening in relation to devolution and Scottish politics, because he created the section 35 process for the very reasons the hon. Lady just said. Section 35 is a process to enable cross-border problems to be resolved.
Let me finish my point.
The Government have come forward with 13 pages that they think show that the Bill adversely affects UK-wide legislation. I think the statement of reasons is thin, although I have not had a chance to read it all the way through. [Interruption.] It might be rubbish, but people have concerns that we have to alleviate. We have to bring people with us. What the SNP has forgotten about this entire process—Labour is very experienced at this because we do it all the time—is that when a Government are passing major equalities legislation they have to bring people with them. If that means they have to get people around the table—[Interruption.] Should you not have to bring people with you? If people raise concerns, you should just dismiss them? [Interruption.] No, this is me saying it. Equalities legislation is difficult and you have to bring people with you. These adverse effects might be “rubbish”—as I have said, at an initial glance I think they are pretty weak and flimsy—but the courts will have to decide whether they like this or not, because that is where this is going. The Scottish Parliament has the right to pass this legislation, because this is devolved, but the Scotland Act, protecting the Scottish Parliament, also contains a mechanism, written by Donald Dewar, to ensure that if there are cross-border concerns, those are dealt with. That is the way it is in this particular process.
I have not even gone through the first bit of my speech, but I will give way to the hon. Gentleman if he will apologise for saying that we were “weasels”. I hope that he has gone back and read my speech, which is not what I said during my contribution on the statement.
With the greatest respect, what I am hearing from the hon. Gentleman now is that he supports neither the position of the Scottish Parliament nor the position of the Government. He says that we need to win public support, but how much of that has the Labour party got in Scotland? Is this not the problem he has to face: leaving himself with nowhere to stand in Scottish politics and falling between stools, he is hardly standing up for the devolution settlement, which he should be so proud that Donald Dewar established?
Obviously, the hon. Gentleman did not listen to my contribution during the statement and has not listened to my contribution since. I have no idea which debate he is listening to, but it is certainly not the one I am participating in at this moment.
The bottom line here—this is the undeniable fact, whether we like it or not—is that the only way to resolve this today would be for both Governments to come together to try to find an accommodation. I am surprised that they have not done so, as this has been on the cards since 2016 and all we are getting now is a statement of adverse effects one day— 24 hours—before the expiry period for Royal Assent for the Bill. The Government are coming in at the eleventh hour with a section 35, with 13 pages of adverse effects that have not been communicated or worked on with the Scottish Government before. I am not involved in detailed discussions at ministerial level, although perhaps the Labour party will be at some future point, but perhaps it takes two to tango in these discussions. If the SNP genuinely wants this legislation to be passed and the Government genuinely want to see whether any adverse effects could affect residents in England, Wales and Northern Ireland, is it not incumbent on both Governments to get together to do everything they can to resolve this? That would allow us to get this on the statute book; section 35 could be removed and the Bill could go for Royal Assent, as was supposed to have happened some time ago.
That is the grim reality in Scottish politics the moment. It happened with the children’s rights Bill, which the UK Government challenged through the Supreme Court, which said that certain aspects had overreached under section 33 of the Scotland Act—that was another section that Donald Dewar wrote in to protect devolution. The Scottish Government were asked to remove those aspects from the Bill in order to get Royal Assent, and two and a half years later nothing has been done. That just shows that we are in political paralysis in Scotland at the moment, where nobody can do anything because it is turned into a political football about the constitution, and the trans community and others are sitting there in disbelief today that this cannot proceed.
Let me make some progress. I wanted, because of accusations that have been made, just to go through a little of the Scottish Labour party’s response to the Bill in the Scottish Parliament. We had a multitude of concerns about the initial Bill. Nobody could have said that the Bill that was presented in draft to the Scottish Parliament was in any way fit to become final legislation, but we worked constructively with the legislation, with the UN rapporteur for women and girls, with the LGBTQ+ community and with women’s groups, which were raising concerns about the Bill. We tabled amendments. We got the Equality Act on to the face of the Bill, which is referred to in a lot of the adverse effects in the Government’s document. We made many other amendments to that Bill to help alleviate concerns, but, unfortunately, the only way we are going to settle these arguments now is through the courts.
I am grateful to the shadow Scottish Secretary of State for giving way. The leader of the UK Labour party said at the weekend that he had serious concerns about reducing the age from 18 to 16. However, when my Scottish Conservative colleague, Rachael Hamilton, moved an amendment to keep the age at 18 rather than reducing it to 16, Labour MSPs joined the SNP to vote the amendment down. What is the shadow Secretary of State’s position on the age limit in Scotland?
We put in protections on the age limit in Scotland. We have the leader of the SNP at Westminster accusing the Scottish Labour party and the UK Labour party of different positions on this. There is nothing between the positions, but we should have devolution at the same time. The leader of the UK Labour party has made his position perfectly clear, and Anas Sarwar, the leader of the Scottish Labour party, and his team put in significant protections for 16 and 17-year-olds, including the notary public measure, which means that a person has to swear in front of a notary public for this to take effect and they have to get a responsible adult over the age of 18 to be able to do any of this under the age of 18.
Essentially, the hon. Gentleman is challenging people not to have different views on this, but two of his Front-Bench MSPs voted for the legislation. People are entitled to have slightly different views on what is an incredibly important subject. He has managed to do only one thing in the past week, which was not to get both Governments together to try to resolve this, but to write to me to ask my position on the Bill. I would rather that the two Governments came together. [Interruption.] We want the Bill passed and we want section 35 resolved; it is as simple and as straightforward as that. It has been our position for some time that we should modernise the GRA. That position has been eloquently expressed by my hon. Friend the Member for Rhondda, and it is still the one that we hold.
My right hon. Friend Hilary Benn made the crucial point—and this goes back to an earlier intervention—that gender recognition certificates can already be issued under the Equality Act. As we sit here today, single-sex spaces are protected by exemptions under the Equality Act. The adverse reasons that the Government are giving us on that are not about the process of getting a GRC, but about the process that is currently already in place. The Government are all over the place on this, and it is little wonder that the only result is to fan the flames for people who wish to break up the United Kingdom.
Is it not right that, in the passing of the Equality Act 2010, it was noted then that the GRA needed to be reformed and depathologised? The party that came in straight after the passing of that Act—the party currently in Government—has spent 12 and a bit years twiddling its thumbs and fanning the flames of fear and hatred, and then, when one Parliament of this United Kingdom takes decisive action, rather than stepping up and working to resolve the issue, the party has constructed a constitutional crisis that will benefit its voting.
That is what I have been saying. We desperately want the legislation to pass, but we also desperately want to make sure that the issues raised under section 35 are resolved. There are only two ways to do that: either through the courts, which is where I think this is heading, or through the Governments getting together. We do not have the power to make either of those things happen.
Opinion polling shows that the overwhelming majority of people in Scotland just want their two Governments to work closely together in the interests of the country, and, on this particular issue, in the interests of equality. Let me say to both Governments that these issues are not irresolvable. We can create an environment where protections exist for women at the same time as strengthening the rights for trans people. We can create a legal framework where GRCs issued in Scotland are entirely compatible with the UK-wide equality legislation. We can have a country where both the Scottish and UK Governments act like grown-ups, get round the table and resolve these issues. That is what used to happen. That is the way that Donald Dewar designed the legislation that this Government are now implementing. We need genuinely constructive discussions between the two Governments. Let us lock them in a room and not let them out until they find a solution. I can assure Members that there is a way through this, but both Governments are unwilling to take it.
Order. Before I call the next speaker, I point out that this debate has to finish by 5.27 pm, so I am introducing a time limit. I will start with five minutes, but it will go down after that if necessary.
I speak in this debate as someone who is extremely privileged to serve in both this Parliament and the Scottish Parliament, so I am able to bring some points of view that were not accurately articulated by the leader of the SNP, Stephen Flynn. It is sad that he is leaving the Chamber—I think it is important, because I will refer to a number of points he made.
The hon. Gentleman spoke about legal advice. We had a situation in the Scottish Parliament where, the night before crucial amendments were debated, the Cabinet Secretary wrote to Conservative, Labour and SNP MSPs about their amendments and the legal advice surrounding them, but told them that that legal advice could not be shared. Yet here we have the UK Government sharing their statement of reasons with Parliament, and I think that is—[Interruption.] Well, it is based on legal advice. I am just showing the different approach by the two Governments. It is based on legal advice; that was clear from the Scottish Secretary.
It is also important to recall that, although the SNP leader in this place and others have correctly said that this debate has been raging in Scotland for over six years, I have not yet heard—I am willing to take interventions from any SNP Member who can explain it to me—why the Bill had to be passed by December of last year. What was the rush, in the lead-up to Christmas, that meant it had to go through the Scottish Parliament before the end of the year?
I am delighted to remind the hon. Gentleman that, as we have heard a few times today, the Bill is the opposite of rushed legislation. It has been in the works for six years, it has repeatedly been a manifesto commitment from a number of parties and it has been the most consulted-on legislation. He might reasonably ask why it took as long as it did.
The hon. Lady misses the point. Yes, there has been a debate for six years, so why then did the Bill have to go through stage 3, looking at amendments until midnight or 1.30 in the morning, to be rushed through before the end of the Session, when there was so much debate and controversy? Remember, there were 150 amendments; if that legislation had not been rushed, there would not have been a need to look at 150 amendments. I have yet to hear any SNP Member saying why the Bill had to be put through in December of last year.
Does the hon. Gentleman not recall that the debate in the Scottish Parliament went on until those hours and votes occurred at those hours because of his stalling?
I was not stalling. Indeed—[Interruption.] Well, I am sorry, but some people might say that the 12 or 15 points of order that we had earlier from SNP Members were stalling. I do not believe that; I believe they were politicians making a point in Parliament, just as, in the Scottish Parliament, we were looking at 150 amendments because the SNP had rushed this Bill through.
The hon. Gentleman brings up the 150 amendments, but that is the point: effective scrutiny took place. He and his colleagues and other parties tabled those amendments and they were looked at in the correct manner, and of course the Scottish Parliament had to take time to do that. We should be proud of that.
And I am—that is why I wanted that debate. That is why I am asking why we could not we have continued that debate into the new year. What was the big issue that caused the SNP and the Greens to force the Bill through by the end of the year?
I have a couple more points to make on the process in the Scottish Parliament. The leader of the SNP refused to even acknowledge that, while there are Members of all parties who supported the Bill, there were a significant number of SNP opponents to it. SNP Ministers resigned in Scotland as a result of this legislation.
I will give way in a moment. I gave my MSPs a free vote, and I think it was right that they were given that opportunity. In fairness, one of our former colleagues in this place, Michelle Thomson, who is now an SNP MSP, spoke about the “dark arts” of the Whips within her party who were trying to stop debate—[Interruption.] No, no; this was Michelle Thomson, who used to be an SNP MP. She was speaking about the dark arts of her Whips in this debate, so I am interested to know about the SNP MPs who oppose this legislation. I am not sure whether any of them are in the Chamber today, but I am sure Alan Brown will tell me that there are SNP MPs who oppose his Government’s Gender Recognition Reform (Scotland) Bill.
No, we are not, and I will explain that in a moment.
The hon. Member for Aberdeen South, who leads the SNP here, spoke about the Government taking a view on the Equality Act. I can only assume that he is unaware of the letter from the Equality and Human Rights Commission to Shona Robison, the SNP Minister who led on the Bill, dated
“In our view, there are implications for the operation of the Equality Act 2010”.
It is not the Conservatives or the UK Government saying that, but the Equality and Human Rights Commission. It made that very clear to the Scottish Government and to the SNP.
I have two minutes left and a lot to get through, so I apologise to the hon. Lady for not giving way. I would have liked to hear from her, as a Liberal Democrat MP, because it seems that, both in Holyrood and here, the Liberal Democrats and Labour are supporting Nicola Sturgeon and the SNP on this.
I worry that the Scottish Government are treating the issue in the same way that they treated children and young people in passing the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill. We were told then that it was absolutely essential legislation. The Scottish Government then legislated under the competencies of the UK Government, and the UK Government took the Scottish Government to court. That was controversial at the time. Nicola Sturgeon said it was an “absolute outrage”. Yet after the Supreme Court ruling on
What has happened since
I am not sure whether the hon. Gentleman is aware, but over the last two and a half years there has been this thing called the covid pandemic, which kept several Governments fairly busy.
Perhaps the hon. Lady did not hear me. I said that there was a letter from the Deputy First Minister on
Order. After the next speaker, I will drop the time limit to four minutes. I have absolutely no problem with colleagues taking interventions, but please remember that it leaves less time for others to speak. I call Ian Blackford.
It is a pleasure to follow my highland colleague, Douglas Ross.
We have heard a lot about the passage of the Scotland Act 1998. It is probably worth reflecting on the fact that the Scottish Parliament has been in existence only since 1999. It is a very different Parliament from the one we have here, and it is elected under a very different system. The list system means that it is difficult for a party to achieve an overall majority. There have been seven elections to our Parliament, and although the SNP has been in government for the last four, we have had a majority in only one. To answer some of the comments made by my friend, Ian Murray, the SNP Government have always had to try reaching a compromise and a consensus with other parties.
It is worth reflecting on how much the Scottish Parliament has done, working across parties, on the subject of equalities over those 23 years. We can be proud of the journey that Scotland has been on. And, my goodness, can we be proud of the Bill passed just before Christmas to give equality to trans people. That is really something that should gladden the hearts of us all. Members will recall what happened in that vote just before Christmas. MSPs from all parties voted for the legislation—a substantial majority of the Scottish Parliament. Of course, those parties were, in the main, elected with manifesto commitments to deliver that legislation. As has been referred to, that debate took place over a six-year period. We hear people talking about that legislation being rushed—my goodness.
There is an important principle here. Members know that the SNP has been here in substantial numbers since 2015. If I think back on everything that has gone on since that period and everything that has happened since the 2014 referendum, I remember that we have repeatedly been told that this is a family of nations, that Scotland was to lead the United Kingdom and that Scotland’s Parliament was to be respected. How many times have we been here and seen legislation passed without the consent of the Scottish Parliament, throwing away the Sewel convention that is supposed to protect the rights of the Scottish Parliament to give consent in devolved areas? We have seen it so many times. We have seen it with the European Union (Withdrawal) Act 2018, the United Kingdom Internal Market Act 2020, and the legislation we are debating tomorrow on EU laws. We saw the biggest disgrace yesterday over the issue of strikes.
Let me make some progress, then I will. We also need to think about what is happening here. This Bill has been passed by the Scottish Parliament, which has legislative powers and legitimacy. The Secretary of State is using powers given to him under the Scotland Act 1998 to strike down a Bill of the Scottish Parliament. And why is he doing that? Because of what is on this scrap of paper. It is simply not worth the paper it is written on. This is not about interfering with the powers of the UK Government or with legislation passed by the UK Government; this is simply about interfering with the Scottish Parliament. It makes the point to everybody back in Scotland that our Parliament has been under attack ever since 2015 and the SNP group’s presence here in such numbers. This is just the latest example.
The UK Government could have gone to court if they wanted, but they are using this legislation and the powers of the Secretary of State—a man who will disappear from this Chamber and end up in the unelected House of Lords—to stop and strike down a Bill of the Scottish Parliament that has been passed by a majority of MSPs. The UK Government are striking down a Bill that has the support of Members of every political party. What a disgrace. The message to the people of Scotland is this: if you want to stop the Secretary of State for Scotland interfering in our Parliament and you want to stop the UK Parliament denying our rights and our democracy, then friends, come with us and complete the journey. Scotland must become an independent nation.
It is a pleasure to listen to the former parliamentary leader of the SNP, Ian Blackford. He at least did spend a bit more time on section 33 than his successor, Stephen Flynn did.
It is certainly true that there are three ways the UK Government can approach this Scottish Bill. One is to say that it is deeply unpopular with many people in Scotland, do nothing about it and let the SNP take the political flak, which would probably reduce the number of SNP Members of the Scottish Parliament and SNP Members in the UK Parliament at future elections. For some people, that would be the political way forward.
The better way forward, if there is something substantial in the problems that this Bill may create for the UK Equality Act 2010, is to take action under section 33 or section 35 of the Scotland Act.
The Government had a choice, and they have chosen to go with section 35, and I think that is the right choice. The right hon. Member for Ross, Skye and Lochaber refers to what has happened since 2015, and I remind him that in 2017 the SNP got 37% of the vote in Scotland and the Conservatives got 44% of the vote in the country as a whole.
We will see how this matter works out. The best way forward, if I may give advice to everybody, is to follow the suggestion from the Secretary of State to the First Minister that the Governments get together and work out how to have a gender recognition Bill in Scotland that is obviously compatible with the Equality Act, so that women do not feel they are losing any kind of their security in any way whatever. I commend that to the House.
This is a dark day for democracy. It is shameful that the UK Parliament and the so-called Secretary of State for Scotland, whom I note is no longer in his place, would seek to overrule and override the democratically elected representatives who people in Scotland have sent to our national Parliament. That shows contempt for the Scottish Parliament and its ability to pass legislation in its areas of competence. It is no exaggeration to call it out for what it is: a politically motivated assault on our democratic processes and institutions by a right-wing Tory party with no compunction to use one of the most marginalised groups in our society to achieve its aims.
We must remember what this is all about: simplifying the process for people applying for a gender recognition certificate. That is all. It does not change the effect of a gender recognition certificate, which remains the same as under the Gender Recognition Act 2004. It seeks only to improve and simplify the process by which a trans person can apply for legal recognition of their acquired gender. That right has been in place for 18 years. The Bill represents an important step to creating a more equal and fair Scotland where LGBT people are valued, included and empowered. I am proud that the Scottish Parliament voted for that.
Let us be clear: the Gender Recognition Reform (Scotland) Bill was passed overwhelmingly by the Scottish Parliament and Members from all parties, including the Tory party, and with the overwhelming support of SNP, Labour, Green and Liberal Democrat MSPs. All those parties represented in Holyrood—apart from the Tories—had committed in their manifestoes to improving gender recognition laws. As we have spoken about, the provisions are the most widely consulted upon in the history of Parliament.
As well as the broad and wide-ranging consultation, the Scottish Parliament’s Equalities, Human Rights and Civil Justice Committee heard from the leader of the Irish Seanad about experiences with similar legislation there. And it is not only Ireland. We have heard today that such measures are in place increasingly in countries across the world. This is not groundbreaking stuff. It is inconceivable that there is good reason for us to argue about it. We have heard about all the conversations, the amendments and how the Bill passed through Parliament. Any examination shows that there has been a detailed and thorough process leading up to a clear decision. All that was within the competence of the Scottish Parliament, so why the UK Government—no friend of human rights in any guise—want to step in on this issue that affects a marginalised group so much is a mystery.
The Secretary of State for Scotland may have a different view from me on a gender recognition reform. That is his right, just as my views are my right. What should not be his right as one man—the soon-to-be Baron Jack—is to step forward and override the democratic voice of the Scottish Parliament, throwing his weight around just because he can. I have read the statement of reasons and I still cannot fathom the basis for this measure.
Whether on the constitutional or the gender issue, the coats of the Secretary of State and the Government are on a shoogly peg. Let us think about what the Tory Reform Group has said. The Chair of the Women and Equalities Committee has pointed out that the Bill does not cut across equalities legislation, and let us also think about what Andy Maciver has said. All of those people have made points that should be listened to. Fundamental to all that is the democratic point: the Scottish Parliament has voted for these measures and it is its right to do so.
I rise to contribute to this debate as a passionate Unionist, like many Members on the Government Benches. I am concerned about any legislation that could undermine the settlement in the Union of the United Kingdom. I say that as a former Secretary of State who took a devolution Bill through Parliament and was in the Cabinet when the last Scotland Act 2016 went through Parliament. Having served in a devolved Administration, I understand the genuine objectives and support that the devolved Administrations hold.
The principle of one legislature intervening on another legislature could be a dangerous precedent. My starting point would to be to have sympathy with what the Scottish nationalists are claiming and doing, and to understand the points of some of them that it could be a dangerous precedent. But section 35 is not about gender recognition and all the sensitivities that are associated with that. This is about the process of good lawmaking, providing clarity and providing satisfaction under the Equality Act 2010. That is something we should all be concerned about because of the people who would make use of the Equality Act due to their vulnerability and the appalling way in which some of them will have been dealt with previously.
The synthetic anger that comes from the SNP Benches troubles me. The reality is that the SNP often refers to the courts in order to clarify the devolved settlement, and that is fine and in order and provides ultimate clarity. We all know that this section 35 order will still end up in the courts, so why is there so much synthetic anger around that? That will provide clarity on this. If they have so much confidence in waving the statement of reasons around and saying it is worthless, that will be the finding in the court.
Let us concentrate on the process of good lawmaking, where one legislature has respect for the other. If there is a genuine concern, the SNP should respond to the invitation made by the Secretary of State, so that the leaders of both legislatures can get together to debate, discuss and seek to deliver a positive outcome. This is about the outcomes, not the synthetic anger and noises from SNP Members.
I turn to the Labour party. I am sorry that the shadow Secretary of State, Ian Murray, is not in his place, because I am really disappointed by the approach that the Labour party is taking on this. It has been criticised and called different names, and legitimately so; I say that with no gratification or pleasure. I thought the Labour party was a Unionist party and would want the law to be respected and section 35 to be used for the very reason that it lays down, but the shadow Secretary of State sought to manufacture all sorts of nonsense around this debate, rather than recognising the legitimate concerns that exist. Surely the Labour party wants to see a good lawmaking process. There is a time when process and principle matter to secure good legislation and—I say this to those on the Labour Benches—to secure the Union.
It is a pleasure to follow Alun Cairns, who says he is a Unionist—I have no reason to doubt that, but I assure him that I am as well. I assure all Government Members, including the leader of the Scottish Conservative party, Douglas Ross, that my and my party’s objection is not to the existence of section 35, which we think is a good check and balance, or to the right of the UK Government to intervene when there is a genuine need. The fact is, however, that this is not the time, it is not the case, and it is not appropriate.
The Parliament of Scotland considered this very carefully. The hon. Member for Moray talked about the letter that pointed out potential problems with the Bill, but has it occurred to him that in the year—almost—between that letter arriving and the amendments being tabled, every conceivable situation was looked at and taken into account in the legislation passed by the Scottish Parliament? I asked the Secretary of State whether he could point out the section of the Bill that undermines my rights as a woman, my daughter’s rights as a woman or the rights of all the women I know and the children I know. He did not do so, but we have been directed to this flimsy, weak apology of a statement of reasons as the supposed justification for the section 35 order. To say it is weak is to flatter it.
Those of us on the Opposition Benches and some who support the Government have looked at this Bill in great detail. Our colleagues in the Scottish Parliament pored over it with a fine-toothed comb and considered 150 amendments. The Bill says that it will always guarantee the primacy of the Equality Act.
The Parliament of Scotland—the elected representatives of the people of Scotland—has made a considered decision on behalf of a very vulnerable section of our society. In doing so, it has made progress towards a society where those people feel respected, honoured and treasured in a way that, perhaps, they did not before. I am grateful to my colleagues in the Scottish Parliament for having done that for my fellow Scots.
I am disappointed that the United Kingdom Government have taken this completely inappropriate opportunity to stage a constitutional confrontation with the Scottish Parliament—and they should be sure that it is with the Scottish Parliament, not the Scottish Government. I ask that they carefully reconsider the damage that they are about to do to the Unionist cause in Scotland if they do not respect the wishes of the Scottish Parliament.
I rise to support the Government’s decision to use their section 35 powers with regard to the Gender Recognition Reform (Scotland) Bill. As is the case for many other hon. Members, I am afraid that I have not had a chance to read the statement of reasons in full and in detail, so I will focus on a few key areas that are significant.
In paragraph 27, the Government point out that the Bill does not create “sufficient safeguards”. They are right to be concerned about “fraudulent and/or malign applications” because of the implications for child safeguarding. This morning, the Education Committee heard from Professor Alexis Jay, who chaired the inquiry into institutional child sexual abuse. It was harrowing to hear the stories of decades of child sexual abuse throughout institutions across the country. One key feature of such abuse is that predators will exploit any loophole that they can find to get access to children, and I am afraid that that is what will happen with the Bill.
We should not be asking how easy it is for someone who is uncomfortable with their sex to obtain a GRC; we should be asking how easy it is for a predator to get access to children. The Bill would make it vastly easier for a predator to get access to children by changing their gender with an eye to exploiting loopholes to access children and women in particular.
No, because I have only four minutes.
The naivety that the Bill has been written with is astounding and hugely worrying. The reduction of the age limit to 16 is a significant safeguarding risk, because the human brain does not stop developing until about the age of 25. People cannot drive a car when they are 16—in fact, there are an awful lot of things that people are not legally allowed to do when they are 16 because they cannot assess the long-term implications for their welfare. Changing legal gender, with a potential route to long-term changes to fertility, sexual function and health, is not suitable for 16-year-olds and is a huge safeguarding risk.
Paragraphs 30 and 48 mention membership on the grounds of sex and single-sex spaces. Sex Matters recently did a report that looked at the impact on single-sex spaces of men’s ability to access them by changing their gender. Women say, “I never went back to that swimming pool,” or, “I never went back to that counselling class,” because for many of them, the dignity of having a women-only space and knowing that there will be no men there is important. We will see a chilling effect on important single-sex rights if the Bill passes. As a woman, I fully understand the threats to dignity and safety that the Bill poses, because it will change the social contract. In this country, we recognise that in toilets, changing rooms and public spaces, there are areas where only women are allowed.
In a restaurant recently, I had an experience where a man dressed as a woman walked into the toilets where I was on my own. He stood behind me and stared at me in the mirror, looking me in the eye. I have no idea whether he intended me any harm, but my evolved instinct as a woman was to be frightened, because unlike in almost any other species, women are far less powerful than men and we cannot defend ourselves. [Interruption.] No, it is a fact. The difference in strength between men and women is phenomenal, which is why we have separate sex categories for sport. Women are evolved to be wary of men in intimate spaces, which is why we have single-sex spaces and why they must continue to exist for the safety and privacy of women. The Bill threatens that social contract.
Finally, this threatens the understanding of our law, which should be based on fact, and someone cannot change their sex any more than they can change their place of birth or who their parents are. I fully understand the complex arguments involved and we should treat this with compassion, but if the law is not based on fact, then how can we trust the law? That is why the Government are absolutely right to serve this notice.
Goodness me, that speech was probably one of the worst transphobic dog-whistle speeches I have heard in an awfully long time. Linking the Bill with predators is, frankly, disgusting, and you should be ashamed.
No, I will not give way to you, or anyone else. [Interruption.] I mean to the hon. Member.
On the substance of this, ignoring that horrible speech we have just heard—
On a point of order, Madam Deputy Speaker. Did you hear anything transphobic in the previous speech?
I have to say to the Father of the House that different Members of this House will interpret speeches in different ways. I suggest that we move on quickly, and I think Lloyd Russell-Moyle needs to calm down, moderate his language and move on to the substance of the debate, otherwise I will ask him to resume his seat.
Thank you, Madam Deputy Speaker. It is difficult when we are talking about these emotional matters.
The reality of this is that this section 35 is the new Tories’ section 28. It is their continuation of a war against a group of people—their culture war—that they want to pursue, and they think it will advantage them in the polls. That is what the Australian Conservatives thought as well and what the Republicans in the US thought, but I trust it will not, because the people do not like the bigotry that we hear from the other side.
I will give way, but it is bigotry that we just heard.
Order. Could I just say to the hon. Gentleman that we are very short of time and I hope that, if he takes an intervention, he will stick to the four minutes?
I recognise that the hon. Gentleman feels very strongly about this, but I would ask him to use caution about labelling a party as solely one thing, because it is Conservative party colleagues who led for the conversion therapy ban that has been announced today. When I was elected, no other MP talked about it for seven months, and we have delivered it today. I caution him to please not label all Members on certain sides of the House as transphobic or homophobic, and I also challenge anyone being labelled that in this House.
I will say that there are some very honourable Members on all sides of the House, including the Conservative side, who resisted moves from the Government and who, when trans conversion therapy was removed from that ban, pushed for it to get back in, and their work is to be applauded.
What this report says in reality is that there is no amendment this Government would accept or allow to pass. What this flimsy piece of paper indicates is that the only Bill they would accept is the current UK law, and anything that deviates from it would be blocked. I am afraid that is an undermining of the very concept of devolution. The Government should just be honest, and say that they want to remove the devolved competences in this area from the Scottish Parliament and return them back to Westminster. At least that would be an honest debate, rather than this dog-whistle debate about the safety of children, which, frankly, is not correct.
Of course there will be concerns and of course this Bill will not be perfect—no Bill is perfect—but one of the key principles of my job, and I think of the job of all of us, is not to let the perfect be the enemy of the good. Let us see how this Bill rolls out in Scotland. We could then see the flaws that might come from it, and the Scottish Parliament could have amended it and taken action, because all Bills are living, practical documents.
I say this as a gay man who loves all-male spaces sometimes and finds that the liberation of having such spaces is important—and I am sure that many women feel that the safety of all-women spaces is important to them—but this Bill does not change that law one bit. GRCs exist at the moment, and we already have a system for people to change their passport and their driving licence without a GRC. Going into a toilet, a public facility or a refuge is not contingent on a certificate at all, so all those arguments are bogus, and to continue a bogus argument knowing that it is bogus is, I am afraid, a form of bigotry.
I am rather concerned that Lloyd Russell-Moyle might have a seizure at the end of my speech, but we will do our best to keep him calm.
I have the words of my hon. Friend Douglas Ross ringing in my ears—that as the Bill was making its way through the Scottish Parliament, politicians received no legal advice such as that we have received today in the form of this good document, which, whether we agree with it or not, is available for analysis. It seems that as the Bill went through the Scottish Parliament, there was no such advice on overtones and issues regarding section 35 or the Equality Act 2010.
I do have issues with the whole concept of this—I am not going to stray into that too much, but I find the provision on the age of 16 scarcely believable. Even in Scotland a 16-year-old cannot drive or buy alcohol or cigarettes.
In Scotland a 16-year-old can vote and get married without parental consent—[Interruption.] And join the armed forces. I urge the hon. Gentleman to take credence of the actual situation in Scotland.
I was going to cover the things that people can do at 16. I understand that in education in Scotland, access for the armed forces to encourage a future and a career in the armed forces is actively discouraged, which is taking a lot of people away from credible and superb future employment. In Scotland—I always like to give the sunbed rule—someone cannot even go on a sunbed, and they cannot contract, yet here we are—[Interruption.] We all wanted to do lots of things aged 16. I rather wanted a tattoo and an earring, but here I am aged 56, and I am damn pleased I did not go down that route. It means that when I lie on beaches, most people sort of point at me say, “Look at that. There’s a guy without a tattoo on this beach.”
The other safeguards I am concerned about regard sex offenders. Are we really so naive as to think that those who are so minded will not exploit some of these rules to do things that we know they want to do? Are we so naive as to think that people will do the right thing in all circumstances? I am an absolute libertarian C4onservative and I have no interest in how people want to live—that is a matter for them. I have completely no interest, and I do not bring my opinions on it to this place for legislation. That is not my interest or concern. I steadfastly say that—people can do exactly as they please.
I question some elements of the Bill, in particular why the amendment regarding anyone being charged or on trial for sexual offences should be excluded—I think that was madness. But I would question one part of my hon. Friend’s argument. What evidence is there that by a man becoming a woman, he somehow has more privileged access to children than he currently does as a man? That is what I cannot understand in his argument.
Order. The hon. Lady has not been here for the whole debate, and I am getting concerned that people who have been here will not get in. I will reduce the time limit to three minutes, and I urge Craig Mackinlay to bring his remarks to a close, because otherwise he will have taken a lot more time than that.
I thank my hon. Friend Alicia Kearns. I could go into quite a story about a nurse, a transsexual woman, who was presented to a constituent of mine and their daughter for an intimate examination, but that is a story for another day and I do not have time to examine it here.
I am concerned that the process for obtaining a GRC would be much easier and much reduced under the Bill, as opposed to what I think has been a well debated, well rehearsed, and settled argument across the UK up to this date. The settled will has been that a GRC can be obtained where someone has lived as a different sex for two years, had some medical advice and intervention and guaranteed that they shall live in that way for the rest of their days. I think that is sensible; I am fully in agreement with that.
As I said, I am a libertarian Conservative, so I really do not mind what people want to do, but this is an issue about section 35 of the Scotland Act. The Bill would change the Equality Act 2010 and change how we live. I support the Government.
I call Alison Thewliss, who has three minutes.
Thank you, Madam Deputy Speaker. I rise to support the right of the Scottish Parliament to legislate and to oppose the Government’s attempts to override the democratic wishes of our democratically elected Scottish Parliament. Scotland joins countries such as Denmark, Malta, Ireland, Norway, Belgium, the Netherlands, Portugal, Switzerland, Argentina, Uruguay and New Zealand in this change. The UK Government have not acted, yet they seek to deny the Scottish Parliament the right to do that.
The Government’s thin statement of reasons really has a whole load of supposition, guesswork and nonsense within it. It says that we cannot possibly have the legislation in Scotland because His Majesty’s Revenue and Customs cannot fix its systems. We cannot possibly have it in Scotland because the UK Government are second-guessing the number of people who might take it up. We cannot have it in Scotland because the tiny, small, limited number—a handful—of private schools in Scotland that still offer single-sex places might have a problem. That is ludicrous nonsense and very thin.
I want to raise in particular the statement made today by all the women’s organisations in Scotland, which say:
“Too much of the debate around the Bill has been shaped by misinformation on what the bill will actually mean in practice. The majority of human rights, women’s and equalities organisations in Scotland have shown clear, consistent and unified support for this legislation throughout its seven years in development.”
There is a longer statement signed by Amnesty International, Close the Gap, Engender, Human Rights Consortium, JustRight Scotland, National Union of Students Scotland, One Parent Families Scotland, Rape Crisis Scotland, the Scottish Trades Union Congress, the Scottish Refugee Council, Scottish Women’s Aid, the Scottish Women’s Convention, the Scottish Women’s Rights Centre, Young Women’s Movement and Zero Tolerance.
If UK Government Ministers in this place think that they know better than those experts with years of experience in dealing with vulnerable women, they really have another think coming. They should reject their actions, draw back from opposing the Bill and let the Scottish Government get on with the business of giving trans people the rights that they so richly deserve.
I will start where the SNP leader—I am sorry that he is not in his place—finished his speech, by talking about wisdom. Where is the wisdom in the removal of the requirement for an applicant to have or have had a diagnosis of gender dysphoria? Where is the wisdom in reducing the minimum age for applicants from 18 to 16? Where is the wisdom in changing the period for which an applicant must have lived in their acquired gender before submitting an application from two years to three months? Where is the wisdom in the removal of the requirement for an applicant to provide any evidence that they have lived in their acquired gender when submitting an application? Where is the wisdom in the removal of the requirement for a panel to be satisfied that the applicant meets the criteria?
There may have been six years of consultation and many experts may have gone through this, but unfortunately there has been no common sense. The only common sense and wisdom that I have heard today has been about the Secretary of State using section 35 to protect women and children in England.
I have spoken on the subject before and been vilified for saying that transgender children are just going through a phase, only for the NHS to write an article a few weeks later saying that the majority of children are going through a phase. This is a toxic subject, and it is now being used by the SNP as a political football.
I want hon. Members across the House to remember what this is all about. There are families in this country in which boys and girls are coming home from school and saying that they are in the wrong body. These sorts of things are being glamourised on TV as though it is a wonderful thing. Let me tell the House that it is tearing parents, families and children apart and setting children on to a path of puberty blockers, hormone replacements and surgery. It is a disgrace what we are doing with children, and it must stop. I just hope that the parents who have to hear their children say that show wisdom and stick fast and hard to their belief that their child was born in the right body. We should do all we can in this place to protect those parents, protect women and protect children.
I want to make it clear that balancing rights is not a simple task. It is complicated and requires proper attention. We have needed a constructive discussion on equality and rights for years, but that has been consistently dismissed and denied. This is entirely the wrong issue for a constitutional clash. It is a matter of public record that my party and I have grave concerns about the format and consequences of the Bill. It has alienated women, campaigners and defenders of the rights of women to access single sex spaces across Scotland.
I want to make a couple of points for the Secretary of State’s attention. A section 35 order is absolutely the wrong approach. The Secretary of State said earlier today that the SNP did not object during the passage of the Scotland Bill to the clause that has been invoked today. I have to tell him that that is simply not the case. Far from the section 35 override clause being agreed to by the SNP, it was objected to strongly, most of all by my party leader Alex Salmond. It was realised then that it would cause the very trouble it is creating now.
There are two questions that the Secretary of State must address. First, if it is inappropriate to use section 33, will he now publish that legal advice, however exceptional it is to do so? Secondly, why has he not used part I of schedule 6 to the Scotland Act 1998, as that would surely have been a route open to him? Paragraph 1(f) states:
“In this Schedule ‘devolution issue’ means—
(f) any other question about whether a function is exercisable within devolved competence or in or as regards Scotland and any other question arising by virtue of this Act about reserved matters.”
The matter was not referred to under that schedule. Why?
I have no concerns about trans people. My concern is and always has been about bad actors. As mentioned earlier with regard to the police case in the press today, predators are determined and devious. They will go to extraordinary lengths to access their prey. We know that through various reports, not least the Laming report on the behaviour of organisations, and overly optimistic and unrealistic views of predators. Some 42% of trans-identifying prisoners on the female estate are sex offenders. That is not representative of the trans community. It is a distortion. So any suggestion that people would not use the Bill for nefarious ends is wrong.
I rise in support of the Government, my hon. Friend Nick Fletcher and, specifically, my hon. Friend Miriam Cates, who is one of the most thoughtful and honourable people in this House. The language used against my hon. Friend is typical of the language of the left for people with deeply held, honest views. The word “disgusting” was used. It is disgusting that my hon. Friend was treated in that way.
In general, this has been a good debate. We have had the normal debate: every single time I am in the Chamber listening to SNP Members, no matter what the debate, we come back to independence—one version of it or another. When we look at the title of the debate, we see that there are two things to talk about. The first is the section 35 power. The question, legally and constitutionally, is this: are the Government entitled, constitutionally, to use that power to intervene on this decision of the Scottish Government? Clearly, they are. There is simply no argument against that. The Equality Act 2010 is the United Kingdom legislation that guarantees equal rights for everyone no matter where they live in the United Kingdom.
The legislation from the Scottish National party amends the Gender Recognition Act 2004, which brings it within the competence of section 35. As has been said, the Secretary of State is entitled to act if the legislation has adverse effects, and the statement of reasons refers to the
“impacts on the operation of the Equality Act 2010 that result from the fact that a GRC changes a person’s protected characteristic of sex for the purposes of the 2010 Act”.
That makes it clear that there is a legal basis to what the Government are doing. Constitutionally, the Government are entitled to do this. We can have a debate regarding the merits of one argument versus another, but the Government are entitled to do this. They are the elected Government of the United Kingdom. I know that my friends from the SNP would prefer us not to talk like this, but we are the United Kingdom, and legislation such as the Equality Act 2010 applies to us all.
On the issues we are talking about, because of the competencies and section 35, this matter is brought within scope and Members from English constituencies, such as me, can speak about it. I believe—I am waiting for someone from the Labour party to call me transphobic or something—that 16 is too young for these decisions to be made. I believe that the legislation is a direct threat to women’s rights, sex and health-based rights and, especially, single-sex spaces. Those are genuinely held beliefs. The Government are entitled to do this, they share my beliefs and they are entirely correct in what they are doing today.
The document that the Government have published is a policy statement, not a legal document—and one so thin that it is absolutely translucent, especially for such an unprecedented unilateral action in the invocation of the section 35 power. Frankly, I have been disgusted by a lot of the tone of today’s debate. I am very interested to hear a lot of people suddenly become massive defenders of equality, including Nick Fletcher. I remember being in a Westminster Hall debate with him when he said that Dr Who being a woman was turning boys gay, among other ridiculous arguments.
Is the hon. Lady giving way?
I will not give way, actually. I think we have heard more than enough—
Order. No; the hon. Gentleman must resume his seat.
On a point of order, Madam Deputy Speaker. I ask the hon. Member to withdraw that and refer to Hansard. That is not what I said; that is an outright lie.
No, no; the hon. Gentleman must qualify that. I think he meant that the hon. Lady may have unintentionally misled the House.
Is that what he is going to say? I hope it is.
With regard to the point of order, which obviously the hon. Gentleman was addressing to me to say that he felt that what had been said was incorrect, my response is that if the hon. Lady at any point feels, when she goes back to look at the debate, that what she has said has unintentionally misled the House, she will correct the record. I am taking her word for it that she will do that.
Thank you very much, Madam Deputy Speaker. On checking Hansard, I see that the hon. Member actually said that Dr Who being a woman was turning boys towards a life of crime. Clearly, it was a matter of misogyny rather than homophobia. However, I am very sorry for having inadvertently misled the House in accusing the hon. Member, in a very legitimate comment that I made about his brand-new respect for our equality legislation, in having made a remark that was misogynist rather than, in fact, homophobic. I apologise for that omission.
I will not give way; we have heard more than enough from the hon. Member today.
I would like to talk about the substance of the policy statement, because it is an absolute joke. I declare an interest as an LGBT woman—as someone who is myself LGBT and exists—something that has been forgotten entirely in this debate by people who are trying to draw a false distinction between the rights of women and the rights of LGBT people, including trans people.
I am afraid I do not have the time I would like to have to go through all the clauses, which, as I have said, are so flimsy as to be ridiculous—including clause 20, which I am calling the “computer says no” clause because, as Alison Thewliss pointed out earlier, it says that the law cannot be changed because the computer system could not handle it. The computer system should be changed to abide by the law, not the other way round. These potential adverse impacts are flimsy, this piece of paper is an absolute nonsense, and, as I have said, there is no justification whatsoever for such an unprecedented action as invoking section 35.
Let me start with an apology to all the trans people in Scotland who were hoping that they would be able to get the gender recognition certificate that they cannot currently get because they cannot provide thousands of pages of evidence, because they cannot go in front of a panel, and because they cannot obtain the medical diagnosis of gender dysphoria, which the World Health Organisation has said should not be necessary for a certificate. I want to apologise for the fact that we gave them that hope and the UK Government have dashed it again.
We are in a room full of cis people talking about the lives of trans people. That is what we are doing in this room: we are talking about the lives of other people, and about rights that do not affect us in our privileged, entitled position here. I want to know why the UK Government have suddenly decided that they are going to try to protect vulnerable women and children. They did not think like this when they were talking about the implementation of the rape clause, or when they were demonising migrants and refugees. They did not want to protect women and children until today, when it seems that they can suddenly use this wedge issue to attack trans people, and to demonise the Scottish Parliament and the Scottish Government for the decisions that we have taken to try to improve the lives of our trans constituents.
Earlier, when I asked Secretary of State what a gender recognition certificate does, he did not have the faintest clue, yet he has the power to veto this legislation from the Scottish Parliament. I have looked at the statement of reasons, and it contains no reasons for any impact on the lives of women and girls who are not trans. There is no such impact on their lives, because this is a manufactured grievance—the Labour party is absolutely correct about that. It is a grievance manufactured by the Conservatives, who are cynically using the lives of trans people to create this conflict.
A gender recognition certificate does not allow people access to bathrooms or changing rooms, and it does not allow them to change their passports or driving licences; they can do that without a gender recognition certificate. All the certificate does is allow people to live and die in dignity. It allows them to have the correct gender on their death certificates, and it allows their gender to be recognised by pension providers. It is something that trans people need and cannot currently obtain because of the massive barriers erected by the current Act. I am devastated that Conservative Members sitting over there are suggesting that we should even row back on that Act. What we should be doing is making life better for people and improving human rights, not dismantling them.
First and foremost, this is an attack on devolution. It is an attack on elected Members of the Scottish Parliament, and it is an attack made by the Scottish Secretary, who has never respected the institution of the Scottish Parliament in the first place. He has always thought that Westminster is more important, and that it has primacy over the Scottish Parliament. This is the same Scottish Secretary who tells us that we have the most powerful devolved Parliament in the world, when we do not even have the most powerful devolved Parliament in the UK. The Northern Ireland settlement gave much greater powers in relation to pensions and rights over the Union, to name but two areas.
When we listen to the arguments in the Chamber today, we hear the right-wing Tories standing up and pretending to speak for women’s rights. Right-wing Tories are part of a culture war. Right-wing Tories have the cheek to say that we have manufactured a constitutional debate. How can we have manufactured a constitutional debate when two thirds of those elected to the Scottish Parliament voted for gender recognition reform?
I cannot give way; we do not have enough time.
This is absolutely grievance politics and a culture war from the Tories. And then we get the “clutching at straws” statement of reasons. Somebody tried to say that this was legal advice, but it is not. Everybody knows that if you pay a lawyer, you can get them to write what you want. That is what this is: a list of bogus reasons for the Scottish Secretary to introduce this section 35 order.
Let us look at the equal pay section, which is unbelievable. It says that transgender people are going to cause problems with equal pay because if somebody transitions and becomes a transgender woman, they might have been on higher pay before and that could affect claims. It also says that someone transitioning could affect somebody else’s equal pay claim because they cannot use that person as a benchmark. Talking about manufactured grievances, you could not make that up. That must happen just now with people who have already got a GRC, so if it does not undermine equal pay settlements just now, how can the GRR undermine equal pay settlements?
The bottom line is this: you know you are on the right side of an argument when the opposite side is that lot over there on the Government Benches. They are comparing trans people to predators, and that is an utter disgrace. You also know you are on the right side of the argument when Amnesty International, Close the Gap, Engender, the Human Rights Consortium, JustRight Scotland, NUS Scotland, One Parent Families Scotland, Rape Crisis Scotland, the Scottish Trades Union Congress, the Scottish Refugee Council, Scottish Women’s Aid, the Scottish Women’s Convention, the Scottish Women’s Rights Centre, the Young Women’s Movement and Zero Tolerance are on the same side as us.