Gender Bill court fight ‘only means’ of defending Scottish democracy – Yousaf
The Scottish Government will take legal action after Westminster vetoed the Gender Recognition Reform (Scotland) Bill.
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Your support makes all the difference.Scottish First Minister Humza Yousaf has confirmed his Government will go to court to challenge the UK Government after it blocked controversial gender legislation passed by Holyrood.
He said legal action is “now our only means of defending our Parliament’s democracy from the Westminster veto”.
The move sets up another court clash between the two governments, after Scottish ministers last year lost a battle in the Supreme Court over whether Holyrood could stage its own independence referendum.
Mr Yousaf said Scottish Social Justice Secretary Shirley-Anne Somerville has informed MSPs of the intention to lodge a petition for a judicial review into the use of Section 35 of the Scotland Act to veto the Gender Recognition Reform (Scotland) Bill.
A legal challenge is now our only means of defending our Parliament’s democracy from the Westminster veto
This never-before-used power prevented the legislation, which was passed by Holyrood last year, from going forward for royal assent.
The UK Government insisted at the time that the Bill – which allows people to self-identify in their preferred gender and obtain legal recognition without having to go through a medical process – would have an adverse impact on the operation of the UK-wide Equalities Act.
Prime Minister Rishi Sunak said on Wednesday that the UK Government had taken “very careful and considered advice” on the issue before acting.
Speaking to reporters in Belfast, Mr Sunak added: “We had concerns, as the UK Government – the Secretary of State – set this out at the time, about how Scotland’s gender recognition act would interact with reserved powers, about the operation of the Equalities Act, the protection of women elsewhere in the UK as well.
“That’s why we took the decision to block the GRR. Obviously there’s a court process, we will follow that through.”
But Mr Yousaf said that when legislation passed by a cross-party majority of MSPs is “blocked by a Tory Westminster Government”, Scottish ministers have a “duty to defend democracy and devolution”.
The First Minister said: “Today, I have announced that the Scottish Government will challenge the undemocratic Section 35 veto on the Gender Recognition Reform Bill.
“While we all know there are a range of views on this Bill, this Tory Government’s veto on devolved matters is not about the substance of the Bill, but about the principle of undermining the Scottish Parliament.
“If unchallenged, it sends a signal that the UK Government can veto any legislation they disagree with, at a whim.
“Westminster gave no advance notice of this attack, asked for no amendments to the Bill in its nine-month passage through Parliament, and refused outright to work with the Scottish Government on any potential changes.
“A legal challenge is now our only means of defending our Parliament’s democracy from the Westminster veto.”
However the Tories accused the First Minister of trying to distract attention from the SNP’s troubles, after a divisive leadership contest and amid a Police Scotland investigation into the party’s finances.
Scottish Conservative deputy leader Meghan Gallacher said: “This is a painfully transparent attempt by Humza Yousaf to divert attention from the civil war engulfing the SNP and the huge question marks over the party’s finances.
“Desperate times call for desperate measures, so the beleaguered First Minister has reached for the nationalists’ playbook and is manufacturing grievance with the UK Government.”
Ms Gallacher insisted the vast majority of Scots oppose the “reckless” legislation, saying it “compromises the safety of women and allows 16-year-olds to legally change gender”.
She added: “Humza Yousaf has chosen to ignore public opinion – not to mention the views of his two SNP leadership rivals – to pursue confrontation with Westminster and appease the extremist Greens in his administration.”
Ms Somerville said the use of Section 35 powers by the UK Government represented “an unprecedented challenge to the Scottish Parliament’s ability to legislate on clearly devolved matters”, and “risks setting a dangerous constitutional precedent”.
She added: “In seeking to uphold the democratic will of the Parliament and defend devolution, Scottish ministers will lodge a petition for a judicial review of the Secretary of State for Scotland’s decision.”
The Scottish Greens, who are in Government alongside the SNP, backed the decision to take court action, saying it is “vital for equality and democracy”.
Equalities spokeswoman Maggie Chapman said: “If the Tories get away with overriding our Parliament on such a clearly devolved area, then it will set a dangerous precedent that could be used time and again.
“That is why everyone who believes in equality or devolution must support this challenge and oppose the Tory veto.”
But Scottish Secretary Alister Jack said: “The UK Government will robustly defend the decision to prevent the Scottish Government’s Gender Recognition Reform Bill from becoming law.
“I made the order under Section 35 of the Scotland Act 1998 after thorough and careful consideration of all the relevant advice and the policy implications.”
He also stressed use of Section 35 powers is “entirely within the devolution settlement as set out from its inception”.
Meanwhile, former Scottish Government minister Alex Neil warned Mr Yousaf that he does not “have a cat in hell’s chance of winning” the legal challenge.
Speaking on BBC Radio Scotland’s Good Morning Scotland programme, the former SNP MSP said it would be better to sort out the “anomalies” of the Bill.
He said: “My own view is in terms of the challenge to the UK Government, it would be far better just to reintroduce a Bill and this time in the Bill deal with concerns of women about places of safety for women and also deal with the UK Equality Act.”
However campaigners at Scottish Trans welcomed the Scottish Government’s decision to mount a legal challenge.
Manager Vic Valentine said: “The Bill as passed would introduce a simpler and fairer way for trans men and women to be legally recognised as who they truly are, allowing them to live with the dignity we all deserve.
“For the UK Government to seek to block the Scottish democratic process in this way, simply because they disagree with the welcome decision the Scottish Parliament has made to improve trans people’s lives, is unacceptable.”