Could Westminster and Holyrood face a constitutional clash over gender law?

Rishi Sunak could be set for a major clash with the Scottish Government, with multiple reports suggesting that he will move to block Scotland’s gender recognition law this week.

To do so would likely prove controversial and would mean triggering Section 35 of the Scotland Act, becoming the first Prime Minister to use the legal power to block a bill passed in Holyrood.

But what is Section 35 and why is it controversial?

– What is it?

Section 35 is simply one section of the Scotland Act, which was passed in 1998 and which established the devolution settlement largely as we know it today, granting powers to the Scottish Parliament.

UK, Scottish and English flags
The section gives the UK Government the power to block certain bills passed by the Scottish Parliament from gaining royal assent (PA)

The section gives the UK Government the power to block certain bills passed by the Scottish Parliament from gaining royal assent, but only under certain and limited conditions.

Royal assent is crucial for bills to become law. Any piece of proposed legislation that has passed all stages in the law-making process must undergo the formality of gaining royal assent – the monarch’s agreement to make the bill an act.

Under Section 35 the UK Government can legally intervene to block royal assent for a bill that a Secretary of State “has reasonable grounds to believe would be incompatible with any international obligations or the interests of defence or national security”.

The Government can also legally take action if it sees a bill as making modifications to the law as “it applies to reserved matters”.

Under such a scenario, ministers in London must have “reasonable grounds” to believe that any proposed legislation would have an “adverse effect on the operation of the law as it applies to reserved matters”.

This means that a bill can be blocked if the Government thinks it would clash or conflict with the prevailing UK Government policy as it applies to reserved matters, even if the proposed legislation falls within the powers granted to Holyrood.

– Why is the Government considering using this power?

Members of the Scottish Parliament last month passed the Gender Recognition Reform (Scotland) Bill by 86 votes to 39, approving reforms which would allow trans people to obtain a gender recognition certificate (GRC) without the need for a medical diagnosis.

Gender Recognition Reform Bill
Members of the Scottish Family Party protest alongside supporters of the Gender Recognition Reform Bill (Scotland) outside the Scottish Parliament last December (Jane Barlow/PA)

The bill will also allow 16 and 17-year-olds to apply for a GRC for the first time, and would reduce the amount of time a person has to live in their acquired gender before they can be granted the document.

The UK Government immediately raised concerns, citing the ramifications on UK equality law and other pieces of UK-wide legislation.

Downing Street has also expressed concern about the impact of single-sex spaces and the checks and balances involved in the process of gaining a gender recognition certificate.

For its part, the Scottish Government has said it would have no impact on the exemptions or the wider Equality Act – which is reserved to Westminster.

The deadline for Mr Sunak to use the Section 35 power to block the bill expires on Wednesday.

Prime Minister Rishi Sunak
Prime Minister Rishi Sunak (PA)

– Why is Section 35 controversial?

The power has never been used before and to Government critics it would be an undemocratic intervention by London to override the decision of elected representatives in Edinburgh, effectively undermining devolution.

The move would likely launch a constitutional clash between Mr Sunak’s Government and the Scottish administration, just as Nicola Sturgeon and the Scottish National Party make another push for independence.

– What will the Scottish Government do if Section 35 is used?

The Scottish Government has said it would “vigorously” contest any attempt to block the bill becoming law.

This would probably mean legal action against Mr Sunak’s Government, leading to what could be another protracted court battle between Edinburgh and London.

LGBT+ charity Stonewall has called such an outcome a “nuclear option” which could turn a debate about transgender rights and gender recognition into a broader row over the devolution settlement.