Sunak can block Scot gender law, says ex-law chief Dominic Grieve accusing SNP of ‘manufacturing grievance’

Former Attorney General Dominic Grieve defending Rishi Sunak’s right to block Scotland’s new gender law  (PA Archive)
Former Attorney General Dominic Grieve defending Rishi Sunak’s right to block Scotland’s new gender law (PA Archive)

Rishi Sunak would not be acting anti-democratically by blocking Scotland’s new gender law, former Attorney General Dominic Grieve said on Monday as he accused the SNP of seeking to “manufacture a grievance”.

The former senior Tory minister dismissed the row as “political froth” which would ultimately be decided in the courts.

The Prime Minister was expected to announce the UK Government’s response, possibly as early as Monday, to the Gender Recognition Reform (Scotland) Bill which was passed by the Scottish Parliament on December 22.

The Bill will allow trans people to obtain a gender recognition certificate (GRC) without the need for a medical diagnosis - a process known as “self-identification”.

It will also permit 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 Scotland Act, which established a devolved Scottish government and parliament, gives Westminster four weeks to consider bills passed by Holyrood that could have an “adverse effect on the operation of the law”.

Mr Grieve told BBC Radio 4’s Today programme: “Section 35 of the Scotland Act, passed in 1998, when Scottish devolution was set up, expressly made provision for the possibility that there might be circumstances where in which the Scottish Parliament and Government enacted legislation which had an impact on reserved matters and gave to a UK minister the power to block it.

“Having blocked it, then of course there will be a judicial review of that decision.

“The legal issues will be argued out in the Scottish courts and ultimately probably in the UK Supreme Court to ascertain whether in fact the exercise of the power by the UK minister is correct.

“Of course, I appreciate for political reasons, people want to make a big thing of it, but it is actually just political froth.

“In constitutional terms, the provision of Section 35 was expressly put in by the UK Parliament, at the time of devolution, in anticipation that there would at times be the possiblity of this type of problem.”

He stressed that passing the new law was “completely within the competence” of the Scottish Parliament, but the UK Government could act as the gender law had a “potential impact” on reserved matters, according to ministers, namely the Equality Act which applies across the UK.

He emphasised: “It’s difficult to see that it won’t because it is going to create a situation when somebody crosses the Tweed, the legal framework in which they operate will be different.

“So, there are undoubtedly some practical implications of this, as well as some legal ones.”

For political reasons, it would be better for the “smooth operation of devolution” to not have such clashes but UK ministers had the responsibility UK-wide to ensure the “proper operation” of the Equality Act.

He added: “From a lawyer’s point of view, far from seeing this as being some terrible, constitutional trauma, it is actually part of the system..

“Certainly, the UK minister should not be seeing it from a political point of view, he should be seeing it from a legal point of view.

“Obviously, in Scotland, the Scottish National Party, because of its stance on independence, tries to find every opportunity to manufacture a grievance.”

The deadline for Mr Sunak to decide whether to block Scotland’s gender laws will arrive this week as he considers legal advice about its impact.

Multiple reports have suggested that the legal advice the UK Government has received will provide the Prime Minister with the cover he requires to trigger Section 35 of the Scotland Act.

If he does so, he will become the first No 10 incumbent to use the blocking mechanism.

But SNP Westminster leader Stephen Flynn has defended the reforms, telling BBC Scotland’s The Sunday Show: “What we have is a right-wing UK Conservative government which is seeking to row back on the democratic powers of the Scottish Parliament. That’s an outrage.”

According to the Financial Times, Mr Sunak - who said during a visit to Scotland last week that he was concerned by the gender law - is preparing to block the bill from entering the statute books, with a decision coming as soon as Monday.

The newspaper reported that the legal advice given to the Conservative Party leader states the Bill passed by Edinburgh “cuts across” UK-wide legislation on equalities.

The FT report described Scotland Secretary Alister Jack as being “fully supportive” of an intervention by the Prime Minister.

A UK Government spokeswoman said no decision had been made.

She said officials were closely assessing the impact the law passed by Scotland’s First Minister Nicola Sturgeon would have on the Equality Act.

“We share the concerns that others - including the Equality and Human Rights Commission and the UN Special Rapporteur on Violence Against Women and Girls - have with the Bill, particularly around safety issues for women and children,” said the spokeswoman.

“We are looking closely at these issues, and also the ramifications for the 2010 Equality Act and other UK wide legislation.

“Our concerns include the protection of single sex spaces, and the checks and balances included in the process of gaining a legal gender recognition certificate.

“No final decisions have been made and we are considering our next steps.”

Labour has also aired concerns about the legislation, with the party’s leader referencing both the reduction in age and the potential impact on equalities.

Sir Keir Starmer told the BBC he thought 16 was too young an age for people to decide to legally change their birth gender.

Meanwhile, the Prime Minister is reportedly set to ban all conversion therapy this week, opting to go further than his recent predecessor Boris Johnson.