UK ministers are willing in principle to take the unprecedented step of blocking a bill passed by Holyrood after receiving legal advice on Nicola Sturgeon’s contentious gender recognition reforms.
Informed sources have said that Rishi Sunak’s administration has the political appetite to intervene in the controversy over self-ID, opting for direct action to deny the Scottish parliament royal assent rather than referring the matter to the Supreme Court.
There has been concern about possible risks posed to safe spaces for girls and women by cutting the waiting time for legally changing gender, making the option available to 16-year-olds and eliminating the need for a medical diagnosis of gender dysphoria.
Alister Jack, the Scottish secretary, is understood to have received initial advice from Victoria Prentis, the attorney-general, and from Lord Stewart of Dirleton, the advocate-general for Scotland, that the bill could be challenged under the Scotland Act.
Section 35 allows UK ministers to issue an order prohibiting Holyrood’s presiding officer from submitting the bill for royal assent if there are reasonable grounds to believe it would adversely affect the operation of UK-wide equality legislation reserved to Westminster.
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Although the SNP-Green administration has insisted the changes do not affect England and Wales, UK ministers fear it may lead to gender tourism and allow biologically male Scottish inmates in English jails, including rapists, to demand to be put in women’s prisons.
There is also concern that people who change gender in Scotland would have a different legal sex when entering England and Wales, that IT infrastructure used to administer benefits would have to be overhauled, and that organisations offering single-sex spaces for women could be forced to adopt differing policies depending where they are in the UK.
Ministers have until the middle of this month to decide how to proceed, informed by final advice expected from the law officers this week. The alternative, a referral by the advocate-general to the Supreme Court under section 33 of the Scotland Act, now looks less likely. This would have argued that the bill could be beyond the competence of the Scottish parliament
Michael Foran, an expert in constitutional law at the University of Glasgow, said it seemed “clear” that there were reasonable grounds for a belief that the bill would modify and adversely affect UK-wide law on equal opportunities.
Although he said he saw a section 35 order as “a distinct possibility,” he added that blocking the bill would “certainly be subject to judicial review”.
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He said: “Given that the order must be made within four weeks of the bill’s passing, any challenge will be based on whether there were reasonable grounds for concluding that the advancement of equal opportunities for biological women would be frustrated.
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“Whether the UK government wishes to wade into this quagmire, given both the gender politics and the devolution politics, is another question entirely.”
The first minister is likely to argue that an attempt to block the law, rather than referring it to the courts, is a denial of democracy. However, some senior Tories take comfort from the fact that measures contained in the Scottish bill are unpopular with voters.
Murdo Fraser, the Conservative MSP, said: “Should Alister Jack decide he has to intervene . . . he may be pleasantly surprised at the public support he receives.”
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The Scottish government said: “The bill as passed is within legislative competence and was backed by an overwhelming majority, with support from all parties. Any attempt to undermine the democratic will of the Scottish parliament will be vigorously contested.”
