Transcript of Justin Webb (JW) interviews on Radio 4 Today Programme, 23 December 2022 at 8.10.
Interview with Lord Edward Garnier, QC (EG):
JW: What do you think the Westminster Government should do now?
EG: Well I think they will have to move quite carefully, but they will also need to move quite quickly. Under section 30, er 35, of the Scotland Act, they have 28 days to do something about it, as has the Attorney General, the Lord Advocate and the UK Advocate General. There is a - and your introduction explained it extremely well - a number of problems, which lead to both moral and social questions and medical questions, but also to constitutional and political questions, and these are all difficult problems. Nobody wants to mistreat or to do harm to people who suffer from gender dysphoria, but equally we don't want two sets of regimes applying in the United Kingdom; under the equalities law, that is a UK matter, and for example the UK Equalities Act of 2010 allows an institution to prevent someone who has a Gender Recognition Certificate from going into an all female space if their Gender Certificate certifies that they are now male (sic); but gender recognition is a devolved matter, so it's entirely up to...[JW interrupts]...we've got a number of muddles here.
JW: On that muddle, are you saying it is not clear then; because we've heard it repeatedly, and actually we heard earlier on in the programme from a trans rights activist, who was saying this doesn't change that at all, this doesn't have any impact at all on safe spaces for women. Are you saying that is does or that it might?
EG: It might. It might. And that's the problem. And I don't think this, this has been properly thought through during the course of the rather rushed debates in the Scottish Parliament. I also have a rather less attractive political point; which I think that is, following the Supreme Court decision about the Scottish referendum, in which, for example, the Supreme Court rejected the suggestion that Scotland was an oppressed and colonial country, that the leadership of the SNP is looking for things to have rows about with Britain, with the United Kingdom, in order to demonstrate that the SNP is still on the war path as far as total separation is concerned.
JW: But on that political point then, might the Westminster Government be wise to just to leave this alone, and say, well if you want to change the law in Scotland, let's see what the ramifications of it are, let's not get involved in this fight?
EG: That's precisely what the 28 day period allows. I mean I remember years ago, when there was a distinction between the United Kingdom position and the Scottish position on the minimum price of alcohol. Was it a health issue, in which case it's devolved to Scotland, or was it a sale of goods (?), in which case it's a United Kingdom question? And it was decided in the end not to have that fight and and to let the Scottish law deal with it as a health issue. Now, this is what this 28 day period is for, and I hope both governments will use is sensibly.
JW: Another potential complication, and we know everyone agrees on this, it makes it easier to get a Gender Recognition Certificate in Scotland than it currently is, and supporters say that's a good thing and opponents say it's a worrying thing. But there's this phrase, "living in the gender", living as a man or living as a woman, for three months now for adults; is it clear to you what that actually means, what someone has to do and prove that they've done?
EG: No. And that does concern me. The advantage of the current system under the 2004 Act is that, the matter has to go before a panel which includes doctors, and they have to certify that the change in gender is one which is certifiable, which is recognisable, and that the person in question has lived in their new gender for two years. I'm concerned, as it happens, that those under 18, so essentially people who are legally minors, can self certify after 6 months - and indeed it's troubling enough that adults can do it after 3 months - but I am particularly concerned about those under 18.
JW: Alright, well Lord Garnier, thank you, let us now turn to Baroness Kennedy....