The Times: Westminster poised to intervene over gender bill assent

[ResisterRex]

Begins:

"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 say 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.

It follows 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."

More here:

Westminster poised to intervene over gender bill assent.

https://www.thetimes.co.uk/article/9864f1e4-8ea9-11ed-a321-77184a1c82e4?shareToken=9342e07f5c59124eb13d7c1a93f40d5ee_

That's really good news.

As big a supporter if Devolution as I am, this is an example of it being used to pass very bad law, and law that makes woman a lesser citizen.

Squeaky bum time.

I'm not sure devolution comes out of this very well. The lack of a second chamber is really showing. You need a safety valve.

Agree, Resister. If all Scotgov have got to show for the past few years is a series of increasingly unpopular and unworkable laws, what on earth use are they?

<rubs hands in anticipation>

Personally I'd rather Sunak just locked down the definition of biological sex in relation to the sex-based exemptions in the EA2010. Denying Royal Assent will play into Sturgeon's narrative of big, bad Westminster and Scotland's absolute need to break ties. She's already rehearsing in the mirror as we speak.

Be far better just to show up how unworkable and unjust a piece of law the GRR Bill is by removing any wriggle room in the EA.

That's a very good point.

If they brought in the Reality Act (thanks to a recent visitor to this board) to make it 100% crystal clear that the Equality Act pc relates to sex, biological sex, not gender, then this would fix everything.

I'd rather that they do both. There have to be international implications here because of collecting data on sex, and how we report on CEDAW progress. Also it does seem quite arguable that Scotgov has overreached and I don't think that can be allowed to go by. Today it's this, what's tomorrow? Is the rest of the UK to submit to Holyrood?

If WM do a Section 35 then there will be a court case/JR, I believe.

It's going to be an interesting year.

I thought the route for S35 was for a motion against to be tabled in Parliament - and then a vote? Meaning Labour or the SNP would have to effectively say "yes we want this". That would split Labour, wouldn't it?

Or there could be no motion.

But I read about the JR route too. It can't be both, can it?

I agree with this.

I think the point is that if UKG use the s35 power, Scot gov will JR it

But if - if - the route is parliamentary, how can that be JR'd? Isn't something via Parliament or not? It can't be both routes.

Any exercise of a statutory power by government can in principle be challenged in the courts - eg on the basis that what was done was outside the scope of the power

Hmmm. An exercise of power stopping something outside the scope of power, challenged by the institution that is supposedly doing that thing outside its power! Imagine live tweeting that!

I assume the basis of the challenge would be that the conditions for exercise of the s35 power weren’t satisfied - it can be used in relation to a Bill:
”which make modifications of the law as it applies to reserved matters and which the Secretary of State has reasonable grounds to believe would have an adverse effect on the operation of the law as it applies to reserved matters,”

It's really interesting. I never knew about this before and I'm going to find the time to read that Scotland Act for sure.

An exercise of power stopping something outside the scope of power, challenged by the institution that is supposedly doing that thing outside its power!

Yes. Sounds messy. And incredibly technical.

It also sounds like something that can be easily manipulated by the SNP.

That is why the messaging from the UK government is so key here. They need to spell out exactly what this means to woman and children.

They have public support. They have right on their side for the 1st time ever.

They better not mess it up.

There's a bit more detail in the Telegraph, including a quote from Maya:

www.telegraph.co.uk/politics/2023/01/07/nicola-sturgeons-trans-law-will-hurt-english-womens-rights-government/

archive.ph/thQi3

It’s good to see the practical implications of self-ID spelled out so clearly in that Telegraph article. If clear language was used like this every time self-ID was discussed, this whole debate would be concluded by now (a bad idea, let’s drop it).

I thought some more about this. If Scotgov JRs UKgov, there will have to be legal discovery. How this question in the consultation was handled may be instructive:

"The Committee will not, as part of its scrutiny, address or explore issues which are outwith the scope of the Bill as outlined above. Submissions which contain offensive language, do not comply with GDPR requirements or are not relevant to the Committee’s scrutiny will not be published."

Did that question mean that examples of known cases that have names in them, in the public domain, were screened out? How is the public to have known which bits of GDPR they were to comply with? GDPR is highly complex. How could members of the public have complied with rules that weren't given? And were those rules not fit for the public to have understood, in order to respond?

Scotgov seems to recognise Gunning:

www.gov.scot/publications/planning-people/pages/5/: "Gunning Principless_ a strong legal foundation from which the legitimacy of public consultations is assessed."

www.local.gov.uk/sites/default/files/documents/The%20Gunning%20Principles.pdf:

"Rules: The Gunning Principles
They were coined by Stephen Sedley QC in a court case in 1985 relating to a school closure consultation (R v London Borough of Brent ex parte Gunning). Prior to this, very little consideration had been given to the laws of consultation. Sedley defined that a consultation is only legitimate when these four principles are met:

1. proposals are still at a formative stage

A final decision has not yet been made, or predetermined, by the decision makers

1. there is sufficient information to give ‘intelligent consideration’

The information provided must relate to the consultation and must be available, accessible, and easily interpretable for consultees to provide an informed response

1. there is adequate time for consideration and response

There must be sufficient opportunity for consultees to participate in the consultation. There is no set timeframe for consultation,1 despite the widely accepted twelve-week consultation period, as the length of time given for consultee to respond can vary depending on the subject and extent of impact of the consultation

1. ‘conscientious consideration’ must be given to the consultation responses before a decision is made

Decision-makers should be able to provide evidence that they took consultation responses into account

These principles were reinforced in 2001 in the ‘Coughlan Case (R v North and East Devon Health Authority ex parte Coughlan2), which involved a health authority closure and confirmed that they applied to all consultations, and then in a Supreme Court case in 2014 (R ex parte Moseley v LB Haringey3), which endorsed the legal standing of the four principles. Since then, the Gunning Principles have formed a strong legal foundation from which the legitimacy of public consultations is assessed, and are frequently referred to as a legal basis for judicial review decisions.4"

Discovery doesn’t apply in JR proceedings, instead there is a ‘duty of candour’ on the public authority being challenged.

The primary question for the court will be whether the Bill makes modifications of the law as it applies to reserved matters, and whether it will have an adverse effect in that specific respect.

The adequacy of the Scottish government’s consultation might have some relevance, but I suspect it would be more of a side question.

I thought discovery was possible in JR. Maybe not then

The problem with that is that if you have thousands of men with birth certificates which state they are female, it is much harder to apply the single sex exceptions in the EA. How do you prove they are actually male when all their documentation states that they are female?

Much better to leave the GRA as it is for now with a view to repealing it altogether so that nobody can apply to falsify their birth certificate.