Scottish government to challenge Westminster decision to block gender recognition bill in court – UK politics live | Politics

Andrew Sparrow

At Westminster the Labour party has been reluctant to criticise the government for using a section 35 order to block Scotland’s gender recognition reform bill. But in Wales the Labour first minister, Mark Drakeford, has criticised the UK government. As the BBC reports, he told the Senedd today:

The UK government’s decision to use powers that have never been used in the history of devolution is a very dangerous moment.”

I agree with the first minister of Scotland that this could be a very slippery slope indeed.

That is all from me for today. My colleague Tom Ambrose is taking over now.

University staff to go on strike on 1 February, UCU union says

Richard Adams

The University and College Union has announced that its latest strike action will begin on 1 February, alongside teachers, railway workers and civil servants, in a walk out likely to affect 150 universities across the UK.

Up to 70,000 UCU members could go on strike as part of their long-running dispute with higher education employers over pay, pensions and working conditions. The 1 February strike is the first of 18 days of action that the union has threatened to take over the next two months.

Jo Grady, UCU’s general secretary, said:

On 1 February, 70,000 university staff will walk out alongside fellow trade unions and hundreds of thousands of other workers to demand their fair share.

UCU remains committed to reaching a negotiated settlement, but if university employers don’t get serious and fast, more strike action will follow in February and March.

Ian Murray, the shadow Scottish secretary, said the reasons given by the government to justify the section 35 order were “pretty weak and pretty flimsy” at first glance.

But he refused to condemn the use of the section 35 order outright, and instead he criticised both the UK and Scottish governments, depicting them both as unreasonable. He told MPs:

It’s very difficult to conclude anything other than today’s debate being about two governments who are incapable of working together.

Murray also repeatedly sought to avoid saying whether Labour was in favour or against the section 35 order.

My colleague Peter Walker has not had any more luck trying to get an answer on this from Labour HQ.

Michelle Donelan, the culture secretary, has announced that the government will go ahead with a ban on conversion practices.

Curiously, she has made the announcement in a Commons written statement, which is mostly about the online safety bill, and which provides details of the concession to potential Tory rebels revealed last night ahead of the debate due later this evening.

The government has shifted all over the place on a conversion therapy ban over the past year. The Tories were committed to a full ban under Theresa May, and the pledge remained when Boris Johnson replaced her. Then, in March last year, it was reported that Johnson was dropping the promise. The revelation triggered a backlash, and within hours the government said it would go ahead with a ban – but only for conversion practices aimed at gay people, not for those aimed at trans people.

Now the full ban, including trans conversion practices, is back on, Donelan says. She says:

We are announcing today that the government will publish a draft bill which will set out a proposed approach to ban conversion practices, this will apply to England and Wales. The bill will protect everyone, including those targeted on the basis of their sexuality, or being transgender.

The government will publish the draft bill shortly and will ask for pre-legislative scrutiny by a joint committee in this parliamentary session.

The announcement seems timed to appease the relatively small cohort of Tory MPs who speak out on LGBTQ+ rights and who will have been concerned by the section 35 order decision, and particularly by claims that it is part of a No 10 “culture war” agenda.

In fact, Rishi Sunak seems notably less keen on “culture war” politics than Johnson was. Downing Street has not put up Kemi Badenoch, the equalities minister and someone who relishes “culture war” battles, to comment on the section 35 order, and although in the Commons earlier many Tory MPs were eager to attack the Scottish bill on the grounds that it was a supposed threat to women and girls in the UK, Alister Jack, the Scottish secretary, did not talk up these concerns. Instead, he focused more on the constitutional issues.

In the Commons Pete Wishart (SNP) told MPs that, after a brief look at the government document, he thought its arguments were “specious” and “hypothetical”. He claimed the UK government seemed to be arguing that, under the Scottish bill, a man might change gender so that he could qualify for lower pay.

One example of that is on equal pay – they seem to believe a trans man would take advantage of the opportunity to be paid less. That’s the type of rubbish that’s included in this.

This generated much laughter in the Commons. In fact, the document does not say that. But what it does say is almost as improbable.

He was referring to a passage in the document that implies that the Scottish bill could undermine equal pay law because, if a worker changes gender, but they also happen to be the best comparator for someone bringing an equal pay dispute, then the person bringing that claim might be disadvantaged. The document says:

Where a claimant may deem a colleague to be the most appropriate comparator of the opposite sex, but that colleague then receives a GRC, the 2010 Act would not enable them to be cited as the comparator in the claim. This could prevent the comparator test from accurately identifying what might otherwise have been deemed unlawful.

As the criteria for being issued with a GRC under the 2004 Act presently mean GRCs can only be issued to a small group who have lived in their acquired gender for at least 2 years, the effect of this on equal pay provisions is significantly limited.

However, the bill will allow a new and significantly broader category of people to change their legal sex. As more individuals are eligible to change their legal sex, the adverse effect on the operation of the 2010 Act’s equal pay provisions grows. In particular, an individual’s ability to gain a full GRC after living in their acquired gender for 6 or 9 months would increase the likelihood of equal pay claims involving individuals who had started and completed the gender recognition process only relatively recently or who obtained a GRC while a claim was ongoing.

Many of us would conclude that the chances of this happening – in equal pay cases where no other “comparators” are available – seem very, very remote. And the chances of this producing a genuine equal pay injustice seem non-existent.

In its own document the government admits these issues “may arise infrequently”. But it claims in some instances these issues could be “significant”.

Here is an extract from the government document published this afternoon explaining its reasons for blocking the Scottish government’s gender recognition reform bill. This summarises why the government thinks the bill undermines the Equality Act 2010.

The government is saying the “careful balance” of the Equality Act would be undermined by the Scottish bill.

The 2010 Act makes “sex” a protected characteristic and makes provisions about when conduct relating to that protected characteristic is unlawful. Section 9 of the 2004 Act provides that unless exceptions apply, the effect of a full GRC [gender recognition certificate] is that “for all purposes” the person’s sex becomes as certified. As a matter of general principle, a full GRC has the effect of changing the sex that a person has as a protected characteristic for the purposes of the 2010 Act. This is subject to a contrary intention being established in relation to the interpretation of particular provisions of the 2010 Act.

The 2010 Act as a whole was carefully drafted in the light of, and reflecting, the specific limits of the 2004 [Gender Recognition] Act and the relative difficulty with which a person could legally change their sex “for all purposes” (per s.9), including under the 2010 Act itself. The bill alters that careful balance.

The bill also has practical consequences on the operation of the law as it applies to other reserved matters. The most notable example is the administration of tax, benefit and state pensions managed by integrated systems across the UK that span reserved and devolved functions. The reserved matters to which the law applies are “fiscal policy” and “social security”.

The secretary of state believes that the modifications to the 2004 Act as it applies to reserved matters would have an adverse effect on the operation of the law as it applies to reserved matters.

These adverse effects can be grouped into 3 overall areas of concern set out the in following sections of this document:

Part 2: The impacts of the creation of 2 parallel and very different regimes for issuing and interpreting GRCs within the UK.

Part 3: The impacts that removing safeguards could have on safety, in particular that of women and girls, given the significantly increased potential for fraudulent applications to be successful.

Part 4: The impacts on the operation of the Equality Act 2010 that result from the fact that a GRC changes a person’s protected characteristic of sex for the purposes of the 2010 Act , and the expansion of the cohort of people able to obtain a GRC. This includes (a) the exacerbation of issues that already exist under the current GRC regime, and (b) the creation of new ones.

Nicola Sturgeon, Scotland’s first minister, has confirmed that the Scottish government will go to court to challenge the UK government’s decision to block its gender recognition reform bill. In an interview with the BBC, she said:

In doing so we will be vigorously defending something else, and that is the institution of the Scottish parliament and the ability of MSPs, democratically elected, to legislate in areas of our competence. In short, we’ll be defending Scottish democracy.

The Government Equalities Office has now published the “statement of reasons” explaining why the UK government has issued a section 35 order to block the Scottish government’s gender recognition bill. It’s here.

Back in the Commons Ian Murray, the shadow Scottish secretary, raises a point of order. He says there is no point having an emergency debate on the section 35 order until the “statement of reasons”, the government document setting out why it is issuing a section 35 order, has been published. He says it is not out until later.

Alister Jack, the Scottish secretary, says he laid the section 35 order at 12.34pm. He says it takes time for the Commons authorities to clear it, and it is not due out from them until 5pm. But he says he has arranged for the government to publish it on its website. It is being published now. He says it will be emailed to Murray and other spokespeople too.

Stephen Flynn, the SNP leader at Westminster, suggests the debate is postponed until MPs have had a chance to read it.

Rowena Mason

At the Institute for Government conference Penny Mordaunt (see 2.45pm) was followed by Lisa Nandy, the shadow levelling up secretary, who gave her own analysis of why the country is facing so many challenges.

She said “every major challenge comes down to one thing” – the government having “written off the talent, the potential and assets of most of our people in almost every part of Britain”.

She said it was a “social crime”, as “no part of Britain can succeed unless we grow ourselves in every part”.

She said the “waves of political upheaval” felt in the UK had been “the sound of people demanding to take charge of their own destiny”.

Nandy said Labour’s mission would be “ending a century of centralisation”, which she described as “at the heart of whether this country has a future”.

Instead of the government’s “vague” levelling up targets, she said Labour would look to establish an independent advisory council drawn from every part of the UK to monitor the government’s progress against metrics which deliver tangible outcomes.

These metrics will be based on principles including resilience, connectivity to education, training, work, healthcare, family and friends, sustainability, and wellbeing.

The Alister Jack statement is over. But Stephen Flynn, the SNP leader at Westminster has just made an application for an emergency debate under standing order 24 on the democratic shortfall illustrated by the UK government’s rejection of the gender recognition bill.

Sir Lindsay Hoyle, the speaker, said he was satisfied this was a legitimate subject for debate. There were no objections

That means the debate, which will last two hours, will go ahead this afternoon, starting after the 10-minute rule bill under way now.

Penny Mordaunt, the leader of the Commons, has given a damning assessment of the state of the UK, where she said many people feel things do not work for them and the poorest think the system is rigged against them, arguing that democracy and capitalism are hanging in the balance. My colleague Rowena Mason has the story here.

Christine Jardine (Lib Dem) says, as a Scottish woman and mother, she has heard the concerns about the bill. She has searched it for evidence that it does pose a risk. But she cannot find them. And some of the finest legal minds in the country have said the same. But she can see the part of the bill that guarantees the Equality Act. So can Jack point to the bit of the bill that does pose a risk?

Jack says he is trying to protect the vulnerable. He says legal opinion may be divided, but the government has taken its advice, saying there is a risk.

He says Nicola Sturgeon says she will take this to judicial review. He goes on:

So we will find out whether the court of opinion that I’ve been hearing is right or wrong when we go to the legal courts.