• Disrupting Power Since 2015
  • Donate
  • Login
Thursday, May 22, 2025
  • Login
  • Register
Canary
MEDIA THAT DISRUPTS
  • News
    • UK
    • Global
    • Analysis
    • Trending
  • Editorial
  • Features
    • Features
    • Environment
    • Lifestyle
    • Health
    • Money
    • Science
    • Business
    • Tech
    • Travel
    • Sport & Gaming
  • Media
    • Video
    • Cartoons
  • Opinion
No Result
View All Result
MANAGE SUBSCRIPTION
SUPPORT
  • News
    • UK
    • Global
    • Analysis
    • Trending
  • Editorial
  • Features
    • Features
    • Environment
    • Lifestyle
    • Health
    • Money
    • Science
    • Business
    • Tech
    • Travel
    • Sport & Gaming
  • Media
    • Video
    • Cartoons
  • Opinion
No Result
View All Result
Canary
No Result
View All Result

UK government is likely overreaching in Section 35 intervention

Alex/Rose Cocker by Alex/Rose Cocker
20 January 2023
in Analysis, UK
Reading Time: 6 mins read
173 1
A A
1
Home UK Analysis
324
SHARES
2.5k
VIEWS
Share on FacebookShare on Twitter

On 17 January, the UK government released the list of its stated reasons for using veto powers against the Scottish parliament. The unprecedented move blocked the new Gender Recognition Reform (GRR) Bill, which would otherwise remove requirements for gender dysphoria diagnosis in order to obtain a Gender Recognition Certificate (GRC).

The choice to activate the Section 35 powers was voted in by 318 Westminster MPs to 71, with all but 11 Labour MPs abstaining. This is the first time the provisions it sets out have ever been exercised in the history of Scotland’s devolution. At a time when the union between Scotland and the rest of the UK has rarely been more fraught, the veto is likely to be taken as an unacceptable overreach from London.

Holyrood is free to mount a legal challenge against the use of Section 35. First minister Nicola Sturgeon has already indicated that she intends to do so:

What I can say in general is that we will absolutely, robustly and rigorously and with a very, very, very high degree of confidence, defend the legislation.

Here, the Canary presents part one of a breakdown of Westminster’s reasoning behind the use of the never-before-exercised powers.  This comes against a backdrop of increasingly vehement transphobia from across the British government – and the very makeup of the United Kingdom could be at stake.

Section 35: a veto

Section 35 of the 1998 Scotland Act essentially functions as a veto power for the Scottish secretary – currently Alister Jack:

The power is exercised through a negative statutory instrument presented to the UK Parliament, which would provide a legal instruction to the Presiding Officer of the Scottish Parliament not to present a bill to the King for Royal Assent. This would mean that although the Scottish Parliament has passed the Gender Recognition Reform Bill, it would not become law.

The powers are intended as a “matter of last resort”. The conditions for their use are quite exacting:

Section 35 can be used in two different situations, where the Scottish Secretary has “reasonable grounds to believe” that a Holyrood bill:

  • would be incompatible with the UK’s international obligations or not in the interests of national defence

or

  • would modify the law on reserved matters in such a way as to have an “adverse effect” on the operation of the law as it applies to reserved matters.

Here, the phrasing “reasonable grounds to believe” is important. It does not have to be the case that the veto is a proportionate reaction from Westminster, for example. Instead, it only matters that the Scottish secretary has good reason to believe there would be adverse effects from passing the GRR Bill to king’s assent. This is called ‘Wednesbury unreasonableness’.

Application to reserved matters

The UK government’s policy paper on its use of Section 35 is arranged into four sections. The first is a statement of the effects of the GRR Bill itself, and the three subsequent sections group together the reasons for the use of the powers. The first of these clusters of reasons pertains to the Bills possible effect on reserved matters.

A reserved matter is an aspect of law which can only be decided by the UK government as a whole. These usually have an international scope, or affect the UK itself as a whole. They contrast with devolved matters, which Scottish parliament is free to determine. The most obvious example of a reserved matter that self-ID in Scotland might impact upon is equal opportunities law.

The GRR Bill itself states plainly that it does not affect the 2010 Equality Act (EA), which is the mainstay of our equal opportunities provisions. However, the UK policy document seeks to circumvent this statement by pointing to impacted laws which would in turn affect the 2010 Act. It argued that the Bill “modifies the 2004 Act” (i.e. the Gender Recognition Act, GRA), and therefore:

The reserved matter to which that law applies is (at least primarily) “equal opportunities”.

And further:

The modified law (the 2004 Act) applies to the reserved matter (equal opportunities) through its inter-relationship with the Equality Act 2010 (the 2010 Act).

Westminster stated that the EA 2010 was “carefully drafted” in light of the fact that the GRA changes one’s legal sex “for all purposes”. As such, the GRR Bill would alter the “careful balance” of the limits of the GRA.

Different GRC regimes across the UK

The next section of the policy document works from the assumption that a Scottish Gender Recognition Certificate (GRC) would not be legally recognised in the rest of the UK. This is based on the fact that it is beyond the legislative competence of Scottish parliament to require that the GRCs issued under its own requirements are recognised in the rest of the UK.

Westminster argued that:

It is highly problematic both in principle and practically for a citizen of the UK to have a different gender, and legal sex (including for the purposes of the 2010 Act), depending upon where they happen to be within the UK, and which system of law applies to them. 

It could, however, be pointed out that the UK has previously had matters of equal opportunity that are recognised unequally between different member countries.

For example, same-sex marriage was legalised in the UK in 2014, whereas it only became legally recognised in the North of Ireland in 2020. Before that point, it was possible for a gay couple to be married in London, only for their marriage not to be considered valid in Derry, for example.

Sex-segregated spaces

The policy document also argued that single-sex clubs or associations might be jeopardised. It contended that it would be problematic that:

a UK wide, single-sex club or association could have different membership in different parts of the UK

This, however, may neglect the fact that the EA already makes exceptions for the exclusion of GRC holders from sex-segregated spaces. The 2010 Act:

provisions for sex-segregated services, competitive sports and occupational requirements allow for the exclusion of people with the protected characteristic of gender reassignment, where their exclusion can be objectively justified. Anyone holding a GRC would be protected by the characteristic of gender reassignment, but this is not reliant on having a GRC.

With this exemption already in place, where justified, the UK government may struggle to build an argument from the need to protect sex-segregation.

To be continued

So, we’ve now examined the potential impact on broader equality law, seen an example of the previous existence of differing status across borders, and considered sex-segregated spaces. It is potentially possible that Westminster is mistaken in its reasoning for the use of Section 35. This would in turn be proof of the UK government’s overreach, with potentially disastrous consequences for the union. It also adds to the growing list of openly trans-hostile actions taken by the UK government.

Part two of this analysis will deal with the remainder of the policy document. This features the potential impact on IT infrastructure, taxes and pensions; further impacts on the EA, such as for equal pay; and any new issues arising.

Featured image via Wikimedia Commons/Matthew Ross, licensed under Public Domain use, resized to 770*403

Share130Tweet81
Previous Post

UK plan to rip up thousands of laws gets green light in House of Commons

Next Post

Cyprus issues first ever fines for poisoning wild birds

Next Post
Bonnelli's eagle

Cyprus issues first ever fines for poisoning wild birds

55 Tufton Street and a Daily Mail front page about benefits

Daily Mail attacks benefits Britain with one of its biggest manipulations of facts yet

Dartmoor protest

The Dartmoor ruling is the wake-up call we all needed

Tear gas fired at Iranian protesters

Iran arrests three female journalists amid ongoing crackdown

A view of the Amazon

Brazil begins first operations to protect Amazon

Please login to join discussion
horoscope
Horoscopes

Horoscope today: your 24-hour briefing for life, love, and more

by Steve Topple
22 May 2025
Israel Netanyahu
Analysis

Verbal condemnation of Israel from European leaders is not enough

by Alaa Shamali
21 May 2025
TransActual toilet Supreme Court
News

Trans advocacy organisation unveils “Third Toilet” outside Supreme Court

by HG
21 May 2025
Labour polling Starmer
Analysis

New poll shows Labour’s pandering to the far right is failing miserably

by Ed Sykes
21 May 2025
Jeremy Corbyn
Analysis

Jeremy Corbyn suggests a new party will be in place before 2026 elections

by Ed Sykes
21 May 2025
  • Contact
  • About & FAQ
  • Get our Daily News Email
  • Privacy Policy
  • Cookie Policy

The Canary
PO Box 71199
LONDON
SE20 9EX

Canary Media Ltd – registered in England. Company registration number 09788095.

For guest posting, contact [email protected]

For other enquiries, contact: [email protected]

The Canary is owned and run by independent journalists and volunteers, NOT offshore billionaires.

You can write for us, or support us by making a regular or one-off donation.

© Canary Media Ltd 2024, all rights reserved | Website by Monster | Hosted by Krystal | Privacy Settings

Welcome Back!

Login to your account below

Forgotten Password? Sign Up

Create New Account!

Fill the forms below to register

All fields are required. Log In

Retrieve your password

Please enter your username or email address to reset your password.

Log In
No Result
View All Result
  • News
    • UK
    • Global
    • Analysis
    • Trending
  • Editorial
  • Features
    • Features
    • Environment
    • Lifestyle
    • Health
    • Money
    • Science
    • Business
    • Tech
    • Travel
    • Sport & Gaming
  • Media
    • Video
    • Cartoons
  • Opinion

© 2023 Canary - Worker's co-op.

Before you go, have you seen...?

horoscope
Horoscopes
Steve Topple

Horoscope today: your 24-hour briefing for life, love, and more

Israel Netanyahu
Analysis
Alaa Shamali

Verbal condemnation of Israel from European leaders is not enough

TransActual toilet Supreme Court
News
HG

Trans advocacy organisation unveils “Third Toilet” outside Supreme Court

Labour polling Starmer
Analysis
Ed Sykes

New poll shows Labour’s pandering to the far right is failing miserably

ADVERTISEMENT
Analysis
Nathan Spears

Vote for the Press Photograph of the Year 2024

Image by Burkard Meyendriesch from Pixabay
Feature
Nathan Spears

Why Santiago Ways is the Leading Choice for Walking the Camino de Santiago

Environment
Nathan Spears

EU elections point to growing public desire for new policymaking approach in Brussels