Shirley-Anne Somerville, Meghan Gallacher, Paul O’Kane, Jamie Greene and Ash Regan.
By Bill Heaney
Conservative Deputy leader Meghan Gallacher asked if the Scottish Government has plans to appeal the decision of Lady Haldane, pictured left, in the Court of Session and if they did was their a timescale scheduled for it.However, the Cabinet Secretary for Social Justice Shirley-Anne Somerville told her: “We note the judgment and will consider its terms. Devolution is fundamentally flawed if the United Kingdom Government is able to override the democratic wishes of the Scottish Parliament and veto our laws at the stroke of a pen. The Scottish Parliament passed the bill with a large majority, including members of all parties.”
Meghan Gallacher pressed on: “That was not really an answer on the timeframe, was it? Scottish National Party ministers were warned on multiple occasions that the gender self-identification bill threatens the protection of women and girls in Scotland. However, the SNP ignored our warnings.
“The scandal of the double rapist Isla Bryson proved that predatory men will try to exploit self-identification to gain access to vulnerable women’s spaces, but the SNP ploughed on regardless and took the UK Government to court to get the bill enacted. Does the cabinet secretary think that the £230,000 that was wasted on that court challenge was money well spent?
But Shirley-Anne Somerville refused to be drawn on the matter. She said: “Until ministers make a decision on the appeal, those are still live legal proceedings, which restricts what I can say on the matter.
“With reference to the example that the member gave, I point out that it took place under the current Gender Recognition Act 2004, as passed by Westminster, which is applicable throughout the United Kingdom.
“On the issues that were debated in Parliament, I point out that at no point did the UK Government suggest, threaten or even approach the subject of a section 35 order being issued. As the bill went through Parliament, it was the subject of two public consultations and a very large amount of parliamentary scrutiny.
“Although the Government is disappointed with the judgment, we will take time to reflect on it and will come back with our decision on the appeal in due course.”
Meghan Gallacher told MSPs: “The cabinet secretary gave no answer on the timeframe and no answer on the amount of money that the bill has already cost the taxpayer.
“Opinion poll after opinion poll has shown that the SNP’s gender bill remains unpopular, with each of its provisions, such as letting 16-year-olds change their legal gender, being opposed by a large majority of the public.
“When it comes to wasting more taxpayers’ money with a potential court appeal, will the cabinet secretary listen to the public and ditch the bill for good, or will she instead be in favour of her Green coalition partners, who want to spend endless amounts of public money on getting the flawed bill enacted?”
Shirley-Anne Somerville: replied: “I am sure that Meghan Gallacher must be aware that the costs are already in the public domain, because I answered a parliamentary question on them. We are certainly not hiding anything on the costs to date.
“The reason why this was an important legal challenge—it was not a decision that we took lightly; we considered it very carefully—is that there is an emerging pattern of interference in devolved matters by the UK Government. It routinely now ignores the constitutional convention that the UK Parliament will not legislate for devolved issues without the consent of the Scottish Parliament.
“In 2021, of course, the UK Government referred the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill to the Supreme Court. It has now ignored legislative consent decisions of this Parliament on several occasions.
“There have also been several instances in which the UK Government has refused to acknowledge the Scottish Parliament’s view that legislative consent has been required, such as with the Nationality and Borders Act 2022.
“As we have seen with the breaches of the Sewel convention, once that sort of intervention has happened, the UK Government will find it easier to justify using the power again and further erode devolution. The Scottish Government makes no apologies for standing up for the powers of the Scottish Parliament.”
Her SNP colleague Karen Adam interjected: “I agree with the cabinet secretary that the Court of Session ruling was a demonstration of the fundamental flaws of devolution.
“Of equal note is that last Friday will have been disappointing and traumatic for many. Will the Scottish Government give an unequivocal commitment to continue to do all that it can to support the community?
“What assurances can the cabinet secretary give today that any decision in relation to the ruling will be treated with the utmost sensitivity?”
Shirley-Anne Somerville said: “The section 35 order raises serious questions about devolution, as I said in my previous answers. However, we acknowledge the specific impact on the trans community in Scotland.
“Yesterday I had a series of calls with LGBTQI and women’s organisations in which I heard about the disappointment and dismay among the trans community. I want to be clear that, no matter what happens with the legal challenge, the Scottish Government will remain committed to LGBTQI equality.
“That is why we are taking forward legislation on ending conversion practices in Scotland, we have published our non-binary action plan and we are taking steps to improve access to national health service gender identity services.”
Labour MSP Paul O’Kane said: “When the cabinet secretary made a statement to Parliament in April, in which she outlined the Government’s intention to take legal action, I asked her about wider supports for trans people in the intervening period, because any such legal process can create a vacuum.
“She said that, although the Government viewed the bill as being important, it was not the only area in which it was working to support the trans community in Scotland. Will she update Parliament further on what is being done to support trans people right now and in any further intervening period before the Government takes a decision?”
Shirley-Anne Somerville replied: “When we discussed the issue in the chamber previously, Paul O’Kane rightly raised the wider and varied concerns of the trans community. In my answer to Karen Adam, I mentioned some of the other aspects on which we are working, including the non-binary action plan, which is an important piece of work that my colleague Emma Roddick has undertaken.
“We are absolutely committed to taking forward the bill on ending conversion practices before the end of the year. We are keen to ensure that we make progress with that, particularly on aspects of health services, on which I know that the trans community has concerns. We have started to see improvements there, but there is still much more work to do.”
Alba MSP Ash Regan, who recently defected from the SNP, said: “The court judgment has vindicated the concerns of women’s rights campaigners that the Gender Recognition Reform (Scotland) Bill would negatively impact the operation of the Equality Act 2010 and, therefore, existing protections for women and girls.
“Now that the Government has been forced to face the folly of its position, will it take this timely opportunity to apologise to those campaigners for dismissing their concerns as not being valid?”
Shirley-Anne Somerville suggested that although the judgment related to gender recognition, it was based on aspects of the section 35 order “which, frankly, drives a coach and horses through the devolution process”.
Conservative Jamie Greene said that 86 MSPs from across the political spectrum supported the aims and underlying principles of the bill.
He added: “Equally, many undoubtedly would not have supported any form of change to gender reform through legislation. Given that many of us who supported those principles did so in the face of firm reassurances from ministers that the legal advice that they had sought was sound, would it not now seem prudent for the Government to make that advice public—if nothing else, to demonstrate to Parliament that it acted in good faith?”
But Shirley-Anne Somerville told the chamber: “Jamie Greene is right to point out that members expressed differing views as the bill passed through Parliament.
“However, I point out that it did pass with the consent of the large majority of MSPs, including members from all parties. It is disappointing that the voice of the Scottish Parliament has been vetoed in that way.”