ALISTER Jack has “refused further engagement” with the Scottish Parliament after issuing a Section 35 order, an SNP minister has said.
Social Justice Secretary Shona Robison has responded to a letter sent by Jack to Holyrood's equalities committee.
Jack’s letter was in response to 18 questions sent by MSPs, who sought to obtain more clarity on the reasoning behind the UK Government’s decision to issue a Section 35 order and block the Gender Recognition Reform (Scotland) Bill from becoming law.
However, his brief response contained very little in regard to explanation or advice as to how the Scottish Parliament could progress with the bill.
Robison’s response stated that the Scottish Secretary had little interest in engaging with the Scottish Parliament on the issue.
She said: “I share the committee’s disappointment that UK ministers have refused invitations to explain their intervention to the committee.
“I have also seen Mr Jack’s written response to the committee, which gives no answers to the specific questions and simply refers to already published material.
“This is consistent with his response to my own discussion with him on this issue: he has refused further engagement, including at officials level, and given no indication of potential amendments to the bill or clarification of what, if any, alternative approach in Scotland, in his view, would mean there are no longer ‘reasonable grounds’ the bill would have an ‘adverse effect on the operation of the law as it applies to reserved matters’”
In the annex to the letter, Robison states that when she asked Jack for specific details on how the UK Government would like the GRR Bill to be amended, she was told there would be “no further engagement on any level”.
“I met with Mr Jack on 24 January, following an offer made in my letter to him,” she said.
“I approached that meeting in good faith, hoping to be able to discuss the issues and clarify the UK Government’s areas of concern and potential amendments that might make the bill acceptable to him.
“However he made clear there would be no further engagement at any level. He set out that the only options open to the Scottish Government were to revise the bill at which point he would consider whether the bill as amended could be put to the Scottish Parliament, revoke the bill or take legal action. As he put it: ‘Address it, or fix it, or drop it or take us to court’”
Later in the annex, Robison also highlighted that the UK Government had years to express its concerns about the bill but chose not.
Instead, a Section 35 order was issued only after the bill was passed by a majority, with cross-party support, in the Scottish Parliament.
“In July 2017, the UK Government equalities minister at the time said she would consult in autumn of that year on reforming the GRA including removing need for medical diagnosis of gender dysphoria – a commitment also made that autumn by the former Conservative PM Theresa May.
“The UK Government then announced in September 2020 that following that public consultation exercise they would not be proceeding with legislative reform.
"It was therefore that government [the UK Government] that changed policy intent, not the Scottish Government and it was clearly apparent from that moment that there would be divergent systems in the UK.
“The UK Government gave no indication at that time that a divergence in approaches would be problematic in their view. At this time our own draft bill had also been published so our proposals were very clearly in the public domain.
“They have raised no such concerns since, despite ongoing discussions before and after the Bill was introduced to Parliament, let alone suggesting approaches would be so irreconcilable they would consider using a Section 35 order.”
The letter makes clear that without any moves by the UK Government to engage with the Scottish Parliament about its specific concerns with the bill, then it is likely to end up in the courts.
As Robison concludes: “We are examining the reasons given by the UK Government for their order and I will set out next steps to Parliament in due course.
“As I have said in correspondence with Mr Jack, we will respond to the reasons stated in the Section 35 rder in the appropriate forum which, given the approach taken by the UK Government, may be through the courts.”
