Former Lord Chancellor backs Scottish government in gender law showdown

Lord Falconer of Thoroton KC

Lord Falconer of Thoroton KC said the statement of reasons published yesterday by Scottish Secretary Alister Jack “did not justify” his controversial decision to invoke section 35 of the Scotland Act 1998 for the first time ever in order to prevent the Gender Recognition Reform Bill from receiving royal assent.

Section 35 allows the UK government to intervene if, for instance, a bill contains provisions “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”.

The reasons stated are that there would be adverse effects caused by having different gender recognition certificate (GRC) regimes across the UK; adverse impacts resulting from the increased risk of fraudulent applications; and adverse effects in relation to the operation of the Equality Act 2010, which is reserved to Westminster.

However, Lord Falconer suggested that the government’s position was at odds with its own estimate that the number of GRC applications filed in Scotland would rise from around 30 per year to around 550 per year under the proposed new regime.

In a series of tweets, he said the “administrative difficulties are minimal” with a figure of 550 per year, and added: “The nuclear option of s35 couldn’t reasonably be triggered by the administrative inconvenience (which would be unlikely to apply in most cases) of having special files for 525 people’s benefit records.”

Addressing concerns about fraudulent applications, he said: “The process is easier so the risk of fraudulent or malign applications is increased. But in the context of 525 additional applications, the vast majority of those are likely to be genuine.”

In relation to the Equality Act 2010, Lord Falconer said GRC holders could still be excluded from single-sex “safe spaces” if necessary. He said concerns about a small number of GRC holders being able to join single-sex associations “seems an utterly unsustainable basis for s35”.

He also questioned the government’s opposition to GRC holders having access to single-sex schools in their acquired gender. “It will effect probably a very small proportion of the 525 — those of 18 and under who might want to go to a single sex school who were suitable for selection,” he said. “And on what basis should that cohort be refused entry? If they had some malign intent they would not be eligible. If they were eligible they shouldn’t be discriminated against.”

Lord Falconer concluded: “The statement of reasons did not justify the use of s35.”

The Scottish government has confirmed that it will seek a judicial review of the UK government’s decision to use section 35 to block the law.