This is a short, reader-friendly summary of legal possibilities available to the women of Scotland and their allies in the UK following the passage of the Gender Recognition Reform Bill in Holyrood, the Scottish Parliament, on Thursday 22nd December 2022. For more legal details, please follow acknowledged experts such as the rebel leader Joanna Cherry KC (SNP MP for Edinburgh South West, King’s Counsel and Feminist), the Edinburgh-based policy analysis collective Murray, Blackburn & Mackenzie, and Michael Foran (Lecturer in Public Law at the University of Glasgow). In the Wimbledon of recent legal arguments, these are top umpires. I’m not even qualified to be the ball boy.
Firstly, to assume no legal knowledge at all, the GRR is a Bill that, although passed by Holyrood, has not yet received Royal Assent. No, that’s not a technicality, not in this case – more on that later. So it doesn’t come into force (it affects nothing) until the day after that happens – if it does. That means that people can’t already start acting as if the GRR is law. It’s not. At the moment it’s still a proposed law. (I’m not using legal jargon here.)
The relationship between Holyrood and Westminister is complicated. It really doesn’t matter what your opinion of that relationship is; what matters here is the legal reality. If you’re used to politicians spouting off their opinions and party policy all the time, the restrained language of cool logic of legal experts can strike you as odd. It’s also quite refreshing. Joanna Cherry is a feminist and Scottish Nationalist; Murray, Blackburn & Mackenzie are certainly feminist but I have no idea if they’re nationalist or unionist; exactly where Michael Foran stands personally in this debate I can’t tell for sure. That’s quite normal in legal circles.
Bills passed by devolved legislatures (Scottish Parliament, Welsh Senedd, Northern Irish Assembly) have to stay within the powers that they are legally allowed to exercise. This is quite normal. Holyrood can’t pass a law outlawing kangaroos in South Australia, for example. That’s literally, and clearly, none of its business. Neither could it, for the same reason but closer to home, decide that all schoolkids in Kent will get free ice-cream. However, it’s also not free to decide everything and anything in terms of Scotland. Why? It’s our parliament, our country, why can’t we do whatever we want? That’s because there isn’t a straight line of succession between the ancient Scottish Parliament, which closed in 1707, and this new one that opened in 1999. In the meantime, Holyrood went to Westminster – and only some of it made it back over the border. This brings us to the first way to kill the bill:
- Outwith legislative competence – some matters are reserved to the Westminster parliament and Equality (most aspects) is one of them. Employment is another. (You can find the full official list of reserved and devolved matters HERE.) That’s why the recent judgment (legal spelling) of Scotland’s highest court, the Court of Session, delivered by Lady Dorrian on that matter, in the petition of For Women Scotland, is so important. What that means is that any attempt by a devolved legislature to interfere with legislation that’s the business of the UK parliament will be smacked down. This Bill could be challenged immediately, by the Lord Advocate, for example, or it might be challenged in a Scottish court. The difference between those who make laws and those who interpret them is that the latter are legal experts. I’m not being nasty. Politicians don’t tend to have legal training and even those who do may, for some reason, choose to ignore tensions between legislation and legality.
The second way may strike residents in other parts of the UK as very odd:
- Incompatible with Convention rights – what this refers to is the peculiarly Scottish situation that, despite Brexit, Holyrood legislation still has to be compatible with the European Convention on Human Rights (ECHR). This is quite similar to the more famous UDHR (Universal Declaration). So there could be a challenge under Article 9: Freedom of thought, conscience and religion; or, more imaginatively, under Article 6:
3. Everyone charged with a criminal offence has the following
(a) to be informed promptly, in a language which he
understands and in detail, of the nature and cause of the
accusation against him;
A woman could perhaps make the case that she doesn’t understand the language or the nature and cause of the accusation (of ‘misgendering’, for example) levelled against her. Repeating, “I don’t understand that, what does that mean?” to all occasions of the charge might be very interesting legally. And, putting the onus on the prosecution to explain, in language that she does understand, possibly an effective defence. If the Scottish Court Service is faced with the prospect of hordes of bemused women clogging up the Sheriff Courts while frantic court clerks phone round for academic doctors with a speciality in the metaphysics of transgender (I think I’m the only one, certainly in Scotland) then the pushback might be enough to find this legislation so incompatible and therefore illegal. The third way is more probable and has already been foreseen:
- Section 35 order – this refers to the power (indeed the duty) of the Secretary of State for Scotland, according to the Scotland Act 1998, to stop the Bill being submitted for Royal Assent:
35 Power to intervene in certain cases.
(1) If a Bill contains provisions—
(b) 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,
he may make an order prohibiting the Presiding Officer from submitting the Bill for Royal Assent.
Which brings us to the fourth way: King Charles could decide not to sign it. Extraordinary as that action would be, the timing is interesting. The Heir Apparent is not yet crowned and in September 2022, after the Proclamation in Edinburgh, he swore a solemn oath before the Accession Council in London to uphold certain specific religious rights:
I, Charles III, by the grace of God of the United Kingdom of Great Britain and Northern Ireland and of my other realms and territories, King, Defender of the Faith, do faithfully promise and swear that I should inviolably maintain and preserve the settlement of the true Protestant religion as established by the laws made in Scotland in prosecution of the Claim of Right and particularly by an act intituled an act for securing the Protestant religion and Presbyterian church government and by the acts passed in the Parliament of both kingdoms for union of the two kingdoms, together with the government, worship, discipline, rights and privileges, of the Church of Scotland.
Now, unlike the Free Kirks and the Free Presbyterians, the Church of Scotland is pretty woke, in terms of homosexuality (and I’m proud to say I played a small part in that endeavour to change hearts and minds), however the extent of rage about male rapists (there isn’t any other kind in law) in the Scottish female prison estate may have caused some worthy kirk sessions to consider that ‘inclusion’ isn’t quite as fluffy bunnies as it’s chalked up to be. So there could possibly be a challenge on religious grounds: there is a specific religious duty to protect the vulnerable, and this mercy extends to those in prison, so it could be argued that this legal change by the state, that threatens incarcerated women with rape, a religious injustice that cries out to God, unsettles ‘the true Protestant religion’. That’s not legal logic; it’s the language of symbolism. Charles depends on his Scottish subjects recognising that he has fulfilled that oath. If not, he is not lawfully our monarch and may be deposed. A particularly fiery and authoritative preacher might make the point. The last way is linked: the power of the people:
- Sovereignty of the People of Scotland – on 26th January 2012, Nicola Sturgeon MSP (then) led a debate in Holyrood on the Claim of Right with the motion:
‘That the Parliament acknowledges the sovereign right of the Scottish people to determine the form of government best suited to their needs and declares and pledges that in all its actions and deliberations their interests shall be paramount.’
If the Scottish people demonstrate, en masse (it might take a general strike of women) that in the recent actions and deliberations of the Scottish Parliament their interests have not been paramount then, by the Claim of Right that was approved by the Scottish Parliament, in the following amended form, then they may force that Parliament to think again:
The Presiding Officer: The result of the division is: For 102, Against 14, Abstentions 0. Motion, as amended, agreed to, That the Parliament acknowledges the sovereign right of the Scottish people to determine the form of government best suited to their needs and declares and pledges that in all its actions and deliberations their interests shall be paramount, and asserts the right of the Scottish people to make a clear, unambiguous and decisive choice on the future of Scotland.
Thanks to Dawn Hudson for releasing her image A Very Angry Woman into the Public Domain.