When Westminster decided in 2020 to require the Northern Ireland health service to provide access to abortion, it did so against the wishes of the Northern Ireland Assembly and its non-functioning Executive. In the name of ensuring equality of access for women from all parts of the UK to abortion services, the British government overrode the “reserved” devolved powers of the Assembly to legislate – or refuse to legislate – in the area, much as its successor is proposing to do by blocking Scotland’s Gender Recognition Reform (Scotland) Bill. The move, which is prompting talk of a major constitutional clash, may be a first for Scotland, but it is not for the UK.
The government says the new law, which seeks to lower to 16 the age at which people in Scotland can apply for a gender-recognition certificate, and removes the need for a medical diagnosis of gender dysphoria, runs counter to all-UK equality law for which Westminster is ultimately responsible. The Scottish government denies that and will challenge it in the courts.
The Bill changes the regime of allowable exemptions to anti-discrimination provisions and may, for example, affect the rights of single-sex schools or domestic violence centres to refuse admission to trans people.
Britain’s equality law makes clear that the right to override a devolved parliament’s reserved powers depends on the judgment of the minister of state for Scotland, who must have “reasonable grounds to believe [the proposed law] would have an adverse effect on the operation of the law.” When rights and values conflict that judgment necessarily involves a difficult political balancing act.
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The proper course for the minister must be, in the spirit of devolution, to allow Scottish MLAs a margin of discretion, particularly where potential interference with equality rights is marginal or even theoretical. In Northern Ireland it clearly was not marginal – all women were excluded from access to abortion services. It was right for Westminster to intervene. It is not right now.