This week has seen a constitutional first as the Secretary of State for Scotland stopped a Scottish Parliament Bill from becoming law for the first time.
The future of the Gender Recognition Reform (Scotland) Bill is now likely to be decided in the courts.
Can the UK Government stop Welsh legislation in the same way?
This article looks at the different powers available to UK and Welsh governments to challenge laws passed by the Senedd.
What is a Section 35 Order?
A Section 35 Order refers to part of the Scotland Act 1998 that gives a UK Secretary of State the power to block a Scottish Bill from becoming law.
It can only be used if the Secretary of State “has reasonable grounds to believe” that the Bill in question is either:
- incompatible with any international obligations or with interests of defence of national security; or
- makes modifications to law in areas reserved to the UK Parliament and has an adverse effect on their operation.
Current reserved areas of policy include defence and national security, immigration policy and some aspects of the constitution.
In this case, the UK Government has argued that parts of the Bill impact on the reserved matter of ‘equal opportunities’.
The Section 35 Order came into force on 18 January 2023 but it can be annulled if either of the Houses of Parliament vote to do so within 40 days.
An Act of the UK Parliament which established the devolved Scottish Government, as well as the Scottish Parliament. The first elections to the Scottish Parliament were held in May 1999. Further Acts have expanded devolution in Scotland since, including the Scotland Act 2016, which devolved further powers over taxation.
Can a Welsh law be stopped in the same way?
A UK Secretary of State has a similar power to stop a piece of Welsh legislation from becoming law. This can only be done in a limited set of circumstances and within four weeks of the Bill being passed (or within four weeks of a Supreme Court decision if relevant).
Section 114 of the Government of Wales Act 2006 says that the Secretary of State can stop the Llywydd from submitting a Bill for Royal Assent if they have reasonable grounds to believe a provision in the Bill:
- Would have an adverse effect on reserved matters; or
- Would have an adverse effect on the operation of the law as it applies in England; or
- Would be incompatible with any international obligation or in the interests of defence or national security
The Secretary of State would need to make an Order (a piece of secondary legislation in the UK Parliament). This Order would remain law unless either the House of Commons or House of Lords voted for it to be annulled within 40 days.
The Order would have to say which Bill it related to and the reasons for making it.
This power has never been used in relation to a Senedd Bill.
Referring a Bill to the Supreme Court
There is a different power for the chief legal officers of the Welsh and UK governments to refer a Bill to the Supreme Court.
If the Counsel General for Wales or the Attorney General believe that something in a Senedd Bill may be outside of the scope of the Senedd’s powers (known as “legislative competence”), they can make a reference to the Supreme Court to make a decision.
This power is a more familiar feature of devolution in both Scotland and Wales. So far, there have been three Welsh Bills that have been considered by the Supreme Court. Two of these were referred by the Attorney General on behalf of the UK Government and one by the Counsel General for Wales.
These referrals are made under section 112 (or 111B in some circumstances) of the Government of Wales Act 2006.
Does the Welsh Government have plans for a similar Bill?
Powers that are devolved in Scotland around gender recognition are not devolved in Wales. The First Minister, Mark Drakeford, has said that the Welsh Government is planning to seek the devolution of those powers. As part of its Programme for Government, the Welsh Government said it plans to “trigger a request to devolve the Gender Recognition Act and support our Trans community”.
If Wales successfully obtains devolved power over gender recognition, the First Minister has said that the Welsh Government would introduce legislation that would simplify the gender recognition process, and move away from a medicalised route.
What could happen next?
The Scottish Government has two options to respond to the Section 35 Order. They can choose to reconsider the Bill and put forward amendments to it that would satisfy the UK Government. The other option is to challenge the Order in the courts through judicial review.
The First Minister of Scotland, Nicola Sturgeon, has said that the Scottish Government will “vigorously defend this legislation” so it looks like all eyes will be on the courts to decide on another key element of the UK’s constitution.
Article by Josh Hayman and Phil Lewis, Senedd Research, Welsh Parliament