Rishi Sunak is set to use the constitutional “nuclear option” for the first time by blocking legislation passed by the Scottish parliament that seeks to make it easier for people north of the border to legally change their gender.
No British prime minister has ever used Westminster powers to block legislation passed by the Scottish parliament, but three people close to the discussions in Downing Street said that was Sunak’s intention. “The legal advice is clear,” said one.
The move will inflame Scottish nationalist sentiments, but Sunak’s legal advice is that the bill is passed by cutting Holyrood across the UK rules on equality – one of the policy areas reserved for Westminster.
The prime minister intends to appease equalities campaigners by separately bringing forward long-delayed UK legislation to ban conversion therapy, including for transgender people.
The Scottish Parliament last month approved legislation reducing the age at which people can apply for a gender recognition certificate to 16 and removing the need for a medical diagnosis of gender dysphoria.
Sir Keir Starmer, the Labor leader, added his voice to criticism of the Scottish law on Sunday, saying he believed 16-year-olds were too young to change their legally recognized gender.
Sunak has until Wednesday to decide whether to block the Scottish bill using section 35 of the Scotland Act 1998, which creates the Scottish government and determines the powers of the Holyrood and Westminster parliaments.
One senior government figure said: “There is no legal dispute to be had.” A decision can be taken immediately and Alister Jack, Scottish secretary, said he fully supports the intervention.
Kemi Badenoch, the equality minister in the London government, has expressed “concern” about the Scottish bill and Sunak said it was “standard practice” to assess its impact on the UK as a whole.
Downing Street said on Sunday: “We have not made a decision on potential action at this time.” Government ministers expect the section 35 order to be challenged by Nicola Sturgeon, Scotland’s first minister, in court, but are confident they will win.
A Scottish government spokesman last week said: “The Bill that has been passed falls within the legislative competence, and is supported by a majority, with support from members of all parties.”
But equality campaigners will be reeling from the news that the UK government has followed through on a long-standing commitment to legislate to ban conversion therapy.
Originally promised by former prime minister Theresa May in 2018, the move has been repeatedly delayed but government officials say it will now be brought forward as early as this week.
Importantly, the bill, which will undergo pre-legislative scrutiny by senior parliamentarians, will cover transgender people, one of the officials said.
Last April, the government said the ban would only apply to attempts to change a person’s sexuality, not attempts to change a person’s gender identity. Iain Anderson, the government’s LGBT+ adviser, resigned in protest.
“The government remains committed to banning the practice of conversion in this country,” the government’s equality office said. “To ensure the ban is effective, we are currently analyzing the responses to the consultation. We will determine our next steps in due course.
According to the British Psychological Society, conversion therapy attempts to change one’s sexual orientation or gender identity. It can include talking therapy and prayer; More extreme forms can include exorcism and deprivation of food.