Vaughan Gething faces constitutional battle over Senedd gender balance Bill

Martin Shipton

New First Minister Vaughan Gething is facing his first major constitutional clash with the UK Government over a controversial Bill that would enforce a gender-balanced Senedd by law and allow election candidates to self-identify as the gender of their choice.

Presiding Officer Elin Jones – whose title in Welsh is the Llywydd – has already issued a formal statement stating her view that the Bill is not within the powers of the Senedd under the devolution settlement.

Despite that – and in a move unprecedented since the establishment of what was known at the time as the National Assembly for Wales in 1999 – the Welsh Government has insisted that it will take the Bill forward.

Whitehall lawyers

Now, in a letter that Nation.Cymru understands was drafted by Whitehall lawyers, Welsh Secretary David TC Davies has written to Mr Gething expressing his “grave concern” about the situation and hinting heavily that the UK Government may use its powers to intervene and block the Bill.

Mr Davies’ letter, sent on March 21, states: “Dear Vaughan, I would like to reiterate my congratulations to you on becoming the First Minister of Wales. I look forward to working together to deliver for people across Wales.

“Unfortunately, I am writing so soon as I have serious concerns with the Welsh Government’s decision to introduce the Senedd Cymru (Electoral Candidate Lists) Bill, despite the Llywydd concluding, on the basis of legal advice, that it does not fall within the Senedd’s legislative competence.

“The Llywydd has set out detailed concerns that, in her view, the Bill relates to the reserved matter of equal opportunities (a reserved matter [to Westminster] in Schedule 7A to the Government of Wales Act 2006) and modifies the law on reserved matters (in this case, section 104 of the Equality Act 2010), indicating that the proposals would not be within the legislative competence of the Senedd.

“I note that notwithstanding this, the Welsh Government maintains that the Bill’s provisions are within the Senedd’s competence. I have not seen any analysis from the Welsh Government explaining its position.

“I understand you have decided to proceed to introduce the Bill despite the Llywydd’s assessment of competence. The Senedd Reform Committee has now said it will consider the question of competence as part of its scrutiny of the Bill.

“Given that a key aspect of the role of Secretary of State for Wales is ensuring that legislation in both the UK Parliament and Senedd reflects the devolution boundary, I am therefore duty bound to express my grave concern that the Llywydd and the Welsh Government are not in agreement on this Bill.

“While improving the gender diversity of parliaments across the UK is an ambition we share, I am concerned that Welsh Ministers are yet to make clear how relevant UK legislation, including the Equalities Act 2010 and the Gender Recognition Act 2004, relates to the provisions in the Bill, particularly in regard to the definition of a ‘woman’.

“I would like our officials to meet to discuss and better understand the Welsh Government’s position on the Senedd’s legislative competence in relation to this Bill at the earliest opportunity.”

Senedd reform

Last year the Welsh Government decided to separate its proposal to legislate for a gender balanced Senedd from the rest of its Senedd reform package, which includes increasing the number of MSs from 60 to 96 and changing the method of voting in Senedd elections to a “closed list” system under which votes are cast for parties rather than for individuals.

It is understood the decision to introduce a separate Bill for the gender balance proposal was taken after legal advice suggested the Welsh Government could be exceeding its powers with that aspect of the reform agenda. The situation is further complicated by a desire on the part of the Welsh Government to allow individuals to self-identify their gender without a medical certificate, as part of its commitment to supporting transgender rights.

However, last year in Scotland the UK Government used its powers to block gender self-identification when the Scottish Parliament passed legislation that would have made Scotland the first part of the UK to introduce a self-identification system for people who wish to change their gender.

The Scottish Secretary, Alister Jack, used section 35 of the Scotland Act 1998 for the first time to halt the Scottish Parliament’s Gender Recognition Bill after a review by UK Government lawyers. In challenging the Bill, Mr Jack argued that he was not seeking to fight a culture war but protecting the boundaries of the Scottish devolution settlement..

Mr Gething and his new government in Wales are likely to soon find themselves facing a choice between backing down and accepting that the proposed gender balance and gender self-identification proposals are beyond the Senedd’s powers, or pressing on and fighting a potentially very expensive court battle that would very likely be doomed to failure.