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Vaughan Gething faces constitutional battle over Senedd gender balance Bill

22 Mar 2024 5 minute read
First Minister Vaughan Gething. Picture by Senedd TV.

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.


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Beau Brummie
Beau Brummie
18 days ago

Wow!

Is Senedd politics in the Gething era going to be Scorched Earth or Grass Roots?

How depressing that this is the first identifiable policy in the fight for the lentil field.

Y Cymro
Y Cymro
18 days ago

Not that I agree with any Welsh Government gender ballance Bill. Any idea that Whitehall will tug the chain attached to our necks if & when they deemed we’ve stepped too far outside the confines of our open prison spits in the face of Welsh devolution. And they say we live in a democracy lol. Oh sure we do. 😐 ⛓️

#YesCymru 🏴󠁧󠁢󠁷󠁬󠁳󠁿. #PlaidCymru 🏴󠁧󠁢󠁷󠁬󠁳󠁿

#Conservatives 🇬🇧. #EnglishDictocracy 🇬🇧

Rob
Rob
18 days ago

What a complete waste of time this is. I support expanding the Senedd, and fully believe Westminster should stay out of devolved matters. That doesn’t mean I agree with this proposed legislation. Lets elect our candidates by the ability to do the job, and not on the basis of their gender.

Swn Y Mor
Swn Y Mor
18 days ago
Reply to  Rob

It feels like an attempt at positive discrimination.

hdavies15
hdavies15
17 days ago
Reply to  Swn Y Mor

…..partnered with closed lists it becomes an act of discrimination against democratic choice.

Catie
Catie
17 days ago

So this Bill will allow anyone to submit a ‘gender statement’ saying they are a woman. How do men feel about other men with ‘special identities’ who claim to be women, leap-frogging them and being given preference on electoral lists? And how do the Welsh public feel about the definition of women here including men based on their say-so alone? This Bill will say it’s about ‘gender balance’ but it’s an absolute mess. This was also tried in Scotland and ruled unlawful – they didn’t have the powers to mess with equalities legislation. Yet Welsh Gov hasn’t noticed and ploughed… Read more »

JayJay
JayJay
17 days ago

The point you all seem to be missing is that this bill would allow ANY man to self ID as a woman. This is utter nonsense. Being a woman is not a feeling or a costume. If these posts are for women, then ONLY women should be able to apply. There are only 2 types of humans – male and female. If men can self ID in this instance, then they will for every other opportunity to access women and girls legal single sex spaces, job opportunities, sports, hospital wards, personal care etc etc. If you agree to this, you… Read more »

Robert Clarke
Robert Clarke
12 days ago

The best person for any position is the right one
We already have all the wrong people doing any job in this total waste of money Senedd
Ever since it was formed
Wales has gone down hill with every public service ruined
The best vote they could offer the people of Wales is should it be closed down
. Y E S

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