The trans rights stitch-up

How government plans to silence debate on the new rules

Photo by Kyle Cleveland on Unsplash

This is the story of a human rights stitch-up. The purpose of this stitch-up is to prevent any meaningful scrutiny of the most far-reaching restriction of minority rights in our lifetime.

It is the story of trans rights, or rather, if we're really accurate about it, the story of trans people's ability to exist in public space. But it is also something else. It is the story of how lawmaking in this country has really given up on parliamentary democracy and now instinctively reverts to excessive ministerial power. This has led to the situation we're seeing here - one in which a fundamental restriction of human rights is about to be forced through without a Commons vote or even a debate.

So, in fact, two things will die at once: legal protections for trans people and any remaining notion that we might call this a functioning democracy. Because if you can remove minority rights without even a parliamentary debate you are operating quite outside the boundaries of a liberal society.

The Supreme Court case fundamentally changed the recognition of trans rights in the UK. You can read a summary of what it means here. But even at this stage, months afterwards, there are all sorts of mysteries about the consequences of the judgement. It is not very clear, and perfectly reasonable people could adopt very different interpretations of it. Needless to say, this debate is not overpopulated by reasonable people. But if it were, they would still struggle to agree.

For instance, the ruling found that a trans woman was a man for the purposes of the Equality Act. But it also insisted that it "does not cause disadvantage to trans people, with or without a gender recognition certificate". It is very hard to square these statements and lots of experienced lawyers and policy experts have been trying to do so ever since. Some interpretations of the ruling are relatively mild, implying just moderate changes. Some are robust, with significant changes but plenty of caveats. Some are fire-and-brimstone, with a very extreme set of assumptions.

The interpretation of the Equality and Human Rights Commission (EHRC), the watchdog in charge of equality law, is on the latter end of the spectrum. It is as restrictive as possible - very Old Testament. It seems odd that a body with the word 'equality' in the title should do this, but you can find out why by reading this.

It adopted a position that, until recently, was only found on the furthest extreme of the gender critical movement. Trans people should be excluded from all single sex spaces. If they wanted to use a toilet at work, they had to out themselves to their colleagues. Some trans men would not be permitted to use either women's or men's toilets. Associations would also lose any sense of self-governance. A women's walking group, for instance, could not choose to be trans inclusive. If they wanted to allow trans women in, they would have to allow men in. The EHRC painted a very black and white world, which would obviously cause a tremendous amount of pain for the people affected.

It now wishes to embed this interpretation into law via an update to the statutory code of practice - a 200 page guidebook telling businesses and public services how to interpret equality provisions. This would constitute the de-facto eradication of trans people from Britain's social fabric. That sounds hyperbolic, but it is difficult to see how any other interpretation is valid. How could a trans person participate in their country's economic, social, cultural or civic life under these conditions - where every trip to the toilet denies your identity and even joining a walking group involves a fundamental betrayal of self?

The ensuing EHRC consultation was a mortifying stitch up, whose cynicism was only diluted by its incompetence. Rarely has an organisation been so embarrassingly obvious in its attempt to secure a particular result. At first it tried to impose a two-week deadline - a timetable so short it is basically unheard of. MPs on the women's select committee forced it to extend to six weeks. Then, hilariously, it narrowed the consultation parameters so that participants could not comment on the EHRC's legal argument itself, but only whether it had been expressed 'clearly'.

Despite their attempt to close it down, by the end of the consultation, it had received an astonishing 51,599 responses. People fought valiantly to provide some kind of scrutiny, to bring some kind of open legal debate to proceedings. We presume they were ignored.

At some point over the summer, the EHRC will send its code of practice to the Government Legal Department, who will then advise the relevant minister - in this case Bridget Phillipson - on the legality of the proposed code.

This is a crucial moment. If there is a chance of the government changing course, it will come here, behind closed doors, in conversations we'll never hear but whose influence we will be able to discern by a change in rhetoric and approach. The lawyers will advise that the code has a high likelihood of being challenged in court and that the challenge has a high likelihood of being successful, particularly on the basis of Articles Eight and Eleven of the European Convention of Human Rights. After all, the Strasbourg court has been extremely consistent on this issue. In a murky and confusing debate, that is about as confident a point as you can make.

It is possible that at this stage the attorney general Richard Hermer will get involved. He has been clear that the government needs to abide by international law and introduced reforms to strengthen lawyers' position when communicating to ministers that their actions expose them to unsustainable legal risk.

Hopefully at this point it'll finally click: that if the government goes ahead with this, it is likely to end up with a European Convention of Human Rights/trans-rights shit-show on the eve of the 2029 election, like a nice little gift-wrapped culture-war parcel for Reform and the Tories. However, government lawyers cannot stop Phillipson proceeding if that's what she plans to do. We have to assume, at the moment, that this is the likely outcome. The government seems set on its path and Phillipson in particular does not seem willing or capable of altering it.

If that happens, we'll get to the final, most appalling stitch-up: the use of ministerial fiat to fundamentally alter British human rights.

The mechanism that will be used is called a statutory instrument. These are ministerial powers, which allow them to create law with little-to-no participation from parliament. That sounds despotic. It sounds like the kind of thing we would never do in this country. It is, in fact, alarmingly common. It is a terrible experiment, conducted by a succession of governments in turn, on the understanding that the public will find it too obscure to get themselves worked up about it.

Statutory instruments were supposed to be used for technical and uncontroversial bits of law, like updating the type of video camera being used to catch speeding cars. But over the years, they have become much more widely used for highly controversial actions.

That law that banned you from leaving your house during the pandemic? Statutory instrument. Our regulations governing healthcare post-Brexit? Statutory instrument. Legal restrictions on pornography? Statutory instrument. Reduced safety provisions for heavy goods vehicles? Statutory instruments. At some point governments just figured it was easier to govern this way, so they did. And the newspapers, who love going on about the sovereignty of parliament when it gives them a chance to slag off Europe, didn't have a damn word to say about it. Didn't even notice it was happening.

In this case, the government is going to use something called a 'draft negative procedure'. For the nerds following along - I see you, comrade - she's doing this via the legislative provisions in Sections 14 and 15 of the Equality Act 2006 and the delegated powers in Sections 207 and 208 of the Equality Act 2010.

Phillipson will lay the draft code before parliament. From that point on, the Commons and the Lords will have 40 days to reject the motion. If they reject it, it won't become law. If they don't, it will. To reject it, an MP would need to table a fatal motion which kills the code - something like "that the draft code of practice not be issued" or "that this House disapproves the draft code of practice", that sort of thing.

That all makes it sound perfectly easy, but there is a problem. The government has complete control over whether it makes time for the debate. That's the killer element. They have control. And predictably they do not like to relinquish it. Although honestly, governments rarely have to reject an appeal, because so few MPs make them. Most MPs simply have no idea how statutory instruments work.

The only time these motions are debated is when they're put forward by the leader of an opposition party. The government is under no obligation to accept these motions either, but by convention they usually do. In the 2019-21 parliamentary session, for instance, 13 made-negative statutory instruments were challenged by MPs. Five of those challenges were simply ignored, while eight were debated. Of those eight, seven were by the leader of the opposition, Keir Starmer, and one was by the SNP's Westminster leader, Ian Blackford.

Could that happen this time? Sure Kemi Badenoch is not going to challenge it, obviously, but we might get something from the other opposition leaders - Ed Davey for the Liberal Democrats, Carla Denyer/Adrian Ramsay for the Greens, or Stephen Flynn for the SNP.

If the government does give time, there are two routes available. It can allow a debate in a so-called delegated legislation committee, or it can allow it in the House of Commons Chamber itself. In truth, they're much-of-a-muchness. Both these avenues are designed to go nowhere. Every road is a cul-de-sac.

The first route is via the delegated legislation committee. These committees are perhaps the worst joke in Westminster. I say that advisedly, because there are many jokes in Westminster and they are all very bad. The committee stage of a bill, for instance, is a parody of forensic scrutiny, but it is a fucking cathedral of investigative prowess compared to this.

The membership of the delegated legislation committees is selected by the party whips - the parties' discipline and surveillance operation in parliament. They therefore stuff them with MPs who they hope know nothing about the matter in question. They're perfectly honest about this and even joke about it. There is a strong social pressure not to ask questions. In fact, speaking in any way in a committee hearing is generally considered bad form.

The hearings can only last 90 minutes, but they're usually much quicker. The average length in the 2017-18 parliamentary session was 26 minutes. Two meetings that session lasted less than a minute.

The committee would not consider the fatal motion. It could only consider a so-called neutral motion. That would simply state "that the committee has considered the instrument" - a meaningless truism. If the committee agrees to this vacuous statement, the government could make time for a vote on the fatal motion in the Commons, but it would be under no obligation to do so. So even now, they can just kill the whole thing dead. And even if they do allow it, it would be organised in the most insane way: the question would instantly go for a vote without a debate.

Yes, that's right - the debate on the motion would have to take place in a committee room and then the vote would have to take place - days later, without a debate - in the Commons Chamber, with most MPs having no idea what they're voting on. Needless to say, there is no rational reason why you would organise procedures in this way, except that it strengthens the government.

The second route is for the government to schedule a debate and a vote in the Commons. This would obviously be far preferable. It is the best possible chance of meaningful scrutiny. But even here, the government would hold all the cards. It could, for instance, allow a debate and then introduce a neutral or non-binding motion. This would strip the vote of any legal consequence and allow the EHRC code to pass regardless. It would be an extremely sneaky and cynical way to proceed and therefore very attractive. It's precisely the kind of fallback position governments take when forced into a debate on something they wish would go away.

This structure, which is clearly designed to make it very hard to defeat a statutory instrument, is extremely successful at achieving what it aims to do. Out of tens of thousands of negative statutory instruments laid since the 1950s, only seven have ever been rejected. The last time the Commons defeated a negative statutory instrument was in 1979.

There is one other avenue. Peers in the House of Lords can also table a fatal motion. In this case, the chances for success are much stronger. Unlike MPs, peers control their own timetable. If they want to debate something, they can do so, without having to beg the government to take its boot off their neck.

The trouble is that the lords are very wary of defeating the will of the Commons. It rubs up awkwardly against how they see their constitutional role. They've only defeated the government six times over these powers - once in 1968, twice in 2000, and then again in 2007, 2012 and 2015. On the last occasion - when they stepped in to prevent the government using a statutory instrument to alter tax credit entitlement - David Cameron threatened to take away their power to review statutory instruments altogether. That sword of Damocles still hangs over them.

It is therefore likely that the EHRC's code will simply sneak through parliament, without the majority of MPs even knowing it is happening.

It can be stopped, even now. The government lawyers can speak up behind closed doors. The opposition leaders can try to force a debate. Enough MPs can support them that it embarrasses the government into holding one. The pressure can be sufficiently intense to stop ministers playing sneaky little games with neutral motions. But it will demand a ferocious effort by campaigners aimed, with razor-sharp focus, at parliamentarians.

I'm going to say the thing that is so obvious it should not need saying. It's embarrassing to type something so basic, and even more embarrassing to be in a position where you would need to type it.

This is no way to deal with fundamental changes to minority rights. It really shouldn't matter which side of the debate you're on. Everyone should be able to accept that this is not the correct way to proceed. Labour was not elected on this ticket. It has no mandate for it. Even if it was the right thing to do, which it isn't, it is dabbling in a highly sensitive and controversial area with severe implications for human rights. That demands a debate and a vote by MPs.

Statutory instruments are a disastrous way to conduct democratic politics. To see them deployed here, on an issue like this, would be unforgivable: an absolute fucking nadir in how we conduct ourselves.

But there is one final element which must also be mentioned. What exactly have they got to hide? The EHRC claims it is pursuing the only possible interpretation of the Supreme Court judgement. If so, why is it behaving this way? Why would it try to shorten the consultation? Why would it bar people from commenting on the legal analysis at all? Why would ministers not welcome a debate on the floor of the Commons?

What kind of political project conducts itself in this way? I think we know the answer. The kind that cannot justify the propositions that it is formulating. The kind which wishes to secure its aims quietly, behind closed doors, without the awkward visibility of public attention. The kind which knows that it lacks the moral or intellectual resilience to survive scrutiny.

What, exactly, have they got to fear, that they must be so secretive?

Odds and Sods

This week's column is available in podcast form on Substack here and on Spotify here.

My column in the i paper this week was on the moral catastrophe of our debate on far-right riots, where outright Nazis are now somehow considered equivalent to anti-racist campaigners. I swear to Christ that this country finds news ways to disappoint me every day, but the absolute state of the Today programme and of supposedly moderate politicians is genuinely shocking. My regular report for Late Night Live in Australia covered the ban on Palestine Action. And I'll be on Times Radio this afternoon at 3:30pm talking about the week in politics.

Our first inter-season mini-episode of Origin Story came out this week, with a history of ICE - the US immigration enforcement body which has turned into a kind of private militia. Who are these men we see gathered around students and politicians in the US, with their faces covered, wearing unmarked clothing, often throwing people into unmarked cars? Where did this organisation originate? And where will its loyalties lie if there is a threat to Trump's hold on power?

If you listen on Spotify we break into glorious life as a video podcast. From now on, every episode will be filmed in its entirety and available to view online. What could be better fun than watching two deteriorating bald men read off a script and occasionally utter words of morbid despair?

I had a grand old time watching Heads of State this week, a film in which - and this really should be all the encouragement you need - Idris Elba plays the British prime minister and John Cena plays the US president, as they roam around firing at terrorists with massive machine guns. It is an idiot action comedy but it is very good at being an idiot action comedy, which is a far, far harder thing than people give it credit for. Both leads deserve credit for being willing to take the piss out of themselves. The whole thing goes down very, very well with a bottle of white wine on a Sunday night. That was the scientific discovery in this household anyway and I very much expect your findings to conform to ours. Old school, well intentioned, goofy fun.

See you next week.