Senedd Cymru | Welsh Parliament
Bil Senedd Cymru (Rhestrau Ymgeiswyr Etholiadol)| Senedd Cymru (Electoral Candidate Lists) Bill
Ymateb gan Stephen George | Evidence from Stephen George
The general principle, as stated above, is laudable albeit that it refers to gender rather than sex. As sex is a protected characteristic and gender (rather than gender reassignment) is not, it would be clearer if the general principle referred to sex rather than gender.
I am completely opposed to the introduction of the system of gender self-declaration that is proposed. Not only is it invidious in principle that men will be allowed to self-identify as women, but this particular mechanism seems to be at odds in practice with the general principle of the bill to make the senedd broadly representative of the gender (sic) make-up of the population.
From the Senedd Research Service's briefing on the Bill:
"If the Bill (or part of it) is outside the Senedd’s legislative competence, it could still be passed but may be challenged in the Supreme Court by the UK Government’s Attorney General or the Welsh Government’s Counsel General.
The Llywydd has stated that, in her view, the provisions of the Bill would not be within the Senedd’s legislative competence because it:
Relates to the reserved matters of ‘equal opportunities’; and
Modifies the law on reserved matters, namely the Equality Act 2010.
The Llywydd’s view on legislative competence does not affect whether or not a Bill can be introduced.
This is the first time the Llywydd has stated that she considers that a Bill being introduced into the Senedd would be wholly outside of its legislative competence."
While, the Llywydd’s view on legislative competence does not affect whether or not a Bill can be introduced, I asume that her view is based on considered and expert legal advice, which has not been provided frivolously or thoughtlessly.
There must, therefore, be a very real risk that the Bill will be challenged in the Supreme Court and found to be outside the Senedd's legislative competence. This raises both reputational and financial risks, although for me the reputational risk to the Senedd and devolution is by far the most important.
It may be that this is an intended, rather than unintended, consequence, but the system of gender (sic) self-identification proposed may lead to a disproportionate number of men being elected compared to women.
They seem reasonable but don't appear to take account of possible legal action, and the cost should the Supreme Court rule that the Bill is outwith the Senedd's legislative competence.
The powers seem appropriate given that they are mostly affirmative procedure and reflect current subordinate legislation procedures under GoWA. Where they vary from this, they seem to do so in a proportionate and appropriate way.
See my answer to question 10 above. It would seem that there is a strong prima facie case that the Bill is outside the Senedd's legislative competence.
I have no views on compatibility with the European Convention on Human Rights.
None that are not addressed in previous or subsequent answers.
As I have mentioned above, I believe it is invidious that the test for whether a candidate is a woman is simple self-identification. This could lead to men being elected simply because they have self-identified as women. This would be self-defeating and, as I've said, somewhat contradictory of the general principle of the Bill. I also believe it would open the Senedd to the risk of having the legislation struck down by the Supreme Court
While it would not remove my concern in principle about men taking women's places, I think the legal risks might be somewhat mitigated if the Bill was based on a requirement to prove their sex through production of a birth certificate. This would still allow men with a gender recognition certificate to provide a birth certificate allowing them to stand for election as women. However, it would limit the numbers and reduce possible abuse of the system.
No.