Court of Session: UK Government CAN block Scottish gender reform bill

The Gender Recognition Reform Bill was passed by two-thirds of MSPs in the Scottish Parliament in December 2022.

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But, Scottish Secretary Alister Jack made the unprecedented decision to use a Section 35 order, a little-known part of the Scotland Act, which stopped the legislation from being given Royal Assent and becoming law.

As the powers to legislate over gender reforms are devolved to the Scottish Parliament, the Scottish Government took the UK Government to court over its decision, leading to a two-day showdown in the Court of Session in September this year.

Judge Lady Haldane has now given her official ruling on the case and says UK ministers did have the right to block the reforms.

The case is now likely to be appealed and could end up in the Supreme Court. The Scottish Government now has 21 days to decide whether or not to go forward with an appeal. 

Haldane, in a written judgment, said: “The challenge to the order pronounced under section 35 of the 1998 Act, laid on 17 January 2023, fails.

“In so concluding it is important to recognise the novelty and complexity of the arguments and the sophisticated manner in which those arguments were presented before me and from which I derived considerable assistance.

“I will accordingly sustain the pleas in law for the respondent, repel the pleas in law for the petitioners and dismiss the Petition.”

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Lord Advocate Dorothy Bain, representing Scottish ministers, argued during the hearings that Jack used the landmark power because of a “policy disagreement”.

She also argued the order was “unlawful” and was “inconsistent with the constitutional principles” of the UK, effectively preventing Holyrood from passing laws the UK Government did not agree with.

In her ruling, Haldane said: “There is no reference, direct or indirect, to that being a concern motivating the making of the order. Whilst therefore I have no hesitation in accepting that the petitioners hold a sincere view as to what they suspect to be the motivation… I cannot on the material before me conclude that.”

The key argument put forward by David Johnston KC, acting on behalf of UK ministers, was that the policy could have an “adverse impact” on reserved equality legislation.

He said Scottish Secretary Jack had “justified” grounds for using the order, stating it superseded or amended the 2004 Gender Recognition Act by altering the meaning of a Gender Recognition Certificate (GRC) by removing the gender dysphoria diagnosis and lowering the application age to 16.

UK-wide laws require applications to be aged 18 to apply for a GRC.

Haldane agreed with UK law officers, stating: “The words ‘full gender recognition certificate’ will no longer mean the same thing as they do currently.”

She added that “it cannot be asserted the meaning overall” has not changed.

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Haldane also said Section 35 “does not” impact on the separation of powers or “other fundamental constitutional principles”.

In her judgment, she also said that the use of a Section 104 order "would not have been capable of addressing the concerns identified" regarding the impact on UK-wide law. 

Another part of the Scotland Act, a Section 104 order is used to make "consequential modifications" to reserved law, but Haldane argued that as the case focused on "adverse effects" of Scottish legislation on UK-wide law, a Section 35 order was the correct route. 

The hearing was the first time the parameters of a Section 35 order had been tested, as it was the first time it had been used when Jack laid it to block the gender reforms.

In her judgment, Haldane also said that Section 35 is an "intrinsic" part of the constitutional settlement. 

"Section 35 does not, in and of itself, impact on the separation of powers or other
fundamental constitutional principle," she later added.

"Rather it is itself part of the constitutional framework."

On whether or not Jack had looked at enough detailed evidence, Haldane ruled that he only had a four-week period that "did not permit an extensive information gathering exercise" as had been conducted by the Scottish Parliament.

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During the two-day hearing last year, it emerged that Jack had only referred to seven documents, the majority of which were from opponents of the legislation arguing that there were adverse effects on the law, and internal advice from the Equality Hub in the Cabinet Office. 

Haldane said that she saw no reason that the UK Government advice should be "treated with particular caution or considered to be invalid".

"I cannot conclude that he [Jack] failed in his duty to take such steps as were reasonable in all the circumstances to acquaint himself with material sufficient to permit him to reach the decision that he did," Haldane added. 

"Others may have reached a different conclusion on the same material."

The Scottish Secretary welcomed the ruling and suggested the Scottish Government "need to stop wasting taxpayers’ money pursuing needless legal action".

Opponents of the legislation also urged First Minister Humza Yousaf (above) to drop any appeal of the ruling, while LGBT charities and supporters of the gender reforms urged him to pursue it to the Supreme Court.

The Scottish Government has 21 days to decide whether or not to challenge Haldane's ruling, with Yousaf stating that ministers would "take time to consider" the findings.

Elsewhere, Scottish Labour MP Ian Murray said that the ruling should be "respected" and hit out at both the SNP and Tories.