Experts query lack of appeal against ‘questionable’ gender court case

Lady Haldane’s judgment, which was handed down on December 8, also described the Section 35 order Jack used as an “intrinsic” part of the devolution settlement – a conclusion senior law lecturer Dr Nick McKerrell said was “very questionable”.

As Scottish Secretary, Jack used Section 35 of the 1998 Scotland Act to prevent the Gender Recognition Reform (Scotland) Bill from becoming law although it was passed at Holyrood by cross-party consensus and a two-thirds majority of MSPs.

Section 35 states that, for Jack to have the power to block a bill, he must have “reasonable grounds to believe [it] would … make modifications of the law as it applies to reserved matters”.

In her Court of Session ruling, Lady Haldane concluded that Jack (above) could not invoke Section 35 on the basis of a policy disagreement alone, but that his decision could have been come to by “reasonable” means by reading the evidence provided to him from groups which opposed the bill.

“Do you strictly look at the law and really drill down on the law in a very precise way? That was what the Haldane judgment on gender recognition was,” Richard Parry, a fellow at the University of Edinburgh’s Centre on Constitutional Change, said.

“She completely drilled down – now, many people don't agree with what she came to – but she drilled down into what the Scotland Act says. Does it modify the law? That's what it says, ‘modify’ the law.

“She said it did because it alters the conception of a gender recognition certificate. I think that's very arguable actually. Of course, there’s not going to be an appeal so we're never going to know.”

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On Wednesday, Deputy First Minister Shona Robison officially confirmed that the Scottish Government would not appeal Haldane’s ruling - but nor would it repeal the bill.

Aileen McHarg, a professor of public law at Durham University, said that the decision set a bad precedent “which could have seriously deleterious effects on the autonomy of the Scottish Parliament within its sphere of competence, and encourage the trend (already emergent) of forum shifting to Westminster by those who have lost political debates at Holyrood”.

But McHarg added that Haldane’s judgment from the lower Outer House of the Court of Session, did not create a “binding” precedent, adding: “If the power is ever used again, it will be open to the Scottish Government (or other devolved governments) to rerun arguments for a much more searching standard of review, and to try to challenge some of the other questionable aspects of Lady Haldane’s decision.”

McKerrell (below), a senior lecturer in law at Glasgow Caledonian University, said the decision not to appeal Haldane’s ruling “definitely leaves unanswered questions over the scope of devolution and the potential powers of the UK Government”.

He went on: “Remember, a Section 35 order had never been contemplated in 25 years of devolution. As a governmental veto with no automatic provision to go to court, the language of the statute suggests it should only be used in the most extreme circumstances.

“The tests that the court required of the UK to establish that their use of the order was ‘rational’ were pretty low given its rare use. I also think Lady Haldane’s description of Section 35 as being ‘intrinsic’ to devolution very questionable and worthy of further analysis.

“One would hope that Section 35s are not used in the future, but if they were, the UK Government has a relatively low hurdle to leap to establish that it believes it modifies reserved powers in an adverse way following this ruling. That is why I thought it was necessary for more judicial observation on the scope and limits of Section 35 orders by raising an appeal.”

Parry said that not appealing the Haldane judgment left a “really high bar” for any future governments who may look to challenge a Section 35 order.

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“They have to prove that the UK Government acted unreasonably and no reasonable person could have come up with their verdict,” he said. “It’s quite hard to prove that – even though it does seem like that and I do think it was unreasonable.

“In fact, I think the UK Government gave the game away in their reasoning, which was ‘it's very undesirable that gender recognition should be on a different basis in different parts of the UK’. That was what they said, which is arguable.

“But of course, it's not to do with devolution. They didn't even contest that it was in the powers of the Scottish Parliament to put this bill through. They didn't use that route. Using Section 35 when they weren't using that other route was always a bit dubious.”

Parry finished: “Is this an excellent outcome for the SNP, the Haldane thing? They've got a grievance – and it is a real grievance on the way this has been handled – but this bill, this highly controversial bill, is not going to be implemented.”