THE UK Government will seek expenses from the Scottish Government over costs of the Section 35 court case, it has been confirmed.
Scottish Secretary Alister Jack informed Scottish officials on Wednesday that UK ministers will now formally start the process to recoup costs for the court battle.
The UK Government will lodge a motion with the Court of Session against the Scottish Government seeking an award of expenses in its favour.
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It comes after the Court of Session ruled that the UK Government could use a Section 35 order to block Scotland's gender reforms from becoming law.
The Scottish Government officially dropped its legal challenge against the UK Government in December, after being given 20 days to decide whether to appeal the decision made by Judge Lady Haldane.
Afterwards, Jack intimated that the UK Government would consider seeking legal costs back over the court challenge, and have now told Scottish Government officials they intend to do so.
The motion will be lodged on Friday, January 19, with the Scottish Government given until 12.30pm on Monday to oppose it.
If they do so, a judge will likely call a hearing to consider the motion and its opposition. If the UK Government wins its bid to recoup costs, the process to determine how much will follow.
Jack said: “The Scottish Government chose to pursue this litigation in spite of the cost to the taxpayer.
“My legal advisors have today intimated to the Scottish Government that we have started the process of seeking an award of expenses in defending the case.”
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The use of a Section 35 order to stop the Gender Recognition Reform (Scotland) Bill from being given royal assent and becoming law was described as the "nuclear option" when it was first deployed.
The then-little-known part of the Scotland Act had never been used before since the beginning of devolution.
Lord Advocate Dorothy Bain argued that Jack pursued the Section 35 order because he disagreed with the policy of self-identification for transgender people and that he had not scrutinised enough evidence before coming to his final decision.
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.
UK Government law officers argued that a Section 35 order is “as much part of the constitutional framework as any other provisions in the Scotland Act” during the case.
It was also argued that the policy interfered with the UK-wide Equality Act and therefore had an "adverse effect" on the deployment of UK law as a whole.
Judge Lady Haldane ruled in the UK's favour, stating that the Scottish legislation would change the meaning of the words "full gender recognition certificate" under the 2004 Gender Recognition Act.
The gender reforms would have allowed transgender Scots to apply for a Gender Recognition Certificate (GRC) without the need for a medical diagnosis of gender dysphoria, allowing for self-identification, along with several changes to make it easier to change gender on the person's birth certificate.
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The reforms were passed by a crossparty majority of MSPs in Holyrood.
A Scottish Government spokesperson said: “Devolution is fundamentally flawed if the UK Government is able to override the democratic wishes of the Scottish Parliament.
"The costs incurred in this legal challenge relate to protecting the powers of the Scottish Parliament.
“We are aware the UK Government intends to lodge a motion for expenses, and we will consider its terms.”
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