Case study The Gender Recognition Bill and Devolution
Social Justice Secretary Shirley-Anne Somerville informed the Scottish Parliament that the Scottish Government will lodge a petition for a judicial review of the Secretary of State for Scotland’s use of Section 35.
Reaction to the announcement of legal action was overwhelmingly negative: a series of commentators – with varying degrees of authority – have asserted that the challenge has no chance of success, and that it is a waste of both public money and political capital in defence of a flawed and unpopular Bill.
The Scottish parliament's Gender Recognition Reform (Scotland) Bill was passed by Holyrood in December but the UK government later blocked it from becoming law using powers it has in the 1998 Scotland Act. Westminster claims it would have a "significant impact" on equalities and others are concerned about the content. It is the first time Westminster has used the power since devolution nearly 25 years ago. The Gender Recognition Reform (Scotland) Bill was backed by 88 votes to 33 in the Scottish Parliament, but the UK government’s Scottish Secretary Alastair Jack blocked the bill from gaining royal assent, claiming it would interfere with the working of the UK’s Equality Act
The Scottish government has now announced it intends to challenge the veto.
The bill means the age someone can legally change their gender in Scotland would be lowered to 16 from 18, there would no longer be a need for a medical diagnosis of gender dysphoria, and those over 18 would only have to live in their acquired gender for three months - reduced from two years.
Sixteen and 17-year-olds applying for a gender recognition certificate would have to live in their acquired gender for at least six months.
Westminster is objecting to the bill on the grounds that it would have a "significant impact" on equalities matters in Scotland, England and Wales.
Section 35 of the Scotland Act 1998?
Section 35 of the Scotland Act 1998 gives the Secretary of State for Scotland the power, in certain circumstances, to veto legislation enacted by the Scottish Parliament, even if it deals with a devolved matter.
If section 35 is exercised, an order (secondary legislation) is laid before the UK Parliament which prohibits the Presiding Officer of the Scottish Parliament from submitting a bill to the King for Royal Assent.
When can section 35 be used?
For the Secretary of State to use section 35, the legislation in question must:
modify the law as it applies to reserved matters, and
the Secretary of State must have reasonable grounds to believe it would have an adverse effect on the operation of the law as it applies to reserved matters.
2023 The Scottish government has requested a judicial review into the UK government’s decision to block the enactment of its Gender Recognition Reform (Scotland) Bill. Judge Lady Haldane heard the case in the Outer House of the Court of Session, part of Scotland’s highest civil court. The case was initially heard by the Outer House of the Court of Session. The procedural hearing took place on 16 August, followed by the substantive hearing on 19 and 20 September where both sides, beginning with the petitioner (the Scottish government), presented their arguments. Lady Haldane will consider the case in private before publishing her opinion expected 2024.
Given this is the first exercise of section 35 powers, this judicial review takes both governments into uncharted territory. The row is likely to play out over months and years, rather than weeks, since the expectation is that whoever loses at this initial stage will appeal to the next level of Scottish court and then to the supreme court in London.
During the SNP leadership contest to succeed Nicola Sturgeon, Humza Yousaf was the only candidate who pledged to keep Sturgeon’s commitment to a court challenge, arguing that not contesting the veto would risk setting a precedent for future Westminster interference.
The Welsh first minister, Mark Drakeford, described the decision to use a section 35 order as “a very dangerous moment” and has since then begun attempts to introduce similar gender ID reforms to the Senedd.
While Downing Street’s approach to devolution has departed from the muscular unionism of the Boris Johnson era, the Scottish secretary has intervened recently in several other pieces of Holyrood policy, including a bottle recycling scheme and efforts to incorporate the UN children’s rights charter into domestic legislation.
How is the court challenge viewed across the Holyrood parliament and Scottish society?
The SNP suffered its biggest ever backbench revolt at stage one of the bill, with a government minister resigning in order to vote against it. The changes were a key plank of the Scottish Greens’ cooperation agreement with the nationalists, now itself under attack from some SNP MSPs who believe it has mired their party in unpopular policies.