Court action: Gender reform dominates in busy year for Scottish Government cases

There was a brief period of respite as 2022 ended and 2023 began, but the Scottish Government essentially started the year as it had ended the last, locking legal horns with its Westminster counterpart on constitutional matters.

Indeed, the Holyrood administration was still reeling from the Supreme Court’s November 2022 ruling that it cannot hold another independence referendum without Westminster’s say-so when the UK Government started a process that ultimately saw them face-off in the courts again this year.

In December 2022 the Scottish Parliament passed its Gender Recognition Reform (GRR) Bill following long-running discussions then two days of parliamentary debate that saw members sit late into the night to work their way through 154 amendments.

Less than a month later Scottish Secretary Alister Jack used Section 35 of the Scotland Act to prevent the legislation moving to royal assent, though, claiming the bill would have a “serious adverse impact” on the UK Equality Act.

Cue much consternation from the Holyrood administration, with then First Minister Nicola Sturgeon calling it “a  full-frontal attack on our democratically elected Scottish Parliament” and vowing to challenge the decision in court.

Sturgeon stood down before being able to come good on that threat, but her successor, Humza Yousaf, took up the mantle, launching judicial review proceedings in April. That ultimately proved unsuccessful, with Lady Haldane rubbishing the Scottish Government’s argument that Jack had acted because he didn’t like the Holyrood policy – something that isn’t allowed under Section 35 – rather than because he feared it would interfere with the UK Equality Act – something that is.

Cue much consternation from the Holyrood administration, with much talk about “dark days for devolution”, constitutional outrages and the potential for appeal, followed by confirmation that the case really is unwinnable and so is being dropped.

Not that the government dropped the outraged rhetoric, with Deputy First Minister Shona Robison, who steered the bill through parliament in her former role as social justice secretary, continuing to insist that the legislation was “within devolved competence” and that Jack “didn’t like it” and so “thought he could ride roughshod over the democratic wishes of this parliament”.

It came after an earlier ruling from Lord Justice Clerk Lady Dorrian and Lords Pentland and Malcolm brought some clarity as to what the legal definition of women should be – something that had been causing division as part of the gender debate long before the GRR came into being.

In December 2022 Lady Haldane had ruled that the Scottish Government had acted lawfully when it conflated sex and gender in revised guidance on proportional representation on public boards. That guidance said anyone with a gender recognition certificate stating they are female would be classed as a woman for the purposes of analysing the make-up of boards. While feminist organisation For Women Scotland disputed that, Lady Haldane agreed with the government. 

After For Women Scotland appealed, the Inner House bench gave its verdict in November, effectively handing victory to the Scottish Government again. The group has not ruled out seeking a further appeal. If it does make a Supreme Court bid it would likely mean a further hearing would take place on the issue on 2024.

Elsewhere, as the year drew to a close the Scottish Government was taken to task by Lord Pentland over its refusal to release information on an investigation into whether Sturgeon had breached the ministerial code during her time in office.

The probe in question, conducted by former Irish prosecutor James Hamilton, looked at whether Sturgeon had misled parliament about the role she played in an investigation into allegations of harassment against her predecessor, Alex Salmond. Hamilton ultimately found she had not, but the government then refused to release the evidence he had gathered when asked to under Freedom of Information laws. That led to a challenge from the Scottish Information Commissioner and hence the court showdown.

That challenge proved successful, with Lord Pentland and fellow judges Lords Carloway and Boyd not even bothering to leave the court after the hearing to confer on their verdict. When their written judgment was released a couple of weeks later it made clear that the judges found the government’s argument over why it shouldn’t release the information – that it wasn’t really theirs to hand over – “circular and unconvincing”. The defeat was so resounding the government resolved not to attempt an appeal but, with the expectation being that the information it now releases will be heavily redacted, further challenges from the information commissioner are expected.

The information case wasn’t the first time the government had been in court over a Salmond-related matter. In 2018 the former first minister launched judicial review proceedings over the way it dealt with the original investigation into his behaviour. In that instance the government handed Salmond victory after admitting it botched the process.

It is not over yet, though, with the former first minister lodging a petition at the Court of Session in November alleging “misfeasance” by civil servants involved in the original investigation. If the case proceeds, 2024 is likely to be yet another bumper year for government-related litigation.