Gender reform block: What is the Scottish Government arguing?

The Scottish Government has said it will challenge the UK Government’s use of section 35 powers to block a bill passed in the Scottish Parliament from becoming law.

That law is the Gender Recognition Reform Bill, backed by MSPs in December but essentially vetoed by Scottish secretary Alister Jack in January.

While it is not the first time a bill has been blocked – see the UNCRC bill, for example – it is the first time the specific power of section 35 has been used.

As such, the government’s plan to petition for legal review is also unprecedented.

The response provided by Shirley-Anne Somerville, the social justice secretary, to the parliamentary question makes it clear it is doing so on constitutional grounds.

She says the use of a section 35 is “an unprecedented challenge to the Scottish Parliament’s ability to legislate on clearly devolved matters”.

Section 35 of the Scotland Act empowers the UK government to intervene if “the Secretary of State has reasonable grounds to believe would have an adverse effect on the operation of the law as it applies to reserved matters”.

Alister Jack believes the Gender Recognition Reform Bill will have  “serious, adverse effects” on the operation of the 2010 Equality Act.

That means the judges will have to consider what is meant by “reasonable grounds”, as well as “adverse effect”.

The Scottish Government will argue Jack has not provided “sufficient justification” to make the order.

It also says the power has not been used “in line with the memorandum of understanding between the UK and devolved governments… or as envisaged when the Scotland Act was passed”.

That memorandum of understanding, updated in 2013, is not legally binding. It is merely a series of agreements between the UK Government and Scottish Government (as well as the administrations in Wales and Northern Ireland) setting out principles for the relationship between them.

The memorandum states in its second paragraph that it is a “statement of intent” but it “does not create legal obligations between the parties”.

However, part of the reason the Scottish Government is taking the case to court, Somerville says, is because it is “important to have clarity on the interpretation and scope of the power, and its impact on devolution”.

“Those matters and the use of the power on this occasion should be legally tested in the courts,” she added.

The cabinet secretary has criticised the UK Government for failing to give advanced warning. She also claims offers to work with them on potential changes to the bill have been “refused outright”, making a legal challenge the “only reasonable means of resolving this situation.”

When Jack laid the order earlier this year, he did offer to work with the Scottish Government on the issue. He said: “If the Scottish Government chooses to bring an amended bill back for reconsideration in the Scottish Parliament, I hope we can work together to find a constructive way forward that both respects devolution and the operation of UK Parliament legislation.”

But given the central element of the bill is to introduce a system of self-identification for obtaining a gender recognition certificate, and it is this element the UK Government says will have an “adverse” impact on reserved law, it was always difficult to see how the two could come to an agreement.

Interestingly, neither the parliamentary answer nor the press release from the Scottish Government mention trans rights – the main argument behind passing the bill in the first place. Rather than defending the policy itself, the government will be making it a constitutional argument.

This is no surprise, given Humza Yousaf – throughout the SNP leadership election and since becoming First Minister – has insisted it is a matter of democratic principle, as well as an issue of equality.

For the Court of Session judges, it will be a question of how the wording of the Scotland Act should be interpreted. It is not clear which way it will go.