Section 35 block on Scottish gender reform to be challenged in court

Social Justice Secretary Shirley-Anne Somerville said on Wednesday that her government will lodge a petition for a judicial review of Scottish Secretary Alister Jack's use of Section 35 of the Scotland Act to block the bill.

Somerville said: “The Gender Recognition Reform Bill was passed by an overwhelming majority of the Scottish Parliament, with support from members of all parties.

“The use of Section 35 is an unprecedented challenge to the Scottish Parliament’s ability to legislate on clearly devolved matters and it risks setting a dangerous constitutional precedent.

“In seeking to uphold the democratic will of the parliament and defend devolution, Scottish ministers will lodge a petition for a judicial review of the Secretary of State for Scotland’s decision."

Somerville (above) went on: “The UK Government gave no advance warning of their use of the power, and neither did they ask for any amendments to the bill throughout its nine-month passage through parliament. Our offers to work with the UK Government on potential changes to the bill have been refused outright by the Secretary of State, so legal challenge is our only reasonable means of resolving this situation.

“It is important to have clarity on the interpretation and scope of the Section 35 power and its impact on devolution. These matters should be legally tested in the courts.”

The news came just moments after one of Scotland's foremost experts on constitutional law warned that the chances of successfully challenging the block in court were "vanishingly small".

Emeritus professor of public law Alan Page told The National that he did not think Alex Neil, the former SNP MSP who claimed on Wednesday morning that any challenge would surely fail, was not "wide of the mark". 

For Section 35 of the Scotland Act to be legally used, the bill in question must both "modify the law as it applies to reserved matters", and give the Scottish Secretary "reasonable grounds to believe it would have an adverse effect on the operation of the law as it applies to reserved matters".

The First Minister said: “Today, I have announced that the Scottish Government will challenge the undemocratic Section 35 veto on the Gender Recognition Reform Bill.

“While we all know there are a range of views on this Bill, this Tory Government’s veto on devolved matters is not about the substance of the Bill, but about the principle of undermining the Scottish Parliament.

“If unchallenged, it sends a signal that the UK Government can veto any legislation they disagree with, at a whim.

“Westminster gave no advance notice of this attack, asked for no amendments to the Bill in its nine-month passage through Parliament, and refused outright to work with the Scottish Government on any potential changes.

“A legal challenge is now our only means of defending our Parliament’s democracy from the Westminster veto.”

Responding to the news that a challenge would be launched, Jack pledged to "robustly defend" his decision to prevent the Scottish Government's Gender Recognition Reform Bill from becoming law.

The Tory Scottish Secretary went on: "I made the order under Section 35 of the Scotland Act 1998 after thorough and careful consideration of all the relevant advice and the policy implications.

"I was very clear in the accompanying Statement of Reasons how the bill would have an adverse effect on reserved matters, including on the operation of the law as it applies to Great Britain-wide equalities protections.

“The use of the power is entirely within the devolution settlement as set out from its inception, with cross-party support.” 

The bill passed through Holyrood in December by 86 votes to 39, with support from all five of the parliament’s parties.

If made law, it would have controversially allowed trans people to "self-ID" as their preferred gender, removing the need for medical assessment.

Similar systems are already in place in European countries including Portugal, Norway, Ireland, and Denmark, according to a Council of Europe report.

Scottish Green co-leader Patrick Harvie previously suggested his party would pull out of the ruling agreement with the SNP if the Tory government was not taken to court over the block.

“We've made it clear that we think that the challenge to this abuse of the section 35 order is an absolute priority," he said.

In the wake of the announcement of the legal challenge, the Greens said it was "absolutely right" to oppose use of Section 35.

The party’s equalities spokesperson, Maggie Chapman MSP, said: “Westminster is waging a sustained campaign of disinformation as part of a wider attack on our trans communities. The UK Government is threatening to roll back on basic rights that have existed for many years.

“If the Tories get away with overriding our parliament on such a clearly devolved area then it will set a dangerous precedent that could be used time and again.

"That is why everyone who believes in equality or devolution must support this challenge and oppose the Tory veto.

“It is shocking that we have been put in this position, but we cannot allow the rights and lives of trans people to be used as a political pawn in Westminster’s reactionary culture war.”