Gender court battle Scotland: Gender reform block 'tantamount to Holyrood legislating only with the consent of UK Government' as Alister Jack targeted

The first day of a scheduled four day hearing took place in Edinburgh on Tuesday.

Early battle lines have been drawn in the battle over Scotland’s gender recognition reforms as the country’s two governments began a four-day stand-off in the Court of Session.

Lawyers took to the stand to argue whether the use of a never-before-used section 35 of the Scotland Act by Scottish secretary Alister Jack was lawful when he blocked Holyrood’s cross-party gender reform Bill from passing into law earlier this year.

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The hearing, which began on Tuesday in Edinburgh and is being heard by Lady Haldane, is a clash of two legal and political interpretations of the founding statute of devolution and is ultimately likely to only be settled in the Supreme Court.

Supporters of the Gender Recognition Reform Bill (Scotland) take part in a protest outside the Scottish Parliament, Edinburgh, ahead of a debate on the bill in December last year.Supporters of the Gender Recognition Reform Bill (Scotland) take part in a protest outside the Scottish Parliament, Edinburgh, ahead of a debate on the bill in December last year.
Supporters of the Gender Recognition Reform Bill (Scotland) take part in a protest outside the Scottish Parliament, Edinburgh, ahead of a debate on the bill in December last year.

The political context to this battle is also central to its importance for both governments.

Mr Jack triggered section 35 to halt gender laws, which sought to simplify the process for trans people to self-identify and obtain a gender recognition certificate (GRC) despite the legislation passing overwhelmingly in Holyrood.

Humza Yousaf made challenging the use of the power a central pillar of his leadership campaign, while the wider UK Government views transgender rights and particularly the toxic debate around Scotland’s reforms as a wedge issue ahead of the next general election.

The Scotland Office, for their part, argue the use of section 35 is simply part of the devolution settlement and is there to protect how the union operates.

Victory for either side will be politically valuable and, while legal arguments on the first day of the hearing often strayed into the technical and detail, they also are a useful window into the politics of the dispute.

Dorothy Bain KC, the Lord Advocate, said Scottish ministers believed the order by Mr Jack was unlawful and fundamentally resulted from a policy disagreement between the Scottish secretary and Scottish ministers.

She told the hearing: “There are those who disagree with the Bill or those who would have legislated differently, or not at all. It is apparent from the respondent’s answers that the Secretary of State [SoS] is within that number.”

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Ms Bain said upholding the order would allow Mr Jack to “veto practically any act of the Scottish Parliament having an impact on reserved matters because he disagreed with it on policy grounds”.

"That would be tantamount to the Scottish Parliament being able to legislate only insofar as the UK executive consented,” she added.

"Such an approach would run counter to overarching intention of the Scotland Act.”

She went on to argue the decision to use the section 35 order did not go through adequate scrutiny in the House of Commons, requiring the court to “occupy dead ground and stepping into the vacuum” to prevent the “misuse of executive power”.

Ms Bain said: “It would be inconsistent with the constitutional principle of parliamentary accountability for the UK Government to be able to veto Scottish legislation simply on the grounds of a policy disagreement.

"The UK Parliament was content to permit Scotland to go its own way on the issue of gender recognition if the Scottish Parliament chose to do so. That legislative choice, a legislative choice by the UK Parliament, should not be thwarted by the executive.

"However, some of the reasons relied upon by the SoS are in effect objections to divergence per se. That is not legitimate."

The Lord Advocate also reserved criticism for arguments within the UK Government’s statement of reasons for making the order around the impact of the reforms on factors such as HMRC’s IT systems.

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She said it was “to put it mildly, surprising” that such issues were being presented as an “insurmountable challenge to their [UK Government’s] software engineers”.

Concerns raised by the Advocate General about the impact and “adverse effects” of the Bill were labelled speculative, hypothetical and irrelevant. The Lord Advocate repeatedly criticised Mr Jack for not having evidenced his concerns about the bills, labelling the reasoning for the use of section 35 as “wholly inadequate”.

This extended to concerns around safeguarding and fraudulent applications, which Ms Bain labelled as “almost entirely unsupported by evidence”.

Towards the end of the day, the UK Government’s lead lawyer in the case, David Johnston KC, began to set out their side of the argument.

"There’s nothing sinister about this power,” he said. "This is part of the scheme, it cannot be emphasised too strongly that it is part of the scheme of the Act, it is part of the machinery by which government of the UK operates.” He went on to say the Scotland Act “empowers” the Scottish secretary to intervene when there is a “concern” about an act of Holyrood.

In a 15-minute opening statement, he said section 35 was “integral” to the constitutional distribution of the Scotland Act.

He said: “It’s an express recognition on the face of the Act on the possibility that devolved policy may have an adverse impact on the operation of the law as it applies to reserved matters.”

Mr Johnston will flesh out the UK Government’s arguments more broadly on Wednesday, and it is expected the hearing will not last the full four-day schedule.

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The case may yet turn on niche legal arguments such as whether Mr Jack met a key legal test around having the right balance of information in front of him and whether that resulted in a “rational” decision, or whether section 35 requires an actual modification to reserved legislation.

But due to the importance of the ruling being the first on the use of section 35 and being one which the loser is highly likely to contest, it will likely rewrite the understanding of how devolution works.



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