Gender court case Scotland: 'Red herring' argument by UK Government as judge says verdict will 'take some time'

The hearing around the UK Government’s use of the section 35 veto ended in Edinburgh on Wednesday

The claim the Scottish secretary used a never-before-touched power to block Holyrood’s gender reforms because he disagreed with the policy is a “red herring”, a court has heard.

Alister Jack’s decision to veto the Scottish Parliament’s gender recognition reforms, which make it easier for people to legally change gender, was challenged by Scottish ministers.

Sitting judge Lady Haldane said a judgement would “take some time” after she described the case as “unique, interesting and challenging”, though the verdict is expected by the end of the year.

Members of the Scottish Family Party protest alongside supporters of the Gender Recognition Reform Bill (Scotland) outside the Scottish Parliament, Edinburgh, ahead of a debate on the bill. Picture date: Tuesday December 20, 2022.

On the first day of a two-day hearing at the Court of Session in Edinburgh on Tuesday, the Scottish Government urged Lady Haldane to cancel the order on the basis the reasons for it were “irrational”.

Speaking on behalf of the UK Government on Wednesday, David Johnston KC defended the use of the order, stating the reasons for it were sound and the test required within the legislation for the order to be lawful had been met.

He also rejected the argument the order only came about due to a disagreement over the central policy.

“The veto on the grounds of a policy disagreement is a red herring,” he said. “The sole question is whether the section 35 pre-conditions are met and whether the discretion was rationally exercised.

“And whether there is or whether there might be a policy disagreement is simply irrelevant.”

Mr Johnston said the order was not made because the Scottish legislation “diverged” from UK-wide laws, but rather the “effect the divergence would have on reserved law”. He said the UK Government “completely accepts that the Scottish Parliament is entitled to make its own legislation and that this is within its devolved power”.

Mr Johnston added: “There's simply nothing in the material before the court to allow the court to reach that conclusion [about a policy disagreement]. There's nothing in the order.

“There's nothing in the submission or the drafts of the advice given to the Secretary of State which are before the court which suggests anything other than a good faith attempt to take a decision under section 35.”

Mr Johnston also argued Mr Jack had “justified” grounds for using the order against the legislation, which seeks to simplify the process of legally changing gender. His argument was that only an “unduly narrowly formulistic” view could consider the proposed legislation did not adversely impact reserved equality laws.

The UK Government’s position on the use of section 35 also extended to the suggestion that it was not “unfettered”, as characterised by the Lord Advocate.

Mr Johnston said Mr Jack was constrained not only by the legal statute, but also by the review function of the court. But he argued Lady Haldane should not intensely examine why the decision was made.

Instead, he invited her to accept the information in front of the Scottish secretary was rightly, predominately, limited by concerns about the adverse effects on the Bill and took into account cross-border issues raised by the Equalities and Human Rights Commission.

The lawyer also said it was not possible for Mr Jack to have come to a settled position on whether the Bill fulfilled the conditions of section 35 before it was passed by Holyrood and presented to him in its final form.

He said the UK minister could only have “rationally” intervened after it was passed by Holyrood due to the “fundamental” amendments due to be heard during stage three of the Bill’s passage through the Parliament.

Mr Johnston also said the UK Government did not have adequate time to issue a section 104 of the Scotland Act, which would allow changes to be made to reserved legislation in respect of devolved laws, subject to parliamentary scrutiny.

He said ministers had a four-week timeframe to object to the legislation gaining royal assent, which would have made it impossible to complete the Westminster process on time.