Prime Minister Rishi Sunak said on Friday his Government is taking advice on the implications of the Gender Recognition Reform (Scotland) Bill, which was approved by Holyrood last month. The law has sparked debate over how it fits alongside the Equality Act, which is reserved to Westminster, with Mr Sunak saying he was “concerned” about its impact across the entire United Kingdom.
Under the terms of the Scotland Act, Alister Jack, the Scottish secretary, could seek a section 35 order – a move that has been supported by some legal commentators and opponents of the gender reform Bill. But with a Wednesday evening deadline for any such order looming, others have cast doubt over such a course of action.
Aileen McHarg, professor of public law and human rights at Durham University's law school, said the case for a section 35 order had to satisfy certain criteria and described the grounds to challenge Scotland’s gender legislation as “questionable”.
“For a section 35 to be used, two conditions must be met,” she said. “First, that the Bill makes modifications to the law as it applies to reserved matters, and second, that the secretary of state has reasonable grounds to believe it would have an adverse effect on the operation of the law as it applies to reserved matters.
“The Gender Recognition Reform Bill does not make any direct changes to the Equality Act, and any effects that it has on its operation flow through the current effects of the Gender Recognition Act 2004. It is, therefore, at least questionable whether the first condition is met. If not, any effects on the practical operation of the Equality Act are irrelevant.”
Prof McHarg said in the event of a section 35 order coming to pass, a legal challenge seems “very likely”. Any proceedings would be brought initially in the Court of Sessions via judicial review, but could be appealed in the Supreme Court.
She said the arguments would probably relate on whether the first condition of the order had been satisfied, and whether the secretary of state’s reasons were “adequate”. But any hearing, she went on, would also be likely to focus on the purpose and scope of the section 35 order itself.
Some experts, such as Dr Michael Foran, a lecturer in public law at the University of Glasgow, have said a section 35 order would allow both governments the time needed to address issues which will affect both the operation of reserved matters in Scotland, and the implications this would have for the rest of the UK.
Prof McHarg said while it was possible an order could pave the way for intergovernmental negotiations and a revision of the Bill, which would allow it receive Royal Assent, there are no guarantees, or legal obligations, around any talks taking place.
She said: “It also seems likely that amendments sufficient to remove the objections to the Bill would involve a very significant restriction of its practical effect. The Scottish Parliament does have the opportunity to reconsider the Bill after a section 35 order has been made and introduce amendments, but the secretary of state could issue a further order if he still considers there to be adverse effects on the law relating to reserved matters.”
Adam Tomkins, the John Millar chair of public law at the University of Glasgow, said he “absolutely” believed the conditions for a section 35 order could be met. He predicted in the event it is used, a court challenge was “highly likely”, with grounds of the challenge focusing on the order’s “reasonableness”.
Mr Tomkins, who served as a Tory MSP before standing down at the 2021 Holyrood elections, said he believed the UK Government had a “genuine” concern about the integrity of the law. But he said it would be also giving thought to the wider constitutional implications arising from any section 35 order.
The new legislation, which was passed by MSPs by 86 votes to 39, approved reforms which will allow trans people to obtain a gender recognition certificate (GRC) without the need for a medical diagnosis. It will also allow 16 and 17-year-olds to apply for a GRC for the first time, and would reduce the amount of time a person has to live in their acquired gender before they can be granted the document.
The Scottish Government has said the Bill passed was within Holyrood’s legislative competence, and stressed any attempt by the UK Government to “undermine the democratic will of the Scottish Parliament” would be “vigorously contested”.