Scottish Government to launch court battle over UK decision to block gender reforms
The new First Minister insisted the democratic will of the Scottish Parliament was “under attack” as he announced his intention to lodge a petition for a judicial review. He previously made challenging the block a key part of his leadership pitch.
Critics accused him of “manufacturing grievance” and attempting to divert attention from the “civil war” engulfing the SNP. Scottish ministers last year lost a battle in the Supreme Court over whether Holyrood could stage its own independence referendum.
MSPs passed the Gender Recognition Reform Bill by 86 votes to 39 before Christmas, approving reforms which would allow trans people to obtain a gender recognition certificate (GRC) without the need for a medical diagnosis.
The Bill would 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. However, the move sparked huge controversy, with concerns from some politicians, women’s rights groups and others that the changes could impact on safe spaces for females.
The UK Government blocked the legislation earlier this year using a section 35 order – a never-before-utilised section of the 1998 Scotland Act – to prevent it from gaining royal assent. It argued the Bill would have an “adverse impact on the operation of Great Britain-wide equalities legislation”.
Prime Minister Rishi Sunak said the decision had been made “after taking very careful and considered advice”. Speaking to reporters in Belfast, he added: “We had concerns, as the UK Government – the Secretary of State – set this out at the time, about how Scotland’s gender recognition act would interact with reserved powers, about the operation of the Equalities Act, the protection of women elsewhere in the UK as well. That’s why we took the decision to block the GRR. Obviously there’s a court process, we will follow that through.”
In a statement, Mr Yousaf said: “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.”
The gender reforms have been divisive even within the SNP, with former leadership hopeful Ash Regan resigning from the government and others in the party, like the high-profile MP Joanna Cherry, expressing their long-standing opposition. Ms Cherry tweeted: “I cannot understand why @scotgov is taking legal action it’s unlikely to win rather than sorting out the problems with the #GRRbill at home. Reform could be effected in Scotland without breaching #equality or #HumanRights law if there was the will so to do.”
SNP Social Justice Secretary Shirley-Anne Somerville said the use of section 35 “risks setting a dangerous constitutional precedent”. She said a legal challenge was “our only reasonable means of resolving this situation”, adding: “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 co-operation agreement between the SNP and the Greens includes a commitment to reforming the gender recognition process. The Greens said the decision to take court action was “vital for equality and democracy”. Equalities spokeswoman Maggie Chapman said: “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.”
Alister Jack, the Secretary of State for Scotland, said: "The UK Government will robustly defend the decision to prevent the Scottish Government's Gender Recognition Reform Bill from becoming law.
"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 judicial review will be considered at the Court of Session in Edinburgh in the first instance, but the legal challenge could eventually lead all the way to the UK Supreme Court. The petition is expected to be lodged this week. Roddy Dunlop KC, dean of the Faculty of Advocates, said the process could “take some time – measured, I would guess, in years, not months”. Writing on Twitter, he added: “18 months would be breakneck pace.”
Scottish Conservative deputy leader Meghan Gallacher said: “This is a painfully transparent attempt by Humza Yousaf to divert attention from the civil war engulfing the SNP and the huge question marks over the party’s finances. Desperate times call for desperate measures, so the beleaguered First Minister has reached for the Nationalists’ playbook, and is manufacturing grievance with the UK Government.
“The vast majority of Scots oppose Nicola Sturgeon’s reckless GRR Bill because it compromises the safety of women and allows 16-year-olds to legally change gender. Polls also show the public oppose this legal challenge to the section 35 order, which the UK Government was forced to issue because the Bill impacts on equalities legislation across the UK.
“Yet Humza Yousaf has chosen to ignore public opinion – not to mention the views of his two SNP leadership rivals – to pursue confrontation with Westminster and appease the extremist Greens in his administration.
“A strong leader, acting in the national interest, would revisit and amend a profoundly flawed Bill. It’s a measure of Humza Yousaf’s weakness that he has chosen the opposite course. The First Minister should be focused on the real priorities of the Scottish people rather than a costly, self-serving legal battle.”
Former SNP minister Alex Neil warned Mr Yousaf that he does not “have a cat in hell’s chance of winning” the legal challenge. Speaking on BBC Radio Scotland’s Good Morning Scotland programme, the former MSP said it would be better to sort out the “anomalies” of the Bill.
He said: “My own view is in terms of the challenge to the UK Government, it would be far better just to reintroduce a Bill and this time in the Bill deal with concerns of women about places of safety for women and also deal with the UK Equality Act.”
However, the legal challenge was welcomed by Vic Valentine, manager of Scottish Trans, who said: “For the UK Government to seek to block the Scottish democratic process in this way, simply because they disagree with the welcome decision the Scottish Parliament has made to improve trans people’s lives, is unacceptable. Other countries all over the world have introduced similar laws, with the only impact being a positive one – on the tiny number of trans people who need legal recognition of how we live our lives, as everyone is entitled to under international human rights law.”
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