The use of Section 35 of the Scotland Act to block the Gender Recognition Reform (Scotland) Bill | Institute for Government

What question was the Scottish Court of Session asked to resolve?

In December 2022, the Scottish parliament passed the Gender Recognition Reform (Scotland) Bill. This bill, if enacted, would reform the process by which people in Scotland can legally change their gender, including by removing the requirement for a medical diagnosis of gender dysphoria. 

Gender recognition in Scotland is a devolved matter, but the legislation was blocked by the UK government after the secretary of state for Scotland issued a ‘section 35 order’, preventing the bill from proceeding to royal assent. The court had to determine the proper interpretation and application of section 35 of the Scotland Act 1998, and whether it was lawful to use this power to veto the legislation.

What is section 35 of the Scotland Act?

The Scotland Act 1998 sets out the legislative powers of the Scottish parliament. While the act contains several provisions that allow the UK government to challenge Scottish legislation, this is the first time that section 35 has been used.

Section 35 allows the UK government to challenge Scottish legislation made within devolved competence under two circumstances: where the legislation is incompatible with international obligations, national security or defence interests; or where the legislation would have “an adverse effect” on reserved (not-devolved) matters.
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Scotland Act 1998, c.46, s35(1)(a)-(b)

An order to prevent the bill being submitted for royal assent must be made by the secretary of state within four weeks of a bill being passed.
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Scotland Act 1998, c.46, s35(1)(a)-(b)

 The order must set out the provisions of the bill and provide reasons that the legislation has been blocked.
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Scotland Act 1998, c.46, s35(1)(a)-(b)

How was section 35 triggered to block the Scottish Gender Reform Recognition Act?

The Scottish government passed the Gender Recognition Reform Bill by a majority of 86 to 39. The legislation was sponsored by the Scottish government, although nine SNP members opposed the legislation.

Scotland secretary Alister Jack announced on 16 January 2023 that he planned to make a section 35 order. A day later, Jack made the order and gave a statement explaining his decision to the House of Commons. In addition, the UK government published a statement of reasons, which remained the basis of the UK government’s argument.
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Scotland Act 1998, c.46, s35(1)(a)-(b)

As there is no automatic referral to the courts, a judicial review has to be requested. The Scottish government did so in April by challenging the validity of the order.
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Scotland Act 1998, c.46, s35(1)(a)-(b)

What was the UK government’s argument?

The UK government argued that the Gender Recognition Reform Bill would have an adverse effect on reserved matters. In particular, that the bill would affect the matter of ‘equal opportunities’ – specifically the Equality Act 2010, which makes ‘sex’ a protected characteristic.
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Scotland Act 1998, c.46, s35(1)(a)-(b)

 Additionally, it claimed that the bill would have practical consequences on the reserved matters of ‘fiscal policy’ and ‘social security’.

The government grouped the adverse effects into three overall areas of concern:

1. First, the government highlighted the impact of creating two parallel regimes for Gender Recognition Certificates (GRCs). Any Scottish GRC issued under the bill’s terms would not automatically have legal effect outside of Scots law. This could have an impact on matters such as equal pay (as it affects who can be used as a comparator) and the administration of tax, which only allows for one legal sex on records.
2. Second, the government argued that the bill would create increased potential for fraudulent applications for GRCs, for instance due to the removal of the requirement for a medical diagnosis of gender dysphoria, which could undermine the safety of women and girls in single-sex spaces.
3. Third, the government claimed that an increased number of people holding GRCs would exacerbate existing issues with sex-segregated services. GRCs alter one’s sex for Equality Act 2010 purposes,
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   Scotland Act 1998, c.46, s35(1)(a)-(b)
   
    but there are exceptions such as refuges where those with the protected characteristic of gender reassignment can be excluded. The Scottish bill would also lower the age limit for GRCs to 16, which the UK government argued would also risk affecting single-sex schools.

What was the Scottish government’s argument?

The Scottish government’s case was based on two main claims: that the Gender Recognition Reform Bill did not modify the law as it applies to reserved matters, and that the reasons given by the UK government neither prove that there would be adverse consequences nor were sufficient to meet their duty to provide reasons when making a section 35 order.

Lord Advocate Dorothy Bain KC, the Scottish government’s senior law officer, argued in court that the bill would not modify the law as it applies to reserved matters. The Scottish government previously amended the 2004 Act by removing the spousal veto on gender recognition.
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Scotland Act 1998, c.46, s35(1)(a)-(b)

 While the Scottish government agreed that section 9 of the Gender Recognition Act 2004 (passed by the UK parliament) applies to the reserved matter of equal opportunities, the provisions setting out who can obtain a GRC do not. UK government lawyer David Johnston KC argued that the Scottish government had taken an overly ‘narrow’ view of what counts as impacting a reserved matter.

The Scottish government claimed that the reasons given show that the section 35 order were irrational, based on irrelevant considerations, and inadequate, due to the lack of sufficient supporting evidence. The secretary of state’s focus on safeguards was argued to speak more to a policy disagreement rather than adverse consequences on reserved matters, and as such should be irrelevant to making a section 35 order. In court, David Johnston KC opposed this claim as a ‘red herring’.

The Scottish government further argued that the UK government did not act in accordance with agreed processes for intergovernmental consultation. Although these processes have no legal effect, the Scottish government contended that a section 35 order was intended to be a matter of last resort, and that these other channels should have been pursued first.

What happened in the Outer House court case?

The case was heard by the Outer House of the Court of Session. The procedural hearing took place on 16 August 2023, followed by the substantive hearing on 19 and 20 September where both sides presented their arguments. Lady Haldane published her judgment on 8 December, ruling that the UK government had acted lawfully.

Lady Haldane dismissed the argument that the UK government made the order due to a policy disagreement, focusing instead on whether reasons for the order existed and were rational.
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Judicial Review of the Gender Recognition Reform (Scotland) Bill (Prohibition on Submission for Royal Assent) Order 2023 made and laid before the UK Parliament by the Secretary of State (under section 35 of the Scotland Act 1998) on 17 January 2023 [2023] CSOH 89, [64]-[65].

She also ruled that as the secretary of state’s decision related to potential impact on reserved matters, other ‘less draconian’ measures included in the Scotland Act would have been insufficient to address his concerns.
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ibid [68].

She disagreed with the Scottish government’s ‘narrow’ view of what affected reserved matters. Focusing solely on the lack of language amendment ignored the significance of the change in underlying meaning: the Gender Recognition Reform Bill would have changed the meaning of ‘full gender recognition certificate’, which in substance amends section 9 of the Gender Recognition Act.
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ibid [67].

The judgment then turned to whether the section 35 order had appropriate levels of review and was rational. Lady Haldane determined that section 35, as part of the constitutional framework, did not require the heightened review needed when “fundamental human rights are at stake”.
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ibid [71]

The test for making such an order was simply that the secretary of state, within his constrained decision period, was satisfied that any adverse effects could be identified.

The court should only intervene if “no reasonable authority” could have reached the same conclusion.
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ibid [73]-[74].

For example, although it was not certain that the Scottish act would lead to an increase in fraudulent applications, that did not mean the secretary of state’s conclusion that this would occur on the basis of his material was irrational.
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ibid [78].

Lady Haldane concluded that although not all reasons given by the UK government carried equal weight, they were not unsupported by evidence and were therefore sufficient, since there is a “lack of any specific requirement in the 1998 Act as to any particular requirements or standard that the reasons must achieve.”
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ibid [81].

The Scottish government confirmed on 20 December 2023 that they would not appeal Lady Haldane’s judgment.
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Alistair Grant, ‘UK Government to seek legal costs after Scottish ministers abandon gender court battle’, The Scotsman, (20th December 2023) retrieved 20th December 2023, www.scotsman.com/news/politics/uk-government-to-seek-legal-costs-after-scottish-ministers-abandon-gender-court-battle-4453515