Blocking of the GRR Bill by the UK Government

Use of the Section 35 order

On 23rd December 2022, the Gender Recognition Reform (Scotland) Bill (GRR) passed Scottish Parliament by a majority of 86 votes for to 39 against.

On 16^th January 2023, the Secretary of State for Scotland announced that he would use a Section 35 order under the Scotland Act to prevent the Gender Recognition Reform (Scotland) Bill from gaining royal assent and becoming law. While this came just 3 weeks after the Bill passed, rumours that the Bill would be blocked started circulating shortly after the final vote.

What is a Section 35 order?

This was the first time a Section 35 order has been used since the Scotland Act was passed in 1998. It can be used for two reasons. The main reason that was given to block the GRR Bill is that the UK Government said it believed that the Bill, or parts of it, made “modifications of the law as it applies to reserved matters and which the Secretary of State has reasonable grounds to believe would have an adverse effect on the operation of the law as it applies to reserved matters”.

The day after it issued the order, the UK Government gave a statement of reasons for the block. This largely related to their belief that changing the process for obtaining a Gender Recognition Certificate in Scotland would impact their ability to carry out cross-border equalities duties, which are reserved to the UK Government.

It is important to note that many bills of the Scottish Parliament have impacts on cross-border issues, including on equalities duties. The normal way that these are dealt with is for the UK and Scottish Governments to negotiate a Section 104 order, which is a simple way for Westminster to adjust legislation covering all parts of the UK and resolve these issues. That is what happened with Scotland’s equal marriage legislation for example.

Legal challenge from the Scottish Government

On 12^th April 2023, The Scottish Government announced that it would be mounting a legal challenge against the use of the Section 35 order, and would lodge a petition for a judicial review. Following the announcement, the Scottish Government’s Social Justice Secretary Shirley-Anne Somerville said:

“The use of Section 35 is an unprecedented challenge to the Scottish Parliament’s ability to legislate on clearly devolved matters and it risks setting a dangerous constitutional precedent.”

“The UK Government gave no advance warning of their use of the power, and neither did they ask for any amendments to the Bill throughout its nine month passage through Parliament. Our offers to work with the UK Government on potential changes to the Bill have been refused outright by the Secretary of State, so legal challenge is our only reasonable means of resolving this situation.”

On 27th June 2023, the Scottish Government was granted permission for its case against the UK Government to be heard in the Outer House of the Court of Session. On 9th August 2023, Scottish Trans was granted permission to intervene in the Scottish Government’s case against the UK Government. You can read the written submission we made to the court here.

On 19th & 20th September 2023, the Outer House of the Court of Session heard the Scottish Government’s case and the UK Government’s response. Whilst some of the legal arguments were about the Bill itself, and whether it would have negative impacts on UK-wide equalities matters, many of them were about the powers in the Scotland Act itself and whether it was legal for the UK Government to use the Section 35 order or not.

On December 8th 2023, the Outer House ruled in favour of the UK Government, meaning that the Section 35 order would remain in place. You can read the full text of the judgement here.

On December 20th 2023, the Scottish Government announced that they would not be appealing the Court’s decision. You can read our full statement on this here.

What happens to the Bill now?

For now, the Bill remains passed and agreed by the Scottish Parliament, having completed all three stages of the parliamentary process. However, the Bill cannot become law until it gains royal assent – which is what the Section 35 order is currently preventing, and so it will be stuck at the last stage of the Scottish Parliamentary process unless the order is withdrawn.

It is possible that the Scottish and UK Governments (present or future) could negotiate changes to the Bill, and agree a way forward.  Negotiation could result in the use of a Section 104 order to make necessary adjustments to equality law and deal with any cross border issues. It might also require some adjustments to the Bill itself, which can be made by what is called a “reconsideration stage” in the Scottish Parliament.

Assuming that all this is done with the agreement of both governments, the Section 35 order would be lifted, and the Bill would gain royal assent and become law.

As far as we’re aware, there isn’t a time limit on how long the Bill can remain on the Scottish Parliament’s “books” in this way, but it could be withdrawn by the Scottish Government (present or future), which would be hugely disappointing and a further negative outcome for trans people in Scotland.