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Update #4: the hearing at the Outer House of the Court of Session finished on September 20th, one day earlier than expected. It will now be a number of weeks (we would expect four at the least, and very possibly more) before the Judge releases her decision. You can read the written submission we made to the Court here.
Update #3: the hearing at Outer House of the Court of Session from September 19th-21st will be available to watch online. Find our more here.
Update #2: we have been granted permission to intervene in the Scottish Government’s case against the UK Government. Read more about it here.
Update #1: the Scottish Government has been granted permission to take the case against the UK Government’s use of the Section 35 order to block the Bill. Read more about it here.
On the 16th 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.
This came just 3 weeks after the Bill passed the Scottish Parliament with overwhelming cross-party support, although rumours that the Bill would be blocked started circulating shortly after the final vote.
This is 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 has been given to block the GRR Bill is that the UK Government says it believes that the Bill, or parts of it, make “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”.
After it issued the order, the UK Government gave a statement of reasons for the block, which largely relate 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.
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. But in the case of the GRR Bill, the UK Government has rejected that way forward, and currently is refusing to discuss that alternative, either with the Scottish Government, or with cross-party Scottish Parliament committees.
On the 12th 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.”
We will keep you updated on the progress of the case. As this is the first time a Section 35 order has ever been used, it is hard to make any strong predictions about what will or won’t happen. Whilst some of the legal arguments will be about the Bill itself, and whether it would have negative impacts on UK-wide equalities matters, many of them will also be about the power in the Scotland Act itself to use a Section 35 order – so it will likely be more about constitutional law than gender recognition law.
Unfortunately, it will likely take many months (and perhaps more than a year) for a final decision to be reached.
While we don’t know for sure what will happen going forward, there will need to first be a hearing to decide if the Scottish Government has permission to challenge the Section 35 order. If they are granted permission to go ahead, the most likely scenario is that the case will be heard in the Outer House of the Court of Session in Edinburgh, in which one Judge will make a decision based on hearing the arguments of both sides.
There is then the possibility that whoever loses the case (either the UK Government or the Scottish Government) will appeal any decision that is made.
The next step, if an appeal was given permission to go ahead, would be that the Inner House of the Court of Session in Edinburgh would consider the appeal. Normally, three Judges are involved in reviewing a decision on appeal at the Inner House.
There could then be a final stage of appeal by either Government, which would likely result in the UK Supreme Court in London reviewing the decision of the Inner House of the Court of Session.
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.
If the Scottish Government are successful in overturning the Section 35 order in court, the Bill would gain royal assent and become law. If they are unsuccessful, there are a couple of options.
One would involve the Scottish and UK Governments negotiating changes to the Bill, and agreeing a way forward. However, this seems unlikely with the current UK Government, who have refused all requests to discuss this, and whose statement of reasons for opposing the Bill objects to almost all of the positive changes that it makes.
While this may not happen under the current UK Government, it may become more likely if the incoming Government from the next UK general election (which must be held, at the latest, by January 2025) holds more positive views around gender recognition reform.
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.
Finally it is possible that the Scottish Government, with the consent of the Scottish Parliament, could withdraw the Bill entirely. We would of course be very strongly opposed to this option. It also seems unlikely, given that there was such widespread support for the Bill across the Scottish Parliament.
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