ANDREW Tickell has given his verdict on what the defeat over Holyrood’s gender reform laws means for devolution.
It comes after Humza Yousaf claimed devolution was “fundamentally flawed” after the Court of Session judgement rejected claims for the Section 35 order of the Scotland Act to be dropped.
The Scottish Government mounted the legal challenge in January after Westminster issued the never-before-used power to prevent the Gender Recognition Reform (Scotland) Bill from receiving royal assent, despite passing with cross-party support in Holyrood.
The legislation simplifies the process for transgender people to obtain a gender recognition certificate (GRC) and officially change their legally-recognised sex.
In her ruling on Friday, Lady Haldane, who presided over two days of evidence at Scotland’s highest civil court in September, said the challenge “fails”.
Tickell, a legal expert, wrote in The Sunday National that the judicial decision was another in an “increasingly long and dispiriting list of judicial decisions which adopt a narrow interpretation of the devolution settlement.”
He said that it minimised Holyrood’s powers and maximised the powers of UK minister to “intervene with comparatively little scrutiny if they choose to do so”, and that it represents a “significant victory” for the UK Government.
He added: “Every attempt by the Scottish Government to read safeguards for the devolution framework into the Scotland Act was knocked back by Lady Haldane, who has established a low legal threshold for UK ministers to use these “last-stop” veto powers, with minimal scope for judicial scrutiny of the process or the merits of what the Secretary of Scotland has decided.
“In essence, Lady Haldane’s judgment suggests a decision to block legislation using Section 35 should only be subject to light-touch review by the courts, ignoring whether or not the UK Government followed its own protocols as non-justiciable, with no searching scrutiny of the decision-making process or the reasons given for the blocking order.”
The Scottish Government now has three weeks to decide whether or not to appeal, with Tickell arguing that, given the scale of the defeat and its implications for future bills, there may be “no option but to do so”.
The case would then be re-considered by at least three judges of the Inner House before potentially heading for the Supreme Court in London for final determination in several months’ time.
Campaigners against the reforms warned the legislation could risk the safety of women and girls while supporters argued it would make the remove barriers including the need for a gender dysphoria diagnosis.
Tickell said that while there is clearly division on this issue, with those of a gender-critical bent likely seeing this outcome as something to celebrate, it is also important to consider that this judgment has “wider resonances” beyond current debates between trans and women’s rights.
