THE UK Government’s threat to take an unprecedented step to block gender reform legislation in Scotland is more to do with culture wars than legal concerns, an expert has suggested.
Scottish Secretary Alister Jack (inset) said the use of a Section 35 order is being considered after Holyrood passed the Gender Recognition Reform (Scotland) Act before Christmas, over concerns about its impact on UK laws such as the Equality Act.
The mechanism contained in the Scotland Act has never been used before, but it allows the UK Government to block bills passed by the Scottish Parliament from gaining Royal Assent for reasons including if it would have an “adverse effect on the operation of law as it applies to reserved matters.”
However, Dr Nick McKerrell, senior lecturer in law at Glasgow Caledonian University, pointed out that, unlike the independence referendum bill case, the legal advice which would have been given to the Scottish Government was that it is within the powers of the Scottish Parliament and does not impact UK legislation.
He said another possible route for UK ministers to challenge it would be to refer the legislation to the Supreme Court to rule on, as happened in the case of the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill.
And he said he did not understand why the UK Government would use the Section 35 order “other than to be politically controversial”.
“I don’t necessarily mean threatening the act of Union or anything like that, I think they are just trying to make a statement that this is such an important issue, we need to take this unprecedented action,” he said.
“So it is culture wars rather than a legal thing.
“I don’t even think it is in the context of saying we are the UK Government, we don’t recognise the Scottish Parliament – I think it is more to do with that culture war element, if they did use it.”
He added: “I would guess it is more likely they would refer it to the Supreme Court.”
McKerrell said this would give the Scottish Government the opportunity to argue its case, while the Section 35 order does not automatically give any right for that to happen.
Scottish ministers would then be likely to seek a judicial review, triggering another court battle with the UK Government over the right for Holyrood to make its own laws.
McKerrell said: “I would say one of the reasons judicial review would have validity is that there is legal dispute on the position the UK Government is putting forward – that is to say there is legal opinion which doesn’t agree it is within reserved powers.
“Because that is the position of the Lord Advocate and the legal advisers to the Presiding Officer of the Scottish Parliament.
“So neither the Scottish Parliament nor the Scottish Government have said there is a legal problem.”
McKerrell also pointed out the first reasons listed in the Scotland Act relating to the use of the power refer to defence and national security issues.
He said: “That is one of the reasons it has never been used – the removing of any legal debate and discussion.
“It would be different if you passed a law saying we support Russia in the Ukraine war – that is a national security issue and it would be we have got to stop that law immediately.
“If you look at the wording of it, that is the sort of scenario it seems to be encapsulating – really extreme foreign affairs.
“To mention foreign affairs and national security issues as the first part of the section, I think you can read that is the sort of area that it is intended to be used for.
“The fact it has not been used in 20-odd years at all tells us that as well.”
He added: “The UK Government can come in and say we think this [legislation] is invalid, but they have to have very strong reasons to why that would be the case – it has got to be outlined in the order, it couldn’t just be a broad statement.
“To me, it looks a bit like political rhetoric – I don’t know if they would do it ultimately.”
The UK Government has four weeks from the passing of the bill – which happened on 22 Dec – to make a Section 35 order prohibiting the Presiding Officer from submitting it for Royal Assent. It is understood the UK Government has not contacted the Scottish Government about lodging the order.
The Scotland Office said there was no further update to a statement issued by Jack following the passing of the legislation, in which he said: “We share the concerns that many people have regarding certain aspects of this bill, and in particular the safety issues for women and children.
“We will look closely at that, and also the ramifications for the 2010 Equality Act and other UK-wide legislation, in the coming weeks – up to and including a Section 35 order stopping the bill going for Royal Assent if necessary.”
A Scottish Government spokesperson said: “The bill as passed is within legislative competence, and was backed by an overwhelming majority, with support from all parties.
“Any attempt by the UK Government to undermine the democratic will of the Scottish Parliament will be vigorously contested by the Scottish Government.”
