SCOTTISH Secretary Alister Jack should publish the legal advice which was used as the basis for the Section 35 order blocking gender recognition reform legislation because it is a matter of such “constitutional significance”, a former UK minister has said.
Lord Falconer, who served as a Labour justice secretary, said the public had a right to know what the advice was.
The former Lord Chancellor has previously criticised the UK Government for using a Section 35 order, saying it is “not good for devolution” if it is used.
Jack has argued his block on the legislation passed by Holyrood was needed as the reforms would impact UK-wide legislation, including the Equality Act.
In response to a written question in the Commons, he confirmed the UK Government did not intend to publish the legal advice used as the basis for the order.
He said: “It is long-standing government practice, accepted by successive administrations, not to publish legal advice provided to the Government.
“The order, and a full Statement of Reasons published alongside it, set out in full the adverse effects the Government is concerned about in relation to the Gender Recognition Reform (Scotland) Bill.”
But Falconer told the Sunday National: “The Secretary of State said in the UK Parliament that the reason he has issued his S35 Block is because of the legal advice he has received.
“In a matter of this constitutional significance, the public should know what that advice says. It should be published.”
Last week. the UK Government’s top law officer refused to be drawn on the legal advice given to Jack over the blocking of the law.
SNP MP Stuart McDonald asked what discussions Attorney General Victoria Prentis had had with Cabinet colleagues “on the potential implications of an order under Section 35 of the Scotland Act 1998 for the legislative competence of the Scottish Parliament.”
She responded: “By convention, whether the law officers have been asked to provide advice and the contents of such advice are not disclosed outside government.
“This convention enables candid legal advice to be given.”
The Scottish Government has faced calls from the Tories to publish the legal advice it has been given on the Gender Recognition Reform Bill.
Scottish Conservative shadow constitution secretary Donald Cameron MSP said: “Given her increasingly colourful claims that the UK Government’s actions in issuing a Section 35 order are an unjustified assault on the Scottish Parliament’s powers, you’d think Nicola Sturgeon would be eager to display the legal advice she’s received to back this up.”
The Scottish Conservatives did not respond to requests for comment on Falconer’s comments urging the UK Government to publish its advice.
There is a long-standing convention which is generally observed by governments that legal advice received is not disclosed, but there have been occasions when this has happened, In 2005, Downing Street published the Attorney General’s final advice on the legality of the war with Iraq and in 2021, the Scottish Government released key legal advice relating to the judicial review brought against it by Alex Salmond.
