THE way that the Section 35 dispute between the Scottish and UK Governments is resolved could represent a “watershed” moment in the history of devolution, constitutional experts have said.
Public law experts Chris McCorkindale and Aileen McHarg, writing for the UK Constitutional Law Association, said that they hoped judges presiding over the case would be “alive to the dangers to Scottish democracy” when reaching their conclusions.
Earlier this month, Social Justice Secretary Shirley-Anne Somerville confirmed that Westminster’s decision to stop the Gender Recognition Reform (Scotland) Bill from receiving Royal Assent would be challenged in court.
In January, Scottish Secretary Alister Jack laid down a Section 35 order to stop the reforms from becoming law, despite the legislation being voted through Holyrood by a majority of MSPs and with cross-party support.
And now, constitutional experts McCorkindale and McHarg have analysed what the process will look like, the background to the challenge and what issues may arise in a lengthy paper.
Released on Tuesday, it concludes that it will be “many months” before the fate of the gender reforms is decided, with the appeal likely to go all the way to the Supreme Court.
As a Section 35 order has not been used before, it means there is “considerable uncertainty” about how legal issues will be decided and they warned further issues could arise during the process - particularly if it reveals details of how the Scottish Secretary reached his decision to use the veto.
McCorkindale and McHarg concluded that if the Section 35 order “survives” the appeal, the Scottish Government would take consolation from a judicial approach that “favours a narrow interpretation of the power, provides for a high standard of review to be applied to its exercise, and imposes an onerous interpretation of the duty to give reasons”.
However, a judicial approach allowing for a broader interpretation of powers, a higher threshold for judicial intervention on “reasonableness grounds” or a light-touch approach to the reasons given by Westminster, might “encourage” the UK Government to use a Section 35 more frequently.
This could be through the UK weaponising the order to “encourage changes” to Scottish legislation during the early stages of scrutiny or as the bill passes through Holyrood.
“Indeed, the way in which this dispute is resolved could well represent a watershed moment in the history of devolution,” they wrote.
“The GRR Bill has been remarkable for the extent to which opponents have sought to make use of arguments about devolved competence throughout the legislative process, and of the opportunities that the devolution legislation affords for 'forum-shifting' from the Scottish to the UK level, where their criticisms of the bill have found a more receptive political audience.
“This kind of 'weaponisation' of decision-making constraints is no doubt inevitable in any system of constitutionally-limited and multi-level government.”
UK courts, they argued, have shown themselves in the past to be sensitive to this issue.
However, McCorkindale and McHarg added: “As this case makes its way through the courts, we hope that judges will be equally alive to the dangers to Scottish democracy – and indeed to the central constitutional purpose of devolution – of allowing policy choices allocated to the devolved level to be too easily overturned by the UK Government.”
They argued that the UK Government’s reasons for vetoing the GRR bill have taken an “expansive” view of the scope of a Section 35 order and that it threatens to “render devolved competences which intersect with reserved areas practically unusable” except where Westminster agrees with or is indifferent to the policy.
“Thus, in seeking judicial review, the Scottish Government will be hoping – even if it does not succeed in invalidating the order – at least to obtain judicial guidance on the proper use of [Section 35], and ideally to confine its scope as narrowly as possible,” the paper argued.
“In these circumstances, criticisms that the judicial review is a waste of public money seem misplaced.”
McCorkindale and McHarg also said that the Supreme Court has been historically “unsympathetic” to arguments grounded in the democratic charter of Holyrood, but when sovereignty is “not engaged” arguments put forward were “regarded as relevant to the legal questions before the court”.
They added: “Given that the making of a [Section 35] Order is not an exercise of sovereign authority, the Scottish Government’s arguments founded on democracy, devolution and the separation of powers might find some purchase in describing and limiting the scope and exercise of this executive veto power.”
The UK Government has a number of statutory duties required when setting out their reasons for using a Section 35 order.
Scottish ministers have argued in their submissions that the nature of the reasons given by Jack to lodge a Section 35 order, and the UK’s failure to identify changes to make the legislation fit for purpose, mean that Westminster’s argument is inadequate.
The duty requires the Scottish Secretary to “address himself to the right question and not to exercise the power on account of mere policy disagreement”, McCorkindale and McHarg explained.
As Scottish ministers have argued that the UK’s failure to notify them of their concerns in a timely manner and accused Westminster of offering an “after-the-event justification” for making the decision, the authors pointed out it will be “interesting” what disclosure of any documentation behind the decision to make the order will reveal.
