HUMZA Yousaf’s chances of winning a legal challenge against the UK Government’s block of Scottish gender reform are “vanishingly small”, a top constitutional expert has said.
It comes after former SNP health secretary Alex Neil urged the First Minister not to challenge Scottish Secretary Alister Jack’s use of Section 35 of the Scotland Act to block the Gender Recognition Reform (Scotland) Bill from becoming law.
Neil claimed the Scottish Government does not “have a cat in hell’s chance of winning at the British Supreme Court”.
Alan Page, an emeritus professor of public law at Dundee University and one of the country’s foremost experts on Scottish constitutional law, told The National that he did not think Neil’s assessment was “wide of the mark”.
He went on: “If the court accepts it makes modifications of the law as it applies to reserved matters, which is the key question, I think its prospects of success are vanishingly small.”
Page’s comments came just before Yousaf announced that the Scottish Government would look to mount a legal challenge against the Tories' block on gender reform.
The bill passed through Holyrood by 86 votes to 39, with support from all five of the parliament’s parties.
But Jack (above) intervened to prevent it gaining royal assent and becoming law, claiming he was “concerned that this legislation would have an adverse impact on the operation of Great Britain-wide equalities legislation”.
Yousaf had until April 17 – the day Holyrood returns from its Easter recess – to challenge Jack’s move. A bid was formally announced on April 12.
Speaking on BBC Radio Scotland’s Good Morning Scotland that day, former SNP MSP Neil (below) said: “My own view is in terms of the challenge to the UK Government it would be far better just to reintroduce a bill and this time in the bill deal with concerns of women about places of safety for women and also deal with the UK Equality Act.
“We know that going to the Supreme Court, and every lawyer I have spoken to has told me, we don’t have a cat in hell’s chance of winning at the British Supreme Court.
“Let’s not hand this over to the Supreme Court in London. Let’s sort it out ourselves and pass a bill that we can all unite behind and all be proud of.”
Yousaf may have felt pressured to challenge Jack’s use of Section 35 after comments from Scottish Green co-leader Patrick Harvie suggested his party would pull out of the ruling agreement with the SNP if the Tory government was not taken to court over the block.
Speaking during the SNP leadership race, Harvie was asked if the Gender Recognition Reform Bill was a red line.
He said: “I genuinely struggle to understand how any candidate who even believes in devolution, let alone independence, could say that one of their first acts would be to roll over and let the UK Government veto fully devolved legislation that's already been passed by an overwhelming cross-party majority.
“We've made it clear that we think that the challenge to this abuse of the Section 35 order is an absolute priority.”
Harvie said that gender reform was written into the Bute House Agreement and that the Greens “would not accept any Scottish Government simply vetoing parts of [it]”.
He went on: “Those policies are in the Bute House Agreement. That's what we're intending to deliver. And if there was a Scottish Government, whether the current first minister hadn't resigned and changed her mind, or whether it's a new first minister, wanting to rip out parts of that agreement, clearly that agreement would come to an end.”
Yousaf said on Wednesday: "While we all know there are a range of views on this Bill, this Tory government’s veto on devolved matters is not about the substance of the Bill, but about the principle of undermining the Scottish Parliament.
"If unchallenged, it sends a signal that the UK Government can veto any legislation they disagree with, at a whim.
"Of course, Scotland’s democracy can only be fully protected with the powers of independence, but we know if you give the Tories an inch, they’ll take a mile and undermine devolution and our Parliament at every given opportunity."
