A judgment on whether the UK Government’s blocking of Scottish gender reforms was unlawful could take some time, the judge presiding over the judicial review has said.
Lady Haldane described the case, which explored the use of Section 35 of the Scotland Act, as “unique, interesting and challenging”, as arguments concluded at the Court of Session in Edinburgh on Wednesday afternoon.
Her decision will be taken in “avizandum”, which means she will consider it further in private before publishing her opinion.
She also asked both parties to proceed with this process now despite a separate case – due to be heard next month – by For Women Scotland on challenging the Scottish Government’s definition of “woman”. Both parties agreed she should.
She said: “It will be obvious that I will be making avizandum at the end of today’s proceedings and what I will simply proceed to do is to begin preparation of my opinion.
“As parties will appreciate, that will not be an immediate process and it is likely to take some time.”
Earlier, David Johnston KC, arguing on the UK Government’s behalf, concluded his points as he insisted the Section 35 order should not be dropped.
Issuing the order prevented the Gender Recognition Reform (Scotland) Bill from gaining royal assent, with Scottish Secretary Alister Jack arguing the Scottish legislation significantly impacted reserved equalities law.
On Tuesday, Lord Advocate Dorothy Bain KC, acting for Scottish ministers, described the order as “unlawful” and claimed the never-before-used powers were triggered because Mr Jack “would have legislated differently”.
But Mr Johnston argued the Lord Advocate’s claim that Mr Jack blocked the reforms due to a policy disagreement was a “red herring”.
He told the court on Wednesday: “The veto on the grounds of a policy disagreement is a red herring. Whether or not it is a disagreement is simply irrelevant.”
He said the order was not made because the Scottish legislation “diverged” from UK-wide laws, but rather the “effect the divergence would have on reserved law”.
Instead, he argued Mr Jack had “justified” grounds for using the order against the legislation, which seeks to simplify the process of legally changing gender.
His argument was that only an “unduly narrowly formulistic” view could consider the proposed legislation did not adversely impact reserved equality laws.
The UK Government states the Bill “amended or superseded” the 2004 Gender Recognition Act because it alters the meaning of a gender recognition certificate (GRC) by removing the need for a gender dysphoria diagnosis and lowering the application age to 16.
Mr Jack also could not have “rationally” intervened in gender reform legislation prior to its passage through Holyrood due to “fundamental” amendments which were being proposed, Mr Johnston told the hearing, as he could not have known what the full implications of the Bill would have been unless amended.
MSPs initially considered 153 amendments to the Bill at stage three in a marathon session in Holyrood last year before it was subsequently passed.
Ms Bain told the court on Tuesday that Mr Jack could have taken other measures, such as informing ministers of his intention to block the policy in advance, or holding an extensive debate in Westminster to scrutinise the block.
Mr Johnston said: “In my submission, one could not have rationally been considered to make a Section 35 order until it was clear what the Bill would be, passed at stage three.
“This is not one of those Bills that it was so uncontentious where serious fundamental amendments would not be put forward.”
He also said the UK Government did not have adequate time to issue a Section 104 of the Scotland Act, which would allow changes to be made to reserved legislation in respect of devolved laws, subject to parliamentary scrutiny.
He said ministers had a four-week time frame to object to the legislation gaining royal assent, which would have made it impossible to complete the Westminster process on time.
