THE Scottish Government deciding to scrap their gender reform appeal leaves a “bad precedent”, according to a public law expert.
On Wednesday, Social Justice Secretary Shirley-Anne Somerville confirmed in a statement to MSPs that no further legal action will be taken to fight the UK Government’s block on gender reform legislation in Scotland.
In January, Scotland Secretary Alister Jack made the unprecedented move of using a Section 35 order to block the Gender Recognition Reform (Scotland) Bill, and earlier this month the Court of Session ruled that the UK did have the right to block the reforms.
Now, Aileen McHarg – a professor of public law at Durham University – has said that not pursuing the case “leaves a bad precedent”.
So, I understand the political decision not to proceed with an appeal in the s.35 Order judicial review, but it is disappointing because it leaves a bad (IMO) precedent, which could have seriously deleterious effects on the autonomy of the Scottish Parliament within its sphere of
— Aileen McHarg @AileenMcHarg@mastodon.scot (@AileenMcHarg) December 20, 2023
She added in a tweet: “It could have seriously deleterious effects on the autonomy of the Scottish Parliament within its sphere of competence, and encourage the trend (already emergent) of forum shifting to Westminster by those who have lost political debates at Holyrood.
“For those saying that the risk of veto is ‘part of devolution’ – sure, but its use (further) displaces political expectations about how devolution works in practice.”
McHarg went on to say that the Outer House decision from Lady Haldane “does not create a binding precedent”.
She said: “If the power is ever used again it will be open to the Scottish Government (or other devolved govts) to rerun arguments for a much more searching standard of review, and to try to challenge some of the other questionable aspects of Lady Haldane’s decision.”
The legal expert expressed her hope that a future Labour government could reverse a trend toward “muscular unionism” and towards “meaningful reform” to the legal frameworks within which devolution operates.
She added: “One thing that events of the past 5/6 years have clearly shown is that relying on convention and political understandings to temper the legal powers of the UK institutions simply does not provide adequate protection against the undermining of devolution.”
