The Scottish Government is to challenge Westminster’s decision to block controversial gender recognition reforms in court – with Holyrood’s Social Justice Secretary insisting legal action is the “only reasonable way” of resolving the situation.
Shirley-Anne Somerville confirmed the Scottish Government is to lodge a petition for a judicial review after the UK Government turned to never-before-used powers under the Scotland Act to prevent legislation passed by Holyrood from gaining royal assent.
MSPs from all parties had backed the Gender Recognition Reform (Scotland) Bill in December last year, with the legislation introduced to simplify and speed up the process for trans people to obtain legal recognition in their preferred gender.
But the UK Government said the Bill would have an adverse impact on the operation of the UK-wide Equalities Act, and Scottish Secretary Alister Jack confirmed Section 35 powers would be used to prevent the legislation from going forward.
Prime Minister Rishi Sunak said on Wednesday that that decision had been made “after taking very careful and considered advice”.
Speaking to reporters in Belfast, Mr Sunak added: “We had concerns, as the UK Government – the Secretary of State – set this out at the time, about how Scotland’s gender recognition act would interact with reserved powers, about the operation of the Equalities Act, the protection of women elsewhere in the UK as well.
“That’s why we took the decision to block the GRR. Obviously there’s a court process, we will follow that through.”
Ms Somerville said the legislation had been “passed by an overwhelming majority of the Scottish Parliament, with support from members of all parties”.
She said the use of Section 35 represented “an unprecedented challenge to the Scottish Parliament’s ability to legislate on clearly devolved matters”, and “risks setting a dangerous constitutional precedent”.
Ms Somerville said: “In seeking to uphold the democratic will of the Parliament and defend devolution, Scottish ministers will lodge a petition for a judicial review of the Secretary of State for Scotland’s decision.
“The UK Government gave no advance warning of their use of the power, and neither did they ask for any amendments to the Bill throughout its nine-month passage through Parliament.
“Our offers to work with the UK Government on potential changes to the Bill have been refused outright by the Secretary of State, so legal challenge is our only reasonable means of resolving this situation.
“It is important to have clarity on the interpretation and scope of the Section 35 power and its impact on devolution. These matters should be legally tested in the courts.”
The Scottish Greens, who are in Government alongside the SNP, said the decision is “vital for equality and democracy”.
Equalities spokeswoman Maggie Chapman said: “If the Tories get away with overriding our Parliament on such a clearly devolved area then it will set a dangerous precedent that could be used time and again. That is why everyone who believes in equality or devolution must support this challenge and oppose the Tory veto.”
Mr Jack said the UK Government will defend its position.
He said: “The UK Government will robustly defend the decision to prevent the Scottish Government’s Gender Recognition Reform Bill from becoming law.
“I made the order under Section 35 of the Scotland Act 1998 after thorough and careful consideration of all the relevant advice and the policy implications.”
He said the Section 35 order was issued due to concerns over the gender reforms’ implications on reserved equality laws.
He added: “The use of the (Section 35) power is entirely within the devolution settlement as set out from its inception, with cross-party support.”
Earlier, former Scottish Government minister Alex Neil warned that the First Minister does not “have a cat in hell’s chance of winning” the legal challenge.
Speaking on BBC Radio Scotland’s Good Morning Scotland programme, the former SNP MSP said it would be better to set out the “anomalies” of the Bill.
He 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.”
Vic Valentine, manager of Scottish Trans, said: “For the UK Government to seek to block the Scottish democratic process in this way, simply because they disagree with the welcome decision the Scottish Parliament has made to improve trans people’s lives, is unacceptable.”
