A NUMBER of the UK Government's arguments were "weak" but it's difficult to call which side will win the Court of Session judicial review over Section 35, a law expert has said.
Speaking on The National’s Holyrood Weekly podcast, Dr Nick McKerrell insisted that whichever way Judge Lady Haldane rules, it was “necessary” that the review was brought forward because we need to know “the limits” of the S35 order and the UK Government's ability to veto Scottish laws.
Law officers for the Scottish and UK governments gave evidence over two days at the Court of Session earlier this week, with the Lord Advocate disputing a number of the reasons given by Alister Jack for using the little-known part of the Scotland Act.
Dorothy Bain KC argued that the Scottish Secretary had “shut his eyes to one side of the debate” by relying on evidence that was “hostile” to the gender reform legislation, which would have made a number of changes to the process for a transgender person to obtain a Gender Recognition Certificate.
The Lord Advocate accused Jack of using the veto based on a political disagreement, rather than the parameters laid out under the part of the Scotland Act relating to Section 35.
McKerrell (below), senior lecturer in law at Glasgow Caledonian University, said that David Johnston KC's argument that Jack was one-sided because they were looking to find an adverse effect on reserved law was a “self-fulfilling prophecy”.
“If you look just for people saying what the bad things are, that's what you're going to find,” he said.
“And the argument is that when you're making a decision of this nature, you can't do that because – and I think this is a weak aspect of the UK Government's argument – you are going into policy arguments then.
“Say if you've got a strong belief in a particular policy, for example, the recycling scheme [deposit return scheme] – there was controversy about it.
“If you're in favour of it, you'll use that evidence to support your point, and if you’re against it, you'll use evidence to argue against it.”
He added that this makes the issue a policy debate rather than a legal one, but that as Section 35 is an “unusual part” of the Scotland Act, that is not automatically referred to the courts for review, this could cause problems for Bain’s argument that Jack used a “political veto”.
“The Lord’s Advocate’s argument is that it shouldn't be a political one, as it's a legalistically sort of administrative veto,” he told our podcast.
McKerrell explained that the wording of the section was described as the “nuclear option” as it covers extreme circumstances such as national security and foreign affairs, as well as the modification of reserved laws.
“If you’re going to use it, it can’t simply be because of political reasons, it has to be because of extreme concerns that something's being modified, because that's the language used, across the UK,” he said.
“And although, inevitably, the UK Government have used that language, because they have to use a Section 35, I don't think they've made a case that they’ve got strong evidence that it would modify the law, which is really what the argument was about.
“If it doesn't modify the law on a reserved matter then they’ve not got the power to do it.”
Other arguments by the UK law officers on the impact on IT systems and differences in regimes with Scotland and the rest of the UK were also described as “weak” by McKerrell.
The legal expert added that it is always difficult to predict the outcome of the cases, but refuted suggestions that it was a “waste of time” for the Scottish Government to bring the review forward because they would lose.
“I never bought into that,” he said. “I just didn't see that as the issue because I thought there were strong arguments that there wasn't evidence for the decision which the UK Government had made with this Section 35 order.
“But, so, I mean, I don't think it's clear who will win or who will lose in that sense.”
However, he added that the Scottish Government will have a decision to make whatever way the ruling goes, as it is likely to make its way to the Supreme Court and incur “substantial” costs for the taxpayer.
“Then it becomes political again,” he added.
“But I think legally, if you could remove the cost, I think legally it's an important discussion, an important decision actually, to work out how this Section 35 order should operate.”
You can listen to Episode 3 of the second season of Holyrood Weekly on Spotify, Omny and The National’s website here.
