WESTMINSTER has rejected legal arguments from the Scottish Government against its unprecedented block of transgender law reforms, in newly published documents sketching its counter-offensive.
The UK Government has published its counter-arguments to the case put forward by the Edinburgh administration, who in April launched a bid for a judicial review against the Section 35 order which prevented the Gender Recognition Reform Bill from becoming law.
The Scottish Government’s case outlined four reasons it believed the order should be overturned, in an appeal submitted to the Court of Session earlier this year.
They were that Scottish Secretary Alister Jack had acted “irrationally” when ordering the block by failing to provide “supporting evidence” for his decision, that he had invoked Section 35 erroneously with Scottish ministers insisting his decision was based on a “material error of law” and that his stated reasons for blocking the bill were “irrelevant” and “inadequate”.
Jack had argued the bill interfered with existing UK-wide equality law, claiming it would challenge sex-based rights for women.
In the new documents published on Friday, the Advocate General for Scotland said the issue the court had to decide in ruling on whether Jack had acted “irrationally” meant the Scottish Government would have to prove he had acted in a manner which was “so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it”.
The Advocate General goes on to argue the Scottish Secretary did not need to have “definitive empirical data” to prove he was right to block the bill, nor did he need to have this before issuing the block.
He added: “He is entitled to take account of the predictions of the Scottish Government as to the effects of the provisions […] and to apply logic to whether there are likely to be adverse effects on the law as it relates to reserved matters.”
The Advocate General also argued the Scottish Secretary did not make an “error of law” in issuing the block, saying: “The changes proposed by the Bill amount to a modification of [the 2004 Gender Recognition Act] because they change the conditions that the 2004 Act sets for the change of legal sex.”
Turning to the Scottish Government’s claims the reasons given for the block were “inadequate”, the Advocate General said the minister responsible for the doomed bill was only newly making these arguments.
He said: “The Scottish minister who introduced the bill [Shona Robison] wrote to the UK Government three times about the order and there is no suggestion in that correspondence that the reasons for making the order were unclear.”
The Advocate General also addressed the Scottish Government’s claims the UK Government had issued the order for political and not legal reasons.
His arguments against these claims rely on the Bill of Rights Act 1689, which states: “The freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place outside Parliament”.
The document added that Scottish ministers were attempting to adopt an approach which “amounts to impermissible impeaching and questioning of proceedings in Parliament”, adding that were their arguments to be admissible, they did not reflect the UK Government’s full stated reasons for issuing the block.
