THE Scottish Government’s legal war against Westminster’s unprecedented veto of gender reforms is likely to stretch until next year, experts have told the Sunday National.
Edinburgh and London will likely go toe-to-toe in a series of legal battles, law professors predicted, culminating in another Supreme Court show-down.
The first battle will take place in the Outer House of the Court of Session in Edinburgh, public law expert Dr Michael Foran of Glasgow University explained.
The Court of Session is the highest court in Scotland and is made up of two “houses” – the Inner and the Outer.
Both are likely to hear arguments and make rulings on the question, which is it's thought is likely to end up in the Supreme Court.
Dr Foran said there were likely to be three judgments in the route to a final answer on the question of whether the UK Government acted within the law when it issued a Section 35 order against Scotland’s gender recognition reforms.
The Scottish Government would provide no detail on its plans for the legal challenge when approached by the Sunday National for comment.
The route to a final verdict
It is expected however, ministers will apply for a hearing in the Court of Session’s lower house. It is not yet known whether this first step has been taken, with the Scottish Government saying only that it “will” make the move without giving timescales.
Dr Foran said to expect the overall process to last until 2024, with opportunities for either side of the fight to appeal a lower court’s ruling.
If the Scottish Government were successful in their initial bid in the Outer House of the Court of Session, Dr Foran said, it would be likely the UK Government would appeal the verdict in the Inner House – or vice versa.
This culminates in London’s Supreme Court which has the power to make the final, definitive ruling on the matter.
Dr Sean Whittaker, who teaches public law at Dundee University, said Dr Foran’s timescale was likely but cautioned the Scottish Government would need the “political will” to take the matter all the way to the London court, especially if it was defeated in earlier stages.
Dr Foran explained none other than the Supreme Court’s ruling would be definitive and said at every stage the two governments would be likely to appeal the verdict, moving the process up the chain, if the court ruled against them.
He said the Outer House’s ruling would be instructive and would provide a “first taste” of judges’ approach to the arguments set out by government lawyers.
Legally, he added, “we’re flying in the dark here” because it is the first time a Section 35 order was issued and so the first time the question has been tested in a court of law.
This is “important”, argued Dr Nick McKerrell senior law lecturer at Glasgow Caledonian University, because it will provide clarity on an untried area of constitutional law.
He said: “Leaving aside the politics which is obviously very difficult, it is important as Section 35 has never been used before so it is important to get a legal test of the limits of this power and how it can be exercised.
“It can only be done in very specific circumstances so I don’t really think it will be broadly used.”
Dr McKerrell added: “I actually think the UK have quite a lot to justify so outcome is not guaranteed.”
Dr Foran took the opposite view, arguing the “onus” would be on the Scottish Government to prove the Scottish Secretary had acted outside his bounds.
Twists and turns
There are a few areas where surprises could pop up. The format of a petition for judicial review allows for interested third parties to intervene in the case, as was the case in the indyref2 Supreme Court case, which saw the SNP make representations.
The party has not confirmed whether they intend to do this – but Dr Foran said this was a “quirk” of that particular case, because the SNP as a party was at odds with the views of the government’s lawyers.
But he added there was a chance interested groups such as trans rights or sex-based rights organisations could apply to make arguments.
And Dr Whittaker said there was theoretically the possibility for either the Commons or the Lords to vote to overturn the order, though he said this would be extremely unlikely given the political make-up of the Westminster parliament.
How did we get here?
Issuing a Section 35 order was an unprecedented step in the history of devolution and sparked outrage from the SNP and Scottish Greens who backed the law change.
The order prevented the bill, which was passed by MSPs last year, from reaching its final stage of being signed off by the King.
Usually a formality, this final step is essential for a piece of legislation becoming the law of the land, and in blocking it, Westminster effectively vetoed the reforms.
Under the Scotland Act, the piece of legislation which provided the foundations for the reconvention of the Scottish Parliament, Westminster has a last resort option of blocking laws made in Edinburgh if it “reasonably” believes there would be an “adverse” effect on reserved matters.
The Scottish Secretary can also exercise the power if they believe the proposed law would be against to the interests of national defence or if it would be at odds with the UK’s “international obligations”.
