Scottish government challenges UK government's use of Section 35 order - what is it?

Tensions over the union of the United Kingdom and trans rights have intensified once again, as Humza Yousaf's Scottish government has confirmed it will launch a judicial review over the UK government's decision to block a gender reform bill passed by the Scottish parliament using a Section 35 order.

Shirley-Anne Somerville, the social justice secretary, said the Gender Recognition Reform Bill - which would make it easier for transgender people to have their gender legally recognised - was passed by an "overwhelming majority" of MSPs, with support from "members of all parties".

So what was the bill?

That would be the Gender Recognition Reform (Scotland) Bill, brought forward by the Scottish government - then led by Nicola Sturgeon.

The bill was passed in December after a lengthy debate, and makes it easier for transgender people in Scotland to obtain a Gender Recognition Certificate (GRC) – a document which legally recognises a person’s gender and allows them to update their birth, marriage and death certificate details, and enter marriage or a civil partnership in that gender.

In the bill’s explanatory notes, it states the draft law repeals sections one to eight of the Gender Recognition Act (the act concerning the issuing of GRCs) in terms of how they apply to Scotland.

Instead, some of the replacement policies include “the removal of the requirement for an applicant to have or have had [a diagnosis of] gender dysphoria”, a reduction in the age limit from 18 to 16, and the period in which an individual has to live in their “acquired gender” before applying from two years down to three months.

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It also introduces a specific offence around falsely making a statutory declaration or providing false information as part of their application for a GRC, with punishment taking the form of up to two years’ imprison and/or a fine.

Why is the UK government concerned?

So this bill sounds like a Good Idea and something which makes lives a little easier for trans people, a community which has come under constant attack in the world of politics and the media.

Sounds good to us.

However, keen to make yet another terrible decision and anger a lot of people, the UK government – led by the Conservatives, of which only three out of its 31 Members of Scottish Parliament voted for the bill to pass – is “concerned” about the Scottish legislation.

Back in January, the secretary of state for Scotland, Alister Jack MP, said in a statement: “After thorough and careful consideration of all the relevant advice and the policy implications, I am concerned that this legislation would have an adverse impact on the operation of Great Britain-wide equalities legislation.

“Transgender people who are going through the process to change their legal sex deserve our respect, support and understanding. My decision today is about the legislation’s consequences for the operation of GB-wide equalities protections and other reserved matters.

“I have not taken this decision lightly. The Bill would have a significant impact on, amongst other things, GB-wide equalities matters in Scotland, England and Wales.”

Specifically, the government has expressed concerns over how the Scottish bill would affect the UK-wide operation of the Equality Act 2010.

As such, Mr Jack invoked powers under Section 35 of the Scotland Act 1998, allowing him to make an order preventing the bill from receiving Royal Assent, the final ‘sign-off’ from the monarch to say a law is now in effect.

It is the first time the UK government has made such an order.

What is a Section 35 order?

Far from your favourite meal you buy from a takeaway menu, this section of the Scotland Act – the same act which established the Scottish parliament – states if a Bill “contains provisions” which make “modifications of the law as it applies to reserved matters” and would have “an adverse effect on the operation of the law” around reserved matters, the secretary of state can block the parliament’s presiding officer from submitting the bill for Royal Assent.

They have four weeks after the passing of a bill to make the order, if they so please.

Reserved matters, meanwhile, means areas and laws which the Scottish parliament cannot amend or change in any way. One of these mentioned in the 1998 act is “equal opportunities”, save a few exceptions.

Under these exceptions, though, it states these do not include “any modification of the Equality Act 2010”.

So what does the Equality Act say?

It outlaws discrimination in relation to a select number of “protected characteristics”, of which “gender reassignment” is one of them.

Nothing under that section mentions a GRC, but rather states a person has the protected characteristic of “gender reassignment” if an individual is “proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex”.

What did Nicola Sturgeon and the Scottish government make of all of this?

As you might expect, Nicola Sturgeon, who already wasn’t happy with the UK government’s attitude to a second Scottish independence referendum, wasn’t exactly pleased with a decision she described as a “full-frontal attack on our democratically elected Scottish parliament and its ability to make its own decisions on devolved matters”.

“[The Scottish government] will defend the legislation and stand up for Scotland’s parliament. If this Westminster veto succeeds, it will be [the] first of many,” she wrote.

Speaking during a press conference earlier that day, when it was rumoured the UK government would take the action it ended up taking, the former first minister claimed there are “no grounds to challenge this legislation”.

She added: “It is within the competence of the Scottish parliament, it doesn’t effect the operation of the Equality Act, and it was passed by an overwhelming majority of the Scottish parliament after very lengthy and very intense scrutiny by MSPs of all parties represented in the parliament.

“So if there is a decision to challenge, then in my view, it will be quite simply a political decision. I think it will be using trans people – already one of the most vulnerable, stigmatised groups in our society – as a political weapon, and I think that would be unconscionable and indefensible and really quite disgraceful.”

As part of the bill’s introduction to parliament, both the then Scottish cabinet secretary (Shona Robison MSP) and the presiding officer (Alison Johnstone MSP) issued statements expressing their view that the bill was “within the legislative competence of the Scottish parliament”.

A Scottish government spokesperson previously told the Scottish Daily Express: “Any attempt by the UK government to undermine the democratic will of the Scottish parliament will be vigorously contested by the Scottish government."

A way for the Scottish government to do this is to challenge the Section 35 order with a judicial review, which was announced on Wednesday.

What are the Scottish government saying now?

Ms Somerville said the UK government's use of the Section 35 order was an "unprecedented challenge" on the Scottish parliament's "ability to legislate on clearly devolved matters", with the risk of it "setting a dangerous constitutional precedent".

She added: "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 have been refused outright by the secretary of state, so legal challenge is our only recognisable 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 UK government is yet to comment publicly on the Scottish government's decision.

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