The UK Government's decision to block the Gender Recognition Reform (Scotland) Bill has generated controversy, as has the Bill itself. Understandably the "Section 35 Order" process used by the Government is not well understood.
What has the UK Government done?
The Secretary of State – in this case the Scottish Secretary Alistair Jack – has used section 35 of the Scotland Act 1998 to make an order which provides that "The Presiding Officer is prohibited from submitting the Gender Recognition Reform (Scotland) Bill for Royal Assent".
What does section 35 of the 1998 Act do?
Section 35 allows the UK Government to stop a Scottish Parliament Bill from becoming an Act, by preventing it from receiving Royal Assent.
The power can be used where the Secretary of State has reasonable grounds to believe that the Bill would be incompatible with the UK's international obligations or the interests of defence or national security. That's not an issue with this Bill.
The power can also be used where the Secretary of State believes that the Scottish Bill modifies the law "as it applies to reserved matters" and where he has reasonable grounds to believe that the Bill would have an adverse effect on the operation of the law as it applies to reserved matters. It's this second limb that is relied on by the UK Government.
The UK Government's view is that a number of sections of the Bill will modify the law (in this case by modifying the existing Gender Recognition Act 2004) as it applies to the reserved matters of "Equal Opportunities" and "Fiscal, economic and monetary policy". It also thinks that this modification will have an adverse effect on the operation of the law as it applies to reserved matters.
What is the UK Government's reasoning?
The section 35 Order contains a fairly lengthy explanation of the UK Government's reasons in a Schedule attached to the Order. It identifies 3 areas in which the UK Government considers there will be adverse impacts on these particular reserved matters. First, the impacts of the creation of two parallel and very different regimes for issuing and interpreting gender recognition certificates within the United Kingdom; second, impacts on the safety of women and girls that it considers may arise because of increased potential for fraudulent applications to be successful; and third, impacts on the operation of the Equality Act 2010 that result from the change to a person’s protected characteristic of sex, "particularly given the expansion of the cohort of people able to obtain a gender recognition certificate".
Has the Scottish Parliament acted outside of its powers?
This is the first time that section 35 of the Scotland Act has been used to prevent a Scottish Parliament Bill from becoming law. The Secretary of State has not referred the Bill to the UK Supreme Court – as it did most recently with the Scottish Parliament's Bill to incorporate the UN Convention on the Rights of the Child into Scots law – for a ruling on whether the Bill is outside the Scottish Parliament's powers. Rather, the UK Government appears to accept that the Bill is within competence – the challenge is to the Bill's impacts rather than its legality.
What happens now?
The Scottish Government has indicated its intention to bring a judicial review of the decision of the Secretary of State. Such a judicial review would be expected to be brought in the Court of Session in Edinburgh. There are provisions in the Scotland Act 1998 for questions arising from the devolution settlement to be fast-tracked to the UK Supreme Court. It remains to be seen whether those are used.
The Scotland Act also provides a mechanism for resolving this kind of issue: the Bill can be reconsidered by the Parliament with a view to meeting the Secretary of State's concerns.
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