On the evening of 16 January 2023, the UK Government announced that the Secretary of State for Scotland, Alister Jack MP, was planning to make an Order under Section 35 of the Scotland Act 1998. The Section 35 Order will prevent the Gender Recognition Reform (Scotland) Bill which the Scottish Parliament passed on 22 December 2022 from being submitted for Royal Assent.
This blog gives a brief overview of Section 35 of the Scotland Act 1998.
What does Section 35 of the Scotland Act 1998 provide?
Section 35 of the Scotland Act 1998 gives the Secretary of State (the Secretary of State for Scotland is a UK Government Minister) a power to intervene in certain circumstances where the Scottish Parliament has passed a Bill, but before it is submitted for Royal Assent (there is a four week period after a Bill is passed by the Parliament before it is submitted for Royal Assent).
Section 35 allows the Secretary of State to exercise this power:
- If a Bill contains provisions—
(a) which the Secretary of State has reasonable grounds to believe would be incompatible with any international obligations or the interests of defence or national security, or
(b) which make modifications of the law as it applies to reserved matters and which the Secretary of State has reasonable grounds to believe would have an adverse effect on the operation of the law as it applies to reserved matters
Section 35 allows the Secretary of State to make a Section 35 Order where the tests set out above are met.
The effect of a Section 35 Order is that it prohibits the Presiding Officer of the Scottish Parliament from submitting the Bill for Royal Assent (i.e. from being sent to the King for formal agreement and becoming an Act of the Scottish Parliament).
It is important to note that a Section 35 Order can be made where there is no question over the Scottish Parliament’s legislative competence (i.e., its power) to pass the Bill. As the explanatory notes to the Act explain in relation to Section 35:
“there are certain limited circumstances where the UK Government can exercise a policy control or veto over what legislation is enacted by the Scottish Parliament, even although it is within its competence. This section defines what those circumstances are.”
Where the law officers wish to challenge a Bill on a question which relates to legislative competence they can do so under Section 33 of the Scotland Act 1998.
What is a Section 35 Order?
A Section 35 Order is a form of secondary legislation. The Scotland Act 1998 (Section 35 (2)) provides that an Order made under Section 35 must:
“identify the Bill and the provisions in question and state the reasons for making the order.”
This means that a Section 35 Order must:
- state the Bill to which it relates and the provision or provisions which the Secretary of State believes are problematic
- and provide the reason for making the Order.
How is a Section 35 Order made?
The UK Government is responsible for drafting a Section 35 Order. A Section 35 Order is a Type I procedure (Scotland Act 1998, Schedule 7). The Order is laid at the UK Parliament and is “subject to annulment in pursuance of a resolution of either House of Parliament” except in some circumstances where it may be subject to the affirmative procedure. This means that the instrument is likely to be subject to the negative procedure (i.e., the instrument becomes or remains law unless either the House of Commons or the House of Lords votes for the Order to be annulled.) The power to annul must be exercised within 40 days of the Order being laid.
Has Section 35 ever been used?
To date, Section 35 has not been used. That means that no ‘Section 35’ Order has ever been made before now.
What might happen now?
It’s difficult to say what may happen next as this will be the first Section 35 Order to be made.
Theoretically, there appear to be three options:
- No further action is taken. The Bill does not proceed to Royal Assent and therefore does not become law.
- The Bill is reconsidered by the Scottish Parliament at a reconsideration stage (a reconsideration stage can only be triggered by the Member in Charge of the Bill), where amendments to the Bill are only allowed if they are for the purpose of resolving the problem which is the subject of the Order made under Section 35.
- A legal challenge is made on the Secretary of State’s decision to make a Section 35 Order. The First Minister has stated that Scottish Ministers will “defend” the legislation.
Sarah McKay, SPICe research