On 8 December, the Outer House of the Court of Session delivered its judgment on the petition for Judicial Review of the Gender Recognition Reform (Scotland) Bill (Prohibition on Submission for Royal Assent) Order 2023. This blog considers the decision of the Court.
The case is of particular significance because it relates to the first use of a section 35 Order. As such, the Court’s decision provides clarity on the use of the power contained in section 35 of the Scotland Act 1998 for the Secretary of State to prohibit bills passed by the Scottish Parliament from being submitted for Royal Assent (and therefore from becoming law).
SPICe has previously published a blog explaining section 35 of the Scotland Act 1998 and a SPICe briefing on judicial review explains the process in Scotland.
Background
On 17 January 2023 the Secretary of State for Scotland, Alister Jack MP, made an Order under section 35 of the Scotland Act 1998. The Gender Recognition Reform (Scotland) Bill (Prohibition on Submission for Royal Assent) Order 2023 prevented the Gender Recognition Reform (Scotland) Bill which the Scottish Parliament passed on 22 December 2022 from being submitted for Royal Assent by the Presiding Officer. This was the first time that a ‘section 35 Order’ had been made.
Section 35 of the Scotland Act 1998 provides that the Secretary of State may exercise the power to make a section 35 Order:
- 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 is not about the Parliament’s legislative competence (i.e., whether it is within the Parliament’s remit to make the legislation) and is separate to the process for law officers to challenge the legislative competence of a bill. The Scottish and UK Governments were agreed that this Bill was within legislative competence.
Legal challenge
The Scottish Government indicated that it would challenge the decision of the Secretary of State to make a section 35 Order and lodged a petition for judicial review in April 2023. The Scottish Government has described the power to make a section 35 Order as a power of ‘veto’ for the UK Government over legislation passed by the Scottish Parliament.
The Scottish Government’s position is that the UK Government improperly used section 35 to block the Gender Recognition Reform (Scotland) Bill because it disagreed with the policy. In a Ministerial Statement made on 19 April 2023, the Cabinet Secretary for Social Justice stated that:
“allowing the UK Government’s veto on the democratic decisions of this Parliament to go unchallenged would undermine our democracy…the veto was used with no prior discussion or warning, and without ever hearing from the UK Government about what amendments they would have wanted in the Bill. That cannot go unchallenged because of the implications for future legislation and for devolution…We will fight to defend the devolved competence and democratic function of this Parliament.”
The UK Government’s position was that the Order was made appropriately – on the basis of the effect of the Bill on the operation of the law as it applies to reserved matters.
The petition challenged the decision of the Secretary of State for Scotland to make the Order, asking the Court to ‘reduce it’ (i.e., to declare that the Order has no legal effect).
Lady Haldane heard the case on 19 and 20 September 2023. You can watch the hearing back on the Court of Session website.
The Court’s judgment
In her Opinion, Lady Haldane ruled that “the challenge to the Order pronounced under section 35 of the 1998 Act, laid on 17 January 2023, fails” whilst recognising “the novelty and complexity of the arguments”.
Key points
- The Court held that the Order had not been made on the basis of a policy dispute. Lady Haldane’s Opinion found that:
“The motivation for making the Order, the petitioners argue, emanates from a policy dispute on the topic of gender reform as between the UK and Scottish parliaments and thus constitutes an improper use of the power in section 35…I cannot on the material before me, conclude that the Order was made on this basis.“
Para 64
2. The pre-condition for the use of a section 35 Order was met (i.e., the Court held that the Gender Recognition Reform (Scotland) Bill does modify the law as it relates to reserved matters. It does so by amending section 25 of the Gender Recognition Act 2004, which provides the definition of “full gender recognition certificate”, to include certificates issued under the new procedure proposed by the Bill for obtaining a Scottish Gender Recognition Certificate. This new definition therefore must be read into section 9 of the 2004 Act, which provides that a full gender recognition certificate means that a person’s gender becomes for all purposes the acquired gender. Lady Haldane said that:
“The effect of the amendment to section 25 will be to alter the unqualified continuation in force of section 9 of the 2004 Act. That section has in substance been amended by the Bill, and on the basis of the acceptance by the petitioners that section 9 operates as the interface between the Bill and the Equality Act, which is within the reserved area of Equal Opportunities, the first precondition of section 35 has been met, and the section is therefore engaged.”
Para 67
3. On the question of what constitutes the appropriate intensity of review (i.e., the level of scrutiny to be applied by the Court in deciding whether a decision should stand), the Court held that:
“Section 35 does not, in and of itself, impact on the separation of powers or other fundamental constitutional principle. Rather it is itself part of the constitutional framework. The political context is an important one and the touchstone remains that of rationality. The level of intensity of review has to be viewed in that context and is as a consequence less than that employed where fundamental human rights are at stake, or where there is a challenge to the rule of law.“
Para 71
The Scottish Government had argued that a high level of review ought to be required because of the constitutional nature of the power. Lady Haldane found that:
“The nature of the power that has been invoked, whilst a constitutional one, is described and delineated within the four walls of the 1998 Act. There are preconditions to its exercise set out in section 35 (1)(b). There is a specified time frame within which the power must be exercised set down in section 35(3). Therefore far from being an impermissible intrusion upon the constitutional settlement, section 35 is an intrinsic part of it.“
Para 70
4. The rationality of the Secretary of State’s decision was upheld, against the Scottish Government’s argument that he had “failed to acquaint himself with the relevant facts and material before making the Order”. Lady Haldane ruled that:
“He [the Secretary of State] was constrained by a four week statutory timeframe and the obligation upon him to inform himself as to whether the preconditions set out in section 35 were satisfied so as to justify making an Order. The time frame did not permit an extensive information gathering exercise as had been carried out by the Scottish Parliament before the introduction of the Bill.”
Para 73
“I cannot conclude that he [the Secretary of State for Scotland] failed in his duty to take such steps as were reasonable in all the circumstances to acquaint himself with material sufficient to permit him to reach the decision that he did. Others may have reached a different conclusion on the same material. This is plainly a situation where another decision might have been made with equal propriety, and its predictive nature means that there is possibly no single right answer.“
Para 75
Looking ahead
The Court’s decision means that the Gender Recognition Reform (Scotland) Bill (Prohibition on Submission for Royal Assent) Order 2023 stands. As such, the Gender Recognition Reform (Scotland) Bill cannot be submitted for Royal Assent.
As to what happens next, there are many possibilities.
The Scottish Government may appeal the decision of the Court of Session’s Outer House to the Inner House. It has 21 days to do so.
Another possibility is that the UK and Scottish Governments could work together to resolve the issues identified by the UK Government in relation to the Bill’s effect on the operation of the law as it applies to reserved matters, which could mean the Bill being brought back to the Parliament for a reconsideration stage.
The Bill could equally be shelved although this seems, perhaps, an unlikely outcome at this stage.
In the longer term, the Court’s decision has established a precedent for the boundaries of the use of Section 35 of the Scotland Act 1998.
Sarah McKay, SPICe research