Introduction

On 17 January, the Secretary of State for Scotland, Alister Jack MP, made an Order under s.35 of the Scotland Act 1998 prohibiting the Scottish Parliament’s Presiding Officer from presenting the Gender Recognition Reform (Scotland) Bill (GRR Bill) for Royal Assent.  The Bill, which was passed with cross party support on 22 December 2022, seeks to amend the Gender Recognition Act 2004 (GRA) to make it easier for transgender people to obtain a Gender Recognition Certificate (GRC) in Scotland, by removing the need for a medical diagnosis of gender dysphoria, substantially reducing the length of time that a person needs to live in their acquired gender before applying for a GRC, and reducing the minimum age (from 18 to 16) at which a GRC can be granted.  This was the first time in the history of devolution that the UK Government has exercised its powers to block legislation made within devolved competence.

The UK Government’s decision left the Scottish Government with four options:

1. Do nothing and allow the GRR Bill to fall;
2. Seek to amend the Bill at a reconsideration stage, so as to allow it to proceed to Royal Assent.  By s.35(5), approval of the Bill at reconsideration means that the s.35 Order automatically ceases to have effect, although another Order can be made within four weeks (s.35(3)(b));
3. Approve the Bill unamended at a reconsideration stage, and defy the UK Government to make another s.35 Order – a process which might be repeated indefinitely until one side backs down or there is a material change (such as amendment of the definition of sex in the Equality Act 2010); or
4. Challenge the validity of the s.35 Order via judicial review.

On 12 April, the Cabinet Secretary for Communities, Social Security and Equalities, Shirley-Anne Somerville MSP, confirmed in an answer to an urgent written question that the Scottish Government intended to take the last of these options.  The reasons for doing so were amplified in a ministerial statement on 19 April, and the Scottish Government’s petition for judicial review was published the same day.

This decision was unsurprising.  The new First Minister, Humza Yousaf MSP, had made clear during the SNP leadership campaign that he thought the Order should be challenged.  Nevertheless, the reaction to the announcement of legal action has been overwhelmingly negative: a series of commentators – with varying degrees of authority – have asserted that the challenge has no chance of success, and that it is a waste of both public money and political capital in defence of a flawed and unpopular Bill.  Why then, has the Scottish Government decided to proceed with judicial review, and on what grounds will it challenge the s.35 Order?

Why Challenge the Section 35 Order?

The most obvious reason for challenging the Order is that, if successful, it would allow the GRR Bill to be enacted in the form approved by Holyrood.  Although opinion poll evidence suggests that a majority of the Scottish public supports the blocking of the Bill (including the two other SNP leadership candidates), it was passed by a substantial majority of MSPs (86:39).  SNP voters, and younger voters in general, are also more likely to oppose the s.35 Order.  Moreover, the Scottish Green Party – the SNP’s partners in government – had indicated that their continued support depended upon the Order being challenged. 

In addition, Ms Somerville stated that the Scottish Government felt it had “no option” but to pursue legal action because the reasons given by the UK Government for making the Order appear to leave little scope for amending the GRR Bill, and both Alister Jack and the UK Equalities Minister, Kemi Badenoch MP, have refused to assist either the Scottish Government or the Scottish Parliament’s committees in identifying appropriate amendments.

Beyond these pragmatic reasons, there are arguments in principle for challenging the s.35 Order which apply irrespective of one’s views of the merits of the GRR Bill.  Indeed, it seems hardly surprising that the first use of what has always been regarded as a highly controversial – and last resort – power of intervention in intra vires devolved decision-making on essentially political grounds would provoke a legal challenge.  In fact, on the only previous occasion in which the UK Government proposed to withhold Royal Assent from a devolved Bill – in relation to a Bill to change the local government electoral system in Northern Ireland passed by the Parliament of Northern Ireland in 1922 – the Prime Minister of Northern Ireland threatened to resign, and Royal Assent was ultimately granted.  In the Canadian context, Peter Hogg has said of the federal power to disallow provincial statutes, “the modern development of judicial review and ideas of democratic responsibility has left little room for the exercise of the power” (p 120).  The Welsh First Minister, Mark Drakeford MS, also criticised the use of s.35 as setting a “very dangerous precedent” for devolution. 

Moreover, in the context of what the devolved authorities see as a generalised attack on devolution – the undermining of the Sewel Convention; the impact of the UK Internal Market Act (UKIMA) on devolved policy freedom; increased UK interference in devolved policy areas; and most recently the clamp down on the Scottish Government’s international activity – the Cabinet Secretary made clear that the Scottish Government felt it necessary to draw a line in the sand, to prevent further erosion of devolved autonomy.  She pointed to the recent fate of the Sewel Convention, arguing that “once a precedent has been set, the UK Government will find it easier to justify using a power again and again, gradually eroding the hard-won devolved powers of Scotland”.  Echoing the breakdown of practices of notification and consultation over UK Bills affecting devolved matters which hitherto supported the Sewel Convention, Ms Somerville also emphasised the UK Government’s failure to adhere to agreed procedures and practices for alerting the Scottish Government to concerns about devolved Bills, so as to avoid resort to formal intervention. 

While the controversy surrounding the GRR Bill creates unusually favourable political conditions in which to exercise the veto power, there is a danger of drifting into a more generalised UK Government supervision of devolved policy-making (the UK Government’s threat to refuse an exemption from UKIMA for the Scottish Government’s equally controversial Deposit Return Scheme provides another contemporary example).  The nature of some of the reasons given for vetoing the GRR Bill – for instance, objecting in principle to the existence of different schemes for gender recognition north and south of the border – also suggests that the UK Government has taken a very expansive view of the scope of s.35, which threatens to render devolved competences which intersect with reserved areas practically unusable except where the UK Government agrees with or is indifferent to the policy objectives being pursued.

Thus, in seeking judicial review, the Scottish Government will be hoping – even if it does not succeed in invalidating the Order – at least to obtain judicial guidance on the proper use of s.35, and ideally to confine its scope as narrowly as possible.  In these circumstances, criticisms that the judicial review is a waste of public money seem misplaced.

Grounds of Challenge

S.35(1)(b) sets two conditions which must be satisfied for the Order to be valid: the Bill in question must contain provisions which (i) “make modifications of the law as it applies to reserved matters” and (ii) the Secretary of State must have “reasonable grounds to believe” that those provisions “would have an adverse effect on the operation of the law as it applies to reserved matters”.  S.35(2) also requires reasons to be provided for making the Order.

The judicial review petition states ([27]) that “none of the three conditions necessary for making an order under s.35 SA have been properly satisfied”. It also argues for a narrow reading of the s.35 power and that its exercise should be subject to anxious scrutiny ([24], [25]).

Standard of review

The petition argues that the decision-making context in which s.35 sits should frame judicial scrutiny of its exercise. Regard must be had, it says, to:

1. The allocation of policy responsibilities under the Scotland Act;
2. The overall purpose of that Act to establish a stable, coherent and workable system of devolution, at the centre of which is a “self-standing democratically elected legislature with a mandate to make laws for the people of Scotland, within its legislative competence” ([24]);
3. The Memorandum of Understanding (MoU) which is important to securing the stability of the scheme ([24]) by encouraging early notification by the Scottish Government to the UK Government of legislative proposals and early and ongoing engagement between them so that areas of concern can be identified and resolved through discussion before and during the passage of a Bill (MoU, [27]);
4. The broader UK constitutional framework including the fundamental constitutional principle of the separation of powers ([24]).

Against that background, the petition claims, “a power of executive veto of legislation, passed by a democratically elected legislature, which is of the highest legal authority … should be read narrowly and its exercise subjected to anxious scrutiny.”

In cases concerning the compatibility of Holyrood legislation with the Scotland Act – an Act of the sovereign UK Parliament – the Supreme Court has been unsympathetic to arguments grounded in the democratic character of the Scottish Parliament (Treaty Incorporation References, [31], Imperial Tobacco (Inner House), [58] and [62]). However, in other contexts – where sovereignty is not engaged – such arguments have been regarded as relevant to the legal questions before the court. Notably, in AXA, on the respective roles of the courts and the Scottish Parliament, both Lord Hope ([49]) and Lord Reed ([148]) justified their refusal to apply the standard common law grounds of review to devolved primary legislation by reference to its democratic character.

Given that the making of a s.35 Order is not an exercise of sovereign authority, the Scottish Government’s arguments founded on democracy, devolution and the separation of powers might find some purchase in describing and limiting the scope and exercise of this executive veto power.

Inadequate reasons

The mere provision of reasons is not itself sufficient to discharge a statutory duty. Reasons must be proper (Evans, per Lord Mance, [130]), intelligible and adequate (South Buckinghamshire DC, per Lord Brown, [36]). They need refer only to the main issues arising, but they must enable the reader to understand why and how the “principal important issues” of law and fact were resolved. In doing so, they must not reveal a material error in law on the part of the decision maker “for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on rational grounds”. The extent and detail of the reasons required to discharge the duty depend entirely upon the decision-making context (Lord Brown) including the purpose(s) for which the duty exists.

On the decision-making context, at least two factors weigh in favour of a more exacting standard of review than mere rationality. First, as already noted, the Scottish Ministers argue that the constitutional nature of the power demands anxious scrutiny. Second, Elliott and Varuhas have shown that “the more surprising the decision that has been made, the more the court is likely to require by way of reasons” (p 433). Thus, the petition cites the “unprecedented” exercise of the power as requiring anxious scrutiny and places emphasis on the failure of the UK Government to raise concerns in a timely manner during the pre-introduction stage or during the passage of the Bill, in keeping with the MoU and the reasonable expectation established by two decades’ (and 300-plus Bills) worth of practice ([11] and [31]).

On the purposes of the statutory duty, the petition strikes at two of Fordham’s three key “dimensions” to the duty to give reasons. First, Fordham shows that reasons are vulnerable to challenge where they frustrate the purpose of enabling affected parties to understand why a decision is made (p 158). Extrapolating from a planning context, this function also enables affected parties to “assess their prospects” of achieving their objective (Lord Brown, above, [36]) – in this case passing legislation with amendments that maintain the overall policy aim while meeting the concerns of the UK Government. The petitioners argue that the nature of the reasons (i.e. objection in principle to parallel and different regimes) and the failure to identify changes that the UK Government considers necessary ([11]) indicate that the reasons are inadequate. Second, Fordham shows that reasons require anxious scrutiny where they impose a discipline function on the decision-maker – making it necessary to look beyond the “principal conclusions” to the reasoning process itself (pp 163-4). The s.35(2) duty serves a clear discipline function, requiring the Secretary of State to address himself to the right question and not to exercise the power on account of mere policy disagreement. The Scottish Ministers argue, given the lack of timely notification of the UK Government’s concerns, that “the reasons now offered are an after-the-event justification of a decision taken by the Secretary of State which rests upon a policy disagreement” ([31]). To that end – and in light of certain statements by UK Ministers suggestive of a broad policy-based motivation to exercise the veto – the results of any disclosure process might be interesting for what (if anything) they reveal about the decision-making process behind the Order.

Error of law

The petitioners argue that the reasons given do reveal a material error of law on the part of the Secretary of State, namely that the trigger condition for the exercise of the s.35 power – a modification of the law as it applies to reserved matters – has not been satisfied. Although the GRR Bill significantly alters the process by which a GRC can be issued in Scots law, thus (presumably) leading to an increase in the number of GRCs granted (and perhaps also a difference in the composition of GRC-holders in Scotland), the legal effect of a GRC – that holders “[become] for all purposes the acquired gender” – continues to be governed by s.9 GRA, which is unamended by the GRR Bill.  For the Secretary of State, this amounts to an indirect modification of the law as it applies to the reserved matters of fiscal, economic and monetary policy, social security schemes and equal opportunities, which is sufficient to satisfy s.35.  By contrast, the Scottish Ministers argue for a narrower construction that requires direct modification of reserved law.  They argue that the changes made by the GRR Bill are matters within devolved competence, and that s.9 “will continue to operate exactly in the same manner in respect of reserved matters” if the Bill is enacted.  Hence the concerns expressed by the Secretary of State flow from the possession of a GRC and go to scale rather than to the operation of the law, thereby amounting to an error of law.

It has been argued that the Scottish Ministers’ objections confine s.35 so narrowly as to render it nugatory. However, a narrow reading would still catch incidental modifications of reserved laws and general changes to Scots law directly affecting reserved matters, such as changes to sentencing rules. Moreover, the unprecedented use of the power, its constitutional character, and the decision-making context, including the text and spirit of the MoU, lend themselves to the argument that the power is subject to narrow construction and application. The more permissive the courts are of indirect modification as a trigger the less stable and coherent is the settlement as a whole.

Irrationality and irrelevant considerations

The petitioners also claim that the reasons given reveal the decision to have been irrational and based on irrelevant grounds.

As regards irrationality, the petition attacks several of the reasons offered by the Secretary of State as lacking in detail (the impact upon fiscal, economic and monetary policy and social security schemes), lacking in cogency (the impact on IT systems etc), being made in error (the impact on IT systems as relating to the operation of such systems themselves and not to the operation of the law), abstract or hypothetical (the impact on equal pay) or lacking in supporting evidence (the impact on fraudulent applications arising from inadequate safeguards; the impact on the operation of the Equality Act 2010). Although not raised in the petition, an irrationality challenge might arguably also attach to the use of s.35 – by the UK Government’s own description, a measure of “last resort” – when other more collaborative options were available, such as the mooted amendment to the definition of sex in the Equality Act or the use of consequential amendment powers in the Scotland Act (s.104 – a process that Ms Somerville said was under way during the passage of the Bill) or GRA (s.23).

As regards irrelevant considerations, the Scottish Ministers argue that two key reasons for making the Order reflect policy-based objections to the Bill rather than a reasonably held belief that it would have an adverse effect on the operation of the law as it applies to reserved matters. First, the objection in principle to two parallel and different regimes is said to be irrelevant to the exercise of s.35 ([32]). Had the UK Parliament shared concerns in principle about parallel and different regimes then it could have amended the Scotland Act, either to protect the GRA from modification under Sch. 4, or to reserve the policy field of gender recognition to the UK Parliament under Sch. 5. Not having done so, the Scottish Parliament is entitled so to legislate. Second, and flowing from the view that s.35(1)(b) requires a direct modification of reserved law, it is argued that the Secretary of State’s concern about the adequacy of safeguards against fraudulent or malign applications is an irrelevant consideration ([34]). The concern that the legislation could and should better protect, inter alia, occupants of single-sex spaces, users of single-sex services, participants in sports competitions, it is said, amounts to a policy disagreement about how the Scottish Parliament should exercise its legislative competence in relation to devolved matters and not to a concern about adverse effects of the Bill on the operation of the law as it applies to reserved matters.

Conclusion

It will probably be many months before the fate of the GRR Bill is finally settled, since the case seems likely to be appealed all the way to the Supreme Court.  As we have argued, the unprecedented use of s.35 (and the exceptional nature of the power more generally) means that there is considerable uncertainty about how the legal issues will be decided, and of course new issues may arise in the course of the litigation (not least as it reveals more about the decision-making processes leading up to the Order). 

As we have also argued, even if the s.35 Order survives in this case, the Scottish Government would no doubt take consolation from a judicial approach that favours a narrow interpretation of the power, provides for a high standard of review to be applied to its exercise, and imposes an onerous interpretation of the duty to give reasons. Of course, the choice to litigate is not risk free. A judicial approach that prefers a broad interpretation of the power, a high threshold for judicial intervention on reasonableness grounds, or a light touch duty to give reasons might serve to encourage more frequent recourse to s.35, either by encouraging its further exercise or by the UK Government raising the prospect of its exercise to encourage changes during the pre-introduction stages or during the passage of a Bill.

Indeed, the way in which this dispute is resolved could well represent a watershed moment in the history of devolution.  The GRR Bill has been remarkable for the extent to which opponents have sought to make use of arguments about devolved competence throughout the legislative process, and of the opportunities that the devolution legislation affords for “forum-shifting” from the Scottish to the UK level, where their criticisms of the Bill have found a more receptive political audience.  This kind of “weaponisation” of decision-making constraints is no doubt inevitable in any system of constitutionally-limited and multi-level government.  Nevertheless, the UK courts have in the past shown themselves to be sensitive to the fact that, as Lord Hope has said, “the democratic process is liable to be subverted if, on a question of political or moral judgment, opponents of an Act achieve through the courts what they could not achieve through Parliament” (AXA, [49]).  As this case makes its way through the courts, we hope that judges will be equally alive to the dangers to Scottish democracy – and indeed to the central constitutional purpose of devolution – of allowing policy choices allocated to the devolved level to be too easily overturned by the UK Government.

Chris McCorkindale, Reader in Public Law, University of Strathclyde

Aileen McHarg, Professor of Public Law and Human Rights, University of Durham

(Suggested citation: C. McCorkindale and A. McHarg, ‘Rescuing the Gender Recognition Reform (Scotland) Bill? The Scottish Government’s Challenge to the Section 35 Order’, U.K. Const. L. Blog (25th April 2023) (available at https://ukconstitutionallaw.org/))