Scottish court rules UK government veto of gender recognition bill lawful
Downing Street’s unprecedented veto of Holyrood’s contentious gender recognition reform bill was lawful, a judge has ruled.
In a ruling that will disappoint LGBTQ+ campaigners and offers a boost to Rishi Sunak at the end of a difficult week, Lady Haldane rejected the Scottish government’s petition to rule the UK government’s section 35 veto – contained in the 1998 Scotland Act, which created the devolved parliament – as unlawful.
Haldane said that, while the challenge to the section 35 order failed, “in so concluding it is important to recognise the novelty and complexity of the arguments and the sophisticated manner in which those arguments were presented before me and from which I derived considerable assistance”.
The bill, which was passed by a cross-party majority in the Holyrood parliament last December, would have made Scotland the first part of the UK to introduce a self-identification system for people who want to change their legally recognised sex.
Earlier this week, the UK government’s women and equalities minister, Kemi Badenoch, announced a “long overdue” update to the list of approved countries from which the UK will accept gender recognition certificates, pledging to exclude those that allow self-identification.
The Scottish secretary, Alister Jack, who made the section 35 order to prevent the bill going for royal assent in January this year, arguing it cut across existing UK-wide equalities legislation, welcomed the decision.
He said: “I was clear that this legislation would have had adverse effects on the operation of the law as it applies to reserved matters, including on important Great Britain-wide equality protections.
“Following this latest court defeat for the Scottish government, their ministers need to stop wasting taxpayers’ money pursuing needless legal action and focus on the real issues which matter to people in Scotland – such as growing the economy and cutting waiting lists.”
Haldane’s ruling is the first judicial test of how a section 35 order can be used and potentially has significant implications for the constitutional balance between Holyrood and Westminster. It was the first time this veto had been used and was described by UK government sources as “the nuclear option”.
The Scottish government has 21 days to appeal against the ruling, with the case expected to end up in the supreme court.
Describing the ruling as “disappointing”, Colin Macfarlane, the director of nations at Stonewall, said: “This bill was one of the most debated in the Scottish parliament’s history and was passed by a resounding majority of MSPs drawn from all major Scottish parties.
“This unfortunately means more uncertainty for trans people in Scotland, who will now be waiting once again to see whether they will be able to have their gender legally recognised through a process that is in line with leading nations like Ireland, Canada and New Zealand.”
Setting out the UK government’s case at a hearing before Haldane in September, David Johnston KC said the principal concern was the interaction between the 2004 Gender Recognition Act, which set up the certification process being reformed by the Holyrood bill, and the Equality Act.
“The changes proposed by the bill amount to a modification of that law because they change the conditions set by the 2004 act for a change of legal sex,” said Johnston.
Scotland’s lord advocate, Dorothy Bain, argued that the bill would leave UK-wide equality law untouched, and the Westminster government’s reasons for blocking it were “almost entirely unsupported by evidence”, arguments that Haldane ultimately rejected.
According to the Scotland Act, a UK secretary of state can block a devolved bill from receiving royal assent if it makes “modifications of the law as it applies to reserved matters” and there are reasonable grounds to believe they would have an “adverse effect on the operation of the law as it applies to reserved matters”.