The Secretary of State for Scotland, Alister Jack MP, has exercised his powers under section 35 of the Scotland Act 1998 to intervene in relation to the Scottish Parliament’s Gender Recognition Reform (Scotland) Bill.

The Bill provides for the introduction of Scottish Gender Recognition Certificates by making significant changes to the Gender Recognition Act 2004. The effect of the Section 35 Order is to prohibit the Presiding Officer of the Scottish Parliament from submitting the Bill for Royal Assent, without which it cannot become law. The Gender Recognition Reform (Scotland) Bill as passed is available here: Gender Recognition Reform (Scotland) Bill (parliament.scot).

Section 35 of the Scotland Act 1998 is not a new provision, but it has never been used until now. The exercise of the power to intervene in certain cases requires that:

• the Secretary of State has reasonable grounds to believe that a Bill would be incompatible with international obligations, or the interests of defence or national security; or
• a Bill would modify the law as it applies to a matter reserved to Westminster under the Scotland Act 1998 and which the Secretary of State has reasonable grounds to believe would have an adverse effect on the operation of the law on a reserved matter.

The UK Government’s statement of reasons in support of its Order explains why the Secretary of State considers that the Bill makes modifications to the law as it applies to reserved matters. The statement of reasons also explains why the Secretary of State considers that the Bill would have an adverse effect on the operation of the law on reserved matters in the following ways:

• the impact of the creation of two parallel and different regimes for issuing and interpreting Gender Recognition Certificates within the UK.
• the impact that removing current safeguards in the Gender Recognition Act 2004 could have on safety, in particular that of women and girls, given what he sees as the significantly increased potential for fraudulent applications to be successful; and
• the impacts on the operation of the Equality Act 2010 that result from the fact that a GRC changes a person’s protected characteristic of sex for the purposes of the 2010 Act, and the expansion of the cohort of people able to obtain a GRC.

The Secretary of State has noted that if “the Scottish Government chooses to bring an amended Bill back for reconsideration in the Scottish Parliament, I hope we can work together to find a constructive way forward that both respects devolution and the operation of UK Parliament legislation”, thus appearing to leave open a door to seek to resolve the divergence in approach.

The First Minister Nicola Sturgeon has responded in the strongest terms, raising broader constitutional issues. In a post on her Twitter account, she described the Section 35 Order as “a full-frontal attack on our democratically elected Scottish Parliament and its ability to make its own decisions on devolved matters. The Scottish Government will defend the legislation and stand up for Scotland’s Parliament. If this Westminster veto succeeds, it will be first of many.”

In order to defend its Bill, the Scottish Government will need to do so by way of a legal challenge to the Section 35 Order, demonstrating that the Bill does not in fact modify the law on a reserved matter and that the Secretary of State did not have reasonable grounds to believe that the Bill would have an adverse effect on the operation of the law on a reserved matter. It will be interesting to see the Scottish Government’s considered response to the Section 35 Order and the issues raised in the UK Government’s statement of reasons, in due course. Notwithstanding that response, given the Scottish Government’s initial reaction to the Section 35 Order, it does indeed appear that this complex matter is now heading for the Courts.

It seems inevitable that cross-border issues will be examined as a necessary part of any legal proceedings on the Bill. Detailed arguments made in Court may also serve to clarify how two gender recognition regimes can operate effectively alongside each other in the same jurisdiction, given the Cabinet Secretary’s clarification to the Scottish Parliament during the Stage 3 debate that the provisions in the Bill will mean that the UK GRC regime will continue to be available in Scotland, even once the proposed Scottish GRC regime is operational.

If nothing else, detailed consideration of the legislation in the Courts will at least provide an opportunity for further authoritative examination of the effects of the various provisions in the Bill, in light of the existence of different legal opinions being cited by commentators.

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