Scottish Gender Recognition Legislation Section 35 Order: Judicial Review Outcome

Alister Jack Excerpts

Monday 11th December 2023 Written Statements

[The Secretary of State for Scotland (Mr Alister Jack)]

I welcome the Court’s judgment, which upholds my decision to prevent the Scottish Government’s gender recognition legislation from becoming law. The Outer House of the Court of Session issued its judgment on the Scottish Government’s petition for judicial review on the section 35 Order made with respect to the Gender Recognition Reform (Scotland) Bill on 8 December. The Bill was passed by the Scottish Parliament in December 2022, and in January 2023 I made an Order, under section 35 of the Scotland Act 1998, which prevented the Bill from proceeding to Royal Assent. In April 2023 the Scottish Ministers lodged a petition for judicial review challenging this Order.

The UK Government’s position in the judicial review was set out in our answers to the Scottish Government’s petition and in a note of argument, both of which have been published and I will place them in the Libraries of both Houses. The hearing took place on 19 and 20 September, in the Court of Session in Edinburgh.

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. My decision was about the legislation’s consequences for the operation of GB-wide equalities protections and other reserved matters. As I set out when I made the section 35 Order, transgender people deserve our respect, support and understanding.

The section 35 power was included in the Scotland Act 1998, which established the Scottish Parliament. The power in section 35 of the Scotland Act is not new—it has existed as long as devolution itself. As Lady Haldane noted: “far from being an impermissible intrusion upon the constitutional settlement, section 35 is an intrinsic part of it.”

The section 35 power provides a sensible measure which can be used to ensure that devolved legislation does not have adverse impacts on reserved matters, including on equalities legislation such as the Equality Act 2010.

The power can only be exercised on specific grounds—and the fact that this is the first time it has been necessary to exercise the power in almost 25 years of devolution emphasises that it is not a power to be used lightly.

In the instance of the Gender Recognition Reform (Scotland) Bill, I concluded that the Bill would have serious, adverse effects on the operation of the Equality Act 2010 and other reserved matters. It is for the Scottish Government to consider the next steps for the Bill with the Scottish Parliament.

I will place a copy of the judgment in the Libraries of both Houses, and the full text of the judgment can be found here: https://www.scotcourts.gov.uk/search-judgments/court-of-session.

[HCWS109]