Claiming gender law block was due to policy row is a red herring, court told

Claiming Westminster blocked gender reforms at Holyrood due to a policy disagreement with Scottish ministers is a “red herring”, a lawyer acting on behalf of the UK government has argued.

David Johnston KC spoke at the Court of Session in Edinburgh on Wednesday to defend the UK government’s use of a Section 35 order of the Scotland Act, which prevented the Gender Recognition Reform (Scotland) Bill from gaining royal assent despite it being passed by a majority of the Scottish parliament.

On Tuesday, the court heard from Lord Advocate Dorothy Bain KC, acting on behalf of Scottish ministers, who said the never-before-used power was triggered because Scottish Secretary Alister Jack “would have legislated differently”.

She said Scottish ministers believed the order was “unlawful” and wanted it dropped.

But the UK government’s legal team rejected that argument, with Mr Johnston saying: “The veto on the grounds of a policy disagreement is a red herring. Whether or not it is a disagreement is simply irrelevant.”

He said the order was not made because the Scottish legislation “diverged” from UK-wide laws, but rather the “effect the divergence would have on reserved law”. Reserved laws are those that only the UK parliament can decide.

Mr Johnston added that the UK government “completely accepts that the Scottish parliament is entitled to make its own legislation and that this is within its devolved power”.

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Instead, he argued Mr Jack had “justified” grounds for using the order against the legislation, which seeks to simplify the process of legally changing gender.

His argument was that only an “unduly narrowly formulistic” view could consider the proposed legislation did not adversely impact reserved equality laws.

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The UK government states the bill “amended or superseded” the 2004 Gender Recognition Act because it alters the meaning of a gender recognition certificate (GRC) by removing the need for a gender dysphoria diagnosis and lowering the application age to 16.

Mr Jack also could not have “rationally” intervened in gender reform legislation prior to its passage through Holyrood due to “fundamental” amendments which were being proposed, Mr Johnston told the hearing, as he could not have known what the full implications of the bill would have been unless amended.

MSPs initially considered 153 amendments to the bill at stage three in a marathon session in Holyrood last year before it was subsequently passed.

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Ms Bain told the court on Tuesday that Mr Jack could have taken other measures, such as informing ministers of his intention to block the policy in advance, or holding an extensive debate in Westminster to scrutinise the block.

Mr Johnston said: “In my submission, one could not have rationally been considered to make a Section 35 order until it was clear what the bill would be, passed at stage three.

“This is not one of those bills that it was so uncontentious where serious fundamental amendments would not be put forward.”

He also said the UK government did not have adequate time to issue a Section 104 of the Scotland Act, which would allow changes to be made to reserved legislation in respect of devolved laws, subject to parliamentary scrutiny.

He said ministers had a four-week time frame to object to the legislation gaining royal assent, which would have made it impossible to complete the Westminster process on time.

The UK government finished putting forward its case shortly after 2.30pm on Wednesday, with the Lord Advocate then given time to reply.

The hearing, being presided over by Judge Lady Haldane, continues.

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