Government's s 35 order reasons prompt further argument

Respected legal commentators have differed over the prospects of success if the Scottish Government takes forward its expressed intention to seek a judicial review of the UK Government's order preventing the Gender Recognition Reform Bill becoming law.

First Minister Nicola Sturgeon described the first-ever use of an order under s 35 of the Scotland Act 1998 as a "direct attack on the institution of the Scottish Parliament", and said her Government would be "defending Scottish democracy" by taking the matter to court.

The UK Government's published reasons for making the order state that it will have an effect on the operation of the law as it relates to reserved matters, this being the Gender Recognition Act 2004 and the Equality Act 2010 as it relates to that Act. The bill alters the "careful balance" between the two pieces of legislation. It also has practical consequences for other reserved matters, most notably the administration of tax, benefit and state pensions managed by integrated systems across the UK that span reserved and devolved functions.

The "adverse effects" it identifies, a precondition for invoking s 35, are grouped into three overall areas of concern:

• Adverse effect of different GRC regimes across the UK. It is "highly problematic both in principle and practically" for someone to have a different gender, and legal sex, depending on where they happen to be in the UK. A dual system would have adverse effects in relation to, for example, single sex associations or clubs, the pubic sector equality duty (which would have to be applied differently in Scotland by a cross-border authority), and equal pay (as it would affect who can be used as a comparator).
• Adverse impacts resulting from increased use of fraudulent applications. The bill removes a number of measures "which the UK Government regards as important safeguards", including the need to evidence having lived in the acquired gender for the necessary period. The Secretary of State does not believe it retains sufficient to mitigate "the risk of fraudulent and/or malign applications", and believes the reformed system "will be open to abuse and malicious actors", with particular concern relating to sex-segregated spaces, services, competitive sports and occupational requirements.
• Adverse effects in relation to the operation of the 2010 Act. These are believed to exist in four areas: clubs and associations, the public sector equality duty, equal pay, and provisions where exceptions apply for both sex and gender reassignment (which again relates to sex-segregated services).

To bring a successful challenge by judicial review, the Scottish Government would likely have to show that the Secretary of State could not reasonably believe that these adverse effects would result. Speaking on the BBC, Lord Hope of Craighead, the Scottish former President of the UK Supreme Court, assessed its chances of success as "very low", and questioned whether it would be a good use of taxpayers' money. Former Lord Chancellor Lord Falconer, however, posted a Twitter thread arguing that the reasons given "do not begin to justify" the use of s 35. "It's a nuclear weapon used in a  minor skirmish", he claimed.