Secretary of State's GRR Bill s 35 order lawful: judge
The Secretary of State for Scotland acted rationally and within his powers under s 35 of the Scotland Act 1998 in blocking the submission of the Gender Recognition Reform (Scotland) Bill for Royal Assent, a Court of Session judge has concluded.
Lady Haldane gave the ruling in refusing a petition for judicial review by the Scottish Ministers which challenged the order giving effect to the Secretary of State's decision as unlawfully made.
As passed by the Scottish Parliament on 22 December 2022, the bill would significantly reform the process for obtaining a gender recognition certificate (GRC) in Scotland, by having applications considered by the Registrar General for Scotland rather than the Gender Recognition Panel, reducing the minimum age of applicants from 18 to 16, reducing the period in which the applicant needs to have lived in their acquired gender from two years to three months, and removing the requirement for a medical diagnosis of gender dysphoria.
Under s 35, the Secretary of State may prohibit a bill of the Scottish Parliament from being submitted for Royal Assent if he has reasonable grounds to believe that the bill contains provisions which (a) make modifications of the law as it applies to reserved matters; and (b) would have an adverse effect on the operation of the law as it applies to reserved matters. This was the time an order under s 35 had been made.
On 17 January 2023 the Secretary of State blocked the bill on the basis that it would modify the law as it applies to reserved matters and would have an adverse effect on the reserved matters of fiscal, economic and monetary policy, social security schemes, and equal opportunities. He issued a statement of reasons citing among other matters the creation of different regimes in Scotland and England & Wales, the impact of removing safeguards on the safety of women and girls, the potential increased risk of fraudulent applications, and the impacts on the Equality Act 2010.
For the Scottish Ministers, the Lord Advocate argued that if the order was allowed to stand, it would follow that the Secretary of State could veto any Act of the Scottish Parliament as having an impact on reserved matters because he disagreed on policy grounds, as he had done in this case. Parliament had not had a proper opportunity to scrutinise the order, and the court could properly step in to review this exercise of executive power.
Section 35 was intended as a "long stop", to be used seldom if ever; its existence should be sufficient to ensure consultation between Whitehall and Edinburgh such that the power ought never to be used in practice. The UK Government had failed to follow the spirit of its memorandum of understanding underpinning its relations with the devolved administrations.
In terms of s 35 itself, the bill did not modify the effect of obtaining a GRC, thus it did not modify the law as it related to reserved matters; in any event it did not have an adverse effect on the operation of the law as it related to reserved matters. That constituted an error of law, as did the alleged effect on the social security system, which contained no gender-specific provisions.
For similar reasons the order was irrational. Reasons given for the bill having adverse effects were unfounded, too speculative, or insufficiently cogent or material. Divergence between the law of Scotland and England in this area was an irrelevant consideration, as was the risk of fraudulent applications, which was a policy choice. The reasons for blocking the bill had to be those contained in the order itself.
Dismissing the petition, Lady Haldane concluded that the evidence before the court did not allow it to infer or conclude that the Secretary of State’s motivation was based on policy. The fact that he had not engaged in advance discussions with the Scottish Parliament regarding the bill was also not relevant. She said the issue for the court was simply whether the conditions in s 35 were satisfied and whether the terms of the order were rational.
The bill did modify the law as it applied to reserved matters. The effect of the redefinition of the terms "full gender recognition certificate" to reflect the new Scottish procedure, looked at objectively, was to change the overall meaning of s 9 of the Gender Recognition Act 2004: "The effect of the amendment to s 25 will be to alter the unqualified continuation in force of s 9 of the 2004 Act. That section has in substance been amended by the bill, and on the basis of the acceptance by the petitioners that s 9 operates as the interface between the bill and the Equality Act, which is within the reserved area of equal opportunities, the first precondition of s 35 has been met, and the section is therefore engaged."
Section 35 was the proper procedure for the Secretary of State to use. It had been suggested by the Lord Advocate that the power in s 104 of the Scotland Act, which permits the UK Parliament to make subordinate legislation to supplement an Act of the Scottish Parliament in order to make it work where an issue of legislative competence arises, was the appropriate one. However, there was no issue with the competency of the bill.
"Where otherwise competent legislation has the effect of modifying the law as it relates to reserved matters, with adverse effects anticipated, as opposed to needing some 'supplement' to make it 'work' in the area of or alongside reserved matters, then the proper procedure is that found in s 35", Lady Haldane stated.
Regarding the Secretary of State's alleged errors, he had taken rational steps to acquaint himself with the relevant facts and material before making the order; there were several documents on the issues with which he was concerned, many of which supported his conclusions. "This is plainly a situation where another decision might have been made with equal propriety, and its predictive nature means that there is possibly no single right answer", Lady Haldane concluded. "The court should intervene only if no reasonable authority could have been satisfied on the basis of the inquiries made that it possessed the information necessary for its decision. I cannot conclude that that limb of the test is satisfied in this case."
Regarding how the law operated in practice, neither the effect of divergence between Scotland and England & Wales, nor the perceived risk of more fraudulent applications, were irrelevant considerations, even if a different conclusion might have been reached.
Adequate reasons had been given: the statement of reasons provided an important part of the context within which the decision was made, and the court was entitled to take it into account. In particular, it made clear that, first, the Secretary of State adopted the appropriate procedure in invoking s 35; secondly, because the bill modified the meaning of "full gender recognition certificate" it did modify the law as it applied to reserved matters; and thirdly, that the reasons provided by the Secretary of State for making the order were rational and adequate.
It followed that the challenge to the lawfulness of the order failed.