Views split over challenge to s 35 block of GRR Bill

Opinion has predictably divided on the wisdom of the Scottish Government seeking judicial review of the UK Government's exercise of the power in s 35 of the Scotland Act 1998 to prevent the Gender Recognition Reform (Scotland) Bill going forward to Royal Assent.

In a written answer Social Justice Secretary Shirley-Anne Somerville informed the Scottish Parliament yesterday that the Scottish Government will lodge a petition at the Court of Session against the Secretary of State for Scotland’s use of s 35 for the first time to block a bill passed at Holyrood.

Secretary of State Alister Jack claims the bill, which allows a person to apply to change their legally recognised gender on the basis of their own certification rather than requiring supporting medical opinion, would have a significant effect on the operation of equality law across the rest of the UK.

Ms Somerville said: "The Gender Recognition Reform Bill was passed by an overwhelming majority of the Scottish Parliament, with support from members of all parties.

"The use of s 35 is an unprecedented challenge to the Scottish Parliament’s ability to legislate on clearly devolved matters and it risks setting a dangerous constitutional precedent."

She added: "It is important to have clarity on the interpretation and scope of the s 35 power and its impact on devolution. These matters should be legally tested in the courts."

Campaign group Scottish Trans welcomed the announcement, describing it as "unacceptable" for the UK Government "to seek to block the Scottish democratic process in this way", whereas Susan Smith of the For Women Scotland group  said the Scottish Government was "remarkably foolish" to take legal action over legislation that is "wildly unpopular".

Within the SNP, newly elected First Minister Humza Yousaf was the only one of the three candidates to succeed Nicola Sturgeon who supported a legal challenge. Ash Regan, who also stood, previously resigned from the Scottish Government in order to oppose the bill.

Joanna Cherry KC MP tweeted: "I cannot understand why @scotgov is taking legal action it’s unlikely to win rather than sorting out the problems with the #GRRbill at home. Reform could be effected in Scotland without breaching #equality or #HumanRights law if there was the will so to do.

Other lawyers on Twitter, including Dean of Faculty Roddy Dunlop KC and the SNP's Andrew Tickell (@PeatWorrier), have warned against confident predictions of the outcome – though earlier this year Lord Hope, the Scottish former Deputy President of the UK Supreme Court, described the chances of a successful challenge as "very low".