OUULJ Essay Competition Winner (Scottish Government) - Is the Secretary of State entitled, under Section 35 of the Scotland Act 1998, to block the Gender Recognition Reform (Scotland) Bill from receiving Royal Assent?

Is the Secretary of State entitled, under Section 35 of the Scotland Act 1998, to block the Gender Recognition Reform (Scotland) Bill from receiving Royal Assent?

Introduction

Justices of the Supreme Court, I come before you today to present an argument on behalf of the Scottish Government, which seeks to challenge the Order made under s.35(1)(b) of the Scotland Act 1998 (‘SA 1998’) by the Secretary of State for Scotland, preventing the Presiding Officer of the Scottish Parliament from presenting the Gender Recognition Reform (Scotland) Bill 2022 (‘GRRB 2022’) for Royal Assent.[1]

The GRRB 2022, passed by the Scottish Parliament on the 22nd of December 2022, modifies the operation of the Gender Recognition Act 2004 (‘GRA 2004’) in Scotland.[2] It does so namely by: lowering the minimum age at which a person can apply for a Gender Recognition Certificate (GRC) to 16,[3] reducing the time period needed for obtaining a GRC,[4] and removing the gender dysphoria requirement for applicants.[5] The result is a simplified process by which Scottish GRC applicants[6] make a statutory declaration that they intend to live permanently in their acquired gender.[7]

s.35(1)(b) of the SA 1998 provides that a Secretary of State[8] can make an Order to block the Royal Assent of a Scottish Bill if its provisions modify the law as it applies to reserved matters, and the Secretary has reasonable grounds to believe that this modification would have an adverse effect on the operation of the law as it applies to reserved matters.[9] The 2023 Order lays out that the Secretary of State believes that the provisions of the GRRB 2022 would modify the GRA 2004[10] in its application to key reserved matters, notably ‘equal opportunities’ under the Equality Act 2010 (‘EA 2010’), and that this modification would have an adverse effect[11] on the operation of the law in reserved matter areas.[12] It is clear, therefore, from the legislative framework, and from the Secretary of State himself,[13] that this provision must be exercised only in those limited circumstances enumerated by s.35(1)(b), on an informed[14] and reasonable basis.

The Scottish Government thus challenges this Order through two submissions.

Firstly, the Scottish Government contends that the GRRB 2022 does not contain provisions which modify the law as it applies to the reserved matters, principally since it modifies the gender recognition procedure for Scotland without modifying the operation of the EA 2010, and thus does not have an adverse effect on the operation of the law in the reserved matter area of “equal opportunities.”

Secondly, if your Lordships do not accept this first submission, the Scottish Government submits that the Secretary of State did not have the stipulated “reasonable grounds” to believe that those modifications made by the GRRB 2022 would have an adverse effect on the operation of the law as it applies to reserved matters, thus rendering the decision unreasonable and unlawful, given the evident lack of serious inquiry into the impacts of the GRRB 2022 system by the Secretary of State, in conjunction with the irrelevant considerations upon which the decision was made.

 

Submission I

The Order, alongside the Statement of Reasons,[15] explains the grounds on which the Secretary of State believes that the Bill modifies the law as it applies to reserved matters. In particular, given that the Bill’s provisions ‘significantly alter how an applicant can be issued with a GRC under Scots law’,[16] the simplified process will have the effect of allowing an individual to change the sex that they have as a protected characteristic for the purposes of the EA 2010 more easily, thereby modifying[17] the reserved matter of ‘equal opportunities’.[18] Furthermore, this simplified process ‘has practical consequences’ on 'the administration of tax, benefit and State pensions managed by the integrated systems across the UK that span reserved and devolved functions',[19] thereby modifying the law in the reserved matters of ‘fiscal, economic and monetary policy’[20] and ‘social security schemes’.[21]

The Scottish Government thus argues that the GRRB 2022 does not modify the law ‘as it applies to reserved matters’, and consequently that there is no ‘adverse effect’[22] on the law of these matters, since gender recognition is a devolved matter and does not affect the operation of reserved matter legislation, specifically the EA 2010. This is due to the fact that the reform introduced by the Bill neither per se, nor as a direct practical effect, modifies the operation of ‘equal opportunities’ provisions under the EA 2010, as well as the fact that the Bill’s implementation of Scotland’s international obligations places its provisions and effect well within the designated legislative competence of the Scottish Parliament.

s.126 of the SA 1998 defines ‘modify’ as including ‘amend or repeal’, meaning therefore that ‘a protected enactment will be modified by a later enactment, even in the absence of express amendment or repeal, if it is implicitly amended, disapplied or repealed in whole or in part.’[23] s.29(2)(b) states that provisions of a Scottish Bill which ‘relate to’ reserved matters are outside of this legislative competence. The UKSC has held that a provision relates to a reserved matter if it has ‘more than a loose or consequential connection with it’[24] and that in determining this, one must first understand the scope of the matter which is reserved, and then by reference to the purpose of the provisions under challenge,[25] having regard among other things to their effect in all circumstances, including practical effects.[26] The UKSC has however also clarified that Scottish Bills can remain within the Scottish Parliament’s legislative competence and may still modify the law ‘as it applies to reserved matters’, by modifying the devolved law in such a way as to change its ‘operation’ in relation to reserved matters.[27] 

The GRRB 2022 explicitly modifies the GRA 2004, through the insertion of new clauses relating to the operation of the new GRC procedure in Scotland.[28] However, gender recognition is a devolved matter as the GRA 2004 was in fact extended to Scotland through the use of a Legislative Consent Motion.[29] This status was explicitly confirmed by the UK Government’s Consultation on Reform of the GRA 2004 (2018), which stated that ‘Scotland can have its own system for gender recognition if it wants to’.[30]

The proposed change under the GRRB 2022 does not, however, modify ‘equal opportunities’ under the EA 2010, contrary to the Secretary of State’s contention. Firstly, not only does the definition of ‘equal opportunities’ provided by Schedule 5, Part II, Head L, §L2 of the SA 1998 exclude gender reassignment,[31] but s.15A of the Bill also explicitly states that ‘for the avoidance of doubt, nothing in this Act modifies’ the EA 2010. Naomi Cunningham,[32] however, argues that this provision is vacuous – if the ‘equal opportunities’ provisions of the EA 2010 are understood as creating a locked door to which only a few people have a key, ‘the Bill proposes to … manufacture thousands of extra keys to the door, and hand them out to pretty much anyone’. Yet this criticism is weak, given that the effect of increasing the number of people eligible to receive a GRC[33] does not mean that the operation or provisions of the EA 2010 will be modified, nor will it alter devolved law on gender recognition in such a way as to change its operation in relation to the reserved matter of equal opportunities (Miller).[34] This was made clear by Shona Robinson,[35] who emphasised that the effect of obtaining a GRC as set out in s.9 of the GRA 2004 ‘has been the case for 18 years, and remains the same’,[36] under the regime proposed by the GRRB 2022. Wagner further emphasised this point, writing that the reasons provided by the Secretary of State are insufficient ‘to say that the ‘careful balance’ of the [EA 2010] has been altered’ - rather, it is ‘more about how the law is applied’.[37], demonstrating that the provisions of the Bill per se would not give rise to functional moderations of EA 2010 provisions, and cannot therefore, under the current devolution regime, be considered to relate to or modify ‘equal opportunities’ matters. If the UK Government is concerned that the manner in which the Bill’s provisions are applied will render ‘equal opportunities’ provisions less effective, then it is able to address this concerns through statutory guidance and dialogue with the Scottish Government (as the devolution settlement intended). Such concerns do not, ultimately, justify the use of a s.31(5)(b) Order, since the carefully defined provisions of the GRRB 2022 are within the legislative competence of the Scottish Parliament, to legislate for its own system of gender recognition. Such analysis also suggests that the purpose and effect of the Bill’s provisions are altering the GRC application process to increase the number of those eligible to receive a GRC, implying that they share merely a ‘consequential’ connection with the reserved matter[38] and thus meaning that they cannot be considered as relating to it for the purposes of the SA 1998. 

Michael Foran[39], in response to the above argument, points to the decision of Lady Haldane in For Women Scotland[40] which concerned the definition of ‘woman’ under statutory guidance to a 2018 Act of the Scottish Parliament. Lady Haldane dismissed the petitioners, concluding that the broad ‘founding principle’ of the GRA 2004 means that ‘sex’ as defined by the EA 2010 is not limited to biological sex, and includes those in possession of a full GRC. Therefore, Foran argues that so-called ‘Scottish GRCs’ would be valid across the UK and would thus modify the ‘equal opportunities’ duties – preventing schools from discriminating against biological males who are legally female by reason of a GRC, and granting biological males a right of access to women only clubs and associations[41]. Foran’s justifications, however, contradict his main argument. In For Women Scotland, Lady Haldane notes that the 2010 EA was drafted ‘in full awareness’ of the GRA 2004 ‘and its ambit’ – crucially, that upon the issuing of a full GRC, the person’s gender becomes for all purposes their acquired gender.[42] It follows that when defining terms such as ‘sex’ and ‘woman’, ‘the drafters did so with the benefit of that knowledge’, and specifically did not choose to specify the meaning of either of those terms as relating to biological sex.[43] It is therefore clear that the GRRB 2022 would not modify ‘equal opportunities’ law – the drafting of the EA 2010 in full knowledge of the GCR 2004’s provisions, implies that the pre-existing national legislative framework would already allow for legal, as well as biological women, to benefit from equal opportunities policies. The GRRB 2022, whose provisions as aforementioned would merely increase the number of eligible GRC candidates in Scotland, does not amount to a modification of the law surrounding ‘equal opportunities’.

With this interpretation, a similar argument can thus be applied to the other two ‘reserved matters’. If the UK Government wishes to modify these areas of law so as to increase the number of biological sex-based spaces, or even legislate to alter gender recognition in Scotland, then parliamentary sovereignty permits it to do so – it does not, however, permit the blocking of the GRRB 2022 under s.35(1)(b).

It must also be noted in this submission that the implementation of international obligations, obligations under the ECHR, or obligations under EU law is not a reserved matter, and thus legislation passed by the Scottish Parliament in order to do so is not outside of its legislative competence.[44] During the final consultation period for the Bill, the UN Independent Expert on Gender Identity provided testimony to the Scottish Parliament in support of adopting the GRRB 2022, stating that it would bring ‘the Scottish system closer to conformity’ with the standards and obligations enumerated by the UN Human Rights System, in particular the principle of self-identification.[45] Whilst the UK Government has made clear its political position against self-identification, the fact that the GRRB 2022’s provisions seek to implement international obligations, means that they ultimately relate to a devolved matter, preventing the Secretary of State from using a s.35(1)(b) Order.

Of course, in spite of s.28(8) SA 1998,[46] and the naturally consolidating divergence of Scottish policy under devolution,[47] the UK Government is permitted to legislate against self-identification in Scotland – but this must be achieved through an Act of Parliament, not through a s.35(1)(b) Order.

 

Submission II

The standard of review for administrative decisions always depends on the context of the decision itself.[48] It is therefore the contention of the Scottish Government that the Secretary of State for Scotland’s decision must be intense with ‘relatively little deference … to the UK Government’,[49] on the basis of the section’s power to veto primary legislation of the Scottish Parliament, as well as the requirement for the Secretary of State to have ‘reasonable grounds’ to believe that the Bill’s provision would have an adverse effect on reserved matters of law. Parliament’s inclusion of such a requirement is arguably indicative of its intention that decisions made under s.35 are reviewed at this standard of reasonableness. This contention is supported by, inter alia, Colm O’Cinneide, who argues that heightened reasonableness would be appropriate given ‘the scale, nature and impact’ of the GRRB 2022.[50]

Subsequently, this heightened standard in conjunction with the meaning of the language used in s.35(1)(b), supports the Scottish Government’s contention that the Secretary of State lacked reasonable grounds to make this Order. This is evident from the Secretary of State’s failure to make a sufficient and reasoned inquiry into the impact of the GRRB 2022’s system on the ‘reserved matter areas’ of concern, as well as the irrelevant (and politically charged) considerations with which the Order was evidently made.

It is clear from the concerns in the Order surrounding “the impacts that removing safeguards could have on safety, in particular that of women and girls, given the significantly increased potential for fraudulent applications to be successful[51]” that he has failed to inquire into the impact of a system such as one proposed under the GRRB 2022 on existing equality legislation. This is given the fact that there is a plethora of well-document and accessible evidence from countries such as Ireland,[52] Malta[53] and Argentina[54] that self-identification systems rarely lead to rises in fraudulent applications, or abuses of single sex-based provisions designed to protect principally women and girls. Notably the head of the UN Women’s programme against gender based-violence in Argentina, Carla Majdalani, has stated that the introduction of so-called “self-ID” systems for transgender people has not contributed whatsoever towards an increase in violence towards women and girls. This is further emphasised by the fact that a majority of women’s groups, including women’s shelter charities, supported the reform enacted by the GRRB 2022, during the two consultation stages for the Bill – underlining that neither the Bill’s provisions per se, nor their intended or anticipated practical effects, would endanger the safety of vulnerable women and girls.[55] Thus, faced with this abundance of objective evidence, none of which is directly countered or addressed by the Order, the Secretary of State has thus arguably failed to ‘take reasonable steps to acquaint himself with the relevant information’[56] and conduct ‘a sufficient inquiry prior to making his decision’,[57] as is required at this standard of review, thereby rendering the decision taken under s.35(1)(b) unlawful.

Furthermore, given the fact that the statutory requirement for reasonable grounds must be considered objectively by a court.[58], the Scottish Government submits that the Secretary of State’s grounds for making the Order were objectively unreasonable, given that a decision-maker’s consideration of irrelevant matters renders a decision unreasonable[59]. As exemplified by the absence of any serious inquiry as to the effects of the GRRB 2022 by the Secretary of State, and bolstered by the political opposition to both advanced Scottish devolution, and so called ‘self-ID’ systems for transgender individuals, amongst senior members of the UK Government,[60] it can be argued that the Order was made as a result of an unreasonable and politically charged decision by the Government, rather than an objective belief in the adverse impact on the operation of the provisions in relation to reserved matters. The lack of reference to the aforementioned evidence above in either the Order or the Statement of Reasons demonstrates the likelihood that, rather than the weakly justified concerns in the Government documents, the decision to block the Bill was made on irrelevant considerations – such as a desire to quell Scottish devolved legislative divergence, or to further voice the UK Government’s opposition to an expansion of transgender rights. This decision therefore represents the archetypal essentially ‘political judgement’[61] warned of during the legislative debates surrounding s.35, and to which the conventional response was intended to be ‘consultation between Whitehall and Edinburgh’.[62] In fact, for the specific issue of gender recognition, the 2018 Government Consultation held that Whitehall was ‘committed to working closely with the Scottish Government on the … implementation of its proposals’ – demonstrating that this decision, amounting to a refusal to engage in consultation with Edinburgh, lacked reasonable grounds to be made, and thus under the statutory and administrative regime was, by nature, politically motivated and therefore unreasonable.

It must be noted that the UK Government is entitled to legislate to give effect to such views, as parliamentary sovereignty provides – such legislation, as aforementioned, could still extend to Scotland in the absence of a Legislative Consent Motion. However, the requirement of reasonable grounds listed in s.53(1)(b), which must be made objectively upon the basis of a serious inquiry by the Secretary of State, means that the making of such a decision on political grounds, as the Secretary of State has evidently done in relation to the GRRB 2022, is unlawful.

 

Conclusion

In conclusion, the above submissions have demonstrated that the Secretary of State is not entitled to block the GRRB 2022 from Royal Assent under s.35 SA 1998. It is evident that the Bill’s provisions are firmly within the legislative competence of the Scottish Parliament as they neither relate to, nor modify, the reserved matters identified – and it falls to the UK Government to achieve its desired outcome through an Act of Parliament, rather than under the power in s.35(1)(b). Furthermore, the Secretary of State lacks objective reasonable grounds to believe that the Bill’s provisions would have an adverse effect on the operation of the law as it applies to reserved matters, since the evident lack of inquiry made surrounding the Bill’s actual impacts is not only unlawful, but indicates a political motivation for the Order that is in line with the UK Government’s current stances on devolution and transgender rights, and subsequently inappropriate for an administrative decision. The Order is thus unlawful.

 

 

[1] Gender Recognition Reform (Scotland) Bill (Prohibition on Submission for Royal Assent) Order 2023 SI 2023/41, 17th January 2023.

[2] SNP Manifesto 2021 : Scotland’s Future, Edinburgh, pg. 31.

[3] Gender Recognition Reform (Scotland) Bill 2022 [as passed], s.2.

[4] ibid.

[5] ibid & Schedule, Part 1, s.9(e)(ii).

[6] Defined by s.2 of the Gender Recognition Reform (Scotland) Bill 2022 [as passed] as having either their names appear on a Scottish birth register, or being ordinarily resident in Scotland. 

[7] ibid.

[8] Lord Sewel stated in HL Deb 28 July 1998 Vol. 592 c1395 [Scottish Bill] that exercising powers under s.35 would be applicable to ‘any Secretary of State’.

[9] Those listed in Schedule 5 of the SA 1998, as areas of law on which only the United Kingdom Parliament can legislate.

[10] Schedule 2, s.1-s.3 SI 2023/41.

[11] Schedule 2, s.4-s.5 SI 2023/41.

[12] Schedule 2, s.11-s.12 SI 2023/41.

[13] Oral Statement by Scottish Secretary Alister Jack to the House of Commons in relation to the Gender Recognition Reform (Scotland) Bill, 17th January 2023.

[14] R(Plantagenet Alliance Ltd.) v Secretary of State for Justice [2014] EWHC 1662 (Admin) [99]

[15] Equality Hub, Office of the Secretary of State for Scotland, Government Equalities Office, (Policy statement of reasons on the decision to use section 35 powers with respect to the Gender Recognition Reform (Scotland) Bill, 17th January 2023), Part 1, para. 2-5.

[16] Schedule 2, s.1 SI 2023/41.

[17] Schedule 2, s.2, SI 2023/41.

[18] Scotland Act 1998, Schedule 5, Part II, Head L, §L2, defined as ‘the prevention, elimination or regulation of discrimination between persons on grounds of sex or marital status, on racial grounds, or on grounds of disability, age, sexual orientation, language or social origin, or of other personal attributes, including beliefs or opinions, such as religious belief or opinions’.

[19] Scotland Act 1998, Schedule 2, s.8, SI 2023/41.

[20] Scotland Act 1998, Schedule 5, Part II, Head A, A.1.

[21] Scotland Act 1998, Schedule 5, Part II, Head F, F1.

[22] These would subsequently concern the ‘wisdom’ of the legislation, rather than its legal competence (Attorney General and Advocate General’s Reference [2018] UKSC 64, [33]).

[23] Attorney General and Advocate General’s Reference [2018] UKSC 64, [51].

[24] Martin v Most [2010] UKSC 10, [49].

[25] Imperial Tobacco Ltd. v The Lord Advocate [2012] UKSC 61 [26].

[26] First confirmed In re Agricultural Sector (Wales) Bill [2014] UKSC 43 [50], held explicitly to apply to Scottish Bills in Lord Advocate’s Reference [2022] UKSC 31.

[27] Miller v HM Advocate [2010] UKSC 10 [177].

[28] Gender Recognition Reform (Scotland) Bill 2022 [as passed], s.2.

[29] A motion by which Scottish Parliament permits an Act’s provisions relating to devolved areas to apply to Scotland, see Scottish Parliament motion S2M099813, 4th February 2004.

[30] Minister for Women and Equalities, Reform of the Gender Recognition Act:Government Consultation (July 2018) < https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/721725/GRA-Consultation-document.pdf> accessed 24th May 2023, para 160.

[31] See n 19.

[32] Naomi Cunningham, ‘New clause 15A of the Gender Recognition Reform (Scotland) Bill : a chocolate fireguard?’ (Legal Feminist, 27th November 2022) <https://www.legalfeminist.org.uk/2022/11/27/new-clause-15a-of-the-gender-recognition-scotland-bill-a-chocolate-fireguard/> accessed 22nd May 2023.

[33] The miniscule change of this increase must be emphasised here. The Scottish Government estimates that under the GRRB 2022, the number of applicants for a GRC would increase to 250-300 a year, whilst it is currently estimated that under the GRA 2004, around 25-40 people a year born or adopted in Scotland are granted a GRC (SPICe Research, Gender Recognition Reform (Scotland) Bill, 10th March 2022).

[34] See n 29.

[35] Cabinet Secretary for Social Justice, Housing and Local Government (2021 – 2023).

[36] SPICe Briefing, Gender Recognition Reform (Scotland) Bill : consideration prior to stage 3, 15th December 2022, pg. 23.

[37] Adam Wagner [@AdamWagner1], 17th January 2023, https://twitter.com/adamwagner1/status/1615395007262752770?s=12&t=NHOGB4FkobmK5tIKi12IiQ> accessed 23rd May 2023.

[38] Imperial Tobacco (n 26).

[39] Michael Foran, ‘Sex, Gender and the Scotland Act’ (UK Constitutional Law Association Blog, 21st December 2022) <https://ukconstitutionallaw.org/2022/12/21/michael-foran-sex-gender-and-the-scotland-act/> accessed 22nd May 2023.

[40] For Women Scotland Ltd v L;ord Advocate [2022] CSOH 90.

[41]  Foran, ‘The Scottish Gender Recognition Reform Bill, The Case for a Section 35 Order’, Policy Exchange, January 2023, pg. 7.

[42] Foran (n 40) [50].

[43] ibid. Notably contrary to the advice provided by the Equality and Human Rights Commission, see Baroness Falkner, ‘Letter to the Minister for Women and Equalities, 3rd April 2023’. <https://www.equalityhumanrights.com/sites/default/files/letter-to-mfwe-definition-of-sex-in-ea-210-3-april-2023_0.pdf> accessed 24th May 2023).

[44] Scotland Act 1998, Schedule 5, Part I, Paragraph 7(2)(a).

[45] Mandate of the Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity, United Nations Human Rights : Office of the High Commissioner, Geneva, 16th December 2022.

[46] Puts the ‘Sewel Convention’ on legislative footing, although this still permits the UK Parliament to legislate in devolved areas for Scotland.

[47] Aileen McHarg, ‘Devolution in Scotland’ in Jeffrey Jowell and Colm O’Cinneide, The Changing Constitution (OUP, 2019).

[48] Kennedy v Charity Commissioners [2014] UKSC 20 [51].

[49] Paul Daly, ‘Reviewing the Lawfulness of the UK Government’s section 35 Order’ (Paul Daly: Administrative Law Matters, 18th January 2023) <https://www.administrativelawmatters.com/blog/2023/01/18/reviewing-the-lawfulness-of-the-uk-governments-section-35-order/> accessed 22nd May 2023.

[50] Colm O’Cinneide, [@colmcinneide], 18th January 2023<https://twitter.com/colmocinneide/status/1615507863635644416> accessed 22nd May 2023.

[51] Schedule 2, s.4(b) SI 2023/41

[52] Richard Köhler, Self-Determination Models in Europe : Practical Experiences, TGEU, 2022.

[53] Thematic Report on Legal Gender Recognition in Europe, Council of Europe, June 2022.

[54] ‘Do trans self-ID laws harm women? Argentina could have the answers’, Openly News, 1st June 2022 < https://www.openlynews.com/i/?id=21757767-4909-4844-922f-41903ff042f8> accessed 23rd May 2023.

[55] Katy Montgomerie speaking to Lewis Goodall on ‘The Union and Gender politics collide’, The News Agents Podcast (17th January 2023).

[56] Secretary of State for Education and Science v Tameside MBC [1977] AC 1014, at pg.1065.

[57] Plantagenet Alliance Ltd (n 14).

[58] Liversidge v Anderson [1942] AC 206, at pg. 288.

[59] Associated Provincial Picture Houses Ltd. v Wednesbury Corporation [1948], at pg. 228.

[60] Reform of the Gender Recognition Act:Government Consultation (n 31) para 162.

[61] HC Deb 12 May 1998 Vol 312 c246-265 [Power to Intervene in Certain Cases].

[62] HL Deb 28 July 1998 Vol 592 c1392 [Scotland Bill].