OUULJ Essay Competition Runner-Up (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?

Justices of the Supreme Court, I come before you today to present argument on behalf of the Scottish Government. The issue before us today is as follows. The Scottish Government has brought the case before you in order to determine whether the Secretary of State was entitled, under s.35 of the Scotland Act 1998 (henceforth ‘the 1998 Act’), to block the Gender Recognition Reform (Scotland) Bill (henceforth ‘the Bill’) from receiving Royal Assent. On behalf of the Scottish Government, I will argue that the Secretary of State was not entitled to do so.

First, the requirements that the Secretary of State must meet to validly make the order will be outlined. The 1998 Act sets out the power of the Secretary of State to intervene in certain legislative situations. This power can be exercised if the Secretary of State has reasonable grounds to believe that the Bill would be incompatible with any international obligations or in the interests of defence or national security.[1] These concerns do not arise in the present case. The Bill does not place the Scottish Parliament in contravention of its international obligations, nor does it jeopardise defence or national security.

The second way the Secretary of State is able to intervene is if he has reasonable grounds to believe that the Bill would make adverse modifications of the law which applies to reserved matters.[2] This is the issue at the core of today’s case. Does the Bill modify the law as it applies to reserved matters? Whether the Bill falls under the category of reserved or devolved powers is crucial. 

The list of reserved matters is set out in schedule 5 of the 1998 Act.[3] The structure of the devolution settlement is important to determine the question of whether the Bill is the province of reserved or devolved powers. The structure of devolution which is set out in the 1998 Act is a ‘progressive approach to devolution’, in which evolving powers are delegated to Holyrood.[4] This was seen in Scottish legislation on climate change which passed without challenge.[5]This area of competence was not reserved in the 1998 Act and was therefore delegated to Holyrood. The Scottish Government submits that reform regarding gender reassignment should similarly be delegated to Holyrood. To compare gender reassignment with climate change, both topics are controversial, and inspire different interpretations and approaches from governments. The heated discourse regarding gender reassignment does not mean that it must necessarily be a reserved power.

The approach to devolution set out in the 1998 Act (and evinced in the example of climate change) is one of implicit consent. Westminster implicitly devolves powers to Holyrood, and only reserves them if this is stated explicitly and incorporated within schedule 5 of the 1998 Act. This shows the general trend of devolved competence expanding to meet the demands of modern governance. It reflects the concept of subsidiarity, which places the onus on those seeking to exercise centralised power to illustrate why this is necessary. Devolution is linked to the notion that local decisions should be made by local individuals for better accountability.[6] The UK Government needs to show why they should determine issues of gender reassignment, rather than the Scottish Government.

The Scottish Government therefore submits that gender reassignment is not a reserved matter. Instead, it is an issue devolved for Holyrood to decide. As such, it will now be considered whether the Bill infringes on reserved powers for the purposes of s.29 of the 1998 Act.

The reserved power that is relevant here is Westminster’s ability to legislate on ‘equal opportunities’.[7] S.29 of the 1998 Act sets out that whether the Bill relates to a reserved matter is to be decided with reference to the purposes of the provision, with regard to its effects in all the circumstances. It will first be argued that the Bill has no bearing on the reserved power.

My learned friend for the UK Government may suggest that the Bill will impact the operation of Westminster’s powers regarding ‘equal opportunities’. The Scottish Government responds that this is not the case. Ministers of the UK Government have expressed concerns that the Bill would impact the functioning of the Equality Act 2010.[8] At stage 2 of the legislative proceedings of the Bill, the Scottish Government supported the 15A clause which states: ‘For the avoidance of doubt, nothing in this Act modifies the Equality Act 2010.’[9] The 2010 Act would continue to function unaffected by the Bill.

It is further suggested by the Scottish Government that the impact of the Bill would be limited to Scotland, and would not infringe on the implementation of the Equality Act 2010 across Britain. This is because the ‘pith and substance’ of the Bill does not infringe on the reserved powers.[10] The Bill is concerned with enabling individuals to legally change their gender, which is a devolved power for which Holyrood has legislative competence.

In the alternative, it is submitted that the Bill may indeed impact the equal opportunities reserved power. But, it is submitted that this is not fatal to the Bill. It is maintained throughout this argument that the Bill is not outside of Holyrood’s competence and therefore the Secretary of State was not entitled in exercising his s.35 powers.

It is submitted that the system of devolution created by the 1998 Act is one of necessary overlap. As described by the First Minister of Scotland during the debate about the 1998 Act (which can be brought before the court under the Pepper v Hart rule),[11] there is an area of ‘debatable lands’ over which discussions will occur. But this does not need to be a ‘declaration of legislative civil war’.[12] The implementation of the Bill may indeed cause some overlap with the Equality Act 2010, and this was considered by Holyrood. Holyrood weighed up its commitment to the Equality Act 2010, and has decided to proceed with the Bill. The Bill is an act of proper legislation within a devolved area of responsibility. Slight overlap with Westminster is not catastrophic, nor is it entirely undesirable. It is a necessary consequence of Britain’s system of asymmetrical devolution.

In the House of Lords debate of the 1998 Act in its Bill form, Lord Sewel recognised that a degree of trespass into reserved areas was inevitable.[13] I return again to the ‘pith and substance’ doctrine. It is clear that the purpose of the Bill is gender reassignment. Lord Sewel reflected that, as long as the purpose was a devolved one, a Bill would not be outside legislative competence merely because it affects a reserved matter. Some overlap with the ‘equal opportunities’ reserved power may be inevitable due to the subject-matter of the Bill. But because the purpose behind the bill remains within Holyrood’s legislative competence, it does not go directly to reserved matters.

In Martin, Lord Roger offered a dissent.[14] I bring this to the court’s attention to reinforce my argument that the Bill may involve some overlap with the ‘equal opportunities’ reserved power, but that this does not mean it goes beyond Holyrood’s legislative competence. Lord Roger argued that even if the purpose was valid, Holyrood could not achieve this purpose via a Bill which is invalidated due to interference with one of the other reserved matters.[15] It is maintained that the Bill does not act contrary to the ‘equal opportunities’ reserved power. Westminster implicitly devolved legislative power to Holyrood for gender reassignment. Lord Roger’s dissent correctly states that a Bill that went entirely contrary to the ‘equal opportunities’ reserved power would be invalid. It is submitted that although there is some overlap, the Bill does not go this far. Some overlap is bound to occur due to the complex nature of government: this does not invalidate the Bill.

If the court accepts my first submission – that gender reassignment does not infringe on the reserved power of ‘equal opportunities’ – then there is no basis for the Secretary of State’s s.35 order. But if the court instead prefers my alternative submission – that gender reassignment does overlap with the reserved power – then the Secretary of State must establish that he has reasonable grounds to believe that the Bill would have an adverse effect on the operation of the law as regards the ‘equal opportunities’ reserved power. The Scottish Government submits that no adverse effect is made out, and therefore the Secretary of State had no basis for the s.35 order.

An area which may be affected by the Bill is the implementation of the Equality Act 2010. Concerns on this issue have been set out by the British Government,[16] think tanks,[17] and newspapers.[18] The Scottish Government disputes this. Not only was the 15A clause included, but at stage 3 of the Bill’s scrutiny, the Cabinet Secretary for Social Justice, Housing and Local Government stated that the Bill did not modify reserved provisions in the Equality Act 2010.[19] The effect of obtaining a Gender Recognition Certificate would still maintain the position set out in previous legislation. As such, there is no reasonable grounds to consider that the Bill would have an adverse effect on the operation of the Equality Act 2010. Throughout the debate and drafting of the Bill, the maintenance of the efficacy of the Equality Act 2010 was prioritised.

The Secretary of State may also consider the effect of the Bill on the coherence of the law on ‘equal opportunities’ as a whole. The Equality Act 2010 remains the premier law on this topic, and it is argued above that this has not been altered by the Bill. On the point of the coherence of the general law, however, it is not unheard of for Scotland to have different statutory schemes than England, Wales or Northern Ireland. Divergence in law is already in place in other policy areas. It may be suggested that laws regarding civil rights should be the same across the UK. But this has not always been the case, as evidenced by Northern Ireland’s ban on abortion.[20] Further, it seems wrong to argue that civil rights should be coherent across the UK when other policy areas are unequal, such as Scottish university fees. There is no foundation for the claim that the Bill would adversely affect the coherence of the general law on ‘equal opportunities’.

Therefore, there is no basis on which the Secretary of State would have reasonable grounds to believe that the Bill would have an adverse effect on the operation of the law in relation to ‘equal opportunities’. As such, the Secretary of State had no power to make the order prohibiting the Presiding Officer from submitting the Bill for Royal Assent.

I will conclude with a few words on the constitutional landscape in which this case has been brought. The relationship between Westminster and Holyrood has generally been stable. This case illustrates one of the most significant rifts between the two Parliaments since Holyrood’s creation. The relationship between the two is based on mutual respect, as reflected in the Sewel convention. Conventions are typically seen as politically binding. Although they do not have legal consequences, the political consequences are substantial enough to ensure they are adhered to. The Sewel convention proposes that Westminster not legislate on devolved matters without the consent of Holyrood. By intervening in this matter, Westminster effectively restricts Holyrood’s legislative powers, which have been expressly delegated to it via the 1998 Act. The Scottish Government asks that the court recognise this as equivalent to contravening the Sewel Convention. Although the court cannot order anything as a result, a pronouncement to this effect would be politically powerful.[21] The inability of the Scottish government to legislate (on a manifesto commitment no less) is just as harmful as Westminster legislating for Scotland. Both scenarios see an unwanted agenda foisted on the Scottish people without their consent.

By holding that the Secretary of State had no basis on which to make a s.35 order, the court  reaffirms the power of the Scottish Parliament to legislate, which was granted to it by Westminster. This devolution settlement relies on good faith actors and reasonable decisions. The Secretary of State’s order did not display these attributes, to the detriment of the British Constitution. 

[1] Scotland Act 1998, s 35(1)(a)

[2] Scotland Act 1998, s 35(1)(b)

[3] Scotland Act 1998, sch 5

[4] Alan Page, Constitutional Law of Scotland (1st edn, W Green 2015)

[5] Climate Change (Scotland) Act 2009

[6] HC Deb 28 January 1998, vol 305, cols 356–59

[7] Scotland Act 1998, sch 5, s L2 (‘Equal Opportunities’)

[8] UK Equalities Secretary Kemi Badenoch’s letter to the Scottish Government was leaked to The Times: Oliver Wright and Kieran Andrews, ‘SNP’s self-identity bill could “harm women’s rights in England”’ The Times (9 December 2022)

[9] This amendment was proposed by Labour MSP Pam Duncan-Glancy and  was incorporated into the Bill.

[10] Union Colliery Co of British Columbia Ltd v Bryden [1899] AC 580, 587 (Lord Watson)

[11] Pepper v Hart [1992] UKHL 3

[12] Donald Dewar, HC Deb 29 January 1998, vol 305, col 606

[13] Lord Sewel, HL Deb 21 July 1998, vol 592, col 818, quoted in Martin v Her Majesty’s Advocate [2010] UKSC 10 (Lord Hope)

[14] Martin v Her Majesty’s Advocate [2010] UKSC 10

[15] ibid [77]

[16] See n 7

[17] Michael Foran, ‘The Scottish Gender Recognition Reform Bill: The Case for a Section 35 Order’, Policy Exchange (12 January 2023) 7

[18] Scotsman Comment, ‘Gender Recognition Reform Bill: Nicola Sturgeon's disgraceful attack on critics suggest she has lost the plot – Scotsman comment’ The Scotsman (28 January 2023)

[19] SPICe Briefing, ‘Gender Recognition Reform (Scotland) Bill: consideration prior to Stage 3’ (15 December 2022) 23

[20] The Abortion (Northern Ireland) Regulations 2020

[21] R (on the application of Miller and another) v Secretary of State for Exiting the European Union [2017] UKSC 5