OUULJ Essay Competition Winner (UK 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, the issue before us is as follows. In 2022, the Scottish Parliament passed the Gender Recognition Reform (Scotland) Bill (‘the Bill’) which sought to amend the Gender Recognition Act 2004.[1] The Bill would reform the process by which persons in Scotland may obtain a gender recognition certificate (GRC) which legally recognises that a person’s gender is not that which they were assigned at birth.[2] It would modify the 2004 Act by, inter alia, lowering the age at which individuals may apply to Registrar General for Scotland for a GRC from 18 to 16, and removing the requirement that the individual has or has had gender dysphoria.[3] Thereafter, the Scottish Secretary issued the Gender Recognition Reform (Scotland) Bill (Prohibition on Submission for Royal Assent) Order 2023 (‘the Order’), pursuant to section 35 of the Scotland Act 1998 (‘s35’), preventing the Bill from gaining royal assent and thus from coming into effect.[4] The Scottish Ministers have since issued a petition for judicial review of this decision (‘the Petition’).[5] As counsel for the UK Government, I submit that the Scottish Secretary has lawfully exercised his power under s35. Relevant political conventions are not engaged, nor would they bar the Scottish Secretary’s Order if engaged. 

S35 of the 1998 Act

S35(1)(b) enables the Scottish Secretary to make an Order prohibiting the Presiding Officer from submitting the Bill for royal assent if it contains provisions which make modifications of the law as it applies to reserved matters, and he has reasonable grounds to believe they would have an adverse effect on the operation of the law as it applies to reserved matters. S35(2) requires the order to identify the Bill, the provisions in question, and state the reasons for making the order.[6] 

i) Statutory interpretation

The first point of consideration is how the courts should interpret s35. In the Petition, it is argued that s35 should be construed narrowly having regard to, inter alia, the Scotland Act’s purpose of establishing a stable and coherent scheme of devolution and the 2013 Memorandum of Understanding (‘MOU’) between the UK Government and the devolved administrations.[7] This view is unsupported by recent authority. It may find resonance with Lord Bingham’s speech in Robinson that the devolution statutes should ‘be interpreted generously and purposively, bearing in mind the values which the constitutional provisions are intended to embody.’[8] A ‘generous and purposive approach’ may entitle the courts to construe s35(1)(b) and s35(2) as imposing more onerous restrictions on the Scottish Secretary’s power in light of the values of constitutional stability and respect for Holyrood’s democratic mandate that the 1998 Act intends to embody. However, the courts have long retreated on this position, with the Supreme Court affirming in Reference by the Lord Advocate of devolution issues under paragraph 34 of Schedule 6 to the Scotland Act 1998 that all legislation should be construed ‘according to the ordinary meaning of the words used’.[9] The ‘ordinary meaning’ approach to interpretation requires the courts to allow any use of s35 that conforms with the plain meaning of s35(1)(b) or s35(2), even if those statutory requirements are so lenient or lacking as to run against the aforementioned constitutional values.

ii) ‘Makes modifications of the law as it applies to reserved matters’

The Order states that the Gender Recognition Bill modifies the Gender Recognition Act 2004 as it applies to the reserved matters of ‘fiscal, economic and monetary policy’, ‘social security schemes’ and most prominently, ‘equal opportunities’ through its interaction with the Equality Act 2010.[10] 

In the Petition, it is argued that s35 has not been lawfully exercised as the Bill does not alter section 9 of the 2004 Act, which provides that where a full gender recognition certificate is issued to a person, the person’s gender becomes for all purposes the acquired gender.[11] This is merely a red herring. As confirmed in For Women Scotland v The Scottish Ministers, the 2004 Act creates a detailed mechanism by which a GRC entitles an individual to be recognised by their acquired gender not merely as a matter of ‘symbolism’, but in the eyes of all UK law. Thus, it ‘scarcely be clearer’ that GRCs alter one’s sex for the purposes of the 2010 Act.[12] Changing the scope of individuals who may receive a GRC and the process by which they may do so modifies the law on gender recognition as it applies to the operation of the Equality Act 2010 and provisions relating to the administration of benefits and pensions under the 2004 Act.[13] The Petition alleges that this modification would amount to no more than an effect on IT systems.[14] Even if true, this is immaterial—s35 does not set a benchmark for how significant the modification in law must be to entitle the Scottish Secretary to exercise their veto and merely provides that there must be a modification of the law.  It may be undesirable that the plain words of the 1998 Act entitle the Scottish Secretary to intervene in Holyrood’s legislation even if it does not make material or significant modifications to the law as it applies to reserved matters—this approach clearly prioritises a uniform application of the law on reserved matters while leaving notions of devolved autonomy in the backseat. Nonetheless, as above, the ‘ordinary meaning’ approach to interpretation leaves the courts unable to diverge from plain statutory language on the basis of its incoherence with constitutional principle.

iii) ‘Reasonable grounds to believe that the provisions would have an adverse effect on the operation of the law as it applies to reserved matters’

Where legislation requires a decision-maker to provide reasons for their decision, its validity is ordinarily conditional upon adequate reasons being provided.[15] When assessing whether reasonable grounds have been provided, the reasons for a decision must be intelligible and adequate, enabling the reader to understand why the matter was decided as it was.[16] The decision-maker must take into account relevant consideration, but the weight to be given to each relevant consideration is up to the discretion of the authority.[17]

The Scottish Secretary’s reasons for believing the provisions of the Gender Recognition Bill would have such an effect included, inter alia, that they would create divergent gender recognition schemes in the UK and that it would increase the risk of fraudulent or malign GRC applications.[18]

The Petition raises several objections concerning relevance and rationality. Its first claim concerning relevance is that the divergence of gender recognition schemes in Scotland versus the rest of the UK is irrelevant because Westminster, having permitted Holyrood to amend the 2004 Act, has permitted this divergence.[19] This interpretation is so narrow as to render s35 void. If the Petition is right to say that legislative change falling within Holyrood’s legislative competence precludes the use of s35, that would make s35 applicable only to Bills which lie outside of Holyrood’s legislative competence. Such an interpretation would render s35 redundant, since it would have no function other than to block the passage of Bills that would be struck down by the courts in any case. The explanatory notes of the Scotland Act, while themselves not legally binding, demonstrate that this interpretation is impossible—it is expressly recognised that s35 can be exercised over legislation enacted by Holyrood ‘even although it is within its competence’.[20] The converse view is more accurate—by allowing the Scottish Secretary alone to invoke s35, Westminster has accounted for the possibility that the Scottish Secretary’s judgment may differ from its own. 

The Petition further objects that the Scottish Secretary’s concerns regarding fraudulent or malign applications are irrational because it lacks evidential grounding. While Holyrood found no evidence that the Bill would cause an increase in fraudulent applications, the Scottish Secretary’s concerns are not contingent upon such an increase materialising.[21]Per s10 of the Order, the Scottish Secretary’s precise concern is that the reformed system will be open to abuse and malicious actors, leading to the risk of people excluding themselves from sex-segregated settings.[22] This claim is only contingent upon the public perceiving a risk of abuse, which may materialise even if there are no malign applications made. The Equalities, Human Rights and Civil Justice Committee’s May 2022 Report on public responses to the Bill reflects that members of the public were indeed concerned that the Bill would increase the risk of malign applications, resulting in ‘risk to safeguard[s] of single-sex spaces.’[23] While the public’s response itself is grounded on an irrational view of the effects of the Bill, the Scottish Secretary’s concern that the public will respond adversely to the Bill is not. The fact that specific evidence was not mentioned in the Order is immaterial; statements of reason need only be made in detail ‘sufficient to enable the reader to know what conclusion [has been] reached on the ‘principal important controversial issues’.[24] Further, the Order demonstrates reasonable grounds to believe that the Bill would create divergent schemes of gender recognition in the UK, resulting in a lack of clarity for GRC holders, service providers, employers, etc, since the Bill does not account for whether an individual holding a Scottish GRC would be recognised by their acquired gender in all parts of the UK outside Scotland.[25] This reasoning is intelligible and adequate, enabling the reader to understand why s35 was invoked.

iv) The order must identify the Bill and the provisions in question and state the reasons for making the order

Given the analysis above, the requirements of s35(2) have also been met. Schedule 1 of the Order identifies the provisions of the Gender Recognition Bill which modify the law as it applies to reserved matters, and Schedule 2 states the reasons for making the Order. 

The Sewel Convention and the MOU

Conventions refer to the non-legal rules which shape how constitutional power is exercised.[26] The Sewel Convention, as codified in section 2 of the Scotland Act 2016, reads that ‘it is recognised that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament’.[27] 

With reference to section 2 of the 2016 Act, the Sewel Convention has not been engaged. Section 2 as presently phrased concerns only legislation that is made by Westminster, and not exercises of power pursuant to said legislation. Further, s2 only accounts for the ‘normal’ treatment of devolved legislation, accommodating the possibility that Westminster will legislate on devolved matters in exceptional circumstances.[28] It is entirely possible that s2 has not fully codified the Sewel convention as understood by all constitutional actors. Per Twomey, codified conventions fail to account for disputes over their meaning in political reality, or to keep up with the evolution of conventions over time.[29]Clear writes that, on one view, the Sewel Convention goes much further than s2 and requires broadly that the decisions of devolved legislatures are respected by the UK Government.[30] However, a more expansive view of the convention is a matter of political argument which would not find purchase in a court of law. 

Even if the Sewel Convention were engaged, it would not bar the operation of s35 in law. In Miller, the Supreme Court affirmed that ‘[i]t is well established that the courts of law cannot enforce a political convention’.[31] The Sewel Convention is at best a basis for political criticism of the Scottish Secretary’s decision, but not a legal barrier to it. Similarly, while the Petition states that the UK Government’s failure to provide earlier notice of their intention to invoke s35 runs against the spirit of the MOU, this is legally inconsequential given that the MOU, per its own terms, is ‘a statement of political intent’, not to be ‘interpreted as a binding agreement’.[32] While the present decision is ripe for political criticism, the Scottish Secretary is nonetheless entitled to invoke s35 in law. 

Constitutional principles

In Cherry; Miller, the Supreme Court unanimously determined that the prerogative can be limited by ‘the constitutional principles with which it would otherwise conflict’.[33] The decision is commonly viewed as one of significant judicial innovation, wherein the Supreme Court transformed the constitutional principles of parliamentary sovereignty and parliamentary accountability into legal limits of executive power.[34] Given that devolved autonomy can be understood as a constitutional principle,[35] it is worth considering whether the courts could determine that the Scottish Secretary’s use of s35 is limited by constitutional principles, including devolved autonomy and the separation of powers.

For better or for worse, such judicial innovation is impossible and would be inconsistent with long-standing authority. Prerogative powers in Cherry; Miller have long been governed by developments in the common law: per Proclamations, ‘the King hath no prerogative, but that which the law of the land allows him.’[36] As argued by Elliott, Cherry; Miller was thus no far cry from the courts’ long history of developing limits on the prerogative.[37] In contrast, per De Keyser, once a power of the executive has been placed under Parliamentary control, it is directly regulated by statute. Since s35 is a statutory power, it is only bound by the limits set by Parliament when passing the 2016 Act. It would be unprecedented to determine that constitutional principles, as ascertained by the court, can override the language used by Westminster to narrow the scope of statutory powers conferred upon the Scottish Secretary. Further, it would constitute a direct challenge to parliamentary sovereignty, as it would have the effect of bypassing Westminster to rewrite statutory limits on the use of s35. Graham argues that the Supreme Court under Lord Reed’s presidency shows restraint in innovation, leans away from binding the hands of political actors, and is grounded in orthodoxy.[38] Having recently affirmed in Re Allister that parliamentary sovereignty is ‘the most fundamental rule of UK constitutional law’, the chances of the court limiting s35 using the principle of devolved autonomy are little to none.[39]

Devolution settlements in a legal constitution

Two points about the UK’s constitutional arrangements can be gleaned from the present case. Firstly, legal constitutionalism is dominant in the UK. Secondly, devolved autonomy is insecure, and will arguably always be insecure in light of Westminster’s sovereignty.

Per Oliver, a legal constitution is one which largely relies on the law to hold constitutional actors to account for their conduct.[40] Halliday has argued that the rise of Supreme Court referrals regarding devolved legislation signifies a shift away from political settlements between constitutional actors and towards the legal adjudication of disputes.[41]Judicial review of the Scottish Secretary’s use of s35 will only add to this trend. Critics of the use of s35 have emphasised the UK Government’s failure to comply with MOU and respect the decisions of the democratically elected Scottish Parliament.[42] The fact that the Order has proceeded nonetheless affirms that constitutional actors are increasingly willing to absorb the political cost of overriding the will of devolved legislatures. When such cases are brought to court, the courts are only able to interpret and apply existing UK legislation which, being created by Westminster, tends towards preserving opportunities for unilateral decisions to be made by Westminster and Whitehall. This critique has been echoed in Labour’s Brown Report, which alleges that recent administrations have consistently legislated in contravention of the Sewel Convention because it is legally permissible to do so.[43] It is increasingly lenient legislation, rather than political controls, that delimit the exercise of constitutional power.

Secondly, the autonomy of devolved legislatures has been and will continue to be insecure in the UK constitution. It is worth asking what could result from the judicial review of the Scottish Secretary’s use of s35. Even if the Order is struck down, it is entirely within Westminster’s competence to amend the Scotland Act 1998 to make gender recognition a reserved matter within Schedule 5. Alternatively, it may include the 2004 Act in the enactments protected from modification by Holyrood in Schedule 4, as was done to excise amendment of the UK Withdrawal Act from Holyrood’s competence.[44] Once Westminster has laid down the boundaries of legislative competence, the devolved legislatures cannot trespass these boundaries,[45] qualify Westminster’s legislative power,[46] or legislate in a manner that has more than a loose or consequential connection to reserved matters including the Union between England and the devolved regions.[47] The petition is right to raise that, by allowing Whitehall to intervene in devolved legislation, s35 is destabilising in effect. This is an inevitability of the sovereign Westminster’s ability to unilaterally interfere with devolved autonomy and bestow upon others the power to do the same. For devolved autonomy to be secured, either the outlook of Westminster or its position at the apex of the constitution must change. 

As recognised in the Policy Memorandum accompanying the introduction of the Bill in Holyrood, the Bill would have been an important step in improving the gender recognition process, which has otherwise been described by transgender individuals as ‘overly intrusive, humiliating and administratively burdensome’, with the potential to make real progress in improving the quality of life of transgender individuals.[48] The present use of s35 is regrettable, but nonetheless lawful, as the devolution scheme of the UK purports to Holyrood a democratic mandate, but leaves it vulnerable to being overridden by the UK Government so far as the Scotland Act permits. 

 

[1] Scottish Parliament Bill 13B Gender Recognition Reform (Scotland) Bill (Scotland) Bill [Amended at Stage 3] Session 6 (2022) (SP Bill 13B)

[2] Gender Recognition Act 2004

[3] SP Bill 13B (n 1) s 2, s 5

[4] The Gender Recognition Reform (Scotland) Bill (Prohibition on Submission for Royal Assent) Order 2023, SR & O 2023/41 (Gender Recognition Reform Bill Order)

[5] Petition of the Scottish Ministers for Judicial Review of the Gender Recognition Reform (Scotland) Bill (Prohibition on Submission for Royal Assent) Order 2023 made and laid before the UK Parliament by the Secretary of State (under s 35 of the Scotland Act 1998) on 17 January 2023 (2023) (Petition of the Scottish Ministers)

[6] Scotland Act 1998 s 35

[7] Petition of the Scottish Ministers (n 5) 

[8] Robinson v Secretary of State for Northern Ireland [2002] UKHL 32 (HL) [11]

[9] Reference by the Lord Advocate of devolution issues under paragraph 34 of Schedule 6 to the Scotland Act 1998 [2022] UKSC 31[38]

[10] Gender Recognition Reform Bill Order (n 4)

[11] Gender Recognition Act 2004 s 9

[12] For Women Scotland Ltd v Scottish Ministers [2022] CSOH 90 [45]

[13] Gender Recognition Act 2004 schedule 5

[14] Petition of the Scottish Ministers (n 5) 

[15] Chief Constable of Lothian and Borders v Lothian and Borders Police Board [2005] CSOH 32

[16] South Buckinghamshire DC v Porter [2004] UKHL 33

[17] Tesco Stores Limited v Secretary of State for the Environment and West Oxfordshire District Council and Another [1994] 5 WLUK 304

[18] Gender Recognition Reform Bill Order (n 4)

[19] Petition of the Scottish Ministers (n 5) 

[20] Explanatory Notes to the Scotland Act 1998

[21] Gender Recognition Reform (Scotland) Bill Response By The Scottish Government To The Stage 1 Report By The Equalities, Human Rights And Civil Justice Committee 2022

[22] Gender Recognition Reform Bill Order (n 4)

[23] Equalities, Human Rights and Civil Justice, Committee Gender Recognition Reform (Scotland) Bill -

Summary of Short Survey Responses

[24] Bolton MDC v Secretary of State for the Environment [2017] PTSR 1091 (HL) (Lord Lloyd of Berwick)

[25] Policy Statement of Reasons on the Decision to Use Section 35 Powers with respect to the Gender Recognition Reform (Scotland) Bill [15]

[26] NW Barber, The United Kingdom Constitution: An Introduction (Oxford University Press 2021)

[27] Scotland Act 2016 s 2

[28] A Paun, ‘Sewel convention’ (Institute for Government, 16 January 2018) <www.instituteforgovernment.org.uk/explainer/sewel-convention> accessed 26 May 2023

[29] A Twomey, ‘Peering into the Black Box of Executive Power: Cabinet Manuals, Secrecy and the Identification of Convention’ in J Varuhas and S Stark, Frontiers of Public Law (Hart Publishing 2020).

[30] S Clear, ‘How the UK Government’s Veto of Scotland's Gender Recognition Bill Brought Tensions in the Union to the Surface’ (Bangor University, 26 January 2023) <https://www.bangor.ac.uk/news/2023-01-26-how-the-uk-governments-veto-of-scotlands-gender-recognition-bill-brought-tensions> accessed 26 May 2023

[31] R (on the application of Miller and another) v Secretary of State for Exiting the European Union [2017] UKSC 5 [141]

[32] Memorandum of Understanding and Supplementary Agreements Between the United Kingdom Government, the Scottish Ministers, the Welsh Ministers, and the Northern Ireland Executive Committee

[33] R (on the application of Miller) v Prime Minister [2019] UKSC 41[49]

[34] Timothy Endicott, ‘Making Constitutional Principles into Laws’ [2020] LQR 175

[35] M Elliott, ‘Parliamentary Sovereignty in a Changing Constitutional Landscape’ in J Jowell and Colm O’Cinneide (eds), The Changing Constitution (Oxford University Press 2019)

[36] The Case of Proclamations [1610] EWHC KB J22

[37] M Elliott, ‘A New Approach to Constitutional Adjudication? Miller II in the Supreme Court’ (Public Law for Everyone, 24 September 2019) <https://publiclawforeveryone.com/2019/09/24/the-supreme-courts-judgment-in-cherry-miller-no-2-a-new-approach-to-constitutional-adjudication/> accessed 26 May 2023

[38] L Graham, ‘The Reed Court by Numbers: How Shallow is the “Shallow End”?’ (UK Constitutional Law Blog, 4 April 2022) <https://ukconstitutionallaw.org/2022/04/04/lewis-graham-the-reed-court-by-numbers-how-shallow-is-the-shallow-end%EF%BF%BC%EF%BF%BC/> accessed 26 May 2023

[39] Allister’s Application for Judicial Review, Re [2023] UKSC 5 [66]

[40] Dawn Oliver, ‘Law, Politics and Public Accountability: The Search for a New Equilibrium’ [1994] PL 238

[41] I Halliday, ‘Political and Legal Constitutionalism in the Age of Supreme Court Referrals’ (UK Constitutional Law Blog, 13 February 2023) <https://ukconstitutionallaw.org/2023/02/13/iain-halliday-political-and-legal-constitutionalism-in-the-age-of-supreme-court-referrals/> accessed 26 May 2023

[42] N Sturgeon, (Twitter, 16 January 2023) <https://twitter.com/NicolaSturgeon/status/1615047894402273283?lang=en> accessed 26 May 2023

[43] The Labour Party, ‘A New Britain: Renewing our Democracy and Rebuilding our Economy Report of the Commission on the UK’s Future’ (2022)

[44] UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill, Re [2018] UKSC 64

[45] Imperial Tobacco Ltd v Lord Advocate [2012] UKSC 61

[46] Attorney General’s Reference, United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill, Re [2021] UKSC 42

[47] Reference by the Lord Advocate of devolution issues (n 9)

[48] Gender Recognition Reform (Scotland) Bill Policy Memorandum [34]