JUDGMENT SUMMARIES

On 17 January 2023 the Secretary of State for Scotland made the Order under section 35 of the Scotland Act 1998. The Order blocked the submission of the Gender Recognition Reform (Scotland) Bill for Royal Assent. The issue for the court was whether that Order was lawfully made. The Lord Advocate, appearing on behalf of the Scottish Ministers, invited the court to reduce it (declare it to be of no legal effect).

The opinion concludes that the Order is lawful and dismisses the petition. In particular, it makes clear that, first, the Secretary of State adopted the appropriate procedure in invoking section 35. Second, that because the Bill modifies the meaning of “full gender recognition certificate” it does modify the law as it applies to reserved matters. Third, that the reasons provided by the Secretary of State for making the order are rational and adequate.

The Order

Under section 35 of the Scotland Act 1998, the Secretary of State for Scotland 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 first ever use of the power under section 35, making the Order the first of its kind.

The Gender Recognition (Reform) Scotland Bill was introduced in March 2022 and passed by the Scottish Parliament on 22 December 2022. It proposed significant reform to the process involved in obtaining a Gender Recognition Certificate (GRC) in Scotland. This included: applications being considered by the Registrar General for Scotland rather than the Gender Recognition Panel; reduction of the minimum age of applications from 18 to 16; reduction of the period in which the applicant needs to have lived in their acquired gender from 2 years to 3 months; and removal of the requirement for a medical diagnosis of gender dysphoria.

The Secretary of State made the Order on 17 January 2023. This was on the basis that the Bill would make modifications to 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. The adverse effect would flow from 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 upon the Equality Act 2010. A “Policy Statement of Reasons” (PSOR) provided a “fuller narrative” of the Secretary of State’s reasons.

Decision

The court considered, and rejected, the Lord Advocate’s submission that policy disagreement regarding gender reform lay behind the Secretary of State’s decision to make the Order. It concludes that the evidence before the court did not allow it to infer or conclude that this was the Secretary of State’s motivation. The fact that the Secretary of State had not engaged in advance discussions with the Scottish Parliament regarding the Bill is also of no relevance to the lawfulness of the Order. The issue for the court was simply whether the conditions in section 35 were satisfied and whether the terms of the Order were rational.

The Bill did modify the law as it applies to reserved matters, such that the first precondition was met. 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 section 9 of the Gender Recognition Act 2004:

“The effect of the amendment to section 25 will be to alter the unqualified continuation in force of section 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 section 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 section 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 section 104 of the Scotland Act 1998, 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, the court notes that there is no issue with the competency of the Bill. Parties agreed that it was within the legislative competence of the Scottish Parliament:

“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 section 35.”

The court then turns to the individual errors which were advanced by the Lord Advocate. First, the Secretary of State did not fail to acquaint himself with the relevant facts and material before making the Order. He took rational steps to inform himself. There were several documents on the issues with which he was concerned, many of which supported his conclusions. An extensive information gathering exercise of the type that the Scottish Parliament carried out before introducing the Bill was not possible. It did not matter that the Equality Hub which sits within the Cabinet Office collated and/or compiled most of the material, nor that more evidence was gathered suggesting that there would be adverse effects than the contrary. The question was not whether more or other material could have been taken into account:

“I cannot conclude that he failed in his duty to take such steps as were reasonable in all the circumstances to acquaint himself with material sufficient to permit him to reach the decision that he did.  Others may have reached a different conclusion on the same material.  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… 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.”

Second, there was no error of law. The Secretary of State was not wrong to conclude that the Bill modified the law. A fair and objective reading of the Order made clear that the concern was one relating to how the law operates in practice and the effect of divergence between Scotland and England & Wales. Neither the effect of divergence, nor the perceived risk of more fraudulent applications, were irrelevant considerations. Views and opinions militate in both directions, but the Secretary of State’s conclusion was not undermined by the fact that a different conclusion might have been reached.

Third, the reasons provided by the Secretary of State for making the Order were adequate. The PSOR provided an important part of the context within which the decision was made. That being so, the court was entitled to take it into account not confined to the reasons set out in Schedule 2 of the Order. In any event, there was no ambiguity in the reasons contained therein.

It followed that the challenge to the lawfulness of the Order failed and the petition refused.

The full opinion can be read here

The opinion published on the  Scottish Courts and Tribunals website is the only authoritative document.