Minister did not act irrationally in blocking gender law, says Advocate General

Scottish Secretary Alister Jack “did not act irrationally” when he called on never-before-used powers to block controversial gender reforms in Scotland, according to UK Government legal arguments published on Friday.

In April, Scotland’s First Minister Humza Yousaf confirmed the Scottish Government would mount a legal challenge against the UK Government’s use of Section 35 powers, which prevented the Gender Recognition Reform (Scotland) Bill from gaining royal assent.

The legal challenge is due to be heard at the Court of Session in Edinburgh next month.

In a note of argument published ahead of the hearing, Lord Stewart KC, Advocate General for Scotland, said: “The Bill modifies the law as it applies to the reserved matters specified in S1 of Schedule 2 to the Gender Recognition Reform (Scotland) Bill (Prohibition on Submission for Royal Assent) Order 2023 (“the Order”).

“In making the Order, the Secretary of State (Mr Jack) did not act irrationally on the basis of the evidence which was before him or by taking into account any irrelevant considerations.”

The reforms aim to make it easier for trans people to self-identify and obtain a gender recognition certificate.

The powers under the Scotland Act – the legislation which established the devolved Scottish Parliament – had never been used before, with UK Government ministers arguing the gender legislation infringed on reserved equality laws.

Mr Yousaf previously said the legal challenge was necessary to “defend the Scottish Parliament’s democracy from the Westminster veto”.

In the note of argument, Lord Stewart said the “plain intent and purpose” of the Scotland Act (SA) is that Section 35 should be exercisable by the Secretary of State in areas of devolved competence, provided only that specified preconditions are met.

He said: “If that is so, there is nothing whatever to suggest that the UK Parliament intended some additional, unspecified constraint on the exercise of the power on the basis that the context involved a ‘policy disagreement’ (as the issue is framed by the petitioners) between the UK and Scottish governments.

“The existence of the power in Section 35 explicitly recognises the possibility that devolved policy may have an adverse impact on the operation of the law as it applies to reserved matters (as in the present case).”

Lord Stewart also said: “Section 35 exists as part of the devolution framework.

“It forms part of a suite of carefully crafted checks and balances on the devolution of law-making power from the UK Parliament to the Scottish Parliament, which includes, but goes beyond, the question of competency alone.”

In the note of argument, which responds to the petition from Scottish ministers (the petitioners), he said: “The Secretary of State did not err in law in concluding that the provisions of the Bill listed in Schedule 1 to the Order modify the law as it applies to reserved matters.

“The petitioners’ argument relies upon an incorrect, formalistic and unduly narrow interpretation of Section 35.”

The legal argument also states the Scottish Government “misinterpret” the Section 35 order by suggesting a divergence exists between the schemes for gender recognition in Scotland and that of the rest of the UK.

But Lord Stewart argued: “It is not the fact of divergence itself which is considered by the Secretary of State to be adverse, but rather the effect that particular examples of divergence would have on the operation of the law as it applies.”

It comes after it emerged a senior judge has granted LGBT+ organisations permission to intervene in the legal challenge against the UK Government’s block on the gender reforms.

Charities such as Stonewall, Gendered Intelligence and the Institute for Constitutional and Democratic Research (ICDR) will be able to present written evidence to the court on the adverse consequences of the UK Government’s decision.