Scottish Secretary ‘irrational’ to block gender reforms, minister argue

Concerns raised by the Scottish Secretary around gender reforms are “irrational”, the Scottish Government has argued in a filing to the country’s highest court.

Ministers have filed a challenge to Alister Jack’s blocking of the Gender Recognition Reform (Scotland) Bill with the Court of Session, seeking to overturn the Section 35 order issued in January.

In a push for “transparency”, according to Social Justice Secretary Shirley-Anne Somerville, the full 22-page petition was published on Wednesday.

The Scottish Government has challenged the order on four counts: that Mr Jack made a “material error of law”, that his concerns about the safeguards in the Bill were “irrelevant” to the order’s making and that his reasons were “inadequate”, which would make the order “unlawful”.

Lawyers for the Scottish Government also asserted his concerns were “irrational”.

“Having regard to the absence of any supporting evidence produced by the Secretary of State, and in the context of research, consultation and comparative information available to, and considered by, the Scottish Parliament during the Bill’s passage, the Secretary of State’s concerns about the operation of the Bill are irrational,” the submission said.

The lawyers also say three criteria for making such an order – that the Bill being blocked impacts on reserved matters, that Mr Jack has “reasonable grounds” to believe it would impact on the operation of reserved laws and that the Scottish Secretary must provide adequate reasons for the block – have not been met.

The petition was released in the hours after Ms Somerville (pictured) made a statement to MSPs, telling them the government had “no option” but to challenge the order, claiming it was a bid to protect democracy.

She also refused to publish legal advice Mr Jack had received regarding the chances of success.

The UK Government claims the legislation would impact on UK-wide equalities protections.

The Bill would make it easier for trans people to obtain legal recognition of their acquired gender by dropping the need for a medical diagnosis, but some opponents have raised concerns it could impact on the safety of women and girls.

During his run for the SNP leadership, Humza Yousaf said he would challenge the order if he got legal advice that doing so had the chance to be successful.

Pressed by Scottish Conservative MSP Donald Cameron on Wednesday to publish the advice, Ms Somerville refused.

“As the member will well know, there is a convention not to publish legal advice,” she said.

“It’s exactly the same position the UK Government will take as well as they move forward with this, and I highly doubt that Donald Cameron will be suggesting that the UK Government publish their legal advice.”

The ministerial code says legal advice should not be published except in extraordinary circumstances.

Ms Somerville was unable to say how much the legal action will cost, telling MSPs a full costing will be released when the case is complete.

Addressing MSPs, she raised concerns that the UK Government could use Section 35 to block other legislation if it is not challenged in the courts.

She said: “We have not taken this decision lightly. We have considered it carefully. And it was clear to us in our deliberations that allowing the UK Government’s veto on the democratic decisions of this Parliament to go unchallenged would undermine our democracy.

“That cannot go unchallenged because of the implications for future legislation and for devolution, particularly as the Secretary of State refused our offers to work on potential changes to the Bill.”

The UK Government, she said, has not offered any suggestions for amendments to the legislation.

Mr Cameron said: “It is, of course, deeply disappointing that the Scottish Government has chosen to challenge the Section 35 order in the courts and is plainly doing so now to divert attention from a serious crisis that is currently engulfing the SNP.

“A lengthy and expensive litigation is the wrong choice for this legislation and for all those impacts.”

Scottish Labour MSP Paul O’Kane said the issue of reform is “too important to be reduced simply to a political debate or a constitutional football”.

He asked the Social Justice Secretary what will be done to support trans people while the case is in court.

Ms Somerville replied: “As many people will be concerned as we progress to legal action, we will be concerned because of the delay to this Bill and the impact it is having on the trans community.

“I am deeply, deeply sorry that it has come to this and we are not moving directly to royal assent.”

A spokeswoman for the UK Government said: “The UK Government will robustly defend the decision to prevent the Scottish Government’s Gender Recognition Reform Bill from becoming law.

“The Scottish Secretary made the order under Section 35 of the Scotland Act 1998 after thorough and careful consideration of all the relevant advice and the policy implications.

“He was very clear in the accompanying statement of reasons how the Bill would have an adverse effect on reserved matters, including on the operation of the law as it applies to Great Britain-wide equalities protections.

“The use of the power is entirely within the devolution settlement as set out from its inception, with cross-party support.”

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