The UK government’s block on Scottish gender recognition reforms is unlawful, Scotland’s top law officer has said.
The Scottish government is seeking to overturn the veto at the Court of Session in Edinburgh.
Lord Advocate Dorothy Bain said the court had a “constitutional duty” to review the unprecedented use of a Section 35 Order by Downing Street.
The UK government has raised concerns about the impact of the legislation on Britain-wide equality laws.
The Gender Recognition Reform (Scotland) Bill, which would allow people in Scotland to self-identify their sex, was passed by the Scottish Parliament in December last year.
But for first time since the creation of the devolved parliament, the UK government used Section 35 of the Scotland Act to prevent a bill receiving royal assent.
Scottish Secretary Alister Jack raised concerns that it would affect the 2010 Equality Act, which applies in Scotland, England and Wales.
It sets out different “protected characteristics” including those of sex and gender reassignment, and underpins the rights and protections afforded to these groups.
The civil case at the Court of Session, which is being heard by Lady Haldane, began on Tuesday and will last several days. If the result is appealed, it could ultimately be heard in the Supreme Court in London.
Ms Bain, representing the Scottish government, said conditions required to use a Section 35 Order had not been met, meaning its use was unlawful.
She told the court the case did not concern the “merits of the bill”, which was passed by 86 votes to 39 at Holyrood, nor the Scottish secretary’s opinion on it.
The Lord Advocate warned that if the UK government was successful, Westminster “could veto practically any act of the Scottish Parliament having an impact on reserved matters because he disagreed with it on policy grounds”.
She added: “That would be tantamount to the Scottish Parliament being able to legislate only insofar as the UK executive consented.”
Ms Bain argued such an approach would contradict the “overarching” purpose of the Scotland Act.
‘Errors of law’
The court heard that a Section 35 Order was designed to be “narrowly construed” and “tightly controlled” and should only be used in very specific circumstances as a “last resort”.
Ms Bain raised questions about the timing of the UK government’s intervention, four weeks after the bill was passed in the Scottish Parliament.
She argued Mr Jack made two “material errors of law” – namely that nothing in the bill makes modification of the law as it applies to reserved matters, nor does it have an “adverse effect” on the operation of the law as it applies to reserved matters.
The Lord Advocate told the court that because the bill only changed the process for getting a gender recognition certificate, not the actual effect of the certificate itself, there was no impact on equalities laws.
She said the reasons given by the UK government for using the Section 35 Order were “insufficient in law”.
Mr Jack’s suggestions that the bill would have “adverse effects” on reserved matters, Ms Bain argued, were “either unfounded, too speculative or hypothetical or insufficiently cogent and material to justify the exceptional step of making the order”.
She described complaints about divergence between Scottish law and laws in other parts of the UK as irrelevant, pointing out that gender recognition is devolved to Holyrood.
The Lord Advocate told the court Westminster had long established that divergence is acceptable and characterised Mr Jack’s argument as irrational.
And she described concerns that the legislation would lead to an increase in fraudulent applications for gender recognition certificates as an “irrelevant consideration” that did not relate to reserved matters and was not based on “credible evidence”.
Ms Bain accused Mr Jack of presenting a “partisan” case against the reforms, ignoring arguments in favour of it and failing to take “reasonable steps” to understand relevant information.
David Johnston KC, who is acting for the UK government, urged the court to reject the Scottish government’s petition.
He said it was not Mr Jack’s “duty” to scrutinise the bill as MSPs do, but to “protect the interests of the United Kingdom if he identifies adverse effects on the operation of law as it applies to reserved matters”.
The lawyer described Section 35 as “integral to the constitutional distribution of power in the Scotland Act”. He said it was “express recognition” that devolved bills could have an adverse effect on the operation of reserved law and that the UK government should have limited power to intervene if that happens.
Mr Johnston will be given further time to set out the UK government’s case on Wednesday.
The UK government’s objections to the reforms are largely based on concerns about how the 2004 Gender Recognition Act – which set up the certification process which is being reformed – interacts with the Equality Act.
The UK government argues it is “highly problematic” to have two different gender recognition systems within the UK.
It cites several potential issues, including with single-sex organisations, schools and tax rules.
The reforms would see applications for a gender recognition certificate handled by Scottish registrars, rather than a UK panel, and would remove the need to obtain medical reports with a formal diagnosis of gender dysphoria.
The plans would also cut the amount of time applicants need to have lived in their acquired gender from two years to a matter of months, and cut the age at which people can apply to 16.
The UK government claims making the gender recognition process easier could “significantly” increase the risk of fraudulent applications from those with “malicious intent”, which could lead to people “no longer feeling safe in any sex-segregated setting and self-excluding from such settings even though they could significantly benefit from them”.
For nearly 500 years the Court of Session has considered the thorniest and weightiest matters of the moment.
There can hardly be a more fundamental issue than what it means to be a man or a woman.
Judge Lady Haldane, in civilian attire rather than robe and wig as this is a civil not a criminal case, is familiar with the topic, having issued a hotly-debated ruling about the definition of sex last year.
But the Lord Advocate Dorothy Bain KC, representing the Scottish government, says these proceedings are different.
The court, she says, is not being asked to rule on whether changes to gender law approved by Holyrood “could or should have been different or better.”
Rather, argues Ms Bain, the issue is whether or not the Scottish Secretary Alister Jack overstepped his constitutional authority in deciding to block the bill.
She argues that he did. The UK government obviously disagrees, as we will hear from its counsel, David Johnston KC, in the coming days.
But whatever happens here, in the airy, wood-panelled courtroom number one of Edinburgh’s Parliament House, is unlikely to be the end of the matter.
An appeal to a panel of three judges in what is known as the Inner House of the Court of Session may well follow.
And, given that the case hinges on the unprecedented use of a provision of the Scotland Act which established devolution, it would be odd indeed if it did not end up before the UK Supreme Court in London.