Section 35 Order challenge

The Scottish Government will challenge the Secretary of State for Scotland’s use of Section 35 of the Scotland Act to stop the Gender Recognition Reform (Scotland) Bill going forward to Royal Assent following the Scottish Parliament’s approval of the legislation in December 2022.

Social Justice Secretary Shirley-Anne Somerville has informed the Scottish Parliament that the Scottish Government will lodge a petition for a judicial review of the Secretary of State for Scotland’s use of Section 35.

Ms Somerville said:

“The Gender Recognition Reform Bill was passed by an overwhelming majority of the Scottish Parliament, with support from members of all parties.

“The use of Section 35 is an unprecedented challenge to the Scottish Parliament’s ability to legislate on clearly devolved matters and it risks setting a dangerous constitutional precedent.

“In seeking to uphold the democratic will of the Parliament and defend devolution, Scottish Ministers will lodge a petition for a judicial review of the Secretary of State for Scotland’s decision.

“The UK Government gave no advance warning of their use of the power, and neither did they ask for any amendments to the Bill throughout its nine month passage through Parliament. Our offers to work with the UK Government on potential changes to the Bill have been refused outright by the Secretary of State, so legal challenge is our only reasonable means of resolving this situation.

“It is important to have clarity on the interpretation and scope of the Section 35 power and its impact on devolution. These matters should be legally tested in the courts.”

Background

Written Question Reference: S6W-17198

The Gender Recognition Reform (Scotland) Bill was passed by the Scottish Parliament on 22 December 2022 by 86 to 39 with members of all parties supporting the bill.

In January 2023, the UK Government used Section 35 of the Scotland Act 1998 to stop the Bill being put forward for Royal Assent.

The Gender Recognition Reform Bill improved the system by which transgender people with a Scottish birth register entry or who are ordinarily resident in Scotland can apply for legal recognition through a Gender Recognition Certificate (GRC). Trans people have been able to apply for legal gender recognition through a GRC since 2004. Not all trans people have a GRC and no-one is required to have one.

The Bill includes safeguards against misuse of the system. It will be a criminal offence for applicants to make a false application. A new statutory aggravator and a risk‑based approach in relation to sex offences strengthen these protections.