Section 35 Order Judicial Review: Scottish Government response

One year ago, the Scottish Parliament passed the Gender Recognition Reform (Scotland) Bill, after much discussion and careful consideration. Not everyone agreed with the Bill, some strongly opposed it. But the will of Parliament was clear – two-thirds of the Chamber voted to pass the Bill, with members of all parties voting in favour.

But within four weeks, the Secretary of State for Scotland blocked its submission for Royal Assent, with the first ever use of a Section 35 Order. Scottish Ministers petitioned for Judicial Review, as it was clear to us that allowing this unprecedented veto on a decision of this Parliament to go unchallenged would undermine Holyrood’s democratic will, and by extension the will of the people we are sent here to represent.

The Outer House of the Court of Session has now ruled the Order was within the powers of the Secretary of State.
Scottish Ministers will not seek to appeal this ruling.

First let me be absolutely clear that the Scottish Government remains committed to supporting and empowering the LGBTQI+ community, including trans people. We will continue to build on our work across government to strengthen this.

That includes funding of £1.1 million to organisations promoting LGBTQI+ equality in Scotland from the Equality and Human Rights Fund.

We work closely with the LGBTQI+ Stakeholder Group and third sector organisations to ensure the voices of those with lived experience helps improve outcomes for these communities.

We are delivering the Non-Binary Equality Action Plan, to improve conditions for the non-binary community in Scotland. The plan includes actions already underway, such as meaningfully including non-binary people in decision-making. Medium-term actions include specific research to produce more robust and comprehensive data and evidence on the experiences of non-binary people. 

We remain committed to consulting on ending conversion practices in Scotland, for both sexual orientation and gender identity, and detailed proposals for legislative change will be published early in the new year. Conversion practices, which aim to change or suppress a person’s sexual orientation or gender identity, are damaging and destructive acts that violate the human rights of those who undergo them.We are also developing a range of non-legislative measures related to Conversion Practices, including funding a new helpline to support victims and survivors. 

We remain committed to our work with NHS Scotland to improve access to, and delivery of, gender identity healthcare. 

We are working closely with people with lived experience, organisations representing trans people and NHS Scotland to implement the actions in the 2021 NHS gender identity services: strategic action framework.

We have established a National Gender Identity Healthcare Reference Group, and commissioned a range of work including: robust collation and reporting of waiting times; a transgender healthcare knowledge and skills framework with training opportunities for NHS Scotland staff; a programme of research on long term health outcomes for people who access gender identity healthcare and the development of national standards for accessing and delivery of gender identity healthcare. This work is all well underway.  

We are also delivering the recommendations of the LGBTI Inclusive Education Working Group. The Implementation Group has, in partnership with COSLA, promoted effective delivery of LGBT inclusive education in all Scottish schools, engaged with young people to seek their views and experience, and are delivering improved learning environments for all children and young people. 

We have published the lgbteducation.scot website, which contains a toolkit of inclusive education teaching resources and an e-learning course for education staff.

And before the end of the parliamentary year we will bring forward a new Human Rights Bill for Scotland. The Bill will enshrine in our law a wide range of internationally-recognised human rights. We want the Bill to ensure that rights are delivered to everyone without discrimination, including to LGBTQI+ people.  

Let me now turn to the Gender Recognition Reform Bill specifically. The Bill’s reforms remain this Government’s policy, and as we can see from cross-party support for the Bill, they remain what this Parliament would like to see enacted. 
The current process for gender recognition places disproportionate barriers to trans people accessing their rights, and so does harm to the community. It should be reformed.

The list of countries around the world with similar processes to the Bill continues to grow. In that respect the UK Government is increasingly an outlier in its policy, as demonstrated by its recent secondary legislation setting out which countries’ transgender policies it will recognise, and those that it will not.  

However, the UK Government’s intervention means the Bill cannot proceed to Royal Assent. It remains a Bill passed by the majority of the Scottish Parliament and we will not be withdrawing it.

Before the Bill reached Stage 3, we reached out to the UK Government, finally getting a meeting with the Equalities Minister the day before Stage 3 started. No amendments were requested. Immediately after the Section 35 Order, again we approached the UK Government, and the Deputy First Minister spoke with Secretary of State for Scotland Alister Jack. She offered for our governments to work together, to flesh out their concerns and address them if possible. He said if we brought him a revised Bill, he would consider whether that was acceptable to him. That was the extent of the engagement he would countenance. With no indication of what changes the UK Government would find acceptable, this is clearly unworkable. 

There’s a strong indication that any divergence of approach would be unacceptable to the UK Government, as Alister Jack stated in the Westminster Parliament: “In short, two different regimes create adverse effects.” 

It’s therefore impossible to see how progress can be made, particularly when the Rules of this Parliament require that amendments at Reconsideration Stage are consistent with the Bill’s general principles as agreed at Stage 1.
Nonetheless, our offer is still there. If the current UK Government is willing to work together on this, we will happily sit down with them. If a future UK Government are willing, we will do so with them, so that the Section 35 can be lifted and the Bill progress.  It seems clear that the current government will not do this, and it remains to be seen what a future government will do.

Parliamentary discussion of the Scotland Act shows that the Section 35 power was always intended as a long stop or last resort, and one which should never be needed. It was envisaged that the UK Government should raise issues at an early stage and the two Governments should seek to resolve them. That is in black and white both in those devolution debates in the Westminster Parliament in 1998, and in the Memorandum of Understanding between Governments. But that is not how the Secretary of State for Scotland used the power. 

It is the Scottish Government’s view that this UK Government and this Secretary of State see Section 35 as a veto that they can apply to any legislation passed by this Chamber that they disagree with. To ignore the Memorandum of Understanding sets a very worrying precedent for the democratic powers of this Parliament. Regardless of people’s opinion on gender recognition that is a worrying place to be for our Parliament.

Due to the intransigence of current UK Government, I’m confident any repetition of our offer to seek compromise would again be rebuffed. We will therefore focus on working with an incoming UK Government which we hope will have more respect for devolution and is willing to work together even when at times we disagree.

The decision not to appeal the judgment has not been an easy one. We have of course reflected on legal advice, and policy advice covering a wide range of factors.

I know that the legal process, and the ongoing scrutiny it brings, has taken its toll on the trans community. I know that the way trans people were spoken about and to during the passage of the Bill, how they were dismissed and in some cases vilified, has impacted on some trans people.

The worst possible outcome would be to draw this out further, and still not be able to enact the Bill. We want to avoid that outcome.

But we also do not accept that Section 35 should be used in this way.  While we recognise it is part of the devolution settlement, and we respect the Court’s decision.  We will be ready to challenge the use of Section 35 on any future Scottish Bills, to protect the democratic will of this parliament.  

I recognise that many trans people may be disappointed by the decision.

To them I say: the Scottish Government will not waiver in our commitment to your rights. You deserve to be respected, included and supported. You are not a threat, and you should be able to live your lives free from prejudice and abuse.

We will continue to work towards a society that is equal and fair, and where people can live as they are. Just as we will continue to protect the democratic powers of the Scottish Parliament.