Michael Foran: Section 35 showdown reveals Scottish government’s ‘peculiar’ arguments

Michael Foran: Section 35 showdown reveals Scottish government's 'peculiar' arguments

Dr Michael Foran

Yesterday the Scottish government released the text of its petition seeking judicial review of the UK government’s use of a s.35 Order to prevent the Gender Recognition Reform (Scotland) Bill from receiving Royal Assent. Much of what is contained therein has been mooted in commentary on the s.35 Order, but some of the arguments advanced by the Scottish government are peculiar, writes Dr Michael Foran.

Section 35 can only be used in this context where two tests are satisfied:

  1. The GRR Bill modifies the law as it applies to reserved matters, and;
  2. There are reasonable grounds to conclude that this would have an adverse effect on the operation of the law as it applies to reserved matters.

The basis of the challenge is that the Order is ultra vires by virtue of a material error of law in concluding that the GRR Bill would meet this first test. The Scottish government also argue that the Secretary of State’s reasons with regard to the second test are irrational, irrelevant, and insufficient.

The petition argued that s.35 of the Scotland Act should be construed and applied in the context of the overall scheme of the Scotland Act. For this reason, it is claimed that “in a constitutional order which is founded upon principles which include, amongst other things, the separation of powers, such a provision should be read narrowly and its exercise subjected to anxious scrutiny”.

While it is entirely correct that the Scottish Parliament is a democratic legislature and its enactments should be afforded appropriate respect, an important aspect of the context and overall scheme of the Scotland Act is the devolution and retention of power.

Initially, the tests in s.35 were to be the test for competence. But this was changed because the UK government was concerned that this test would be too strict, capturing bills which were not directly and substantially related to a reserved matter. In order to introduce the current, more permissive test for legislative competence, the UK government wanted a safeguard which permitted intervention certain cases.

The introduction of s.35 was an integral part of a settlement that gave more power to the Scottish Parliament, not less. That must be accounted for when considering the context and overall scheme of the Act and that may permit a more capacious reading of s.35 than the Scottish government might like.

In fact, the reading offered by the Scottish government is so narrow as to render s.35 practically nugatory. When considering whether there has been a modification of law as it applies to reserved matters, the petition argues that there has been no such modification. This is because although s.9 of the GRA does apply to the reserved matter of equal opportunities because it sets out the effect of obtaining a Gender Recognition Certificate, the provisions setting out who is eligible to obtain one do not apply to reserved matters. This is quite a narrow reading indeed.

The logic is that provision X relates to a reserved matter if it grants access to benefits that relate to reserved matters but provision Y which sets out who is eligible to receive such benefits does not. Now apply this to the example given by Lord Sewel at the time that the Scotland Act was drafted: “Legislation about housing or local taxation could possibly have an impact on the operation of social security legislation.”

On the petitioners reasoning, provisions setting out the effects of being granted a local taxation exemption or a social housing guarantee relate to the reserved matter of social security but provisions setting out who is eligible to receive these benefits doesn’t. Changing them, even to the point where practically nobody is eligible for social housing would not modify the law relating to social security on this reading. That is extremely questionable and would be entirely inconsistent with the approach taken in private law legislation.

Indeed, the Scottish government has even suggested that because gender recognition does not directly relate to the reserved matter of equal opportunities, the UK Parliament has permitted divergence on the issue to such a point that the Scottish Parliament could modify, amend or even repeal the GRA in Scotland. This is entirely incorrect. Repeal of the GRA in Scotland would be directly outwith competence because it would put Scotland in breach of its ECHR obligation to provide a system of legal gender recognition to post-operative transsexuals. When the GRA was passed, there was discussion indicating that Scotland could have a different scheme for gender recognition and remain within competence. In fact, Scotland already does have a divergent scheme that does not challenge competence and was not treated by the UK government as having adverse effects. For example, the changes to spousal consent introduced by the Marriage and Civil Partnership Scotland Act 2014, s.29 and Schedule 2 both amend the GRA as it applies in Scotland with no issue. But that does not mean that failure to introduce any scheme at all would be within competence or that a radically divergent scheme would not produce adverse effects on the operation of the law as it applies to reserved matters.

Divergence itself is not sufficient grounds to conclude adverse effect for the purposes of s.35, but the kind of divergence – altering the substantive nature of who can change legal sex – and the consequences it produces very well might. It is therefore quite strange for the Scottish government to argue that reference to divergent schemes renders the s.35 Order vitiated.

The Scottish government has argued that some of the reasons offered by the UK government are irrational because they are speculative and insufficiently evidenced. This could present a challenge to the U.K. government because it speaks directly to the strength of the reasons offered. But there are two points to be aware of here. The first is the strict timeframe within which the s.35 Order can be made. This might contextualise what can reasonably be expected of the Secretary of State before making an Order.

The second is the need to be mindful of the distinction between review for lawfulness and appeal on the merits. The court will not be assessing whether the reasons offered are so compelling that it would have made the same decision. It will ask whether they are so poor as to be unlawful. Concerns over the change to legal rules or duties might be sufficient without the need to evidence an increase in risk of fraud as a result of inadequate safeguards. No mention is made of concerns raised about changes to the law relating to schools which has nothing to do with the risk of abuse or a lack of adequate safeguards.

While there may be arguments to be had over whether the reasons offered by the UK government are so ill-founded as to be irrational, the petition also argues that the concerns raised are irrelevant. The argument appears to be that because gender recognition is within competence and because the GRR Bill does not modify the law relating to reserved matters then any concerns about safeguarding are merely policy disagreements and cannot constitute adverse effects for the purposes of s.35. But this begs the question, concluding that these are just policy disagreements after presuming that the GRR Bill does not meet the conditions needed to issue a s.35 order.

Finally, the petition claims that the operation of the Equality Act is not changed by the bill. I have written elsewhere to set out why I think this claim is false. For now, it is important to note that the Scottish government have argued that in any event the concerns raised over the operation of the Equality Act are irrational because they are not supported by evidence. True, there is no study cited or empirical research referenced. But that is because a change to the operation of legislation can be discerned by legal analysis of how the pertinent rules and principles will change. You don’t need to – indeed can’t – find an empirical study to prove that lowering the age to change legal sex will affect the law relating to single sex schools. But that is because the question asked is not an empirical one. It is a legal one. Whether the operation of the Equality Act is modified by the GRR Bill depends on the law and nothing else. Whether this modification produces adverse effects on the operation of the Equality Act could depend on empirical evidence. But it could also depend on reasoned argument about how changes will modify legal rules in an undesirable way.

Dr Michael Foran is a lecturer in public law at Glasgow University

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