THE Scottish Secretary’s decision to use a Section 35 order cannot be seen as “reasonable or rational” and is therefore unlawful, the Lord Advocate said.
Scotland’s top law officer Dorothy Bain made the comments in the Court of Session on the first day of the judicial review hearing over the UK Government’s decision to block Holyrood’s gender reforms from becoming law.
The Lord Advocate argued that Alister Jack made a number of errors while coming to the decision to use a Section 35 order to stop the Gender Recognition Reform (Scotland) Bill from gaining royal assent.
Bain said that the Scottish Secretary made the decision because of a “policy disagreement” with the Scottish Government and that this is “inconsistent with the constitutional principles” of the UK.
Elsewhere, the Lord Advocate told the court no debate or vote was held on the Section 35 order in the House of Commons, rejected the UK Government’s claim the legislation would have had an “adverse effect” on UK wide equality law, and said Jack did not real all the relevant evidence required before coming to a decision to block the bill.
The Lord Advocate said the Scottish Secretary “shut his eyes to one half of the debate” and relied on evidence which was mostly “hostile to the bill”.
“The Secretary of State must form a reasonable view, that is a rational view, that the provision in question would have an adverse effect on the operation of law as it applies to reserved matters,” the Lord Advocate (below) told the court.
“In my submission, the Secretary of State’s decision cannot be said to be reasonable or rational.
“This is therefore unlawful and should be reduced.”
The Lord Advocate also told the court that it would be “inconsistent with the constitutional principle of parliamentary accountability” for the UK Government to be able to veto Scottish legislation due to a “policy disagreement”.
Bain also set out that Jack had multiple opportunities to raise concerns about the legislation during the scrutiny process, and disputed the Advocate General’s claims he only had four weeks' notice.
“If the Secretary of State had such fundamental concerns, it is striking there was not a whisper of them through the various consultations and the earlier stages of the Bill’s parliamentary process,” she said.
“Indeed, the UK Government got sight of this Bill and the appropriate supporting documents before the Bill was introduced to the Scottish Government.”
The Lord Advocate also spent a large amount of her time arguing that Jack did not adequately consider evidence before making his decision to use a Section 35 order.
Bain argued that Jack used internal guidance from the UK Government’s Equality Hub, and seven letters, including correspondence to Jack from Sex Matters, Murray, Blackburn and McKenzie, For Women Scotland and Keep Prisons Single Sex.
“Six out of seven pieces of correspondence are hostile to the bill,” the Lord Advocate said.
She later argued that Jack (above) failed in his statutory duty to consider a wide enough range of evidence to reach a reasoned conclusion over the use of Section 35.
“It cannot be permissible for the Secretary of State to shut his eyes to one half of the debate,” she said.
“If the duty to familiarise myself with material can be met by picking a selection of that which supports only one side of the argument then there will be no point in imposing the duty.”
Referring to the Tameside duty, which requires decision-makers to seek out relevant information before making a decision, the Lord Advocate said if Jack’s decision was held to be lawful it would effectively render the duty void.
She explained: “In taking his decision on the basis of limited information, weighted against the contents of the bill, the Secretary of State failed his duty to properly familiarise himself with the relevant evidence that was available to him. His decision was thus unlawful and falls to be reduced.”
The Lord Advocate also said a number of reasons Jack based his decision on were not rational, particularly in relation to IT systems dealing with different laws in different parts of the UK.
Bain said it was “very challenging” to understand the substance of Jack’s reasoning for using a Section 35 order and it would be difficult for others to work out “what he was on about” in some circumstances.
She also disputed that the legislation would have "adverse effects" on UK-wide law as a Scottish Gender Recognition Certificate (SGRC) would have the same outcome as a GRC under the UK's Gender Recognition Act 2004 Act - essentially changing a person's gender for legal purposes.
Later during the hearing, the Lord Advocate argued it was “not good enough” for Jack to make claims without providing evidence to back them up.
She said there will become a point when the reasons begin to fall a point will be reached, a “critical mass”, where the Section 35 order “cannot survive”.
David Johnston KC (above), on behalf of the UK Government, began his evidence at the end of the session, and responded to that point by saying that Jack only needed to have one reason to stand up for the Section 35 order to stand legally, whether or not he made any errors in interpretation elsewhere.
The judicial review will continue at 10am on Wednesday.
