THE cost of the Scottish Government’s legal challenge against the blocking of gender recognition reforms will not be revealed until after the case has concluded, the First Minister has said.
Humza Yousaf said he has received legal advice on the “worst case scenario” figure, but added the costs cannot be made “absolutely transparent” before the case ends.
A judicial review is to be sought by his Government after Scottish Secretary Alister Jack used a Section 35 order of the Scotland Act to prevent the Gender Recognition Reform (Scotland) Bill, which was passed by MSPs in December, from gaining royal assent.
The UK Government argues the veto was used because the legislation, which simplifies the process trans people go through to obtain legal recognition in their preferred gender, impacted on UK-wide equality laws.
Yousaf has been encouraged to declare how much Scottish taxpayers will be spending on the legal challenge.
But speaking to journalists while visiting a nursery in Glasgow on Thursday, Yousaf said he “can’t go into the detail of the cost because it is part of legal advice” he has received in relation to the case.
Asked if he has been given a “worst case scenario” figure of the total costs, he said: “Of course,” but added: “I don’t go into legal advice in terms of what the cost of a court case may well be.
“But of course, at the conclusion of that court case, we’ll make those figures absolutely public and absolutely transparent.”
He also dismissed claims that his Government’s challenge is destined for failure.
“If the legal advice said that there is not a stateable case, the Government wouldn’t take it forward,” Yousaf said.
However, former Supreme Court judge Lord Sumption told the BBC that the Scottish Government’s position is “weak” and the legal challenge will be “very difficult”.
The case for judicial review will initially be heard in the Court of Session in Edinburgh, but is widely expected to end up in the UK Supreme Court for a final decision.
Scottish Social Justice Secretary Shirley-Anne Somerville said the legal challenge will give ministers important “clarity on the interpretation and scope of the Section 35 power and its impact on devolution”.
But Lord Sumption told the Good Morning Scotland programme: “What this means for her, I suspect, is that it is important to be able to point to some way in which Westminster is cramping Scotland’s style. That is of course something the Scottish National Party has always been keen to do.
“Section 35 empowers the UK Government to stop a Scottish Bill becoming law if it modifies the law relating to a matter reserved to Westminster in a way that adversely affects how the law works.
“One of those matters is equal opportunities, and what the UK Government says is the Scottish Bill modifies the law relating to equal opportunities in a way that adversely affects how it works.
“So if you think about it, the result will be that some UK citizens, if this Bill comes into force, will have a different legal gender in different parts of the UK depending on where they happen to be.
“That poses really quite serious legal and practical problems for employers and for public authorities operating equalities legislation on a UK-wide basis.”
He said the Scottish Government “will have to argue that gender recognition is nothing to do with equal opportunities”, instead saying the legislation is about “defining a person’s legal status”.
But he said the impact of the bill could “introduce serious problems”, highlighting that Lord Hope, a former deputy president of the Supreme Court, had “described the Scottish Government’s position as ‘hopeless and a waste of public money’”.
Lord Sumption said: “I wouldn’t go that far. I think that the Scottish Government’s legal position is arguable, but I think it is weak.
“Their basic problem is that gender reassignment is a protected characteristic and the Bill alters the way the law works as applied to those.
“The whole scheme of the Scotland Act is that matters that affect only Scotland are devolved to Scotland, matters that affect the whole of the UK remain in the jurisdiction of Westminster. That is the way the Scotland Act works.
“The UK Government is arguing that this is something that affects the way that UK-wide legislation works.”
