IT is “irrelevant” if Alister Jack blocked Scotland’s gender reforms due to a policy disagreement, a UK Government law officer told the Court of Session.
During the second and final day of submissions in Edinburgh, David Johnston KC claimed that the Lord Advocate's argument that the Scottish Secretary based his use of a Section 35 order on a disagreement over policy is a “red herring”.
Johnston was defending the UK Government’s use of a Section 35 order of the Scotland Act which prevented the Gender Recognition Reform (Scotland) Bill from gaining royal assent, despite being passed by a majority of the Scottish Parliament.
He argued that a Section 35 order is “as much part of the constitutional framework as any other provisions in the Scotland Act”.
When the order was laid by Jack in January this year, it was the first time one had been used in the history of devolution.
On Tuesday, Lord Advocate Dorothy Bain said that Jack used the powers because he would have “legislated” differently.
She also set out how the Scottish Secretary had not consulted a wide range of evidence when making his decision, stating that six out of seven letters he referred to were “hostile to the bill”. Bain said he had “shut his eyes to half the debate”.
On Wednesday, Johnston responded to the case put forward by the Lord Advocate and said Jack had “justified grounds” for laying the order. He also argued that the Scottish Secretary had a “narrower” exercise to undertake than the Scottish Parliament when making his decision, and it was in his judgment which evidence he referred to.
He added: “The response I give to this is, firstly, that the secondary sight power is in no way unconstitutional, and as I've said before, it's part of the very structure of devolution under the Scotland Act.
“The second point is that the reference to a veto on grounds of a policy disagreement is a red herring.
“The sole question is whether the Section 35 preconditions are met and whether the discretion was rationally exercised, whether there is or whether there might be a policy disagreement is simply irrelevant.”
Johnston insisted that there is “nothing in the order which refers to any policy disagreement”.
He later told the court that Jack was “justified” in his concerns that the gender reforms legislation would have an adverse effect on the operation of reserved law.
While the Lord Advocate argued on Tuesday that this would not occur as those who acquired 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.
Johnston argued that it would only an “unduly narrowly formulistic” view that could consider the proposed legislation did not adversely impact reserved equality laws.
The UK Government states the Scottish legislation “amended or superseded” the 2004 Gender Recognition Act because it alters the meaning of a gender recognition certificate (GRC) by removing the need for a gender dysphoria diagnosis and lowering the application age to 16.
Johnston also told Judge Lady Haldane that she should not consider the submissions put forward by LGBT+ charities including Stonewall and the Equality Network, as they stray beyond the grounds on what the court was considering.
On the Lord Advocate’s point that the reasoning around the impact on IT systems cross-border was muddled in the reasons set out by Jack, Johnston said the systems are in place to apply the law for benefits and other systems. Therefore, he argued, the impact of the bill is capable of having an effect on their operation, which are matters of law applying to reserved matters.
And, in response to Bain’s argument regarding the reasons that Jack used to lay the order, Johnston said there was “no doubt of the principle reasons” behind making the order.
Johnston concluded giving his evidence before 3pm, with the Lord Advocate then responding on a number of points.
In particular, on international comparators used in the evidence from LGBT charities, Johnston has earlier argued that they are of “limited assistance” because none are in a similar situation with devolution in the UK. The Lord Advocate disputed this and said there are many comparable processes in Canada, Spain, Mexico, the United States and Australia, which have different gender recognition rules in different regions.
At the end of the proceedings, Lady Haldane asked both Bain and Johnston for their input on whether she should wait for the outcome of the For Women Scotland appeal case in the Inner House, which relates to the legal definition of a woman, before publishing her ruling.
Both parties agreed that she should not wait, and the court adjourned after Haldane thanked both for their “careful and thoughtful submissions”.
