THE Scottish Government has failed in a bid to postpone a legal hearing with the UK Government over Westminster's decision to block controversial gender recognition reforms.
Lawyers for Scottish ministers sought a cancellation of the hearing scheduled in September in the Court of Session on Friday.
Advocate Paul Reid told judge Lady Haldane that a postponement was needed due to an appeal brought by For Women Scotland to the Inner House of Session, STV reports.
However, Lady Haldane refused the Scottish Government's request.
Reid is acting on behalf of the Scottish Government in the judicial review being brought to the Court of Session.
The Scottish Government says Westminster acted unlawfully by blocking the legislation, passed by cross-party MSPs in Holyrood last year, which would make the process for applying for a Gender Recognition Certificate (GRC) simpler.
Scottish Secretary Alister Jack used Section 35 of the Scotland Act to block the legislation from being given Royal Assent and becoming law.
Reid told Lady Haldane that he believed the outcome of the For Women Scotland appeal could have ramifications for the judicial review, as both cases had issues in comment.
However, lawyers acting on behalf of Advocate General Lord Stewart of Dirleton KC, the UK Government’s law officer in Scotland, urged Lady Haldane to refuse the request.
David Johnson KC argued that the hearings could proceed as they dealt with different legal issues, and claimed that the Scottish Government knew of the For Women Scotland appeal at the time the September hearing was arranged.
He said that the request to postpone proceedings came “too late” and it was in the public interest to have the matter heard as soon as possible.
Lady Haldane agreed with the UK Government’s lawyers and refused the Scottish Government’s request.
“In any event, I do not accept that the issues in the For Women Scotland case and the issues in this motion brought by the petitioners are the same,” she said.
“In the event that For Women Scotland is successful in the Inner House, further submissions on the case can be made for whatever they see is appropriate.
“For these reasons, I refuse the motion.”
Social Justice Secretary Shirley-Anne Somerville (pictured above) said that the use of a Section 35 order by Westminster was “an unprecedented challenge to the Scottish Parliament’s ability to legislate on clearly devolved matters”.
She argued that it risked setting a "dangerous constitutional precedent" if Westminster could unilaterally decide to block Holyrood bills on a whim.
However, legal papers lodged by the Advocate General argue that Jack was correct to use a Section 35 order.
“There were reasonable grounds for the secretary of state to believe that the relevant provisions would have an adverse effect on the operation of the law as it applies to reserved matters," it states.
“The order is accordingly lawful.”
The UK Government have repeatedly claimed that the legislation would impact UK-wide equality law and also that it could undermine the 2004 Gender Recognition Act.
However, this has been widely disputed, and the UK Government will have to set out its reasoning as the legal challenge makes its way through the courts.
For Women's Scotland's lawyers are set to appeal a decision made by Lady Haldane regarding the definition of a woman in relation to gender representation on public boards legislation.
The appeal is set for October 2023. Haldane previously ruled against For Women Scotland.
She ruled that the meaning of "sex" is not limited to biological or birth sex, but can include those in possession of a GRC "obtained in accordance with the 2004 Act stating their acquired gender, and thus their sex."
Essentially, the ruling meant transgender women with GRC's can legally be defined as women when it comes to legislation to ensure gender balance on public boards.
