THE Scottish Government has “grounds” to appeal the Court of Session decision that the use of a Section 35 order was lawful as the ruling doesn’t “answer all the questions”, a legal expert has said.
On Friday, Lady Haldane ruled that the UK Government was able to use a little-known part of the Scotland Act to block the Gender Recognition Reform Bill from becoming law.
Several issues arose during the two-day hearing in September where the Lord Advocate put forward the Scottish Government’s case.
Nick McKerrell, senior lecturer in law at Glasgow Caledonian University, told The National that his view was that Haldane’s judgment set a “low bar” for what evidence UK ministers would need to provide before using a Section 35 order.
He added that there also needs to be more clarity around the limitations of a Section 35 order.
First Minister Humza Yousaf said following the judgment that he would take time to “consider” the details of the ruling before deciding whether or not to appeal.
The Scottish Government has 21 days to decide whether or not to pursue the legal challenge to the Inner House of the Court of Session, where it would be heard in front of three judges.
It could end up going as far as the Supreme Court for a final decision.
LGBT+ charities and supporters of the legislation have urged Yousaf to push forward with an appeal, while opponents have insisted he should drop it.
Scottish Secretary Alister Jack said the FM should stop “wasting taxpayers money”, while Labour said the ruling should be “respected”.
McKerrell said that it was important the courts reviewed the Section 35 order as it had never been used before.
“I don’t think it answers all the questions,” he said of Haldane’s ruling.
“She was quite dismissive of the arguments, which to be honest were not the main arguments of the Lord Advocate but this policy dispute and overturning a policy difference.”
Haldane ruled that there was a modification of the UK-wide law, but did not go so far as to say that there would be “adverse effects”, which was the basis of the UK Government’s argument for using the order.
“That seems to be a bit unusual,” he said.
“I think she's probably hinting at, if there’s an adverse effect or not, that's a value judgment.
“I don't buy that to an extent because it's critical to the Section 35 order, the fact that that's been done, and she doesn’t mention it.”
The lecturer added that he had concerns over her ruling that the information Jack used to make the decision to law the order was strong enough.
The Scottish Secretary came to his decision to use a Section 35 order based on seven documents, six of which were from groups hostile to the legislation, and internal advice from the Cabinet Office’s Equality Hub.
It was one of the main issues during the hearing, regarding the quality and quantity of advice and evidence Jack should have used to make his decision.
“That’s a fairly low bar that she’s set,” McKerrell (below) said.
“It's not true to say that it was just done on a whim or just done for political reasons, that there was evidence, even though it was limited, even for a short period of time.
“I think that’s a challengeable view of evidence that you need to look at to make such an order under Section 35.
“I think it underplayed the significance of the Section 35 order.
“It was an important case to bring because it's not been done before, she [Haldane] doesn’t see it as something big in devolution, which I would say is quite unusual.
“It’s never been used before and there’s a reason for that, it’s because it’s such an extreme method for the UK Government to use and that doesn’t really come across in her ruling.”
He added: “If it's such an unusual thing, I think there should be a higher barrier of evidence to justify using it.”
McKerrell said that the Scottish Government would have plenty of reason to pursue the case through the courts on a legal basis.
He said: “There is ground there I would say. It’s more the expense of it. There are issues there that are not really explored.”
