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by Ruaraidh Gilmour
19 September 2023
Alister Jack’s decision to veto the GRR Bill was unlawful, says Lord Advocate

The Court of Session | Alamy

Alister Jack’s decision to veto the GRR Bill was unlawful, says Lord Advocate

The Secretary of State for Scotland’s decision to veto the Gender Recognition Reform Bill after it was passed by the Scottish Parliament was unlawful, according to Dorothy Bain KC.  

Speaking at the three-day hearing at the Court of Session, the Lord Advocate, acting on behalf of the Scottish Government, said that Alister Jack’s decision to issue a Section 35 under the Scotland Act, which blocked the Presiding Officer of the Scottish Parliament from submitting the legislation for Royal Assent, was neither reasonable nor rational and was therefore unlawful and should be thrown out.  

The Judicial Review led by Lady Haldane, heard from the Lord Advocate who described the information Jack used to form his opinion as “hostile” and that it cannot be permissible for the secretary of state to "shut his eyes to one side of the debate".  

Jack said that the bill, which would allow anyone above the age of 16 to self-declare to obtain a Gender Recognition Certificate (GRC) while cutting the two years living in an acquired gender to three to six months, would have adverse effects on UK-wide laws, particularly equality laws.

He argued that it would create a scenario where a person could be one legal sex in Scotland and another in England and Wales.

The Lord Advocate said that if Jack’s approach, which she argued was a “policy disagreement” rather than one based in law, was to be accepted the Secretary of State for Scotland “could veto practically any act of the Scottish Parliament because he disagreed with it on policy grounds”.  

She said: “That would be tantamount to the Scottish Parliament only being able to legislate only insofar as the UK Executive consented.”

Addressing safety concerns that have been raised regarding self-ID, Bain said there is "no credible evidence" from other countries that operating under this system is a "systemic risk" of predatory men identifying as women to perpetuate violence against women. She questioned why the secretary of state thinks otherwise.  

She questioned his reasoning for issuing a Section 35 order: “My complaint about the concerns being unspecified is not an abstract or academic complaint. It is, instead, very challenging to understand what the substance of the secretary of state’s concern is. It was for the secretary of state to explain his reasons, not for the Scottish ministers or any informed persons to work out what he was on about.    

“If it is permissible to look at what is said in the policy statement of reasons, the reader can be scarcely any the wiser.”

She added: “The main theme of my submissions is that the bill doesn’t affect the law as it applies to reserved matters and my submission is this, more using or falling within the scope of a legal provision doesn’t constitute an effect on the operation of the law.  

“Section 35 requires an impact on the operation of the law itself, not merely on its application on the facts of any given scenario. That is all the more so when the numbers of additional people who would be likely to get a Scottish Gender Recognition Certificate is very small in relation to the population of Scotland, and smaller still in relation to the population of the United Kingdom.”  

Bain added that the reasons for the order “were not published” when the secretary of state informed the House of Commons of his decision to veto the legislation and a “resolution seeking an annulment of the order was tabled but time was not allowed to debate and vote on it”.  

She said that as a result: “we are occupying dead ground and stepping into a vacuum.”  

David Johnston KC acting on behalf of the Advocate General and the Secretary of State for Scotland said, "there is nothing sinister" about the powers of Section 35 and told Lady Haldane it's part of Scotland Act and UK Government “machinery”.  

He said it allows Holyrood work within its competence, but also gives the Scottish secretary the ability to intervene in limited circumstances if there are concerns about effects on reserved law.  

Johnston said the case is not about a policy disagreement between Scottish and UK Governments, as the Lord Advocate claimed, but about the law.  

As the first day of the three-day hearing came to a close, he added that the court’s purpose is to review the Section 35 decision, and “whether the decision maker [Jack] made a decision within the range of reasonable responses” and not “arriving at what the court would have decided for itself”.  

The hearing continues tomorrow. 

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