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by Louise Wilson
19 April 2023
Gender reforms: Scottish Government refuses to publish legal advice on section 35 challenge

Gender reforms: Scottish Government refuses to publish legal advice on section 35 challenge

The Scottish Government has refused to publish the legal advice it has received on its challenge of the UK Government’s section 35 order blocking the Gender Recognition Reform Bill.

However it hopes to publish its petition for judicial review on Thursday, social justice secretary Shirley-Anne Sommerville confirmed.

The government has received special permission from the courts to do so.

Somerville, in a statement to parliament on Wednesday, said the UK Government had not taken any steps to resolve its concerns nor had it warned of a section 35 order before the bill was passed.

She said: “Far from raising these concerns of amendments through the normal government channels, rather than following the memorandum of understanding, the Secretary of State used a section 35 power exactly as even Conservative MPs feared at the time of the 1998 Act: an absolute veto to strike down any devolved legislation passed by a majority of this parliament he dislikes without discussion, based on political not policy judgement.”

The cabinet secretary said there was “no option” but to challenge the UK Government because it had not engaged with the Scottish Government since laying the order.

She also warned the failing to challenge the order would embolden the UK Government to veto future legislation passed by the parliament.

Tory constitutional affairs spokesman Donald Cameron accused the Scottish Government of using the section 35 row to “divert attention from the serious crisis that is engulfing the SNP”.

He said the legal challenge “doesn’t benefit the trans community, it doesn’t benefit women, and it doesn’t benefit the Scottish taxpayer”.

“We are yet to see the details of the Scottish Government’s decision… If it is in the public interest for the Scottish Government to challenge the section 35 order, then logically it follows it is also in the public interest for the Scottish Government to publish its legal advice,” he added.

Somerville said while her government is “keen to be as transparent on this as possible”, it is “convention” not to publish legal advice.

The government will publish costs associated with the challenge at the end of the process, she said.

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