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by Staff reporter
19 December 2023
Scottish Government expected to make announcement on appeal of gender case

Scottish Government expected to make announcement on appeal of gender case

The Scottish Government is expected to announce whether it will attempt to appeal a court ruling over its gender reforms before breaking for Christmas.

Last December the parliament passed its controversial Gender Recognition Reform (GRR) Bill after sitting late into the night to hear over 150 amendments.

The legislation was immediately opposed by the UK Government, with Scottish Secretary Alister Jack using powers granted to him under Section 35 of the Scotland Act to prevent the bill from being enacted.

In April the Scottish Government launched judicial review proceedings into how that decision was made, claiming Jack had acted inappropriately. The Court of Session found against it last week.

The Scottish Government has until 29 December to attempt to appeal that decision, which was handed down by Lady Haldane, but according to The Herald newspaper it has decided against any further action.

The Scottish Government has confirmed that there will be a ministerial statement on the matter on Wednesday afternoon.

During a three-day gearing in September Lord Advocate Dorothy Bain KC argued that Jack had incorrectly invoked Section 35 of the Scotland Act, which can only be used if devolved legislation would alter the law on reserved matters.

While the UK Government’s position was that the GRR Bill would impact on the UK-wide Equality Act, Bain argued that Jack had intervened purely because his government did not like the Holyrood policy. Lady Haldane dismissed Bain's argument.

"Whilst [...] I have no hesitation in accepting that the petitioners [the Scottish Government] hold a sincere view as to what they suspect to be the motivation behind the making of the order I cannot on the material before me, conclude that the order was made on [a bad faith] basis," she wrote in her judgment.

Lady Haldane said that "perhaps self-evidently" if Jack had blocked the bill "in response to, or as a result of, a policy disagreement between the respective legislatures, then that would be an end of matters".

"The conditions for the making of an order under Section 35 would clearly not be met," she added.

She noted the Scottish Government's position that the UK Government should have raised concerns earlier in the legislative process rather than simply blocking the bill once passed, but concluded that that "does not support the inference or conclusion that a policy disagreement lay behind the making of the order".

After the ruling was handed down Jack said Scottish ministers “need to stop wasting taxpayers’ money pursuing needless legal action and focus on the real issues which matter to people in Scotland”.

First Minister Humza Yousaf said the judgment represented a "dark day for devolution" but said his government respects the court's ruling and "will take time to consider its findings".

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