The Secretary of State’s veto and the Gender Recognition Reform (Scotland) Bill

What is section 35 of the Scotland Act 1998?

Section 35 of the Scotland Act 1998 gives the Secretary of State for Scotland the power, in certain circumstances, to veto legislation enacted by the Scottish Parliament, even if it deals with a devolved matter.

If section 35 is exercised, an order (secondary legislation) is laid before the UK Parliament which prohibits the Presiding Officer of the Scottish Parliament from submitting a bill to the King for Royal Assent.

When can section 35 be used?

For the Secretary of State to use section 35, the legislation in question must:

1. modify the law as it applies to reserved matters, and
2. the Secretary of State must have reasonable grounds to believe it would have an adverse effect on the operation of the law as it applies to reserved matters.

Gender recognition is devolved in Scotland, but equal opportunities is a matter “reserved” to the UK Parliament.

The Gender Recognition Reform (Scotland) Bill and section 35

On 16 January 2023, Alister Jack, the Scottish Secretary, said he was planning to make an order under section 35. This was to prevent the Gender Recognition Reform (Scotland) Bill, which the Scottish Parliament passed on 22 December 2022, from being submitted for Royal Assent.

The Scottish Bill will modify the UK Gender Recognition Act 2004 by requiring applicants for a Gender Recognition Certificate (GRC) to make a statutory declaration that they intend to live permanently in their acquired gender. The Bill would also lower the minimum age to apply for a GRC from 18 to 16, reduce the time period for getting a GRC and remove the requirement for applicants to provide evidence of gender dysphoria.

In a statement of reasons published on 17 January, the UK Government said the Bill would modify the 2004 Act in a way which would have an adverse effect on the operation of the Equality Act 2010 as it applies to reserved matters.

The Equality Act places an obligation on all public officials to have “due regard” for the need to advance equal opportunities between persons who share one of nine “protected characteristics” (which include “gender reassignment” and “sex”) and those who do not.

The UK Government says it is concerned that a having a different system in Scotland and the rest of the UK would impact single sex associations or clubs, the Public Sector Equality Duty and equal pay, while leading to an increase in fraudulent applications for GRCs.

The Scottish Government denies that its Bill would impact the 2010 Act in this way and has promised to “defend” it in court. On 12 April 2023 Shirley-Anne Somerville, the Scottish Social Justice Secretary, confirmed that the Scottish Government would lodge a petition for judicial review of the Secretary of State’s decision. The case will be heard in Outer House of the Court of Session on 19 September 2023. In a judgment handed down on 8 December 2023, Lady Haldane ruled that the UK Government’s action had been lawful.