Scottish Parliament

The UK Government has decided to use section 35 of the Scotland Act 1998 to “veto” the Gender Recognition Reform (Scotland) Bill. This is the first time that section 35 has been used.

This Insight looks at when section 35 can be used and the procedure when it is.

What is section 35?

Section 35 of the Scotland Act 1998 has been called the Secretary of State for Scotland’s “veto” power. A 2012 Memorandum of Understanding refers to its use as “a matter of last resort”.

The power is exercised through a negative statutory instrument presented to the UK Parliament, which would provide a legal instruction to the Presiding Officer of the Scottish Parliament not to present a bill to the King for Royal Assent. This would mean that although the Scottish Parliament has passed the Gender Recognition Reform Bill, it would not become law.

Section 35 can be used in two different situations, where the Scottish Secretary has “reasonable grounds to believe” that a Holyrood bill:

  • would be incompatible with the UK’s international obligations or not in the interests of national defence

or

  • would modify the law on reserved matters in such a way as to have an “adverse effect” on the operation of the law as it applies to reserved matters.

Reserved matters are policy areas – such as defence and foreign affairs – which are the responsibility of the UK Government and Parliament.

Similar powers for the Secretaries of State for Wales and Northern Ireland exist in section 114 of the Government of Wales Act 2006 and section 14 of the Northern Ireland Act 1998. Neither provision has ever been used.

Why is section 35 being discussed?

The Gender Recognition Reform (Scotland) Bill operates at a complex intersection between devolved and reserved matters. It is about a devolved matter (gender recognition reform), but it has potential consequences for how the law would operate in reserved areas (particularly equal opportunities law and the Equality Act 2010).

The Equality and Human Rights Commission has expressed concerns about the cross-border impacts of the Scottish legislation. Dr Michael Foran, a lecturer in public law at the University of Glasgow, has made the case for the use of a section 35 order in a publication for the Policy Exchange think tank. Iain Anderson, a former LGBT+ adviser to the UK Government, has urged the Prime Minister to “respect the devolution settlement, and allow the bill to pass”.

The UK Government indicated, through both the Secretary of State for Scotland (Alister Jack) and the Minister for Women and Equalities (Kemi Badenoch), that it had concerns about the Bill and was contemplating the unprecedented use of section 35 to prevent its enactment. On Monday 16 January Alister Jack confirmed he would do so on the basis that the “adverse effect” test had been met.

Process for using section 35

Under section 32 of the Scotland Act 1998, the Presiding Officer can only present a bill for Royal Assent if four weeks have passed since stage three (the Holyrood equivalent of a third reading) and it has been communicated to them that:

  • the bill will not be referred to the Supreme Court under section 33
  • or that there will not be a section 35 order made by the Secretary of State for Scotland

This means the Secretary of State for Scotland had until (and including) Thursday 19 January 2023 to make a section 35 order.

Schedule 7 of the Scotland Act 1998 provides that a section 35 order will immediately become and remain law unless it is rejected by either House of Parliament within 40 sitting days. The UK Government can also make time to debate a section 35 order in Parliament.

What would happen if a section 35 order is made?

A section 35 order cannot be overturned by the Scottish Parliament. The Scottish Government could amend and reconsidered the Gender Recognition Reform (Scotland) Bill, or it could challenge the UK Government’s section 35 order via judicial review.

Such a challenge could argue that the Secretary of State for Scotland lacked “reasonable grounds” for believing the Bill would have an adverse impact on how the law operates with respect to reserved matters. A court would either find that the order was made lawfully or unlawfully. If the latter, then it would cease to have any legal force or effect and the Presiding Officer would be able to present the Bill for Royal Assent.

About the author: Dr David Torrance is the devolution specialist at the House of Commons Library

Photo by: Creative Commons Attribution-Share Alike 2.0 by Scottish Parliament © David Dixon :: Geograph Britain and Ireland

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