Scotland's top law officer has argued that the UK government's use of a Section 35 Order to block Scottish gender recognition reforms is unlawful. Lord Advocate Dorothy Bain told the Court of Session in Edinburgh that the court has a 'constitutional duty' to review the unprecedented veto by Downing Street.
The Gender Recognition Reform (Scotland) Bill, passed by the Scottish Parliament in December, would allow people in Scotland to self-identify their sex. However, Scottish Secretary Alister Jack used Section 35 of the Scotland Act for the first time to prevent the bill from receiving royal assent, citing concerns over its impact on the 2010 Equality Act.
Ms Bain argued that the conditions required to use a Section 35 Order had not been met, making its use unlawful. She stated that the order should be 'narrowly construed' and used only as a 'last resort'. The Lord Advocate also raised questions about the timing of the intervention, four weeks after the bill was passed, and accused Mr Jack of making 'material errors of law'.
David Johnston KC, representing the UK government, urged the court to reject the Scottish government's petition. He described Section 35 as 'integral to the constitutional distribution of power' and said it was Mr Jack's duty to protect UK interests if he identified adverse effects on reserved matters.
The civil case, heard by Lady Haldane, is expected to last several days. If the result is appealed, it could ultimately be heard in the Supreme Court in London.
