Scottish ministers will challenge in court the UK government’s block on Holyrood’s gender recognition reform bill, putting the new first minster, Humza Yousaf, on a constitutional collision course with Westminster only two weeks after his election.
Scotland’s social justice secretary, Shirley-Anne Somerville, announced on Wednesday that she had informed the Scottish parliament that ministers would lodge a petition for a judicial review of the decision in January by the UK’s Scotland secretary, Alister Jack, to use section 35 of the Scotland Act 1998 for the first time to halt the Holyrood bill from going for royal assent, citing concerns that it would have an “adverse impact” on UK-wide equalities law.
The bill, first proposed by Nicola Sturgeon six years ago, was passed by the Scottish parliament by 86 votes to 39, with the overwhelming support of the SNP, Labour, the Greens and the Liberal Democrats, in December after years of consultation and debate. It would have made Scotland the first part of the UK to introduce a self-identification system for people who want to change gender.
Somerville said the move was necessary to achieve legal clarity on the interpretation and scope of section 35 and its impact on devolution. While gender recognition is a devolved matter, equalities legislation – which the new law will interact with – is reserved to Westminster.
Somerville said: “The gender recognition reform bill was passed by an overwhelming majority of the Scottish parliament, with support from members of all parties. The use of section 35 is an unprecedented challenge to the Scottish parliament’s ability to legislate on clearly devolved matters and it risks setting a dangerous constitutional precedent.
“In seeking to uphold the democratic will of the parliament and defend devolution, Scottish ministers will lodge a petition for a judicial review of the secretary of state for Scotland’s decision.
“The UK government gave no advance warning of their use of the power, and neither did they ask for any amendments to the bill throughout its nine-month passage through parliament. Our offers to work with the UK government on potential changes to the bill have been refused outright by the secretary of state, so legal challenge is our only reasonable means of resolving this situation.”
Defending the UK government’s decision to block Scotland’s gender recognition law changes, Rishi Sunak said: “We said at the time, the secretary of state said at the time, it was a decision that we made after taking very careful and considered advice.
“We had concerns, as the UK government – the secretary of state set this out at the time – concerns about how Scotland’s gender recognition act would interact with reserved powers, about the operation of the Equalities Act, the protection of women elsewhere in the UK as well. That’s why we took the decision to block the [bill]. Obviously there’s a court process, we will follow that through.”
