Question reference: S6W-17198
- Asked by: Rona Mackay, MSP for Strathkelvin and Bearsden, Scottish National Party
- Date lodged: 11 April 2023
Current status: Initiated by the Scottish Government. Answered by Shirley-Anne Somerville on 12 April 2023
To ask the Scottish Government whether it will provide an update on what its response is to the UK Secretary of State for Scotland’s use of section 35 of the Scotland Act 1998 to prevent the Gender Recognition Reform (Scotland) Bill from proceeding to Royal Assent, after it was passed by the Scottish Parliament.
The Gender Recognition Reform (Scotland) Bill was passed by an overwhelming majority of the Scottish Parliament, with support from members of all parties. The use of section 35 of the Scotland Act 1998 to stop the legislation proceeding to Royal Assent is an unprecedented challenge to the Scottish Parliament’s ability to legislate on clearly devolved matters.
The Order was made without any specific prior engagement or notification by the Secretary of State during the Bill process. It was made without any specific request for amendments to the Bill from any UK Minister. Since the Order was laid, and despite requests, the Secretary of State and the UK Government have refused to provide any further clarification or engagement with the Scottish Government or Scottish Parliament. We have offered to discuss specific changes to the Bill with the Secretary of State, but given that this offer has not been taken up, it is impossible to know what changes would satisfy the reasons the UK Government has given, particularly as he has highlighted that the existence of two different schemes within the UK is in itself problematic.
To uphold the democratic decision of the Parliament, and ensure proper protection of devolution, Scottish Ministers will now lodge a petition for judicial review of the Secretary of State’s decision. The Scottish Government does not consider the reasons set out by him provide sufficient justification for his decision to make an order under section 35 of the Scotland Act. The Scottish Government also believes that the UK Government has not used the power in line with the Memorandum of Understanding between the UK and Devolved Governments (agreed in 1999 and updated in 2013), or as envisaged when the Scotland Act was passed.
While the Scotland Act conferred the power in Section 35 on the Secretary of State, its use is unprecedented, so it is important to have clarity on the interpretation and scope of the power, and its impact on devolution. Those matters and the use of the power on this occasion should be legally tested in the courts.
The deadline for lodging a petition necessitates doing so during recess but I will make a statement to Parliament after the Easter recess, subject to agreement of the parliamentary bureau.
As is usual in these circumstances, the Scottish Government will not be able to comment on live legal proceedings.