SCOTTISH Secretary Alister Jack acted “irrationally” when he vetoed Holyrood’s gender reforms, the Scottish Government has argued in its legal challenge to the decision.
The court petition seeking to overturn the decision via a judicial review also argues Mr Jack’s reasoning was “inadequate”, “irrelevant” and ill-founded in law.
Social Justice Secretary Shirley-Anne Somerville published the petition last night in the interests of transparency after securing permission from the courts.
Holyrood passed the Gender Recognition Reform (Scotland) Bill before Christmas, but Mr Jack stopped it becoming law by the unprecedented use of a ministerial veto.
He laid an order under Section 35 of the 1998 Scotland Act, which allows Westminster to block devolved law if it interacts with and undermines reserved UK-wide law.
READ MORE: SNP ministers had 'no option' in launching gender reform legal fight
Mr Jack said the Holyrood Bill would have an adverse effect on UK equality law.
The Bill is intended to simplify the process for a legal change of gender, replacing a medical diagnosis with self-identification, and lowering the age threshold from 18 to 16.
Advocates say it is a long overdue administrative change, while critics warn it could undermine women’s rights and jeopardise single sex spaces.
During the SNP leadership contest, Humza Yousaf was the only one of the three candidates to back a legal challenge to the Section 35 order, saying it was a matter of principle for him that the first use of such a veto should be tested in court.
He also warned that if Westminster overreach was allowed to stand, more Holyrood laws could be blocked, undermining devolution itself.
Last week, Ms Somerville confirmed she would try to have the Section 35 order set aside in a judicial review in the Outer House of the Court of Session.
The losing side can appeal to the Inner House and then to the UK Supreme Court.
Ms Somerville gave a further statement to MSPs yesterday, saying Scottish ministers had “no option” but to challenge the veto, as Mr Jack had failed to explain how the Bill could be remedied to his satisfaction, and it was necessary to protect basic democracy.
She refused to publish the Lord Advocate’s advice to Scottish ministers on their prospects of success, but did say the petition for judicial review would be made public.
The 22-page document says the Scottish Government's challenge is based on four counts: that Mr Jack made a “material error of law”, that his concerns about the safeguards in the Bill were “irrelevant” to the Section 35 order, and that his reasons were “inadequate”, which would make the order “unlawful”.
Lawyers for the Scottish Government also asserted his concerns were “irrational”.
The submission said: “Having regard to the absence of any supporting evidence produced by the Secretary of State, and in the context of research, consultation and comparative information available to, and considered by, the Scottish Parliament during the Bill’s passage, the Secretary of State’s concerns about the operation of the Bill are irrational”.
The lawyers also said three criteria for making such an order – that the Bill being blocked impacts on reserved matters, that Mr Jack had “reasonable grounds” to believe it would impact on the operation of reserved laws and that the Scottish Secretary must provide adequate reasons for the block – had not been met.
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A spokeswoman for the UK Government said: “The UK Government will robustly defend the decision to prevent the Scottish Government’s Gender Recognition Reform Bill from becoming law.
“The Scottish Secretary made the order under Section 35 of the Scotland Act 1998 after thorough and careful consideration of all the relevant advice and the policy implications.
“He was very clear in the accompanying statement of reasons how the Bill would have an adverse effect on reserved matters, including on the operation of the law as it applies to Great Britain-wide equalities protections.
“The use of the power is entirely within the devolution settlement as set out from its inception, with cross-party support.”
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