Rethinking Section 35
As if relations between Holyrood and Westminster couldn’t get any worse, the decision by the Conservative government to use section 35 of the Scotland Act 1998 to block the Gender Recognition Reform (Scotland) Bill has created another point of friction.
Before this week, most people will not have even been familiar with section 35 because it hasn’t been used before and has since been described as the ‘nuclear option’ when it comes to legislative matters North of the border.
The relevant law reads as follows:
“If a Bill [from the Scottish Parliament] contains provisions…which make modifications of the law as it applies to reserved matters and which the Secretary of State has reasonable grounds to believe would have an adverse effect on the operation of the law as it applies to reserved matters, he may make an order prohibiting the Presiding Officer from submitting the Bill for Royal Assent.”
That Order was The Gender Recognition Reform (Scotland) Bill (Prohibition on Submission for Royal Assent) Order 2023 and it put a stop to the legislation, if not the political dispute.
The Bill itself would have made it much easier for someone to get a Gender Recognition Certificate and lowered the age at which a person can apply to 16. With that in mind, the political decision by the Conservative party to oppose the Bill is unsurprising given the attitude of the party towards trans rights and LGBTQ+ issues in general.
However this is not a purely political decision. Section 35 makes it clear that there must be “reasonable grounds to believe would have an adverse effect on the operation of the law as it applies to reserved matters”. Is that threshold met?