18 January 2023

Section 35: where the culture war crashes into Britain’s ‘NQF’ constitution


In Crocodile Dundee, the scene where Paul Hogan is on the receiving end of an attempted mugging is resolved in his favour when he one-ups the mugger’s knife.

‘That’s not a knife,’ says the Australian, disparaging his interlocutor’s switchblade. ‘This is a knife,’ he adds, brandishing a ten-inch Bowie blade.

Well, it’s fair to say Scotland has now one-upped Australia, at least when it comes to legal shenanigans.

Known locally as ‘the Dismissal’, Australia’s 1975 constitutional crisis emerged as a result of a system whereby the House of Representatives (lower house) and the Senate (upper house) are not only elected using different – and equally democratic – voting methods, but also enjoy near-equal power. The Senate cannot initiate money bills, for example, but it can block them. 

In 1975, when the Senate was controlled by a different political party from that commanding a majority in the lower house, it blocked supply, meaning that unless the incumbent prime minister called an election, the government would run out of funds to pay the country’s military and civil service.

The prime minister refused to call an election, with the result that the Queen’s official representative, the Governor-General, sacked him. A caretaker PM was installed, and only then was an election called.

I’ve spent many years believing this is about as messy as a constitutional crisis gets in a modern parliamentary system. One must go back hundreds of years and include civil wars and invasions to find something worse. Scotland, meanwhile, has pitched up on Canberra’s parliamentary lawn and thrown down the gauntlet: you call that a constitutional crisis? This is a constitutional crisis!

In brief, this is what’s happened: Holyrood has passed a piece of legislation that collapses legal sex into biological sex, meaning that men can become women and women can become men, but only if they were born in Scotland or are ‘ordinarily resident’ there. However, there is already law in force throughout the rest of the UK that either makes this impossible or at least difficult: all set about with fever-trees, much like Rudyard Kipling’s great, grey-green, greasy Limpopo River.

If aliens land during UK plc’s Holyrood v Westminster litigation stooshie – I’m imagining Dr Who and the Tardis here – they’ll likely turn tail and run, giving us up for lost. There is something especially potty about a gender-loon induced constitutional crisis. 

How did we get here?

The short answer is that the Government has decided to use section 35 of the Scotland Act 1998 to ‘veto’ the Gender Recognition Reform (Scotland) Bill. That this is the first time that section 35 has been used speaks to the messiness of UK devolutionary arrangements, and the complex interplay between ‘reserved’ and ‘devolved’ powers. 

Australian, Canadian, German, and American lawyers often – and unkindly – refer to the UK’s attempt to carve powers for the four Home Nations from the body of a unitary state as ‘NQF’ – not quite federalism because the system is so idiosyncratic. These are countries, remember. Yet, during the coronavirus pandemic, Wales – a country – could not close its borders, while Western Australia, a mere state in a federal system, could.

The long answer, of course, is far more complicated.

The Scottish Parliament is a creature of statute. Its powers are borrowed ones, derived ultimately from Westminster, which, in its turn, is ‘sovereign’ or ‘supreme’. Holyrood has ‘competence’ to enact primary legislation, which in practice is anything that doesn’t relate to reserved matters. This means MSPs can change common law rules (an old power – remember, Scotland has a different, Roman-law-inflected legal system) or repeal Westminster acts if they fall outside the list of reserved matters in Schedule 5 or aren’t ‘protected from modification’ under Schedule 4

Ordinarily, if the Government (or Scotland’s Lord Advocate) believed a Holyrood Bill related to a reserved matter, then one or another of the designated law officers could refer it to the UK Supreme Court – also before Royal Assent – under Section 33 of the Scotland Act. This would leave the courts with the final word. I suspect, but cannot prove, the Government has decided to invoke Section 35 precisely because Scotland’s Gender Reform Bill doesn’t touch a hair on the (reserved) Equality Act’s head.

But the Gender Recognition Reform (Scotland) Bill amends an existing piece of legislation – the Gender Recognition Act (UK) 2004 – which the Scottish government argues is fully devolved, and so entirely within its legislative competence. The Government, however, argues that the GRA blends reserved and devolved matters, in part based on its legislative history.

Holyrood’s 2004 consent

The UK Parliament does not legislate in devolved matters in Scotland without the consent of the Scottish Parliament. This is known as the ‘Sewel Convention’. The mechanism by which the Scottish Parliament indicates its consent to Westminster legislation in devolved areas is called a Sewel Motion (no giggling up the back, please)

There was a Sewel Motion passed by the Scottish Parliament in January 2004. It indicated, contrary to what the current Scottish government now says, that gender recognition touches on both devolved and reserved matters. 

The motion (S2M-813) states that the (then) Scottish Executive recognised that ‘the legal recognition of transsexual people combines reserved and devolved policy areas’ and that ‘the Scottish Parliament could provide partial legal recognition of a transsexual person’s acquired gender but not the reserved policy aspects’. Of note is the observation that ‘if there were marked differences in the legal recognition of transsexual people north and south of the border, this could give rise to cross-border issues (…) would a transsexual person living in Scotland but with a birth register entry in England find that legal recognition in Scotland is sufficient to secure a new birth certificate from the Registrar General?’

Section 35, the nuclear option

This disagreement over the workings of the Gender Recognition Act – reserved or devolved or a bit of both – is why the Government has taken the Section 35 nuclear option. 

Section 35 gives the Secretary of State immense power to order Holyrood’s Presiding Officer not to submit a Scottish Bill for royal assent if one of two tests are met. This is the case even if the Bill falls entirely within devolved competence and doesn’t relate to reserved matters. 

For Section 35 to apply, the Holyrood Bill being blocked must make (a) ‘modifications of the law as it applies to reserved matters’ that (b) 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.’

Several things fall out from this.

Judicial review

First, both tests are amenable to judicial review. While Labour suggested on Monday that Westminster and Holyrood could sort out their differences by negotiating over the substantive content of the Scottish Bill, redrafting it until acceptable to both parties, all the signs to date are that Nicola Sturgeon will seek judicial review in the Scottish courts. However, if she is successful in the Court of Session, the Government will almost certainly appeal to the Supreme Court. 

That said, both HMGov and ScotGov have hopes for the Scottish stage of the litigation. There are two conflicting Court of Session opinions dealing with the relationship between the Equality Act and the Gender Recognition Act, both involving the charity For Women Scotland. One is from the Inner House, which is the superior court, but of a general nature. The other (and more recent) is from the Outer House, so subject to appeal (and possible overrule) within or outwith Scotland, but is directly on point.  

The substantive question as to whether the Scottish Bill modifies the law as it applies to reserved matters in an adverse way depends on which Court of Session opinion is followed. Glasgow University public law specialist Michael Foran makes a compelling case in an area plagued with legal obscurity and radical uncertainty that if the later, more directly relevant ruling is followed, there will be at least six changes to the working of UK law. 

These changes include granting biological males aged 16 and 17 the right to attend single-sex schools; facilitating falsehoods in the making of statutory declarations (a fraudulent declaration to change one’s legal sex for nefarious reasons becomes trivially easy), and allowing biological males with a Gender Recognition Certificate to satisfy the Public Sector Equality Duty (so a biological male with a GRC can be appointed to a board as a woman, for example).

‘If this Bill does what it claims to do and changes the criteria for obtaining a UK Gender Recognition Certificate in Scotland and for those born in Scotland,’ Foran notes, ‘then those certificates will be valid across the UK. This will mean that the changes set out above will not be confined to Scotland’.

Foran wrote his analysis long before the Government’s publication of its reasons for pulling the Section 35 lever. The extent to which he and Westminster’s lawyers agree is striking, although there are notable differences of detail. 

Beyond law, there is politics

If England and Wales underwent a political realignment over Brexit, something I’ve discussed previously for CapX, then it’s fair to say Scotland has undergone a similar realignment over independence. This means Scotland’s famously disciplined Nationalists have been able to depict conflicts between Westminster and Holyrood as the big one bullying the wee one, uniting a plurality of Scots behind their cause.

Gender woo-woo, however, has exposed chinks in the SNP’s armour. It’s not just that ScotGov’s gender recognition reform plans are unpopular among Scots; they’ve also exposed dissension within the SNP itself. First over the top was Westminster SNP MP Joanna Cherry KC, but she has been followed by backbench MSPs voting against the bill in Holyrood, while Ash Regan quit as Community Safety minister in protest. 

To conclude with another (sometime) Australian actor, perhaps one must imagine Mel Gibson in William Wallace guise being told that gender recognition reform is the hill on which Nicola expects him to die.

Click here to subscribe to our daily briefing – the best pieces from CapX and across the web.

CapX depends on the generosity of its readers. If you value what we do, please consider making a donation.

Helen Dale read Law at Oxford and Edinburgh and won the Miles Franklin Award for her first novel, 'The Hand that Signed the Paper'. Her latest novel is 'Kingdom of the Wicked'; it was shortlisted for the Prometheus Prize for science fiction.

Columns are the author's own opinion and do not necessarily reflect the views of CapX.