The UK Government unlawfully blocked the Scottish Parliament from making it easier for people to change gender because it disapproved of the policy, a court has heard.
Lord Advocate Dorothy Bain KC told Scotland’s highest civil court on Tuesday that Westminster had stepped in to stop the legislation because it disagreed “on policy grounds”.
She was setting out the Scottish Government’s case in the first part of a three-day hearing at the Court of Session in Edinburgh, being held in front of judge Lady Haldane.
The case was triggered in response to Scotland’s reforms to gender recognition laws being blocked by the UK Government in January, despite being passed by a majority of MSPs.
It was the first time in the history of devolution that Section 35 of the Scotland Act had been used to prevent legislation passed in Edinburgh from gaining Royal Assent.
Scottish Secretary Alister Jack argued that the Gender Recognition Reform Bill would have had an “adverse impact” on UK-wide equalities laws.
The legislation would have made it easier for people in Scotland to change their legally recognised gender by adopting a system of “self ID” rather than medical diagnosis.
It would also have lowered the age at which someone could apply to change gender north of the border from 18 to 16.
Ms Bain told the court that the Section 35 order blocking the legislation should be declared unlawful, warning that if the UK Government won the case, then the Scottish Secretary could in future “veto practically any act of the Scottish Parliament…because he disagreed with it on policy grounds”.
She added: “That would be tantamount to the Scottish Parliament being able to legislate only insofar as the UK executive consented, such consent only being indicated four weeks after a Bill had completed its parliamentary passage.
“In my submission, such an approach would run counter to the overarching intention of the Scotland Act, the main purpose of which was to create a stable and coherent framework within which to devolve power from Westminster to the Scottish Parliament.”
The Lord Advocate also said it was “striking” that there was “not a whisper” of warning from the UK Government during the Bill’s progression through Holyrood that it could trigger a Section 35 order.
Ms Bain is expected to continue setting out the Scottish Government’s arguments later on Tuesday and into Wednesday, with the UK’s case not being outlined until later.
Legal arguments published by Lord Stewart, Advocate General for Scotland, last month argued that the Holyrood Bill “modifies the law” relating to matters reserved to Westminster. “In making the [Section 35] order, the Secretary of State did not act irrationally on the basis of evidence which was before him or by taking into account any irrelevant considerations,” it said.
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