This week, the Inner House of the Court of Session delivered judgment in Re Scottish Minister’s Petition 2023 CSOH 89. The case concerned the lawfulness of an Order made under section 35 of the Scotland Act 1998 to prevent the Gender Recognition Reform (Scotland) Bill from receiving Royal Assent. I wrote about this possibility at the time the Bill was passed. After the Order was made, the Scottish government challenged its lawfulness on grounds of error of law, irrationality, irrelevant considerations, and inadequate reasons. Lady Haldane rejected all of these arguments.
The Scottish government’s submissions were informed by a general claim that the use of a s.35 Order in this context constituted a breach of the separation of powers, an undermining of the devolution settlement and an example of a policy disagreement masquerading as a concern for the adverse effects on reserved law. As with the grounds of review, Lady Haldane rejected this framing and subsequently declined to interpret the relevant legal tests in light of these assertions. Instead, she approached the scope and exercise of the s.35 power by reference to “the four walls of the 1998 Act” [70]. This post will set out the core submissions raised and the response of the Court, before moving to analyse whether an approach which did account for background constitutional principles would necessarily result in a different outcome.
A Mere Policy Disagreement?
The Scottish government argued that the motivation for making the Order “emanates from a policy dispute on the topic of gender reform as between the UK and Scottish parliaments and thus constitutes an improper use of the power in section 35” [63]. This contention informed the claims relating to many of the subsequent grounds of review and so needed to be addressed. Specifically, this informed the Scottish government’s submissions concerning the intensity of review and formed the foundation of the claim that the Secretary of State’s decision was irrational and founded upon irrelevant considerations.
The thrust of the argument in favour of the Court drawing upon background constitutional considerations such as the separation of powers, parliamentary accountability and the constitutional balance struck by the devolution settlement was the factual claim that these principles were engaged because the UK government was acting improperly by virtue of an improper motive: using s.35 to resolve a policy disagreement rather than to alleviate any adverse effects on the operation of reserved law.
Lady Haldane noted that “The petitioners stop short of alleging actual bad faith on the part of the Secretary of State however, and examples of what might constitute a permissible exercise of the power, by way of contrast, were not explored” [63]. This is important because there are times when it appeared that the objection raised by the Scottish government was to the existence of s.35 itself, rather than the way that it was exercised in this case. Without any examples of what would constitute a permissible use of s.35 it becomes harder to identify how the use of the power in this case was unlawful, should the Court conclude, as it did at [64], that there was no evidence to support the claim that the motivation here was to resolve a mere policy disagreement.
In support of this contention, the Scottish government pointed to the lack of advanced warning before the decision to make the Order was intimated, citing the Memorandum of Understanding between the two parliaments on this point. From this, it invited the Court to infer that a policy disagreement lay at the heart of the decision, rather than concern with the effect the GRR Bill would have on the law as it applies to reserved matters. This was not an inference the Court was willing to make, given the lack of evidence presented to support it and the fact that both parties agreed that the Memorandum was not legally binding.
Additionally, the Court did not make any finding that the Memorandum was actually breached, accepting the respondent’s argument that “until a Bill is in final form (assuming there is no concern about its overall competency) the question of whether or not it might actually (a) modify the law and (b) have an adverse effect upon reserved matters, cannot be known” [64]. On 7 December 2022 the UK Minister for Women and Equalities wrote a letter to the Cabinet Secretary for Social Justice, Housing and Local Government flagging several concerns about the Bill, including those previously raised by the Equality and Human Rights Commission relating to “significant cross-border impacts” if the Bill became law. Thus, while there was no specific warning that s.35 was likely to be invoked, there was communication warning of adverse effects across Great Britain. Given the sheer volume of amendments which had yet to be voted on at this point, the Court accepted that it could not be known whether s.35 was engaged until after the final vote in the Scottish Parliament.
Was Section 35 Engaged?
A section 35 Order can be made in this context where:
- There has been a modification of the law as it applies to reserved matters, and;
- The Secretary of State has reasonable grounds to believe that this would have an adverse effect on the operation of the law as it applies to reserved matters.
In order for s.35 to be engaged, the first of these tests must be met. This turns on whether the Gender Recognition Act 2004 (GRA) applies to the Equality Act 2010. If it does, then the GRR Bill, by modifying the law establishing who is eligible to change sex under the GRA, will modify the operation of the Equality Act and by extension, the law as it applies to the reserved matter of equal opportunities. This question was conclusively addressed in the recent case of For Women Scotland Limited, where Lady Dorrian concluded that the GRA does apply to the Equality Act.
The Scottish government argued that the Secretary of State made an error of law in concluding that the first test had been met. This is because the effect of getting a Gender Recognition Certificate is set out in s.9 of the Gender Recognition Act, which has not been amended by the GRR Bill. As such, it was argued that there has been no modification of the law as it applies to reserved matters. Lady Haldane rejected this, concluding that:
Since the whole purpose behind the Bill is to widen the category of those who may apply, and to simplify the overall process by which a certificate may be obtained, it cannot be asserted that the meaning overall of section 9 has not changed, looked at objectively. The words “full gender recognition certificate” will no longer mean the same thing as they do currently, and focussing on the lack of amendment to the language of section 9 itself is to ignore the significance of a proposed amendment to the underlying meaning of a key component of that section.
[67]
Since the Scottish government accepted that s.9 of the GRA “operates as the interface between the Bill and the Equality Act” [67], Lady Haldane concluded that the first test had been met and s.35 was therefore engaged.
The Intensity of Review
Section 35 addresses Bills which are within the competence of the Scottish Parliament but which affect the operation of the law as it applies to reserved matters, where there are reasonable grounds to conclude that this effect would be adverse. It is for this reason that Lady Haldane dismissed the argument that this case would have been better dealt with under section 104, which allows UK ministers to enact subordinate legislation to alter Scots law in order to make an Act of the Scottish Parliament fully effective, because it
would not have been capable of addressing the concerns identified by the Secretary of State in this case. In particular, and significantly, the question of “adverse effects” is one that is specifically within the province of section 35 …
[68]
What matters here is whether the Secretary of State had reasonable grounds to conclude that the GRR Bill would adversely affect the operation of the Equality Act. To determine this, the Court needed to decide what the appropriate intensity of review was.
The thrust of the Scottish government’s argument in favour of a more searching review rests on the factual claim that the making of this Order was motivated by a mere policy disagreement: because this was just a policy disagreement, the use of the power in this case offended against the devolution settlement and engaged the separation of powers. But Lady Haldane rightly noted that, if this claim was true, then there would be no need to engage in a more intense review because s.35 wouldn’t be engaged:
Perhaps self-evidently, if this power had been invoked purely in response to, or as a result of, a policy disagreement between the respective legislatures, then that would be an end of matters.
[64]
At that stage, the question becomes: how searching must the Court be in assessing the presence or lack of reasonable grounds to infer adverse effects?
The UK government argued that Parliament provided for the s.35 power within a broader constitutional framework and, whilst its exercise is susceptible to judicial review, given the nature of the decision and the decision maker, its use is entitled to be afforded “great weight” as per R (Lord Carlile) v Home Secretary [2014] UKSC 60.
Lady Haldane stressed that the power is exercisable only upon certain preconditions being fulfilled and so is not unfettered [70]. Additionally, she was careful to stress that s.35 is not, on its own, a threat to the separation of powers or the rule of law [71]. Therefore, its exercise does not give rise to the kind of anxious scrutiny that might be appropriate in cases such as Miller/Cherry or Evans:
The principle of legality has no application in the present case where the question is not whether the executive is seeking to override the rule of law, or otherwise interfere with a reasoned decision of a court or other Tribunal. In other words, whether the executive is using a statutory power to interfere with a fundamental or constitutional right.
[71]
The appropriate intensity of review must be determined by reference to the fact that this is a statutory power that is as Lady Haldane stressed “itself part of the constitutional framework” [71]. Thus, while Acts of the Scottish Parliament enjoy, as per Lord Hope’s dicta in AXA, “the highest legal authority”, it must also be stressed, as it was in AXA, that “it is nevertheless a body to which decision making powers have been delegated. And it does not enjoy the sovereignty of the Crown in Parliament … The Scottish Parliament’s power to legislate is not unconstrained” [46].
Thus, while weight must be afforded to the democratic nature of the Scottish Parliament, immunising it from certain common law grounds of review, this does not create a presumption against the use of s.35 in the same way that there is a presumption against breach of fundamental rights or the rule of law that might trigger more intense judicial scrutiny.
Irrationality
The Scottish government argued that the Secretary of State had failed to acquaint himself with the relevant facts and material before making the Order, breaching the Tameside duty as reiterated and amplified by Hallett LJ in R (Plantagenet Alliance Ltd) v Secretary of State for Justice. Lady Haldane noted that he had before him several documents setting out information and advice on the extent to which adverse effects were anticipated should the Bill pass into law. She observed that “much of this material supported the concerns raised about adverse effects, particularly as regards the issue of inadequate safeguards” to protect against abuse.
In assessing whether the Secretary of State met his duty to acquaint himself with the relevant facts, Lady Haldane stressed the four-week statutory timeframe and the obligation to inform himself not just about potential adverse effects but also whether the GRR Bill, in its final iteration, would modify the law as it applied to reserved matters.
Additionally, the nature of this duty is quite different from the kind of exercise that a legislature such as the Scottish Parliament might be expected to undertake, given both the time-frame and the focus of the questions that need to be answered: for the Scottish Parliament it was the merits of Gender Recognition Reform; for the Secretary of State it was whether the GRR Bill adversely modified the law as it applied to reserved matters. Unsurprisingly, the material he would need to acquaint himself with was confined to that question. Indeed, had the Secretary of State focused on the former question, it might reasonably be said that he had strayed away from the legal test under s.35 and into the realm of policy disagreement. It is therefore contradictory for the Scottish government to argue, as it did, that it would be unlawful for the Secretary of State to focus on the merits of the GRR Bill while simultaneously arguing that failure to engage in detail with the substantive merits of the GRR Bill is also unlawful.
While others may have reasonably reached a different conclusion as to whether there were likely to be adverse effects, Lady Haldane was satisfied that the Secretary of State had not failed in his duty to take reasonable steps to acquaint himself with material sufficient to permit him to reach the decision that he did.
Irrelevant Considerations
The Scottish government argued that the Secretary of State based his decision on a dislike of divergence between Scotland and the rest of the UK on gender recognition. Lady Haldane dismissed this, noting that the concern here was objectively with the effect that this divergence would have, not the fact of divergence per se.
Additionally, the Scottish government argued that a concern with the risk of an increase in fraudulent applications was irrelevant. Again, Lady Haldane dismissed this, noting that there was a range of reasonable options open to the Secretary of State, given the material he had before him. The fact that some may have looked at that material and permissibly have concluded differently did not render the action of the Secretary of State unlawful.
Adequacy of Reasons
Finally, the Order was challenged on the basis that the reasons given were inadequate because they were unsupported by evidence. In particular, the Lord Advocate submitted that the Secretary of State would be required to demonstrate an adverse impact by statistical or other evidence [30]. The UK government argued that there was substantial material from which to make a predictive judgment, which is all that can be made in the time frame allowed and that the reasons provided were readily intelligible. Lady Haldane concluded that she
cannot agree that any or all of [the reasons] must fall on the basis that they are unsupported by “evidence”, having regard to the context in which the decision was made, the Secretary of State only being bound to take such steps as are reasonable to inform himself and provide reasons, as well as the lack of any specific requirement in the 1998 Act as to any particular requirements or standard that the reasons must achieve.
[81]
Background Principles as Interpretative Aids
In choosing to focus on the “four walls” of the Scotland Act, Lady Haldane was tacitly drawing upon constitutional principles which support judicial deference to the determination of the UK Parliament as to the precise scope of the separation of powers and Scottish devolution.
If one is not comfortable with using the phrase ‘constitutional statute’, the Scotland Act could be described as instantiating deliberate choices about the constitutional settlement between Scotland and the rest of the United Kingdom. This means that reliance on background principles such as the separation of powers should be done with an understanding that Parliament, in drafting the Scotland Act, was engaging in an act of reasoned deliberation over how the separation of powers ought to manifest within the context of devolution. The separation of powers is not simply a speculative principle, fully articulated free from the policy choices that Parliament made in drafting the Scotland Act. Rather, it is worked out within the legislative framework designed by Parliament.
A simplistic reading of Lady Haldane’s reference to the four walls of the statute would presume that she was advocating for a textualist approach which should eschew recourse to background principles in the interpretation of the Act. A more nuanced approach sees this as a recognition that those background principles are themselves concretised and afforded democratic legitimacy in the process of legislating. With that in mind, s.35 becomes the manifestation of democratic choices about how best to devolve and retain power between the various organs of state, including a choice to require reasonable grounds to conclude that a Bill may give rise to adverse effects on reserved law, rather than some other standard such as proportionality.
That choice must itself be interpreted in light of case law and scholarship establishing a heightened standard of scrutiny within reasonableness review where human rights and the rule of law are implicated. But the presumption that there must be heightened scrutiny when the separation of powers is undermined simply begs the important question by presuming that a standard of review informed by the principle of comity as between the judiciary and the executive, coupled with the fact that the Secretary of State is the primary decision-maker, is itself a threat to the separation of powers rather than a particular instantiation of it.
The same is true for arguments invoking principles of democracy and devolution. What is contested here is precisely what democracy means in the context of a devolution settlement rather than in an independent, sovereign Scotland. Arguments that democracy and devolution militate in favour of a particularly intense scrutiny of the exercise of the s.35 power are countered by arguments that democracy and devolution, as determined by the UK Parliament in 1998, themselves favoured less intensive scrutiny and greater deference on the part of the judiciary.
The power contained within s.35 is arguably one designed to establish the contours of the separation of powers between Westminster and Holyrood. When Lady Haldane stressed that s.35 is an integral part of the constitutional settlement, she was referring not just to the fact that the power is contained within the Scotland Act, but to the idea that a UK government veto is not presumptively illegitimate, should it meet the tests set out in in the Act.
The fact that this is a power exercised by the UK executive against a devolved parliament is baked into the Act and so its use ought not, on its own, be presumptively illegitimate in the same way that an infringement upon fundamental rights or a threat to the rule of law might be. Triggering heightened scrutiny here presumes that the ordinary use of this power carries with it the same kind of threat as fundamental rights infringement or attacks on the rule of law. Such an approach may be in danger of straying into the view that s.35 is inherently unconstitutional, a view that may succeed as a means of critiquing the current devolution settlement, but which cannot be a plausible approach to interpreting it.
Where s.35 is engaged there is little reason to think that heightened scrutiny is constitutionally appropriate, except where the exercise of the power could infringe upon fundamental rights or undermine the rule of law. Arguments that heightened scrutiny is demanded by the separation of powers or the devolution settlement presuppose that the ordinary exercise of s.35 is a threat to those principles rather than an instantiation of them.
Michael Foran is a Lecturer in Public Law at the University of Glasgow
(Suggested citation: M. Foran, ‘Section 35 and the Separation of Powers: On the Role of Unwritten Constitutional Principles in the Interpretation of the Scotland Act’, U.K. Const. L. Blog (13th December 2023) (available at https://ukconstitutionallaw.org/))
