What Is Section 35 Of The Scotland Act?

After weeks of speculation, the Secretary of State for Scotland, Alister Jack, has blocked the Gender Recognition Reform (Scotland) Bill from receiving Royal Assent. The law seeks to simplify the process of changing one’s legal gender in Scotland,[1] and Jack has justified his actions on the grounds that the Bill would have an adverse impact on matters reserved to Westminster.[2]

Unlike at Westminster, where Royal Assent is essentially automatic,[3] the Scotland Act 1998 created a formal mechanism for withholding Royal Assent to Scottish legislation. Strictly speaking, it’s not a veto: the Presiding Officer of the Scottish Parliament simply doesn’t submit the Bill to the King. There are several situations in which Assent might be withheld, such as when the UK Supreme Court rules that legislation is ultra vires.[4]

However, this case involves section 35 of the Scotland Act. It allows the Scottish Secretary to block a Bill if they believe that it “would be incompatible with any international obligations or the interests of defence or national security” or it makes “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.[5]” This is done by a Statutory Instrument which is subject to negative procedure in the UK Parliament.[6]

While Scottish Bills have been blocked on other grounds, this is the first time that a Bill has been blocked under section 35.[7] The Scottish government has vowed to challenge Jack’s decision in the courts, but it’s unclear how this might play out, as the court have never had to interpret this provision before. The British government claims the Gender Recognition Bill would negatively impact the operation of the UK’s Equality Act 2010.[8] They also argue that having a situation where a person’s recognized gender depends on their location within the UK is inherently problematic. However, legal commentators such as Adam Wagner and Lord Falconer of Thoroton have questioned whether the impact on reserved matters is as substantial as the UK government alleges.

Whatever the courts decide, it could have far-reaching consequences for the Britain’s constitution. The flow of power away from Westminster allows different parts of the kingdom to pursue different policies, and they will sometimes come into conflict with one another. If the UK is going to continue, the British will need to decide how they’re going to balance local autonomy and national integrity.[9]        

[1] Among other things, it allows people to apply for a Gender Recognition Certificate starting at 16 rather than 18, and a formal diagnosis of gender dysphoria will no longer be required. The Bill’s Explanatory Notes provide a more detailed explanation of its provisions.

[2] A summary of the Secretary of State’s reasoning can be found in The Gender Recognition Reform (Scotland) Bill (Prohibition on Submission for Royal Assent) Order 2023, but the British government has also produced a policy paper that goes into more detail.

[3] Erskine May provides an overview of Royal Assent practice at Westminster. It specifically highlights the fact that Assent “must be forthcoming.”  

[4] Section 32 of the Scotland Act 1998 sets out the circumstances in which the Presiding Officer cannot submit a Bill for Royal Assent.

[5] ‘Reserved matters’ are ones that are the exclusive preserve of Westminster as set out in Schedule 5 of the Act. If a matter isn’t on that list, it’s considered devolved.

[6] These instruments can be annulled by the King if either House of Parliament passes a ‘prayer’ to that effect.

[7] In 2021, the UK Supreme Court ruled that portions of the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill and the European Charter of Local Self-Government (Incorporation) (Scotland) Bill exceeded the Scottish Parliament’s legislative competence. Last year, the Supreme Court held that the Scottish Parliament could not unilaterally legislate for an independence referendum, but those proceedings did not involve a completed Bill.

[8] Perhaps anticipating this argument, clause 15A of the Bill states that “[f]or the avoidance of doubt, nothing in this Act modifies the Equality Act 2010.”

[9] Canada and Australia both offer possible solutions, though implementation might require a codified constitution.

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