What prospects might there be for a proposed Section 35 challenge?

DISCUSSION around the UK Government’s use of a Section 35 order under the 1998 Scotland Act caused considerable heat and political opprobrium last week.

The 2023 Gender Recognition Reform ( Scotland) Bill ( Prohibition on Submission for Royal Assent) Order has one simple function: to prohibit the presiding officer of the Scottish Parliament from submitting a Bill for Royal Assent.

In this case, the Gender Recognition Reform ( Scotland) Bill – ( GRR Bill).

I don’t intend to examine the merits of that Bill, it was passed by an overwhelming majority of MSPs from across all parties.

Rather, what is now in sharp focus is the prospect of a legal challenge to the Section 35 order.

This was the first time Section 35 had been used and it isn’t about the legislative competence of the Scottish Parliament – a so called “devolution issue”.

This means the Lord Advocate can’t make a reference to the UK Supreme Court, as happened with the question of the Scottish Parliament’s power to hold a second independence referendum without consent from Westminster.

Accordingly, any challenge here will have to be by judicial review. You can think of judicial review as being concerned about the process or legality of official decision making.

In Scotland, judicial review is part of the supervisory jurisdiction of the Court of Session, where a Lord Ordinary considers the legality of the discretionary exercise of power.

There are various grounds for judicial review, but in this case, any challenge will be focused on whether the Secretary of State for Scotland acted reasonably and rationally in making a Section 35 order.

This is known as the “Wednesbury test” from the case of Associated Provincial Picture Houses Limited v Wednesbury Corporation [ 1948] 1 KB 223.

In the Council of Civil Service Unions v Minister for the Civil Service [ 1985] AC 374, Lord Diplock referred to this test as irrationality.

Lord Diplock said: “By ‘ irrationality’ I mean what can by now be succinctly referred to as ‘ Wednesbury unreasonableness’.

“It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.” Before we drill down into whether the UK Government has acted irrationally, it’s worth pausing to consider who will bring this legal challenge? Generally, one might expect the Lord Advocate to represent the Scottish Ministers in civil proceedings, although the Scottish Ministers are free to instruct whoever they like to represent them collectively in court.

While the Lord Advocate would have signed off on the Bill, that was a different legal test to the present subject matter of a Section 35 challenge.

No doubt, the Lord Advocate will have to reach a view as to whether there is a reasonably stateable case to raise a petition for judicial review.

Any such challenge will commence in the Outer House of the Court of Session and will require permission to proceed.

The UK Government could oppose permission on the requisite legal test of “a real prospect of success”.

You may recall in the Article 50 withdrawal from the EU case, a Lord Ordinary had refused permission for a judicial review to proceed.

This refusal was overturned by the Inner House of the Court of Session in Wightman and others v The Advocate [ 2018] CSIH 18.

In Wightman, the Lord President, Lord Carloway held that a real prospect of success was “undoubtedly less than probable success, but the prospect must be real; it must have substance”.

Would a Section 35 challenge have a real prospect of success? The test in Section 35 is whether the GRR Bill 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”.

Not all of the 2004 Gender Recognition Act is devolved to Scotland and the 2010 Equality Act is wholly reserved to Westminster.

The test here is the effect of the Bill in relation to the operation of reserved matters.

The Section 35 order sets out detailed concerns in relation to the creation of conflicting gender recognition schemes across the UK; the removal of safeguards for women and girls’ safety; and a number of unintended consequences to the Equality Act.

Some of these concerns were raised by respondents to the Bill’s consultation, often with no substantive response other than dismissal.

It’s difficult to see how there can be a real prospect of success in challenging the Secretary of State.

He only needs to have reasonable grounds for his belief. You may disagree with his concerns, but that isn’t the test.

The obvious solution is to amend the Bill.

In the Article 50 withdrawal from the EU case, Lord Carloway held that a real prospect of success was ‘ undoubtedly less than probable success, but the prospect must be real; it must have substance’