Scottish Government Moves Forward With Section 35 Order Challenge

The Scottish Government will challenge the Secretary of State for Scotland’s use of Section 35 of the Scotland Act to stop the Gender Recognition Reform (Scotland) Bill going forward to Royal Assent following the Scottish Parliament’s approval of the legislation in December 2022.

Social Justice Secretary Shirley-Anne Somerville has informed the Scottish Parliament that the Scottish Government will lodge a petition for a judicial review of the Secretary of State for Scotland’s use of Section 35.

Ms Somerville said:

“The Gender Recognition Reform Bill was passed by an overwhelming majority of the Scottish Parliament, with support from members of all parties.

“The use of Section 35 is an unprecedented challenge to the Scottish Parliament’s ability to legislate on clearly devolved matters and it risks setting a dangerous constitutional precedent.

“In seeking to uphold the democratic will of the Parliament and defend devolution, Scottish Ministers will lodge a petition for a judicial review of the Secretary of State for Scotland’s decision.

“The UK Government gave no advance warning of their use of the power, and neither did they ask for any amendments to the Bill throughout its nine-month passage through Parliament. Our offers to work with the UK Government on potential changes to the Bill have been refused outright by the Secretary of State, so a legal challenge is our only reasonable means of resolving this situation.

“It is important to have clarity on the interpretation and scope of the Section 35 power and its impact on devolution. These matters should be legally tested in the courts.”