As the UK government confirms that it will use a section 35 order to block a new law that would make Scotland the first part of the UK to introduce a self-identification system for people who want to change gender, we explain what it is and why there is such controversy over it.
What does a section 35 order allow the UK government to do?
Under section 35 of the Scotland Act, a UK secretary of state can stop a bill getting royal assent if they have reasonable grounds to believe the law in question would have an adverse effect on legislation reserved to Westminster. In this case it was the Scottish secretary, Alister Jack, claiming the gender recognition bill would impede operation of the UK Equality Act.
Has this provision been used before?
No, it has not been used since the act establishing the Scottish parliament came into effect in 1998. That is the reason it has been described as the “nuclear option”.
A slightly less confrontational alternative would have been for the UK government, under a provision also contained within the Scotland Act, to refer the bill to the UK supreme court for justices to decide whether it related to reserved matters outside Holyrood’s legislative competence.
What does it mean constitutionally?
The UK says it is an appropriate use of powers under the Scotland Act, based solely on its concerns that the legislation will adversely effect the operation of the Equality Act, which applies in England, Scotland and Wales.
For most MSPs, but for the governing Scottish National party in particular, which is pursuing a second independence referendum, it is likely to be seen – and framed – as, in effect, an unacceptable veto over the Scottish parliament’s powers in certain circumstances.
Notwithstanding that the debate over transgender issues is one that is highly charged, the already frosty relationship between the SNP and the Conservative UK government guarantees that the clash caused by section 35 will be seen as a significant test to the constitutional balance between Holyrood and Westminster.
Can the Scottish government challenge the use of section 35?
Yes. Scotland’s first minister, Nicola Sturgeon, has said her government is likely to mount a legal challenge in response. This would be through a judicial review, which would assess the lawfulness of the Scotland secretary’s decision.
It would represent a return to court on constitutional matters for the SNP after the supreme court ruled less than two months ago that the Scottish parliament could not hold a second independence referendum without Westminster approval.