Judgment handed down in judicial review of the first ever use of s.35 Scotland Act 1998 to block Scottish legislation

The Outer House of the Court of Session has today handed down judgment in the important constitutional case of Scottish Ministers v Advocate General for Scotland [2023] CSOH 89. 

This was a judicial review brought by the Scottish Government. In January 2023, the UK Government made an Order under Section 35 of the Scotland Act 1998. This Order blocked the Gender Recognition Reform (Scotland) Bill from being put forward for Royal Assent. The judicial review sought to challenge this first ever use of Section 35 to block legislation.

The Court dismissed the judicial review, which had been advanced on a number of interrelated grounds. Lady Haldane held that she could not on the material before her conclude that the Order was made on the basis of a policy dispute (§64). The pre-condition for an Order under Section 35, that the Bill modifies the law as it relates to reserved matters, was also met (§66). Considering the applicable intensity of review, Lady Haldane concluded that it is “less than that employed where fundamental human rights are at stake, or where there is a challenge to the rule of law” and that “the touchstone remains that of rationality” (at §71). Applying this test, the Court held that the Secretary of State’s decision was not irrational. Nor was it vitiated by any failure to give reasons or errors of law.

Stonewall, Gendered Intelligence and the Institute for Constitutional and Democratic Research (“ICDR”) jointly intervened in the case. Adam Wagner and Stephanie Davin were part of the legal team acting for this group of intervenors, along with James Findlay KC, David Blair, Robin White and Sam Fowles. All acted pro bono.