Scottish gender recognition bill would leave UK law untouched, court told

Holyrood’s sex designation betterment measure would permission UK-wide equality instrumentality untouched, and the Westminster government’s reasons for blocking it are “almost wholly unsupported by evidence”, Scotland’s astir elder instrumentality serviceman has said.

Dorothy Bain, the lord advocate, acceptable retired arguments connected behalf of Scottish ministers connected the archetypal time of their situation to Downing Street’s unprecedented veto of the bill. The measure was passed by a cross-party bulk successful the Holyrood parliament past December and would marque Scotland the archetypal portion of the UK to introduce a self-identification system for radical who privation to alteration their legally recognised sex.

The proceeding earlier Lady Haldane, which is expected to past 3 days, is the archetypal judicial trial of however a section 35 order nether the 1998 Scotland Act, which created the devolved parliament, tin beryllium used. It is apt to person important implications for the constitutional equilibrium betwixt Holyrood and Westminster.

Bain told the tribunal of league successful Edinburgh connected Tuesday that the Scottish government’s judicial reappraisal was “not astir legislative competence … nor is this astir the merits of the bill. What this lawsuit is astir is the due operation of conception 35.”

Bain argued that the UK government’s Scotland secretary, Alister Jack, made his “executive override” based connected argumentation disagreement, and that if the UK authorities was palmy past the curate “could veto practically immoderate enactment of the Scottish parliament having an interaction connected reserved matters due to the fact that helium disagreed with it connected argumentation grounds”.

She said a conception 35 bid was intended to beryllium “narrowly construed” and utilized lone arsenic a past resort.

According to the Scotland Act, a UK caput of authorities tin artifact a devolved measure from receiving royal assent if it makes “modifications of the instrumentality arsenic it applies to reserved matters” and determination are tenable grounds to judge they would person an “adverse effect connected the cognition of the instrumentality arsenic it applies to reserved matters”.

Jack has argued the Holyrood measure waters down protections for single-sex spaces and contravenes UK-wide equality authorities by introducing a dual strategy of exertion for sex designation certificates betwixt Scotland and the remainder of the UK.

Bain argued the Equality Act was “unamended” by the measure due to the fact that it does not separate betwixt a Scottish and a UK certificate.

She raised questions astir the timing of the UK government’s intervention, 4 weeks aft the measure was passed successful the Scottish parliament, though Haldane pointed retired determination was nary request of consultation earlier making a s35 order.

Bain went connected to reason that Jack relied connected “irrelevant considerations” to warrant the usage of conception 35 and that determination was nary credible grounds from planetary sources that had already introduced akin measures that the measure would effect successful fraudulent applications oregon issues astir safeguarding.

She told the tribunal that the UK authorities had acceptable retired “theoretical oregon hypothetical concerns which are precise improbable to originate successful practice” – for example, the imaginable interaction of a dual strategy connected uncovering comparators for adjacent wage claims.

Last December, conscionable earlier the Holyrood measure was passed, Haldane ruled successful a long-running case brought by the run radical For Women Scotland that it was lawful for the Scottish authorities to widen the explanation of “woman” to transgender women with a sex designation certificate.

David Johnston KC, who is acting for the UK government, volition acceptable retired its lawsuit connected Wednesday.