Scottish government loses bid to delay gender

The Scottish government has failed in a bid to delay a judicial review of Westminster’s decision to block its gender recognition reforms.

The review is due to be held at the Court of Session next month.

But lawyers for the Scottish government argued it should be delayed until after an appeal in a separate case concerning the definition of “woman” is heard.

The request was rejected by judge Lady Haldane, who said the issues in the two cases were different.

Scottish Secretary Alister Jack made a section 35 order in January to prevent Holyrood’s Gender Recognition Reform Act from becoming law.

The legislation, which has been deeply divisive within the SNP, would make it easier for people in Scotland to change their legally recognised sex.

The Scottish government believes Mr Jack has acted illegally in vetoing it, and requested a judicial review of his decision in April.

At the time, Social Justice Secretary Shirley-Anne Somerville said the section 35 order was “an unprecedented challenge to the Scottish Parliament’s ability to legislate on clearly devolved matters”, and “risks setting a dangerous constitutional precedent”.

But critics of the reforms within the SNP believe the Scottish government has little chance of winning the case, and fear that the gender legislation is unpopular with the public.

The Scottish government’s lawyers went to the Court of Session on Friday to seek a delay of the hearing that has been scheduled for September.

Advocate Paul Reid told Lady Haldane that the postponement was needed because of an appeal brought to the Inner House of the Court of Session by the feminist campaign group For Women Scotland that is due to be held in October.

That case centres on the definition of “woman” in the Gender Representation on Public Boards Act, which is designed to increase the numbers of women who sit on public boards in Scotland.

Mr Reid said that the outcome of the For Women appeal could have ramifications for the Scottish government’s judicial review.

However, David Johnston KC – who was acting for the UK government – argued that the two cases dealt with different legal issues and there was therefore no need for a delay.

He also said the Scottish government knew of For Women Scotland’s appeal at the time the September hearing was arranged and their request for a delay had come “too late”.

And he said it was in the public interest to have the matter heard as soon as possible.

Lady Haldane agreed with Mr Johnston, and refused the Scottish government’s request for a delay.

She said: “I do not accept that the issues in the For Women Scotland case and the issues in the this motion brought by the petitioners are the same.

“In the event that For Women Scotland is successful in the Inner House, further submissions on the case can be made for whatever they see is appropriate.”

In a way nothing has changed here; the court dates remain set. But this preliminary showdown does tell us a few things.

It appears the UK government intends to base its arguments on the narrow tests set out in the Scotland Act, and whether Alister Jack acted “rationally” – and thus lawfully – when he vetoed Holyrood’s gender reform bill.

The Scottish government meanwhile appears to be building broader arguments about gender reform, bringing in case law concerning a different piece of legislation entirely.

It also means we are likely to see this judicial review unfold in the weeks running up to the crucial by-election in Rutherglen and Hamilton West.

That contest was shaping up to be hard-fought even without two governments going head-to-head over contentious issues ranging from gender reform to the balance of power between Holyrood and Westminster.

While the temperature of debate in the courtroom will remain measured as always, the political rows outside of it may well be at boiling point.

Reports /TrainViral/