The Section 35 Order, Part One : Reasonableness and Adversity
In December 2022, the Scottish Government passed, by a large majority, the Gender Recognition Reform Bill (GRR). This Bill is designed to make it easier for trans people to change the gender recorded on their birth certificate, and thus how they are described for the purposes of marriage, death and taxes. In January 2023, the UK Government issued a Section 35 Order to prevent the Bill taking effect: the first time this power has ever been used in the 24–year history of devolution.
This is the first in a series of posts analysing the Statement of Reasons the UK Government has published for the Section 35 Order. I have no legal training: I am just a writer and campaigner with a strong interest in trans equality law. I co-authored a paper on this subject as a lay contributor with lived expertise in trans issues, but that’s the extent of my formal experience. I am writing these posts to understand for myself the issues in play, and so that other trans people and supporters who have an interest in the subject can understand what might happen. My focus will be criticising the grounds of the arguments, and showing how the legal case might affect trans and constitutional law.
This first post will look at some of the key constitutional issues at play in the Statement of Reasons for the Section 35 Order. I will look in more detail at the interaction of trans people with equality law in subsequent posts. However, I first want to make clear that the primary target of the Section 35 Order is trans people: the Order was made with the clear purpose of prosecuting a prejudiced campaign against trans people. The arguments in the Statement of Reasons put in legal language the kind of speculative scaremongering that has now become common in the British media. These are arguments that could only be made from a position of hatred and ignorance of trans life: they are arguments that we are too difficult for state administrative systems to handle, that it ought to be easier to discriminate against us, and that we are a threat to society.
That the UK Government is making these arguments should be of deep and urgent concern to anyone who believes in liberatory politics, or even to anyone who believes in some meagre measure of equality. Trans people, particularly trans women like me, are being targeted, as a vulnerable minority, with legal, social and media attacks. It is very frightening.
Ultimately, it will take much more than a legal defense to free trans people from these attacks. The law must be one of our tools, but we must also work in all areas of society to liberate trans people — and the many other groups subject to similar Government-led attacks— from the forces that oppress us.
The Requirements for a Section 35 Order
Section 35 of the Scotland Act 1998 defines the grounds on which the UK Government can, if it wishes, prevent a law passed by the Scottish Parliament from taking effect. These are the conditions whereby Westminster (the UK Government) can overrule Holyrood (the Scottish Government). As such, Section 35 is a key part of the devolution settlement: it defines the limits of the power of both Governments, and ensures that Holyrood’s power is ultimately subordinate to Westminster’s. Because Section 35 has never been used before and has never been challenged in court, there are now questions about the Order which could have significant effects on the constitution of the United Kingdom.
In order for the UK Government to issue a Section 35 Order, the Bill, in this case the Gender Recognition Reform Bill, must contain provisions:
(a) which the Secretary of State has reasonable grounds to believe would be incompatible with any international obligations or the interests of defence or national security, or
(b) which make modifications of the law as it applies to reserved matters and which the Secretary of State has reasonable grounds to believe would have an adverse effect on the operation of the law as it applies to reserved matters
Either (a) or (b) could apply. In this case, (a) is not in play, so we only need to look at (b). Under (b), for a Section 35 Order to be valid, two things must be the case: both that the GRR Bill makes “modifications of the law as it applies to reserved matters” and that the Secretary of State for Scotland has “reasonable grounds to believe [that these modifications] would have an adverse effect on the operation of the law as it applies to reserved matters”. Both of these conditions must be met, which means that the Scottish Government’s legal challenge only has to disprove one of them in a judicial review for the Order to be made invalid.
Modifying the Law
The law which the GRR Bill modifies is the Gender Recognition Act 2004. Power over gender recognition is devolved, which means the Scottish Government has every right to legislate over it. However, the UK Government is arguing that modifying the Gender Recognition Act also modifies the law “as it applies to reserved matters”, stating that those reserved matters are (broadly) equal opportunities. It is non-controversial that equal opportunities, and specifically the Equality Act 2010, are a reserved matter: Westminster has the power to legislate on these and Holyrood does not. However, whether the GRR Bill actually does modify the law as it applies to reserved matters is debatable.
There is a curious discrepancy between the wording of Section 35 and the wording of the Statement of Reasons. The first condition of 35.1.b refers to only “the law as it applies to reserved matters”, and the second to “the operation of the law as it applies to reserved matters”. Whether there is, in legal terms, a difference between the law itself and the operation of the law, which I take to mean its practical effects, I cannot say. The Statement of Reasons takes the two to be interchangeable: the title of the section arguing that the GRR Bill modifies the law as it applies to reserved matters is “Effect on the operation of the law as it applies to reserved matters (emphasis mine)”, and the same conflation is made throughout that section. However, while the first condition is a statement of fact (the law must in strict legal fact be modified), the second condition is more subjective (there need only be reasonable grounds to believe that there is an adverse effect). It seems to me that the test for the first condition is stricter than the test for the second condition, and that the conflation of the two in the Statement of Reasons will do the UK Government no favours.
The UK Government’s argument rests on the idea that the GRR Bill has, by making it easier to obtain a Gender Recognition Certificate, altered the meaning and effect of the protected characteristic of “sex” in the Equality Act, a reserved matter:
The 2010 Act makes “sex” a protected characteristic and makes provisions about when conduct relating to that protected characteristic is unlawful. Section 9 of the 2004 Act provides that unless exceptions apply, the effect of a full GRC is that “for all purposes” the person’s sex becomes as certified. As a matter of general principle, a full GRC has the effect of changing the sex that a person has as a protected characteristic for the purposes of the 2010 Act.[footnote 2] This is subject to a contrary intention being established in relation to the interpretation of particular provisions of the 2010 Act.
The 2010 Act as a whole was carefully drafted in the light of, and reflecting, the specific limits of the 2004 Act and the relative difficulty with which a person could legally change their sex “for all purposes” (per s.9), including under the 2010 Act itself. The Bill alters that careful balance.
This is the only part of the Statement of Reasons which refers clearly to modifying the law rather than affecting the operation of the law. It is a very brief argument, and its terms can be challenged. Nothing in the GRR Bill alters a word of the Equality Act; the Equality Act includes no legal definition of what “sex” is, except that it is male or female; and the Equality Act does not define what sex trans people have. The argument the UK Government is making is that how sex is used in the Equality Act 2010 was informed by the existence of the prior Gender Recognition Act 2004, and that the intention of the Equality Act’s authors in legislating on sex and gender reassignment (which does have legal relevance) was shaped by the specific 2004 process for obtaining a Gender Recognition Certificate. (An additional question here is whether this argument’s understanding of “sex” in the Equality Act is correct: this will be covered in a subsequent post.)
If a judge rules that the Government is right in this argument, this affects the UK constitution: whenever Holyrood, legislating purely on devolved matters, alters the terms of something which also appears in reserved legislation — a common occurrence in a devolved system, I would say — the first condition of Section 35 would be met. In this case, the terms are a fairly minor adjustment to how a small minority updates the paperwork used in a very few areas of life. That seems to me a very low bar for making “modifications of the law as it applies to reserved matters”, and setting the bar low threatens the integrity of the devolution settlement.
Because, as discussed above, the Statement of Reasons must meet two conditions (modifying the law as it applies to reserved matters and reasonable grounds to believe the Bill will have an adverse effect on the law as it applies to reserved matters), it is possible that the Government’s case could fall through failing to meet the first condition without the second condition ever being considered in court. On the other hand, I could be wrong that there’s a significant difference between the law and the operation of the law, or the Government’s argument that reserved law in itself has been modified could be ruled correct. This is, however, the first of three as-yet-untested areas of constitutional law in Section 35 which could undermine devolution.
Reasonable Grounds
The second part of the condition for a Section 35 Order is that there must be “reasonable grounds to believe [the Bill] would have an adverse effect on the operation of the law as it applies to reserved matters”. There are two significant legal terms here — “reasonable grounds” and “adverse effects” — which I will examine in turn. Subsequent posts will look in detail about what the Government says the adverse effects actually are, but here I am looking at a higher-level concern: the definition of these terms.
“Reasonableness” in this context is a legal term which requires definition for the purposes of Section 35. Broadly, legal “reasonableness” refers to something that an ordinary rational person might do or believe. It is quite possible, legally, to be both reasonable and wrong, and it is possible to have two contradictory legal positions which are both reasonable: indeed, that is what a court case entails. Case law defines reasonableness for different areas of law: there are existing legal standards, and judges in the Section 35 case must decide how these standards apply.
I do not have the legal experience to know what sort of reasonableness standards might apply. I was interested to note, though, that Michael Foran, author of the Policy Exchange paper which lobbied for the Section 35 Order and which made a considerable contribution to the Statement of Reasons, claimed on Twitter that it would be “Wednesbury unreasonableness”. As I understand it, this is the standard which assesses the application for a judicial review, because “irrationality”, along with “illegality” and “impropriety” is one of the three traditional possible grounds for a judicial review.
One formulation of “Wednesbury unreasonableness” is that in order to be subject to a judicial review the action of a public body must be “so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it”. This is a very high bar for unreasonableness (or, to put it another way, a low bar for reasonableness), and is the reason that it is hard to get a judicial review on the grounds of irrationality. Indeed, I am expecting the Scottish Government to apply instead on the grounds of illegality: that the Statement of Reasons is wrong in law.
It is not at all clear to me that the definition of reasonableness used for determining whether or not to grant a judicial review would be the same as the definition of reasonableness used for the purposes of assessing a Section 35 Order. The definition of reasonableness in employment law, for example, is very different: a requested reasonable adjustment is not unreasonable only if it is “outrageous in its defiance of logic or accepted moral standards”; there are many more factors in play, and more reasonableness (that is, less unreasonableness) is required than in Wednesbury unreasonableness. Constitutional law may require a different test of reasonableness than the standards for granting a judicial review.
If Wednesbury unreasonableness does apply in Section 35, as Foran has argued, this has severe constitutional implications. If all the Secretary of State needs to have are beliefs about the effect of a Scottish Bill that are not “outrageous in [their] defiance of logic or accepted moral standards”, then it becomes much easier for the UK Government to issue another Section 35 Order in future. That is, the court’s judgement on what “reasonableness” is for the purposes of Section 35, which I expect to be argued in this case, will affect the balance of power in the devolution settlement.
Adverse Effects
The third element I want to examine is “adverse effects”. The bulk of the Statement of Reasons is an extensive catalogue of effects the UK Government believe the GRR bill will have on reserved law, particularly equalities law. For each effect (if the argument gets this far and the Order does not fall due to failing to meet the first test, of modifying the law as it applies to reserved matters), the court will have to consider (a) whether the effect will happen, and (b) whether and to what degree the effect is adverse.
Discussing (a) will be the subject of subsequent posts, but for now I want to consider (b): how adverse does an effect have to be to allow for a Section 35 Order? The letter of the law would seem to suggest that any effect, however small, and however minorly adverse, would be enough. However, I suspect that, because this is constitutionally significant, a higher bar of adversity will be set. This is the assumption behind the widely-shared commentary by Charlie Falconer, a former Lord Chancellor and Secretary of State for Constitutional Affairs under Tony Blair. Falconer goes through each stated effect and argues why he thinks it is too minor (or too poorly founded) to merit a Section 35 Order.
For example, one of the stated adverse effects is that “Existing IT infrastructure [for tax, benefit and State pensions] only allows one legal sex on any record and cannot change the marker for 16 to 17 year olds.” Because the GRR Bill enables 16 and 17 year olds to change their sex for tax purposes, UK-wide IT systems would then have to accommodate that change: this appears to be an effect on “the operation of the law as it applies to reserved matters”, in this case taxation, but it is surely a very minor effect. Can it really be the intention of the Scotland Act (and again, intention is legally relevant) that it is possible for Westminster to overrule Holyrood because updating the IT systems is too hard? I think not.
This also raises the question of whether the court should also be considering the positive effects of the GRR Bill. From a trans teenager’s perspective, it is not an adverse effect to force Government IT systems to find a way of updating their sex: it is a positive effect. There should therefore be a legal balancing of potential adverse and positive effects, considering the intentions of the relevant laws. A similar argument could be made for every argument in the Statement of Reasons, and I suspect that some of this will be argued in court.
That said, it is worth remembering that the UK Government does not have to prove that the effects are actually adverse and that they actually will happen: they only have to prove that there are reasonable grounds to believe that they are adverse and that they will happen.
Why This Matters for Devolution
I have argued here that there are three key aspects of Section 35 which may be argued in a judicial review and which may have significant constitutional consequences. These are:
- What counts as making “modifications the law as it applies to reserved matters”. A low standard here would suggest that the Scottish Government modifying any terms in their legislation which are also used in reserved legislation could be grounds for a Section 35 Order.
- What counts as “reasonable grounds”. A low bar for reasonableness here would enable a future Section 35 Order when the UK Government merely suspects or can make a plausible-seeming argument that a Scottish Bill has adverse effects on reserved matters.
- What counts as “adverse effects”. A low bar here would enable even very minor effects on reserved law to be cause for a Section 35 order.
Section 35 has never been used before, which means the standards for each of these areas will have to be argued as part of a court case: there is no definitive case law which can determine them (though of course the case will draw on rulings in other areas).
The Scotland Act 1998 sets the terms of devolution: what powers Holyrood has, what power Westminster has, and when Westminster can intervene in Holyrood legislation. The purpose of devolution was to reach a political settlement that could satisfy Scottish demands for localised democracy, and so stave off the threat of of Scottish independence. The more that people in Scotland believe that devolution no longer meets their need for democracy, the more they will demand independence. Thus, altering the balance of power between Westminster and Holyrood — and rulings on the validity of the Section 35 Order will do this, one way or another — threatens both devolution and the union itself.
I want to stress again that I am a lay commentator who has a decent familiarity with trans law, but who has no formal legal experience and no expertise at all in constitutional law. There will be cases I do not know about and legal standards I am ignorant of. I am writing this not as an expert commentary but as an explanation, with trans people in mind, of some of the issues that may come before the court in the legal challenge to the Section 35 Order.
I opened by saying that the effect of this Order on trans people was the most important thing to keep in mind. While the constitutional questions interest me, and while constitutional law will necessarily frame the subsequent legal argument, it is the effect on trans law which matters to me the most, and to which I will turn in my next post.
A Note on Comments
Corrections of fact and points of information on the relevant law are very welcome. I will not be engaging in debate. Abuse, prejudice and trolling will be deleted.
