The Section 35 Order was Lawful After All: Re Scottish Ministers’ Petition 2023 CSOH 89

Earlier this year I mused about whether the UK government’s first use of the veto power in s. 35 of the Scotland Act 1998 was lawful. Today, the Outer House of the Court of Session (the first-instance judicial review court in Scotland) decided that it was: Re Scottish Minister’s Petition 2023 CSOH 89.

The lynchpin of Lady Haldane’s reasoning is her rejection of the Scottish government’s argument that the s. 35 order should be subject to heightened scrutiny:

The nature of the power that has been invoked, whilst a constitutional one, is described and delineated within the four walls of the 1998 Act. There are preconditions to its exercise set out in section 35 (1)(b). There is a specified time frame within which the power must be exercised set down in section 35(3). Therefore far from being an impermissible intrusion upon the constitutional settlement, section 35 is an intrinsic part of it. It follows also that the power, being exercisable only upon certain preconditions being fulfilled, is not an unfettered one. Its exercise is properly subject to review by the courts but the intensity of that review is less than that described in the cases relied upon where fundamental human rights are involved…Section 35 does not, in and of itself, impact on the separation of powers or other fundamental constitutional principle. Rather it is itself part of the constitutional framework. The political context is an important one and the touchstone remains that of rationality (at paras. 70-71).

In my earlier post I had confidently predicted that “it is clear that the courts will closely scrutinize the reasons given before upholding the maiden exercise of an extraordinary power”. Clearly, I was wrong! Lady Haldane rejected the analogy I suggested with the decision in Evans (noted here). I doubt that hers will be the last word on the appropriateness of this analogy, or the analogy the Scottish government sought to draw with the ‘principle of legality’. One can accept, as Lady Haldane puts it, that s. 35 is part of the constitutional settlement whilst also also accepting that it is a power whose exercise carries enormous consequences.

Having held that the ordinary standard of rationality applied, it was unsurprising that Lady Haldane went on to reject the Scottish government’s arguments about the lawfulness of the s. 35 order. In terms of the ‘Tameside’ duty on the Secretary of State to take rational steps to inform himself, Lady Haldane noted that he had a short period of time in which to do so and concluded that the duty had been satisfied:

the question of which the Secretary of State required to be satisfied was whether any adverse effects could in fact be identified, justifying intervention in the manner proposed. In other words, the fundamental question before him was different from that faced by the Scottish Parliament. Its task was to carry out sufficient inquiry to allow it to bring forward legislation in furtherance of its commitment to reform gender recognition legislation. The Secretary of State’s task was to determine whether that proposed legislation modified the law as regards reserved matters, and if there would be any adverse effects on reserved matters from that, if so. Viewed thus, the approach taken to the material ingathered is reasonable in all the circumstances…I cannot conclude that he failed in his duty to take such steps as were reasonable in all the circumstances to acquaint himself with material sufficient to permit him to reach the decision that he did. Others may have reached a different conclusion on the same material. This is plainly a situation where another decision might have been made with equal propriety, and its predictive nature means that there is possibly no single right answer (at paras. 74-75).

Similarly, the reasons given to support the s. 35 order were adequate in the circumstances:

Of course not all of the reasons carry equal weight. That much is clear perhaps simply from reading the schedule containing the reasons, as some are afforded considerably more detailed treatment than others. The concerns expressed in relation to the adverse effect on those parts of the Equality Act relating to clubs and associations, and single sex schools, for example, might be thought to be less weighty than some of the others identified. But I cannot agree that any or all of them must fall on the basis that they are unsupported by “evidence”, having regard to the context in which the decision was made, the Secretary of State only being bound to take such steps as are reasonable to inform himself and provide reasons, as well as the lack of any specific requirement in the 1998 Act as to any particular requirements or standard that the reasons must achieve (at para. 81).

This is a striking example of a case in which the standard of review certainly matters. If the standard is, as Lady Haldane suggests, good old-fashioned rationality, then the Scottish government’s case must fail. If, however, Lady Haldane is wrong and the constitutional principles demand more searching scrutiny, the case could come out very differently. I expect the Scottish government will appeal and that this matter will ultimately be resolved by the United Kingdom Supreme Court. It will be very interesting to see how the standard of review issue plays out.

This content has been updated on December 8, 2023 at 14:47.