Battle over gender reform bill veto would be 'mistake', experts say
Legal battle over UK government’s veto of ‘doomed’ Scottish gender reform bill would be costly ‘mistake’ by Nicola Sturgeon, legal experts say
- Nicola Sturgeon is set to launch a court battle over the veto of her gender bill
- The UK Government has imposed a section 35 order to stop it come into effect
- Lord Hope of Craighead said the Government’s case to block it is ‘devastating’
- The former supreme court judge queried if it was ‘a sensible use of public money’
A legal battle over the UK government’s veto of Nicola Sturgeon’s ‘doomed’ gender reform bill would be a costly ‘mistake’, legal experts have warned.
The Scottish first minister is gearing up to fight the imposition of a section 35 order which has blocked the SNP’s overhaul of gender recognition laws.
The decision to block the law has been harshly criticised by Ms Sturgeon, but one former supreme court judge has said the chances of it being overturned are incredibly low.
Lord Hope of Craighead said the case put forward by the UK government is ‘devastating’ and questioned whether fighting it would be a ‘sensible use of public money’.
Nicola Sturgeon, pictured here at a news conference in Edinburgh on Monday, is gearing up to launch a legal challenge over the UK government’s decision to block her gender reform bill
Trans rights activists protest the decision to veto the gender reform bill outside Downing Street on Wednesday
He was backed by ex-honorary professor of law at Glasgow University, Alistair Bonnington, who claimed any bid by the SNP to fight the order in court would be ‘doomed’.
It comes as Rishi Sunak yesterday defended the decision to block the reforms and denied SNP claims the move was an attack on devolution.
In a fierce rebuke of the First Minister’s plan for a judicial review, Lord Hope insisted it was difficult to see how any court would not agree that Scottish Secretary Alister Jack was acting reasonably when he imposed the order, and said the prospect of a successful challenge is ‘very low’.
Ms Sturgeon faced growing calls last night to stop raiding the public coffers every time a flawed SNP policy was challenged.
Scottish Tory constitution spokesman Donald Cameron said: ‘Lord Hope’s comments help explain why the UK Government had no alternative but to issue a section 35 order.
‘His warning to [Miss Sturgeon] on pursuing this through the courts should be heeded – it would amount to a waste of public money.’
The Gender Recognition Reform (Scotland) Bill would lower the age for applications for a gender recognition certificate to 16 and remove the need for a medical diagnosis of dysphoria.
Rishi Sunak, pictured here at PMQs on Wednesday, has defended the decision to impose a Section 35 order over the bill
Lord Hope of Craighead, pictured, has said there is a very low chance of the UK government’s decision being overturned by the courts
MSP suggests 8-year-olds should be able to change gender
A Green MSP has claimed Scotland ‘should be exploring’ opportunities for children as young as eight to decide whether to legally change their gender.
Maggie Chapman, who represents North East Scotland in the Scottish Parliament, staunchly defended controversial gender identity reforms passed by Holyrood.
This seeks to lower the minimum age that Scots can legally change their gender from 18 to 16.
Ms Chapman said a Holyrood committee had heard from ‘a wide range’ of people who ‘knew well before they were 16 that they were trans’.
And she suggested the Scottish Parliament could go further by considering ‘options’ for people of a younger age to make a legal change.
The Zimbabwe-born politician also claimed it was a ‘gross over-simplification’ for school textbooks to ‘talk about sex being binary’.
She suggested people do not know what biological sex they are without having their ‘chromosomal make-up’ tested.
The UK Government has warned allowing it to gain Royal Assent would have an ‘adverse’ impact on UK-wide equality laws.
Lord Hope said: ‘There are two points… the first is does the Bill make modifications to the 2004 (Gender Recognition) Act that exists in law as it is, and the answer to that question is that it most certainly does, because that is part of the purpose – indeed the whole purpose – of the Bill itself, to make the acquisition of a certificate that much easier, and also about modifications.
‘Then the question is, was the Secretary of State acting reasonably deciding to make the order? When you look at the reasons in the document it is very difficult to see how a court could come to a conclusion to the contrary effect.
‘And that makes me think that actually to go to court and argue it through the various levels of court is a mistake, it seems to me, risking a lot of time – because it will take a lot of time going through all the levels of court until you get to the Supreme Court – and also questions as to whether it is a sensible use of public money.’
If the SNP Government seeks a judicial review, it would be heard in the Court of Session in Edinburgh. But the case could then end up in the Supreme Court if the losing side appealed the decision.
Lord Hope, a former Dean of the Faculty of Advocates who retired as a Supreme Court judge a decade ago, told BBC Scotland the UK Government’s 13-page ‘statement of reasons’, setting out why it imposed a section 35 order, is ‘a very devastating document for those who seek to preserve the Bill’.
Asked whether Miss Sturgeon was wrong to say she will vigorously defend the legislation, he said: ‘She can decide to do that but I still think it is open to question whether it is a wise decision, given the prospects of success – which I would have thought are very low, given the detail of the document that has been published.
‘I hope she’ll take a deep breath and that she will calm down and try to look at the thing rationally.’
A trans rights activist holds a placard that says ‘fix your hearts or die’ at a protest outside Downing Street on Wednesday
The letter written by Scottish secretary Alister Jack to Nicola Sturgeon outlining his decision to block the gender reform bill
No10 slaps down minister for backing gender age limit of 16
Downing Street today slapped down a Cabinet minister for suggesting 16-year-olds are old enough to change genders.
Education Secretary Gillian Keegan strayed off message during a round of interviews by backing reducing the age limit from 18.
That is one of the moves in legislation passed by Holyrood – which is being blocked by Westminster because it would clash with existing UK laws.
After pointing out that she personally had been working and paying tax at 16, Ms Keegan then frantically tried to quell the row in an appearance later by saying she did not have a ‘strong opinion’.
And No10 made clear there is no change to the government’s position. ‘We consulted on this issue and went with 18 as the right age … she made clear herself that she was speaking about her own personal standpoint,’ the PM’s spokesman said.
He added that the move by the UK Government was not a ‘full-frontal attack’ on the Scottish Parliament, as was claimed by Ms Sturgeon.
The Telegraph reports him as saying it was ‘not destroying devolution at all’ but the veto was included in the act of Parliament that created Holyrood in the first place, it just had not been used before not as ‘the Scottish Parliament has been very careful not to create the problems that have been created by this particular Bill’.
Mr Bonnington, Ms Sturgeon’s former law tutor, said that if the SNP Government’s challenge is based on an alleged ‘attack on the devolution settlement’ then it ‘is doomed to fail’.
He added: ‘It is worrying that SNP MSPs and MPs are so ignorant of the legislation which applies to this matter that they have wasted everyone’s time in the emergency debate in the Commons by making complete fools of themselves by concentrating on an irrelevant point.
‘In short, they appear to struggle to understand the function of the Scottish parliament.’
At Prime Minister’s Questions, Rishi Sunak said: ‘As is laid out in the Scotland Act… this Bill would have a significant adverse effect on UK-wide equalities matters, and so the Scottish Secretary, with regret, has rightly acted.’
SNP Westminster leader Stephen Flynn asked the PM: ‘Are we not now on a slippery slope from devolution to direct rule?’
Mr Sunak replied: ‘Of course we are not. This is simply about protecting UK-wide legislation; about ensuring the safety of women and children, this is not about the devolution settlement.
‘I would urge the honourable gentleman and his party to consider engaging with the UK Government on this Bill, as we did before the legislation passed, so we can find a constructive way forward for the people of Scotland and the United Kingdom.’
Social Justice Secretary Shona Robison said: ‘We are examining the reasons the UK Government have given for their order and will take whatever steps we can to ensure the democratic will of the Scottish parliament is not frustrated.’
Why should we keep paying for Sturgeon’s court failures?
Commentary by Graham Grant, Home Affairs Editor for the Scottish Daily Mail
The debacle over the SNP’s transgender reforms is just the latest illustration of an inescapable truth – that the First Minister plainly believes her government is above the law.
Time and time again, she has fought bitter legal battles in defence of the indefensible – at enormous cost to the taxpayer – almost always ending in failure and humiliation.
According to former Supreme Court judge Lord Hope, Nicola Sturgeon’s bid to contest the UK Government’s section 35 block on her shambolic transgender Bill has a ‘very low’ chance of success.
It’s wise counsel from one of the most respected judges of his generation but all the indications are that the Nationalists will ignore it, paving the way for yet another courtroom showdown.
Time and time again, Nicola Sturgeon (pictured) has fought bitter legal battles in defence of the indefensible
The last one happened only a matter of weeks ago when the Supreme Court threw out the SNP’s contention that Holyrood could unilaterally order a second independence referendum without UK approval.
There was a broad consensus among constitutional experts that it was destined to fail but the Lord Advocate was despatched to argue a threadbare case – ending with a damning judgment which crushed any hope of a re-run of the 2014 vote without Westminster’s consent.
Legal costs amounted to more than £250,000. Ideological fixation and a stubborn refusal to listen to reason carried a heavy price for the taxpayer, and not for the first time.
In fact, the total cost of failed SNP legal disputes, bankrolled by scarce public funds, runs to more than £1.5million since Ms Sturgeon was appointed First Minister in 2014.
More than £500,000 was spent covering legal bills for former First Minister Alex Salmond when he went to court to challenge the Scottish Government’s botched handling of a sexual harassment probe.
Among the court cases lost by Sturgeon’s SNP was one over the right to hold a referendum on Scottish independence
Several weeks before ministers finally conceded in the judicial review of the process, back in 2018, its legal advisers had warned they were ‘unable to see that the benefits in proceeding come close to meeting the potential detriments in doing so’.
The note – released to a Holyrood inquiry into the affair – disclosed the lawyers had said that given the possible ‘harm’, they ‘simply wish all concerned – and we include the First Minister in this – to be absolutely certain they wish us to plough on regardless’.
The investigation of the complaints against Mr Salmond had been extraordinarily shoddy. Indeed, ministers admitted procedural flaws meant it had been ‘tainted by apparent bias’ and was therefore unfair and unlawful.
Mr Salmond claimed that the Scottish Government conceded the case only when counsel threatened to resign (though Ms Sturgeon insisted in her evidence to the inquiry that this was ‘not [her] understanding of the position’.)
The First Minister was found by MSPs to have misled parliament over Salmondgate, but was cleared by James Hamilton of the same offence in a report.
It was toxic row and another example of the SNP in denial – unable to accept the fact that its in-house probe was badly flawed but forging ahead with a doomed court case in defiance of legal advice that could not have been any clearer.
Then there was the Named Person scheme which aimed to assign state guardians to every child in Scotland, including unborn babies. It was championed by the SNP in the face of warnings from a host of critics including the Faculty of Advocates.
The Law Society of Scotland and the Scottish Parent Teacher Council were also against it, together with the Catholic Church and the Church of Scotland.
More than £500,000 was spent covering legal bills for former First Minister Alex Salmond (pictured) when he went to court to challenge the Scottish Government’s botched handling of a sexual harassment probe
True to form, the SNP sidelined and demonised critics of the scheme, which was later found to be largely unlawful by judges at the Supreme Court.
The legal bill this time was around £800,000, the price the public purse was forced to pay for the SNP’s tunnel vision.
It’s a depressingly familiar pattern – the SNP drives through legislation that is wildly unpopular, poorly drafted and patently unfit for purpose, then squanders huge sums trying and failing to salvage it in the courts.
The transgender Bill continues that bleak (and expensive) cycle as a blinkered Nationalist elite refuses to acknowledge its own fallibility, with potentially disastrous consequences for the taxpayer.
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