Reviewing the Lawfulness of the UK Government’s Section 35 Order

Yesterday, for the first time, the UK Government used s. 35 of the Scotland Act 1998 to prevent the Presiding Officer of the Scottish Parliament from presenting a Bill for Royal Assent. The Bill in question is the Gender Recognition (Reform) Bill, which makes it easier to obtain a Gender Recognition Certificate under Scots law, for example by reducing the minimum age requirement and the period in which the applicant has to have been living in their acquired gender and removing the obligation to provide medical evidence.

The Scottish government has already indicated that it will seek judicial review of the order made under s. 35. In this post, I consider how the courts will go about assessing the lawfulness of the order: in my view, the standard of review will be quite intense, with relatively little deference due to the UK government.

Section 35(1)(b) permits the Secretary of State for Scotland to make an order preventing a Bill becoming law where the Bill contains provisions:

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 [i.e. matters reserved for the Westminster Parliament]

An order under s. 35 must “state the reasons for making the order” (s. 35(2)). The Scotland Secretary has indeed published his reasons. In essence, the UK Government is concerned that the more liberal Scottish approach to Gender Recognition Certificates will interact with the Equality Act 2010 in such a way as to undo the “careful balance” struck by the Westminster Parliament. These impacts will be felt in three respects described in Parts 2 to 4 of the s. 35 reasons:

Part 2: The impacts of the creation of 2 parallel and very different regimes for issuing and interpreting GRCs within the UK.

Part 3: The impacts that removing safeguards could have on safety, in particular that of women and girls, given the significantly increased potential for fraudulent applications to be successful.

Part 4: The impacts on the operation of the Equality Act 2010 that result from the fact that a GRC changes a person’s protected characteristic of sex for the purposes of the 2010 Act , and the expansion of the cohort of people able to obtain a GRC. This includes (a) the exacerbation of issues that already exist under the current GRC regime, and (b) the creation of new ones.

I do not have the necessary expertise in equality law to opine on the merits of the s. 35 reasons. But it is clear that in considering whether the UK Government acted lawfully, the courts will closely scrutinize the s. 35 reasons.

First, s. 35 is a unique power. It allows a member of the executive to veto a Bill passed by a legislative assembly. This is significant because legislative assemblies have democratic legitimacy, as they derive their mandate from the electorate, and can draw upon the expertise of their members in serving the voters.

The democratic pedigree of the Scottish Parliament was recognized by the UK Supreme Court in Axa General Insurance v. Lord Advocate [2011] UKSC 46. The issue in that case was the scope of common law judicial review of acts of the Scottish Parliament. The Supreme Court held that judicial review for irrationality, unreasonableness or arbitrariness would be incompatible with the democratic pedigree of the Scottish Parliament (at para. 52). Lord Hope commented in expansive terms on the legitimacy of legislative assemblies in the UK constitutional order:

The Scottish Parliament takes its place under our constitutional arrangements as a self-standing democratically elected legislature. Its democratic mandate to make laws for the people of Scotland is beyond question. Acts that the Scottish Parliament enacts which are within its legislative competence enjoy, in that respect, the highest legal authority. The United Kingdom Parliament has vested in the Scottish Parliament the authority to make laws that are within its devolved competence…

The dominant characteristic of the Scottish Parliament is its firm rooting in the traditions of a universal democracy. It draws its strength from the electorate. While the judges, who are not elected, are best placed to protect the rights of the individual, including those who are ignored or despised by the majority, the elected members of a legislature of this kind are best placed to judge what is in the country’s best interests as a whole. A sovereign Parliament is, according to the traditional view, immune from judicial scrutiny because it is protected by the principle of sovereignty. But it shares with the devolved legislatures, which are not sovereign, the advantages that flow from the depth and width of the experience of its elected members and the mandate that has been given to them by the electorate (at paras. 46, 49).

The closest analogy to s. 35 of which I am aware is the veto power considered in R. (Evans) v. Attorney General [2015] UKSC 21. There, the Attorney General had vetoed the disclosure of the so-called ‘Black Spider’ memos and thereby purported to override an order of the Upper Tribunal. Although the Attorney General produced detailed reasons setting out “reasonable grounds” for his exercise of the veto power, a majority of the UK Supreme Court held that the veto was unlawful.

Given the extraordinary nature of the power at issue, which rubbed up against fundamental constitutional principles, Lord Neuberger gave the veto power “significantly narrower application than it might otherwise have had” (at para. 87), holding that it could only be lawfully exercised where the Attorney General could demonstrate “a material change of circumstances since the tribunal decision or that the decision of the tribunal was demonstrably flawed in fact or in law” (at para. 78). For Lord Mance, the Attorney General needed to provide “properly explained and solid reasons” (at para. 130), rather than produce “his own redetermination of the relevant background circumstances” (at para. 131). For the majority, the mere disagreement on the substance of the decision revealed by the reasons was insufficient to justify recourse to an extraordinary power.

The context here is strikingly similar, with the democratic legitimacy of the Scottish Parliament as the key consideration in place of the rule of law bona fides of the Upper Tribunal. One branch has given detailed consideration to a particular issue and acted within its sphere of constitutional competence, here bringing its democratic pedigree to bear on a matter of importance to the electorate. Another branch has given reasons which seek to justify overriding the other branch’s considered exercise of its constitutional competence. In such circumstances, the reasons must be weighty and must go beyond a redetermination of matters already considered.

Second, the inclusion of the “reasonable grounds” requirement in s. 35 invites relatively searching judicial review, especially when coupled with the statutory requirement to give reasons.

The best starting point for analyzing a “reasonable grounds” requirement is Lord Atkin’s famous dissent in Liversidge v. Anderson:

It is surely incapable of dispute that the words “if A has X” constitute a condition the essence of which is the existence of X and the having of it by A. If it is a condition to a right (including a power) granted to A, whenever the right comes into dispute the tribunal whatever it may be that is charged with determining the dispute must ascertain whether the condition is fulfilled. In some cases the issue is one of fact, in others of both fact and law, but in all cases the words indicate an existing something the having of which can be ascertained. And the words do not mean and cannot mean “if A thinks that he has.” “If A has a broken ankle” does not mean and cannot mean “if A thinks that he has a broken ankle.” “If A has a right of way” does not mean and cannot mean “if A thinks that he has a right of way.” “Reasonable cause” for an action or a belief is just as much a positive fact capable of determination by a third party as is a broken ankle or a legal right. If its meaning is the subject of dispute as to legal rights, then ordinarily the reasonableness of the cause, and even the existence of any cause is in our law to be determined by the judge and not by the tribunal of fact if the functions deciding law and fact are divided. Thus having established, as I hope, that the plain and natural meaning of the words “has reasonable cause” imports the existence of a fact or state of facts and not the mere belief by the person challenged that the fact or state of facts existed, I proceed to show that this meaning of the words has been accepted in innumerable legal decisions for many generations, that “reasonable cause” for a belief when the subject of legal dispute has been always treated as an objective fact to be proved by one or other party and to be determined by the appropriate tribunal ([1942] AC 206, at pp. 227-228, emphasis added).

Lord Atkin was in dissent in that case but his analysis of “reasonable grounds” has carried the day: Nakuda Ali v. Jayaratne [1951] AC 66. To borrow from SA de Smith, when the term “reasonable grounds” is used, reasonableness “is not subjective, but objective in the sense that it is subject to formulation and application by a court of law” (Judicial Review of Administrative Action, 3rd ed. (London, 1973), at p. 306).

As the High Court of Australia has observed, a reasonable grounds requirement therefore “opens many administrative decisions to judicial review and precludes the arbitrary exercise of many statutory powers…” (George v. Rockett (1990) 170 CLR 104 at p. 112. See also Police v. Anderson [1972] NZLR 233, at pp. 247-248 (CA)). Indeed, in the words of the High Court of New Zealand, “if language is objective, the public authority whose decision is impugned will have to be prepared to show that the condition is fulfilled in a way which satisfies the Court” (Chatfield & Co Ltd v. Commissioner of Inland Revenue [2017] NZHC 3289; [2018] 2 NZLR 835, at para. 86 (affirmed [2019] NZCA 73)).

Reasonableness in the context of a power to override the considered decision of a branch of government imbued with democratic legitimacy should therefore require that the reasons for the s. 35 order satisfy the reviewing court that there is an objective basis, beyond mere disagreement, for exercising the power.

Third, the use of the language of “reasonable grounds” invites the application of the Tameside duty.

The eponymous case involved a statutory provision requiring the Secretary of State for Education to act reasonably: accordingly, Lord Diplock held, in the passage treated as the locus classicus of the Tameside duty, the Minister was obliged to “take reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly” (Secretary of State for Education and Science v. Tameside MBC [1977] AC 1014, at p. 1065).

The duty is now a well-established component of English (and Scottish) administrative law. Where the duty applies, a decision-maker must conduct “a sufficient inquiry prior to making its decision” (R. (Plantagenet Alliance Ltd) v. Secretary of State for Justice, [2014] EWHC 1662 (Admin) at para. 99, per Haddon-Cave LJ). The weight to be given to information turned up by the inquiry is a matter for the decision-maker but failure to comply with the duty renders a decision unlawful (R. (Khatun) v. Newham LBC, [2005] QB 37 at para. 35, per Laws LJ. See e.g. Re School and Nursery Milk Alliance Ltd [2022] CSOH 11, at p. 42).

To the extent that the s. 35 reasons rest on speculation about the adverse effects that the Scottish Bill may have in the future, the order is vulnerable to challenge for failure to conduct sufficient inquiries to identify, for example, how many people would be likely to avail themselves of the relaxed requirements of the Scottish Bill and create problems for the good administration of Britain’s equality framework.

As a non expert in UK equality law, I am poorly placed to opine on the likely outcome of the litigation. It may be that the Scottish Parliament’s Bill is poorly thought through, or that the legislative process was wanting in some respects. The s. 35 order may well survive judicial review. But it is clear that the courts will closely scrutinize the reasons given before upholding the maiden exercise of an extraordinary power.

This content has been updated on January 18, 2023 at 21:26.