NICOLA Sturgeon is being urged to publish the legal advice her government was given on the gender recognition reform bill as the row between the Scottish and UK Government over the legislation continues.
Donald Cameron, the Conservative MSP, is to write to ministers tomorrow demanding the documents are released.
It is not normal practice for lawyers' counsel to ministers to be published though the Scottish Government did release the legal advice it received relating to the judicial review brought against it by former First Minister Alex Salmond as part of a parliamentary inquiry into the flawed inquiry into claims against him.
Last week a dispute erupted between the governments in London and Edinburgh when Scottish Secretary Alister Jack issued a Section 35 order from the Scotland Act for the first time since devolution which stopped the Gender Recognition Reform Bill from gaining Royal Assent.
The legislation was passed in Holyrood in December with the Conservatives the only party opposed to the plans. Some Tory MSPs rebelled to back the reforms, while some SNP MSPs revolted to vote against the changes.
The reforms make it easier for transgender people to obtain a gender recognition certificate by reducing the time a person has to live in their acquired gender and by removing the need for a medical diagnosis of gender dysphoria. The bill also lowers the age at which a person can obtain a certificate from 18 to 16.
Mr Jack intervened to stop the legislation by issuing a Section 35 order from the Scotland Act as UK Government lawyers said it encroached on UK wide equalities laws.
He argued the bill reduces protections for single-sex spaces and contravenes UK-wide equality legislation by imposing a different regime for just one devolved country.
Should the Scottish bill be enacted people in Scotland could get a gender certificate at 16 and under a process known as self certification while in other parts of the UK people would have to wait until they are 18, receive a medical diagnosis of gender dysphoria and live in their acquired gender for two years.
The First Minister disputed Mr Jack's argument and said the bill was within devolved powers and was not in conflict with the Equalities Act.
Scottish Conservative shadow constitution secretary Donald Cameron MSP said: “Given her increasingly colourful claims that the UK Government’s actions in issuing a Section 35 order are an unjustified assault on the Scottish Parliament’s powers, you’d think Nicola Sturgeon would be eager to display the legal advice she’s received to back this up.
“The Secretary of State for Scotland insists – correctly – that he had no option but to intervene because the First Minister’s flawed GRR Bill impinges on equalities legislation in the rest of the UK.
“If Nicola Sturgeon is disputing this, she should publish the legal advice to this effect – because experts such as Lord Hope disagree with her.
“The Scottish Government set a precedent by putting the legal advice in relation to the Alex Salmond case into the public domain, so I will be writing to them urgently asking that they publish it in this case too.”
The Scottish Government told the Herald on Sunday it does not publish legal advice.
Ms Sturgeon confirmed last Tuesday that her Government will seek a judicial review to appeal the UK Government’s decision to veto Scotland’s gender reforms, warning “it will inevitably end up in court”.
The case would be heard in the Court of Session in Edinburgh. But it could then go to the Supreme Court if the losing side appealed the decision.
Former Supreme Court judge Lord Hope of Craighead last week said the case put forward by the UK Government is "devastating" and questioned whether fighting it would be a "sensible use of public money".
He told the BBC: "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."
He was backed by ex-honorary professor of law at Glasgow University, Alistair Bonnington, who claimed any bid by the Scottish Government to fight the order in court would be "doomed".
But former Lord Chancellor Lord Falconer of Thoroton KC said the statement of reasons published by the Scottish Secretary “did not justify” his decision to invoke section 35 of the Scotland Act 1998 to prevent the Gender Recognition Reform Bill from receiving royal assent.
Why are you making commenting on The Herald only available to subscribers?
It should have been a safe space for informed debate, somewhere for readers to discuss issues around the biggest stories of the day, but all too often the below the line comments on most websites have become bogged down by off-topic discussions and abuse.
heraldscotland.com is tackling this problem by allowing only subscribers to comment.
We are doing this to improve the experience for our loyal readers and we believe it will reduce the ability of trolls and troublemakers, who occasionally find their way onto our site, to abuse our journalists and readers. We also hope it will help the comments section fulfil its promise as a part of Scotland's conversation with itself.
We are lucky at The Herald. We are read by an informed, educated readership who can add their knowledge and insights to our stories.
That is invaluable.
We are making the subscriber-only change to support our valued readers, who tell us they don't want the site cluttered up with irrelevant comments, untruths and abuse.
In the past, the journalist’s job was to collect and distribute information to the audience. Technology means that readers can shape a discussion. We look forward to hearing from you on heraldscotland.com
Comments & Moderation
Readers’ comments: You are personally liable for the content of any comments you upload to this website, so please act responsibly. We do not pre-moderate or monitor readers’ comments appearing on our websites, but we do post-moderate in response to complaints we receive or otherwise when a potential problem comes to our attention. You can make a complaint by using the ‘report this post’ link . We may then apply our discretion under the user terms to amend or delete comments.
Post moderation is undertaken full-time 9am-6pm on weekdays, and on a part-time basis outwith those hours.
Read the rules hereLast Updated:
Report this comment Cancel