A CONSERVATIVE MSP has written to Shona Robison demanding she release legal advice received by the Scottish Government on the Gender Recognition Bill.

Donald Cameron, the party's spokesman on the constitution, asked the Cabinet Secretary for Social Justice if such counsel from lawyers over any impact on UK's equalities laws from the legislation had been followed.

He stated that he was aware it was not normal practice for the government to release legal advice it had received.

However, he drew attention to the unprecedented nature of the case and that an exemption from the rule over not releasing such documents exists if publication is deemed to be in the public interest. 

Mr Cameron also noted the Scottish Government's release of legal advice in 2021 it had received over former First Minister's judicial review of the administration's investigation into complaints made against him. 

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Ministers initially refused to release the documents but finally made them public in 2021 as they came under pressure during the parliamentary inquiry into the flawed probe which cost the taxpayer more than £500,000.

It was released the day before Ms Sturgeon gave evidence to the inquiry and after a threatened vote of no confidence in Deputy First Minister John Swinney.

It then emerged the Scottish Government had discounted the legal advice they received to give up the court battle with Mr Salmond.

In his letter to Ms Robison (pictured below), sent today, the Tory MSP referred to questions he had raised with Ms Robison in Holyrood last week.

The Herald:

"I asked you if you had sought legal advice on the issue of the cross-border implications of the Gender Recognition Reform Bill, and in particular the impact on UK equalities law, in light of what had been said by the Equality and Human Rights Commission and others," he said.

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"I also asked whether this legal advice had been followed.

"In light of your answers, which referred to legal advice being taken throughout the process, I am asking you now if you will publish this legal advice, given the public interest and constitutional importance of the matter?"

He added: "I am well aware that it is not usual practice for the Government to publish legal advice. 

"However, an exemption from this rule exists if publication is deemed to be in the public interest. 

"Indeed, there have been many examples of the Scottish Government publishing legal advice in the past where circumstances have demanded it, most recently, in 2021 in the case involving the former First Minister. 

"I am sure you will agree that both the constitutional context of the section 35 order issued by the Secretary of State last week, as well as the obvious fact that the legislation has been highly contentious and of national significance in Scotland and the wider UK, means that the threshold of the public interest test has been met.

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"In addition, I would also argue that if the Scottish Government believes that it is in the public interest to seek a judicial review into the Secretary of State’s decision, then it is equally in public interest that the Scottish Government publishes its legal advice."

A dispute erupted last week 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 to stop 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.

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However, opponents say the new process could be abused by predatory men who could more easily gain access vulnerable women in single sex spaces.

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.

Through Section 35 of the Scotland Act, Mr Jack has the power to block Bills he views as impacting on national security or other laws elsewhere in the UK, from receiving Royal Assent, a power he exercised last week.

The First Minister vowed to fight the decision, with the next step likely to be a judicial review at the Court of Session in Edinburgh, but she would not say when a petition for review would be lodged with the court.

According to Ms Sturgeon, there was a public interest in the challenge, not only in the hopes of seeing the Bill passed into law, but to test the parameters of Section 35.

Legal opinion appears divided on whether the GRRB encroaches onto UK equalities laws.

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."

But former Lord Chancellor Lord Falconer of Thornton KC said the statement of reasons published by the Scottish Secretary “did not justify” Mr Jack's decision to invoke section 35 of the Scotland Act 1998 to prevent the Gender Recognition Reform Bill from receiving royal assent.

The Scottish Government has told The Herald it does not make public legal advice it receives.