GRR Scotland: Gender reform legal fight bill 'could be £500,000'

First Minster Humza Yousaf has declined to say what the ‘worst case’ costs scenario could be, claiming the figure is part of legal advice given to Ministers, which is not made public. 

But he has been made aware of the potential bill by lawyers advising the Scottish Government.   

One legal figure told The Scotsman a bill of £500,000 is possible if the court battle goes all the way to the UK's highest court, as is widely expected. 

Separately, Herald columnist Professor Adam Tomkins, chair of public law at the University of Glasgow and a former Conservative MSP, said: "I think you're on safe ground in assuming that it will run to at least hundreds of thousands of pounds, but I couldn't possibly be more specific than that." 

The Scottish Government is seeking a judicial review after Scottish Secretary Alister Jack used a Section 35 order – a never-before-utilised part of the Scotland Act – to prevent the Gender Recognition Reform Bill, which was passed by MSPs in December, from gaining royal assent.  

READ MORE: Humza Yousaf gets on front foot over legal challenge

Yesterday a former Supreme Court justice described the Scottish Government’s position as “arguable but weak”. 

The UK Government argues the veto was used because the legislation, which simplifies the process trans people go through to obtain legal recognition in their preferred gender, impacted on Great Britain-wide equality laws. 

Mr Yousaf said he “can’t go into the detail of the cost because it is part of legal advice” he has received in relation to the case. 

The Scotsman reports he was asked if he has been given a “worst case scenario” figure of the total costs, answering: “Of course.”

Mr Yousaf added: “I don’t go into legal advice in terms of what the cost of a court case may well be. But of course, at the conclusion of that court case, we’ll make those figures absolutely public and absolutely transparent.” 

He dismissed claims that his Government’s challenge is destined for failure, saying: “If the legal advice said that there is not a stateable case, the Government wouldn’t take it forward.” 

Scotland Office minister John Lamont vowed the Westminster administration would “strongly defend” its use of the section 35 order.

He said: “This is taxpayers’ money that is being used by the Scottish Government to take this action. And if they do have less than certain legal advice you have to question what the motivations are for taking this action, if they’ve not got robust advice to back up the decision they are taking to challenge us.” 

A legal figure said the losing side would have to pay their own and their opponents' costs. If the Scottish Government lost, they said a bill of up to £500,000 is possible, but cautioned: "All you can do is speculate." 

The Scottish Government spent more than £250,000 on its legal challenge over a second independence referendum last year. However, this case went straight to the Supreme Court, without passing through the Court of Session. 

Prof Tomkins said the Scottish Government's decision to launch the legal challenge was "manifestly, transparently, obviously being done for political reasons, not for legal reasons". 

He said: "I don't think anybody really expects the UK to lose, but you never know. As we all know, section 35 has never been used before so its exact legal parameters have been untested.

"But I've looked at it, and a lot of people I know have looked at it. Everybody I know who's looked at it thinks that the UK is on pretty solid ground, but you never know." 

He said the court battle, which will initially take place in the Court of Session, "could go on for two and a half years" if it is appealed to the Supreme Court. 

The Scottish Government's gender recognition reforms have proven highly controversial, with protests outside Holyrood during the mammoth debate session which saw them passed by a majority of MSPs from all parties in favour. 

However, polls on the subject have found that the issue is not a high priority for the public, and most people are not in favour of the reforms once they are looked at in detail. 

Former Supreme Court judge Lord Sumption said earlier that the Scottish Government’s position is “weak” and the legal challenge will be “very difficult”.

He said the impact of the Bill could “introduce serious problems”, highlighting that Lord Hope, a former deputy president of the Supreme Court, had “described the Scottish Government’s position as ‘hopeless and a waste of public money’”. 

Lord Sumption said: “I wouldn’t go that far. I think that the Scottish Government’s legal position is arguable, but I think it is weak. Their basic problem is that gender reassignment is a protected characteristic and the Bill alters the way the law works as applied to those. 

“The whole scheme of the Scotland Act is that matters that affect only Scotland are devolved to Scotland, matters that affect the whole of the UK remain in the jurisdiction of Westminster.

"That is the way the Scotland Act works. The UK Government is arguing that this is something that affects the way that UK-wide legislation works.” 

READ MORE: How Humza Yousaf could emerge well from court battle

Rachael Hamilton, the Scottish Conservatives’ equalities spokeswoman, called Mr Yousaf’s position on legal costs a “cynical cop-out”.

She said: “He knows most Scots oppose his manufactured legal confrontation with the UK government over the reckless GRR Bill, so the last thing he wants to do is admit how much it’s costing them.

"He’s quite happy squandering public money in a desperate bid to divert attention from the feuds and scandals tearing the SNP apart, yet he’s not prepared to say what that bill will be.” 

A Scottish Government spokesman said: “Challenging the use of section 35 in this way is the only option to uphold the democratic will of the Scottish Parliament. It is the price of protecting democracy and devolution in Scotland.

"It would be entirely speculative to comment on what the costs and expenses of the challenge would be at this point. Any costs incurred by the Scottish Government will be published in due course.”