Scotland gender recognition bill: what is a section 35 order?

Clash over transgender rights will be seen as a test of the constitutional balance between Holyrood and Westminster

As the UK government confirms that it will use a section 35 order to block a new law that would make Scotland the first part of the UK to introduce a self-identification system for people who want to change gender, we explain what it is and why there is such controversy over it.

What does a section 35 order allow the UK government to do?

Under section 35 of the Scotland Act, a UK secretary of state can stop a bill getting royal assent if they have reasonable grounds to believe the law in question would have an adverse effect on legislation reserved to Westminster. In this case it was the Scottish secretary, Alister Jack, claiming the gender recognition bill would impede operation of the UK Equality Act.

Has this provision been used before?

No, it has not been used since the act establishing the Scottish parliament came into effect in 1998. That is the reason it has been described as the “nuclear option”.

A slightly less confrontational alternative would have been for the UK government, under a provision also contained within the Scotland Act, to refer the bill to the UK supreme court for justices to decide whether it related to reserved matters outside Holyrood’s legislative competence.

What does it mean constitutionally?

The UK says it is an appropriate use of powers under the Scotland Act, based solely on its concerns that the legislation will adversely effect the operation of the Equality Act, which applies in England, Scotland and Wales.

For most MSPs, but for the governing Scottish National party in particular, which is pursuing a second independence referendum, it is likely to be seen – and framed – as, in effect, an unacceptable veto over the Scottish parliament’s powers in certain circumstances.

Notwithstanding that the debate over transgender issues is one that is highly charged, the already frosty relationship between the SNP and the Conservative UK government guarantees that the clash caused by section 35 will be seen as a significant test to the constitutional balance between Holyrood and Westminster.

Can the Scottish government challenge the use of section 35?

Yes. Scotland’s first minister, Nicola Sturgeon, has said her government is likely to mount a legal challenge in response. This would be through a judicial review, which would assess the lawfulness of the Scotland secretary’s decision.

It would represent a return to court on constitutional matters for the SNP after the supreme court ruled less than two months ago that the Scottish parliament could not hold a second independence referendum without Westminster approval.


Haroon Siddique Legal affairs correspondent

The GuardianTramp

Related Content

Article image
Rishi Sunak confirms UK could block Scotland’s gender recognition bill
Westminster looking at ‘nuclear option’ to stop bill on self-identification for people wanting to change legal gender

Peter Walker, Kiran Stacey and Libby Brooks

23, Dec, 2022 @1:08 PM

Article image
UK review of gender recognition list risks ‘trans travel ban’
Campaigners condemn government move to review list of countries whose GR certificates are automatically recognised

Libby Brooks Scotland correspondent

10, Jan, 2023 @8:51 PM

Article image
Rishi Sunak ‘concerned’ about impact of Scotland’s gender recognition bill
PM dodges questions about whether he would stop controversial bill receiving royal assent

Aubrey Allegretti

13, Jan, 2023 @5:06 PM

Article image
SNP minister quits in protest at gender recognition reform bill
Ash Regan resigns to vote against bill, with Nicola Sturgeon accusing her of failing to raise concerns earlier

Libby Brooks and Severin Carrell

27, Oct, 2022 @2:43 PM

Article image
Scottish government hails ‘historic day’ as MSPs pass gender recognition bill
Holyrood votes in favour of plans to allow people to legally change their gender through system of self-identification

Libby Brooks Scotland correspondent

22, Dec, 2022 @3:04 PM

Article image
Scotland to launch legal challenge to UK government block on gender reform bill
Petition for judicial review will put new first minister Humza Yousaf on collision course with Westminster

Libby Brooks Scotland correspondent

12, Apr, 2023 @12:25 PM

Article image
Scottish government introduces gender recognition reforms
Legislation will reduce waiting times and allow 16- and 17-year-olds to change legal gender for first time

Libby Brooks Scotland correspondent

03, Mar, 2022 @4:58 PM

Article image
Scotland’s proposed gender recognition laws explained
The Holyrood bill introducing a system of self-declaration for gender recognition has polarised opinion

Libby Brooks Scotland correspondent

20, Dec, 2022 @12:00 PM

Article image
Why Scotland’s gender reform bill is sparking concern over trans prisoner policies
Analysts warn of legal challenges if bill makes inmates’ access to gender recognition certificates easier – though jail allocation is decided case by case

Libby Brooks Scotland correspondent

26, Jan, 2023 @5:37 PM

Article image
Labour’s UK and Scottish leaders try to end row over gender recognition bill
Head of Scottish party Anas Sarwar says there is no disagreement with Keir Starmer over transgender rights reform

Libby Brooks, Kiran Stacey and Pippa Crerar

18, Jan, 2023 @5:36 PM