S35 decision tomorrow

[InThePottingShed]

Herald article

YIUS HUV ALL FORGOTREN THE BABY BOXES SAE QUICKLY

And, wafting on the breeze, there came the undeniable waft of common sense.

Ever onwards.

I'm feeling a tiny bit sorry for you today!

On 17 January 2023 the Secretary of State for Scotland made the Order under section 35 of the Scotland Act 1998. The Order blocked the submission of the Gender Recognition Reform (Scotland) Bill for Royal Assent. The issue for the court was whether that Order was lawfully made. The Lord Advocate, appearing on behalf of the Scottish Ministers, invited the court to reduce it (declare it to be of no legal effect).

The opinion concludes that the Order is lawful and dismisses the petition. In particular, it makes clear that, first, the Secretary of State adopted the appropriate procedure in invoking section 35. Second, that because the Bill modifies the meaning of “full gender recognition certificate” it does modify the law as it applies to reserved matters. Third, that the reasons provided by the Secretary of State for making the order are rational and adequate.

https://www.judiciary.scot/home/sentences-judgments/judgments/2023/12/08/petition-of-the-scottish-ministers-for-judicial-review-of-the-gender-recognition-reform-%28scotland%29-bill

This is great news and I am really glad that the web page spells it out so clearly.

And (although I was feeling doom laden) I think it shows that Lady Haldane in facts rules on cases based on how laws are actually written. (ie none of us might like it but her ruling on SSE & EA was just that saying this is what it says)

But ... as discussed on other threads it isn't just Scotland. Both Wales and NI want to enact something similar to the Scottish GRR.

So wonder if (behind the scenes) Scotland will be urged to appeal, despite cost, to continue the challenge to not just get their way with their GRR but to create a pecedent in terms of devolved administrations not being "under the yoke" of Westminster.

Yes. There is a real problem where a party can basically insulate a preferred politician from the electorate by making them a list MSP. You can probably guarantee a certain share of the list votes regardless - so no one votes for good old Maggie and still she’s part of the government.

Maybe a decent measure would be to insist that ministers must be drawn from the constituency MSPs who are actually voted for individually. That would disincentivise the use of the regional lists to keep people in parliament for as long as it suits the party.

The SNP and greens will be shouting about how this means Scotland needs independence.

From here it looks very much like a very good argument for the UK and it’s reserved powers.

I do also find the rhetoric of brave little Scotland going it alone, but always following in the footsteps of someone bigger and cooler. If it’s not the EU, it’s the Nordic countries, or maybe it’s Canada or New Zealand. Regardless, it makes Scotland look like a little kid in the playground trying to be like the big kids and copying their ideas, while throwing a huge tantrum to its parents because it’s a big kid and can do things itself.

Holy shit, the community note! 😆

https://x.com/KirstySNP/status/1732722672885227782?s=20

And I'll be lighting a candle at 8 tonight for #womendidnaewheesht

It's funny to think that round about this time last year, loads of us on here were rage poeming after the GRR bill vote!

This article seems to imply that Holyrood has been challenged before about trying to create laws not in line with UK laws.

But this time them were proved able to do this - well in an adjusted way.

The Holyrood bill was first passed unanimously by MSPs in March 2021, but after a challenge from UK law officers, the supreme court ruled that four sections required amendment because they went beyond Holyrood’s powers.

The supreme court ruling meant it was necessary to narrow the scope of the bill to fit within devolved powers, which Somerville described as “deeply disappointing”, though the Scottish Conservatives’ deputy leader, Meghan Gallacher, countered that it was a result of Scottish government “incompetence”. Other MSPs urged the government to learn lessons from a fraught legislative process ...

https://www.theguardian.com/politics/2023/dec/07/holyrood-passes-revised-bill-on-childrens-rights-after-uk-challenge

I wonder if the GRR could be "narrowed" - but doubt this will happen as (1) it could water down "trans rights" and (2) would be an acceptance that Westminister can "dictate" to Scotland.

Rage poeming... No...that's not ringing any bells!

Mention in every report I’ve heard, including the Radio 4 bulletin at 4pm of the fact that the GRR would allow people to change their legally recognized sex.

Not one that gave the weasel word gender.

If it’s an attempt by the Scottish government to make Westminster look bad, it’s sorely misjudged. If they wanted to do that, they’d need Westminster to block something the majority of Scots supported, rather than something almost nobody does, as highlighted by the debacle of Isla Bryson.

@IwantToRetire that bill was blocked with a section 33 order it was the 4th or 5th time the section 33 was used (all went to crt and scot gov lost them all)
A section 33 is used when the Scottish executive (they aren't a government) makes a law on a matter that they don't have devolved powers to legislate.
This is different to the section 35 that Alistair jack used.
A section 35 is used when the Scottish executive makes a law that is within its devolved powers but would effect reserved powers.
The fact that the Scottish executive decided to rebrand as a government and was allowed to get away with it gave them delusions of grandure. This along with there electoral success has lead to them believe that they can do anything that they want regardless of the law or the limitations of their power.
They have been trying to indoctrinate our children for years since we'll before they hit on the trans stuff, if you look into the Named Person bill you will see a blatant attempt at state interference in family life and a clear attempt at parental alienation.
The SNP have become a dictatorship in all but name under Stergeon and co with useless as a poor follow up act. I truly fear for my country

Judging from twitter I'm guessing there's quite a few drunk women in Scotland round about now!

@Hoardasurass - thanks I did mis read the numbers 33 vs 35, but as it has prompted such an interesting post not that embarrassed.

But being shamed by one's governments' seems to be universal. eg UK Government is endlessly trying to evade existing laws!

@IwantToRetire I meant to add that the bill you linked to has never been rewritten it like the rest were just dropped, however that hasn't stopped them using it as an excuse for not prosecuting rapist under 18

I hope that merkin's non-flammable. Although the insurance claim would be hilarious 😂

Trust me those candies were not left unattended with the no doubt highly flammable merkin! As soon as the photo was taken the candles were put out. Although it wouldn't be the worst of my home insurance claims to be fair!

If it was the other way up you could put a star on the top, it would be a Xmas merkin 🎄

I saw the headline. It was DH who said 'look closer. Who made the decision?'.

I'd have missed it. But it's REALLY important.

I think I would hold fire till appeal time limits have passed.

Trans Rights for Independence is not The Hill To Die On...

I think I might laugh my socks off if they think it is!

Scottish Labour are being very coy and quiet. No official response on X/Twitter and not a peep from even the most vocal supporters. It’s almost as if they’ve all been told to keep their mouths shut…

Eh. I still lit my candle. Scottish women have fought tooth and nail and we're rightly celebrating this step. Women will continue not wheeshting, even if there is an appeal.

Don't they have to have grounds for an appeal? They can't just go, 'we don't like it, try again.....ye ken'.

Sorry

The Court of Session has rejected the appeal by the Scottish Government against the UK Government’s Section 35 order to prevent the Gender Recognition Reform (Scotland) Bill becoming law.

The Scottish Government’s argument that the Secretary of State for Scotland “acted irrationally by failing to acquaint himself with the relevant facts and material before making the Order” was rejected by the judge, Lady Haldane. She noted that with a four-week deadline to decide whether to invoke Section 35 of the Scotland Act after the bill was passed last Christmas, he could not undertake an extensive information-gathering exercise and had to rely on information and advice from others.

The judgment notes that this included a letter from the Chair of the Equality and Human Rights Commission and submissions from “organisations active in the area of sex-based rights,” such as Sex Matters and Murray Blackburn Mackenzie, as well as notes from the UN Special Rapporteur Reem Alsalem and the UN Independent expert Victor Madrigal-Borloz.

https://sex-matters.org/posts/updates/section-35-appeal-rejected/

(sorry if this has already been posted)