'Open justice principle'published at 12:40 British Summer Time 20 September 2023

12:40 BST 20 September 2023

James Cook
Scotland Editor, BBC News

Similar points are made involving the Guardian, which, while accepting there may be limits to disclosure, states, external:

“In a case where documents have been placed before a judge and referred to in the course of proceedings…the default position should be that access should be permitted on the open justice principle; and where access is sought for a proper journalistic purpose, the case for allowing it will be particularly strong.”

Publication of submissions keypublished at 12:36 British Summer Time 20 September 2023

12:36 BST 20 September 2023

James Cook
Scotland Editor, BBC News

Making the Scottish Government’s case in the Court of Session yesterday, the Lord Advocate Dorothy Bain KC repeatedly referred to written submissions which had been received by the court.

At that point we, the reporters in court, did not have access to those documents, submitted by Stonewall and Equality Network, both organisations having resisted their publication.

Our job as journalists is to report court proceedings in the public interest accurately, fairly and in accordance with the law, an essential function in a democracy.

If we cannot understand points which are being made in open court because we do not have access to relevant documents, that function is impeded, leaving the public to a certain extent in the dark.

This morning, one of Scotland’s most senior lawyers, the Dean of the Faculty of Advocates, Roddy Dunlop KC, pointed to this Supreme Court case, external as making an argument for the “principle of open justice.”

The UK government's objections to the reforms are largely based on concerns about how the 2004 Gender Recognition Act - which set up the certification process which is being reformed - interacts with the 2010 Equality Act.

Mr Johnston says only from an “unduly narrow formalistic view” could it be considered that the Scottish government’s bill does not change the operation of the Equality Act.

He tells the court the only way to change legal sex for the purpose of the 2010 act, as well as tax systems and other related issues, is the through the mechanisms set up in the 2004 act.

“The changes proposed by the bill amount to a modification of that law because they change the conditions set by the 2004 act for a change of legal sex,” Mr Johnston says.

The BBC's Scotland editor James Cook has tweeted the submission from the Equality Network.

Mr Johnston defends the Scotland’s secretary’s decision-making process.

“In the time available, and having regard to advice from expert advisors … the steps that were taken were sufficient and they were on any view rational to justify making this order,” he tells the court.

“The judgement that individually and cumulatively there were adverse effects [on reserved matters] was also one which was reasonably open to the secretary of state.”

Mr Johnston says evidence based on self-identification schemes in other countries are of “very limited assistance” to the court and to the Scotland secretary when he made his decision.

The KC says it is not relevant to the principle concern of the UK government, which is the interaction between the 2004 Gender Recognition Act - which set up the certification process which is being reformed – and the Equality Act.

If you're just joining us, here's a quick recap of what this case is all about.

• The Scottish government wants to make it easier for people in Scotland to change their legally-recognised gender
• MSPs approved the Gender Recognition (Reform) Bill last December by 86 votes to 39
• But it has proved hugely controversial - leading to this legal face-off between the Scottish and UK governments
• Scottish Secretary Alister Jack used UK government powers to veto the bill, saying it could interfere with equalities law across the whole country
• Scottish ministers then lodged a legal challenge at the Court of Session in a bid to overturn that decision and to have the reforms come in to law.

The Scottish government basically has to show that the UK government is wrong about what the Holyrood bill actually does, and that his concerns about it are not reasonable.

Thus, they are arguing that the concerns raised by Alister Jack are "irrational" - it sounds rather personal, but they mean it in a legal sense.

The Scottish government says that the examples provided by Mr Jack are "abstract and hypothetical", and that the chances of them actually coming to pass are so remote that they can't have reasonably given him cause to take such an unprecedented step.

They also say he failed to publish his detailed reasons on time, and that the UK government should have raised its concerns earlier in the passage of the bill.

The Scottish government's response from the start was "see you in court" - first under Nicola Sturgeon and now under Humza Yousaf.

This is in part in defence of the legislation itself, but also on the principle of testing the limits of the Section 35 veto.

There have been various political arguments on that front - about the move flying in the face of the democratic will of the Scottish Parliament - but it is the legal arguments that will prove critical.

On that front, their task is to show that the order has not met the tests set out in the Scotland Act - namely that the bill makes a modification of the law as it applies to reserved matters, and that the Scottish Secretary did not have "reasonable grounds" to believe it would have an adverse effect on the operation of UK-wide law.

Broadly, the issue here is the way that the 2004 Gender Recognition Act - which set up the certification process which is being reformed - is intertwined with the 2010 Equality Act, which MSPs are not allowed to change.

The 2010 Act applies in Scotland, England and Wales, setting out different "protected characteristics" including those of sex and gender reassignment, and underpins the rights and protections afforded to these groups.

The UK government argues that the 2010 Act was "carefully drafted" to work alongside the 2004 one, and that it is "highly problematic" to have two different gender recognition systems within the UK.

An example would be a single-sex association or club, which is allowed to have exclusive membership rules under the protections of the Equality Act - for example a support group for women who have been victims of sexual violence.

In the UK government argument, such groups might have to have different membership rules north and south of the border; the new rules would "significantly change the profile and number of individuals that associations will be unable to exclude".

It also argues that groups could be at "greater risk of being found to be operating unlawfully", and could end up closing down due to perceived risks.

A range of other potential issues have also been listed by the UK government, external- in these cases, law officers tend to chuck in every possible argument in the hope that one of them will stick.

These range from the ability of single-sex schools to exclude 16 and 17-year-olds who would now be eligible to change their legal sex, to the administration of UK-wide tax, benefit and pension systems.

They also say that making the process easier could "significantly" increase the risk of fraudulent applications from those with "malicious intent", which could lead to people "no longer feeling safe in any sex-segregated setting and self-excluding from such settings even though they could significantly benefit from them".

Read more here

Section 35 'in no way unconstitutional' - Johnstonpublished at 11:28 British Summer Time 20 September 2023

11:28 BST 20 September 2023

Philip Sim
BBC Scotland political correspondent

David Johnston has spent much of the morning knocking down various points and precedents cited by the Scottish government side yesterday.

And he keeps coming back to the same point in his own arguments – this is just what the Scotland Act entails.

Use of Section 35 is “in no way unconstitutional”, he argues. Given it was written into the Scotland Act, it’s simply part of the devolution settlement.

The fact it hadn’t been used for 23 years, and that its use is deeply unpopular with the Scottish government, doesn’t change that.

It’s similar in a way to the UK government’s approach to the Supreme Court case over Holyrood’s power to legislate for an independence referendum. Just point to the statute book, and say “like it or not, it’s there in black and white”.

Whether that’s as successful a line of argument in this case remains to be seen…

Johnston argues the fact there may be a policy disagreement is irrelevant to the Section 35 Order.

The UK government's KC says there was an emergency debate on the order at Westminster and the Scottish secretary explained his reasons for using it.

The petitioners could have brought the order back to the UK parliament and though the early day motion was not debated, there were other ways to bring a debate, he adds.

David Johnston KC challenges the argument from the Scottish government that a Section 35 Order is a “broad and unfettered power”.

“Nothing could be further from the truth,” Mr Johnston says.

He agrees Section 35 is a broad power but says it is “far from unfettered”.

The KC says it can only be exercised when statutory preconditions are satisfied, and decision makers are subject to supervision from the court, which has “rationality” as its “touchstone”.

'Fundamental question'published at 11:07 British Summer Time 20 September 2023

11:07 BST 20 September 2023

James Cook
Scotland Editor, BBC News

Image source, PA Media

For nearly 500 years the Court of Session has considered the thorniest and weightiest matters of the moment.

There can hardly be a more fundamental issue than what it means to be a man or a woman.

Judge Lady Haldane, in civilian attire rather than robe and wig as this is a civil not a criminal case, is familiar with the topic, having issued a hotly-debated ruling about the definition of sex last year.

But the Lord Advocate Dorothy Bain KC, representing the Scottish government, says these proceedings are different.

The court, she says, is not being asked to rule on whether changes to gender law approved by Holyrood "could or should have been different or better."

Rather, argues Ms Bain, the issue is whether or not the Scottish Secretary Alister Jack overstepped his constitutional authority in deciding to block the bill.

She argues that he did. The UK government obviously disagrees, as we are hearing from its counsel, David Johnston KC, now.

But whatever happens here, in the airy, wood-panelled courtroom number one of Edinburgh's Parliament House, is unlikely to be the end of the matter.

An appeal to a panel of three judges in what is known as the Inner House of the Court of Session may well follow.

And, given that the case hinges on the unprecedented use of a provision of the Scotland Act which established devolution, it would be odd indeed if it did not end up before the UK Supreme Court in London.

Image source, JK Rowling

Author JK Rowling has been one of the most prominent critics of the reforms.

She believes allowing anyone to "self-identify" as a woman could impact on legally-enshrined women's rights.

This relates to areas such as access to women-only spaces and services, including hospital wards and refuges.

Several SNP MSPs - most notably former leadership candidate Kate Forbes - have also spoken out against the plans.

Image source, PA Media

Image source, PA Media

This is an opportune time to highlight what campaign groups - for and against the Gender Recognition Reform Bill, external - have had to say in the lead up to today's proceedings.

Gender recognition reform campaigners say the new law would allow them to "live with the dignity and recognition that everyone deserves".

Vic Valentine, of the Scottish Trans campaign group, said the changes would enable trans men and women to show a birth certificate "that reflects who they are" at important moments in their lives, such as starting a job or giving notice to be married.

Nicola Sturgeon - who resigned as first minister in February - said it was "really important" to protect and enhance the rights of trans people. She insisted that trans rights and women's rights need not clash.

She described the UK government's decision to block the bill as a "full-frontal attack" on the Scottish Parliament and accused the UK government of using trans people as a "political weapon".

Her successor Humza Yousaf described the use of the Section 35 order as "unacceptable".

Addressing complaints from the Lord Advocate that Mr Jack had given no indication that a Section 35 Order would be used while the bill was being developed and voted on, Mr Johnston said the UK government could not “rationally” take a view on the use of a Section 35 Order until the bill was in its final form to judge how it would affect reserved matters.

Mr Johnston identifies what he describes as the “correct test” for whether the court should review the use of the Section 35 Order.

“The court should only intervene if it is satisfied that no reasonable secretary of state, on the basis of inquiries that had been made, could have been satisfied that he should make the order,” he says.

Our colleague James Cook, who is in the Court of Session, has tweeted out Stonewall's submission onf the gender law judicial review.

David Johnston KC rejects claims that using a Section 35 Order could undermine key constitutional principles, including:

• Separation of powers
• Parliamentary accountability
• A decision of a court is binding as between the parties, and cannot be “ignored or set aside by anyone”, including the executive.
• Decisions and actions of the executive are “subject to necessary and well established exceptions reviewable by the court at the suit of an interested citizen”.

Mr Johnston said the use of the Section 35 Order does not violate any of these points, nor “rub against” any other constitutional principles.