Limits on Executive Use of Section 35 Orders: Commentary on [2023] ScotCS CSOH_89

Introduction

The case before the Scottish Court of Session, titled Petition by the Scottish Ministers for Judicial Review of the Gender Recognition Reform (Scotland) Bill (Prohibition on Submission for Royal Assent) Order 2023 ([2023] ScotCS CSOH_89), represents a pivotal moment in the interplay between devolved legislative powers and executive oversight within the United Kingdom's constitutional framework. The Scottish Ministers challenged an unprecedented order made by the Secretary of State for Scotland under section 35 of the Scotland Act 1998. This order effectively blocked Royal Assent to the Gender Recognition Reform (Scotland) Bill, preventing its enactment into law. The key issues revolved around whether the conditions for invoking section 35 had been met and whether the order constituted an undue interference with the legislative autonomy of the Scottish Parliament.

The primary parties involved were the Scottish Ministers, represented by the Lord Advocate and other legal advisors, as petitioners; and the Advocate General for Scotland and supporting legal counsel as respondents. The crux of the dispute lay in the appropriateness and legality of using section 35 to veto a devolved bill based on alleged adverse effects on reserved matters.

Summary of the Judgment

The Scottish Court of Session ultimately dismissed the petitioners' challenge, upholding the Secretary of State's use of section 35 to prohibit the Gender Recognition Reform (Scotland) Bill from receiving Royal Assent. The court found that the conditions outlined in section 35 of the Scotland Act 1998 were satisfied, as the Bill did modify the law related to reserved matters and could have adverse effects on their operation. Furthermore, the court assessed that the Secretary of State's decision was rational, based on the material available, and did not constitute an abuse of power.

In reaching its decision, the court delved into the legislative framework, scrutinized the legal reasoning, and evaluated the arguments pertaining to separation of powers and parliamentary accountability. The judgment emphasizes the balance between devolved legislative authority and the executive's role in safeguarding reserved matters.

Analysis

Precedents Cited

The judgment references several key cases and legal principles that informed the court's decision:

Cherry and others v Advocate General for Scotland 2020 (UKSC) 1: Highlighted principles of separation of powers and the court's role in reviewing executive decisions.
R v Home Secretary, ex parte Fire Brigades Union [1995] 2 AC 513: Established that courts can intervene to protect individuals and act as a check on executive power.
R (Evans) v Attorney General [2015] AC 1787: Demonstrated the court's role in scrutinizing executive decisions that infringe upon constitutional principles.
LLC Synesis v Secretary of State for Foreign, Commonwealth and Development Affairs [2023] EWHC 541: Clarified the interpretation of "reasonable grounds to believe" within statutory frameworks.
Martin v Most 2010 SC (UKSC) 40: Explored the appropriate use of subordinate legislation under section 104 of the Scotland Act 1998.
Pepper (Inspector of Taxes) v Hart [1993] AC 593: Addressed the admissibility of parliamentary statements in statutory interpretation.
R (Plantagenet Alliance Ltd) v Secretary of State for Justice and others 2015 3 All ER 261: Reiterated the duty of decision-makers to inform themselves reasonably.

These precedents collectively underscore the judiciary's role in maintaining constitutional balances, ensuring executive accountability, and interpreting statutory provisions within their intended frameworks.

Legal Reasoning

The court's legal reasoning can be dissected into several key components:

Engagement of Section 35: The court first determined whether the Gender Recognition Reform (Scotland) Bill modified the law related to reserved matters. The House of Lords’ interpretation in UK Withdrawal from the EU (Legal Continuity)(Scotland) Bill 2019 clarified that a bill modifies reserved matters if it implicitly amends, disapplies, or repeals existing provisions. In this case, the amendment to section 25 of the Gender Recognition Act 2004 altered the definition of a "full gender recognition certificate," thereby modifying reserved law.
Adverse Effect on Reserved Matters: The court evaluated whether the modification would adversely affect reserved matters such as fiscal policy, social security schemes, and equal opportunities. The judgment found that the Secretary of State’s concerns, though some were contested, were sufficiently grounded in the material before him.
Rationality of the Decision: Applying the principles from Tameside and Plantagenet, the court assessed whether the Secretary of State made a rational decision based on reasonable steps to acquaint himself with relevant material. The court concluded that the decision fell within a range of reasonable responses, given the statutory timeframe and the nature of the information available.
Error of Law: The petitioners alleged that the Secretary of State made material errors of law, including misinterpreting "modification" and improperly considering irrelevant factors like divergence. The court rejected these claims, finding that the Secretary of State’s interpretation was consistent with statutory definitions and that his considerations were relevant to the adverse effects on reserved matters.
Intensity of Review: The court determined that the case did not warrant the highest level of scrutiny reserved for fundamental rights cases. Instead, it applied a rationality standard appropriate for the procedural and substantive context of section 35 orders.

Overall, the court maintained that the executive's use of section 35 was within legal boundaries, given the established and interpreted criteria.

Impact

This judgment has significant implications for the legal and constitutional landscape of the United Kingdom:

Clarification of Section 35 Powers: The decision elucidates the conditions under which section 35 of the Scotland Act 1998 can be invoked, emphasizing that it remains a legitimate tool for the executive to prevent devolved legislation from having adverse effects on reserved matters.
Executive Accountability: By upholding the Secretary of State’s order, the court reinforces the principle that executive decisions must be rational and based on substantial reasoning, ensuring accountability without undermining devolved legislative autonomy.
Judicial Review Standards: The case reinforces the application of the rationality standard in judicial reviews of executive orders, delineating the boundaries between acceptable executive discretion and undue interference.
Devolution Dynamics: The judgment underscores the delicate balance of power between the UK Parliament, the devolved Scottish Parliament, and the executive branch, highlighting the judiciary's role in maintaining this equilibrium.

Future cases involving the invocation of section 35 will likely reference this decision, using it as a benchmark for assessing the legitimacy and rationality of executive interventions in devolved legislative processes.

Complex Concepts Simplified

Section 35 of the Scotland Act 1998

Definition: Section 35 grants the Secretary of State for Scotland the power to intervene in certain legislative matters of the Scottish Parliament. Specifically, it allows the executive to prohibit a bill from receiving Royal Assent if it modifies the law related to reserved matters and is believed to adversely affect their operation.

Reserved Matters: These are areas of governance where the UK Parliament retains exclusive legislative authority, such as fiscal policy, social security, and equal opportunities. The Scottish Parliament cannot legislate on these matters without explicit permission.

Judicial Review

Judicial review is a process by which courts examine the lawfulness of decisions or actions made by public bodies, including executive orders. It ensures that such decisions comply with legal standards and do not exceed the powers granted by legislation.

Rationality Standard

In the context of judicial review, the rationality standard assesses whether the decision made by a public authority is reasonable, logical, and based on the evidence presented. It does not evaluate the correctness of the decision but rather its defensibility within a range of acceptable outcomes.

Separation of Powers

This constitutional principle divides government responsibilities among different branches to prevent any one branch from exercising the core functions of another. In the UK, it separates the legislative, executive, and judicial powers to maintain checks and balances.

Conclusion

The dismissal of the Scottish Ministers' petition in [2023] ScotCS CSOH_89 reaffirms the executive's authority to utilize section 35 of the Scotland Act 1998 under defined conditions. The judgment meticulously balanced the autonomy of the Scottish Parliament with necessary executive oversight to protect reserved matters, ensuring that such powers are exercised rationally and within legal confines.

This decision serves as a critical reference point for future interactions between devolved legislatures and the executive, emphasizing the judiciary's role in upholding constitutional integrity without encroaching upon legislative processes. It delineates the boundaries of executive intervention, ensuring that devolved governments can operate with a degree of independence while recognizing the overarching framework that preserves national interests.

In the broader legal context, the judgment underscores the importance of clearly defined legislative powers and the necessity for executive actions to be substantiated by reasoned evidence. As governance becomes increasingly complex, such rulings are essential in maintaining the delicate balance of power that underpins the United Kingdom's constitutional democracy.