ICDR Intervenes in the Court of Session Gender Recognition Reform Bill Case

The ICDR has joined NGOs Stonewall and Gendered Intelligence in an intervention in the Scottish Government’s challenge to the Secretary of State for Scotland’s decision to use section 35 of the Scotland Act 1998 to block the Scottish Parliament’s Gender Recognition Reform Bill.

The intervention is intended to provide the court with analysis and evidence, beyond that contained in the submissions of the main parties, to assist it in making a lawful decision.

Section 35 allows a government minister (a member of the executive) to, in effect, overrule the decisions of a legislature (the Scottish Parliament). These types of powers are rare and section 35 has never been used before. The ICDR provided analysis of the way in which the courts have interpreted similar powers. In particular, section 53(2) of the Freedom of Information Act 2000 (which allows the Attorney General to overrule certain courts).

Stonewall and Gendered Intelligence provided evidence as to the impacts of similar laws to the Gender Recognition Reform Bill in comparative jurisdictions, and analysis of the potential impacts of the Bill on UK equalities law.  

The ICDR is politically non-partisan. This intervention is intended to ensure that the Court of Session has all the relevant facts and analysis necessary to make a lawful decision in an important constitutional matter. Moreover, the court’s decision will establish an important precedent and provide clarity to one of the most important constitutional relationships in the UK. Such clarity is in the interests of all. The ICDR is always prepared to work with other civil society organisations to further understanding of the constitution and constitutional decision-making.

Victoria Grace, Chief Operations Officer of the ICDR said:

“Constitutional questions like this one aren’t just between governments. They impact on every citizen. Interventions like this one are an essential way for civil society to ensure that the court has all the information it needs to make a proper decision. The ICDR is delighted to have the opportunity to join with other civil society organisations to assist the court in this manner.”

The ICDR’s Director, Dr Sam Fowles, acted as counsel in the case, assisting Scots counsel James Finlay KC and David Blair, along with Robin Moira White, Adam Wagner, and Stephanie Davin. They were instructed by DLA Piper.