There's a whole pile of confusion out there at the moment (understandably) about Holyrood's legislative competence, the concept of "reserved matters," and how this relates to the hitherto ignored provisions in s.35 of the Scotland Act 1998. A short 🧵legislation.gov.uk/ukpga/1998/46/…
Start with the basics. The Scotland Act says "there shall be a Scottish Parliament" and establishes it has competence to make primary legislation. The key idea here is that Holyrood can legislate about anything which doesn't "relate to reserved matters." legislation.gov.uk/ukpga/1998/46/…
This means MSPs can change any common law rules and amend or repeal any Acts passed by the Westminster Parliament - so long as they fall outside the list of reserved matters in Schedule 5 to the Act or aren't "protected from modification" by Schedule 4. legislation.gov.uk/ukpga/1998/46/…
Section 33 of the Act gives UK law officers (and the Lord Advocate) the power to refer a Bill directly to the Supreme Court for scrutiny about whether any of its provisions "relate to a reserved matter" before royal assent. legislation.gov.uk/ukpga/1998/46/…
If the UK government believed a Holyrood Bill "related to a reserved matter" - like equal opportunities, for example - then s.33 would be the right mechanism for resolving the conflict, giving the Supreme Court the last word on the controversy, applying the legal framework.
Why? Because if provisions in a Bill passed by the Scottish Parliament "relate to a reserved matter," then they are outside Holyrood's legislative competence and not law. Park reflections on merits & consequences. They're ultra vires, as lawyers say. en.wikipedia.org/wiki/Ultra_vir…
It is critical folk realise: Section 35 of the Scotland Act is an entirely different beast, applying completely different tests to the ones we've grown more familiar with as a result of legal challenges to Holyrood legislation since 1998. legislation.gov.uk/ukpga/1998/46/…
Section 35 gives the Secretary of State extraordinary power to order the Presiding Officer not to submit a Scottish Bill for royal assent if one of two tests are met - even if the provisions in the Bill fall entirely within devolved competence, & don't relate to reserved matters.
Put most starkly, s.35 empowers the SoS to functionally and permanently block Holyrood legislation which falls squarely within the parliament's competence. But the legal power to do so requires one of two key conditions to apply.
Condition 1: where the SoS "has reasonable grounds to believe" devolved legislation would "be incompatible with any international obligations or the interests of defence or national security." I thought this trigger might materialise with Brexit trade deals. Never materialised.
Condition 2 is the one which matters here. There are two key legal tests which have to be met for the SoS to make an lawful order under this bit of s 35. Whether or not these tests are met is susceptible to judicial review - on both prongs. If not, Jack's s.35 order is unlawful.
For s.35 to apply, the Holyrood Bill being blocked must make (a) "modifications of the law as it applies to reserved matters" which (b) the SoS must have "reasonable grounds to believe would have an adverse effect on the operation of the law as it applies to reserved matters."
Hopefully this is now a clearer distinction: the UK government's decision to use s.35 (and not s.33 of the Scotland Act) means the legal question here is not whether the Gender Recognition Reform Bill "relates to a reserved matter" but s.35's fundamentally different legal tests.
Which is one reason why a s.35 order is unprecedented - it gives a UK government minister the authority to functionally veto Holyrood Bills which fall within legislative competence without any direct reference to the courts or the wider framework of reserved and devolved matters.
Probably the trickest thing to get your head around here is how Holyrood legislation could simultaneously not "relate to reserved matters" but at the same time make "modifications of the law as it applies to reserved matters."
The complexity of this is one reason why I was expressing this sentiment at the weekend. Devolved policy-making can now require extraordinarily complex legal reflection on secondary consequences & effects. Today's intervention arguably intensifies that.
https://twitter.com/PeatWorrier/status/1614656501024423936
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