Nicola Sturgeon: Alister Jack should have 'guts' to defend Section 35

The Scottish Secretary snubbed an invite to the Equalities, Human Rights and Civil Justice committee after he was asked to give evidence on the Section 35 order he actioned to stop the Gender Recognition Reform (Scotland) Bill from being given Royal Assent.

Jack said that Kemi Badenoch, the women's and equalities minister, should attend in his place, but on Monday it emerged that she too had declined an invitation to appear. 

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While Sturgeon said she hoped the Tory ministers would change their minds about speaking to the committee, the FM added she believes they are reluctant to appear because they will be unable to defend their position. 

At a press conference in Edinburgh on Monday, Sturgeon said their refusal to attend the meeting showed the “absence of confidence” the Tories have and called on them to change their minds and stand up for the actions they have taken.

She told the National: “I take the view if you are going to outrageously and unacceptably ride roughshod through the democratically-elected Scottish Parliament and seek to overturn decisions that the democratically-elected Scottish Parliament has arrived at, then you should have the guts to turn up to the committee of the democratically-elected Scottish Parliament and set out your reasons for doing so and answer questions on that.

“The fact that Alister Jack and Kemi Badenoch have declined to do so I think says quite a lot about the absence of confidence they have in their own position and how difficult they will find it to answer questions on that from MSPs, but I hope they will consider that and change their minds.

Nicola Sturgeon held a press conference in Edinburgh and answered several questions on the blocking of the Gender Recognition Reform Bill (Image: PA)

“If they’ve got confidence they’ve done the right thing and done something that in any way shape or form is democratically defensible then what problem do they have sitting in front of a committee and answering questions about it?”

It is understood if Badenoch had agreed to come to the meeting Social Justice Secretary Shona Robison would have given evidence afterwards.

Sturgeon added testing the parameters of the UK Government’s veto on Holyrood legislation in court would be in the public interest, claiming it can currently be used “on a whim”.

She said her Government was “looking at all options” to challenge the decision by Jack to knock down gender reforms passed by an overwhelming majority of MSPs last year.

The GRR bill would make it easier for trans people to obtain a gender recognition certificate (GRC) in Scotland.

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Through Section 35 of the Scotland Act, Jack has the power to block legislation he views as impacting national security or other laws elsewhere in the UK from receiving Royal Assent - a power he exercised last week. He claimed the gender reforms would interfere with UK-wide equalities law.

Sturgeon said: "There is, I think, a real public interest in getting some judicial interpretation of Section 35 and what are the circumstances that it can be used, can’t be used, what tests need to be passed, what evidence does the UK Government need to put forward.

“Right now, as things stand, as was demonstrated last week, this is a power that can be used pretty much on the whim of the UK Government any time they have a political disagreement with the Scottish Government on a piece of legislation and they can find a spurious ground to invoke Section 35 – that seems to be what can happen.”

The First Minister also said she was worried the invocation of the provision for the first time in the near-25 year history of the Scottish Parliament could lead to it being used more often.

She explained: "It was put to me last week that it’s been used once in 25 years so it’ll be used sparingly.

"Our experience is the UK Government breaching the Sewel Convention didn’t happen in the first 20 years of the Scottish Parliament and as soon as it happened once, since then it has happened several times so I think once the UK Government gets over that first time of using what was previously considered an unthinkable thing to do, our experience is they will do it multiple times so I think there is a public interest in understanding the limitations of that."

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The decision of Jack to block the bill has spurred heated conversation among legal experts, with former judge Lord Hope saying the statement of reasons from the UK Government was “devastating”, while Lord Sumption said it was “powerful” and the Scottish Government's claim that democracy was being attacked was "absurd". 

But the First Minister said there had been a “range of legal views” expressed on the issue, pointing to former Lord Chancellor Lord Falconer as someone who voiced his opposition to the use of a Section 35 order.

“You’ll get that variety and division of legal opinion – ultimately only [the] courts can decide,” she said.