Legal advice on challenging block on gender reforms unlikely to be published

Legal advice presented to ministers over a potential challenge to the UK Government’s blocking of gender reforms is unlikely to be published, a spokesman for the First Minister has said.

Throughout his campaign to be leader of the SNP and First Minister, Humza Yousaf said he would challenge the Section 35 order that blocked the Gender Recognition Reform (Scotland) Bill – but in the final debate, he said he would not fight a court battle if legal advice to the Scottish Government said it would fail.

Scottish Secretary Alister Jack issued the order that blocked the Bill – which would make it easier for trans people to acquire a gender recognition certificate by dropping the age limit and requirement for a medical diagnosis.

Before her resignation, Nicola Sturgeon said she would take the UK Government to court over the block, a policy adopted by her successor in Bute House.

Legal advice is usually shielded from public view, with ministers claiming it allows for the frank sharing of views, but the ministerial code says advice can be published in “exceptional circumstances” if deemed to be in the public interest.

Asked if the first ever use of Section 35 could be considered exceptional, a spokesman for the First Minister told journalists: “I wouldn’t expect it to be published one way or the other, I wouldn’t say that’s what our focus is right now.”

The Government’s focus, he said, is on “what the next steps are and what the right thing to do is”.

The deadline for the lodging of a judicial review into the use of Section 35 falls in the middle of April, shortly after the Scottish Parliament returns from its Easter recess, likely giving time for just one full meeting of Mr Yousaf’s Cabinet before the decision has to be taken.

But the spokesman said the full Cabinet will not have to meet for a decision to be taken on the best way forward.

Legal advice has previously been disclosed publicly, with the Scottish Government forced to publish correspondence it received after being taken to court by former first minister Alex Salmond in a case that won him more than £500,000 after the Court of Session described an investigation into sexual misconduct allegations against him as being “tainted with apparent bias”.

Two votes in Parliament to compel the Scottish Government to divulge the advice eventually resulted in it being released publicly.