by Eric Clive, CBE, FRSE, Professor emeritus, Edinburgh University Law School

The Secretary of State for Scotland, a Minister of the United Kingdom government, has made an order under section 35 of the Scotland Act 1998 blocking Royal Assent to the Gender Recognition Reform (Scotland) Bill 2022, a bill passed by the Scottish Parliament with a large majority and after considerable consultation and debate. The Scottish government is challenging this order by means of a petition for judicial review. The section 35 order raises important constitutional law issues. It also has private law aspects. It is the latter which are considered here.

One of the reasons given for making the order is that having two different systems for issuing gender recognition certificates within the United Kingdom would cause serious problems. This immediately strikes a private lawyer as odd. We have had dual systems in the law of persons for centuries – in the laws on marriage, divorce, legitimacy, incapacity and other matters of personal status – and they have not given rise to serious problems. This is because the rules of private international law, even in the absence of statutory provision, did not allow them to. A personal status validly acquired in one country would, subject to a few qualifications, be recognised in the other. There is no reason to suppose that this rule is dead, or incapable of application to the personal status of gender. There is no reason to suppose that the new situation feared by the Secretary of State – that a person might be legally of one gender in Scotland and another in England – would ever arise.

In the second of two-part posting, Professor Gillian Black (Commissioner, Scottish Law Commission and Chair of Scots Private Law, University of Edinburgh), Professor Nick Hopkins (Commissioner, Law Commission of England and Wales), and Nic Vetta (Legal Assistant, Scottish Law Commission) outline the Commissions’ joint proposals for a new regulatory regime for surrogacy in Scotland and in England and Wales.

Scots law, as it relates to the rights of children generally, has made significant progress in ensuring that the law places their welfare at the heart of all decision making, and recognises them as independent rights holders.

While encouraging progress has been achieved in relation to safe-guarding the rights of children, not least in terms of the rights recognised in the United Nations Convention on the Rights of the Child, some specific areas of the law do not adequately protect the best interests of the child. One example in the context of surrogacy relates to the current framework which exists for surrogate-born people to access information about their origins.