Nicola Sturgeon is angry. The UK government has confirmed it will block her party’s controversial gender Bill, which removes key safeguards from the process by which someone can have their preferred gender rather than their biological sex recognised in law. Opponents, critics and legal commentators warned during the Bill’s passage before Christmas that it could change how the law operates not only in Scotland but in England and Wales, too. Sturgeon decided she knew better, a genre of governance already familiar to people in Scotland. She pushed the Bill through and now the Secretary of State for Scotland Alister Jack has invoked Section 35, a never-before-used provision of the Scotland Act which impedes Royal Assent for a devolved Bill.
Hence why Sturgeon is angry. Very angry. She’s so angry, she’s tossing out possessive apostrophes and just hoping they stick:
Grievance-seeking is a favourite hobby of the Scottish establishment but I’m afraid I must spoil the fun. First off, Alister Jack is not an ideologue – neither on the constitution nor on transgender rights. He’s a mild-mannered Dumfriesshire businessman who, for reasons passing understanding, chose to stop making millions and go into politics instead. That decision aside, his judgment is pretty sound for a Tory. He’s for doing things, doing them efficiently and doing them in a way that, he hopes, can bring as many neutrals and open-minded opponents on board as is possible.
As I understand it, his decision to make a Section 35 order was not arrived at lightly but he viewed it as unavoidable once the Bill was passed with a slew of safeguard amendments rejected by the SNP and their allies. That Jack’s concern is the legal knock-on effects of this legislation, rather than gender or constitutional politics, would appear to be confirmed by his offer to ‘work together to find a constructive way forward that both respects devolution and the operation of UK Parliament legislation’. He reiterated this point in his statement to the Commons this afternoon.
The charge that Jack is attacking the Scottish parliament by using a provision of the very legislation that created the Scottish parliament is patently absurd. It is reasonable to argue that he is misapplying this provision but it is clear from the SNP’s response that they would regard any use of this power as anti-devolution in nature.
Sturgeon’s Sturm und Drang about constitutional indecencies would be a skerrick more plausible if it weren’t for her track record. Last November, the Supreme Court ruled unanimously that Sturgeon’s proposed Bill for a referendum on Scottish independence was outwith the powers of the Scottish Parliament. In October 2021, the Supreme Court determined that multiple sections of her Bills to incorporate the UN Convention on the Rights of the Child and the European Charter of Local Self-Government into Scots law were ultra vires.
In March 2021, the Court of Session found that her blanket ban on public worship during the Covid pandemic was unlawful and disproportionately interfered with the Article 9 right to manifest religious belief. In July 2016, the Supreme Court judged provisions of her scheme to appoint a named person or ‘state guardian’ to every child in Scotland to be outside Holyrood’s legislative competence and incompatible with Article 8 rights to private and family life.
Against this backdrop, it seems eminently reasonable for the Secretary of State to intervene. This is a first minister, a devolved government and a devolved parliament that have been repeatedly found wanting in their drafting and scrutiny of legislation. The real disregard for devolution would have been for the UK government to allow this Bill to go forward for Royal Assent and, shortly thereafter, land in Lord Reed’s intray. It may land there anyway, given Sturgeon’s eagerness for yet another fight with Westminster. The analysis of Dr Michael Foran, a Glasgow University law lecturer, suggests ministers have solid legal grounds for invoking Section 35 though, truth be told, there is no precedent for this and we can’t know with any confidence how the courts might interpret this decision.
This brings me to my last point and it’s not a new one. Across 12 years in government, the Tories have done nothing to reform a devolution settlement that plainly undermines the political unity of the United Kingdom. These flaws have been revealed not only in bad legislation but in broader policy and strategic decisions by the Scottish government that show scant regard for the division between reserved and devolved matters. Whether it was the SNP’s unilateral renaming of the Scottish executive as the Scottish government, using the devolved institutions to pursue reserved policy outcomes, or advancing an independent foreign policy, the Tories have failed time and again to halt, let alone reverse, this process of evolutionary independence.
They have done so out of neglect, ignorance, cowardice and, frankly, a total lack of interest, and it has led them to this situation today. Gender recognition is one of many powers that should never have been devolved to Holyrood and it could have been reserved at any point in the last 12 years. Unfortunately, the political will is just not there to reform devolution. For all the howls and denunciations from the SNP, the Tories and Labour are content to allow the UK to be salami sliced apart rather than show a bit of political gumption.
The courts will likely now decide whether Alister Jack’s Section 35 order is lawful or not but, however they rule, ministers on the Treasury benches and those aspiring from the opposition should take note. The SNP lives for separatism and stirring up cross-border resentment. It will never stop trying to find ways to divide and disrupt, regardless of whether those ways are the purview of the Scottish government or the Scottish parliament. Reform devolution or accept that it is always going to be like this.
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