Kate Forbes has called on the Scottish Government to accept Friday’s judgment on its controversial gender legislation. The Gender Recognition Reform Bill introduces ‘self-identification’, an approach which removes medical experts and other safeguards from the process, and lowers the age at which a person can change their legal sex to 16.
It was passed overwhelmingly by the Scottish Parliament last December but blocked from becoming law by Scottish Secretary Alister Jack under a never-before-used power contained in the Scotland Act. Jack had received legal advice that the legislation would not only affect Scotland but equalities law across the UK. The SNP-Green Holyrood government petitioned for judicial review and yesterday the Court of Session ruled in favour of the Scottish Secretary.
On issue after issue — gender reform, deposit return, fishing bans and WhatsApp messages — Forbes has shown leadership
Forbes, who narrowly lost to Humza Yousaf in the contest to replace Nicola Sturgeon at the start of the year, says the Scottish Government taking Westminster to court over the matter has ‘created a period of great uncertainty and fear for trans people and women and girls, deepening already bitter divisions’. She says politicians should ‘heal divisions not exacerbate them’ and urges her party’s government ‘not to prolong the legal battle further’. Citing her ‘confidence in our citizens and democratic processes’, she encourages ministers to ‘listen to all’ and amend the Bill accordingly.
What it would take to amend the Bill to the Scottish Secretary’s satisfaction is open to question, but Forbes’ advice ought to be heeded. Not least because she saw all this coming. Not only was she against self-identification in principle — she was on maternity leave when the Bill was voted on — she also pledged in the leadership campaign that, were she to win, she would not challenge the Scottish Secretary’s order in court. That is not an easy message to deliver to an electorate of diehard Scottish nationalists but it reflected Forbes’ understanding that the SNP government could not afford to remain bogged down in process on an issue where it was on the wrong side of public opinion at a time of economic hardship. Her stance has been vindicated and then some.
In an alternative timeline in which Forbes became SNP leader, she might have struggled to arrive at a compromise with the Scottish Secretary but she would have spared her party, government and country a year of acrimony driven by marginal priorities. But gender reform is not the only area where she tried to warn of impending disaster. Also during the leadership contest, she called for a pause in the deposit return scheme (DRS), a well-intentioned recycling drive poorly handled by a Green minister, Lorna Slater.
Small businesses became increasingly alarmed by the costs and other burdens the DRS would impose and complained that the Scottish Government had stopped listening to them. In the end, the UK Government refused the trading exemption without which the DRS could not have been enforced on English-based producers, rendering the whole scheme unworkable and causing it to collapse. Business resentment towards the Scottish Government has yet to fully subside.
Another policy which she urged her party to rethink was its plan to designate ten per cent of Scottish waters ‘highly protected marine areas’ (HPMAs). HPMAs were part of the shared policy platform drawn up when the SNP and Scottish Greens entered into a coalition deal following the 2021 Holyrood election. In practice, they meant a total ban on commercial and recreational fishing in one tenth of Scotland’s waters and ‘carefully managed levels’ of swimming, snorkelling, windsurfing and boating. Predictably, this provoked a backlash, not least in those coastal communities the SNP spent years wooing away from the Tories and the Lib Dems. The policy was shelved and eventually scrapped last month, but not before inflicting needless political damage on the SNP and the Scottish Government.
One more example. Humza Yousaf has come under fire for his government’s initial failure to supply the Covid-19 inquiry with WhatsApp messages sent by ministers and officials during the pandemic. Then he became embroiled in a transparency row after the inquiry challenged claims it had only requested the messages recently. The Scottish Government eventually published a timeline which showed the inquiry had been asking for the communications for almost a year. It has also been alleged that Yousaf’s predecessor Nicola Sturgeon deleted her WhatsApp messages from the period when she was leading Scotland through the pandemic, although she has declined to confirm or deny that allegation.
Meanwhile, Forbes told reporters she had ‘not deleted anything and I have retained all relevant correspondence and that includes retaining all my WhatsApp messages’. She added: ‘We are each answerable for the evidence that we provide, and I’ve certainly cooperated fully to date and provided everything that the inquiry has asked for.’ Not exactly subtle but a clear contrast all the same.
During the leadership campaign, I made the case for Forbes. Not because I’m a nationalist. (I’m very much not.) Nor because I agree with her on politics or policy. (I mostly don’t.) But because the winner of that contest was guaranteed to become First Minister of Scotland and I want my country to be led by the best available candidate. Leadership, ability and integrity matter more than partisan loyalties. But Forbes has the misfortune to be a Christian — the kind that actually believes it — and so the SNP establishment and a fair old whack of the Scottish media saw it as their job to ensure she lost. That is what gave us Humza Yousaf, the candidate of those who preferred reliable mediocrity to heterodox talent.
This has been a wasted year for the SNP and for the good government of Scotland. No first minister, not even Forbes, would have got through 2023 unscathed. The police investigation into the party’s finances and the arrests of senior Nationalists would have tested anyone, but not everyone would have failed the test as vividly as Humza Yousaf. On issue after issue — gender reform, deposit return, fishing bans and WhatsApp messages — Forbes has shown leadership. If only her party had listened to her, it might not have spent this year losing again and again.
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