Jack's power grab sets dangerous precedent

Secretary of State for Scotland, Alister Jack (Photo: Daily Record)

The UK government has made a significant and unprecedented intervention this evening to undermine the independence of the Scottish Parliament.

Secretary of State for Scotland Alister Jack made a statement defending Westminster’s decision to block the Gender Recognition Reform (Scotland) bill: "The bill would have a significant impact on, amongst other things, GB-wide equalities matters in Scotland, England and Wales. I have concluded, therefore, that this is the necessary and correct course of action. If the Scottish government chooses to bring an amended bill back for reconsideration in the Scottish Parliament, I hope we can work together to find a constructive way forward that both respects devolution and the operation of UK Parliament legislation."

Never before has a Scottish bill been blocked by invoking Section 35 of the Scotland Act.

The Gender Recognition Reform (Scotland) bill was far from perfect. Most legislation is not perfect. However, the Scottish Parliament has previously passed controversial legislation without any Westminster government seeking to use the Section 35 procedure.

Effectively, this is not a prohibition from Westminster but is actually a direct order from the Secretary of State. While I am sure Mr Jack will have consulted with ministerial colleagues, this amounts to unilateral action. Clearly Mr Jack is applying Section 35 (1) (b), which allows for such action in such circumstances as “the Secretary of State has reasonable grounds to believe [Scottish legislation] would have an adverse effect on the operation of the law as it applies to reserved matters”. 

It can, and almost certainly will, be legally challenged. A cynic may suggest this is a simple way of Westminster referring the question of how proposed Scottish legislation would interact with reserved law to the Supreme Court. However, the move is fraught with constitutional difficulties.

This unprecedented step raises questions relating to democracy and the relationships between the devolved parliaments and Westminster. Despite the much publicised debate surrounding the bill, MSPs of all parties – including those who voted against – were in agreement that this was a devolved issue within the Scottish Parliament’s legislative competence. No-one was claiming that Holyrood did not have the right to make its own decisions on gender recognition. After significant debate, MSPs voted by a majority of 86 to 39 to support the proposals. The MSPs in support included a majority of MSPs from the SNP (54 out of 64), Scottish Labour (21 out of 22), Greens (7 out of 7), the Lib Dems (4 out of 4) – and, significantly, two front bench Conservatives. That’s a pretty clear show of parliamentary support across the political spectrum – even less controversial bills often struggle to pass with such clear majorities. And that's because it had been exceptionally well scrutinsed throughout its passage and MSPs from all parties engaged constructively to reach broad concensus.

Inevitably, many Scots will be asking what right does Westminster has to to interfere with this Bill. That is exactly the correct question. What is so exceptional about this particular bill that previous policy of non-interference has been abandoned? Section 35 is a necessary clause, but was never designed for situations like this.

The excuse that the bill would have an adverse impact on UK law, specifically the Equalities Act, is just that – an excuse.  The MSPs voting for the proposal were not telling Westminster how it should approach the process of legally changing gender, even if those MSPs held strong personal views. The bill itself made clear its application to Scotland only and the fact that it would have zero effect on the rest of the UK. No paper has been published to demonstrate how the proposed Scottish legislation would impact on the rest of the UK, negatively or otherwise, and essentially the claim is a personal assertion made by Mr Jack. It is a deeply unsatisfactory state of affairs when UK ministers can not only make such claims without evidence but act on them. 

Let's be straight here. The Secretary of State for Scotland was fully aware of what was being debated and the content of the proposed legislation. At no point did he make known any concerns that he had, let alone the alleged impact on the Equalities Act. Why wait until now to express any kind of reservations? For weeks he hs said nothing at all, and then - suddenly, and without any apparent process or scrutiny - he declares the legislation will have an adverse affect on the Equalities Act and therefore will be blocked under powers few people were aware of. Is this how UK democracy should function? 

Speaking personally, it seems absurd to argue that Scotland’s arrangements around gender recognition would dangerously undermine the Equality Act when the UK government currently recognises Gender Reassignment Certificates from various other European countries whose legislation has been much more further-reaching than the provisions of the Gender Recognition Reform (Scotland) bill. 

If devolution means anything, then the right of Holyrood to make its own laws should be protected. If Section 35 is ever to be invoked, then it should be required that the Secretary of State in question should publish a detailed paper outlining the impact on UK-wide policy with reference to academic expertise. He should not be able to simply announce “I have concluded...” without an impact assessment as he has today. What we have witnessed this evening is precisely how Westminster should not interfere in Scottish politics. It is not enough to invoke the nuclear option simply because the Conservative government in Westminster disagrees with Holyrood legislation. 

LGBT charity Stonewall has issued a statement in which it calls Mr Jack’s actions "an unprecedented move which significantly undermines the devolution settlement and will unlock constitutional and diplomatic strife.” First Minister Nicola Sturgeon described it as “a full-frontal attack on our democratically elected Scottish Parliament and its ability to make its own decisions on devolved matters.” It is hard to disagree. 

Indeed, what has been striking in recent days has been the way in which Westminster politicians have made statements about the Gender Recognition Reform (Scotland) bill without having seemed to have discussed the matter with their Scottish counterparts. For example, when Keir Starmer expressed “concerns” yesterday about “provision in Scotland”, he seemed to be ignorant of the fact that these proposals were supported by Scottish Labour MSPs. Mr Starmer is playing politics, but it is a dangerous game – especially if, as seems the case, he fails to challenge today’s intervention from Alister Jack. By vacillating and remaining undecided, Labour’s UK leasdership will simply be playing into Conservative hands – something I suspect the Conservatives have thought long and hard about. Given Keir Starmer’s inability to get off the fence where gender recognition is concerned, this bill has given Alister Jack the opportunity to present a fight with Scotland in terms that make it difficult for Starmer to pick sides. The Tories sense Labour's weaknesses and are using the question of trans rights as a stick to beat them with, while employing a culture war issue to re-open the constitutional battle with the SNP. It's clever politics on one level, however risky it is on another. 

One thing is certain: the likes of Keir Starmer cannot claim to be acting in Scotland’s interests when they remain on the sidelines, refusing to condemn the power grab. However much he may not want to involve himself in the ensuing conflict, ultimately he will have to. Passivity will serve to undermine not only devolution but the votes and autonomy of Scottish Labour MSPs. 

There are two issues playing out here: one of these is gender recognition reform, while the other is Westminster’s assertion of constitutional supremacy. The two have today become inextricably intertwined. 

However constitutionally fascinating this situation is, the inescapable tragedy is that the lives of so many people - who the legislation was designed to serve - face an uncertain future. They are debated without being engaged with, and have become overlooked and sidelined as the gender "debate" is cynically used to justify Westminster's war on devolution. 

There is a very real risk of perceived Westminster overreach, something the SNP will use to its advantage. The Scottish government will inevitably defend its legislation and its right to pass it, and most likely we will experience a protracted legal struggle as the Supreme Court once again is called upon to determine the level of the Scottish Parliament's legislative power. No doubt Westminster has picked the fight and prepared itself for it, but I am less confident that Jack, Sunak & Co understand the risks they are taking. Alister Jack's actions establish a dangerous precedent and have the potential to further erode not merely devolution but the Union itself.