Judgment day

Politics Notebook #6: The Scottish Government loses its gender battle at the Court of Session. Also, there’s been a poem.

Image by Stefan from Pixabay

Friday was judgment day for the Scottish Government in its legal challenge against Alister Jack’s Section 35 order.

That’s the mechanism by which the Secretary of State for Scotland blocked the Gender Recognition Reform (GRR) Bill, the first time the UK Government had ever prevented devolved legislation from becoming law. SNP ministers took the matter to the Court of Session hoping to get Jack’s order set aside so they could put their Bill forward for Royal Assent then set about implementing it.

It’s important to note that this wasn’t a case about legislative competence. Both UK and Scottish ministers agree that it is intra vires for Holyrood to legislate on gender reform. The case was about whether s.35 was properly invoked to impede the Bill from becoming law.

In an opinion by Lady Haldane, the court rejected Scottish ministers’ contention that Jack had failed to put the proper construction on, or to satisfy the conditions for making an order under, s.35 of the Scotland Act 1998.

The court declined to accept the Scottish Government’s insinuation that Jack was using s.35 as a cover for impeding legislation with which he disagreed. Lady Haldane states that the record before the court:

[D]oes not support the inference or conclusion that a policy disagreement lay behind the making of the Order. There is no reference, direct or indirect, to that being a concern motivating the making of the Order.

Scottish ministers also claimed that Jack’s use of s.35 undermined separation of powers and parliamentary accountability. To which Lady Haldane says [my emphasis]:

The nature of the power that has been invoked, whilst a constitutional one, is described and delineated within the four walls of the 1998 Act. There are preconditions to its exercise set out in section 35 (1)(b). There is a specified time frame within which the power must be exercised set down in section 35(3). Therefore far from being an impermissible intrusion upon the constitutional settlement, section 35 is an intrinsic part of it.

The court goes on to say, in regards to the question of legality and whether the UK Government was using its statutory powers to undermine fundamental rights or override legal process, that [my emphasis]:

Section 35 does not, in and of itself, impact on the separation of powers or other fundamental constitutional principle. Rather it is itself part of the constitutional framework.

Lady Haldane is doing law but law, and this law in particular, is inextricable from matters of politics. So let us consider a few of those.

‘A dark day for devolution’

Humza Yousaf responded to the court’s judgment by calling it ‘a dark day for devolution’. It is nothing of the sort. As the judgment makes plain, s.35 is a fundamental part of the devolution settlement. What Yousaf means is that, as a nationalist, he disapproves of those parts of that settlement that afford the UK Government powers he would rather it did not have. Casting his political pique as concern for constitutional propriety, and doing so in a way that implies that upholding devolution is actually undermining it, is lowbrow demagoguery designed to appeal to the angry and resentful ranks of his party.

Will Humza appeal?

The Scottish Government has the option of appealing the judgment to the Supreme Court but whether it does will come down to the Scottish Greens. They provide the First Minister with his majority and if they insist on an appeal it would be politically risky to refuse. The First Minister can’t win here. If he appeals, he reminds the voters of his support for a policy a majority of them hotly oppose. If he doesn’t, he risks upsetting his coalition partners and his own rank-and-file, who see this dispute as Westminster interfering in Scotland’s parliament.

While I’m talking here about political rather than legal matters — which is a good thing since I’m not a lawyer — I will note that Professor Aileen McHarg, one of the foremost scholars of Scots and public law, has an interesting thread on X/Twitter that discusses some potential grounds for appeal. Ultimately, though, as she goes on to say, there may be a political remedy coming in the near future.

Be careful what you wish for

If devolution is broken, as seems to be the implication of Yousaf’s response and that of other nationalists, then perhaps the UK Parliament should take his concerns seriously. After all, he is the First Minister of Scotland and sits at the apex of the devolution settlement. If he believes it isn’t working properly, UK ministers should consider reviewing the current settlement. While any such review could examine whether there is scope or need for amending s.35, it could also assess other provisions and maybe even make some recommendations for tightening things up here and there. I for one would be very amendable to that sort of thing. The First Minister, I suspect, would not.

A good day for Alister Jack

Over on X/Twitter, some have objected to my description of the Scottish Secretary’s decision to use his s.35 power as a ‘gamble’. I meant in a political rather than a legal context. Politically, Jack faced intense pressure not to make the order and to allow the GRR Bill to pass into law. He was warned of dire constitutional consequences and told he would be causing harm and distress to a vulnerable minority if he blocked the Bill. He is a minister in a Cabinet where the only discernible governing principle or ideology is do-nothingism. Advising that Number 10 not stand in Holyrood’s way would have been the much easier, safer course of action. So his order was a political risk and one that has been thoroughly vindicated. He is the first Scottish Secretary to substantively and successfully push back against Holyrood overreach. He is the standard that every future Tory Scottish Secretary will have to meet.

The faintest of shadows

Meanwhile, Jack’s opposite number, Ian Murray, greeted Lady Haldane’s judgment with a statement designed to say nothing. The best that can be said for it is that it fulfils its purpose:

It is disappointing this legalisation ended in the courts but this ruling should be respected. It is shameful that after years of debate, trans people feel no more protected and women no more reassured. This is another demonstration of why both governments have to work together rather than spending taxpayers money fighting in courts and pitting communities against each other.

The Shadow Scottish Secretary has many commendable qualities and the potential to do a fine job once the ‘Shadow’ disappears from his title after the next election. But on this issue he has had almost nothing of value to say, thanks to Labour’s determination to make its position as opaque as possible until it gets into government.

Had Labour been in government, the GRR Bill would likely not have been blocked and it would be more honourable to say that instead of pretending to stand for everything and therefore standing for nothing.

The nattering classes

While we’re busy making enemies, recall that a substantial wedge of the commentariat was dead against blocking the Bill. Not just many of the Nat pundits but some of the alleged Unionists who can be relied upon to oppose any attempt to assert the Union over the preferences of the SNP. Alister Jack was right to ignore these paper-sworded sabre-rattlers and others, on either side of the Commons, should learn from his example.

The brains of the operation

While the decision to make the order was Jack’s, the intellectual firepower that lay behind it came from Dr Michael Foran, a young law lecturer at Glasgow University. When the GRR Bill passed the Scottish Parliament in December 2022, Dr Foran wrote a blog arguing that it met the conditions for an order under s.35, becoming, as best as I can tell, the first voice of any significance to do so. He followed this up with a detailed case, which I wrote about at the time over at the Spectator.

Unfortunately, Dr Foran swiftly came in for some unpleasantness from supporters of gender reform, amplified as these things are by social media. Lady Haldane’s judgment is a vindication of Dr Foran’s legal analysis. Given that he was advising an action without precedent in a quarter-century of devolution, Dr Foran’s standing as a legal scholar is greatly enlarged and while I can’t claim to know how these things work, I would assume that other university law schools will be keen to lure him away from Glasgow.

How supporters of the s.35 order feel

I’ve seen some social media comment from supporters of the GRR Bill accusing gender reform opponents and/or Unionists of ‘gloating’ over the court’s judgment. I haven’t seen anything like that. Most gender-critical feminists I know are relieved rather than triumphalist. This is, after all, not a fight they wanted and one that would not have taken place had the Gender Recognition Act been left alone. As for Unionists, I continue to marvel at the failure of Sturgeon/Yousaf uber-loyalists to grasp that this is not a Yes versus No issue. Many of the women most ardently opposed to the GRR Bill are firm supporters of Scottish sovereignty. Some have found themselves agreeing with a Scottish Secretary for the first time ever and aren’t entirely comfortable with the fact.

The insistence of SNP partisans and gender ideologues on framing their opponents as bigots has rendered them unable to understand the viewpoints and motives of the other side. While there has been plenty of faux shock and indignation, some campaigners seem sincerely surprised by Lady Haldane’s judgment. I don’t think that’s down to ignorance of the law. (The extent of my own legal training is being able to recite entire scenes from Erin Brockovich from memory.) I think it’s down to a reliance on confirmation bias and doing all of your thinking in an ideological safe space. Step out of that space and you might see your opponents as honourable, genuine and motivated by both conscience and reason.

As it happens, that describes plenty of trans rights activists, albeit not the ones who get the most attention and make the biggest names for themselves. Many reasonable, fair-minded people who believe passionately in self-identification will be saddened or angered by the court’s decision. (Not necessarily on any points of law; they just object to the s.35 order on political and moral grounds.) This sadness and anger should not prompt feelings of schadenfreude in opponents of the GRR Bill. For one, it’s tacky. For another, it only contributes to a cycle of bitterness and cynicism. For yet another, these activists might still get their way. The s.35 order doesn’t turn into a pumpkin at the end of this Parliament, but a Labour government might well be open to rescinding it or finding a fresh way forward for gender reform.

The GRR Bill remains where it was the day Alister Jack made his order: stopped, perhaps, but more likely only stalled.

Ode to an ode

Elsewhere, I regret to inform you that there’s been a poem.

On Thursday, Holyrood passed the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill. If you’re getting deja vu, it’s because Holyrood already passed this Bill in 2021, but several provisions were ruled by the Supreme Court to lie outwith the powers of the Scottish Parliament. So MSPs were sent back to the drawing board, though the two-year delay has been a source of dissatisfaction for the Bill’s advocates, who have accused ministers of acting with insufficient urgency on legislation that they insisted was necessary.

Thursday’s proceedings were run-of-the-mill, at least until the contribution from Kaukab Stewart, the SNP MSP for Glasgow Kelvin and convener of the equalities, human rights and civil justice committee.

Concluding her speech, she announced:

Presiding Officer, once a teacher, always a teacher. In true primary school teacher style, I have penned and dedicated a wee poem for the children who are here today or listening elsewhere.

She then treated the chamber to a recital, including this opening stanza:

Laws are like rules that keep things right, 
But they’re sometimes slow to take flight.
We say with our voices loud,
To make sure rights reach every crowd.

That was a thing that happened.

Inspired by her example, I had a go at some poetry of my own.

Kaukab Stewart wrote a verse
About the UNCRC
And laws that fly into crowds —
Sounds quite dangerous to me.

It’s not the first time MSPs
Have tried enshrining rights for kids;
They passed this Bill once before
Then in court it hit the skids.

Cried ministers: ‘This is duress;
‘The Bill is not ultra vires!’
Replied Lord Reed: ‘Is that a fact?
‘It modifies the Scotland Act!’

Holyrood always loves a cause;
It’s less assured at drafting laws.
And so the Bill would be redone,
Said ministers in ‘21.

Here we are, a new Bill passed,
A time for joy and cheers;
And ‘cause the Nats care so much,
It only took two years.

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