For the first time since devolution happened the Westminster government has decided to over-rule legislation passed by the Scottish parliament.
The legislation itself is on a difficult and intensely controversial issue. I will be honest and say I am not sure that anyone has yet found the right solution to gender identification issues, just as I am quite sure that that issue is real and needs to be addressed sympathetically.
But, and this is my point, using sledge hammers is not the way to deal with this issue, not least constitutionally. The balance of issues requires something much more subtle. The UK government has decided otherwise, and a veto is their response.
The Scottish parliament's decision on this issue is, as anyone who follows it knows, controversial. It may not reflect the settled will of the people of Scotland at large, although no one has asked them. We know heated differences have emerged and will continue.
However, I suspect that few in Scotland will see interference from Westminster as helping on this issue. I strongly suspect that most in Scotland will think it perfectly capable of finding its own solutions to the issues it faces.
Westminster's position is that the Scottish law creates uncertainty in the application of law in the rest of the UK. The weakness in that argument is that the UK recognises gender recognition certificates from outside the UK, making it harder to argue that it should not do so from Scotland, which does have its own legal system.
Irrespective of opinion on the underlying issue the choice by the UK government to veto this Act is of massive political consequence. Either Scotland has capacity, or not. Whatever section 35 of the Scotland Act that permits this veto might say, the question will, within the political rather than the legal domain, turn on this issue of capacity.
Westminster has confronted Scottish capacity. I think that most unwise of it if its wish is to retain the Union. Westminster will appease some in Scotland by being confrontational, but those in question were never going to have sympathy with the Scottish cause. The majority who now do support that cause, and those wavering in its direction will be affronted.
I think the Tories have just gifted more support to the cause of Scottish independence. I am bemused as to why they would want to do that, but am not complaining.
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Having worked with LGB&T groups in my housing career, I found the Trans people some of the most misunderstood and over looked – and dare I say – for all their problems, some of the nicest people I’ve ever worked with.
I think it is really bad that the Tories have chosen to show Scotland who is in charge over this issue.
Bad – but not unexpected. As per usual the Tories prove that they are willing to go lower than the boobs on a snake to make a point about them being in ‘power’.
Because that is all that matters.
To these Tory bastards.
Only two Tory MSPs voted for the GRA, and the party more widely is not known for supporting LBGT+ causes.
They have noted the substantial number of SNP votes against and the division the issue had caused across civic Scotland. What a great opportunity to conflate Independence with a divisive issue, cause a big constitutional set to, and watch the SNP and the Indy movement fall apart over the matter.
It’s dog whistle politics of the lowest order, but that is what Tories always try to do. It’s essential for us in the Indy movement to hammer home the point that they see us as a vassal nation, incapable of deciding matters for ourselves, and definitely not a partner in a voluntary union as set out in the 1707 Treaty of Union..
I think the Tories are gambling that the majority of Scots agree with them on this issue and the ongoing row will swing votes towards NO to Indy. They’ve nothing to lose because the polls stand at 56% for Indy and trending upwards.
“Although no one has asked them”. For once I beg to differ Richard. To my knowledge, there have been two public consultations on this subject.
True
But they always have poor response rates
It was also in both the SNP and the Green’s manifestos at the last election.
Having failed to animate the hatred of all but the greediest against strikers the disgraced Tories and their media see the Transgender issue as Culture Wars gold dust.
I do not know what the polls are saying about English opinion, but according to Prof John Curtice, Scottish polls were running at 2 : 1, or even 3 : 1, against the New Scottish Transgender Laws.
It would be bizarre, but totally in keeping with the irresponsibility, of what for the last 13 years has been the most incompetent government this country has ever seen, if the final break with Scotland came about as a result of bill so far removed from the issues of Devolution/Independence.
Thank you for a mature and balanced assessment of the situation. I shall leave it to others to debate the issue in relation to the controversial legislation. The claim is being made (or is that ‘spun’ in London?), that it was legal problems from an over-arching UK perspective that ‘obliged’ Westminster to act. Whatever the background, I am disturbed that a Section 35 order should be used over an issue that is so potentially controversial in the best circumstances, so open to misinformation and so easy to use for exploitative and divisive political ends.
My underlying concern, that I wish to draw attention to, is however indirect and uncertain but troubling. One of the foundations of Scotland’s place in the Union is its ancient, separate legal system, that was guaranteed under the 1707 Union Treaty and Acts. It was non-negotiable. It still is non-negotiable; and that means as a corpus of law (eg., public law, private law, criminal law), not just an anomolus outlier from UK law, solely relevant to conveyancing. Indeed it is quite legitimate to challenge the proposition that there is a “UK Law”; certainly in most areas of day to day life. This has worked, certainly not perfectly, but has functioned sufficiently effectively to survive for 300 years. Scottish Law applies to the jursidiction of Scotland. English Law applies to the jurisdiction of England. The Section 35 order in this instance, appears to challenge this fundamental precedent, and replace it with a precedent that is effectively an assault on Scots Law, and therefore on Scotland’s status in the Union. It appears to me to imply that the Section 35 order insists that unless the Law of England (de facto) applies also in Scotland, the Law of Scotland has no de jure authority. This looks like a political revolution, in the open, yet by stealth, on what looks like a legal technicality the public do not even expect to understand. In which case, this is only the start.
If it is successful I genuinely fear for the future of Scots Law. It seems that when we lost the Empire, all we have discoved is that England simply cannot learn anything from history; or live without an Empire of its own, be it ever so small.
This is exactly the type of concern I have – well put by you
Here is the kind of nonsense already being peddled; by the kind of glib, carelessly thoughtless Unionist the Conservatives like to use; David Torrance, on BBC Radio Scotland News, suggesting the issue is the kind we may see familiarly in Federal constitutions, with State Assemblies wrestling with central State governance.. No it isn’t anything like that. I will pass over the fact that Britain does not have a Federal Constitution; the problem rather, is that Federal Constitutions almost invariably have a unified State Legal system, in which regions have delegated, subordinate freedoms. Britain does not have a single legal system; that is the end of the comparison; it is an irrelevant interjection by Torrance. He is ‘spinning’. QED.
This is dire.
Agreed
I’d wondered what you’d have to say about this John Warren and you have not disappointed.
I suspect this is the government trying to hit two political birds with one stone – confronting the SNP on devolution, and a further step in a fantasy culture war (which has been lost already, if you ask anyone aged under 30 or even 40).
The legal side of this needs to be worked through. To stop this legislation, the relevant minister needs to rely on section 35 of the Scotland Act 1998. https://www.legislation.gov.uk/ukpga/1998/46/section/35
“(1) If a Bill contains provisions …
(b) which make modifications of the law as it applies to reserved matters and which the Secretary of State has reasonable grounds to believe would have an adverse effect on the operation of the law as it applies to reserved matters,
he may make an order prohibiting the Presiding Officer from submitting the Bill for Royal Assent.
(2) The order must identify the Bill and the provisions in question and state the reasons for making the order.”
And the “reserved matters” in Schedule 5 include, at L2, “equal opportunities” which means:
“the prevention, elimination or regulation of discrimination between persons on grounds of sex or marital status, on racial grounds, or on grounds of disability, age, sexual orientation, language or social origin, or of other personal attributes, including beliefs or opinions, such as religious beliefs or political opinions”
So the question is, does changing the process by which a gender recognition certificate is issued (and compare the GRC processes in other countries which are already recognised in the UK) modify the law as it applies to “equal opportunities” (the “prevention, elimination or regulation of discrimination”) and does the Secretary of State thereby have reasonable grounds to believe there would be an adverse effect on the operation of the law as it applies to “equal opportunities”. If so, the minister needs to specify the offending provisions and give the reasons for making the order.
I expect this is going to end up with a judicial review of that decision so the minister will have to justify the reasoning in court. That may be a challenge.
You say “The legislation itself is on a difficult and intensely controversial issue.” – While trans rights in general are controversial, I do not see anything controversial about the bill that has been passed. The sole purpose of the bill to allow people to fill out a form, and to recognise that form. The only effect this form has is to override a single letter on other official documentation like a birth or death certificate. It has absolutely no impact on trans people’s right to access shared spaces or any of the other controversial points.
There are plenty of other far more impactful pieces of legislation on this issue, whichever side you stand on. Take the gender recognition act, this being the one that actually permits people to change gender legally, this being the one actually controlled by Westminster. If they really wanted to turn back the clock on trans representation, and to be clear I don’t think they should, they can easily do this without interfering in Scotland’s legislation.
Of all the battles to stand against trans people, or Scotland, or progress in general, why pick the one that is essentially a trivial administrative affair with no impact on non-trans and non-scottish folk? This is what has really confused me about this whole situation.
I think you overstate the triviality of the issue – and that does not help. If this issue was trivial it would not have caused the concern to some it has. I have enormous sympathy with trans people and the needs they have. But let’s not pretend the issues are trivial.
That being said, this is a place to discuss the politics of this, and not trans issues and we will not be going there. Due warning given. I o only have so much time in life for the blog, and I raised a specific political issue.
This is entirely fair, warning accepted.
If I could clarify, the point I was trying to make is I find it confusing that section 35 is about, as I understand it, incompatibility of legislation. But when the Scottish legislation in question doesn’t do much beyond bolster rights made available by existing legislation from Westminster, it seems nonsensical to use S35.
They haven’t issued S35 judgements for other similar differences, for example that Scottish citizens can vote at 16 or when it’s 18 for England, so using it here sets a very bad precedent that in future any legislation with even minor differences to English policy could be blocked. At worst we could end up with the kind of politics they have in America where state level, the houses, and executive politics are forever locked in fighting policy, and risks making governance totally ineffective for everyone.
This is a complicated issue largely because it lies at the intersection of emotional, political and legal issues.
Emotional – you are not the only one who finds it difficult to answer the gender identification conundrum, I am another with sympathy for those in that situation but no answers (and that is after having a colleague and a previous next-door neighbour who transitioned, and knowing a psychiatrist and a surgeon who deal with these patients). As someone who has been involved in student support in an academic environment I am very much aware that young people of that sort of age quite often have self-identity issues, particularly in this internet age which creates unrealistic expectations, and fear the risk is too high in allowing 16-year-olds to make irrevocable decisions. (For what it is worth I have similar reservations about 16-year-olds being able to sign up to the army, though not for being allowed to vote in general elections). The emotional side makes it a lot more difficult to concentrate on the purely constitutional implications.
Politically – regardless of the rights and wrongs of the case, it plays into the sense of Westminster being an “enemy” of Scotland. Recent Westminster governments have obviously not helped there, but at the same time it looks as if Nicola Sturgeon sees it in her interest to foster the image of a disunited Kingdom. It creates the risk an important if difficult issue just becomes a political football rather than being handled with the sensitivity appropriate.
Legally – Westminster is specifically given this blocking power in the Scotland Act, which presumably means there is scrutiny, and usually rapid acceptance, of every new Scottish law. As I read it (not a lawyer) there is also the possibility of referring for judicial advice, which possibly seems more appropriate in this case, but I am not sure whether that could only be done to look at whether the Scottish government had gone beyond their remit which I don’t think is the issue here. The case seems to be about whether it would interfere with the application of an existing pan-UK law and that might not be a question in the scope of section 33 of the Scotland Act – but if so the government would be best to quickly commission an objective legal opinion on the matter from the appropriate court, and state its readiness to withdraw its block if it turns out there are no problematic implications.
You are suggesting, along with the entire British media, that Nicola Sturgeon has spent six years, considerable parliamentary time and energy and political risk on the GRR just to ‘foster the image of a disunited Kingdom’. Her leadership during the pandemic, superior in every way to the British, was also presented as being different for the sake of it. There is no equivalence here between Sturgeon and the Tories, who have invested nothing positive at all in the Trans issue so far, which is the very definition of cheap political point scoring.
I post this comment with reluctance because it is entirely anonymous, and I have reservations about and argument presented in that way.
I also have reservations about the argument made. Nicola Sturgeon is not trying to present a disunited kingdom and debating that is pointless. There is a disunited kingdom. The question is what to do about it?
My view on this is that the UK Gov intervention is an intentional attempt to undermine the authority of the Scottish Parliament in general and the SNP in particular and, in the process, to disrupt the day to day workings of both. The SNP is planning a de facto referendum on independence in the next election (UK or Holyrood), so the motive for Tories is clearly to divert as much political and civil service energy away from that goal and dissipate it by endlessly revisiting matters that have no constitutional importance. The Bill is not in itself a political topic – it’s about the very personal rights and processes of a very small proportion of the population. I guess none of the parties here in Scotland or across the other UK nations relished having to tackle the matter as its strewn with potential pitfalls which could inflict political damage, but as legislators they are the only people who could debate and enact the Bill.
For the UK Gov to assert that the Bill was badly thought out is ludicrous: it took 6 years of detailed consultations and draftings to get it ready for drafting and debate and, when Holyrood debated it, the sittings lasted 3 full, consecutive days (with one of those sessions finishing at 1:00am and another at 2:00am), so to claim it was rushed is transparent nonsense. The debate and voting were cross-party with numerous individual votes based on personal conscience, not party line and the whole process was prolonged by Tory wrecking tactics: endless points of order and blatant fillibustering, yet some Tory MSPs voted in favour and some SNP MSPs against. The outcome was a pass vote of c70% and, bearing in mind that the Holyrood election system is designed to prevent any one party having a majority, it clearly demonstrates that the MSPs largely voted on a conscience basis, rather than according to party allegiance.
John S Warren is 100% correct about the danger to Scots Law and governance. This is about neutering Scotland, reversing the improvements and benefits that devolution has brought us and facilitating unchallenged exploitation of Scotland’s natural resources yet again. There is no doubting that the Tories will relish the prospect of destroying Scotland; they’ve demonstrated that across the whole UK ever since they got back into power in 2010. I suspect it’s also no coincidence that this legal challenge happened at the same time that an attack on Scottish culture is being discussed by the BBC, which is proposing to axe local radio broadcasting of classical music, jazz and even that core Scottish tradition of bagpipe music in all its varieties.
A detailed summary of the role of the UK Gov in the politicisation of the Gender Recognition fiasco emerged today at https://talkingupscotlandtwo.com/2023/01/19/the-screeching-change-of-direction-the-forgotten-westminster-history-on-gender-recognition-reform/
Worth a read
I agree
That is worth reading
It casts this episode in a quite different light
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