Scotland is fast becoming to British politics what Ireland was in the 19th century: a country with endless, seemingly unresolvable, political grievances and issues defying easy answers. It has voted against independence but since 2007 has voted into power a party whose raison d’être this is. The current travails (today’s development a whistleblower about SNP finances claiming threats by the police, whose chief retired earlier than expected shortly before Sturgeon announced her resignation) are what almost inevitably happen when a party has been in power for too long with little effective opposition. This is something else which Scotland shares with Irish politics (the latter’s financial/political scandals over the years rival anything Westminster/the City has produced) and Irish society (see the various horrors resulting from the Irish Catholic church’s long stranglehold).
Now we have the latest Scottish issue – its legal challenge to the UK government’s S.35 Order under the Scotland Act (see here). Westminster is saying that the Scottish government has acted ultra vires and passed a Bill it has no legal power to do under the devolution settlement. Holyrood says that Westminster has misdirected itself on the Scotland Act and therefore has no legal basis for challenging what Holyrood has decided. The case raises interesting and novel legal issues; its political consequences are likely to make themselves felt in the run up to the next General election.
What the challenge is not about
That a majority of MSPs voted for the Bill is not an argument against the S.35 Order. Rather, it is an essential condition precedent for it. The UK government cannot take action unless a Bill has been passed. Equally, that the Gender Recognition Reform (“GRR“) Bill’s provisions may, according to opinion polls, not be supported by the Scottish public is also irrelevant. The Bill’s popularity or otherwise – whether with MSPs or the public – is not what the case will be about.
What are the issues?
(1) Does the Bill impinge on matters reserved for Westminster under the Scotland Act? In particular, does it modify the law as it applies to the reserved matter of equal opportunities through the inter-relationship of the GRR Bill and the 2010 Equality Act?
(2) If it does, are there reasonable grounds for Westminster to believe that those modifications would have adverse effects on the law applying to equal opportunities?
If the answer to (1) is no there is, of course, no need to consider question (2). So Westminster has to win on both of these key points.
Who will win?
Only a fool would answer this, though a couple of retired Law Lords and Charlie Falconer have opined. The Scotland Act has not been tested in the courts; the interaction of the existing Gender Recognition Act and the Equality Act is not always clear, let alone the changes proposed by the GRR Bill. What tests will the courts apply to the Scottish government’s judicial review, especially in the context of a devolution settlement? The courts might well decide that any challenge to a decision passed by a democratically elected parliament should have to pass a high bar. Equally, if that parliament acts beyond its powers, how far need the court inquire into the reasonableness of the objections? The Scottish government has certainly made some interesting arguments: it says that effectively it can do whatever it wants in relation to gender reform, including repealing the GRA altogether in Scotland. This is an odd argument given that this would put the UK in breach of the ECHR (which would undoubtedly be ultra vires). It has also argued that Westminster should have told it how to amend the Bill during its passage so as to avoid a challenge, a curious position for a government so concerned with its own sovereignty and powers to adopt.
The Scottish courts will decide the issue first, though it is pretty much inevitable that the case will end up in the Supreme Court, whose President is Lord Reed, a Scottish judge. The court has taken a markedly more conservative approach in recent cases. For a comprehensive review of all aspects relating to the veto and challenge, there is an excellent research briefing lodged in the Parliamentary library here.
This is where it gets politically interesting. The case could taken a year or more to get to a final resolution, in the run up to the next election. If the Scottish government loses how will this impact the SNP? Will it give them a boost – wicked Westminster interfering – or will it be seen another example of SNP overreach, imposing unpopular policies and wasting money? And how will this impact on Labour’s chances in Scotland? If the Scottish government wins, then it may raise the substantive issue of the balance between women’s rights and transgender rights in the run up to the election, something which Labour may not welcome, given Starmer’s recent comments on the issue. A defeat for Westminster would not be good for the Tories, of course, but they may not care if they are facing electoral defeat anyway.
Then there is what is happening to the SNP. The spectacle of Scotland’s First Minister having to deny that the SNP is acting “in a criminal way” has a Nixonian feel. What else might happen? Will the current SNP government even be in place when the case is decided? Whatever the outcome, it will be an interesting case on devolution, the proper scope of judicial review and the workings of the Equality Act. Lawyers, if no-one else, are delighted at the prospect.