This Changes Everything
Alister Jack, the Scottish secretary, has confirmed that the British government is using article 35 to block the Scottish government gender recognition reform bill. This is unprecedented and represents a full-on attack on the devolution settlement. It’s a desperate escalation and dramatically ups the stakes for not just the British government but also the Labour and Scottish Labour party. Will Anas Arwar simply over-turn his parties own position? It also raises (obvious) issues for the SNP, and the wider Holyrood parties. What will their response be to such a critical power-grab?
It is billed as an attack on the SNP but it is actually an attack on the Scottish Parliament where the legislation received cross-party support after six years of consultation, amendments and debate.
Jack issued a statement saying:
“I have decided to make an order under section 35 of the Scotland Act 1998, preventing the Scottish parliament’s gender recognition reform (Scotland) bill from proceeding to royal assent.
After thorough and careful consideration of all the relevant advice and the policy implications, I am concerned that this legislation would have an adverse impact on the operation of Great Britain-wide equalities legislation.
Transgender people who are going through the process to change their legal sex deserve our respect, support and understanding. My decision today is about the legislation’s consequences for the operation of GB-wide equalities protections and other reserved matters.
I have not taken this decision lightly. 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.
I have written today to the first minister and the Scottish parliament’s presiding officer informing them of my decision.”
At her news conference today Nicola Sturgeon said Westminster would have no grounds to block the gender recognition bill. She said:
“It doesn’t affect the operation of the Equality Act, and it was passed by an overwhelming majority of the Scottish parliament after very lengthy and very intense scrutiny by MSPs of all parties represented in the parliament.
So if there is a decision to challenge, then in my view, it will be quite simply a political decision.
And I think using trans people, already one of the most vulnerable stigmatised groups in our society, as a political weapon will be unconscionable and indefensible and really quite disgraceful.”
The divisions about trans issues across society (and across parties) are very real, but they are not confined to Scotland nor to the SNP. The legislation was considered despite a blizzard of disinformation and hysteria.
This is not the first time the UK govt has tried to scupper legislation from Holyrood. As Andrew Tickell has written in the National:
“We knew pressure groups and campaigners could waylay Scottish legislation in the courts. Holyrood bills can be attacked on the basis they violate fundamental rights, EU law or “relate to reserved matters”. The stables of the Faculty of Advocates are full of creative litigators who’re more than prepared to get an arguable legal case up on its feet.
Since 1998, Holyrood legislation had been subject to a slew of different legal challenges. Fox hunters claimed that the European Convention on Human Rights protected their right to tear apart little furry animals.
Imperial Tobacco argued that Holyrood wasn’t entitled to ban cigarette vending machines to keep nicotine out of the paws of little puffers who might be inclined to spend their pocket money on fags. Landowners challenged tenants’ rights, insurers said they shouldn’t have to pay out to men and women killed by asbestos, and Scotch whisky spent hundreds of thousands of pounds trying and failing to persuade the courts that minimum alcohol pricing breached EU law.”
The difference here is, as the First Minister points out: “It doesn’t affect the operation of the Equality Act.”
Questions are now at stake for not only the Conservative government but also those elements of the independence movement who have chose this as their hill to die on. This is an attack on democracy and anyone who thinks that it is about Alister Jack or Rishi Sunak defending minorities needs their head examined. What was dubbed “One of the most powerful devolved parliaments in the world” is being shredded.
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So many people will be feeling wretched and vulnerable tonight. Yet another right wing dog whistle from the Tories. And Jack to be ‘rewarded’ imminently with a peerage! Nice optics.
This affected 25-30 people last year and the change in the law is estimated to increase this to 250-300. So why would the UK intervene?
If you are a UK government that cannot feed its people, that cannot keep its people warm and 12years of austerity that has killed more people than COVID, then you need a diversion?
Small Boats, Unions and now Nicola Sturgeon. Remember England voted for Brexit – little Englanders whose country is disintegrating needs enemies. Scotland is now the enemy?
The article 35 provision reminds us that ‘power devolved is power retained’, but is nothing like as ridiculous as the concept of ‘royal assent’. You are right that ‘this changes everything’. It does, and not necessarily in any positive way. Holyrood passed the GRR bill overwhelmingly, but this is a strange fight to pick when public opinion is so much less committed to the reforms. Did the SNP not see this coming?
Whether deliberately or just as an unintended consequence, there is no bad side to this for Yes, except the delay in implementing the legislation.
We expected it. It is angering and galvanising support.
More importantly, it causes big issues for Scottish Labour following Starmer’s witless contributions. Labour has spent 25 years telling us no U.K. govt would do this. That’s been shown to patently false. The noises from Lennon, Leonard and Dugdale are just a start. I can see this causing major disruption inside Labour, with possible rrsignations and defections.
Strangely it feels quite positive. A major strategic error by Sunak AND Starmer.
Agree totally. The Tory UK government has such poor intellectual quality and with Starmer aping their mistakes – their position should cause significant ruptures. My concern as always though is how do you get the message out past the right wing press which includes BBC Scotland?
I pose the following question. Other countries already have GRR. So a tourist visiting from these countries will have a passport with Gender assigned. UK would not know, reliant on the passport gender. This strikes me as a parallel of the Scots position.
I believe the difference is that we don’t issue passports, and, as the Tories are so keen to point out, we can’t pass legislation independently either. This is Sunak and Starmer putting us in our place, and it is tactically astute on their part because the GRR bill isn’t enthusiastically supported by the Scottish public. Scottish Labour might be embarrassed briefly, but, so what? They are used to that. It’s the SNP and Greens that look like idiots.
If the GRA is unpopular in Scotland then any party is free to put the repeal of the legislation in its manifesto and win a majority in Holyrood at next election to repeal it. This is what is called democracy.
I and my family, like the vast majority of the Scottish population. am completely unaffected by this legislation and upon first view was sceptical of it. However the more I have read about it and the number of professional organisations that have been consulted and agree with it the more I am beginning to think it isn’t such a big deal. I am sure there are many people who are genuine with their concerns and opposition to this legislation but there are also many to whom this is a political opportunity to have a go at FM & Scottish government (Funny how Tories & Alba are most vocal).
What is irrefutable is that this legislation was not rushed, took up more time in Holyrood than many of us would have wanted, and was passed by a big majority with most parties being in support.
You can disagree with a piece of legislation but still agree with right of Holyrood to pass it as I often agree with House of Lords actions but fundamentally disagree with its right to oppose it.
For so called supporters of independence to support a UK government overruling legislation passed by an elected Scottish Parliament is sheer hypocrisy. I note that Mark Drakeford is watching this with concern. This could be the beginning of a slippery slope to emasculisation (no pun intended) of devolved parliaments to their abolition which is ultimate aim of many Tories in Scotland & Wales.
There will be no need for any party to propose repealing the GRA – it simply won’t make it through to statute. Sunak and Starmer are pointing out that Holyrood can’t legislate independently. This ought not to be a surprise: the Tories made it clear months ago that they would not be bringing in similar measures in England. The GRA is worthy, but of little consequence to the bulk of the Scottish population. We should be making the case for independence rather than complaining about the democratic deficiencies of devolution.
It is entirely legitimate to either support or oppose or like myself to have no strong opinion on this matter.
If you do not believe in the right of Scottish Parliament to make laws for Scottish people it is legitimate to support UK government attempting to overturn.
If like me you believe in both devolution and ultimately independence you are either a hypocrite or do not understand what devolution or independence entails if you support UK government.
As for the majority of population being opposed to the GRA I would caution you to look back on history where many progressive laws were opposed by majority at time of implementation. We live in a parliamentary democracy not rule by majority via opinion polls and I believe that Scottish Parliamentary democracy is being undermined by UK government by the issuing of a Section 35 on this issue.
Section 35 is part of the devolution settlement voted for by Labour and the SNP. Why the surprise and consternation now that it has been enacted when there is a clear conflict for which it was designed? And a conflict the SNP new very well was coming. So much manufactured consternation and hot air it is laughable.
tory cnuts
I’m assuming the UK government will at some point introduce a gender recognition bill similar to that which the Scottish Government is promoting.
Probably better that neither Parliament makes a political battle out if it.
Whilst this is outrageous we must recognise that it is a deliberate, desperate act to provoke Independence supporters,politiciance and commentators to outrage and to sow division.
The Westminster ruling elite can clearly see that the stark differences between Westminster ideology (and its damaging consequences for the people of the UK) and the progressive policies of the Scottish Parliament ( as endorsed by the people of Scotland and clearly mitigating some the Westminster damage) are resulting in Independence becoming the settled will of the Scottish people.
They know that with some further considered campaigning – informing, involving and inspiring our fellow citizens of all political views to choose Independence as the means to an even better Scotland – that Independence being the settled will is inevitable.
As such they are left with only reprehensible tactics to distract us from campaigning and to provoke us to display behaviours that will cause doubt to our fellow citizens we seek to engage with, persuade and invite to join us in forging a new path.
We must not fall into that trap. We respond to this provocation calmly – we point out to our fellow citizens that it is another example of Westminster not serving the needs or the will of the Scottish people – we apologise to the minority groups who will have a delay in benefiting from the new Scottish Law – then we keep our focus on joining conversation with our fellow citizens to hear what they want and aspire to in their own lives and own areas and to demonstrate that the powers of Independent government can be the change that empowers them to be better able to solve their challenges and realise their opportunities.
Let’s show our emotional intelligence – let’s Campaign , don’t complain!
Absolutely correct Alex. This is a political bombshell that should be used to the advantage of the independence movement. It is an opportunity to galvanise support from undecided voters by decrying the “strongest devolved parliament in the world” nonsense and showing exactly how free we really are. But there would need to be a plan to use this debacle, just as there should have been one post Brexshit vote and post SC result. But thanks to Sturgeon’s abysmal leadership on independence this opportunity will be lost amongst the mouth music and hand wringing. We are led by donkeys on independence.
As regards Sturgeon, the Scottish electorate disagrees with you. The SNP win election after election. How are the other pro-Indy parties doing at the polls? To use your word – abysmal.
Sturgeon’s popularity is based on publicity and gimmicks rather than real politics. The SNP have achieved great things for Scotland but fail to lead on the most important matter for Scotland – independence. Since 2014 there has been no improvement on the route to independence with S30 the holy grail. We have no idea what an independent Scotland will look like, how the offices of state will operate, how our finances will be managed or how our well being will be improved. There are bits and pieces but no single or collective of all the suggestions that allows the independence movement to come to a general agreement that we can take to the undecided voters – all they see is the diverse suggestions and bickering. From around 2012 onwards the independence movement were broadly in agreement on the way ahead which allowed us to concentrate on convincing others. Since 2014 very little has been coordinated and almost all suggestions by the SNP have led to more arguments, including derision from experts in the field. So yes the SNP has been good for Scotland but it has only done that within the confines of Westminster’s rules. Sturgeon has no ideas other than S30 which Westminster will never agree to again and consistently misses opportunities.
Some truth in what you say Jim – although there is avert live discussion about alternative options to seeking a Section 30 Order by instead holding a de facto referendum. You were aware of this?
You are reading far too much into this, the concern is genuine particularly the age of 16 being too young. Young people are susceptible to fashionable things and parents would be rightly concerned.
I like others feel this can be sorted out instead of huffing indignation Sturgeon should go to a meeting to discuss it. The fact that she doesn’t seem to want a compromise suggests bad faith on her part rather than the UK government.
https://greens.scot/NoSection35
The action of ScotSec reveals constitutional reality – the limits of devolution.
Women have been challenging ScotGov for years, without adequate response, on the impact of this legislation on UK Equality Act.
The pretendy Parliament again fails at robust legislation.
Power devolved is power retained, and ScotGov has not done its homework properly: lazy, complacent, shoddy.
“Lazy, complacent, shoddy”. Please explain.
We knew this, but it’s now abundantly clear that at no point did they do the background work on this legislation; no consideration of the science; no equality act impact assessment; no attention paid to thousands of women’s expressed and communicated concerns; no consultation with UK government.
And no plans to use the political fall out to the Scottish people’s advantage other than hot air and legal challenge. Independence is always the answer but the SNP have forgotten how that goes.
When Women’s and Human Rights organisations restated their support for the Gender Recognition Reform Bill in November – they pointed out the lengthy consultation the Bill had undergone including two public consultations, eight public evidence sessions and most recently a stage two process which saw the Scottish Parliament’s Equalities Human Rights and Civil Justice Committee pass the Bill to stage three after further review.
As Editor are you seriously telling your readers that you have no awareness, knowledge or understanding of any evidence from the work of eg. the policy collective known as MBM conducted over recent years or UK organisation Sex Matters or FairPlayforWomen on the potential impacts on women rights here??
Hi Elaine – I’m not aware of MBM no. What I’m arguing is that the gender recognition reform bill does not in of itself create the impact you suggest, no. There are wider issues at stake about identity and right but not as a consequence of this legislation imho.
https://murrayblackburnmackenzie.org/2022/02/11/the-room-where-it-happens/
Abundantly clear? The Bill’s history doesn’t seem to support these allegations. Have you evidence that the time and effort that went in to bring the Bill to this point was simply wasted?
So like the Editor you have no awareness of the research done by Murray Mackenzie Blackburn policy collective .. ? You’ve never heard or read of the UK organisations Sex Matters or FairPlayfor women ..& that’s just for starters .. how about the personal testimonies of female survivors of male violence who the Committee refused to hear from ..or Sport Scientists or any scientist for that matter .. men on here telling women there’ll be no impact is so telling .. maybe do us the basic courtesy of a bit more homework …. Women disagree with the bill .. this is dismissed as hateful or transphobic in many circles .. disagreement is respectful it means you are paying attention to the issue.. blindly agreeing is the easiest thing to do maybe cause you have personal loyalty to individuals or family members enthrall to this new big lie ..
The proposed legislation is an attack on normality and a manifestation of insanity. As the proposed legislation has such far-reaching and intrusive tentacles in respect of interpersonal relationships, professional (medicos) and personal (families), why was there no referendum on this?
So all legisation should require referendums? If policy is to be guided by public opinion, then, perhaps, the death penalty be reinstated? I’m old enough to remember similar sentiments as yours did the rounds when homosexuality was decriminalised in 1967.
The SNP has no right to remove the rights of women and girls that exist under the 2010 Equality Act.
That would include Scottish Labour, Lib Dems Greens and the two Tories who voted for the GRA?
Just as democracy is perilous unless founded on the rule of law, the rule of law is perilous unless it is founded on the natural laws that govern our world. Poetic truths (aka falsehoods) like the divine right of kings poison, corrode, corrupt the shared model of reality that our political systems are based on. The idea that a human can decide in their own head whether they are a man or woman is as much a self-pleasing poetic truth (aka falsehood) as any gammon view that the British Empire is a force for good. These poetic truths corrode the basis of our politics, and make bad law. I had assumed that taking subjective accounts as fact went out with Wilhelm Wundt, but there you are: regression and rightwing ego dominance politics. That the Scottish Green Party would tie their support of the SNP to an anti-science policy unrelated to their supposed primary raison-d’être is indeed a low point in Scottish politics.
Rather than an attack on democracy per se, I see this as an assertion (albeit from the flawed position of British Unionism) of the rule of law. Making bad law brings the Scottish government into disrepute internationally, hardly a positive step towards Independence, and not the only time it has strayed into planetary unrealistic ideologies.
Exactly
The Right Honourable Aleister Jack ( Secretary of State for Westminster in Scotland) said:
“I have decided to make an order under section 35 of the Scotland Act 1998, preventing the Scottish parliament’s gender recognition reform (Scotland) bill from proceeding to royal assent.”
Two layers of permission required before Scotland can enact legislation; One from the Westminster sock-puppet, one from the magical old man with the golden hat.
It changes nothing and actually, ensures governmental continuity.
Sturgeon found an issue where she could impinge on reserved powers in a way she could wrap up in emotive rhetoric that appeals to the ABC1s and thus set up a stand off with Westminster. With the carrot of independence (and the prospect of freedom from Westminster neo-Thatcherism) taking care of the working class vote, that’s her job done for the next election.
Reality: SNP are Yellow New Labour. with levels of capture of civil society Blair could only have dreamt of, but unlike New Labour they show no sign of going away after 15 years. because the alternatives (like a Labour party which recently deposed its own democratically elected left wing leader in a murky, race-baiting coup) seem worse; or, like Alba, culturally unacceptable (see: civil society capture.)
The damned electorate keep re-electing the SNP !
The game playing of Section 30 and Section 35 does not take away the desire for independence….these attacks on the powers of Holyrood is a strategy to attempt to demoralise the Scottish people through denigration of Holyrood. They will have to find a strategy which removes the personal will for independence from an ever growing number of folk in Scotland.
What are you going to do Mr. Jack et al to remove the personal will of the Scottish people.?
You all know the answer.
UDI. Then you don’t have to curtsey to another nation and ask permission to breathe.
For Scotland!
UDI? When approximately half of the electorate in Scotland oppose independence? Aye, that’s going to work !
Exactly Alex – but maybe SP could declare UDI in his own house.
Independence will only come with consent of significant majority which will also help secure the country in what could be a potentially tricky first few years after independence.
I firmly believe that when support for independence is sustained at above 60% it will become unstoppable. The aim of all independence supporters should be to work to achieve this while recognising most people are absorbed by their immediate life issues,By showing how their life will benefit in the longer term by independence and by having an honest discussion on issues around independence then this support can be gained.
For what it’s worth as GRA issues are clarified and UK government position examined I think public hostility to the reforms will drop. Many will have a reminder along with S30 issue of actual limitations of devolution,
Both sides can easily solve this if they have the Will to do do. Up the she to 18 (16 is not appropriate ) and sort out the legality issues. Politicians
though will look for the political opportunities which is sad,
Perhaps the age of marrying, voting in Scotland should be raised to 18? Oh and the age of sexual consent too? (best of luck for the last).
Don’t forget the minimum age for joining the Armed Forces.
AGREE 100% Alex McCulloch, that’s the only game they have ,best ignored and Let’s GET ON with the JOB .
https://murrayblackburnmackenzie.org/2022/02/04/gender-recognition-reform-and-unanswered-questions/