Well, it happened. Deep into the afternoon of so-called ‘Blue Monday’ – supposedly the most depressing day of the year – UK Scottish secretary Alister Jack announced he would be invoking a little-known piece of legislation: Section 35 of the 1998 Scotland Act. This legislation gives the UK government the right to veto laws passed in the Scottish parliament by refusing to pass it to the monarchy for royal assent – an essential for all Scottish statutes.
The veto is seen as the final ‘backstop’ to protect the union, and has never been used in the 24 years of devolution. Until now, when Jack, on the orders of Rishi Sunak, deployed it in order to block Scotland’s recently passed gender recognition reform bill.
The nuclear option.
The pre-Christmas celebrations which greeted the long-trailed Scottish reform, intended to make life a bit easier for the Scottish transgender community, now seem like a distant memory. The bill had passed overwhelmingly in Holyrood, with cross-party support. But Sunak’s government decided to put up a constitutional blockade on the spurious grounds that the proposed law interfered with equalities legislation operating across the UK.
It seems that in one move, the UK government has highlighted its worst elements: attacking Scottish democracy and scapegoating a minority group. From the moment the law passed, the question of whether England would decide to recognise gender recognition certificates issued in Scotland was on the table; rightwing media was immediately briefed that such documents would be rendered ‘invalid’ south of the border. But the wholesale blocking of a law passed democratically and legally in the Scottish parliament is an outrageous escalation and overreach of Westminster power.
In one sense, a devolved body will always clash (to a degree) with central authorities – the nature of devolution means powers are shared. What makes the Section 35 power so shocking is that it is phrased in such a way that means the UK government will have the final word and will broker no dissent. Notably, at the time the Scotland Act was created, the Conservatives, then in opposition, labelled Section 35 the “governor-general” clause and an “enormous potential roadblock”.
There are alternatives that could have been used to challenge the bill which would have been less provocative. In the last five years, the UK government has used Section 33 powers to challenge proposed bills passed by the Scottish parliament on Brexit and children’s rights. Significantly, under Section 33, it is the Supreme Court that has the final word, rather than politicians. Indeed, last year the Scottish government themselves referred their proposed independence referendum law to the Supreme Court to see if it was within Holyrood’s powers.
As it turned out, the Scottish government lost all these cases and none of the laws came into force – but they at least had the appearance of legal neutrality. By eschewing this approach, Sunak’s administration is making a ‘political’ intervention in the broadest sense of that word – circumventing the legal procedures available to them, making the most of a culture war, and denying the Scottish government’s autonomy in the process.
Although it looks like this is all a genius rightwing move to mobilise the base of Conservative support, there are a number of ways the manoeuvre could blow up in the government’s face.
The wording of the veto may look like it is the end of the road for the bill, but it doesn’t preclude a challenge in Scots law using the process of judicial review. Nicola Sturgeon has already made clear that this will be done as soon as possible. The Court of Session in Edinburgh would be the setting for this legal showdown.
Judicial review is possible because the form of this legal pronouncement under Section 35 is a government order. These are open to review and can be overturned by the courts in a way that if this veto had been issued by an act of the Westminster parliament, they could not. One relatively simple way a judicial review can succeed is if a government order is illegal, or “ultra vires” – beyond powers. Or it may be that the law is unreasonable or irrational – that is, there isn’t enough evidence or reasoning to support the passing of the order.
Both of these challenges are relevant here. To justify legal intervention, the UK government must establish that the Scottish bill “modifies” law as it applies to matters reserved to Britain, and there are “reasonable” grounds that this would have an “adverse effect” on the law. For the Westminster Conservatives, this is equalities legislation – specifically the Equality Act 2010. But the reasons given for this are pretty thin.
Firstly, the “modification” of reserved law refers only to gender recognition laws, not the 2010 legislation – and these gender recognition laws are devolved. There is a convoluted argument that gender recognition reform legislation would have a knock-on effect and thus modify reserved matters, but frankly, this is a stretch.
What’s more, the argument that there could be an “adverse effect” on British law essentially boils down to the fact that the process of gaining a gender recognition certificate would be easier in Scotland, and the difficulties of having a different approach to this in other jurisdictions within the UK. Yet devolution is based on this very idea, and Scotland’s independent legal system has survived 300 years of the union – which involves a lot of different approaches on issues to England.
The political veto isn’t quite as clear cut as it seems, then. The prospect of a legal action in Edinburgh, followed by potential appeals that could end up in the Supreme Court, isn’t favourable terrain for Jack and Sunak – particularly in the lead-up to a general election. But for now, the Scottish trans community is left in a state of limbo, while Scotland more widely is reminded yet again of its clipped wings in the face of a hostile and obstructive Conservative-led UK government.
Dr Nick McKerrell is senior lecturer in law at Glasgow Caledonian University.