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16 January 2023

Rishi Sunak has every right to block Scotland’s gender bill

Ignore the hysteria: this is a matter of nationalist incompetence, not unionist conspiracy.

By Chris Deerin

The hysteria that has greeted the decision by Rishi Sunak to block Scotland’s new gender recognition law is as deafening as it is predictable.

It has been obvious for weeks now that what was supposed to be a Scotland-only law, making it easier for people to change gender, would in fact have unintended consequences south of the Border. It was therefore equally obvious that the UK government would likely feel bound to prevent it receiving royal assent by using Section 35 of the 1998 Scotland Act – which was after all created by devolution’s (Labour) founders for a situation like this.

One wonders if the Scottish government asked for or received legal advice during the bill’s passage through Holyrood about its potential clash with UK equality law, which is a reserved matter. If not, why not? What duty of care have they shown to the trans community that they were supposedly helping?

This situation will be painted as an unprecedented constitutional crisis. The rhetoric will be heightened and relations will be tense. The nationalist movement and its Green hangers-on will be simply outraged. Dark threats will be issued.

Nicola Sturgeon knew this was coming, and she knew why – she no doubt had her response ready and waiting in a drawer somewhere. Nevertheless, she was always going to take the opportunity to proclaim it as the sudden and shocking death of Scottish democracy as we know it. If you think she doesn’t scent the political opportunity for the SNP in this – and if you don’t think she’s cynical enough to act on it – then there’s a large red bridge across the River Forth I’d like to sell you.

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“This is a full-frontal attack on our democratically elected Scottish parliament and it’s [sic] ability to make it’s [sic, again] own decisions on devolved matters,” she tweeted following the announcement. “@scotgov will defend the legislation & stand up for Scotland’s Parliament. If this Westminster veto succeeds, it will be first of many.”

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Let’s be clear what this isn’t. It isn’t a first step to abolishing devolution. Only the SNP wants to do that. It isn’t the evil London Tories deciding that whenever they disagree with a policy in Edinburgh they will step in to stop it. That would be absurd and self-defeating, and even this pathetic Conservative government isn’t that daft. The sun will come up tomorrow; MSPs will gather; laws that only affect Scotland will continue to be safely passed.

[See also: Is Boris Johnson coming back?]

It would be better – especially for the vulnerable folk most affected by the gender bill and the UK decision to block it – if everyone calmed down, and sought to work out a mutually satisfactory solution that can improve the lot of transgender people. This is actually an opportunity to have a proper and full debate about the issue of gender reform and women’s rights across the whole of these islands – a debate that was deliberately avoided by the SNP in Scotland, due to the unpopularity of its proposed measures among the general electorate. That would be the sensible and decent option. Sadly, it will not be the one taken.

Sturgeon, still chuffed with the recent surge in support for independence that followed the Supreme Court blocking a second referendum, will now want to get back to the Court as fast as possible. Where does power lie? Why can’t we Scots make our own gender law? The court’s ruling is likely to be as it was before – in this instance, as with a referendum, ultimate authority lies at Westminster; you can’t make your own gender law because it affects reserved matters, and the tail cannot wag the dog. 

She might indeed get another bump in the polls as a result. But this is devolution, not independence. Scots were offered independence nine years ago and decided against it. There is no indication they want another referendum yet. Therefore, the law is the law, and Sturgeon and her supporters will just have to wear it.

The coming days and weeks are likely to be unbearable, as the SNP, which until relatively recently was an impressively considered and tactically astute party that thought in years and decades rather than days and weeks, loses its mind over the implications of the gender decision. There will be bad faith and cynicism on both sides, of course, and people will be drawn to the extremes. 

But the UK parliament has done nothing wrong, and is following the law as Donald Dewar and others made it back in 1998. The Scotland Act states clearly at Section 35 that there is “Power to intervene in certain cases if a Bill contains provisions… 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.” In which case “he may make an order prohibiting the Presiding Officer from submitting the Bill for Royal Assent.”

The truth is that the SNP government has overreached itself, not for the first time and perhaps even deliberately. This is a matter of nationalist incompetence, not unionist conspiracy. The need to distract from that – as well as to advance their own narrow cause – is one reason that Sturgeon and her allies are going to deafen us with their hysteria over what is in fact a perfectly reasonable decision.

[See also: Gender reform battle could be crucial for Scottish independence]

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