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Scotland is fast becoming a part of British politics like Ireland in the 19th century: a country of intractable political grievances and problems that cannot be easily answered. It has voted against independence but since 2007 it has voted to be a party with this raison d’être. The current situation (today’s development is a whistleblower on SNP finances claiming threats from the police, whose leader retired earlier than expected shortly before Sturgeon announced her resignation) is something that almost always happens when the party has been in power for too long with an ineffective opposition. This is something Scotland shares with Irish politics (the last financial/political scandal over the years rivaling anything produced by Westminster/City) and Irish society (see the various horrors resulting from the long grip of the Irish Catholic church).
Now we have the latest Scottish issue – a legal challenge to the UK government’s S.35 Order under the Scotland Act (see here). Westminster says the Scottish government has taken action ultra vires and the passing of the Bill does not have the legal power to carry out the settlement of devolution. Holyrood said that Westminster has misdirected itself in the Scottish law and therefore has no legal basis to challenge what Holyrood has decided. The case raised an interesting and novel legal issue; political consequences that are likely to make themselves felt in the run until the next election.
What a challenge not about
The majority of MSPs voted for the Bill without objection to the S.35 Order. However, it is an important condition precedent for it. The British government could not act except Bill has passed. In addition, the Gender Recognition Reform (“GRR“) The provisions of the Bill can, according to opinion polls, not be supported by the Scottish public as well as irrelevant. The popularity of the Bill or otherwise – whether with MSPs or the public – is not what will be done.
what that is issue?
Two.
(1) Does the Bill deal with matters reserved to Westminster under the Scotland Act? In particular, does it change the law as it applies to matters of reserved equal opportunities through the inter-relationship of the GRR Bill and the 2010 Equality Act?
(2) If so, are there reasonable grounds for Westminster to believe that the modification will have an adverse effect on the law applicable to equal opportunities?
If the answer (1) is not there, then there is no need to consider question (2). So Westminster should win on both of these key points.
Who will win?
Only an idiot would answer this, although some retired Rulers of Law and Charlie Falconer have voted. The Scottish law has not been tested in court; the interaction of the Gender Recognition Act and the Equality Act is not always clear, let alone the changes proposed by the GRR Bill. What test will the court apply to the Scottish judiciary, particularly in the context of devolution settlements? Courts may decide that any challenge to a decision made by a democratically elected parliament must pass a high standard. Moreover, if the parliament acted beyond its powers, how should the court examine the reasonableness of the objection? The Scottish government has certainly made some interesting arguments: it says that it can effectively do whatever it wants in relation to gender reform, including repealing the GRA all in Scotland. This is a strange argument as this would put the UK in breach of the ECHR (which would of course be ultra vires). It has also been argued that Westminster should have told it how to amend the Bill during its discussion so that it is challenging, a curious position for the government to be concerned with its own sovereignty and powers to adopt.
What’s next?
The Scottish courts will decide the matter first, although it is inevitable that the case will end up in the Supreme Court, whose President is Lord Reed, a Scottish judge. Courts have taken a more conservative approach in recent cases. For a comprehensive review of all aspects relating to vetoes and challenges, there is an excellent research briefing in the library of Parliament here.
time
This is where it gets politically interesting. The case could take a year or more to reach a final resolution, in time for the next election. If the Scottish government loses, how will that affect the SNP? Will it give it a boost – the wicked Westminster is annoying – or will it look like another example of SNP overreach, implementing unpopular policies and wasting money? And how will this affect Labour’s chances in Scotland? If the Scottish government wins, it could raise the issue of the balance between women’s rights and transgender rights during the election, which Labor may not welcome, given Starmer’s comments on the issue. A defeat for Westminster will not be good for the Tories, of course, but they may not care if they face an election defeat anyway.
Event
Then there is what happened in the SNP. Scottish First Minister must deny SNP actionby criminal means” has a Nixonian feel to it. What else could happen? What will the current SNP government do when the case is decided? Whatever the outcome, it will be an interesting case on devolution, the proper scope of judicial review and how the Equality Act works. Lawyers, if no one else, relish the prospect.
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