We are living through yet another constitutional showdown between the Scottish and UK Governments. These seem to come around ever more regularly, the last just being a few months ago on the Supreme Court judgement on a Scottish independence referendum.
The immediate issue is the Gender Recognition Reform Bill passed by the Scottish Parliament in December which legislated for self-identification for trans people. The controversy goes to the heart of the rights and remits of the Scottish Parliament, devolution, democracy and the role of the UK Government.
The GRR Bill has seen intense controversy, anger and intemperate language. Disrespect, intolerance and inflammatory exchanges at the margins of both sides – pro-trans and pro-women's rights – have assisted no-one.
The UK Government, in the form of the Secretary of State for Scotland Alister Jack, have decided to use Section 35 of the Scotland Act 1998 – the act that set up the parliament – to say that the GRR Bill impacts on reserved matters, meaning matters under the legislative jurisdiction of Westminster, in relation to the GB-wide Equality Act.
The Scottish Government counter that the Scottish Parliament voted for the bill at its final stage by 86 votes to 39, with emphatic support across four of the five main parties: SNP, Labour, Green and Lib Dem, and some support from all five – the last being the Tories. This, they argue, is not about the SNP or independence, but the democratic wishes of the Scottish Parliament being overridden by the UK Government. Former SNP Glasgow Southside councillor Mhairi Hunter stated to her colleagues: 'I suggest not fighting with Labour, Lib Dem MSPs expressing anger at UK Gov actions on GRR bill? This legislation belongs to everyone who voted for it. Yes, there's obviously an independence angle but it's an issue for every party including those Tory MSPs who voted for bill'.
The UK Government respond that using a Section 35 order is not attacking devolution, but part of devolution. The reasoning for this is that it is part of the Scotland Act 1998. This is a spurious logic when in 24 years a Section 35 order – striking down unilaterally a bill of the Scottish Government prior to Royal Assent – has never been used and is viewed as going 'nuclear'.
This specific clause was viewed as controversial when it was debated in the UK Parliament in 1998. At the time, UK Government minister Lord Sewel indicated that Section 35 'would be liable to be scrutinised by judicial review'; Tory Lord Lang of Monkton (a former Scottish Secretary) said that the Section gave the Secretary of State for Scotland 'the power to intervene to control and prohibit action by the Scottish Executive'.
Politics is never far from the surface. The SNP leadership have not had their finest hour on the GRR Bill. This controversy has been festering for the past two years and some of the concerns of women's campaigners could have been accommodated. At the same time, the worst excesses of the most virulent anti-trans and transphobic perspectives could have been taken head on and defeated.
This may be a tough ask but there is an echo between the behaviour of the SNP leadership in this, and the nascent Scottish Parliament and Scottish Labour leadership on the issue of abolishing Clause 28 and 'promoting homosexuality', which saw unapologetic homophobia in parts of Scotland. Labour were out of their depth then, and the same seems true of the SNP today.
More fundamental is the attitude of the UK Government and its claims that this is all about 'legal concerns' rather than 'politics'. UK Tory MPs not surprisingly recognise that they are, after 13 years, running out of thread. They are aware that on 'the big questions' of the day including the NHS, welfare and the economy they have little or nothing to offer and will still have little by the time of the next UK election.
Tory strategists are increasingly (according to
The Spectator's new political editor Katy Balls) looking around desperately for issues that they can use to weaponise and embarrass Labour and their other political opponents, including the SNP. Balls identified two major ones – going hard on the issue of 'stopping the small boats' crossing the English Channel and the Scottish Parliament and trans rights. These will be added to the war on 'woke', a prescriptive take on British history, and various 'culture wars' against liberal opinion in the BBC, universities and elsewhere. It is against this background that the Section 35 order should be seen.
The scale of Tory failure is stark after 13 years. Their record is one of adject failure. There is little idea inside the Tory tribe about how to address the state of Britain and this is something senior Tories acknowledge in private. One Tory minister has put the condition of their UK Government, headed up by Rishi Sunak: 'It's so much worse because it doesn't look chaotic. Clear and slick on the outside, but the corpse of a government inside'.
The Tories cannot really cite the Equality Act, for it is in a wish hit list on the Tory right along with the Human Rights Act, the UK being signed up to the European Convention on Human Rights, and anything else which stands in the way of their dream of unchecked parliamentary sovereignty.
This is not the best moment for politics and politicians but deeper issues are at play. How do we legislate for competing rights such as trans people and women's rights? How do we protect women-only spaces? How do we stand up to those who seem to refuse the right of trans people to exist? Is it possible that most of us can agree that people have the right to change their birth sex? And how do we listen to each other and establish the maximum common ground while standing up to the bigotry and transphobia which exists?
Trans-related hate crimes have markedly increased in Scotland and the rest of the UK in recent years. All across the world, the most virulent parts of the ultra-right are more than happy to weaponise transphobia and stigmatise trans people as they articulate caricatured versions of men and women. One of the most respected authorities on the politics of right-wing populism, academic Cas Mudde, has observed: 'Transphobia is a gateway drug into the far right'.
There is also the issue of democracy, what it means and how it does things. This involves the power and legitimacy of the Scottish Parliament, the role of the UK Parliament, and what kind of union we live in. The UK Government increasingly believe that the UK is a unitary state with one supreme, unchallengeable parliament – whereas the UK is a union state of different nations and laws. An aspect of this is that Scotland post-1707 never went away, even pre-devolution, and remained a distinctive legal entity with its own laws, legal system, education and civic institutions.
One dimension of this is the role of the Secretary of State for Scotland, Alister Jack, who, as the MP for Dumfries and Galloway, is my local MP. His behaviour in the House of Commons on Tuesday showed a new low in contempt for his fellow parliamentarians. First, he announced he was moving a Section 35 order without 'the statement of reasons' being published.
Secondly, when the resulting paper was produced two hours after Jack had spoken in parliament, it was threadbare to embarrassing in its reasoning, citing such insurmountable problems as the difficulties of changing government computer systems in England and Wales. This provoked Philippa Whitford to say to Jack: 'Is he seriously, after 300 years of different marriage ages and voting ages, suggesting there can no longer be legal or age differences north and south of the border?' Despite all this, the UK Government won a vote on Section 35 by 318 to 71: a majority of 247.
Democracy involves more than the one parliament getting its own way and the clash of rival institutions and mandates. Rather, it is about how we nurture everyday conversations and connections, and strengthen relationships and sense of trust which define a healthy society and democracy.
No-one comes out of this completely unscathed and Scotland has to have a good look at how it does things. Despite our often-told story that we have been and are a land of tolerance and equality, we have a long history of marginalising and repressing minority groups.
Maybe we should more systematically address those wider issues in Scotland – of how we listen to, respect and understand each other – while recognising the many silences and omissions which have marked our public life and public institutions to this day. The UK Government and Parliament have many questions to answer but they cannot be the benchmark against which we judge what is and is not a successful, thriving democracy, either here in Scotland or across the UK.
Politics, politicians and democracy should aid the complexities and fluid ways in which people live and define themselves in the modern world. The GRR Bill has been an imperfect attempt to do so from which all sides need to learn profound lessons. If we do not, we more than likely will be back here again in the near-future fighting 'culture wars' and having vulnerable minorities stigmatised and vilified by the populist right.
