The UK government has decided to nullify the law recently passed by the Scottish Parliament, which aims to simplify the process of self-identifying oneself as being in a different gender from one’s sex at birth. I don’t propose at this stage to discuss the principle of self-identification – I may return to that later. I do think, however, that the legislative process is important for clarifying the constitutional place of Scotland within the UK.
To begin at the beginning, the UK parliament is a sovereign body. That does not mean that it is in control; it means that the UK parliament is the source of authority for all laws passed within the UK. This is very different from a federal government, in which powers and authority are delegated from the member states – David Cameron’s claim, after the 2014 referendum, that Scotland would be the most powerful devolved parliament in the world, is simply asinine. The idea of ‘devolution’ depends on the principle that devolved governments have to be authorised to do things by the central government. That summarises the current status of Scotland.
Second, the UK parliament retains the right to legislate, not just for the UK as a whole, but specifically for Scotland. That is the basis of the ‘Sewell motions’, which have been passed at the behest of a Scotish Government that otherwise cannot fit the legislation into its busy timetable.
Third, there is no legislative area which is reserved to Scotland. The authority of the Scottish Parliament is wholly dependent, in law, on the continued authority of the UK parliament. The UK government has taken advantage of this to intervene in the affairs of Scottish local authorities, which are part of the services devolved to the Scottish Parliament.
And then, finally, there is s.35 of the 1998 Scotland Act, which states:
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, he may make an order prohibiting the Presiding Officer from submitting the Bill for Royal Assent.
That is what is happening now. There has been talk of legal action to object to the use of s. 35, but I think it highly unlikely that such an action will succeed; the Supreme Court has already taken a dim view of attempts to expand the powers of the Scottish Parliament.
Professor Aileen McHarg has been cited as saying that there are alternatives to the use of s.35. These alternatives include
- amending the Equality Act 2010 to take account of the Scottish legislation,
- introducing a bill to overrule the Scottish law
- and taking the Scottish Parliament to court for exceeding its powers.
The first two would take far more parliamentary time, and in the meantime any potential conflict with equality law would not be resolved. The problem with the third option is that, simply put, the Scottish Parliament hasn’t exceeded its powers.
This is not just about legality, however; it’s also about politics. This legislation is controversial, but it offers nothing like the challenge to the devolution settlement implicitly represented by the (untested) Scotland (Referendums) Act 2020. The UK government has been looking for ways to curb the enthusiasm of the Scottish government, and gender recognition looks like a plausible target.
The position of the Scottish government has however been undermined, in my view, by the process it has followed. Amendments to the legislation were rejected outright: those included several attempts to assert the relevance of the 2010 Equality Act, protection of single-sex spaces and to include impact assessments. These were all met with the questionable, often repeated assertion that there was no impact on the application of UK equality law that required consideration. Of course the legislation aimed to alter the categorisation of protected equalities: that, surely, was the point.
The government of Scotland, as currently constituted, is principally based on the unitary authority of the Scottish Parliament. There is no other mechanism by which laws can be scrutinised and revised, except for reference to the UK parliament. If the Scottish government wants to be able to argue that it should be left alone to make decisions relating to Scottish law and government, and that any intervention by UK authorities is unreasonable, it has to be able to demonstrate that appropriate safeguards are in place. It cannot do so within the current institutional framework. Scotland needs a revising chamber.