Alister Jack's blocking of gender reform law could be beginning of a habit – Ian Swanson
Concern extends far beyond trans debate
Alister Jack’s decision to veto Scotland’s new gender reform law was the first time in almost 25 years of devolution that Westminster has blocked a Bill passed by the Scottish Parliament from receiving Royal Assent – but, according to Nicola Sturgeon, it could well mark the start of a new trend.
Feelings have run high for a long time in the debate over the Scottish Government’s efforts to make it easier for people to change their legally recognised gender, but the Scottish Secretary’s decision to use a Section 35 order has raised the temperature further and Ms Sturgeon has accused the UK Government of deliberately stoking a culture war. However, despite the strongly-held views on both sides, the issue of the veto goes far beyond the trans debate.
At a press conference on Monday the First Minister said, looking ahead, it now seemed almost any law passed by the Scottish Parliament was at risk of being overturned at "not much more than the stroke of a pen” by the Scottish Secretary. And, looking back, she cited the minimum pricing of alcohol – delayed by a legal challenge, but eventually upheld by the UK Supreme Court – as a law which the UK Government might have vetoed if it had hit on the idea earlier.
Section 35 is, of course, part of the Scotland Act which set up the Scottish Parliament so it is not something Alister Jack and his colleagues have invented themselves. But its use was envisaged as a last resort. Ms Sturgeon fears, however, that now they have used it once they will get a taste for doing it again and again.
She noted that the Sewel convention, under which Westminster does not normally legislate on areas of devolved responsibility without the express consent of the devolved parliament, had been fully observed for 20 years, but once it had been breached on one occasion, several more breaches followed. Mr Jack has insisted the veto was not a decision he took lightly, but it represents a serious departure in the operation of devolution and is naturally being viewed as undermining the status of the Scottish Parliament.
Many of the arguments set out in the 33-page document published last week to back up the Section 35 decision could be boiled down to an objection to the fact Scotland would end up with a different gender recognition process from England. But the matter of gender recognition was devolved to the Scottish Parliament from the start, so that cannot be used as the justification for the veto.
Mr Jack’s use of Section 35 is set to be challenged in court by the Scottish Government and legal opinion differs on the likely outcome. But in the meantime the Scottish Secretary is refusing to appear before two Holyrood committees to explain his decision and answer questions.
Ms Sturgeon claimed it was an indication of the lack of confidence he had in his case. It certainly adds to the impression of a high-handed move to thwart the democratic process and fuels the First Minister’s portrayal of him as a colonial-style governor-general exercising power with no accountability. If he won’t reconsider the veto, he might do well at least to reconsider his rejection of the committees’ invitation to answer questions on it.