Humza Yousaf's Gender Recognition Reform Bill court battle: losing the case could make his situation worse – Ian Swanson
and live on Freeview channel 276
There's nothing Humza Yousaf would like better than to take on the UK Government in defence of Holyrood's powers and win, to widespread acclaim from the Scottish public. But he probably realises that is unlikely to be what happens when the Scottish Government goes to court over the UK veto of the Gender Recognition Reform (GRR) Bill which would make it easier for trans people to change their legally recognised gender.
For a start, most legal experts seem to believe the chances of victory are slim to zero. And even though the Bill was approved by the Scottish Parliament with a two-thirds majority, including MSPs from all parties, there is not majority support for it among the public. One poll published just before the Bill was passed found 66 per cent opposed to lowering the age threshold for switching gender from 18 to 16 and 60 per cent were against dropping the need for a doctor's diagnosis of gender dysphoria.
And to make matters worse from the SNP’s point of view, another survey in February found 50 per cent of the public thought the UK Government was right to block the legislation, including 31 per cent of the SNP's own voters. So why is Mr Yousaf choosing to pursue a battle he looks like losing and in which most Scots are not on his side? It is a matter of principle – that legislation passed at Holyrood should not be overridden by the UK Government.
There is plenty of evidence that the Westminster government is on a mission to undermine or restrict devolution. It started with Theresa May and her promise to reverse what she described as the "devolve and forget" approach. Boris Johnson picked up where she left off. All requests for a Section 30 order to allow a second independence referendum, supported by a majority of MSPs, were rebuffed.
The Scottish Government complained it had been "cut out" of the UK's Union Connectivity Review looking at cross-border transport infrastructure. The UK's Levelling Up fund saw the UK bypassing Scottish ministers to award funding direct to Scottish councils. During the Tory leadership campaign, Rishi Sunak said Scottish civil servants should be quizzed by Westminster committees to ensure "proper accountability and scrutiny about what the SNP government is doing". And just last week, Foreign Secretary James Cleverly introduced new guidelines insisting all meetings involving SNP ministers and overseas governments must be organised through the Foreign Office and attended by UK officials.
Alister Jack's veto of the GRR Bill is the first time a UK Government has used a Section 35 order, but there seems little reason to believe it will be the last. Mr Yousaf has argued that if the Scottish Government "rolls over" and allows it to go unchallenged it would simply be inviting more. But losing a test case in court could arguably make the situation worse, even emboldening Westminster to intervene more often. Alex Salmond has labelled Mr Yousaf’s going to court strategy the “ultimate lose/lose gambit". He said: "If he loses the case, he is humiliated by Westminster. If he wins it, he loses with the Scottish people.”
The principle of defending Holyrood’s powers is an important one, but all the signs are the gender recognition legislation is the wrong ground to fight on.