So here we go. The Government has invoked Section 35 (s.35) of the Scotland Act 1998 to block Nicola Sturgeon’s Gender Recognition Reform (GRR Bill). The stage is set for a showdown between Westminster and Holyrood; the First Minister has said she will take the case to court.
I found this a little surprising: as Scottish lawyer Ian Smart has pointed out, s.35 is drafted to work in tandem with s.33 of the same Act, which allows the Government to refer a piece of Scottish legislation to the Supreme Court for a ruling for whether it is within Holyrood’s legislative competence.
The clock for triggering s.35, as drafted, ticks down either from the passage of the offending piece of legislation or the delivery of an s.33 ruling, meaning the Government could have lost the former and still, entirely within the obvious intent of the Scotland Act, applied the latter. Instead they have cut to the chase.
If Sturgeon presses ahead with her suit, we end up back at the Supreme Court anyway, where the judges will presumably assess whether the Government’s case for invoking s.35 is adequate.
The ruling would not only determine whether the GRR Bill actually goes ahead or not, but it would cast a long shadow over the political row surrounding it too. If the Government lost then its critics, who feel Alister Jack’s case is a paper-thin excuse for stoking the culture war, will feel vindicated.
However if the Supreme Court determines that the exercise of s.35 is valid, that puts Labour in particular in a tricky spot. Whilst the SNP can simply continue asserting that any constraint upon Holyrood is illegitimate (they do not, after all, actually believe in devolution, even if they did vote for the 1998 Act of which s.35 is part), Keir Starmer’s attacks have centred on the claim that the GRR Bill does not pose a danger to the reserved Equality Act or any systems based upon it.
(As I wrote in December, it remains absurd that gender equality law is deemed something that needs enshrined protection at the national level but the question of what gender someone is is devolved.
In the press, this story is bleeding on the one side into the row over placing caveats in the conversion therapy ban and broader splits within the Party about how to approach trans issues, and on the other into a broader constitutional argument about the validity of s.35 and Westminster oversight of devolved institutions.
Rishi Sunak is right to point out that the exercise of s.35 is not an attack on devolution. It was written by Donald Dewar, the founding father of Holyrood, and has been a part of the legal order governing the devolution settlement for as long as that settlement has existed. That much of the commentary seems not to buy this highlights the cost Westminster has paid, in terms of its perceived authority, for 25 years of devolve-and-forget.
Beyond the constitution, though, lies the politics. The old devolutionary meme – that standing up to the SNP plays into their hands, and the best unionist strategy is giving them what they want – is once again in wide circulation.
However, it isn’t obviously true. The thesis hasn’t been tested too often (Westminster only recently having started adopting a more assertive posture) but to take one obvious precedent, the passage of the UK Internal Market Act did not produce the SNP surge the Government’s critics were expecting despite widespread doom-mongering.
More recently, the Supreme Court’s ruling that Sturgeon did not have the authority to call her own independence referendum did produce a poll surge for the SNP, and that example is being cited by critics of the decision to exercise s.35. But that analysis neglects both that the poll surge was transient and that the costs of letting the Nationalists fight on their own question, on their own timing, as often as they wanted, far outweighed any temporary shift in the polls.
Regardless, Downing Street apparently believes it is on strong ground here, with polling suggesting both that Scottish public attitudes are not in line with the Scottish Parliament on the issue and that there is more support than one might expect for an intervention by London.
If you’re going to have to invoke s.35 at some point – and when one of the most powerful devolved legislatures on the planet is permanently ruled by bad-faith partners who want to break up your nation, you probably will – the GRR Bill may well have been the most promising opportunity to break the seal, notwithstanding the merits of Jack’s argument.
Is there a point to a deal without the DUP?
Earlier this week Sir Jeffrey Donaldson, the leader of the Democratic Unionists, gave a speech to a meeting of the European Research Group. It was, reportedly, “well-received”. One Conservative MP is quoted as saying their positions are “indistinguishable”.
This is no surprise: we reported back in October that the ERG were warning the Government that it couldn’t park the issue of ECJ oversight, and whilst that might not be quite so high a priority for the DUP it makes sense for the two groups most committed to reform of the Protocol to stick together.
But how powerful an alliance is it?
In terms of strict parliamentary arithmetic, it could be beaten. In his recent speech in Ulster, Sir Keir Starmer offered Rishi Sunak “whatever political cover you need”, and with Labour votes the Government could vote through whatever it wanted.
However, the Prime Minister has to date proven unwilling to legislate with the help of the Opposition, most obviously on planning reform, so it isn’t clear he would avail himself of Starmer’s support to outflank the ERG.
The bigger sticking point, however, is the DUP. Not because they could block any agreement with the EU at Westminster, but because they continue to have a veto on whether or not the Northern Ireland Assembly resumes work or not.
Much of the impetus for resolving the Protocol dispute has been fuelled by the political crisis in Ulster which it created, and the hope of resolving it in time for the quarter-centenary of the Belfast Agreement in a few months time, and Joe Biden’s commemorative visit.
For as long as that reasoning holds, the DUP have a lot of power, and government sources previously indicated to me that ministers broadly accepted there was little point on expending political capital on a deal the DUP won’t accept.
This reasoning could change; there are potential dividends for the wider British economy from easing tensions with Brussels, and like most mainland politicians Sunak doesn’t want to be talking about Northern Ireland forever. But if those priorities do shift, the relatively short deadline all sides are currently working towards also loses its force.
In the meantime, this morning’s papers report that ministers have given themselves another six weeks to decide whether or not to call fresh elections in Northern Ireland. Given the risible record of Northern Irish Office deadlines – this one first expired back in November – one wonders why they bother.