Last week, we looked at how Rishi Sunak’s decision to block Nicola Sturgeon’s Gender Recognition Reform (GRR) Bill provides a rare test case of the devolutionary meme that nothing plays more into the SNP’s hands than standing up to them.
A week on and it appears, just as when the UK Internal Market Act was passed, that the doom-mongering was wide of the mark. There has been no surge in support for the SNP, whilst polling finds that far from viewing it as an attack on devolution, voters support Westminster’s right to veto devolved legislation.
Should the UK Gov’t have the power to block any legislation passed by the devolved parliaments? (18 January)
2019 Conservative voters
2019 Labour voters
Yes 31% pic.twitter.com/8M3wNg8zLj
— Redfield & Wilton Strategies (@RedfieldWilton) January 25, 2023
Despite a decidedly patchy record on matters Union in recent years, the Government seems to have chosen its ground well. Voters are not half so concerned with the devocrats’ prerogatives as said devocrats would have London believe, and on the substance of the issue the GRR Bill is unpopular with the public.
The First Minister is looking for her row, of course, and was reported this week that she will “do everything” she can to get the controversial legislation onto the statute book.
But this tough talk just makes it all the more striking the Scottish Government has not said that it will challenge Alister Jack’s decision to use Section 35 (the provision of the Scotland Act 1998 that empowers him to intervene) in court. The Nationalists apparently plan to contest the plan at Westminster, but only there.
This despite the fact that the Secretary of State’s decision to exercise the power is judicially reviewable. If Jack’s case really were “paper thin”, as critics claim, they ought to be confident it would be overturned. (Readers interested in forming their own view of the GRR Bill’s potential impact on Union equality law could start with this Policy Exchange paper.)
Of course, the Scottish Government could well lose such a challenge – Lord Hope, a former Supreme Court judge and one perhaps better disposed than most towards challenges to Westminster’s supreme authority, suggested as much this week.
But whilst this would pose a problem for Labour, whose opposition to the Government’s move rests on the claim that it is ill-justified and unnecessary, conventional devolution wisdom suggests it wouldn’t be one of the SNP; it would just be another British institution standing in the way of Scottish democracy, after all.
Once again, however, recent experience suggests otherwise. When the Supreme Court ruled against Sturgeon being able to call her own referendum on her own terms, there was much sucking of teeth about the attendant rise in Nationalist polling. But the surge, if it warrants that description, was fleeting, and utterly trivial compared to the massive boost to the SNP a win would have represented.
Contrary to some of the more cartoonish portrayals of so-called muscular unionism, the Government seems so far to have resisted the urge to overplay its hand or make hay of the constitutional confrontation. Jack has written to Shona Robinson, the SNP’s Social Justice Secretary, suggesting that the Scottish Government bring forward a revised version of the Bill that addresses HM Government’s concerns.
If the First Minister’s priority really is getting as much of her legislation onto the statute book as possible, that will almost certainly be the best approach, especially without a legal challenge. But would the Nationalists be prepared to cooperate with the process – an at least tacit concession of Westminster’s authority – and defuse the row?
Perhaps if the confrontation isn’t serving their political interests. Not only has the constitutional dog not barked, but the substance of the argument is also not playing brilliantly for Sturgeon. Whilst she accuses the Tories of “weaponising” trans people, her politicians have been getting photographed with signs calling for the decapitation of gender-critical feminists; this doesn’t seem to have been deliberate, but was at supremely careless, and won’t do much to win round sceptical voters.
Meanwhile Rishi Sunak and Dominic Raab have taken the opportunity to keep up the pressure after the Sturgeon was caught in a fresh row about the remanding of a male-bodied transwoman and convicted double rapist, Isla Bryson, in a women’s prison. The First Minister has rejected calls to have the prisoner moved.
This decision doesn’t have consequences for England and Wales, but does make it that bit harder for the Scottish Government to win over popular sentiment and regain the initiative.
In other SNP news, the scandal that is Scotland’s drugs death rate continues; another of Sturgeon’s self-declared domestic policy which seems to have fallen by the wayside.
Clouds over the Irish Sea?
There’s a lot of constitutional news at the minute so this column is rather flitting between them; we will return to the Protocol in more detail next week. But a few media reports suggest there may be trouble ahead.
On Saturday, the Daily Telegraph reported that the Prime Minister might be mulling a compromise that would set up a clash with the European Research Group, as it would cross their red line on ECJ involvement. The latter’s alliance with the Democratic Unionists seems rock-solid; Sir Jeffrey Donaldson addressed the ERG, and on Sunday David Jones co-authored an op-ed with Sammy Wilson reiterating their joint position.
Finally, Boris Johnson is apparently “deeply concerned” that any deal over the Protocol could be a compromise too far, according to the Daily Mail.