Before Christmas, this column looked at how the clash over the Scottish Government’s Gender Recognition Reform Bill had highlighted some of the incoherence that has been built into the devolution settlement over the past 25 years.
Whilst the Union didn’t feature in Rishi Sunak’s big speech yesterday on his short-term priorities, this issue will be one of the major decision points he faces in 2023, the consequences of which could have significant medium-term implications for the battle with the Scottish Nationalists.
The big question is this. The Scotland Act has provisions for Westminster to intervene when laws passed by a devolved legislature affect laws and rights which are supposed to operate on a UK-wide basis – in this case, the Equality Act. Does he use them, or not?
It certainly doesn’t seem to be the preferred option. Much better, from the Government’s standpoint, if the Bill were to be successfully stymied in court by one of the groups which have been campaigning against it in Scotland. But if that doesn’t happen, Sunak will have a choice to make.
For Conservatives mulling the issue, the choice has two major dimensions, notwithstanding individual reviews on the merits of the GRR Bill and the broader issues it addresses. First, the potential real-life impact of the Bill on UK-wide rights and services. Second, tactical considerations vis-à-vis the SNP.
On the former point, there is clearly deep concern within government. It was Alister Jack, the Scottish Secretary, who raised the prospect of a Section 35 intervention, and there has been no indication he was freelancing. Both Sunak and especially Kemi Badenoch, the Minister for Women, seem inclined towards a muscular stance.
If their analysis is right, this will be a key test of the current devolution model. Constitutionally, Westminster remains supreme. The ability to build protections for the centre’s legitimate prerogatives into the legislation underpinning devolution is an important part of the current theoretical framework.
It would therefore have serious implications if it turned out that such safeguards, whilst they could be legislated for, are in practice never used, even where the case for using them is strong.
On the tactical side, opinion is split. Critics of an s35 intervention point out, fairly, that it is probably giving Nicola Sturgeon what she wants: a row over the constitution to distract from her government’s myriad failings on domestic policy.
However, this was much the same argument advanced against the UK Internal Market Act (UKIMA), which likewise saw Parliament re-assert important strategic prerogatives of the British State – specifically, powers to govern and harmonise this country’s common market – against devolved encroachment.
Sometimes battles do need fighting, even when an opponent is seeking them, because the strategic terrain under attack is more important than denying the separatists a tactical win in the news cycle. And in any event, those inclined towards s35 can take comfort from the fact that the public backlash against UKIMA, at least as its provisions applied to Scotland, was virtually nil.
In this specific case, it also looks as if the Government might be on much stronger grounds to take on the First Minister than is normally the case, with polling suggesting strong public opposition to the GRR Bill in Scotland.
There will be a section of the electorate that opposes the Bill but opposes Westminster meddling more. But the question is how large that really is. Downing Street is rumoured to have internal polling suggesting an intervention may not play half as badly as some believe (this would certainly help to explain their tough stance to date).
If true, this would be in line with what we saw over UKIMA. The electorate has not, on the few occasions it has been tested, seemed half so invested in constitutional minutiae as received wisdom has sometimes supposed.
That doesn’t mean everyone who might be described as a muscular unionist backs intervention. Some maintain that if the impact of the GRR Bill on wider UK legislation and institutions is not assessed as catastrophic, the Scottish Government should be allowed to own the consequences in Scotland.
Last but not least, there’s the issue of the relationship between the British and Scottish Conservatives. The latter were by and large at the forefront of opposition to the GRR Bill in Scotland, even if they didn’t whip against it due to some very strongly held views by some of their MSPs (a handful of which actually voted for it).
Whilst there hasn’t been any official pronouncement from the party, sources suggest the balance of opinion amongst the MSP group favours Westminster intervening, which at least means the move wouldn’t come with a high-profile split (although it would inevitably see Douglas Ross and his team accused of being London’s stooges by the usual suspects).
Ultimately, the decision probably has to come down to the Government’s final analysis on the likely impact of the reforms. The one course of action which ought to be off the table is allowing bad law to go through, with real detriment both to British laws and systems and to the people they serve, because blocking it would not be a good look.