ALISTER Jack has taken the unprecedented decision to use his power as Scottish Secretary to unilaterally block a bill passed by the Scottish Parliament.
The top Tory has used powers granted to him by Section 35 of the Scotland Act to block the Gender Reform Recognition Bill from becoming law.
The move is likely to face a legal challenge from the Scottish Government, which has maintained that the bill is within competence and will not negatively impact on UK-wide equality law.
But while Jack’s use of Section 35 is unprecedented, the UK Government intervening to block Scottish legislation is not.
When has the UK Government moved to block Scottish laws?
Children’s rights
In March 2021, the Scottish Parliament passed the United Nations Convention on the Rights of the Child (UNCRC) (Incorporation) (Scotland) Bill. The vote was unanimous.
Experts said the bill was set to “transform the lives of children and their families across Scotland” by ensuring the ability to seek redress where the rights of children are breached.
However, the UK Government took the bill to the Supreme Court on the basis that it would impact on Westminster’s ability to legislate in devolved areas. The court agreed and struck the bill down.
Nicola Sturgeon had called the move to block the bill “morally repugnant”.
In summary: Westminster will be able to pass legislation which violates children's rights in devolved areas without these being challengeable in the courts, on the basis that the UK parliament must have "unqualified legislative power" to make laws, even in clearly devolved areas.
— PeatWorrier (@PeatWorrier) October 6, 2021
Europe and local government
At the same time as the children’s rights bill, Tory ministers also challenged the European Charter of Local Self-Government Bill, suggesting it too went beyond Holyrood’s competence.
This bill, introduced by Andy Wightman during his time as an MSP, aimed to strengthen the status and standing of local government in Scotland.
It also passed unanimously through the Scottish Parliament – but was struck down by the Supreme Court after being challenged by the UK Government.
Despite standing against attempts to incorporate them into domestic law, the UK is a signatory to both of the above international treaties.
Brexit
In 2018, in the lead up to Brexit, the Scottish Parliament passed the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill. The Tories were the only party not to back it.
The bill sought to guarantee that Scottish law continued to function without any interruptions or gaps that may appear due to the loss of EU law with Brexit.
Backed by the Welsh and Northern Irish legislatures, the Scottish Government defended its right to pass the bill after being taken to the Supreme Court by the then Scottish Secretary, Tory MP David Mundell.
The court ruled that while the entire bill was not outside of Holyrood’s competence, aspects of it were.
A second independence referendum
For months in 2022 the headlines were dominated by the Supreme Court’s indyref2 case.
It was technically the Scottish Government’s top law officer, Lord Advocate Dorothy Bain, who referred the SNP/Green attempt to legislate to hold indyref2 to the UK’s top judges.
However, the UK Government argued against its legality, and no doubt would have brought their own challenge had Bain not made the referral, which was made using powers granted to the Lord Advocate under the Scotland Act paragraph 34 of Schedule 6.
The Supreme Court ultimately accepted the Tories’ arguments that Scotland could not hold a vote on its constitutional future without Westminster consent.
If the UK Government has blocked Scottish laws before, why is Alister Jack’s use of Section 35 unprecedented?
The Westminster government has, for the first time, turned to Section 35 of the Scotland Act in order to block a bill passed by Holyrood.
This requires no decision from the courts – as has been the case in the past. Instead, the decision rests entirely with the Scottish Secretary so long as the bill in question "make[s] modifications of the law as it applies to reserved matters and which the Secretary of State has reasonable grounds to believe would have an adverse effect on the operation of the law as it applies to reserved matters".
The Tories' move to block the Gender Recognition Reform Bill has been called an attack on devolution because the bill appears to be completely within Holyrood’s competence. Even Unionist politicians have noticed the significant difference between Section 35 and a court challenge.
Labour’s Paul Sweeney wrote on Twitter: “If the UK Government thought there was a legal basis to challenge the Gender Recognition Bill, they would have done so in the Supreme Court.
“Using Section 35 is a tacit admission that there is no legal basis to challenge it. The reality is it’s a cynical attack on devolution.”
