LAST month, the Gender Recognition Bill was approved in the Scottish Parliament with cross party support, despite a concerted attempt by the Conservatives to disrupt parliamentary proceedings. The bill's passage through Holyrood was ill-tempered, as you might expect of an issue which is at the very centre of the modern culture wars.
However the bill, which sought to simplify the attainment of legal recognition for the gender transition process of transgender people was passed by the Scottish Parliament with the support of two thirds of MSPs. A majority of SNP, Green, Labour, and Lib Dem MSPs approved the passage of the bill, and even three Conservative MSPs broke with their colleagues to vote in favour of the bill.
Yet now the Conservative Government in Westminster is taking the unprecedented step of using a Section 35 order to prevent the bill from being give Royal Assent and passing into law. This represents the most overt Conservative assault to date on the devolution settlement and as such an outrageous attack on the Scottish Parliament and the principles of devolution.
This is categorically not about what you consider to be the merits or demerits of the Gender Recognition Bill. Unlike the proposal to hold another independence referendum, the Gender Recognition Bill unarguably falls within the powers of the Scottish Parliament as laid out in the Scotland Act, there is no dispute about that point.
What is happening here is that a Conservative Government in Westminster is using its power to block the implementation of a devolved law which it disagrees with. This runs directly counter to the very foundational principles of the devolution settlement, which was to give Scotland the power to do things differently from the British Government.
Yet now it seems that Downing Street will only allow Holyrood to pass legislation on devolved issues if the British Prime Minister agrees to that legislation. So, in this supposedly voluntary union not only does an unelected Prime Minister from a party that Scotland didn't vote for have a veto on whether Scotland can ask itself about its future, the Prime Minister also has a veto on legislation which is clearly and unequivocally about devolved matters and which is undoubtedly within the legal competence of Holyrood as set out by the Scotland Act. This neuters the very point and purpose of the Scottish Parliament itself.
A Section 35 Order is a provision of the Scotland Act which permits the Secretary of State for Scotland to "exercise a policy control or veto over what legislation is enacted by the Scottish Parliament, even though it is within its competence." This power comes with two provisos.
Firstly, it may only be exercised if the Secretary of State has "reasonable grounds to believe the legislation would be incompatible with any international obligations or the interests of defence or nationa security," which does not apply in this case.
Or secondly if the Secretary of State has "reasonable grounds to believe" that the legislation "would have an adverse effect on the operation of the law as it applies to reserved matters." The reserved matter here would be the operation of the Equality Act.
However, the First Minister Nicola Sturgeon has already said that it would not interfere with this UK-wide legislation.
She said: “The GRA doesn't affect the operation of the Equality Act, and it was passed by an overwhelming majority of the Scottish Parliament after very lengthy and very intense scrutiny by MSPs of all parties represented in the parliament."
A Section 35 order has never before been used by the Westminster Government to block Scottish legislation but now a precedent has been set and a Conservative Government in Westminster will feel empowered to use it again in future to block legislation from the Scottish Parliament which it dislikes, even when that legislation is unarguably related to a devolved matter and there is no dispute that it is within the legal competence of Holyrood.
This really could be the end of meaningful devolution.
