Many will see Rishi Sunak’s decision to stop Scotland’s new gender recognition bill from becoming law as both bigoted and brutal. Bigoted because it halts a bill that makes it easier for a person to change gender. Brutal because it blocks a bill that has been agreed by Scotland’s devolved parliament.
Let’s be clear that there is some truth to this view. Some Conservatives would love a crusading unionist confrontation with Nicola Sturgeon’s nationalist government. They would especially welcome weaponising an issue such as the gender recognition bill, where public support for change is cool, and on which the Labour party is divided.
But the truth is also more dappled. The Scottish nationalists are crusaders too. Sturgeon has weaponised gender recognition as part of her showcasing of Scottish progressivism, causing unusual strains in the SNP along the way. She also needs a fight with the UK to distract attention from the current rethink on her independence referendum strategy. This is not the first time she has pushed the boundaries of the devolution settlement. She has done it on children’s rights and on a second independence referendum, too. It’s what she does.
Nevertheless, this is the first time any UK government has responded by using the legislative veto. That makes it a milestone moment. This inescapably lends plausibility to the interpretation that Sunak is embarked on a pre-general election culture war mobilisation.
Even here, though, there are other factors to consider. In the first place, while it is true that some on the English Tory right seem only too happy to pick fights with Sturgeon and the Scottish National party, this does not in fact appear to be Sunak’s own preference.
After Boris Johnson’s “muscular unionism”, and following Liz Truss’s attempt to blank Sturgeon altogether, Sunak’s approach to Scotland has been markedly less confrontational. He was quick to talk with Sturgeon when he first became prime minister. Last week, he met her for what was apparently a useful dinner in Inverness during a visit there.
Sunak’s approach has been mostly respectful, not the opposite. As in Northern Ireland, he has dialled down the rhetoric and emphasised the pragmatic. He has taken every opportunity to appear reasonable, and to offer cooperation not conflict. He also knows the Tory party’s electoral chances depend on competent economic management more than on constitutional stunts.
Alister Jack’s intervention on Monday is indeed the first time that any Scottish secretary has used his section 35 powers under the 1998 Scotland Act. But that’s not the same as saying that for 25 years, the Scottish and UK governments have always seen eye to eye about legislation until today. They haven’t. When issues have arisen, though, they were often resolved politically, at the intergovernmental level – notably over the first independence referendum in 2014.
Go back to the devolution debates in May 1998 and you find Donald Dewar, architect of devolution, spelling out the inherent problem: “We have a situation in which there is a division of responsibility as between reserved and devolved powers. If one takes a simplistic view, one might say that the writ of the Scottish parliament runs in devolved areas and that there will be reserved areas with which the Scottish parliament cannot meddle and where its writ does not run … However, the world of politics and of legislation is not as neatly divided as that – there are no exact demarcations or neat barriers that cannot be crossed – so legislation in a devolved area of responsibility will often have implications for reserved areas and reserved functions.”
As Dewar rightly said a quarter of a century ago, the worlds of politics and law are not neatly demarcated. The gender recognition bill has uncertain implications for the UK Equality Act 2010. Along with a December ruling by Scotland’s highest court, it appears to redefine and reshape some of the equal opportunities rights in the 2010 law, which applies across the whole UK. The terms of the two statutes therefore need to be reconciled.
This isn’t really a democratic outrage. It’s not primarily an anti-woke crusade either. It is an example of a standard balancing problem in federal or quasi-federal states such as ours. And the need to reconcile is what Jack invoked. His statement added that he would like to see a political solution, in an amended bill, which he said he was willing to negotiate. If Jack was telling the truth, and if the SNP was up for a compromise, it could happen. In a less polarised polity, it probably would. But it’s not a likely outcome here.
The issue is therefore likely to end eventually at the supreme court. That isn’t an ideal way of governing at what the House of Commons library publication on section 35 powers calls “the complex intersection between devolved and reserved matters”. But it is the right one. The failure of UK politics and governance, Scotland’s included, over this bill requires the court to do what the politicians should be doing. We are still paying the price for the pantomime politics of the Brexit era.