The Trojan horse

Alister Jack, the Viceroy of the Province of North Britain, has compounded his contempt for the Scottish Parliament by refusing to appear before a Holyrood committee to explain his reasons for his unprecedented use of a section 35 order to veto a Holyrood bill relating to devolved matters which was passed by a large and cross-party majority of MSPs, on the supposed grounds, vigorously disputed by the Scottish Government, that the bill has a serious impact on the implementation of the UK Equalities Act.

“That’s not my job,” said Jack imperiously when asked why he would not attend the Holyrood committee on Monday. He then went even further by declining an invitation to appear on the BBC Scotland Sunday Show as the mild questioning he’d receive there would be too much of an insult to his aristocratic haughtiness. In Jack’s patrician view his job is to give orders to the Caledonian peasantry, while they beat grouse for him. Jack belonging to that rarified upper class who employ grice beaters. He is certain far too lofty to explain himself to them, and it is unthinkable that he should be held to account by them. As far as he is concerned that would be like the under-butler in Downton Abbey demanding to know why he has been ordered to polish the silverware and threatening to lay down the silver polish if a cogent explanation is not forthcoming. It’s not an explanation Jack thinks he should give, it’s a jolly good thrashing.

Meanwhile Kemi Badenoch, the UK Government Equalities Minister, has so far not deigned to reply to an invitation from the Scottish Parliament to discuss with Holyrood possible ways forward on the GRR Bill. This follows Alister Jack’s refusal to engage on the matter, saying it is her responsibility, not his. The truth is that the Conservatives despise devolution, despise the Scottish Parliament, despise the democratic choices of a Scottish electorate which consistently rejects them, and they are determined to undo what they regard as a huge mistake made by the Blair administration and to put devolution into reverse.

The power of the Scotland Secretary to veto any Holyrood legislation was always contained within the devolution settlement. It was put there by a Labour party in order to placate Labour MPs who feared that Holyrood might challenge the supremacy of Westminster. It was a ‘get back in your box’ clause, designed to assert the subordinate position of the Scottish Parliament and its inclusion in the Scotland Act was defended by Donald Dewar.

At the time it was inserted into the Scotland Act by Blair and his ministers, it was described by the Conservative Michael Ancram, then the Conservatives’ Constitutional Affairs spokesman, as ‘the Governor-General clause’ and ‘the veto clause.’ Ancram predicted that its use could lead to serious confrontation between Holyrood and Westminster. The option of the Section 35 order has never been used until now in the 35 year history of devolution. It was very much seen as the ‘nuclear option’, only to be employed in extremis and where all other interventions had failed. In a 2012 memorandum of understanding between the British Government of David Cameron and the devolved governments the option of a Section 35 order was referred to in the following terms :

“Although the UK Government is prepared to use these powers if necessary, it sees them very much as a matter of last resort. If formal intervention should become necessary, the UK Government will whenever practicable inform the devolved administration of its intentions in sufficient time to enable that administration to make any representations it wishes, or take any remedial action.” See https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/316157/MoU_between_the_UK_and_the_Devolved_Administrations.pdf

What is striking about Jack’s taboo shattering use of the Section 35 order to prevent the Scottish Gender Recognition Reform Bill from passing into law is that it was very far from the last resort. During the consultation period before the bill was voted on by MSPs, and in the weeks and months prior to that final vote and indeed during the three day long debate on the bill, the Conservative government had ample opportunity to inform the Scottish Parliament of its belief that the bill as it stood had a serious impact on the Equalities Act passed by Westminster and of its intention to challenge the bill. It did not do so. The British Government has made no representations to Holyrood on how the Scottish bill could be altered in order to ensure that it conforms with UK legislation.

Neither did the Conservative Government make use of the mechanisms it has previously employed to challenge Scottish legislation which it believes to impinge upon reserved matters such as it did when Holyrood passed a bill to incorporate the UN Convention on the Rights of the Child into Scottish law. Westminster exercised its right to refer the legislation to the UK Supreme Court, which ultimately found in favour of the UK Government.

The thing about political taboos is that they are only taboos as long as the taboo is respected. Until now the use of a Section 35 order to veto Holyrood legislation has been the great taboo in the devolution settlement. However the moment that the Conservatives break the taboo and get away with it, a Section 35 order becomes merely another instrument at the disposal of the Westminster Conservatives for whipping the Scottish Parliament into line and forcing even legislation on devolved matters to comply with the wishes of an English nationalist political party which has been unable to win at the ballot box in Scotland for generations. It negates the very reason and purpose of devolution.

Future battles between Holyrood and Westminster lie ahead. Having used this power once, the Conservatives will use it again and again in order to ensure that Holyrood complies with the Conservatives’ wanton destruction of those European rights and protections which still remain a part of law in the UK, even those relating to devolved matters. This year the Conservatives plan a bonfire of European legislation, much of which relates to devolved matters. Their use of this emotive and controversial issue is a Trojan horse, the Conservatives hope that the highly vocal opposition to the Gender Recognition Reform Bill will help them to get away with this blatant assault on the Scottish Parliament, thus normalising the use of the section 35 order power and facilitating its further use in the future, enabling them to ensure Scotland complies with their right wing English nationalist Brexit.

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