Sunday National, Herald on Sunday, 15th January 2023.
I thought I detected a flicker of animosity from the outset. Calling me “Mister Tickle” was a bit of a tell. The setting? Holyrood, in 2015. The subject? The legislative ping-pong over the new Scotland Bill.
The bill was introduced after the independence referendum to try to make good on the promises of further devolution in the closing weeks of the campaign.
I was giving evidence on the proposals with academic colleagues. I suggested that a lack of clarity in the devolution framework could give rise to legal conflict between the UK and devolved governments. I thought this was a modest enough claim. One MSP disagreed. Tavish Scott peered at me down his long nose with a Paxmanesque air of incredulity and asked: “Governments do not go into court against each other, do they?”
He thought, I think, that I was making mischief, exaggerating the risk of the UK and devolved governments seriously falling out. Neither of us could have foreseen in 2015 just how out of whack this assessment of the potential for legal conflict was just a few years later.
We knew that pressure groups and campaigners could waylay Scottish legislation in the courts. Holyrood bills can be attacked on the basis they violate fundamental rights, EU law or “relate to reserved matters”. The stables of the Faculty of Advocates are full of creative litigators who are more than prepared to get an arguable legal case up on its feet.
Since 1998, Holyrood legislation had been subject to a slew of different legal challenges. Fox-hunters claimed that the European Convention on Human Rights protected their right to tear apart little furry animals.
Imperial Tobacco argued that Holyrood wasn’t entitled to ban cigarette vending machines to keep nicotine out of the hands of little puffers who might be inclined to spend their pocket money on fags.
Landowners challenged tenants’ rights, insurers said they shouldn’t have to pay out to men and women killed by asbestos, and Scotch whisky spent hundreds of thousands of pounds trying and failing to persuade the courts that minimum alcohol pricing breached EU law.
There’s a lazy meme which regularly pops up in half-informed commentary about Holyrood, which complains that bills are routinely “badly drafted” – implying this is the reason why legal challenges arise. Some proposals certainly have been. But, more often than not, this criticism is just an arch way of saying “I don’t agree with this bill”.
Legal challenges are routine because the Scotland Act makes them possible, and if you have deep pockets or a friendly crowdfund, you have every incentive to go to law in Scotland if your political arguments fail to win favour with MSPs.
It isn’t the excellence of Westminster legislation which explains why you don’t hear about UK legislation being snarled up in the courts in the same way.
However misconceived or opaque acts of Parliament might be, parliamentary sovereignty trumps everything else, protecting even the most rotten legal rules from the scrutiny Holyrood’s work is routinely exposed to.
The possibility for legal conflict between the governments of the UK was always latent – written into the Scotland Act in 1998 – but it took Brexit, an increasingly assertive Tory party in London, a nationalist administration in Edinburgh, and a more thrawn Labour leadership in Cardiff to expose its full potential. This week, there are signs these conflicts will intensify.
Almost as soon as the new Scotland Act came into force, the ructions started. Intergovernmental tensions transforming into legal disputes is now standard operating procedure.
Now, the Westminster Parliament normally legislates about devolved matters without Holyrood’s consent and the Sewel convention – superficially ”enshrined” in the Scotland Act – has been effectively reversed. This week, Rishi Sunak’s Government faces a hugely consequential choice to escalate or de-escalate this tendency towards legal conflict.
As soon as Holyrood passed the Gender Recognition Reform Bill in December, the Secretary of State for Scotland raised the prospect of a legal challenge. Since then, the Scottish edition of The Times has been the Scotland Office’s preferred medium for leaks and gossip about what – if anything – it intends to do.
The Dover House scuttlebutt has not been consistent. Some mornings, the UK Government’s plan is to change the law to refuse to recognise Scottish gender recognition certificates south of the Border. The latest headlines claim Sunak’s Government is “poised to block” the Scottish Bill receiving royal assent.
As it stands, the UK Government has three potential options. Option one is: do nothing. The Presiding Officer will post off the Gender Recognition Reform Bill to the King for his signature and it will become an Act. And then? Given recent experience of crowdfunded gender critical litigation it seems likely that one or more campaign groups will sue.
The UK Government’s second option is to use its Scotland Act powers to refer the bill directly to the Supreme Court – and try to persuade the justices that one or more elements of the proposal “relate to reserved matters”, and so fall outside Holyrood’s legislative competence.
They did this in 2018 with Holyrood’s Brexit legislation, and again in 2021 with the UN Convention on the Rights of the Child Bill, which is still gathering dust in Edinburgh as Scottish ministers try to work out how to fix the legislative wreck the Supreme Court’s decision left behind.
From a political viewpoint, this approach has the advantage of outsourcing the blame. If the Gender Recognition ReformBill is stymied, then it is judges applying the law of the land rather than a raw act of will by the central government, vetoing a devolved bill about devolved matters passed by a clear majority of MSPs because it doesn’t agree with the underlying policy.
There is a significant problem with this strategy, however. On the face of it, the bill doesn’t relate to reserved matters. It’s true that “equal opportunities” – broadly codified in the Equality Act 2010 – is reserved to Westminster.
But the Scotland Act defines equal opportunities as “the prevention, elimination or regulation of discrimination” based on a range of protected characteristics. GRA reform doesn’t seem to fall within this reservation. If the UK Government pursues this route, there’s every chance the justices would side with Holyrood and uphold the bill. Delay is inevitable, but not victory.
Which is why Section 35 of the Scotland Act has been receiving such attention. Headlined unobtrusively as the “power to intervene in certain cases”, Section 35 gives the UK Secretary of State limited, residual powers to order the Presiding Officer not to submit a Scottish bill for royal assent. An executive order is made in London – and even a devolved bill dealing with devolved powers is stuck in legal limbo, unable to become an act, unable to come into force. In 25 years of devolution, Section 35 has never been used.
BUT there are important limits on this power. The Secretary of State can only use Section 35 if one of two conditions apply. First, they can exercise a veto if there are “reasonable grounds to believe” a bill “would be incompatible with the UK’s international obligations, or the ”interests of defence or national security”. None of these concerns apply here.
The second legal basis for using the power is if Holyrood passes a bill which makes “modifications of the law as it applies to reserved matters” 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”. In this context, the hook seems likely to be the Equality Act 2010.
But this, too, will not be the end of the legal story – as the Secretary of State’s veto is itself subject to judicial review.
Using Section 35 to block this bill would be unprecedented, dramatic, and further inflame the tensions which continue to tug at Britain’s territorial constitution – but the UK Government has talked itself into a position where some kind of intervention seems inevitable. Under the Scotland Act, Alister Jack and his lawyers have just four weeks from the passage of a bill to stage any one of these interventions. The clock is now ticking. Whatever happens, the courtroom calls.
Andrew Tickell 