Stephen Tierney situates the dispute between the Scottish and UK governments over the Gender Recognition Reform Bill within the wider debate over the powers of the Scottish Parliament and explores the implications for devolution and the territorial constitution.
When the Gender Recognition Reform (Scotland) Bill was passed by the Scottish Parliament on 22 December 2022 not many expected that the controversies surrounding it would be a factor leading to the departure of First Minister Nicola Sturgeon.
The Bill of course faced widespread criticism for the impact it would potentially have upon the Equality Act 2010, causing the UK government to invoke section 35 of the Scotland Act 1998. This provision allowed the Secretary of State for Scotland to make an order blocking the bill from proceeding to Royal Assent. But how does this decision fit within a wider concern on the part of the UK government that the SNP-Green administration in Scotland is using its powers to push the boundaries of devolved competence?
In reacting to the invocation of the s.35 process the (now former) First Minister of Scotland focused less on the substance of the Bill and more on what she saw as a constitutional battleground, branding the use of s.35 a “full-frontal attack” on devolution, and one that put at risk the Scottish Parliament’s “ability to make its own decisions on devolved matters”. It is interesting that Sturgeon’s concern was as much with the constitutional background as the substantive purpose of the Bill, an emphasis that served to mask considerable disagreement, even within the SNP itself, as to the merits of the proposed legislation.
The attempt to move the debate so quickly from controversy over gender recognition to the seemingly safer ground of devolution situates the Bill within a broader debate over recent high profile draft legislation that is of questionable competence under the Scotland Act.
Two other draft bills have recently been the subject of important Supreme Court judgments. In the first case, Att. Gen. and Adv. Gen. Reference, the Supreme Court was asked to determine whether two bills fell within the powers of the Scottish Parliament. The first Bill purported to incorporate the United Nations Convention on the Rights of the Child (UNCRC) into Scots law; the second proposed to do the same for the European Charter of Local Self-Government (ECLSG).
The general competence of the Scottish Parliament to incorporate these treaties was not in question. Issues arose as to the means by which this was being done. The Court took the view that the Bill, in giving instructions to the courts in how to interpret UK legislation, went so far as to purport to modify the Scotland Act itself, which the Scottish Parliament is not empowered to do. The Supreme Court was, unusually, very critical of what it saw as a deliberate attempt by the Scottish government to go beyond the competence of the devolved institutions, asserting that there had been a decision to enact a provision whose plain meaning did not accurately represent the law, which was not what Parliament intended.
In the second case, Lord Advocate’s Reference 2022, the Scottish government in fact referred the legality of its own proposed legislation – the Scottish Independence Referendum Bill – to the Supreme Court. Once again, the Court found the Bill to be beyond the competence of the Scottish Parliament. Such a Bill would relate to matters reserved to Westminster – namely related to the Union and of Parliament – and so was unlawful.
To most commentators this decision was inevitable. A question therefore arises as to whether draft legislation, and/or the courts themselves, are being instrumentalised for political purposes. Is the Scottish government pushing the boundaries of its own competence with the intention, or at least with little regard to the risk, of provoking a legal dispute with the UK government?
Such strategies are of course far from unusual in federal systems, particularly those which host powerful separatist parties, but one characteristic of devolution since 1998 is that the courts have not in general been the site of many competence disputes between devolved legislatures and the central government. It seems that this is now changing, placing the courts, and Scottish government law officers and legal advisers, in a difficult position when constitutional disputes are provoked in pursuit of collateral political strategies.
We don’t know if a newly constituted Scottish government will seek to challenge the s.35 order relating to the Gender Recognition Reform (Scotland) Bill before the courts, which it is entitled to do, or introduce a modified bill to the Scottish Parliament. In any event, given that the Scottish Parliament does have competence to change UK law, including the Gender Recognition Act 2004, the task for a court in assessing the Bill in its current or modified state would be difficult, and potentially a source of great political delicacy. The Att. Gen. and Adv. Gen. Reference case exposes how, after a decade of more and more devolution, the line between reserved and devolved competence remains hazy and one that puts the courts in a potentially awkward position as they attempt to articulate where the division lies and why.
The current issue also demonstrates that while the UK Parliament retains the right to legislate on devolved matters, there is nothing within the devolution settlement that asserts a general supremacy, primacy or preemption power, particularly in relation to fundamental nationwide human rights law, that would affirm the over-riding authority of the central government on matters of national importance. Such powers are common in other federal systems, such as the USA, Germany and India, and are of course a feature of EU law. The development of such an approach in the UK would make it clear that, for example, a UK-wide application of the Equality Act should be protected, and that UK legislation on fundamental rights should be read to supersede and hence preempt any attempt to modify its application in any part of the United Kingdom.
The current debate exposes how the radical devolution of so many powers over the past two decades, without serious thought being given for the potentially deleterious impact of this process upon the maintenance of state policy on fundamental matters, was ill-advised and requires further correction by Parliament or the Supreme Court.
By Stephen Tierney, Professor of Constitutional Theory, Edinburgh Law School, and Legal Adviser, House of Lords Constitution Committee.
This post is written in a personal capacity.
His book The Federal Contract: A Constitutional Theory of Federalism was published by Oxford University Press in 2022. The issues discussed in this post have also been outlined here.