THE Scottish Government's legal challenge of the UK Government's unprecedented use of a Section 35 Order to block the Gender Recognition Reform Bill from passing into law has begun in the Court of Session in Edinburgh.

The Scottish Parliament passed the bill with cross party support on December 22 2022.

The bill was passed by a majority of 86 to 39, with MSPs from all parties voting in favour.

The bill related to the process by which transgender people can obtain legal recognition of their change of gender and as such was deemed to relate to a devolved matter within the competence of the Scottish Parliament.

However, less than a month after the bill passed, Scotland Secretary Alister Jack announced that he intended to deploy a hitherto unused measure in the Scotland Act: a so-called Section 35 order, which allowed him to unilaterally block the bill from receiving Royal Assent, thus preventing it from passing into law.

Jack claimed that the bill conflicted with the UK Equalities Act, but he declined to specify his detailed objections to the Scottish bill and refused to cooperate with the Scottish Government on how the bill could be altered in order to meet his objections.

READ MORE: Lord Advocate: Alister Jack use of Section 35 order not 'rational'

The court case is expected to last three days and may well end up in the UK Supreme Court, which has a record of finding in favour of the Westminster Government.

Legal arguments aside this case has important political ramifications.

Many feel that Jack and the Conservatives have cynically been using transgender rights as a wedge issue in order to test the extent to which a Westminster government can get away with overruling the Scottish Parliament if it passes legislation it does not like. Even if that legislation relates to a devolved matter within the competence of the Scottish Parliament.

This is no longer just about the process by which trans people obtain legal recognition for their gender identity; it has become a much wider issue which goes to the very heart of the devolution settlement itself.

The entire point of devolution was to give Scotland the potential to do things differently from a Westminster government which Scotland did not vote for.

However, if the Westminster government feels that it can unilaterally block all and any Scottish legislation which is not to its liking then devolution effectively becomes a dead letter.

READ MORE: Research finds Westminster 'still adjusting' to devolution

Scotland would only be able to pass legislation which is met with the consent of that Westminster government, rendering devolution meaningless.

The Rubicon was crossed when Jack deployed the Section 35 Order against the Gender Recognition Reform Bill. Should that decision be allowed to stand without a challenge, Westminster would be emboldened to make greater use of Section 35 Orders in future.

We have already seen how this Conservative government has normalised the passing of legislation which impinges upon devolved matters. The Conservatives would not hesitate to do the same with the use of Section 35 Orders – giving themselves a tool which allows them to neuter the Scottish Parliament and a devolution settlement to which they have always been hostile.

Irrespective of what you think about the Gender Recognition Reform Bill, it is a piece of Scottish legislation passed by a cross party majority of MSPs after a long period of scrutiny and consultation.

If, as critics argue, the legislation is flawed, the only democratic solution to that lies within Scotland and Scottish legislative and legal processes. Not for the bill to be crossed out by fiat by a politician whose party has not won a democratic election in Scotland since the 1950s. That is not just undemocratic, it is the very definition of authoritarian.

Westminster ‘still adjusting’ to devolution, report finds

On a related issue, a new report from the Institute for Government think tank has found the 25 years on from the establishment of the devolution settlement, Westminster has still not adjusted to the realities of devolution.

 That is very clear from the recent behaviour of the Conservative government, not the least of which is Alister Jack's use of a Section 35 Order to block Scottish legislation he did not like from passing into law.

The Institute for Government think tank's report comes after the organisation undertook an 18-month review of the constitution, during which it took advice from former supreme court judge Baroness Hale as well as former UK Government ministers Robert Buckland and David Lidington.

The report concluded: "25 years on [from devolution] Westminster and Whitehall are still adjusting to the realities of devolution to Scotland, Wales and Northern Ireland."

The report added: "The UK is facing a crisis in trust in politics and political institutions. Recent political instability has undermined the UK's reputation as a stable democracy, damaging its international reputation and, as a consequence, its economic prospects."

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The devolution settlement was instituted following a decades long campaign in Scotland throughout the long period of Westminster Conservative governments in the 1980s and 1990s. It was a time when Scotland was exposed to the full force of unpopular Conservative policies which it had not voted for. Devolution was supposed to offer Scotland a measure of protection.

During the first decade of devolution, with a Labour Government in Westminster and a Labour Lib Dem administration at Holyrood, the devolution settlement was not seriously tested. Those tests only really began when the SNP took control at Holyrood and the Conservatives took charge at Westminster.

Since then it has become increasingly clear that devolution has failed to deliver on its original promise. It cannot effectively protect Scotland from Conservative governments Scotland did not vote for.

Indeed, in many ways it has become a mechanism for transferring blame for Westminster spending cuts and economic decisions on to Holyrood.