Starry-eyed view of devolution lies in tatters after gender ruling

That’s the core of Lady Haldane’s dismissal of the Scottish Government’s case, brought against the UK Government for their use of a constitutional blocking order (Section 35), aiming to stop Holyrood’s Gender Recognition Reform Bill becoming law.

In her 65-page response, the esteemed Court of Session judge thwacked away a good handful of the Scottish Government laywers’ arguments.

The biggest cloud of doubt they sought to raise was that Alistair Jack’s use of Section 35 in the laws of devolution was motivated by sheer policy difference. Such an ideological motive subverts the very autonomy and “distinctiveness” that Scottish devolution was supposed to enable.

Nope, said Lady Haldane.

“Section 35 does not, in and of itself, impact on the separation of powers or other fundamental constitutional principle. Rather it is itself part of the constitutional framework”.

It’s worth dwelling on this sentence. Here’s what the UK Government hides behind. The Gender Recognition Reform (Scotland) Bill proposes reducing the transgendering process to three months from five years, and allows for sexual self-identification.

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This clashes outright with laws made at Westminster (equalities being a reserved, not devolved, power). This, claims the Tories’ lawyers, would compel changes in the legal definitions of sexual identity at Westminster.

So, Lady Haldane judgement is that Westminster’s writ must finally hold sway. The “constitutional framework” – as the Supreme Court thunkingly demonstrated over the right to hold an indyref in Scotland – means that the UK has an ultimate veto power on anything the Scottish Parliament proposes.

It’s immediately worth noticing that this Unionist swagger about jurisdiction of powers doesn’t just inflict itself on the devolved nations. Only a few days ago, Kemi Badenoch, Westminster’s Women and Equalities Minister, announced her government would no longer accept gender recognition certificates from countries allowing self-identification by transgender people.

Their bruiser behaviour extends overseas, too.

But more generally, what falls to the floor like a tattered veil is a certain starry-eyed model of UK devolution. One where the devolved nations are seen, in some sense, to “lead the way”.

Sometimes in this idealism, the US Supreme Court judge Louis Brandeis – and his dwelling on how federalism worked in his country – was cited. For Brandeis, America’s states were “laboratories for democracy”. These were fruitfully differing places, in which policies might be prototyped, innovated and discovered, and then potentially be scaled to the federal/national level.

Gender reform has ploughed new ground for Scotland's devolution settlement

Instead, Lady Haldane’s ruling reinforces the big turn against this model that Brexit brought. The policy differences that devolution brings are now, to rephrase Brandeis, “an impediment to semi-autocracy” – or at least a dream of British autarchy that now drives both major Ukanian political parties.

What a wriggling fly in the ointment any such proposals from the Scottish or Welsh parliaments are! (And will be, I predict, through any Keir Starmer government.)

Hovering over all of this is the playwright Peter Arnott’s axiom about British-state attitudes to either outcome of the 2014 referendum: “So fuck off. Or shut up.” Having made our choice, we seem to be in a deepening trench of “shut up”.

I am even tempted, dredging from very old memories, to recall the distinction between SNP grandees Jim Sillars and Alex Salmond on devolution. Salmond supported it, as a means of gradually building self-confidence for independence. Sillars opposed it as “power retained” by the British state, a distraction from campaigns for full national sovereignty.

And the cosmic joke today? Both are still alive and kicking, one having blown his shot at attaining a legally-ensured independence, the other in increasingly eccentric orbits around the idea. And as far as I can read, both of them (“Self-indulgent nonsense” says Salmond: “Sturgeon’s mess” says Sillars) are implacably opposed to the very idea of a gender recognition bill in the first place.

If it were only as simple a matter of either opposing the diminution of devolutionary power, or using its confusions and fragility to make a clear argument for nation-statehood.

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It’s interesting to read constitutional scholars like Edinburgh Law School’s Stephen Tierney. He looks at the gender reform bill stramash as being caused by the inherent messiness of devolution, with various political forces incessantly grabbing and scrambling for increments of power.

Tierney seems a sincere federalist, and wants us to attend to the designs of German, American or Indian constitutions. When it comes to policy clashes, these systems make clear the “paramountcy” of the centre vis-a-vis the state or region,

No doubt such federalist designs are what Gordon Brown furrows his brow at, during long nights in his study. And no doubt, if we ever got to the status of being a European “member state”, the “paramountcy” of EU federal law would impress itself in various challenging ways.

I have my doubts about taking this case to other courts, including the UK Supreme Court (who have shown their form on protecting devolution).

Would it not be better to spend energies making clear that the Gender Recognition Reform Bill was a classic example of Scotland’s representative democracy being short-circuited by Westminster? And that the point of independence is that when a cross-party political majority votes clearly for a policy, that policy will be hugely more likely to be enacted?

But there’s the deepest trouble in this situation. Arguments about Scottish sovereignty can’t be neatly unwoven from substantive arguments about what kind of country we want to be.

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I’m venerable enough to remember murmurings in the pre-devolutionary Scottish left. What powers should be retained at Westminster, to ward against the potential illiberalism of Scottish society? Thus the oddity of “equal opportunties” as a reserved power. But you’d also have to admit: some irony.

The essential conversation that needs to happen in Scottish life should almost certainly not be conducted by means of the mesmerising coils of legal language.

Those of us who want a Scotland that steers by terms like progressive, liberal, left-green, and who see gender recognition measures as a few clicks forward in the ratchet of human liberation, are not having it our own way.

I hear old feminist friends, even beloveds, express a fear about enduring male harmfulness – in many contexts, including this bill – that I know has undeniable provenance. However, I also know that we are living in an era of general fluidity, shape-shifting and flexibility, in which the forms whereby people love each other, and love themselves, are thrillingly diverse.

The dream of Scottish independence for me was always as a crucible of democratic modernity. The standard claim that “never was a country better resourced to be independent” was never just about fossil reserves and natural forces, industrial clusters and commercial sectors. It was also about ethics, culture, ingenuity. An ever-sophisticating model of community, inclusion and empowerment.

When do we get back to those kinds of discussions about Scotland’s future? How do we summon up a loving patience within us, across all sides of debates like these? What are the institutions and practices that might facilitate that best? How bold, unprecedented, maybe even excessive-seeming, might these initiatives have to be?

When judging the actions of politicians in this situation, says Lady Haldane at one point in her pronouncement, “the touchstone remains that of rationality”. A sweeter reason is certainly what we need most at the moment. Lawyers gonna law. Citizens should turn around, and face each other.