Legal elasticity of devolution may mean further court referrals

So far, so clear. But unpack that headline just a little, and you immediately run up against a series of legal ideas which demand a much more detailed explanation. What is a Section 35 order anyway? When can they be made? And in the wake of this judgment, are there any limits on when UK ministers can unilaterally veto Holyrood legislation – like this bill – that fall within the ­Scottish Parliament’s legislative competence?

We know the Scottish Government was seeking judicial review of Jack’s decision to block Holyrood’s Gender Recognition ­Reform. But I don’t think we can take it for granted folk really understand the judicial review process and its limits either.

Judges decide what to include in their judgments. But they can’t help how their conclusions are interpreted, and often ­misinterpreted, by the interested and often ­understandably partisan audience doing their best to in the expurgated version of the judgment with the help – or sometimes the hindrance – of talking heads and the wider media.

Even the language of the case can be a false friend. If the criticism of illegality, ­irrationality and unfairness sounds strong, you should remember that these are ­technical legal terms. They’re ­long-standing grounds of judicial review available at ­common law – not calculated insults ­designed to disregard the concerns of those with anxieties about Gender Recognition ­Reform.

Reading all 65 pages of the judgment, by any reckoning this decision represents a significant victory for the UK ­Government, adding another judicial decision to the ­increasingly long and dispiriting list of ­judicial decisions which adopt a narrow interpretation of the devolution ­settlement, minimising Holyrood’s powers and ­maximising the powers of UK ministers to intervene with comparatively little scrutiny if they choose to do so.

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The days when the Supreme Court held that devolution frameworks should be ­interpreted “generously and purposively” now feel a very long way off.

The Scottish Government now has three weeks to decide whether or not to appeal. Given the scale of the defeat in the Outer House – and the ­potential ­implications for future bills – it may now seem as though there is no option but to do so. If it does so, the case will be ­re-considered by at least three judges of the Inner House before potentially ­heading for the ­Supreme Court in London for final ­determination in several months’ time.

Every attempt by the Scottish Government to read safeguards for the ­devolution framework into the Scotland Act was knocked back by Lady Haldane, who has established a low legal ­threshold for UK ministers to use these “last-stop” veto powers, with minimal scope for ­judicial scrutiny of the process or the ­merits of what the Secretary of Scotland has ­decided.

Opinion is clearly divided on this ­policy issue. Those of you of a gender-critical bent who didn’t like the GRR may see this outcome as something to celebrate. Those who support the reform will rightly see this decision as another setback. But this judgment has wider resonances ­sounding far beyond current debates about the ­relationship between trans and women’s rights.

Reacting to the judgment on Friday, the First Minister suggested that it “­confirms beyond doubt that devolution is ­fundamentally flawed” and raised the spectre of other Holyrood legislation ­facing the same kind of pocket-veto from Whitehall in future. Just how credible is Humza Yousaf’s anxiety? Having used this power once, what are the chances it’s used again?

We’re now familiar with litigants ­arguing that the Scottish Government has exceeded its devolved powers in the courts. Since 2000, several have done so – successfully and unsuccessfully – from fox hunters and the Christian Institute to landowners and the Scottish Whisky ­Association.

The Scotland Act is built around a ­“reserved powers” model, which lists all the topics which MSPs can’t legislate on – from national security to foreign ­affairs. If a topic isn’t on the reserved list, Holyrood has full legislative competence to make and unmake any law about the ­issue. But the interactions can be complex. Criminal justice and health are devolved – but the Misuse of Drugs Act is reserved. How the law delivers gender recognition falls within devolved competence – but “equal opportunities” are reserved.

If the UK Government thinks Holyrood has exceeded its legislative ­competence, their law officers can send a bill off to the Supreme Court for a decision on whether or not MSPs have exceeded their powers. On top of this judicial check on MSPs’ powers, Section 35 gave the Secretary of State much more dramatic points to ­intervene in “specific cases” to order the ­Presiding Officer of the Scottish Parliament not to send a Bill for royal assent.

Section 35 was included in the ­Scotland Bill introduced by Donald Dewar back in 1997 – but contrary to suggestions this weekend that it is part of the sweet reason of devolution, its inclusion was controversial from the start. It shouldn’t be hard to understand why.

When the Labour government ­piloted devolution through Westminster in the 1990s, Tory MP Michael Ancram ­memorably described Section 35 as “the governor-general power”, ­expressing his surprise to find such a ­sweeping ­responsibility “in a bill ­otherwise ­designed to ­produce and deliver ­devolution for ­Scotland”, describing the power as an “enormous potential roadblock” which gave the Secretary of State for Scotland the effective power “to kill an Act of the Scottish Parliament stone dead” ­unilaterally with a strike of his pen.

Although an opponent of devolution, Ancram worried about almighty political rows arising if the power was used – and the limited frameworks in the Scotland Act to keep the Secretary of State ­honest. Then as now, there were also ironies in the extent of the power given to the ­Secretary of State for Scotland – a ­politician who was essentially relieved of all substantial duties by legislative ­devolution. As the Devizes MP pointed out 25 years ago, Alister Jack now has “almost no other role left on devolution” apart from this ­“power to bring the actions of the ­Scottish Parliament to a halt”.

Back in 1998, Donald Dewar tried to distinguish “governor-general” powers to veto legislation from the proposed terms of Section 35. While the former could ­theoretically be used and abused on a whim, Dewar argued “reasonable grounds to believe” Scottish legislation would have “an adverse effect on the ­operation of the law as it applies to ­reserved matters” represented a “sharp distinction”.

But how sharp Dewar’s distinction ­really is in practice depends on the ­legal standards courts would hold the ­Secretary of State to in terms of process, reasons and merits for his decision to veto a Holyrood bill.

In essence, Lady Haldane’s judgment suggests a decision to block legislation using Section 35 should only be subject to light-touch review by the courts, ignoring whether or not the UK Government followed its own protocols as non-justiciable, with no searching scrutiny of the decision-making process or the reasons given for the blocking order. In reaching these conclusions, Haldane’s judgment is entirely consistent with the weak and ­generally deferential standards of judicial review that courts in the UK have traditionally applied to executive action.

In Scotland, political literacy increasingly demands higher and higher levels of legal literacy – from our politicians, from the press, from us. Devolution has become immensely complicated. Brexit has destabilised the whole ­constitutional structure. Powers devolved, powers ­reserved, grey areas – there are still only limited sources in the public domain which make these tricky topics accessible.

From coordinating public health responses to drugs deaths to deposit return schemes – political debate in this country is being increasingly driven into the weeds of technical can-we-can’t-we debates about the limits of devolution. There’s a lack of maturity all round. Members of the ­opposition routinely slam the ­Scottish Government for testing the limits of ­devolution – while simultaneously ­demanding Scottish ministers adopt policies which fall into that debatable land separating as a matter of law what ­Holyrood can and can’t do. More mature legal and political systems are used to these debates, realising they are part of the potentially healthy friction. We’re yet to progress that far.

Folk who used to think it was a wise thing to say “devolution is a process not an event” may find themselves wishing devolution was a single bigger, brighter bang – leaving afterimages which are more sharply defined than our ­increasingly contested settlement.