Gender bill veto is fraught with danger for Sunak

This week in his first keynote speech of the year, the PM pledged to deliver on the “people’s priorities” and stressed that his Government would “rebuild trust in politics through action or not at all”. We’ll see.

Yet for all the turmoil another political elephant might shortly present itself on Number 10’s famous doorstep to rankle Mr Sunak some more.

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The gender debate, which has created a mountain of controversy in Scotland, could well transition into yet another cross-border constitutional argument, which may do nothing to help the Conservatives’ chances of snatching victory from the jaws of defeat in 2024.

The legal limits of devolution have continually bedevilled Nicola Sturgeon and her SNP chums, who remind Scots of them at every opportunity. Indeed, some believe it is the FM’s deliberate strategy to constantly test the boundaries of the devolved settlement, so she can complain whenever her nose rubs up against them.

Before the Indyref2 legal battle, the Scottish Government lost two other cases. In 2021, the UK Supreme Court ruled Holyrood’s United Nations Convention on the Rights of the Child Bill and the European Charter of Local Self-Government Bill were beyond its powers.

To no one’s great surprise, John Swinney, the Deputy FM, insisted the rulings showed the devolution settlement did “not give Scotland the powers it needs”.

This strategy of endlessly highlighting how the dead hand of Westminster constrains Holyrood’s powers has helped Ms Sturgeon and her party accumulate political capital and win elections.

With constitutional law against it, the SNP now only has the political route to achieve its aim of Scotland breaking free of the centuries-old Union.

Remarkably, it may – unintentionally – soon get a helping hand from none other than the PM himself, who looks set to send the intense row over the Scottish Parliament’s Gender Recognition Reform Bill into a more politically dangerous dimension.

As we saw with the judges’ Indyref2 ruling, a nerve was struck as Scots bristled at being told what they could and couldn’t do. The same might be about to happen again. Each time it does, the SNP hope is that the intensity of public dismay will deepen.

Last month, shortly after MSPs comfortably passed the gender bill, Mr Sunak insisted it was “completely reasonable,” given the concerns about female safety, that his Government took a look at it. Whitehall fears it could undermine the 2010 UK Equality Act, which allows the barring of trans people from single-sex spaces.

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Alister Jack made clear he could, for the first time, invoke Section 35 of the 1998 Scotland Act, to block Holyrood from submitting the bill for Royal Assent; the Scottish Secretary has until the end of the month to do so.

Scottish Secretary Alister Jack has until the end of the month to block Holyrood submitting the bill for Royal Assent (Image: Newsquest)

Shona Robison, the Scottish Social Justice Secretary, vowed that Edinburgh would “vigorously” contest any such move to “undermine what is, after all, the democratic will of the Scottish Parliament”.

Indeed, the political problem for Mr Sunak gets worse because it’s not just the SNP kicking up a fuss but Labour and the Liberal Democrats too.

For Scottish Labour, Sarah Boyack said: “The Tory Government must respect devolution and the Union” while her colleague Monica Lennon snapped: “This toxic Tory UK Government will use any excuse to attack devolution.”

Alex Cole-Hamilton, for the Scottish LibDems, said he would be “dismayed” if the UK Government blocked the bill.

Mr Sunak, politically, appears to be in a lose-lose situation because if he were to allow Holyrood’s legislation to pass, then the whole gender debate controversy would quickly cascade across the Border.

However, such is its highly contentious nature that while Ms Sturgeon might gleefully welcome the mounting political pressure on the embattled PM, she may not avoid some herself given the rift within her own party’s ranks on the subject.

Perhaps widening the rift between the SNP’s Edinburgh and London contingents, one of its longest-serving MPs, Angus Brendan MacNeil, did little to help ease his colleague’s position this week by calling for the Scottish Government’s gender reforms to be “scrapped,” echoing concerns they could enable predatory men to threaten women’s safety.

Nor is Sir Keir Starmer immune from some internal wrangling on the subject.

One Labour MP observed: “On so many levels this bill is flawed but the intended and unintended consequences it will have on everyone, including our trans community, is going to be a nightmare to resolve across the UK.”

Yet Labour peer Baroness Kennedy, a human rights barrister, warned: “The idea the Scottish Parliament should be overridden by Westminster because the Conservative Party don’t like this would really be very disruptive to the unity of the UK and would be absolute folly.”

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While it may be the vast majority of people will not consider the gender row a make-or-break issue when casting their votes, it could, for some, be a reason not to vote for a particular party. It certainly won’t do anything to lower the temperature of the election campaign when it begins.

As things stand, it seems inevitable the gender reform issue will end up, yes, at the Supreme Court with more cross-border friction as once again Westminster’s legal supremacy is reinforced, triggering nationalist ire that Scottish democracy is being wilfully ignored and devolution disgracefully undermined.

In so many ways, given his bulging Downing Street in-tray, Mr Sunak is in the most perilous political waters. The last thing he needs is to start another fire on board ship. If he does veto the Holyrood gender bill, then he won’t be dampening down the constitutional blaze but making it a whole lot worse. And heaven knows where that will lead us.