Stakes couldn't be higher as Sunak gambles with the Union

As predicted, the “toxic” atmosphere surrounding the gender reform row this week descended with an almighty bang on Westminster.

In heated exchanges MPs used expressions like “predators abusing children” and “dog-whistling transphobia”, prompting Lindsay Hoyle, the Commons Speaker, to urge MPs to “think long and hard” about their language.

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During an emergency debate following Alister Jack’s veto statement, it was intriguing to hear from the SNP benches the charge that the Tories were using “grievance politics” to further their anti-Holyrood cause. I could swear I heard an explosion going off inside Douglas Ross’s head. Grievance politics is, of course, the foundation stone of the nationalists’ strategy; it couldn’t be otherwise.

Last year when Nicola Sturgeon referred the Indyref2 matter to the UK Supreme Court, she was accused of disingenuously using the legal process to make political capital given the 1998 Scotland Act is crystal clear that Holyrood can’t hold a vote on Scotland’s future without Westminster’s say-so. But this time round, the shoe is on the other foot.

For many months, the PM and his Conservative chums have witnessed the intense debate over the Scottish Parliament’s gender reform plans and yet it was only three days before the vote when Kemi Badenoch, the UK Government’s Equalities Minister, met Shona Robison, who insisted at no point while MSPs were considering the Holyrood bill did UK ministers demand changes to it.

Even Larry, the Downing Street cat, would have known that if the PM blocked the legislation, constitutional hell would break loose.

The Scottish Government’s Social Justice Secretary, Shona Robison, questioned why the UK Government didn’t raise Section 33 of the Scotland Act at the Supreme Court to question the legality of Holyrood’s bill; something it did twice, successfully, with Scottish parliamentary bills in 2021.

On a process level, Whitehall presumably didn’t use Section 33 because it doesn’t dispute MSPs had the competence to pass the gender reform legislation, just that it believes the bill seriously affects implementation of the UK Equalities Act.

Yet now, having for the first time used the “nuclear option” of Section 35 of the Scotland Act to block the Holyrood bill, months of legal wrangling will ensue; first in Edinburgh, then in London. Therefore, an initial reference to the Supreme Court, by whatever means, would have saved a lot of time and energy.

Naturally, opinion is deeply split over Whitehall’s use of Section 35. Labour peer Lord Falconer said it was unjustified, describing the move as a “nuclear weapon used in a minor skirmish,” while ex-Supreme Court justice Lord Hope disagreed with his fellow Scot, saying the reasons for blocking the Scottish bill were "devastating".

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The retired judge argued Ms Sturgeon was risking wasting time and money by going to court and suggested the two governments negotiate a way forward in a “much calmer atmosphere”. Good luck with that one.

The Scottish Secretary has called on ministers in Edinburgh to produce new amendments to the bill while Ms Robison yesterday urged the Secretary of State to revoke the Section 35 order. Good luck with those too.

While the SNP and the Tories snap at each other, it was interesting to see how senior Labour figures sought to exude an air of calm even-handedness.

After the Labour MSP Monica Lennon upbraided Sir Keir Starmer for expressing his opposition to 16-year-old Scots being able to self-identify their gender under the Scottish bill – she branded his concerns “unhelpful and ill-informed” – Ian Murray popped up to insist calmly, to the disbelief of his interviewer, there was “nothing between the two parts of the Labour Party on this”.

Scottish Labour MSP Monica Lennon said Keir Starmer's opposition to the gender bill was 'unhelpful and ill-informed' (Image: Newsquest)

Then, the Shadow Scottish Secretary’s colleague, Anas Sarwar, adopted a Zen-like posture, branding the Section 35 route the “wrong approach” and suggesting those nice people at the Equalities and Human Rights Commission should be called in to arbitrate.

One astounding comradely contribution came from frontbencher Lucy Powell, who, noting how there were a “range of different opinions across Labour,” said: “I have my own views, which I'm going to keep to myself... I'm not going to answer because I don't want to reduce this argument to that.” Surely a first in the world of British politics.

Of course, it’s clear that having been frozen out of Scotland’s constitutional ding-dong for so long, Labour, in its bid for power, is seeking to rise above the fray and present itself as the voice of sweet reason. Time will tell if voters buy it.

While the UK and Scottish governments might profess confidence they will win the judges’ verdict, neither can be sure. The final ruling will rest on whether Mr Jack had “reasonable grounds” to believe the Holyrood bill would have an “adverse effect on the operation of the law as it applies to reserved matters”.

If Mr Sunak were to succeed, then he and his Conservative colleagues would accuse the Scottish Government of shamefully using a deeply sensitive issue to further their cause of independence.

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But if Ms Sturgeon were to secure the judgement, then she would feel vindicated in her claim that the UK Government had intentionally picked a fight to undermine Scotland’s democracy.

It needs to be pointed out, however, that after the First Minister lost the Supreme Court’s ruling on Indyref2, there was a view that many Scots felt aggrieved about judges in London telling them what they could and couldn’t do. The same could happen again, which in one sense could turn a legal defeat into a political victory for the SNP.

In which case, Mr Sunak’s gamble could result in a heavy price. The political and electoral stakes, it seems, couldn’t be higher.