Alister Jack has spent the past week or so refusing to explain his reasons for blowing up the devolution settlement by making unprecedented use of a section 35 order to veto the Gender Recognition Reform Bill passed by the Scottish Parliament after extensive debate and consultation and with cross-party support. As Shona Robison the Scottish Cabinet Secretary for Social Justice, Housing and Local Government pointed out in a Letter to the Scotland Secretary : “Using the Section 35 power to impose a veto on the Bill when already passed by the Scottish Parliament, after ignoring every opportunity to raise these issues or seek changes to the Bill over several years, demonstrates complete disregard for devolution, and flies in the face of the 2013 Memorandum of Understanding between our Governments which states that these powers should be seen ‘very much as a matter of last resort’.”
Jack insists that the person responsible for explaining how the bill supposedly impinges upon the operation of the UK Equalities Act should be the UK (in)equalities Minister Kemi Badenoch who is so far out on the right wing of the Conservative party that she makes Suella Braverman seem like one of those student activists who glues themselves to the carriageway of the M25 in order to protest about how greedy and irresponsible capitalism is destroying the planet.
Badenoch, whose concept of equality appears to begin and end with the notion that corporations should be free to exploit everyone equally, is the equalities minister who mocked LGBT rights, questioned equal marriage, and misgendered trans people in a bizarre rant recorded in 2018, a year after she was elected as an MP. Despite this, or more likely because of it, the Tories saw fit to give her a seat in the cabinet as the Equalities Minister. Of course the real reason Badenoch has been given a position of power and responsibility is because Sunak needed to shore up his support on the frothing extreme right of his increasingly fascistoid party. However there is one way in which Badenoch is entirely mainstream within the Conservative party, she doesn’t believe that the British Government needs to be held accountable for , or even explain its actions any more than Sunak or Jack do.
Entirely predictably, Badenoch has joined Jack in declining an invitation to appear before the Holyrood Human Rights and Civil Justice Committee in order to explain why the British Government believes that the Scottish GRR bill is such an egregious breach of UK Equalities legislation that it has simply vetoed it without bothering to refer it to the UK Supreme Court for a definitive legal ruling on the matter, which assuming that the British Government’s view was upheld would at least give legislators some clarity on which aspects of the bill need to be altered in order to ensure that the bill does not conflict with UK legislation and could thus pass into law.
We are now in the same impossible place with the Gender Recognition Reform bill as we already were with the democratic route to another independence referendum. The Tories insist that this remains a voluntary union but refuse to say what the democratic route to another referendum is, equally the Tories insist that the Scottish Parliament can make changes to the Gender Recognition Reform bill in order to ensure that it does not impinge upon the operation of reserved legislation, but they refuse to say what those changes might be. This is no longer about the narrow issue of the GRR bill. The Conservatives have trapped the Scottish Parliament and the devolution settlement in a bizarre Twilight Zone where Scottish democracy exists only as a shadow which has no substance.
This is highlighted by one of Jack’s stated objections to the Scottish Bill, his belief that it is impossible to have two different systems in operation in ‘one country’, yet this a contradiction of a principle which is fundamental to the very existence of devolution. If it is not possible for Scotland to implement policies and procedures which differ from those in force in the rest of the UK then not only the devolution settlement but the very existence of Scots law and Scotland itself as a nation and country are at risk of being deemed incompatible with the conception of the Anglo-British nationalists of the United Kingdom as ‘one country’ and as a unitary state.
As Shona Robison pointed out in her letter :”This unprecedented intervention represents an attack on the democratically elected Scottish Parliament and its ability to make decisions on devolved matters.” If the Conservatives will not even permit the Scottish Parliament to pass legislation relating to devolved matters, nothing that the Scottish Parliament does is safe, nothing in the devolution settlement is safe, and nothing guaranteed by the Treaty of Union itself is safe.
We have come a long long way indeed from the fine promises made by Better Together in 2014, promises which the Conservatives signed up to along with Labour and the Lib Dems. That would be the same Conservative party which screams that the SNP must respect the 2014 referendum even as it trashes all the commitments that it made in order to win that referendum for the No side. If the Conservatives had been honest in 2014 and told the people of Scotland that if Scotland voted No then the Tories would take us out of the EU and abolish freedom of movement, that they would preside over a law breaking government mired in sleaze and corruption, that they would then would veto legislation relating to devolved matters and would deny any democratic route to Scottish self-determination, the outcome of that year’s referendum is likely to have been very different.
Yet had the result indeed gone the other way, the Tories would have refused to respect the democratic verdict of the people just as they are currently refusing to accept the democratic verdict of the people in the 2021 Scottish Parliament elections when they voted for a parliament with a pro-independence majority in the full expectation that this would bring about another independence referendum. The Tories only respect democracy when it gives them a result that they are willing to accept and when it does not, they will veto it and then refuse to explain themselves.
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