Tuesday 17 January 2023

Some thoughts on today

 So, it is done. 

Contrary to what I thought, the UK Government has intervened under s.35 of the Scotland Act 1998 rather than s.33. As I understand their rationale it is that there was no point mucking about. Had they invoked s.33, which allows the Supreme Court to strike down Holyrood legislation on the grounds that it lies outwith legislative competence, they would have been on solid ground in my opinion but it would have required the UK Government to take the matter to Court and I recognise the Scottish Government might have had an argument. If The Scotland Office had decided that if they (legally) lost the argument they would then invoke s.35, then why not just cut to the chase? So that's what they've done.

Sturgeon's response to this has been bizarre. It is perfectly legitimate, from her perspective.  for her to be annoyed. She does not believe in devolution so any intervention from Westminster would be anathema to her. But instead of sticking to that political point she decided to declare that she would be going to Court.

Now, the timing of this was, to put it mildly, strange. 

At this point, I will cut and paste for you s.35.

35 Power to intervene in certain cases.U.K.

This section has no associated Explanatory Notes

(1)If a Bill contains provisions—

(a)which the Secretary of State has reasonable grounds to believe would be incompatible with any international obligations or the interests of defence or national security, or

(b)which make modifications of the law as it applies to reserved matters and which the Secretary of State has reasonable grounds to believe would have an adverse effect on the operation of the law as it applies to reserved matters,

he may make an order prohibiting the Presiding Officer from submitting the Bill for Royal Assent.

(2)The order must identify the Bill and the provisions in question and state the reasons for making the order.

(3)The order may be made at any time during—

(a)the period of four weeks beginning with the passing of the Bill,

(b)any period of four weeks beginning with any F1... approval of the Bill in accordance with standing orders made by virtue of section 36(5),

(c)if a reference is made in relation to the Bill under section [F232A(2)(b) or] 33, the period of four weeks beginning with the reference being decided or otherwise disposed of by the [F3Supreme Court].

(4)The Secretary of State shall not make an order in relation to a Bill if he has notified the Presiding Officer that he does not intend to do so, unless the Bill has been approved as mentioned in subsection (3)(b) since the notification.

(5)An order in force under this section at a time when such approval is given shall cease to have effect.

Now let us deconstruct this.

Alister Jack has clearly acted under subsection 1(b). 

But let us look at the rest of the section. 

First of all subsection 2. It requires that when making the order the Secretary of state must "state the reasons for making the Order". But, at the point Sturgeon spoke to the BBC, Alister Jack had not made the Order he had only announced his intention to do so. And in consequence had not required to state his reasons. Yet Sturgeon had already announced her intention to go to Court, whatever his reasons were. It is most unlikely Sturgeon had legal advice on this since any lawyer asked about the prospects of going to Court over any decision would start by saying we must first know the reasons for the decision. Yet Sturgeon, when she gave her interview, hadn't yet seen these reasons. No one had.

I don't practice in the courts at the highest level but every so often you get a zoomer client with an intention of suing but who has no legal case at all. My favourite one was a man who had fallen down the stairs in his own house. He wanted to sue the Council. I inquired about on what basis. 

"Was there perhaps a faulty step or a loose carpet?"


 "So in what way was the Council to blame/"

 "It was their house".

 "Yes but what caused you to fall?"

 "I was drunk." 

"Sorry, you fell down the stairs in your own house because you were drunk? Why do you think that would let you sue the Council?"

"It was their house."

Ms Sturgeon made as much sense today. 

But let us go back to s.35 before returning to Ms Sturgeon. 

And in particular s.1(1). 

All that the Secretary of State needs to be possessed of before making an order is "if a Bill contains provisions which the Secretary of State has reasonable grounds to believe (my emphasis)..........(2) makes modification of the law as it applies to reserved matters........."

Now, the words above have a meaning, in particular the subordinate clause "which the Secretary of State has reasonable grounds to believe". If they were not there the test in any Judicial Review would be objective. "Does the Bill do this?" But these words are subjective. It does not matter whether it does or does not, it only matters if the Secretary of State reasonably believes that it does. And as Alistair Jack was at pains to repeat over and over in the Commons today, he has formed that view because it is the legal advice he has received. 

So a Judicial Review would go nowhere. Did he have that belief? Was it reasonably formed? Case over.

And that is the legal advice Sturgeon will receive from the Lord Advocate if she ever gets round to asking. Probably, that it is so unstateable that the Lord Advocate won't even be prepared to to attempt to state it. 

Now, I am aware that journalists are not lawyers but they are all people of above average intelligence. Well, most of them are.  Yet Sturgeon was allowed to tell a very senior BBC Journalist today that she would be going to court without being asked if she had any legal basis for doing so. To which the only honest answer would have had to be that she didn't know yet. But that question was not asked. 

And no other electronic media journalist appears to have seized on this either. Obviously, as I write, we await the print media but I am not holding my breath So the Gender Recognition Reform Bill is dead. Not perhaps quite so dead as a Second Independence Referendum but pretty dead nonetheless. 

But we are left with the bald fact that it is unprecedented for the Secretary of State to intervene in this matter and here I go to my friend and indeed briefly business partner, Donald Dewar.

He wrote s.35. As some junior Labour MSPs should remember. And when it was going through the Commons (as then Clause 33) in January 1998 he said this.

.“I stress that the process of government is a process of negotiation and discussion; it is a matter of bilaterals and discussions at an official level… Common sense dictates, consensus emerges and agreement is reached 999 times out of 1,000.”

There has been no process of negotiation and discussion here. Kemi Badenoch, the Equalities Minister specifically came to Scotland to offer that. Shona Robison sent her homeward to think again. You might almost think, latterly, that SNP objectives here were simply to pick an anglophobic fight and, if there was no benefit at all to trans people from this entire process, they would simply have to be pawns sacrificed for "The Cause".


Sunday 8 January 2023

35 or 33?

 As a few people have noticed, I published a blog ianssmart: A big change in 2023? yesterday. I commend to you. 

In truth however most of it wasn't written yesterday but on January 2nd. I planned on finishing the next day but it turned out I was much busier work wise than I anticipated over the next few days so I couldn't get it done until Saturday. I wondered if I had perhaps missed my moment but concluded ultimately that I hadn't, for what I have had to say would have relevance for several months ahead. 

I say that only because what I have to say today will have a shelf life of less than a fortnight. But it is important.

The Gender Recognition Reform (Scotland) Bill was passed by the Parliament on 22nd December 2022. As with any other (ordinary) Bill there is now a period of twenty-eight days before the Presiding Officer sends it to (now) The King for it to be given Royal Assent. 

And during that period The Secretary of State for Scotland can intervene.

All the attention in the press has been about whether that intervention will be under s,35 of the 1998 Act. Firstly however, there seems to me to be a misapprehension both about what the provenance of s.35 is and  what it exactly allows. Invoking s.35 would not be "an attack on devolution". It is part of devolution. It's original author was none other than that arch anti-devolutionist, Donald Dewar. The always excellent Joshua Rozenberg summarises the history here Scottish gender recognition: who decides? (substack.com). It is not difficult to see various scenarios where this provision might need to be utilised. If, for example, Holyrood reduced the age of consent, you can well see the rest of the UK objecting to their young teenagers being able to engage in sex with older men legally simply by getting driven by them over the open border to North Berwick. Certainly, s.35 has not been used to date but that's because Holyrood hasn't done anything so stupid to date. 

Creating a situation where Scots born people can have the benefit of being women in the rest of the UK based on a birth certificate that the other home nations can't be sure is accurate surely falls in to a similar category? 

So, for that and other reasons a s.35 challenge would. in my opinion, be likely to succeed. But just for the avoidance of doubt s.35 does not give the UK Government an absolute veto. It can only be invoked if certain criteria are met, reasons must be set out in writing and, as big Donald says in the debates Mr Rozenberg refers to, these reasons would be subject to judicial review leading potentially to the s.35 objection being quashed. 

And a s.35 challenge would have one other huge advantage for the Tories. It is a long, long time since they were on the right side of Scottish popular opinion. Even the sale of council houses, hugely popular in its uptake, enjoyed that popularity largely in secret. But on Gender Recognition reform, popular opinion would side overwhelmingly with them. It is difficult to argue that a step taken to protect women's rights, with overwhelming public support, could ever be plausibly portrayed as an "insult to the people of Scotland", (sic). Particularly if it leads you logically to arguing that one of the "advantages" of full independence would be to make Scotland a less safe place for women.

The power of s.35 challenge lies with Alister Jack but the decision would surely be taken in conjunction with the Equalities Minister, Kemi Badenoch. And if the Tories had the sense to make Ms Badenoch the public face of any announcement it might also give them the advantage of being seen to have modernised their act, contrary to nationalist propaganda that they are all still middle aged men in mourning over, at best, their lost bowler hats and, at worst, their tweed plus fours. 

So it would be daft for them not to act under s.35. But they won't.

Because, at first at least, they will act under s.33. 

The legislative powers of the Scottish Parliament in terms of the 1998 Act proceed logically. s.28 provides the authority to make legally enforceable legislation. s.29 restricts that power to matters within legislative competence and defines that legislative competence. The famous s,30 allows for legislative competence to be expanded by Westminster, either permanently or, as happened for the 2014 referendum, on a temporary basis. But here now is the interesting bit. 

s.31 provides that for a Bill to be introduced at all its introducer must certify that it is within legislative competence. That is stage one at which a Bill could be stopped. 

s.32 provides that once passed the Presiding Officer must submit the Bill for Royal assent but not for a period of twenty eight days or the final conclusion of any reference under s.33 if (almost inevitably) later. 

s.33 provides that within that twenty eight day period various law officers, the relevant one here would be the Advocate General for Scotland, may refer a Bill to the Supreme Court for their opinion on the Bill's legislative competence. Their view is final. That is stage two at which a Bill could be stopped.

s.34 has been repealed you'll be pleased to learn, although possibly not when you realise why.

s.35 gives a final opportunity for the Secretary of state to block a Bill. As I say above, that is subject to judicial review but subject to that caveat, this is stage three, and the final stage, at which a Bill might be stopped.  

But here is the point. s.35 is clearly intended as a long stop only to be used if s.33 cannot be deployed or has been deployed unsuccessfully. Indeed the wording of s.35(3)(c) as good as says that. For the time limit for a s.35 challenge is 28 days from the passing of the Bill or 28 days from the determination of any s.33 challenge. It doesn't expressly say the s.33 challenge has to have been unsuccessful but that is as good as expressly said, for if the s.33 challenge has succeeded then there is no Bill needing blocked under s.35. 

HOWEVER! If you go down the s.35 route and are then judicially reviewed successfully then the UK Government can't go back and try to use s.33, for the 28 day window for that would have been long since up. For while a s.33 reference postpones that 28 days insofar as it relates to the Bill being sent for Royal Assent there is no such reference in s.35. 

So, essentially, by going directly to the option of a s,35, the UK Government would be giving up, forever, on the potential earlier remedy of s.33. Why would they do that? And it seems to me at least that, in changing the definition of a woman, the Bill itself trespasses in to the subject matter of the (reserved) Equality Act, particularly (now) in light of the Judicial conclusions in the two For Women Scotland cases. 

So, watch this space.  If the UK Government is going to act at all, they have until 17th or (arguably) 18th January. But it is never good legal practice to bang up against a time bar for the sake of it so they will act next week. And it will, firstly, be under s.33.


I don't normally do footnotes but a few things occurred to me, or were drawn to my attention on the way, and couldn't be easily fitted in to the text already written.

1. I have previously written on why the Bill might be beyond devolved competence. The link is here. ianssmart: A dead duck

2. Failure to challenge under s.33 by the UK Government would not, of course, prevent challenge by members of the public even after Royal Assent standing the terms of s.29. I wrote about that here. ianssmart: Section 29.

3. As I didn't want to be too wordy, I didn't put the sections of the Scotland Act directly in the blog but you'll find them here et seq. Scotland Act 1998 (legislation.gov.uk)

4. In relation to fronting up the challenge for the UK Government, I was intending to say something slightly disparaging about Alister Jack's lack of public profile until it was drawn to my attention that he is one of only two cabinet ministers continuously in post since December 2019. So he may simply want  a low profile. The only other survivor is Ben Wallace.

5. There has been much criticism of Lady Haldane's judgement in For Women (Scotland) No.2 . I think this is unfair, She simply applies the law. It is the law, particularly s.9 of the original GRA, which is an ass. 


Saturday 7 January 2023

A big change in 2023?

There was an assumption among the commentariat in their predictions for the new year that, politically, nothing much will change. I beg to disagree.

Say what you like about Nicola Sturgeon, she is formidable politician. She has accomplished not only dominance over her own Party and Scottish Television, both of which she admittedly pays for with public money, but also over wider Scottish Civil society. There was polling towards the end of last year about name recognition of Scottish politicians. She was completely off the chart as opposed to anybody else of any Party. Including, it should be noted, her own Party, where the now departed Ian Blackford at Westminster was better known than any other SNP Holyrood politician. 

But at some point this runs in to a wall. Although Sturgeon hasn't to date admitted it, there will not be a second referendum, de facto or otherwise, this year. And, one suspects, after the "de facto referendum" special conference it will be clear that there will not be a referendum, de facto or otherwise, in 2024 either. And when the dust settles on the 2024 General Election? If Labour has won, there still won't be a referendum but the political landscape would be transformed. No longer would it be "Only Independence can save us from the evil Tories". For we would have been "saved" from the Tories, evil or otherwise. If it is a hung Parliament then the SNP will face the prospect of voting with the self same evil Tories or becoming Labour lobby fodder. If they don't want to lose their seats in short order, the SNP at Westminster will face a Hobson's choice in that regard, but they'll be left sitting in Westminster for a purpose other than advocating "Freeeeedum!" The internal SNP politics of that will  be.....................challenging. For, despite it being a ludicrous proposition,  there are undoubtedly a fair number of Nats who are capable of holding in their heads at the same time the idea that, although the Tories are "evil", it is a matter of indifference whether they or the Labour Party are in power at Westminster. Even Nicola's formidable abilities as a Party manager will struggle to manage that. And finally, just for completeness, there is of course a third possible UK General Election result, an outright Tory victory. But what would that mean? The status quo and no referendum for (at least) another five years. And nothing to be done about it.

So, remaining leader of the SNP and First Minister long, or even medium, term has limited attractions. Scotland is not having a referendum, let alone achieving independence for at least ten years. There is of course the fame and the money but fame has its downside. A proper private life is almost impossible. No wandering down to the paper shop on a Sunday morning in your slippers and joggers but without your teeth. No opportunity to have an uninhibited night out. No freedom to tell idiots they are just that (a particular problem if you are regularly mixing with people in the SNP).

And as for the money? It is impolite to talk about personal remuneration being a consideration for politicians but it undoubtedly is. I suspect however for the very reasons above about the limitations on a personal life, Ms Sturgeon has not had much opportunity to spend much of what she has earned since 2014. If required, I also doubt she would have much difficulty securing a position with some sort of international quango. Even her worst enemies do not dispute she is an intelligent person with a proven ability to work hard.

So what is the reason for Sturgeon to hang on? There is of course the appreciation that, for her to leave the stage would be tacit admission that the game was up, at least for the duration of her potential future time in office. But she knows that anyway and perhaps better to depart the stage than to face the groundhog day of assuring SNP Conference twice a year that a referendum is just around the corner, with ever decreasing credibility? Then there is the fact that there will be a UK Election in 2024 and Sturgeon is, on any view, the Nats most formidable campaigner. But she was younger and fitter and fresher in 2017 and that didn't stop her losing twenty one seats. Such a reverse again might well lead to circumstance where her departure was, at least perceived to be, not entirely voluntary. Then there the issue of a managed succession. That has to happen before Holyrood 2026 if Sturgeon plans to be gone by then or indeed, failing defeat at the polls, then plans to depart not before at least 2028. 

Leadership contests involving Parties in power are inevitably blood baths. Don't just consider what happened among the Tories last year, look at how Gordon Brown was anxious to avoid this in 2007, the SNP themselves in 2014 and indeed Rishi at the end(?) of the Tory Thirty Month War. Sturgeon has no obvious successor. Yousaf is useless and the SNP know that. Robertson, one suspects Sturgeon's chosen successor, has clearly decided he would rather travel the world at public expense than do the hard yards and, among the current Cabinet, Swinney, the day before yesterdays man, and possibly (Keith) Brown are nonetheless the only other people you would trust to run a tap.  I exclude from this the undoubtedly able Kate Forbes on the basis that, with a new baby and a distant constituency she genuinely doesn't want the job. 

So there will be a contest wider than the current cabinet and it will be a bloodbath and Sturgeon must know that. And if she is, as she surely must be, seized of the desire to avoid that bloodbath on the eve of an election, either 2024 or 2026?  Everything, both from a personal and wider political point of view, then says Sturgeon goes this year. Possibly as soon as the de facto referendum  "strategy" collapses. And then, well here is something for your consideration. leadership contests can also mark generational change. 

The quality of the SNP back benches leave a fair bit to be desired. But they now have a new member. I have never met Ash Regan but, before she shot to fame over the last few weeks, I knew of her by reputation through her former junior Ministerial position as inter alia the Legal Aid Minister. She was highly thought of in that capacity: on top of her brief; sympathetic to reasoned argument; not afraid to say immediately that she was unsympathetic to not so reasoned argument. 

She has emerged with great credit from the the Gender Recognition debate. You don't have to agree with her views on this matter to respect a politician prepared to pay a personal sacrifice for their beliefs. Equally, her ability to deliver compelling Chamber speeches written by herself contrasted bluntly with the inability of the Minister "in charge" of the Bill to even properly read out speeches written for her by others. Regan looked the part of a politician on the way up; Robison as someone utterly out of her depth and surely shortly out in any other capacity. 

But there is something more. I doubt very much that the ludicrous Gender Recognition Bill in its current form, would ever have commanded a majority at an SNP Conference. Those former stalwarts who have departed for Alba are not truthfully much different from the remaining SNP rank and file and there is little doubt where Alba stands, more or less unanimously, on this matter. The Bill is very much the creature of Sturgeon and a small group of trans activists who have attached themselves to the SNP cause. But of course the Bill, in detail, was never put to an SNP Conference. However if the Bill is not passed in to law, which seems to me almost inevitable, and there might then be then an SNP members vote about whether to walk away from another attempt? Particularly if there is little to choose between the candidates on the national question, this might easily become a key issue in a leadership contest.  

Sometimes you are simply in the right place at the right time without having actually planned to be there. Margaret Thatcher; Tony Blair;  Angela Merkel; Voldoymyr Zelensky,

Ash Regan?