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".


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