Gender Recognition Reform Bill: Court ruling in Holyrood-Westminster row is devolution in action – Scotsman comment

In order to exist, devolved governments must have limits on their powers
Scotsman comment
By Scotsman comment
Published 9th Dec 2023, 04:55 BST
Humza Yousaf must now decide whether the Scottish Government will appeal over the blocking of the Gender Recognition Reform Bill (Picture: Jeff J Mitchell/Getty Images)Humza Yousaf must now decide whether the Scottish Government will appeal over the blocking of the Gender Recognition Reform Bill (Picture: Jeff J Mitchell/Getty Images)
Humza Yousaf must now decide whether the Scottish Government will appeal over the blocking of the Gender Recognition Reform Bill (Picture: Jeff J Mitchell/Getty Images)

After the Scottish Government, as predicted, lost its legal challenge against the UK’s decision to prevent the Gender Recognition Reform Bill from becoming law, Humza Yousaf declared it was “a dark day for devolution”. And he went further, saying the ruling “confirms beyond doubt that devolution is fundamentally flawed” as “sovereignty should lie with the people of Scotland, not a Westminster government we didn’t vote for with the ability to overrule our laws”.

However, quite the opposite is true. Because, regardless of the rights and wrongs of the bill or even the decision made by the Court of Session, this is devolution in operation – this is how the system is supposed to operate.

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The case centred on section 35 of the 1998 Scotland Act 1998. Headlined “Power to intervene in certain cases”, it says that the Secretary of State can issue an order prohibiting Holyrood’s Presiding Officer from submitting a Bill for Royal Assent if they have “reasonable grounds to believe” it would be incompatible with international obligations or defence and national security issues, or have an “adverse effect” on laws applying to matters reserved to Westminster.

The reason this was written into the Scottish Parliament's foundational document is that the wise politicians who set it up realised the potential for clashes between two different law-making bodies and created a process to deal with it. In this case, the Scottish Parliament thought the gender bill was a lawful one, the UK Government disagreed, and now the courts have ruled in the latter’s favour.

A process like this has to exist. There cannot be a situation in which two laws operate in conflict with one another or the result would be a legal chaos in which enforcing either would be difficult. So, rather than this being a blow to devolution, it is an affirmation of it. Without section 35, there could be no Scottish Parliament. All devolved administrations need to have a way to define the limits of their powers.

Nationalists may not like these limits, but that is an argument about independence – and very little to do with devolution.