What should have been an uncontentious, administrative improvement of the rules for legally changing gender has escalated into a constitutional row with a widening split in the governing party, and one which has put it firmly on the wrong side of Scottish public opinion.
Following the Scottish Secretary’s intervention in invoking section 35 of the Scotland Act and preventing the Bill from gaining Royal Assent, we saw a hysterical reaction from the First Minister, claiming – in language that may have been deliberately sexualised – that this was a “full frontal assault” on devolution. These were followed up by equally ludicrous claims that Alister Jack was operating like a “governor-general” and that the Conservative government was aiming to impose “direct rule” on Scotland.
If it was part of the nationalists’ strategy to generate this conflict with Westminster to drive up support for independence, there is little sign that it is working. A poll commissioned by the pro-independence paper The National, published on Friday, showed no increase in support for separation from December. Perhaps more significantly, a poll by Survation commissioned by an organisation fronted by the SNP’s former head of media showed support for ‘Yes’ had slipped to 46 per cent against ‘No’ on 54.
On the Gender Bill itself, YouGov found recently that, by a margin of at least three to one, voters opposed key aspects of reform, including the removal of the need for a medical diagnosis of gender dysphoria, and the lowering of the minimum age from 18 to 16. On the UK Government’s intervention, more Scots (40 per cent) supported it blocking the Bill than opposed it (38 per cent). Nicola Sturgeon has succeeded in making Alister Jack a hero figure for many Scottish women.
The SNP’s claims that concerns over the impact this Bill would have on the UK Equality Act protections for women were not raised with them during the passage of the Bill simply don’t bear scrutiny. UK equalities minister Kemi Badenoch, wrote to the Scottish Government about them, as did the Equality & Human Rights Commission, and at various points in the process several Conservative MSPs, me included, raised precisely these questions. At every turn, the relevant minister, Shona Robison, put her hands metaphorically over her ears and denied there was an issue. Well, she kens noo.
The politician who comes out worst from this whole sorry affair is not even from the SNP. It is Scottish Labour leader Anas Sarwar, who whipped his Holyrood group to vote for the Bill even after sensible amendments put forward by Labour MSPs to strengthen the protections for women were voted down.
Now he even appears at odds with his UK leader Keir Starmer, who does not support lowering the age limit for obtaining a gender recognition certificate from 18 to 16, whilst sitting painfully on the fence on the issue of the section 35 intervention, much to the horror of many Labour women activists. Sarwar isn’t just letting down women and girls with his lack of leadership on the issue, he is demonstrating again that Labour can’t be trusted to stand up to the SNP on constitutional issues.
The matter is now heading for the courts, with the poor Scottish taxpayer coughing up for yet another doomed action by the SNP government. There are few more eminent Scottish lawyers of today that Lord Hope of Craighead, former deputy president of the Supreme Court, who has effectively said that Nicola Sturgeon is wasting her time taking this to litigation. He was joined at the weekend by another former Supreme Court judge, Lord Sumpton, who described the SNP position as “absurd”.
Meanwhile, the debate becomes ever more heated. At a protest rally in Glasgow on Saturday, three SNP MPs and one MSP foolishly allowed themselves to be photographed in front of a placard with the horrific slogan “Decapitate TERFs” and a drawing of a guillotine. I, and many others, reported this to the police as threatening and abusive behaviour, and the matter is being investigated.
The politicians in question claim they were unaware of the existence of the offending placard, but we can only imagine the furious row that would erupt if, say, a Conservative MP was pictured beside alongside a banner with similar wording directed towards any other group.
At the same time, police are investigating a threat against the author JK Rowling from an individual allegedly promising to attack her with a hammer. For a cause which claims to be “progressive” and “on the right side of history”, it seems to attract more than its fair share of those promoting violence.
We must leave the police to do their work, and see where the courts go with the section 35 intervention. What this whole experience does illustrate, sadly once again, is that the case for reform of Holyrood procedures is now compelling. We would not be where we are with this, waiting for the courts to resolve a row between our two governments, if the Scottish Parliament had properly scrutinised the Bill in the first place.
There is a growing cross-party consensus that Holyrood is no longer fit for purpose as a legislature, after a succession of flawed Bills being passed. Last week my colleague Donald Cameron MSP, Scottish Conservative constitution spokesman, announced that he would bring forward a Member’s Bill to amend Holyrood’s procedures, including enhancing both pre- and post-legislative scrutiny.
It is reform for which the case has been made, and I hope that all MSPs serious about improving the quality of Bills will back it. If they fail to do so, I fear that we will just see repeats in the future of this whole sorry saga.
Murdo Fraser is Scottish Conservative MSP for Mid-Scotland and Fife