However, the most remarkable thing about Jack’s first use of a section 35 order to prevent a Scottish Bill from becoming law is that it has taken nearly a quarter of a century to happen. Some might suggest this shows the Scottish Parliament’s relative timidity in trying to change the country for the better and, thereby, not testing the boundaries of its powers.
The SNP has presented this as an attack on devolution, with the subtext that the only way to prevent such alleged intrusions is to support independence. But the fact that the legislation which created the Scottish Parliament foresaw the risk of jurisdictional clashes and created a mechanism to deal with it, makes clear that the opposite is true. This is how devolution is supposed to work.
Jack’s actions have also been portrayed as an attack on transgender rights. However, if a Bill passed by the Scottish Parliament cuts across UK-wide legislation – in the opinion of its lawyers – then Westminster has little option but to act. Given there is clearly a dispute, with the Scottish Government’s lawyers apparently taking a different view, it seems that the matter will end up in court which, again, is the right way to settle it.
As The Scotsman argued, the Bill should have been delayed to allow a more serious and considered consultation process and address a number of concerns about its unintended consequences, including that it could be used by predatory men who are not transgender to access women-only spaces such as refuges.
Nicola Sturgeon had a chance to build a consensus about how to improve the rights of transgender people, but she chose not to do so and must take at least a share of the blame for the resulting dispute with Westminster. If claims that Sturgeon has done so deliberately in order to further the cause of independence are true, that would be an utterly despicable tactic and a betrayal of the trans community.
Independence and trans rights are issues where passions run high. Calm heads will be required as the matter is dealt with in accordance with the devolution settlement.