In the News

Devolution problems: legal conflict between Holyrood and London

Mike McCartney

11th December 2023

Trans rights law has caused a constitutional tussle

It is time for a recap on the arguments for and against the success of the post-1997 constitutional arrangements.

What has been the positive impact of devolution?

  • Democracy has been enhanced within the UK since government is much more region sensitive:, e.g. the congestion charge in London
  • On a separate but related note, the new legislatures act as policy laboratories - e.g. the Scottish first smoking ban
  • The electorates within the devolved regions accept devolution and express the view that it is the preferred system of government.
  • Despite increases in support for the nationalists in Scotland support for independence has never been a sustained majority
  • Within England the vast majority want Scotland and Wales to remain in the Union, thus there has been no English ‘backlash’.
  • The use of proportional electoral systems in the new assemblies has resulted in UK politics becoming much more pluralistic.
  • Devolution has boosted the representation of women in comparison with Westminster.

What has been the negative impact of devolution?

  • Devolution is an expensive luxury in terms of the costs of setting up and running the devolved bodies:
  • The raft of different policy measures that have emanated from the devolved assemblies in Scotland, Wales, and Northern Ireland have been made possible simply as the result of the unequal distribution of public funds within the UK as allocated by the complex Barnett formula
  • Far from reinvigorating democracy, voters appear to be ‘underwhelmed’ (Curtice) by devolution.
  • Questions still remain about whether devolution will lead to the break up of Britain.
  • Participation in elections to the new arenas has been a disappointment.
  • There is tension and confusion regarding the roles of the elected representatives for different tiers of government
  • That Labour’s devolution plans did not appear to be fully thought through has become evident.
  • Devolution has not resulted, as proponents had hoped, in a new form of politics, free from the tales of corruption which are so often associated with Westminster life.

As a negative, we can now add (though this does overlap with the penultimate bullet point above) that the devolution process had gone relatively smoothly because no tension had arisen over the legal implications of a law passing in one of the semi-autonomous devolved bodies and Westminster. That is, until now.

Judges have ruled in the past week that the UK government was right to block the gender-recognition law passed by the Scottish Parliament in 2022.

A bit of background on the law itself and events leading up to the judicial ruling by Scotland's top court at the tail end of last week.

Suggested questions on the video

1. How has the UK government's decision to block Scotland's gender recognition bill been received by Scotland's First Minister?

2. What impact would the gender recognition bill have had on equalities matters in Scotland, England, and Wales?

3. According to the video, why is the UK government's intervention in Scotland's legislation considered unprecedented?

4. How does Nicholas Sturgeon believe the UK government's decision will affect trans people?

5. What concerns does Danielle, a trans person mentioned in the video, have about the news regarding the gender recognition bill?

6. What was the original purpose of the gender recognition bill in Scotland?

7. Who will ultimately decide the outcome of the debate surrounding the gender recognition bill?

Possible answers:

1. Nicholas Sturgeon called it a full frontal attack on Scottish democracy.

2. The bill would have a significant impact on GB-wide equalities matters in Scotland, England, and Wales.

3. Such an intervention from Westminster is unprecedented.

4. Nicholas Sturgeon believes it will use trans people as a political weapon and be unconscionable and indefensible.

5. Danielle is concerned about how the news will affect younger people struggling to come out as trans.

6. The bill was supposed to speed up the process for people in Scotland changing their gender.

7. The courts will decide who is right in this debate, legally.

So what was the tussle between the respective governments in London and Edinburgh about? Essentially, there is a relatively arcane bit of the bill that paved the way for the Holyrood Parliament, specifically section 35 of the 1998 Scotland Act. This reserves the right of the Scottish Secretary in Whitehall to prevent Royal Assent being granted to a law passed in Scotland on the basis that it would have an adverse impact on laws in other constituent parts of the UK. As an example, the UK government argued that pay claims made outside of Scotland would be complicated by someone holding a gender recognition certificate provided in Scotland (possibly achieved by a different set of rules to those that apply in the rest of the UK).

Unsurprisingly, the news from the courts was not well received by the Scottish government.

According to the Guardian.

"The Scottish government’s social justice secretary, Shirley-Anne Somerville, said: “Devolution is fundamentally flawed if the UK government is able to override the democratic wishes of the Scottish parliament, and veto our laws at the stroke of a pen.”

Writing on X, the Scottish first minister, Humza Yousaf, said the ruling was a “dark day for devolution”."

The most likely outcome now is that the case will end up in the Supreme Court, with all this increasingly sounding like a US politics lesson!

Mike McCartney

Mike is an experienced A-Level Politics teacher, author and examiner.

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