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Alister Jack's gender reform block was no attack on devolution

  • First published in : Visit Website
  • First published on: 15th Dec 2023

Quite a few column inches have been expended in this newspaper since last Friday's court ruling on Alister Jack's block of the Gender Recognition Reform (GRR) Bill. Readers have heard from columnists who are male lawyers and trans rights activists but, as yet, we have had no commentary from the women whose concerns were validated by the judgment, the -'women who wouldn't wheesht'.

Similarly on the radio at the weekend, BBC Scotland's flagship politics show interviewed a male Tory MSP and the trans rights activist Ellie Gomersall but again, there was no platform for the women who fought against the bill. They did so in the face of demonisation and opprobrium from large parts of our political class, government-funded lobby groups and a nasty underbelly of misogynistic men and their supporters. They deserve to be heard and so today I am going to put forward their point of view. Before I do, let me deal with the constitutional handwringing.

The suggestion that using the Section 35 power to block the act is an attack on devolution does not stand up to scrutiny. Lady Haldane held that Section 35 is an integral part of the devolved settlement. She is right. All devolved parliaments remain subservient to the mother parliament, that is the essence of devolution, hence the phrase 'power devolved is power retained'.

Independence is necessary before the sovereignty of the people of Scotland can be embodied in a parliament which is not subservient to Westminster. Yes, there was scope for exploring the limits of the Section 35 power, but Lady Haldane has done that and found that the veto was clearly within the power afforded.

The general consensus of legal opinion is that the prospects for a successful appeal are poor. Mine is not the only voice within the SNP urging the Scottish Government not to throw good money after bad by pursuing an appeal. I have repeatedly said that if we are going to pick constitutional fights with the British Government in the courts then we need to pick cases where we stand a good chance of success and have public opinion behind us. This case fails on both those counts.

Lady Haldane held that the Section 35 power was engaged because the GRR bill would modify the law as it related to reserved matters because of its impact on the Equality Act 2010 (EA). She found that it was perfectly rational for Alister Jack to take the view that the impact on the EA would be adverse as regards the rights of women and LGB people in several respects and particularly because of the lack of adequate safeguards in the bill.

This is exactly what feminist campaigners such as For Women Scotland and Murray Blackburn Mackenzie argued throughout the passage of the bill. For their troubles they were pilloried. The former first minister said their views were not valid. Threats of violence and sexual abuse were condoned by the silence of those in power who are usually noisy in the condemnation of such behaviour.

Going back to Radio Scotland's Sunday politics show, during its newspaper review, Jillian Merchant, a lawyer with an expertise in discrimination law, tackled the oft-cited argument that this piece of legislation was the 'most scrutinised' in the history of our parliament. She made the point that whether that is true rather depends on what was scrutinised. I would say that in the main, MSPs scrutinised only those arguments with which they already agreed. Their arrogance was typified by their refusal to hear evidence from a group of female survivors of sex abuse. Uninformed politicians like Alex Cole-Hamilton lionised pro-self-ID activists who later turned out to have a rather unsavoury history while turning a deaf ear to feminists with years of experience in women's rights and safeguarding. Jillian Merchant concluded that the whole sorry episode should make us reflect on how we do our politics. She is right.

Earlier this week, I spoke with Caroline McAllister. She was an SNP party member, a councillor, deputy leader of West Dunbartonshire Council from 2017 to 2021 and convener of the SNP's Women's Pledge group. At SNP conference in November 2019, she was elected as the party's women's officer with a mandate to raise concerns about how Gender Recognition Act reform was being approached. Over the next few months, she was hounded from her position and from the party by those who did not want her concerns to be heard.

Here is what Caroline said to me: 'While women were targeted and abused predominantly by men, many of our political representatives looked away. Those who were directly approached dismissed women's concerns using the disingenuous excuse that both sides were as bad as each other. They seemed to think this gave them immunity from their responsibilities to women and permission to ignore safeguarding.

'Politicians owe women a massive apology. Had they listened to women's concerns, they potentially could have avoided the nation laughing at them as they tried to justify their decision in the face of the Isla Bryson scandal.'

Caroline is right. I would like to see an apology to women like her and an amnesty to let them rejoin the SNP should they wish to. Readers should be in no doubt that the way in which this issue has been dealt with by the SNP comes up repeatedly on the doorstep and is a factor influencing former SNP voters who are now undecided. It needs to be put to bed with an apology to those who were pilloried and a firm purpose of amendment to do politics better in future.

Section 15A of the GRRB declares that 'for the avoidance of doubt, nothing in this act modifies the Equality Act 2010'. The court gave this empty claim short shrift. This sort of declaratory nonsense designed to prevent a proper inquiry into factual reality should be consigned to the dustbin of history along with the UK Government's bill declaring that Rwanda is a safe country. As the Labour MP Chris Bryant said during the debate in the House of Commons this week: 'You can no more change reality by law or legal dictate than you can by mere imagination'.

I hope all those tempted to legislate in future to enshrine the belief that gender identity trumps biological sex and that a man can become a woman simply by declaring himself to be so will reflect on these wise words.