Could a Westminster veto of the GRR Bill cause the SNP and Green leaderships to be suddenly radicalised on independence?

Leaving aside the fact that GRR is a bad law, the BBC’s reporting of the devolution aspect of it is getting on my nerves. References to how the UK Govt might “step in” as if it’s some sort of God and “block” the legislation. It can’t do that – it can *challenge* the law in court.

— James Kelly (@JamesKelly) December 22, 2022

Almost as soon as I’d posted the above tweet, a couple of people partially corrected me by pointing out that the UK Government also have the option of invoking Section 35 of the Scotland Act, which until now has never been used. Here is the key part of the text:

“Power to intervene in certain cases.

(1) If a Bill contains provisions— (a) which the Secretary of State has reasonable grounds to believe would be incompatible with any international obligations or the interests of defence or national security, or
(b) which make modifications of the law as it applies to reserved matters and which the Secretary of State has reasonable grounds to believe would have an adverse effect on the operation of the law as it applies to reserved matters, he may make an order prohibiting the Presiding Officer from submitting the Bill for Royal Assent.

(2) The order must identify the Bill and the provisions in question and state the reasons for making the order.

(3) The order may be made at any time during—
(a) the period of four weeks beginning with the passing of the Bill,
(b) any period of four weeks beginning with any approval of the Bill in accordance with standing orders made by virtue of section 36 (5),
(c) if a reference is made in relation to the Bill under section 33, the period of four weeks beginning with the reference being decided or otherwise disposed of by the Supreme Court.”

Surprisingly, then, no discretion at all appears to be given to the Presiding Officer – she seems to be obliged to simply follow the ‘instruction’ given to her by Alister Jack. This harks back to the controversial “Governor-General” (or more accurately colonial Governor) role given to the Secretary of State for Scotland in the original 1978 devolution legislation that never actually took effect. Crucially, though, this is still not a God-like power that can be exercised on a whim – it’s potentially open to the courts to make a ruling on whether Jack has interpreted the Scotland Act correctly. And ultimately whether a devolved law ends up before the courts because of a UK Government challenge, or because of a Scottish Government challenge to a Jack veto, may be a distinction without a difference. The bottom line is that judges would decide whether the GRR Bill gains Royal Assent.

And if the courts rule against the Scottish Government, as they have a noticeable tendency to do in these cases? It would either stop or pause a very bad law, to be sure, but I’m a bit disturbed by the number of independence supporters (perhaps I should call them ‘former’ or ‘nominal’ independence supporters by this point) who seem all too keen to achieve their objective of stopping the GRR Bill by such an obviously colonial mechanism.

I actually agree with this. However repugnant the GRR Bill may be, nobody who believes in Scottish self-government can in good conscience want the UK government to interfere. A big part of freedom is the freedom to make your own mistakes.https://t.co/5N5rFDFs84

— James Kelly (@JamesKelly) December 23, 2022

That said, even I can see that there might be a side-benefit to a Westminster veto if that unfortunate event should actually arise. Many of us worry that the SNP and Green leaderships are somewhat tepid in their support for independence – as if it’s something they believe in as a distant ideal, but aren’t that bothered about in the here and now. But nobody could accuse them of feeling that way about gender self-ID – the circus of this week has been caused by them apparently regarding it as utterly unthinkable for this calendar year to pass without the GRR Bill being approved by Holyrood.

So how would they react if they discover that gender recognition reform isn’t actually achievable under devolution? We might suddenly find that independence is an absolute and urgent imperative for them after all – because they’d see it as the only way of getting the GRR Bill onto the statute book. The only caveat is that they might have the thought at the back of their minds that a Starmer government in 2024 will remove the roadblock – but, there again, if they have sufficient patience to wait for Starmer, why the undue haste we’ve seen thus far?

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