Legal Fights Between Holyrood and Westminster Test the Union

The relationship between Scotland and the United Kingdom is, despite the near decade of debate and commentary since the 2014 independence referendum, far from a clearly settled matter today. In part, this is simply due to the continued electoral dominance of the SNP, a party that exists for the purpose of eventually delivering Scottish independence. But it is also due to increased turbulence and tension within British politics in recent years. The United Kingdom’s withdrawal from the European Union has been central to this, of course. In addition, politics at Westminster has become increasingly troubled since the Brexit referendum. And all of this has unfolded alongside a global pandemic and now a cost-of-living and energy crisis tied to Russia’s war of aggression in Ukraine. In this short post, I want to give a quick overview of the way in which the referendum and gender bill fights are playing out in the context of the Union.

In 2014, one of the central arguments made by the Better Together campaign for keeping Scotland in the United Kingdom was that Scotland would not inherit membership in the European Union. That was a potent argument because, as the 2016 Brexit referendum demonstrated, Scottish voters placed a high value on their EU membership. Indeed, it’s Britain’s choice to leave the European Union, on the back of strong pro-Leave margins in England and Wales, that now undergirds Scottish First Minister Nicola Sturgeon’s case that the terms of Scotland’s “once in a generation” independence referendum have been voided. Opponents of Scottish independence disagree. Conservative Party politicians in both England and Scotland, as well as Scottish Labour and Liberal Democrat MSPs, have maintained that no such sea change has occurred. 

But this raises a clear problem, as the questions of whether Scotland ought to be independent, whether a new referendum should be held, and whether Westminster must accede to a new and legally-binding plebiscite are all distinct from one another. Notably, many pro-Union Scots disagree with both independence and the SNP’s justification for calling for a new referendum but stop short of supporting Westminster efforts to block or invalidate any such vote. The current Conservative government has taken a different view, sparking a legal battle that has only just finished its journey through the courts. 

The Supreme Court of the United Kingdom’s decision that only Westminster can legitimize a binding Scottish independence referendum is not necessarily itself an anti-democratic ruling. It does fly somewhat in the face of the longstanding view that the union between Scotland and England is a voluntary one. But, more pressingly, the ruling has much more bite because the current Conservative government has repeatedly expressed opposition to a second independence vote and shown a willingness to block any such efforts by Holyrood. This approach has troubled even devout unionists. Ruth Davidson, the former leader of the Scottish Tories (formally the Scottish Conservative & Unionist Party), has said on record that despite her opposition to a second referendum, she is also against Westminster simply blocking Holyrood. And yet the current Conservative government has not stopped at blocking a Scottish independence referendum. 

The recent decision by the Sunak government to utilize its powers under Section 35 of the Scotland Act of 1998 to block Holyrood’s Gender Recognition Reform Act is a new high point in the recent tensions between the U.K. and Scotland’s devolved parliament. It appears certain that the issue will be resolved in the courts, and it is not the case that a resolution in favor of the U.K. government will be somehow democratically illegitimate. But the allegations from progressives that Sunak is playing culture war politics with the issue because it offers red meat to his culturally conservative supporters highlights the ongoing dilemma facing the relationship between London and its devolved parliaments. 

I say this because the gender bill fight lends itself to some of the common rhetorical framing the SNP has used in the past to distinguish Scotland from the rest of the U.K. as a polity. The SNP, and Nicola Sturgeon in particular, argued throughout the 2014 campaign that Scotland’s political identity is distinct from that of the rest of the U.K. in that it is “more communitarian” and socially progressive. A showdown over Scottish political autonomy along the fault line of a culture war battle might well be a terrible choice for Sunak. It’s worth stressing here that neither side should be assumed to be acting in bad faith and that legal experts have backed up the arguments for both the Gender Recognition Reform Act and the concerns about how it might interact with the Equality Act. But the details of the fight and their potential implications for broader British cultural politics are inescapable. As anti-trans activism becomes more of a force in British politics—and especially within the Conservative Party—there is a risk that this conflict will play into larger SNP narratives about the distinctiveness of Scottish political thinking compared to that of their English neighbors. Although, polling in Scotland does not suggest that argument will necessarily carry, with a recent YouGov poll finding broad opposition to both the lowering of the age for changing one’s gender identification and for removing the requirement of a gender dysphoria diagnosis. At the least, it entangles questions of Scottish democracy and the legal nuances of the Union with a debate over minority rights in the case of trans people and especially trans youth. 

Again, the Scottish situation is particularly thorny in light of the legally-binding 2014 referendum. Scotland’s devolved parliament is indeed a powerful one, and the politico-legal status of Scots within the U.K. is not one of an abused minority–though the vulnerability of trans people in Britain is of more cause for concern. But these newest fights do raise serious questions about both the voluntary nature of the Union and the nature of Scotland’s devolved status. And further antagonisms of Holyrood by Westminster in the forms of Brexit brinkmanship, cabinet scandals, and leadership turmoil have deeply complicated the supposedly settled nature of the 2014 plebiscite and Scotland’s status within the Union. Scottish independence–and, at a minimum, Scottish autonomy–will remain at the forefront of British politics for the near- and likely medium-term future. And it is likely that the nature of the issue will continue to test Britain’s democracy and rule of law in fundamental ways.