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Tuesday, 21 March 2023

English Democrats Spring Conference of 2023


 

We recently had a very successful Spring Conference with many excellent speakers.  Here is my contribution to the speeches:-

 

Ladies and Gentlemen

 

Welcome to the English Democrats Spring Conference of 2023.

 

I would like to thank you all for coming to Rutland, whose Motto is “Multum in Parvo”, meaning:- Great even though Small.  Perhaps that should be our motto for this conference Ladies and Gentlemen!

 

I would like to give a special thanks to Bridget Vickers – stand up Bridget!  Bridget has organised our weekend. 

 

Ladies and Gentlemen what I usually do is give a round-up of my observations on the state of politics, in particular, the other parties, but I think on this occasion we have got to start by looking a little wider.  In particular it is worth having a think about the state of the Mainstream Media and also of the British State itself.

 

So far as the Media are concerned, all the broadcast television media, with the exception of GB News, are completely dominated by the woke, internationalist, multi-culturalist, cultural Marxists.  Not only can you not trust what they say about things, but you have to be suspicious about what they are not commentating about as well. 

 

Often, when there is what they would call a human interest story being made much of, what they are actually doing is using that to blot out the need to report a story that they don’t want to cover. 

 

It is also worth bearing in mind that one of the things that has been shown very clearly by the Coronavirus “Emergency” is that the media fully colluded with the British Establishment.  It was no accident that Ofcom and the Media refused to cover any contrary narratives.  This was a concerted programme of propaganda.  Even now they are mostly trying to minimise revelations about Matt Hancock’s WhatsApp messages.

 

There are some internet based radio stations that are still trying to report the truth, but, in the main, the conventional radio stations are equally infected with multi-culturalist propaganda narratives.

 

When you accept that the Media are neither truthful nor reliable sources of information then you are in with a chance of getting a clearer perspective. 

 

The problem is, of course, that even social media is contaminated by wokery.  Consider the perversions of the search algorithms within Google and the outright banning or shadow banning of any serious oppositional narratives on Facebook, YouTube and Twitter.

 

On Twitter we are shadow banned, whereas many other groups are outright banned and you cannot even share their links on Twitter.  

Turning to the State, the first thing to observe is, of course, that it is only in England that the British State rules directly.  That is because Scotland, Wales and Northern Ireland have their own political systems. 

 

In England however, as we experienced all too clearly during Lockdown, the British State and the British Political Establishment rule over us and do not care what we English people think about things.  In fact their only interests in us and what we think is to find ways to tax us and to side-line us.  And Ladies and Gentlemen that is not just Matt Hancock that I am talking about!

 

The British Civil Service is obsessed with multi-culutralism, BAME and LGBGTQ+ initiatives.  If you are a Minister you cannot get the Civil Service to even do their jobs properly, let alone do what you want them to do that is if your agenda is not fully onside with the multi-culturalist.

 

As Lord Frost wrote recently in the Daily Telegraph.

 

Bill Nighy's portrayal in ‘Living’ of a 1950s government official spending his career not serving the public sadly remains rather too true to life in the modern civil service

 

Lord Frost continues:-

 

Imagine a friend comes to you. She has been offered the job of new chief executive of a large, long-standing, organisation – business, charity, school, whatever – and he wants your advice. As you talk, the following becomes clear: she will not be allowed to move, or dismiss, any of the previous senior staff, however badly they are performing. Indeed she won’t be able to hold anyone to account for poor-quality work.

 

She will be able to bring in a maximum of three advisers to help, but they won’t be allowed to instruct, or have any say in managing, anyone else in the organisation. She will be prohibited from having any say in the organisation’s finances, pay arrangements, structure or HR policies. She will generally have no say over who is hired or promoted.

 

She can be summoned at just hours’ notice to answer in public on any aspect, however minor, of the organisation’s work. If her staff provide wrong information or try to conceal problems, they will not be blamed, but she will.

 

Lord Frost then asks

 

Would you advise your friend to be a Cabinet minister? Surely you would say: “You must be mad. You can’t change anything and you can’t run the organisation. How do you expect to achieve anything?”

 

Lord Frost continues

 

I am unusual in having been a civil servant, a special (political) adviser and a minister. In all those roles I have seen that the problem is that, as Sir Humphrey puts it to Jim Hacker: “Minister, you are not here to run this department.”

 

Lord Frost concludes

 

Obviously this is unsatisfactory for all. One person’s determination to deliver is another’s accusation of “bullying” – and it is noticeable that most such allegations are against determined ministers with a clear agenda who want to get things done, and come from departments such as the Home Office, the Foreign Office, or Ministry of Justice, which are visibly poorly run or ineffective in getting a grip on their policy agenda.

 

I don’t think we can do better than consider the announcement recently made by the Permanent Secretary of the Home Office, i.e. the Senior Civil Servant in charge, Matthew Rycroft who recently announced a revised Home Office Mission Statement, which was reported in the Daily Telegraph as follows:-

 

“Mr Rycroft’s memo, which was part of a weekly news bulletin sent across Whitehall, stated: “In the Home Office, our departmental purpose, or mission, is to contribute to a safe, fair and prosperous UK.”

 

He continued: “Whether it’s in righting the wrongs suffered by some members of the Windrush generation, our efforts to combat violence against women and girls, or our work to expand global talent visa routes, I would like that sense of purpose to run through everything we do.”

 

Who has spotted the missing key policy area that almost every English person would think is their principal job?  Anybody? 

 

That’s right their Mission Statement doesn’t include any attempt to control either mass immigration or illegal immigration. 

 

Then we have the Leftist Senior Civil Service whose report on Party-gate did for Boris Johnson, who it now turns out is not only a Labour supporter but is going into a senior position in the Labour Party.

 

So Ladies and Gentlemen if you are asked is the Civil Service impartial?  Answer with two words: “Sue Gray”!

What about the Judiciary?  The relevant jurisdiction for England is that of England and Wales. 

 

First it is worth pointing out that the former Lord Chief Justice, Lord Thomas, is heading up the Welsh Government’s push to separate the Welsh jurisdiction from the English one.

 

Personally I support that move as we will then be left with an even clearer separation between the treatment of England and the other Nations of the UK. 

 

Judges in England are appointed, and have been ever since the time of Blair, by a Blairite quango, called the Judicial Appointments Commission.  What the JAC says is that it won’t even consider an application from somebody to become a Judge or to be promoted unless they can first demonstrate a “Life-time’s commitment to Equality and Diversity”. 

 

This system has now been in place for nearly 20 years, with the objective of the last proper Lord Chancellor, Derry Irvine, as set out in his speech when this was being set up in which he said that he was setting up a system that would ensure that “Nobody with reactionary views was either appointed or promoted to the Bench”.  This is a Political Appointment system.  By now Irvine’s objective has now been fully realised.  There is nobody on the Bench in England who is not a Social Justice Warrior or who has some other good reason for being in favour of “Equality and Diversity”. 

 

I think I can give no better example than to tell you than what Joshua Rosenberg KC, the husband of Melanie Phillips, wrote.  Joshua Rosenberg is, I would say, the leading journalist, and media commentator on legal matters.  Obviously he is Jewish. When the latest Master of the Rolls was appointed (the Master of Rolls is one of the most senior Judges in England) Joshua Rosenberg wrote approvingly that Equality and Diversity was making good progress in Judicial Appointments and the measure of that progress was that, of the last 8 Masters of the Rolls, 7 had been Jewish and the other one was gay!

 

In Lockdown what we saw was the impact of the political bias of the Judiciary in its decisions.

 

Equality and Diversity of course is a contradiction in terms which can only be understood as official jargon for internationalist, statist, multi-culturalism.  This means that the Judiciary are all pro Big State and therefore any challenge to the State’s powers is doomed to fail before such Judges, whatever the traditional English Constitution may have to say. 

 

The English Jury system which was the real defender of our liberties has also been pushed to the margins of the court system, whereby it only applies to certain serious crimes. 

 

Most other crimes are dealt with by judicial statist, multi-culturalists.  The State employees are called District Judges and sit in the so-called “Magistrates” Courts.  Even the unpaid civilian magistrates of course have had to go through the Judicial Appointments Commission’s process and to demonstrate their Social Justice Warrior credentials.

 

Now turning to big business.  The corporate world seems to have been fully taken over by the Equality and Diversity obsession as has all the various Regulators. It is amongst small business and ordinary people that we still find open support for traditional values. 

 

What about local government?  What about the scandal of the cutting down of thousands of trees in Sheffield, about which there has just been a report showing an appalling lack of honesty, transparency and the total contempt for the electorate by Labour’s One Party State apparatchik who run Sheffield City Council.

 

So Ladies and Gentlemen what do you think of the State of the British State here in England? 

 

Yes I agree it is a mess and a mess that is hostile to the interests of the English Nation. 

 

Then of course, all this is coupled with the British Establishment’s commitment to try and break England up into bogus “Regions”.  Regionalisation has by no means gone away as their agenda. 

 

Turning now to the political parties.  I will start with Labour, as Labour is currently looking as if it is going to form the next Government after the next General Election in January 2025. 

 

In England we need to notice that Labour is the party which is openly committed to the Equality and Diversity agenda and are openly Social Justice Warriors and are openly anti-English.  The exception to this is that in the Red Wall areas they do try to pretend to be traditional pro-white working class, although if any serious attention is paid to what Labour are up to by anybody in these areas they would know that Labour is their enemy rather than their friend.

 

So far as England’s future is concerned Gordon Brown has recently reported on Labour’s proposals for Constitutional Reform, the key issue of which is to be cemented into the UK Constitution is the idea of Regionalising England. 

 

This is a grave danger for the future of England.  We will not get the media to report that though.  As Laura Kuensberg informed us:-  We are “blocked”! 

 

We also struggle to get most ordinary people to take an interest in such an abstract idea as the threat to English integrity.

 

Turning to the Conservative Party, which over the course of the last year has had three leaders in decreasing order of democratic mandate. 

 

Boris Johnson was elected as Leader of the Conservative Party by the membership and then won a land slide electoral mandate on the admittedly largely bogus manifesto on “Getting Brexit done”!

 

We then had Liz Truss elected by the Conservative membership without a general democratic mandate. 

 

Now we have got Rishi Sunak, completely unelected, whose leadership is solely the product of a backroom coup. 

 

Just listen to this extract from the former Express political editor and former UKIP MEP, Patrick O’Flynn. 

         

EARLY last summer a Tory backbencher loyal to Boris Johnson sought him out to warn him his position was in great peril and to urge him to ensure the first plane carrying illegal immigrants to Rwanda took off.

 

This MP’s message was that the Government should defy the European Court of Human Rights and get the Rwanda deportation programme started so that the heartland Tory vote – including Red Wall voters – would feel once again that Boris Johnson was their guy, delivering their wishes in the teeth of Establishment resistance.

 

Johnson’s reply to this MP was that he needed to show “strategic patience”!

 

Some six weeks or so later the blond bombshell was announcing his enforced departure from Downing Street. One reason the “herd” of Tory MPs felt able to move against him was that Johnson was no longer seen as the people’s hero battling on their behalf against the high-ups.

 

The same is now true of Rishi Sunak. Though the Prime Minister never had a great connection with 2019 Tory voters anyway, he simply cannot afford to let them down much longer on the issue of stopping the small boats.

 

There have been spontaneous public protests against migrant hotels from Merseyside to South Yorkshire, Bedfordshire to Lincolnshire and Cornwall to Kent. In Eastbourne, Sussex, there are no fewer than nine seafront hotels now given over to accommodating illegal arrivals who have lodged asylum claims.

Elsewhere wedding bookings have been cancelled and staff have been made redundant as hoteliers have accepted lucrative taxpayer-funded contracts to become asylum-seeker hostels. (Such as the Lion in Shrewsbury)

 

There are also instances cropping up of councils using grants given to them under the levelling-up policy to purchase new swathes of housing to be dedicated to refugees only, especially those from Ukraine and Afghanistan. Quite why those who have already been given refuge in Britain from war zones should then also be fast-tracked in front of a million British families waiting in cramped or temporary accommodation for permanent social housing has not been satisfactorily explained. The effect of the policy is certainly to add insult to injury as town centres and seafronts are judged by many to have become less safe places for locals, especially women and girls.

 

Many Conservative MPs, particularly those sitting in Red Wall seats and other constituencies with big working class populations, are tearing their hair out after doorstep conversations and letters and emails from constituents expressing disgust at the Government’s performance on this issue.

 

The people around Sunak may suppose that after the Conservatives contrived to have three different prime ministers in a single year last year, that he is safe from yet another defenestration. If so then they should think again.

 

With crucial local elections looming in early May, the Tories could be headed for results almost as bad as those achieved by Theresa May in the European parliamentary elections of 2019. She chalked up a nine per cent vote share which became her political death warrant.

 

The principal danger for the Conservatives in these looming local polls is not that huge swathes of their 2019 general election backers will come out for Labour or another left-of-centre party, or even for Richard Tice’s Reform party. It is that there will be something akin to a general strike by Conservative-leaning voters. They will not come out at all.

 

But given Sunak’s lack of any direct mandate from Tory voters that would be a devastating blow. If the Prime Minister thinks that playing the small boats issue long - so that it is turned into a 2024 manifesto retail policy promising to withdraw from the European Convention on Human Rights – will be sufficient to give him necessary momentum then he is going to be sorely disappointed.

 

Voters know full well that the Conservatives are primarily to blame for the havoc that “lefty lawyers” can cause because the Conservatives hold a big majority in the body that makes our laws and yet have failed to make new ones that prevent wholesale abuse of the asylum system.

 

Sir Kier Starmer may be another Lefty lawyer standing in the way of solving the migrant crisis.  Rishi Sunak is another Globalist super rich merchant banker who wants to grant even more legal visas to get illegal immigration off the headlines, whilst pretending that there is some real difference between the two Parties and so hoping to deceive the electorate again with what the Tories call a Populist Positioning Policy, which, when I was in the army, was called “Bullshit Baffles Brains!”

 

So Ladies and Gentlemen the Conservative and Unionist Party is not a Party that anyone could trust to try to implement socially conservative ideas or even patriotic ideas.  They are just as multi-culturalist and globalist as Labour, it is just that their strategy is to lie about it.

 

Turning to the LibDems they remain neither liberal nor democratic, but they are capable of  effective sly tactics, particularly in By-elections.  In seats that have been traditionally Conservative they are likely to do well, as socially Conservative voters will probably decide that it is not worth the bother of voting for the Conservative Party.

 

The Greens remain the watermelon party.  “Green on the outside and red on the in!”

 

Then we have the Reform UK Party which is the former Brexit Party.  It is not technically a party at all, it is a limited trading company, but it is a limited company that must still have a considerable proportion of the £17.5m which as the Brexit Party it raised, even if Nigel Farage may have taken a substantial amount of that money out when he ceased to be the Leader. 

 

Richard Tice, Reform’s Leader is not willing to get involved in any discussions with any other political groups and, indeed, when the Conservative MP, Andrew Bridgen, came out against the Jab, he went so far as to say that he wasn’t interested in having Andrew Bridgen in the Reform Party, as he was absolutely vile to have made any comparisons with the Holocaust. 

 

Richard Tice then had egg on his face when it became clear that Andrew Bridgen was just quoting a Jewish scientist and many senior Jews have written to the Prime Minister to complain about the use made of Andrew Bridgen’s comments, as the comments were not anti-Semitic.

 

Despite Reform UK now appearing to be getting 8% in the opinion polls they have not done well in By-elections despite spending the full £100,000 campaigning allowance.

 

The opinion polls however suffer from exactly the same problems as the Mainstream media.  The pollsters are invariably multi-culturalist and the participants in the polls are usually people who have signed up on-line to take part.  The result is that opinion polls have been increasingly unreliable in predicting what people are actually thinking. 

 

Then there is the Reclaim Party, which is basically Laurence Fox with a big chunk of money in the bank account donated by the Jewish financier, Sir Jeremy Hosking.  You cannot expect the Reclaim Party to mount a full-on challenge to multi-culturalism.  

 

The last party I would like to comment on is UKIP.  UKIP kindly invited me to speak at their conference last weekend.  I think it is fair to say that as UKIP currently stands they and we do agree on many things.

 

The main area we do not agree on is the question of England and the English Nation.  They are British nationalists. 

 

UKIP now suffer from all the same problems that we suffer from in terms of media coverage and social media reach, but at least their invitation of me to address their conference a couple of weeks ago shows that they are thinking outside the box of party partisanship.  That is good news and bodes well for future cooperation.  We shall hear from their Chairman, Ben Walker, later today.

 

Now Ladies and Gentlemen let’s turn to the English Democrats.  Didn’t we do well to oppose Lockdown and Jab mandates?  And what about the Ukraine War?  We also remain the only English nationalist party.  We do suffer from all sorts of difficulties in terms of getting our message out there, which can only really be got around by getting leafleting done.  This year we have got a tranche of local elections and we have also got the possibility of standing in some Mayoral elections.

 

The following Councils have Directly Elected Mayoral Elections in May 2023 and I have put out a call for members to come forward who live in, or own property in, or rent in, or are on the electoral roll in the following local authorities:-

 

North of Tyne Combined Authority

Bedford City Council

Leicester City Council

Mansfield City Council

Middlesbrough City Council

 

If you qualify to stand and would be willing to do so then please make yourself known to me as soon as practicable.

 

As the only English nationalist party it is our job to fight the British Establishment and especially Labour’s agenda to break England up.  As nationalists it is our job to fight against the internationalist, multi-culturalist agenda. 

 

We therefore have some very big tasks ahead of us with few tools to do so. 

 

In that regard I cannot do better than to quote Winston Churchill who said at a decisive moment when many wanted to give up “If this long island story of ours is to end at last, let it end only when each other of us lies choking in his own blood upon the ground”.  With that graphic thought in mind Ladies and Gentlemen let’s make sure we aim high and aim to win!  We need to stiffen our sinews for the fight.

 

Wednesday, 4 January 2023

SCOTTISH TRANS RIGHTS AND THE FUTURE OF THE UNION


 

 SCOTTISH TRANS RIGHTS AND THE FUTURE OF THE UNION

 

Joshua Rosenberg KC is one of the leading legal affairs journalists and his sub- stack articles are usually worth reading from a lawyer’s point of view.  However like many practicing lawyers he is quite a literalist about legal issues and does not seem to be able to give much insight into the political moods behind the process of legislation.  He has however written an interesting article which does set out the mechanics of the situation very well.  For those who do not get his sub-stack here is the text:-

 

Scottish gender recognition: who decides?

 

Members of the Scottish parliament voted by 86 votes to 39 on 22 December to approve the Gender Recognition Reform (Scotland) Bill. That completed what the parliament calls stage three of its legislative journey, the equivalent of a third reading at Westminster. But the bill needs royal assent before it can become law.




Members of the Scottish parliament applaud the vote on 22c December

The Scottish bill would amend the Gender Recognition Act 2004 as it applies in Scotland. By removing the need for a diagnosis of gender dysphoria, the bill would make it easier for trans people who were born in Scotland or who live there to obtain a gender recognition certificate. It also lowers the minimum age for applicants to 16 and reduces the time required for the applicant to live in an acquired gender from two years to three months — or six months for those aged 16 and 17. There is also a three-month reflection period.

A section 35 order?

However, the UK government may try to stop the bill becoming law. Alister Jack, the secretary of state for Scotland, said on 22 December:

We share the concerns that many people have regarding certain aspects of this bill and, in particular, the safety issues for women and children.

We will look closely at that, and also the ramifications for the Equality Act 2010 and other UK-wide legislation, in the coming weeks — up to and including a section 35 order stopping the bill going for royal assent if necessary.

Before looking at section 35 of the Scotland Act 1998, it’s helpful to consider the history of this provision.

The Royal Commission on the Constitution, which reported in 1973, envisaged that UK ministers would retain a power to block legislation passed by a devolved administration:

However unlikely this may be, circumstances could arise in which a veto would have to be considered, whether to ensure compliance with international obligations, or to safeguard some other essential British interest, or to prevent adoption of policies considered to be inconsistent with the maintenance of the essential political and economic unity of the UK.¹

That approach was followed by the Labour government when it introduced devolution legislation in 1998.

Sections 28 to 33 of the Scotland Act 1998 deal with the powers of the Scottish parliament and rulings that may be given by the UK Supreme Court on its legislative competence. The Scottish parliament cannot legislate on matters that were reserved to the UK parliament under the devolution settlement.

However, as the UK government explained in explanatory notes at the time the Scotland Act was passed, there are certain limited circumstances where the UK government can exercise a policy control or veto over what legislation is enacted by the Scottish parliament, even although it is within its competence.²

[Section 35] defines what those circumstances are.

The thinking behind section 35

To understand the thinking behind section 35, it’s a good idea to look at the parliamentary debates on what became the Scotland Act.

In the Commons on 12 May 1998 (at column 267), the then secretary of state for Scotland Donald Dewar said:

We have a situation in which there is a division of responsibility as between reserved and devolved powers. If one takes a simplistic view, one might say that the writ of the Scottish parliament runs in devolved areas and that there will be reserved areas with which the Scottish parliament cannot meddle and where its writ does not run…

However, the world of politics and of legislation is not as neatly divided as that — there are no exact demarcations or neat barriers that cannot be crossed — so legislation in a devolved area of responsibility will often have implications for reserved areas and reserved functions…

Almost any legislation in Scots private law could have an impact on reserved powers, Dewar suggested. Without further protection, it would be too easy to challenge acts of the Scottish parliament.

I was not prepared to take the rather narrow view that, if there were a reaction, that legislation would probably be called incompetent or would be open to challenge. We therefore sought a balanced way to ensure that the competence of the parliament — its range of responsibilities — would be exercisable and at the same time would not give rise to abuse.

We have struck an important balance in the clause. The secretary of state will have recourse to the power, but it will be subject to a number of important safeguards. The first is that he or she must believe that there would be an adverse effect on the operation of an enactment as it applied to reserved matters. Secondly, the reasonableness test is built in. There is also the important safeguard that if the power is to be used, a majority in this house must be in favour, and that would not be given lightly.

An important safeguard… is that the decision would be open to judicial review. In my view, it would be open to judicial review in the Scottish courts. The courts would have to consider the adverse effects of such an order and apply the reasonableness test…

I stress that the process of government is a process of negotiation and discussion; it is a matter of bilaterals and discussions at an official level… Common sense dictates, consensus emerges and agreement is reached 999 times out of 1,000.

Later, Dewar confirmed:

The judicial review would be taken in the Court of Session in Scotland. It would be a challenge from Scotland and would be dealt with by the Scottish courts.

The bill was amended before it was debated in the House of Lords on 28 July 1998. Lord Sewel, for the government, explained (at column 1391) what the provision would do:

While, for the Scottish parliament to have a workable legislative competence, its legislation for devolved purposes needs to be able to have ancillary effects upon reserved matters, the government recognise that there need to be safeguards in cases where acts of the Scottish parliament could have adverse effects on the law as it applies to reserved matters. For example, legislation about housing or local taxation could possibly have an impact on the operation of social security legislation.

Clause 33 [which became section 35] therefore empowers the secretary of state, by order, to prevent a Scottish bill from being submitted for royal assent in certain circumstances…

These powers of intervention are of course meant to be long stops. Their use would require to be justified and would be liable to be scrutinised by judicial review. The amendments establish a series of tests which limit the extent to which legislation by the Scottish parliament can affect reserved matters. But the powers of intervention provide essential balance to ensure that there is a sensible outcome in relation to reserved matters.

Their existence should be sufficient to ensure consultation between Whitehall and Edinburgh so that there may be no need for them to be used. But there should be no doubt that this government will be willing to use the powers of intervention if it became necessary.

What section 35 says



Alister Jack’s reference to a section 35 order clearly envisages an order under subsection (1)(b): he is suggesting he reasonably believes the bill “would have an adverse effect on the operation of the law as it applies to reserved matters”.

The UK government is understood to be concerned about the potential impact of people with gender recognition certificates moving from Scotland to other parts of the UK, where where applicants for a gender recognition certificate must be 18 or over and have had a diagnosis of gender dysphoria. Jack also appears to be arguing that the bill might breach the Equality Act, which is a reserved matter.

The Scottish government’s justice secretary, Shona Robison, said “the legislation makes no change to the reserved Equality Act 2010 and that principle is enshrined in the bill”.

However, Kemi Badenoch, the UK government’s minister for women and equalities, took a different position:

What next?

It’s clear that the UK government wants the Scottish government to think again. It’s equally clear that the Scottish government is unwilling to do so. So we are facing, for the first time, what ministers believed in 1998 would be a rare occurrence. A more recent Cabinet Office memorandum of understanding confirms that the power to prevent a bill from becoming law is seen “very much as a matter of last resort”:

The UK government and the administration concerned will therefore aim to resolve any difficulties through discussion so as to avoid any action or omission by the devolved administration having an adverse impact on non-devolved matters.

We see from subsection (3) of section 35 that a secretary of state has four weeks from 22 December to decide whether to make an order. Any order would be subject to the negative resolution procedure in parliament.

As Dewar confirmed in 1998, an order made under section 35 can be challenged in the Scottish courts. We can expect the Scottish government and the UK government to disagree over whether the bill would have an adverse effect on reserved matters.

Any section 35 order would remain in force — and Scotland’s gender recognition legislation would remain on hold — unless and until the order is overturned by the courts. Regardless of who won the earlier rounds, you would expect a challenge brought by the Scottish government against the UK government to end up in the UK Supreme Court.

Is there another option?

Section 33 of the Scotland Act allows the UK government — acting through the attorney general or the advocate general for Scotland — to “refer the question of whether a bill or any provision of a bill would be within the legislative competence of the parliament to the Supreme Court for decision”. There is a four-week deadline.

Subsection (3)(c) of section 35 extends the normal deadline if a bill is referred to the Supreme Court under section 33 of the act. The secretary of state has four weeks after the court has delivered its ruling to make an order under section 35.

Since section 33 is mentioned within section 35, parliament must have envisaged a reference to the Supreme Court in the case of a bill that the secretary of state reasonably thinks would have an adverse effect on reserved matters.

So it looks as if the UK government could refer the issue to the Supreme Court instead of making an order under section 35 and waiting for it to be challenged by the Scottish government. Section 32 of the act says the presiding officer must not submit a bill for royal assent until all this has been sorted out.

On the other hand, section 33 is intended to deal with disputes over whether a bill is within legislative competence. The UK government would find it difficult to deny that the Scottish parliament has the competence to pass the gender recognition bill. The dispute is over whether that bill would have an adverse effect on other laws.

That may not be the sort of dispute that section 33 was intended for. On the other hand, the Supreme Court took a very pragmatic approach to its devolution jurisdiction last month when considering the Scottish government’s proposed independence referendum.

If the UK government can choose between being taken to the Court of Session by the Scottish government and referring the gender recognition bill to the Supreme Court itself, which should it prefer?

Obviously, it would be quicker to go straight to the Supreme Court. On the other hand, the UK government may be in no hurry to resolve the issue. The Scottish government would no doubt prefer the question to be considered by the Court of Session.

What would happen to the bill?

If the Supreme Court decides that the gender recognition bill would not be within legislative competence of the Scottish parliament — or if an order is made by the secretary of state under section 35 — section 36(4A) of the Scotland Act provides for the parliamentary proceedings to be re-opened and the bill to be amended.

But then the UK government could start the whole process again.

Statutory construction is difficult at the best of times and this is uncharted territory. I will be happy to update this piece further if I have got anything wrong.

1

Report of the Royal Commission on the Constitution 1969–1973 (the Kilbrandon report 1973), Cmnd 5460, para 765.

2

Emphasis added”

 

As a solicitor experienced in dealing with Judicial Review cases that article, I think, makes clear that there is a real risk attached to challenging this legislation by the “Conservative” Government.  There is a likelihood of the challenge failing and therefore the legislation being upheld by the Supreme Court as being within the powers of the Scottish Parliament. 

 

That leads to a conundrum for the “Conservative” Government.   If they do not challenge it, they will look weak; If they do challenge it and loose the case it will damage their credibility and also further damage the Union. 

 

If the legislation is not upheld then Nicola Sturgeon has a clear argument that the UK constitutional structure interferes with Scottish independence of action.

 

A further interesting development is that Sir Kier Starmer, the Labour Leader, has now come out in favour of extending Nicola Sturgeon’s “Trans” rights throughout the UK. 

 

I am sure in ideological terms this is opportunistic. It is howeveralso worth considering what impact his approach has on bridge building with the SNP.  Starmer is probably calculating that, after the next General Election; in January 2025, Labour may well be the largest party in the Westminster Parliament without having an overall majority and will therefore need to have the support of the SNP to get Starmer into Downing Street!

 

You may ask whether that has any impact on the future of the Union.  I would reply by asking what the electoral politics were behind the passage of the Home Rule Bill for Ireland before the First World War?  The answer is that the Liberals needed the support of the Irish Nationalists in order to retain power and the price of that support was Home Rule!