Lesley Riddoch: The truth about the Section 35 challenge

The negative headlines appeared within minutes of the widely anticipated announcement.

The Scottish Tories’ deputy leader Meghan Gallacher said: “A strong leader, acting in the national interest, would revisit and amend a profoundly flawed bill.”

Except, as Social Justice Secretary Shirley-Anne Somerville pointed out, Westminster didn’t ask for amendments to the bill through its nine-month passage in Holyrood and have refused Scottish offers to work with the UK Government on potential changes.

Still, don’t let the facts get in the way.

Ms Gallacher also observed that Humza Yousaf “should be focused on the real priorities of the Scottish people rather than a costly, self-serving legal battle”.

Agreed. Though if Westminster kept to its own side of the devolved park, our FM wouldn’t have to waste time and taxpayer cash consulting the constitutional referees.

Others have suggested the Section 35 challenge is an attempt to deflect attention from jaw-dropping revelations about the current absence of SNP auditors.

Maybe, but this decision had a non-negotiable expiry date of Friday. An announcement couldn’t be delayed.

Several folk on Twitter have asked how this advances the cause of independence.

Yet the answer has come straight back – if Section 35’s use isn’t challenged, it will soon become the norm.

Indeed, Glasgow University law lecturer Dr Michael Foran told BBC Scotland that “it’s unclear where the boundaries lie” with this hitherto unused section of the Scotland Act, tweeting that the odds for success are “slim but not impossible”.

“Chances are the challenge will succeed in the lower courts but be struck down on appeal. Two former Supreme Court judges have said a legal challenge will most likely fail,” he said.

Joanna Cherry MP says she cannot understand why the Scottish Government wants legal action it’s unlikely to win when “reform could be effected in Scotland without breaching equality or human rights law”.

Still, it seems likely that even after “homemade” reform, a Section 35 veto would still be slapped down. So, a legal challenge is inevitable. Afterwards, lawmakers and voters alike will know exactly where they stand.

If that’s in the defeated camp again, comparisons will doubtless be drawn with Nicola Sturgeon’s Supreme Court indyref2 strategy. Yes, that ended in failure, after the ruling that the “world’s most powerfully devolved parliament” is incapable of holding a lawful referendum.

READ MORE: Section 35 block on Scottish gender reform to be challenged in court

But it was also a sort of result – crystallising the impotence of Holyrood, and the hollowness of claims that Scotland is in a voluntary union.

According to Alba’s women’s convener Dr Yvonne Ridley: “Humza Yousaf’s decision ... is an act of sabotage that will further result in the SNP holding back the cause of independence.”

Well, mebbes aye, mebbes naw.

If Yousaf had decided not to proceed with a Section 35 appeal promised repeatedly in his recent election campaign, a whole load of other headlines would have appeared.

“Yousaf – bottled it.”

“Scottish Parliament smacked down.”

“First leadership election pledge broken.”

And – though perhaps only in The National – “Yousaf climbdown leaves constitutional door open for endless London vetoes”.

Put simply, the limits of Section 35 power have to be established or Holyrood will forever be looking over its legislative shoulder. And that applies to ALL MSPs from EVERY party that helped get the GRR Bill over the line last year with a whopping two-thirds majority.

Where does Scottish Labour stand on Westminster’s veto of a Holyrood Bill backed by its own MSPs?

Scottish Labour equalities spokesperson Paul O'Kane wisnae sure, saying: “The election of a new First Minister should have provided a reset moment on this debate. Instead, everyone is being failed by the constitutional row that has engulfed this bill.

“Trans people and women are still being failed and the SNP and Tory governments are doing nothing to find consensus. A fraught and expensive legal battle could have been avoided if both of our governments had been more willing to work in good faith to deliver a bill that works for everyone.”

Meaning?

As Daily Record political correspondent Paul Hutcheon observed, this statement from Scottish Labour, “read like it went through 1000 drafts”.

Quite.

But Scottish Labour leaders past and present were more forthright.

Former Labour leader Richard Leonard tweeted his welcome for the Section 35 challenge: “The update to gender recognition law passed overwhelmingly by the Scottish Parliament would make life a little easier for one of the most persecuted minorities in society. It was both necessary and long overdue, and must be allowed to stand. Solidarity.”

Anas Sarwar also backed Humza Yousaf, saying Alister Jack’s Section 35 veto is stoking a constitutional fight based on conflating women’s safety concerns with provisions of the bill.

He said: “I think we were right to support the principle of removing the inhumanities of obtaining a GRC, but I think the government was wrong ... rejecting those amendments around sex offenders and single sex spaces ... that mistake is now pretty clear for people to see.”

Meanwhile Alex Cole-Hamilton told Radio Scotland two weeks ago that he fully expected Humza Yousaf to follow through with a legal challenge because “it’s about progress”.

Something missed by BBC correspondents but happily spotted by the MSM Media Twitter account.

READ MORE: Joanna Cherry 'cannot understand' legal action on gender reform veto

And in January, Tory MSP for the West Scotland region Jamie Greene voted for the GRR and warned Rishi Sunak in a letter seen by The Times: “I fear the UK Government’s rumoured moves to block the Scottish Gender Recognition Reform Bill will set us back years.

“This move could be a gift to proponents of independence who may accuse us of tearing up the devolution settlement. It could be a gift to Labour, as we show to LGBT+ people, their friends and their families, that we are happy to leave the centre ground for others as we fail to live up to our promise to govern with compassion.”

Well, quite.

And obviously, the Scottish Greens want to challenge Westminster’s attempt to veto “one of the most scrutinised Acts in the history of the Scottish Parliament, after two public consultations and years of debate”.

So, are Yessers really going to oppose Humza Yousaf’s challenge to an overbearing, over-reaching Westminster veto when two Labour leaders, one LibDem boss and a Tory rebel all essentially support him?

It was the Prime Minister, not the present or previous first minister, who decided GRR would be the ideal opportunity for a constitutional arm-wrestling contest, believing controversy would blunt opposition to Number 10’s naked power-grab.

So, has Sunak gambled right, or has Humza Yousaf outsmarted him – set to “win” unprecedented political (and cross-party) support for Holyrood’s right to legislate even if the Scottish Government formally loses the legal Section 35 challenge?

Contrary to expectations, a pyrrhic victory for the new First Minister is on the cards.