Britain is currently shivering through its 21st century winter of discontent. An exhausted government battered by continuous public sector strikes struggles to remember why on earth it didn’t much bother governing the country for the previous twelve years. 

Why didn’t it enact more significant legislation? Why didn’t it address the haemorrhaging of its younger voters? Why didn’t it make investments in infrastructure whilst money was cheap? Why didn’t it really direct the state at all, except to leave the European Union at great expense without much planning for what might happen next? These are the questions haunting some of the more reflective Conservative MPs, the party’s dangerous intellectuals.

Dreadful as a lobotomised government, economic stagnation and a poorly-delivered Brexit may be, Britons around the whole country should recognise that the much greater threat to our security, prosperity and sanity remains — that posed by populist and separatist nationalism.

The spectre of Scottish nationalism — a 20th century answer to a 19th century question, if ever there was one — looms over Britain once again this week. HM Government, in a rare spasm of lucidity, has announced that it will use s.35 of the Scotland Act 1998 to block the nationalist administration’s gender recognition Bill.

The controversial Bill would allow persons in Scotland to change their legal gender without a medical diagnosis of dysphoria, after a far shorter period of time living as their “acquired gender” (for adults, three months). It would further permit sixteen and seventeen year olds to acquire Gender Recognition Certificates.

The nationalist reaction has been predictably scripted outrage

The British government has declared its intention to issue an order under s.35 of the Scotland Act to prevent the Presiding Officer of the Scottish Parliament from submitting the Bill — which has been passed by a large majority in the devolved legislature — to the King for his Royal Assent.

Section 35 of the Scotland Act provides that the Secretary of State may issue such an order if he has reasonable grounds to believe that a Bill would be incompatible with the UK’s international obligations, British defence or national security, or if it would modify the law on reserved matters — matters on which Parliament did not delegate lawmaking authority to the devolved Scottish Parliament — and have an adverse effect on the operation of the law applying to reserved matters.

On Tuesday afternoon, the Secretary of State for Scotland, Alister Jack MP, told the House of Commons that the government believed that the Bill would have “serious adverse effects on the operation of the Equality Act 2010”, (Parliamentary legislation on a reserved matter). Mr Jack’s junior minister, John Lamont MP, further argued that these adverse effects might include consequences for the operation of single sex clubs, schools and rules concerning equal pay.

A recent paper for Policy Exchange by Dr Michael Foran, a Public Law lecturer at the University of Glasgow, set out a case for a s.35 order in considerable detail. Dr Foran argues in particular that a very recent decision in the Scottish courts (For Women Scotland v The Scottish Ministers [2022] CSOH 90), which ruled that Gender Recognition Certificates alter a person’s sex for the purposes of the Equality Act, strongly suggests that the Scottish Bill would make several changes to the operation of UK law in Scotland. 

The government’s published reasons for invoking s.35 of the Scotland Act show that the Secretary of State considers the application of the Equality Act to be affected by the Bill’s amendment of the Gender Recognition Act 2004. The government stresses that the Equality Act was “carefully drafted in the light of [ … ] the limits of the 2004 Act”. As a result of amending the 2004 Act — by making the acquisition of a GRC considerably easier — the proposed Scottish legislation affects UK law on “equal opportunities”, a reserved matter.

The nationalist reaction has been predictably scripted outrage. It is hard to avoid the suspicion that the Sturgeon administration is rather cynically exploiting the resultant showdown with Westminster (the Conservative government is hardly acting out of innocent disinterest, either, but they at least did not choose to introduce such socially and constitutionally controversial legislation). 

Nicola Sturgeon took to Twitter to describe the government’s decision as “a full-frontal attack on our democratically elected Scottish parliament and it’s [sic] ability to make it’s [sic] own decisions on devolved matters”. Keith Brown MSP, the SNP’s deputy leader, claimed “our democracy is at stake” and somewhat predictably asserted “only independence can guarantee Scotland’s rights”. 

Lauren Oxley, an SNP councillor who also works as a constituency assistant to Marie McNair MSP, suggested that “anyone who believes in the integrity of democracy & devolution should be outraged”. The SNP itself denounced the UK government for “using the trans community to … attack devolution”.

This rhetoric is more than a little rich from the SNP, a party explicitly committed to destroying the devolution settlement. Use of the s.35 powers in the Scotland Act is not an attack on devolution. It is devolution. 

Section 35 was included in the Scotland Act precisely to make sure that the devolution of power to the Scottish Parliament is sustainable, long-lasting and part of a healthy and democratic constitutional order across the United Kingdom. Its framers — not least Donald Dewar and the then Labour Government  — saw the devolution settlement as maximising Scotland’s autonomy and influence as part of the larger United Kingdom.

The nationalist party’s stated goal is secession, and its implicit strategy is to render devolution unsustainable. It attempts to accrue the aura of sovereignty to the devolved executive and legislature, a sovereignty it does not possess. Its gender recognition Bill is an attempt to fire up its base by forcing a confected constitutional showdown, in a manner similar to its manifestly ultra vires Independence Referendum Bill last year. It seems likely that the present Bill will likewise end up before the courts.

The SNP is the cuckoo in devolution’s nest

It cannot be stressed enough: the SNP is the cuckoo in devolution’s nest. Its goal is to destroy the settlement, if necessary by a gruelling attrition which grinds down Scottish political life and clogs up the resources of the UK courts and government.

Equally galling is the reaction of some ostensibly unionist parties to the government’s decision. The UK Labour Party has indicated it will not challenge the intervention, but a significant number of Scottish Labour MSPs have voiced their fury. Paul Sweeney MSP, speaking to the BBC, branded the Scotland Secretary “Viceroy Jack”. 

Monica Lennon MSP said Tuesday was “a bad day for democracy, devolution and for human rights”. Leaving the final criterion aside, a s.35 order is manifestly part of the devolution settlement and a part of the UK’s democratic constitution. 

The First Minister of Wales, Mark Drakeford, similarly described the government’s actions as “a very dangerous moment” and potentially the beginning of “a very slippery slope indeed”. His comments were in explicit agreement both with Mrs Sturgeon and with the Plaid Cymru leader Adam Price.

These short-termist moves to embarrass the Tories by tactical cooperation with nationalist parties are dangerous. They feed into nationalist narratives of the fundamental insufficiency or illegitimacy of devolution as a political and constitutional settlement. Nationalist movements aim to break up the country which the Labour Party seeks to govern. If the Labour Party wishes to demonstrate that it supports both devolution and British democracy, its representatives desperately need to be clearer about this.

Both the government and the Labour Party should challenge Mrs Sturgeon’s nationalists and her auxiliaries to bring their case to court. If the Scottish government and its useful idiots think that s.35 has been improperly invoked, let them demonstrate it before the judges.

Unionists — whether on the Left or the Right — cannot confine their activities to parrying the cynical manoeuvres of the Scottish nationalist government. Neither is it enough to rely on Project Fear, simply to remind the Scottish electorate of the demonstrable economic, social and political dangers of secession. By itself, this rhetoric risks appearing patronising.

Instead, two more substantial projects are required. First, unionists must overcome the (often admirable) British tendency to avoid political theorising. The philosophical foundations of nationalism as an ideology must be subjected to serious intellectual attack, and the populist misrepresentations of the British constitution must be exposed. This kind of sustained criticism is far less patronising than pursuing Project Fear alone. 

Furthermore, and perhaps more importantly, the British political parties must make a positive, explicit and weighty case for the Union. “Better Together” cannot remain a slogan. From shipbuilding on the Clyde to advancing British and Scottish interests abroad, the UK’s government and its Labour government-in-waiting must give Scottish voters the electoral ammunition necessary to defeat populism, nationalism and separatism at the Scottish ballot box.