Performing not governing: Why the Scottish Government is legislating for show not effect

Now that the synthetic outrage is dying down – “dark day for devolution” and so on – we can reflect on what Lady Haldane’s judgement on the Scottish government's gender recognition legislation really tells us.  Turns out it says very little about our constitution, but a great deal about our politics and politicians.

The court judgement confirmed that the Secretary of State for Scotland's intervention to halt the Gender Recognition bill was lawful. Humza Yousaf's reaction was that it showed devolution was broken. Even he must have known that was way over the top. 

Paradoxically, the existence of the power to intervene is a consequence of just how wide Holyrood's legislative power is. So long as their main purpose is devolved, then Holyrood laws can affect things reserved to Westminster. That is why no-one argued that the gender recognition bill was beyond Holyrood's competence. The Secretary of State’s power – which has always been part of the devolution legislation – is to protect reserved, usually UK-wide, law from adverse spillovers from a competent Scottish bill.

In this case there was absolutely no surprise about the problem. Legislating to allow self identification of gender change alters the effect of reserved equalities law; most obviously, single sex spaces for women would be opened up to anyone who self-identified as female. 

A blatant loophole is for male sex offenders to identify as women, and gain access to women in vulnerable situations. This is not just a theoretical risk. For reasons that are not clear, the Scottish Prison Service has been behaving as if this already was the law, resulting in high-profile examples of offenders who discovered only after conviction of a sexual offence they were women. Lady Haldane, however, just looked at the constitutional law. Did the bill affect reserved law, could the Secretary of State intervene, and had he acted reasonably?  Well, yes, yes and yes. Pretty obviously, if you read the judgment.

So the surprise is not that there is a major problem with the policy.  Everyone knew that. Could the Scottish ministers simply not see it? Certainly indeed some public statements on the question, including by the former first minister, suggest remarkable muddle headedness. 

But more likely, it suited them not do anything about it. They determined to press ahead with a policy that they must have known was always going to run into the buffers: better to be seen on the side of trans people, rather than to succeed in changing the law in ways that might help them. This is, in the current phrase, ‘virtue signalling’: legislating for show not for effect.

A government that did actually want to make changes to the law to improve the lives of people in these difficult circumstances would have worked hard to find a way to balance these conflicting requirements, and would have tried to manage the interaction with equalities law and the UK government in advance.

Knowing that there was a genuine and difficult problem on reserved law, and knowing that there was an intervention power that might be invoked, a government of grownups would have tried to find a way through, to make some progress on their policy objectives. Instead, the Scottish Government seem to have concluded their job was to campaign alongside activists seeking change, rather than behave like a government. Performing not governing.

On gender recognition, bigging up a fight with Westminster suits Humza Yousaf more than actually delivering a change in the law, which might in fact be unpopular with Scottish voters. In any event delivery is not his objective, but identifying himself as against London government.

There’s a lot of it about. Just a couple of weeks ago, Our Scottish Future did an analysis of the Scottish Government's capacity to deliver and implement policy. The message was clear: literally thousands of consultations and strategy documents – this year running at 1.4 new strategies per week – but a dismal delivery record, such as the woeful Pisa figures, showing just how far behind Scottish education has fallen. Plenty of saying, but not much doing.

On gender recognition, bigging up a fight with Westminster suits Humza Yousaf more than actually delivering a change in the law, which might in fact be unpopular with Scottish voters.  In any event delivery is not his objective, but identifying himself as against London government. That is why, although Lady Haldane’s judgement was about as negative as it could have been for the Scottish Government, you should not be surprised when Yousaf sends his hapless Lord Advocate yet again into court with threadbare arguments to keep the dispute alive and the Greens onside. Government as theatre can be painful to watch, especially as it descends into farce.

Sadly this appetite for pantomime government is not confined to Edinburgh. The Supreme Court has looked at the evidence and concluded Rwanda is not a safe country for migrants.  Westminster is now considering legislation to declare it is safe. The echo of panto might be amusing (“Oh yes it is…”) were the whole thing not so tragic. This nonsense may even make it onto the statute book, so we maybe could do with some intervention powers in London too – perhaps from a genuinely powerful second chamber.  But that’s another story.

There is a common thread here.  If politicians and governments see their jobs not as getting things done but embodying different identities – separate Scottishness, little Englander, anti European,  woke or anti woke (whatever, if anything, those mean) – then government action becomes a dumbshow, acting out a kind of warped morality play, to persuade groups of voters that they are (literally) represented, not served. 

Whether government makes their lives better or worse is not the point. This is the story of Brexit, and of a decade of post referendum independence campaigning, and now of the gender legislation.

Voters however are beginning to see through the game of charades.  Change cannot come soon enough: let us have politicians who understand that government is not a performance, but a responsibility.

Jim Gallagher is an honorary professor at the University of Glasgow and a former senior civil servant.