Making good law is difficult, but bad law is easy

Scotland's controversial gender reform bill is in the courts tomorrow, but has Humza Yousaf learned a hard lesson as he delays law on conversion therapy?

Screenshot: BBC Scotland 22 March

This article was first published in the Scotsman on Saturday 16 September. #BuyAPaper

Making good laws is hard work. It requires patience, forensic attention to detail and a willingness to listen to people you may not agree with, but have something to say on the subject at hand. Making bad law is easy. Just ask the Scottish Government. Its ministers are masters of the art.

On Tuesday, Lady Haldane will begin a three-day hearing at the Court of Session to hear the Scottish Government argue why the Scottish Secretary of State, Alister Jack, was wrong to use a Section 35 order to stop the Gender Recognition Reform Bill (GRR) from becoming law. The UK government argues that the bill, which gives anyone over 16 the right to change their legal sex by simply filling in a form, could have an adverse impact on the UK-wide Equality Act.

Government lawyers may attempt to mount an argument based on fine points of law, but underpinning the Scottish Government’s demand for the Section 35 order to be overturned lies a crude political argument. Big, bad Westminster is trying to stop the plucky Scottish Parliament from passing progressive legislation. It’s an attack on democracy. We demand a referendum now. Freedom! Or words to that effect.

But incisive analysis by a small team of women, published this week, exposes how bad a piece of legislation the GRR Bill really is. I hope the three members of the policy collective MBM Policy won’t mind me saying this, but they are part-time, poorly paid, freelance policy analysts. They have impressive CVs, but the machinery of government is not at their disposal. Just their laptops and big brains. And a commitment to good governance.

Their work on the GRR Bill shows a process that at best could be described as amateurish; at worst, deliberately contemptuous of convention. Their extensive analysis focuses on meetings in 2022 between the Scottish and UK governments to discuss the possible impact of the Bill. The Scottish Government claimed in Parliament that meetings were held fortnightly. Information obtained under Freedom of Information shows this is not true. There were ten meetings, not even one a month. And the Scottish Government took up to four months at a time to answer questions about the Bill, so stopping the UK government from scrutinising it properly.

There’s more, but the MBM report is best summed up by Professor James Mitchell of Edinburgh University, regarded by many as Scotland’s leading expert on public policy. He describes MBM’s work as “an important study exposing failings in relations between UK and Scottish Governments….IGR (inter-governmental relations) requires trust, honest flows of information, accountability.”

Trust. Honesty. Accountability. Words that are perhaps not readily associated with Scottish ministers these days. Let’s turn for a moment to safe drug consumption rooms. For years now, ministers have insisted that they could not sanction their use, even as drug deaths soared to the highest in Europe. Westminster won’t let us, they insisted. It’s an attack on democracy. We demand a referendum now. Freedom! You get the picture.

It now transpires that all it took for a pilot to be put in place was the Lord Advocate – a member of the Scottish Government – to give her go-ahead. A U-turn of such astonishing brazenness that it led Orwell Prize-winning author Darren McGarvey, amongst others, to suggest the government’s strategy may have killed people over the years.

“The Scot Govt. will run this pilot on the basis that this evidenced-based treatment could save lives. Therefore, every year, it has failed to do this, citing constitutional obstruction, may have cost lives.

“You wouldn’t shrug that off if it was a Tory or Labour government performing this 180 manoeuvre. Would you?” he challenged SNP loyalists.

But do I detect a change of approach? In yet another display of her uber-progressiveness, former First Minister Nicola Sturgeon had previously promised a Conversion Therapy Bill – much to the delight of trans activists who had campaigned for such a move.

The bill would, rightly, stop therapists from attempting to turn gay people straight. But it would also prevent people – including parents – from attempting to dissuade their child from changing their gender. As Helen Joyce, director of women’s-rights organisation Sex Matters pointed out, the bill conflated two quite different things. “The first is the historic abuse of gay people in an attempt to turn them straight – which is already illegal…the second is careful, ethical treatment for gender distress, which may have many causes and which often resolves,” she said this week.

Last week’s Programme for Government – the first by Humza Yousaf – did not include the bill. Instead, there will be a consultation which will not report until 2024. And who knows what the political landscape will be like then.

The delay of one controversial bill does not a good government make, but it is possible that the new First Minister is more interested in bread and butter issues – like fixing the NHS – than posturing on the global stage as a social justice warrior. Or it could simply be the wise counsel of one Kevin Pringle, the much-admired and skilful special adviser who helped secure an SNP majority in 2011 and so lay the ground for the 2014 referendum.

In a surprise move, Pringle returned to government soon after Yousaf became First Minister. No doubt Pringle has a list of if stupid policies and daft promises that he wants to ditch, which would explain the Lord Advocate’s change of mind and the delay on conversion therapy.

He, and presumably the First Minister, will want to fight next year’s general election on issues that matter to people, not causes popular only in the bars around Holyrood. But even the most masterful spin doctor can’t overturn years of bad governance in a matter of months. It will take years – and a change of government – before that can happen.