Is Sturgeon in the final straight?
Rumours surface that the first minister of Scotland will not remain in office much longer, but what would the independence debate look like after her?
I write this as a dyed-in-the-wool unionist and no fan of either the first minister of Scotland or of the Scottish National Party, but I will do my level best to be impartial, or at least balanced. Nicola Sturgeon has now led the Scottish Government for eight and a half years, which is a long time not only in politics but in any job, and before that she was deputy first minister for six and a half years. Those two posts add up to a long and gruelling stint at the summit of Scottish politics. She has been in the Scottish Parliament since the very beginning, that first election of May 1999, which seems (and is) a generation away, yet she is only 52, an age at which some major politicians are only just settling into their first cabinet jobs. As first minister, she has taken calls from five successive Conservative prime ministers.
Sturgeon’s staying power has been impressive. She served her predecessor, Alex Salmond, loyally and, in partisan terms, effectively, the reliable technocrat to his colourful carnival barker, until, five years ago, on 2 April 2018, he visited her at home in Glasgow and showed her a letter which detailed various allegations of sexual harassment and inappropriate behaviour against him. Sturgeon recalled her emotions at the “moment she will never forget” to a Scottish Parliament committee in 2021.
What he described constituted, in my view, deeply inappropriate behaviour on his part—perhaps another reason why that moment is embedded so strongly in my mind… My head was spinning, I was experiencing a maelstrom of emotions, I had been told something pretty shocking by Alex Salmond and there were a number of things in my head.
One cannot know how credible she found the allegations, but they were certainly grave: when Salmond was arrested in January 2019, he was charged with two counts of attempted rape, nine of sexual assault, two of indecent assault, and one of breach of the peace. On sheer numbers, his prospects did not look good. Indeed, his defence conceded at least an atmosphere that was unhelpful. Gordon Jackson KC, his advocate, admitted that the former first minister could be “demanding” (what a euphemism that is in politics!), that he would sometimes “shout and swear” and that he was by instinct “touchy-feely”, which last is seen now almost as a capital offence in our febrile and highly charged times. Counsel went so far as to say that “If, in some way, the former first minister had been a better man then we wouldn’t be here—none of us would be here.”
The spectre of wrongdoing brought the relationship between Sturgeon and her predecessor crashing down in fragments. She realised, with accurate if hard-headed judgement, that he could easily become a toxic figure and she backed away from him completely. Before the Crown Office became involved and decided to prosecute, there was an internal review of the complaints against Salmond within the Scottish Government, carried out by Judith Mackinnon, head of people advice within the government, which reported in August. Salmond, having been briefed on the conclusions of the review but before it was published, began a judicial review of it in the Court of Session, and in January 2018 the Scottish Government admitted its procedures had been flawed, the report was set aside and Salmond’s expenses were paid.
The rest of the Salmond affair played itself out. HM Advocate v Salmond began in the High Court in March 2020 and after a fortnight the former first minister was found not guilty on 12 charges and a further charge of sexual assault with intent to rape was not proven (that quirkily Scottish verdict which tends to indicate that the jury belives the defendant committed the offence but has not sufficient proof to permit a guilty verdict). One other charge had already been withdrawn by the Crown Office. There were two further investigations: one by former lord advocate Lady Elish Angiolini and Irish barrister and former director of public prosecutions James Hamilton concluded that Sturgeon had not broken the ministerial code in relation to the Scottish Government’s inquiry into Salmond’s conduct; the other by a committee of the Scottish Parliament chaired by deputy presiding officer Linda Fabiani, SNP MSP for East Kilbride, found corporate and individual failings in the Scottish Government and expressed concerns that Sturgeon had not been candid or consistent in her evidence to them. It determined that the first minister had misled the committee, but stopped short of accusing her of doing so knowingly (which, under the ministerial code, would have been a resignation matter).
This was a win on points for Sturgeon. Although she escaped official sanction, and would tell anyone who would listen, including, improbably, Carol McGiffin and the panel of ITV’s Loose Women, that the committee had concluded that she had not mislead Parliament. This in itself was misleading, in the sense of being untrue by a lie of omission, as the committee had concluded that she had not knowingly mislead Holyrood but that she had been guilty of contradictory testimony and a lack of candour in her evidence. As with so many judgements in politics, Sturgeon managed to maintain the line that she had not transgressed to an extent which demanded her resignation from office and so was not officially sanctioned, but she missed, or simply could not dispel, a wider impression that she had been evasive and dishonest. Leaked documents from the committee showed that a majority of its members believed she had misled them.
The Scottish National Party has proved over the past 15 years or so extraordinarily impervious to public criticism and has managed to ride out allegations of wrongdoing and incompetence which would surely have dragged other administrations under. Sturgeon has maintained approval ratings around 50 per cent despite these blows, suggesting there is a hard core of SNP supporters who will back her through the most dangerous political waters, heedless of the Salmond case, a report by Audit Scotland that the government was not adequately prepared for the Covid-19 pandemic, a record high in 2021 of drug-related deaths in Scotland, another Audit Scotland report that the attainment gap between rich and poor in education remained too high, a catastrophically expensive and inefficient procurement of two ferries for state-owned operator Caledonia MacBrayne and a unanimous judgement by the Supreme Court that the Scottish Parliament does not have the competence to hold a referendum on independence without the agreement of the UK Government.
There must have been times when Sturgeon, who does not seem to entertain much self-doubt even by the high standards of politicians, must have wondered if she was fireproof, able to weather any storm of controversy and emerge at least unscathed if not always successful in her and her government’s objective. Now, however, some—and I am among them—are starting to worry if her magic touch has finally left her and she has waded into waters which may engulf her completely.
The latest rampart behind which she has taken up position is the Scottish Parliament’s Gender Recognition Reform (Scotland) Bill, a proposed measure which would allow people in Scotland to apply for formal recognition of a new gender without a medical diagnosis of gender dysphoria, requiring instead only a declaration of living as their new gender for three months, and would lower the age of eligibility for such recognition from 18 to 16. It addresses the concerns of the Scottish Government that the process for being recognised in a gender different from that as which a person was born was too complex and off-putting for a group which is by definition vulnerable. The draft legislation was approved by the Scottish Parliament by 86 votes to 39.
The measures contained in the bill have attracted considerable opposition on policy grounds. Scotland’s Catholic bishops have warned that the lowering of the age limit could allow children to make irreversible decisions about matters such as surgical intervention which they might later regret, and argue that “the freedom to hold the reasonable view that sex and gender are given and immutable” should be protected. Women Scotland suggested that the measures in the bill could prevent women and girls from having access to single-sex spaces or that anyone making a fraudulent declaration of gender change could enter such spaces. Reem Alsalem, the UN’s special rapporteur on violence against women, reiterated that it could allow violent men “to get into women’s spaces and have access to women”.
The casus belli with the government at Westminster, however, has been a technical and legal one. Section 35 of the Scotland Act 1998 gives the secretary of state for Scotland the power, in certain circumstances, to veto legislation enacted by the Scottish Parliament, even when it deals with a devolved matter; this can be engaged if the proposed legislation modifies the law applying to reserved matters, and if the secretary of state believes that this modification will have adverse effects. While gender recognition is devolved, equal opportunities are a reserved matter, and the proposition is that the bill, if it became statute, would interfere with the operation of the Equality Act 2010. Alister Jack, the Scottish secretary, has considered that, as two of the “protected characteristics” under the Equality Act are “gender reassignment” and “sex”, a change in the process of gender reassignment in Scotland would inevitably impact on UK-wide legislation concerning the Public Sector Equality Duty. He has consequently declared his intention to invoke section 35 and on 17 January published a statement of reasons.
The Scottish Government has clearly identified issues on which to provoke division between itself and the UK Government, and is prepared to use the Supreme Court as a mechanism to amplify these divisions for presentational reasons. Sturgeon has made it clear she neither accepts nor approves of the use of section 35 and will seek to challenge it, most likely by seeking a judicial review. As I wrote last month in City AM, it is, to be charitable, improbable that the Scottish Government would be successful in such a judicial review of the use of section 35. Legal opinion is weighted towards the view that the Supreme Court will agree that these are valid circumstances and that the proposed legislation would indeed have an effect on the operation of the Equality Act. Lord Hope of Craighead, former deputy president of the Supreme Court and an extremely distinguished Scottish jurist, has said that Sturgeon’s chances of success are “very low”.
The first minister must know that the chances of winning a legal case are slender. She is, let us not forget, a qualified solicitor, and she will have received legal advice from the lord advocate, Dorothy Bain KC. It is hard to imagine that this advice will be diametrically opposed to the views expressed by Lord Hope. But, as we saw with the case of the competence to hold a referendum on a constitutional matter, it is not the legal technicalities with which the Scottish Government is concerned. Indeed, a defeat in the Supreme Court may suit Sturgeon’s political ends rather better, as she will use it to reinforce the false notion that an “English” court has frustrated the will of the democratically elected Scottish Parliament. The SNP’s portrayal of the Supreme Court as an English institution is plainly inaccurate, but it is also rather ironic given that the current president, Lord Reed of Allermuir, and the deputy president, Lord Hodge, are both Scots lawyers, graduates of the University of Edinburgh Law School.
While this misrepresentation is frustrating, it is politics, and one cannot judge the SNP too harshly of using whatever means they can find to pursue the policy objective of independence, which is, after all, their raison d’être. But if we are to step into the dusty political arena, then we are entitled to ask questions which are sharply political. And that brings us directly to the future of the first minister, and her choice of the Gender Recognition (Scotland) Bill as her next battlefield.
If one is stepping away from the technicalities of the legal system, then one has to ask wider questions about the mood of the electorate and the issues which they will support. Fundamentally, if the SNP wants to use gender recognition as a political weapon, is it a matter on which the public will back them?
This seems to be the Achilles heel of Sturgeon’s apparent plan. A YouGov poll in Scotland in December last year showed that 60 per cent of respondents opposed the idea of scrapping the requirement for a medical diagnosis of gender dysphoria. Sixty-six per cent opposed lowering the age limit from 18 to 16, and 59 per cent were against reducing the time for which an applicant had to live as the new gender. That is solid disagreement with the bill’s fundamental purposes. A poll of English and Welsh voters by Redfield and Wilton showed 37 per cent opposed not needing a medical diagnosis while only 28 per cent supported it; 54 per cent opposed lowering the age limit with only 22 per cent in support. Half of voters across the UK support Jack’s decision to veto the bill, with a slender 13 per cent against it.
It does seem, therefore, that Sturgeon has miscalculated in setting herself up as a champion of a set of policies which do not have substantial public support. She has also, for once, encountered bad political luck. It emerged recently that a convicted rapist, Adam Graham, was in the process of transitioning to a female identity as Isla Bryson, and was remanded to HMP Cornton Vale, a women’s prison near Stirling, to await sentence. Bryson had been arrested and charged as a male. Last year, Katie Dolatowski, a transgender woman and convicted child sex offender, was also sent to Cornton Vale.
Sturgeon has since intervened to have Bryson transferred to HMP Edinburgh, which has capacity for men and women in separate wings. But the furore could not have highlighted more neatly the reservations about safeguarding which opponents of the bill have expressed. Here was an individual who committed violent crimes against women then began a process of transition and ended up in an all-female penitential environment. Sturgeon’s position was not helped when one of her junior ministers, Jenny Gilruth, the minister of transport, was asked on the BBC’s Question Time whether Bryson was a man or a woman, and was unable or unwilling to give a straightforward answer.
The situation grew more serious when it was discovered that another transgender woman, Tiffany Scott, had been approved for transfer to a women’s prison despite having stalked a 13-year-old girl and assaulted female prison officers while being held in a men’s prison and was described as “one of the most menacing people” in the Scottish Prisons Service (SPS). Scott had committed a number of violent offences while still identifying as Andrew Burns. Worse, Scott had initially been refused a transfer but the decision was then overturned by senior managers within the SPS.
At the end of last month, in an attempt to shore up the Scottish Government’s position and reputation, the cabinet secretary for justice, Keith Brown, announced a temporary ban on any newly convicted transgender prisoners with “any history” of violence against women being transferred to all-female prisons. This was only days after Brown had declined to use his ministerial authority to order Bryson to be moved out of Cornton Vale to a male facility, insisting that such decisions should be taken on a case-by-case basis by the SPS.
This has put the Scottish Government very much on the defensive. Not only has it highlighted the real-world existence of eventualities which proponents of the gender recognition bill had dismissed as alarmist and theoretical, it has demonstrated a complacency among ministers and the senior leadership of the SPS, suggesting their adherence to the prevailing social ideology in preference to the reality of safeguarding within prisons. It has also shown ministers as uncertain, hesitant and reactive, taking action only when panicked into it by media attention.
Sometimes it is the responsibility or even fate of governments to run ahead of popular opinion and achieve progressive change which turns out to be vital in creating a better, more liberal and more tolerant society. The classic example of this is the suspension of the death penalty in Great Britain in 1965, before its eventual abolition for most crimes in 1969 (though it remained available for a very small number of offences until the passage of the Crime and Disorder Act 1998). There were several calls for the reintroduction of capital punishment after its suspension, for example in the wake of the Moors Murders of 1966, the Shepherd’s Bush Murders later that year, the conviction of Peter Sutcliffe, the “Yorkshire Ripper”, in 1981 and the case of Ian Huntley, the murderer of Holly Wells and Jessica Chapman in Soham in 2002. There has remained a considerable level of support for bringing back the death penalty for certain serious offences until the present day (a poll in April 2021 found 54 per cent supported its use for terrorism offences), but successive governments and parliaments have regarded capital punishment as incompatible with a modern, civilised society.
I don’t believe the Scottish Government’s proposed bill falls into this category. The widespread debate about the rights of transgender people is a very recent arrival in the public square, and it is an issue over which there is sharp and bitter division. While some of the loudest assertions come from either extreme of the spectrum, I suspect that the weight of public opinion lies somewhere in the muddy centre ground, with voters seeing that greater provision has to be made for a small and vulnerable community and generally supporting a policy direction derived from compassion, but uneasy or outright alarmed by radical demands advanced by trans rights extremists. There are also serious concerns about wider issues of human sexual or gender identity and how it will have an impact on public policy in a number of areas.
The provisions of the Gender Recognition Reform (Scotland) Bill have a strong whiff of capitulation to the extreme end of the spectrum. While I am sure the majority of officials and politicians do feel genuine sympathy for those struggling with their identity and feel obliged to attempt to alleviate suffering, misunderstanding and distress, I am not at all convinced that Sturgeon and others have not also adopted radical ideological positions, which sometimes come into conflict with biological reality, and do not want to accept that any opposition can be valid or well-intentioned. The creed of “trans women are women” is often repeated as if it becomes true and inviolable simply by repetition, but when ideology meets reality we often see, as in the case of Jenny Gilruth, that politicians are unwilling to follow that doctrine to its cold, hard, logical conclusion, that therefore anyone who simply claims to be a woman must be treated as if he or she is indeed a woman in every respect, and treated exactly the same as biological women.
A YouGov poll published in yesterday’s Sunday Times suggests that this controversy has had a serious impact on support for the first minister, the Scottish Government and the SNP. Sturgeon’s own approval rating has fallen from a respectable +7 to an alarm-sounding -4, hardly a disaster but certainly an unwelcome reverse for a leader who has long enjoyed very high levels of approbation. Support for the SNP in Scottish parliamentary elections, the next of which is due no later than May 2026, has fallen from 50 per cent to 44 per cent in the constituency vote and 40 per cent to 36 per cent in the regional list vote. At a UK general election, the level of support has dropped slightly from 43 per cent to 42 per cent, but, more worryingly for separatists, voters favouring independence have gone down from 53 per cent to 47 per cent, figures which would change the result of a referendum. It is difficult to calculate what the effect on the SNP would be of a second plebiscite defeat in not much more than a decade.
Jim Sillars is a legendary figure in nationalist politics. Now 85, he was a Labour MP for South Ayrshire from 1970 to his resignation from the party in 1976 (he continued until the general election of 1979 as founder and leader of the Scottish Labour Party, a group in favour of home rule). In 1980 he joined the SNP and won a by-election for the party in Glasgow Govan in 1988, served briefly as depute leader and for more than 30 years was married to SNP radical firebrand Margo MacDonald. Sillars has now publicly supported Alex Salmond’s vanity-project Alba Party, but remains a voice of seismic influence in the political world, and in yesterday’s Sunday Times he neatly skewered the first minister’s difficulties over the gender recognition bill with an analysis which feels accurate and perceptive.
Sturgeon is not in control of this. She allied herself with zealots, ignored public anxieties, denied biology, produced a bill that most can see is deeply flawed, rejected sensible amendments such as barring sex offenders from self-identification, and cannot hide from the people that predatory males, if the bill becomes law, can manipulate it to invade women’s safe spaces. The recent rapist case will not be the only one that will haunt her.
That portrayal of Sturgeon as a politician who has misstepped badly and now finds herself unable to direct events is spookily convincing. It is quite true to say, as SNP cheerleaders do, that Sturgeon and her party remain by some way ahead of their opponents. But I am starting to wonder, as are others, if a corner has been turned. The Scottish Government has done extremely well to resist the impression of tiredness and staleness after being in power at Holyrood for more than 15 years, and they still have an ability to shrug off criticism which is unparalleled across UK politics.
But, as Peter O’Toole’s T.E. Lawrence avers, nothing is written. Political fortunes can change in an alarmingly short time, sometimes turning on a sixpence, and it is not always easy to discern at the time what the fulcrum of that turn actually is. Equally, it seems to be a general observation that once a government on its wane loses control of the narrative, it is almost impossible to regain it. Perhaps these clouds currently enveloping the summit of Mount Scotia and obscuring the vision of the first minister will clear and normal service will be resumed. But I wonder, I just wonder, if we have seen the first tiny glints of change, far off to the horizon. It may be that these become brighter and more piercing very quickly, and the shape of Scottish politics begins to look very different.
Nicola Sturgeon is an intelligent woman, an experienced politician and a leader of ability and insight. Does she too perceive the possibility of this change? Has she begun to wonder if there are any more worlds to be conquered? The crowning glory of her career, of course, which would place her at the top of the nationalist pantheon, would be winning a referendum on independence and being the first leader of a separate Scotland since the Earl of Seafield in 1707. But a hard-headed examination of current polling and trends suggests that such a victory is unlikely. Perhaps Sturgeon will therefore wonder what is to be gained, what greater esteem is to be earned, from staying in office for many more years.
She has been on the SNP front bench since the Parliament first sat in 1999. She has been secretary for health and wellbeing, and secretary for infrastructure, capital investment and cities. She has occupied Bute House as first minister since 2014. Following a miscarriage in 2011, she has spoken openly about the idea of fostering children, though rumours persist on the wilder fringes of the internet about the nature and details of her marriage to Peter Murrell, chief executive of the SNP, and questions remain over his conduct in the events surrounding Alex Salmond’s investigation, trial and acquittal. She has seen the prime minister of New Zealand, Jacinda Ardern, whom she admired and seeks to emulate, step away from ministerial office simply because she “no longer has enough in the tank”.
One of the most corrosive developments for leaders who have been in office for many years is that they lose their motivation and enthusiasm. When faced with a serious challenge, they find it increasingly difficult to force themselves to dig deep into their reserves of stamina and put in the grinding hard work to overcome those challenges. I cannot claim to know if that has begun to afflict Nicola Sturgeon. But given the recent problems over the gender recognition bill, which have in a way revived and potentiated a series of earlier setbacks and obstacles, one has to wonder. Has she had enough? Are there soi-disant dauphins circling who now see a potential opportunity for a change? And may the first minister in fact be shocked by her miscalculation if it transpires that she has picked her next fight unwisely? Nothing is written: but we should keep a closer eye than usual on the choppy waters of Scottish politics.