Alister Jack: If Donald Dewar knew what we know now, it would have been a different Scotland Act
For the first time in the history of devolution, the Secretary of State for Scotland, Alister Jack, has blocked a piece of legislation passed by the Scottish Parliament, by invoking Section 35 of the Scotland Act, promoting accusations that he is not only destroying devolution but is a democracy denier.
And while the policy in question is a controversial one – the Gender Recognition Reform Bill – which would allow transgender people in Scotland to legally identify as a different sex with all medical gatekeeping removed, and was overwhelmingly passed by the Scottish Parliament with all-party support, including his own, Jack argues that the change would negatively impact on reserved equalities legislation, specifically on single-sex exemptions, and, he argues, put women at risk. The veto will now be tested in court following a legal challenge by the SNP government.
And while it is true that during the SNP leadership contest Humza Yousaf was the only contender to say he would go to court over the issue, he also said that it was more a matter of principle than the particular policy itself, which the majority of Scots do not support. Now, as first minister, Yousaf has made the issue into a constitutional hot potato, saying that if Westminster gets away with blocking the will of the Scottish Parliament on this, then there will be no stopping it doing it again.
And the new first minister has cited Westminster’s attempts to roll back on devolution on a whole series of issues, including the incorporation of the United Nations Convention on the Rights of the Child into Scots law, which was thwarted following a legal challenge by the UK Government to the Supreme Court, which ruled in its favour in 2021, with the court concluding that the Scottish Parliament had overreached its powers. At the time, the then first minister, Nicola Sturgeon, said this left her unable to fully protect the rights of Scottish children. However, notably, two years later, the Scottish Government is still to bring an amended bill back to parliament to allow legislation to pass.
In more recent weeks, SNP politicians have hit out at Westminster’s attempts to, as they see it, police Scottish Government ministers on overseas trips to ensure that they do not use foreign visits to advance the case for independence. Jack is bullish in his defence of the new Foreign and Commonwealth Office guidelines, telling a Scottish Affairs Select Committee that he doubted the French government would allow the separatists in Corsica to do the same.
the current arrangement... allows a hostile government in Holyrood, which I am afraid we have at the moment
Finding reasons to pick fights over the constitution is not new, but this is all overshadowed by the fact that any second legal independence referendum requires the UK Government to agree to it by granting a Section 30 order. That has been repeatedly refused by successive Tory prime ministers since the Brexit vote offered the SNP the “material change in circumstances” that Sturgeon said gave succour to revisiting a referendum. The failure to grant a Section 30 rankles with a parliament that has a majority of pro-independence MSPs and has only helped fuel further grievance with Westminster.
And as night follows day, the SNP-Green majority in the Scottish Parliament is now fuming over the so-called “democratic outrage” of the UK Government preventing a recycling scheme – the Scottish Deposit Return Scheme – going ahead as planned by the Scottish Government. Jack said the Scottish DRS posed regulatory issues across the UK and refused to grant a full Internal Market Act exemption, instead agreeing to the scheme’s go-ahead so long as it doesn’t include glass. The scheme will now be delayed until October 2025, when it will launch at the same time as a UK-wide initiative. Green minister Lorna Slater accused the secretary of state of taking a “scorched earth” approach to devolution. Meanwhile, Yousaf tweeted: “Be in no doubt, the UK Government has sought to deliberately sabotage DRS to override the will of the Scottish Parliament.”
This, says the SNP Government, is a developing pattern. The party’s deputy leader, Keith Brown, tabled a parliamentary motion on the back of the refusal to grant the full Internal Market Act exemption, saying that Holyrood “expresses alarm at what it sees as the UK Government’s escalating disrespect for the devolved settlement” and led a debate that appeared to put Holyrood on a war footing with Westminster.
The secretary of state, meanwhile, appears unfazed by the hyperbolic language and calmly asserts that: “The Scottish Government get up each day and go to work to destroy the United Kingdom, I get up and go to work each day to strengthen the United Kingdom. That’s what I believe in.”
Indeed, his quiet confidence in his own position, supported by a surprisingly detailed understanding of the historical, political, legal, and business context on a variety of the issues in contention, and with his commentary delivered in typically laconic style, just seems to provoke the nationalists’ ire.
However, on what appears to be a more conciliatory note, Jack has admitted that while there are “a number of areas of disagreement between the two governments”, he believes that they are collaborating on a range of issues that will make a difference to the lives of the Scottish people and says that is “what should be expected of them”. The fact that those collaborations include the billions of pounds the UK Government is pouring into Scotland via the Levelling Up funds, City Deals, and various other avenues previously done through the EU have in themselves riled the SNP Government even further, given it has been bypassed in the process, is, one suspects, not lost on the secretary of state, although he just says this is “devolution in action”.
“I’ve always believed in devolution and, actually, I believe in real devolution,” he says. “So, one of the things that I took forward with the support of Boris Johnson was for the UK Internal Market Act to have the spending powers that had previously sat in the European Union, the regional spending powers, for them to come back to the UK Government, which would then deal directly with local authorities. And that’s been enormously successful. I mean, our current package of spending, when you take into account City and Region Growth Deals, Levelling Up, the UK Shared Prosperity Fund, and the Community Ownership Fund, is £2.3bn; that’s £2.3bn, which is, you know, a huge amount of money that we’ve got and a lot of that is dealing with local authorities and responsible delivery partners. And it’s the UK Government being relevant again. And all 32 local authorities, irrespective of their political allegiances, are engaged in that. And there’s a real buzz about it. That’s real devolution.
“There’s less bureaucracy in the way we’re doing it, there isn’t another level of bureaucracy skimming off, if you like, the money. All the money goes directly to the project that has been put forward and that’s, I think, a very good thing. And it’s absolutely what the local authorities want, the local authorities are right behind this decision and heavily engaged in it.
“The SNP Government claim that is a power grab, but they didn’t say anything when the EU were doing it. When the EU was dealing with the Highlands and Islands Enterprise Board and giving the money directly to them, I didn’t hear the Scottish Government being hostile to that. So yes, I think any criticism of that nature is entirely political but it’s also a ridiculous argument. We’re only doing what the EU did, we’re doing it directly with responsible delivery partners and getting the money to them directly.”
There is a growing feeling, particularly among the commentariat, that the SNP has underestimated Jack – the former first minister recently joked that she didn’t even know who he was when he turned up at Bute House to meet her – and the nationalists have perhaps overplayed the caricature of the secretary of state as being some pith helmet-wearing colonialist, a Tory toff who doesn’t understand the real world.
There is no denying he comes from a privileged background. His father, David, who died in 1982 at the young age of just 42, was a businessman and farmer, his mother was the Lord Lieutenant of Dumfries for ten years, and Jack attended the prestigious all-boys boarding school Glenalmond before going to Heriot-Watt University. However, it would also be wrong to dismiss Jack as some posh boy who was born with a silver spoon in his mouth and who didn’t then work for what he has achieved.
Both he and his wife, Ann, an interior designer, have established, built up, and sold a variety of successful ventures, including a marquee and tent hire business and self-storage companies, reportedly amassing a small fortune of £25m. As a result, he engages well with business leaders across all sectors in Scotland because he can’t just talk the talk but has walked the walk. What he perhaps is not, is a professional politician. Being an MP wasn’t something he had craved for a long time. And although he is a longstanding, and active, member of the Tory party, and his father was chairman of the local branch of the Conservatives, his first foray into elected politics was when he stood in the 1997 election when the Tories were all but wiped out in Scotland and he came third, being beaten by the Lib Dem Michael Moore, who also went on to become a future Secretary of State for Scotland. That one ill-fated toe-in-the-water of elected politics was not something he wished to repeat and indeed had to be persuaded at the last minute to stand in 2017 – 20 years later – when the party was struggling to find a candidate.
“Look, Ann and I have always both been quite politically minded, we’ve always felt strongly about Scotland being a strong part of the United Kingdom, and we’ve abhorred nationalism. But what happened in 2017 was that the party didn’t have a candidate for Dumfries and Galloway, and I was asked if I could think of anyone, and I thought of three people. None of them were prepared to do it at the time, and then Ann said, ‘Well, why don’t you do it?’. And almost the next day, I got selected. Five weeks later, I went to Westminster.
“There was a 6,500 SNP majority and I think we turned it over to 5,600 the other way. I said I would do it for one term. Then 2019 came along and by then I was in Boris’s cabinet and, obviously, he wanted me to stand again, so I said I’d do it for one more term. And I am doing it for one more term and I will stand down at the next election. It’s been an incredible experience. We’ve had Brexit and Covid and Ukraine, a number of prime ministers, two monarchs, two first ministers. It’s been a busy old time, and it certainly hasn’t been boring, I will say that. And I don’t regret it for a minute. But as I say, it was just a Sunday night phone call asking if I knew a candidate, and by the Tuesday night I was adopted.”
I think the decisions [Boris Johnson] took for Scotland will serve Scotland very well for decades to come
Jack’s entry into Westminster may have been something of a snap decision but he has always had a longstanding interest in politics. In fact, he tells me that he wrote to the then prime minister, Harold Wilson, back in 1976 when Jack was 12 or 13 to complain about the so-called ‘Lavender List’ – the heavily criticised resignation honours list – and he still has the reply he was sent by Wilson’s private secretary. Ironic, perhaps, that Jack himself has been criticised in a row over cronyism when news leaked out that he would apparently be included in Johnson’s own honours list. He wasn’t, but this led to him receiving repeated taunts from the SNP at Westminster as “the unelected Lord”, even once he had dismissed any notion that he would accept a peerage while still serving as an MP. He reasserts to me that even if he had been offered a peerage, he wouldn’t have accepted it because he will not stand down before the next general election causing a by-election.
Our interview was conducted before Johnson’s list was published, but Jack adds that he has never even had a conversation with anyone responsible for approving honours about his possible inclusion on any list and is unaware of the rules about whether he could delay accepting. What is clear is his loyalty to and admiration of Johnson, which he is unafraid to voice, which no doubt further adds fuel to the nationalists’ fire.
“On Boris, it depends what idea you have got of him. But I’ll tell you who he is, if that helps. He is, and this might surprise you, incredibly hardworking. He’s an early riser. He is over the detail. He will argue both cases and if he thinks someone’s arguing something to him just because he wants to hear it, he will then argue the other case to test them, to prosecute the argument and ensure it is intellectually very robust. He is single minded on what he believes matters.
“I saw how he approached, for instance, the Northern Ireland Protocol, to get things sorted out and get it over the finishing line, because he knew we had to get out of the mess we were in to get Brexit done. But then we very quickly went into Covid and again, he was single-mindedly determined on getting a vaccine, he backed all the horses in the race, I think five, four or five of them, came to the finish line with vaccines.
“He wanted, having spent the British taxpayers’ money on those projects, he wanted British citizens to be vaccinated first. And he achieved that. And it was the vaccine that led us out of Covid.
“Again, when Ukraine came along, he knew that certain countries in Europe were reliant on Russia for oil and gas and he felt it was upon him to show leadership. He was entirely focused on getting support for Ukraine, as much financial and military support for Ukraine as was possible. He realised that to lose to Russia was only the beginning of something that could go very badly wrong for the Western world and possibly for the world at large. So, you know, he recognised that this illegal war in Ukraine meant that the Ukrainians had to be fully supported. And he was so focused on that. That’s the sort of man he is. He recognised the big issues and he put his shoulder to the wheel to get things done.
“I think the decisions he took for Scotland will serve Scotland very well for decades to come. So, for instance, it was Boris, when not everyone was supportive of the idea, who said we could spend structural funds in Scotland, which we couldn’t do when we were in the EU, and we could do it directly. And it was Boris and Rishi [Sunak, then chancellor] who pushed forward with the freeports plan. I also had to argue strongly for that. Kate Forbes came on side for it, but the Scottish Government were against it. There were a number of good initiatives that took place that will serve the Scottish economy well, that Boris was responsible for, and I know the public perception was that he was not popular in Scotland, I understand that, but it was a false perception. I found when I walked the streets with him in Scotland, people were incredibly supportive. We never received any abuse in the time I was with him, and we made four or five visits together.
“I’m not someone who bears grudges. I don’t smoulder over things. But my view is that I’m very fond of Boris, I think he’s an enormous talent and I was very sorry the way things ended. But he’s still got a lot to offer and as to the people who brought him down, well, it’s not for me to fight other people’s battles.”
As Secretary of State for Scotland, Jack has sat in cabinet under three prime ministers – Johnson, Liz Truss and Sunak – and the official cabinet photographs make for interesting viewing, hung as they are in the downstairs loo of his Georgian farmhouse on the 1,200-acre dairy farm that he owns in the Scottish Borders.
What is disarming about Jack is, in contrast to how he is sometimes portrayed, how across his brief he really is. From his constitutional role in the Scottish Parliament’s Gender Recognition Reforms to the ill-fated Scottish Deposit Return Scheme and the incorporation of the United Nations Convention on the Rights of the Child, he shies away from nothing and is willing to expand much further than one might usually expect. And on the very principles of devolution and whether he is, as the SNP accuse him of being, someone out to destroy the Scottish Parliament, he is unequivocal.
“No, absolutely not, I am not out to destroy devolution, in fact, the opposite, I want to enhance devolution. I’m a defender of devolution and I’m a defender of the constitution. I need to be absolutely clear about that. But I also recognise that there are frustrations around the current arrangement which allows a hostile government in Holyrood, which I am afraid we have at the moment, to push the boundaries to try and create divergence.”
I ask him if he recognises the obvious tensions between whether his role is Scotland’s man in the cabinet or the cabinet’s man in Scotland, particularly when you have an SNP-led government in Edinburgh and a Conservative one at Westminster.
I've always been a feminist
“Look, it is definitely the case that when Tony Blair, Gordon Brown and Donald Dewar established the Scottish Parliament and passed the Scotland Act 1998, the language that was used at the time was that this was about shooting the nationalist fox. Tam Dalyell at the time told them that that wasn’t the case, that it wouldn’t work. But many believed that what they were doing would bring the desire for nationalism and separatism to an end. And some in the Labour Party said you’re wrong, and they were proved right.
“And I think if Donald Dewar was putting that Scotland Act together again, knowing what we know now, as opposed to what they thought then, it would have been a different Scotland Act. I’ve made this accusation to some in the Labour Party, including Tony Blair, that the Scotland Act maybe wasn’t as tightly written at the time as it could have been. It could have included a requirement for more transparency on spending, for instance, there could have been more accountability, and it maybe was a little bit loosely written because a Labour government was writing it from basically a belief that there was always going to be a Labour regime in place, a Labour prime minister, a Labour secretary of state, Labour first minister, and they obviously thought they were going to have control of Scotland forever. They had about 50 MPs at the time, so you could understand why they thought that.
“But obviously, with the Scottish National Party forming a government in Scotland, that has created the tensions that you refer to, but there is no doubt that I see my job as arguing for Scotland in the cabinet; there is no doubt in my mind about that and when I came into this job in July 2019, that was very much what I wanted to do. I wanted to get across Whitehall departments and ensure that bad things didn’t happen to Scotland with UK-wide legislation, inadvertently, if you like, by mistake, and so I wanted to get over the detail of Whitehall legislation, to make sure that in respect to Scotland, it all sort of fitted nicely, and that is what I have been about.
“Since then, I’ve noticed, and probably an element of it will be about Brexit happening, that while I’ve been in office, the Scottish Government have looked at Brexit, and they have thought, what can we do with the change that Brexit brought with the UK Government replacing the EU, if you like, in respect of some powers and what opportunities does that give us? In terms of the UK Government, that has allowed us to spend directly with local authorities, and that’s been successful. But equally, there were powers that came back to the Scottish Parliament from the EU, there were no powers taken away, and more power is power enhanced. They’ve looked at those powers and started to think where they can further diverge from the rest of the United Kingdom. And we saw a lot of this during Covid, where there was, I felt, a lot of unnecessary divergence for the sake of divergence.
“But we’ve also seen it with legislation coming forward and I’ve had to challenge some of that. So, for instance, there was an Andy Wightman private member’s bill around local authorities which was alongside the challenge we made on the bill to incorporate the United Nations Convention on the Rights of the Child into Scots law, which was a protocol the UK Government adopted in 1992, which the Scottish Government brought in just before the Holyrood elections, and in clauses six and 19 to 21, they cut right into reserved powers, and it was right that we did a Section 33 on that. That went to court, and we won that comfortably.
“Then we went back to court because Nicola Sturgeon took us to court over wanting the right to hold a referendum and we said that in Schedule Five of the Scotland Act, that was entirely reserved to the UK Government. And we won that. And we won that comprehensively, not just by 100 per cent but by 100 per cent plus and the plus being where there were submissions claiming that Scotland was an oppressed colony, and even those things were addressed by the Supreme Court to say that was absolute nonsense. So, you see, the role has changed a little bit over these past years where I am the UK Government’s man in Scotland because I have had to step in as the defender of the constitution and I’ve had to step in on a higher level. And obviously the culmination of that this year has been the invoking of the Section 35 on the Gender Recognition Reform Act, which is a 35, not a 33. And the reason it’s a 35 is because it’s an act. It’s a piece of legislation that has adverse effects on GB-wide equality legislation. And I have been very clear on the record for my reasons for that.
“It is the first time that a 35 has been used, I am aware of the reaction to that, but that burden did not fall heavy on my shoulders because it was the right thing to do and I’m about doing the right thing. You know, I have, and have had, a normal life outside of politics. I speak to sensible people, I have a wife who I can discuss these things with properly and I have daughters to think about, and if I’m feeling any pressure from online abuse, and that’s unlikely because I’m not online myself, but if people are telling me, or my children are saying it’s there, I take it lightly because I don’t believe there are any soft voters on Twitter. Everyone on Twitter knows their opinions, or they’ll be strong in their opinions. It doesn’t bother me in the slightest.
“This decision was the right decision. The prime minister has made this point as well about his daughters, but we have two daughters and a son. We have a granddaughter. I have a wife. And I have women who work around me who said they were concerned about this bill, and we had more traffic into my parliamentary account on this subject, and the Scotland Office account on this subject, than any other we have ever had.
“I’ve always been a feminist as a husband, as a father, and now as a grandfather. Protecting women, keeping women’s safe places is very important to me. And as a politician, I will always act correctly in that regard. But as secretary of state, the decision was entirely [about] using the powers that were in front of me that really require me, as a defender of the constitution, to defend the Equalities Act. And that’s what I was doing.
“Feminism, for me, means equal opportunities for women. Pure and simple. I want my daughters to have the opportunities that my son has. And it is ridiculous that we are in a place where some politicians can’t even say what a woman is. Douglas [Ross] is the only leader in Holyrood that is prepared to say it, and Rishi and I can easily say what a woman is.
“A woman is an adult human female. Pure and simple, yeah.
“I mean, to me, it is not complicated.
the argument that invoking a 35 is an attack on devolution is about the most stupid argument I’ve ever heard
“And I’m not in any way against trans people in saying that. But I understand what a woman is. And we just have to keep that in mind. I equally have no problem in saying that Isla Bryson [the double rapist who self-identified as a woman following his arrest] is a man. Pure and simple.
“And I do recognise people’s concerns about women’s safe places, I do recognise those arguments. But ultimately, I had to take a decision based on my role as secretary of state and protecting the constitution with the powers that I have. And this did cut across equalities legislation across Great Britain. I say Great Britain, not UK, because it’s not Northern Ireland, and for me, it was a decision I had to take, and I published my statement of reasons for that. I realised it was the first time Section 35 had been invoked, but it didn’t cause me any difficulty to take the decision because I believed and I know it was the right thing to do.
“And the argument that invoking a 35 is an attack on devolution is about the most stupid argument I’ve ever heard. Because as I’ve already explained, what the Scotland Act says, and remember, the SNP voted for it, is that there has to be a mechanism within the United Kingdom whereby legislation produced by devolved administrations, that cuts across and confuses the law as it exists across the United Kingdom, there has to be a mechanism to say stop. To suggest it is an attack on devolution is utter foolishness – what it is, is protecting devolution.”