The first thing to say is that the argument between the Scottish government and the British government over the former’s gender recognition reforms is not about trans people. The broad principles of those legislative changes are not the chief issue, whether one happens to support them or not.

The second thing to note is that this ought not to be a constitutional crisis. Invoking a provision of the Scotland Act which established the Scottish parliament is not an ‘assault’ on that legislature. Granted, no previous bill has been subject to a Section 35 order of the kind now invoked by Alister Jack, the Secretary of State for Scotland. Granted, too, it might be preferable if such legislative tensions – of a sort that are an all-but-inevitable consequence of a multi-tiered constitution – were refereed by an established and clearly-understood process, freed from political grandstanding and special pleading.

This ought not to be a constitutional crisis

Nevertheless, we are where we are. The argument deployed by many SNP, Labour, Liberal Democrat and Green parliamentarians that the Scottish parliament’s bill must stand because it enjoys overwhelming cross-party support is not one worthy of respect in a democratic society. In essence, it suggests that the Scottish parliament be permitted to act unlawfully if a given measure is sufficiently popular. The law is the law, however, and it applies to Nicola Sturgeon and her allies as surely as it may from time to time clip the wings of His Majesty’s government in London.

As a psychological matter – and politics is a game of feelings as well as facts – this offends nationalist self-regard. Holyrood has become accustomed to thinking itself a sovereign parliament, the equal of its Westminster counterpart. This is a conceit but a deeply felt one. SNP politicians can hardly be expected to think differently but it is salutary to recognise that a good number of Unionists broadly share this view. And, again, it is easy to understand why, for being reminded of Holyrood’s subsidiary status is unwelcome.

Be that as it may, just as the United Kingdom government may not ordinarily encroach upon devolved responsibilities so the Scottish government may not legislate in ways which have consequences – however unintended – for parts of the realm beyond its purview. The UK government argues that Sturgeon’s gender reforms do precisely this, impacting the application of the Equality Act – itself a reserved matter – across the whole of Great Britain.

Sturgeon complains that the invocation of Section 35 is a ‘full-frontal’ assault on ‘our democratically elected Scottish parliament and it’s [sic] ability to make it’s [sic] own decisions on devolved matters’. Again, however, the application of the Equality Act is not a devolved matter and the Scottish government’s claim its bill has no bearing on equalities is clouded, perhaps even undermined, by its recent assertion in court that the legislation impacts on someone’s legal sex ‘for all purposes’. (In Scotland, you may be surprised to discover, the Scottish government argues that, depending on circumstance, a person may simultaneously be male and female. This seems unsatisfactory.)

It matters not that the bill contains a meaningless clause declaring that it does not ‘modify’ the Equality Act, for Holyrood lacks the authority to change the Equality Act. However, most constitutional lawyers appear to accept that the British government has a strong, though not necessarily watertight, case that the Scottish parliament’s bill modifies the application of equalities law both within and outwith Scotland. Each aspect of that is legally dubious and even nationalists might accept that, logically, it is not reasonable for acts of the Scottish parliament to have spillover effects beyond its jurisdiction.

Some, though perhaps not all, of this confusion could have been avoided if the Scottish government – and MSPs more generally – had a) made representations to the UK government in advance, seeking clarification and b) listened to the many and widespread warnings that the bill might very easily invite a Section 35 order. Whether through complacency or arrogance or simple stupidity, neither the government nor the Scottish parliament chose to pay attention to those advertisements of difficulty ahead.

Nor was it really good enough to argue, as some Labour MSPs did, that Holyrood should pass the bill first and then let lawyers work out its meaning and application. This was a declaration of intellectual incompetence no less depressing for being wholly unsurprising.

It is where we are, however. The politics of this is clearer than the admittedly technical and complex legal arguments. But it would be a mistake to assume that, whatever their misgivings about the bill, Scottish voters will take umbrage at this ‘attack’ on their devolved legislature. Some will, of course, for umbrage is currency but the bigger picture story of recent years is that constitutional outrage weighs less heavily upon the people than the SNP thinks it should. (The government’s gender reforms are not especially popular, to the extent they are understood by the public, but that is a separate, if complicating, matter entirely.)

Some other foxes should also be shot. I think it important to object to the commonly found assertion that the First Minister has used this issue to deliberately pick a constitutional fight with Westminster. I do not believe that to be the case. For better or worse, she believes in her position on trans rights and does not accept these rights may ever conflict with those of other groups, particularly women. The idea she has exploited the issue for her own political ends rests upon the proposition that she is prepared to use trans people as a wedge issue, regardless of the impact this may have upon them. That would be callous to the point of monstrosity. Nicola Sturgeon has greater admirers than me but I have a higher opinion of her character and probity than this argument would suggest. This is so even if – we shall see in due course – the fall-out from this mess does have political advantages for Sturgeon and the SNP.

Even so, there are certain traps the British government might do well to avoid. Some ministers, being unconcerned with devolution, may see this as an opportunity to put Keir Starmer and the Labour party into a corner of awkwardness. This would be a mistake, for it would render what is chiefly a legal argument a political one. Instead they would be better off insisting that this is a dispute about devolution and pan-UK fairness. The UK government, in this scenario, is the defender of devolution, not its enemy. More law and less politics, in other words.