Andrew Tettenborn

Sturgeon is playing politics in her fight with the Supreme Court

Sturgeon is playing politics in her fight with the Supreme Court
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The Supreme Court judgment striking down a couple of Acts of the Scottish parliament has been greeted with typical outrage from the SNP. Nicola Sturgeon has been busy fulminating that she is now 'unable to fully protect children’s rights'. But the First Minister shouldn't be surprised by this legal defeat: there was little chance of it going any other way.

In spite of Sturgeon's fury, the two Acts in question were not actually very significant. The more high-profile one sought with much fanfare to incorporate into Scots law a treaty little-known to most of us outside the progressive establishment, the UN Convention on the Rights of the Child. 

The other was aimed at incorporating an even lesser-known treaty, an anodyne convention drafted by the Council of Europe called the European Charter of Local Self-Government and intended to encourage the promotion of localism. Both treaties have actually been ratified by London, but have – in one case, with very good reason – not been incorporated into domestic law.

The legal difficulty was that both Acts required Scots courts to interpret almost all legislation, including Acts of the Westminster Parliament, so as not to conflict with the treaty. In certain cases, it could have meant actually striking down inconsistent Westminster laws. 

Not surprisingly, the Supreme Court had little difficulty in striking down these provisions. It did so on the basis that they were inconsistent with the Scotland Act 1998’s protection of the overriding power of Westminster to legislate for the whole of the kingdom.

An earlier decision of the Supreme Court three years ago on the Withdrawal from the European Union (Legal Continuity) (Scotland) Bill made the law abundantly clear. 

Was Sturgeon expecting any other outcome? It seems more likely that she was simply playing politics. The drafting of the legislation suggests as much. It appears to have been drawn up with the intention that it should fail, preferably with maximum publicity. 

Its real aim, one suspects, was to give the SNP a chance to do three things. One was to draw attention away from its increasingly obvious disasters in the devolved areas of economy, education and health by trumpeting its progressive credentials. Although few care about the localism treaty, making the Convention on the Rights of the Child into hard law has for some time been a favourite progressive cause dear to many in the party’s heartlands in Bruntsfield and Glasgow’s West End. 

A second aim was to bolster the demands of the nationalists for yet more powers to be handed over by Westminster. This is something, of course, that plays well with both SNP members, and now also the Greens, with whom the SNP is in coalition. 

And, of course, Nicola Sturgeon would never want to miss a chance to show up Westminster and England as being determined to obstruct Scots’ desire to run their own affairs. This is especially so where she can portray herself as radical and the powers that be in London as reactionaries.

So what should Westminster do about all this? Boris’s best course is to keep his cool in the midst of the shouting. 'The law must run its course' is always a good line. The PM could also drily add that the judgment in the Supreme Court, which, at points, was notably scathing of the Scottish government’s arguments, was delivered by a Scots Law Lord. What's more, he might add, the panel itself was remarkably devolved, comprising two Scots, one Welshman, one Northern Irishman and a solitary English judge.

Unionists also have a further card available, if they care to play it. The Convention on the Rights of the Child that the SNP want to give legal force to may sound pretty unexceptionable. But looked at closely, it is a disconcerting document. Its terms have been alleged by the UN body administering it to possibly require such things as a clampdown on selective education, a crackdown on the detention of child asylum-seekers and the easing of abortion restrictions. . 

Our own Equality and Human Rights Commission has stated it could demand an almost complete ban on exclusion of disruptive pupils from school, fewer restrictions on gender changes for under-18s and the end of the two-child limit for social security. 

If faced with these facts, more Scots voters than you imagine might think twice about backing a party that supports legislation of this type. They might also doubt the wisdom of putting into the hands of courts hearing judicial review applications, rather than elected representatives, the power to require its application to our children. They might also take the view that, when it comes to treaties like the ones involved here, foreign policy is best left up to the Foreign Office. 

This certainly seems better than allowing it to be appropriated by a devolved government with a patchy record at home and a desperate desire to placate its would-be supporters by drawing attention to its social justice credentials.