The SNP may not like it, but this ruling is hardly a burning injustice

IF YOU saw smoke belching out of the neighbours’ house and phoned 999, there are a number of things you might expect to happen. A pat on the back from the firemen, perhaps, or next door turning up with plentiful thanks and a nice bottle of something.

You would not expect to switch on the six o’clock news and see an arsonist complaining that he had worked hard on that job and any water damage was on you for getting the fire brigade involved.

Yet that is, in essence, what happened when the Supreme Court ruled the Scottish parliament had acted outwith its legislative competence in how it went about incorporating the UN Convention on the Rights of the Child (UNCRC) and European Charter of Local Self-Government into Scots law.

The Scottish Government’s position is simple: it is not at fault for voting through legislation at odds with the law; the UK Government is to blame for noticing and referring the matter to the Supreme Court. Alice in Wonderland no longer seems quite so fantastical when your country’s entire political system has relocated through the Looking-Glass.

Absurdity is one thing but the Scottish Government’s behaviour in the wake of the court’s decision has been insidious. Take John Swinney, who addressed MSPs about the judgment last Wednesday.

Boundaries

While there was some throat-clearing about how ministers ‘fully respect the court’s judgment’, the Deputy First Minister intoned that he was ‘bitterly disappointed’ that the ruling found ‘we are constitutionally prohibited from enacting legislation... to enshrine and fully protect the rights of our children’. For good measure, he added: ‘The Supreme Court has confirmed boundaries to our ability to protect our children.’ Our children.

He was not alone in deploying emotive language. Lorna Slater, Circular Economy Minister, said of the UK Government: ‘They use the courts to stop the Scottish parliament enshrining the rights of children’. On Twitter, Public Health Minister Maree Todd retweeted a newspaper columnist who wrote: ‘You will want to know that the Supreme Court evidently thinks it’s no business of our parliament embedding children’s rights.’

There is a perfectly respectable view that says judicial review should be limited because parliament is sovereign. The presumption should be that an act of parliament is within the law and constitutional because parliament sets the law and parliament is the constitution.

This Government cannot pray in aid this theory because, for one, it’s really about Westminster and, more importantly, it is the antithesis of everything the First Minister has ever said about political authority.

Nicola Sturgeon has made it plain that she believes in popular sovereignty, albeit a bastardised iteration in which the citizenry is the source of political legitimacy on constitutional matters, and a melange of supranational bodies, international courts and treaties, favoured experts and the government/third-sector industrial complex is in all other affairs. The principles of political legitimacy have not changed, merely the rhetorical needs of the current Government.

People who hear the rat-a-tat-tat of jackboots whenever a UK minister or newspaper castigates a judicial decision are mostly at ease with Scottish ministers doing the same. In fact, some of them are joining in the castigating. The reason is what it always is: politics. The SNP acted outside Holyrood’s lawful powers, and did so specifically on the sensitive issue of children’s rights, because it was after a constitutional fight.

That doing so would involve whipping up public indignation against a Supreme Court ruling was immaterial. Political calculation trumped popular confidence in the law and its institutions. Ministers will get a pass for this because rather than attacking the justices personally, they attacked the propriety of the UK Government availing itself of the court.

This may be an even more fetid tack for it undermines the very concept of seeking judicial review, but presentation and tribalism will, as ever, triumph over substance and integrity.

Vitriolic

Nicola Sturgeon and John Swinney both held senior Cabinet posts in a government that waged a vitriolic campaign against the Supreme Court in 2011.

After the court twice ruled that Scotland had breached the European Convention on Human Rights, Alex Salmond’s government accused it of ‘intervening aggressively’ and characterised it as a ‘foreign’ court.

SNP Cabinet ministers voted to establish an advisory group tasked with finding ways of preventing the Supreme Court from exercising judicial review in Scottish criminal cases.

There were threats to withdraw Scottish funding and a crass suggestion that Supreme Court justices’ only familiarity with Scotland came from visits to the Edinburgh Festival.

Salmond himself complained of ‘a situation where one judge is overruling the opinion of many judges in another court’, a reference to Lord Hope, the Scottish jurist who was at the time the Deputy President of the Supreme Court.

‘It boils down to the potential replacement of Scottish law by Lord Hope’s law,’ the SNP First Minister pronounced.

Scottish ministers and their amen corners in the commentariat, third sector and academia consider it an ineffable outrage that any government would go to the Supreme Court to object to a law protecting children’s rights.

They might want to take a moment out of their vaporous umbrage to give us their view on a government that has such little regard for human rights that it assails the Supreme Court for trying to uphold them.

While they’re at it, those latter-day liberals who sat in that government might want to indicate where they recorded their dissent from Salmond’s strategy and recount for us how they took a brave stance for human rights and the rule of law in his Cabinet.

Overlook

It’s often said that Scottish nationalism has no principles other than independence – but that is to overlook the time-honoured philosophy of It’s OK When We Do It.

There is blame to go around and not all of it attaches to the SNP. The UK’s position on the UNCRC is typically British. Having ratified the convention in 1991 because, golly, who could object to anything which codified children’s rights, it then decided not to incorporate it into domestic law because, golly, it turns out there were a number of applications successive British Governments could – or felt they had to – object to.

It is for this reason that all international agreements should come with the political equivalent of the Microsoft Word paper clip: ‘This document may contain unintended consequences. Click “save” to become a contracting party or “cancel” to double-check with the 1922 Committee.’

The UK Government is also at fault for the logical pretzel into which the Scottish Tories have wound themselves over this legislation, at first pointing out it was ultra vires, then trying and failing to amend it accordingly, then voting for it and now returning to their original position.

I was reliably informed at the time that the party backed the legislation in the end on the understanding that Number 10 did not object to it doing so. Only later did Downing Street decide it was going to challenge the Scottish parliament’s legislative competence in the Supreme Court.

Presumably Tory ministers were up to cynical games of their own, though I would willingly believe ineptitude is an explanation.

The current UK Government has a fairly tenuous grasp of competence and there is no reason to suppose that changes much if you stick the word ‘legislative’ in front of it.