The ploy was to put legislation through Holyrood which they knew perfectly well to be outside its extensive jurisdiction. Then make a great palaver out of the UK government’s wickedness in challenging it.
This was to be another dry run for the big event when the Referendum Bill with great drum-banging will go through the same process with the same eventual outcome – ie a non-political, law-based rout in the Supreme Court.
So what subject to choose for the dry run? What safer territory than incorporating the UN Convention on the Rights of the Child – to which the UK has been a signatory since 1991 – into Scots law? Who could dissent without being shamed in the court of public opinion?
Of course, nobody could, politically. So the Act went through unanimously. In this case, the opposition was smart enough to see the elephant trap; that this was never intended to be settled by legislation but by subsequent play-acting through the courts.
Thus the scenario which reached its conclusion this week was contrived. Virtuous Scotland wanting to do more for children’s rights. Westminster wanting to stop it. If only we had more powers, etc, etc. In other words, children’s rights were pawns in a purely political game with no practical effect.
At this point, it is worth noting what Sturgeon, Swinney and co are doing for children’s rights, within their actual powers. By appropriate coincidence, in the same week as the Supreme Court decision, the Joseph Rowntree Foundation reached a conclusion of its own. “Without urgent action to release poverty’s grip, the Scottish government is on course to significantly miss its child poverty targets. Even before the Covid-19 pandemic, Scotland was blighted by poverty in which a quarter of a million children were trapped.”
Surely enough there for any government that actually cared to get on with?
Let’s return to the Supreme Court, chaired by a distinguished Scottish judge, Lord Reed. Legislation, he noted, is intended to provide a “clear and accessible statement of the law”. In this case, the opposite was the intention. The Children’s Rights Bill was “drafted in terms which deliberately exceed the legislative competence of the Scottish Parliament”.
But why, even then, should the UK government challenge it, rather than leave Sturgeon, Swinney and co to their silly, self-aggrandising games? The answer is that, like much else they engage in, this was not a victimless crime. There are real consequences for proceeding on the basis of a law which is itself illegal.
Any public body acting on the Holyrood version “could be sued and potentially found liable in damages... The result would be to make it difficult if not impossible in practice for public authorities to implement provisions of Acts of Parliament which were declared to be incompatible… Provisions enacted by Parliament might consequently be deprived of practical effect”.
That, in a rather large nutshell, is the nonsense that the Scottish government promoted, “deliberately” acting outside its powers in order to make a political point which took in vain the cause of children’s rights. It is shameful. In a just world, Sturgeon, Swinney and co would be personally surcharged for the huge costs involved.
How much was wasted on a legal charade, taken all the way to the Supreme Court, that might usefully have been spent on, for want to a better idea, poor children in Scotland? How much more is to be squandered on the great referendum wheeze now in the planning?
The advance notice could not be clearer, as Lord Reed states: “(If) this method of drafting results in legislation which is outside legislative competence… persistence in adopting it can scarcely alter that outcome.”
On that basis, it must be clear to even the dimmest SNP or Green camp-follower that their Referendum Bill will end up nowhere other than in the same blind alley. It is a deception upon deluded troops sustained only by the cynicism of their leadership.