Professor Aileen McHarg has called it just right. The British government is most certainly mounting a legal challenge to the Scottish Parliament legislation which embeds the United Nations Convention of the Rights of the Child (UNCRC) and European Charter of Local Self-Government into Scots law for devious political purposes. It’s one of these things that is so obvious once it’s pointed out that you wonder why you didn’t see it earlier. I am particularly perplexed about having failed to make this observation myself because it so nicely illustrates a point I have been making for a long time concerning the importance of picking the correct fights.
There is no doubt that this is a case of Westminster picking a fight with Holyrood. But why this particular fight? At first glance it is not an obvious candidate. Not because both pieces of legislation were passed unanimously by the Scottish Parliament. That actually makes it a better target. If you’re going to slap down a devolved Parliament then there is little point in challenging something it is ambivalent about. The slap-down is more effective the taller the Parliament is standing. And it never stands taller than when it is unanimously in favour of something.
Challenging this legislation looks – superficially, at least – like an odd choice because it’s about the protection of children and local democracy. This would seem to be very easy ground to defend. You don’t even need to know anything about the details of the legislation. Just the fact that it’s about the protection of children and improving local democracy means people will tend to be immediately, instinctively supportive. Of course, it is not ‘people’ who will be ruling on the matter. It’s the UK Supreme Court. It had to be. For this action to be an effective demonstration of British power it had to be a British court. But it also matters how it plays with the public. Or should I say publics’ – plural. Because it can be expected to play differently in Scotland and in England. It will also play differently with different constituencies within Scotland. Unionists and nationalists will take very different views of England-as-Britain affirming its dominant status over Scotland.
At first glance, the Brits would seem to be inviting the displeasure of the politically aware part of Scotland that isn’t so easily manipulated by the British media. But from the British perspective that’s a good thing. As with defying the unanimity of the Scottish Parliament, going against popularity with the public in Scotland makes this a better demonstration of power. Victory would be the British state saying it is more powerful than the people themselves and not just the Parliament they elect. It says that the democratic legitimacy the Scottish Parliament derives from the people counts for nothing against the overwhelming power of the new ‘Great Britain’ being created by the British Nationalist regime in London.
But the British Nationalist regime in London could lose the case. The UK Supreme Court could very well rule against it. Some would argue that it will most probably rule against the British government. Or rather that the usual fudge will be substantially in favour of the devolved administrations. Surely that is a risk the British Nationalist regime would not want to take. Perhaps so. Or perhaps the fact that the Brits are prepared to take such a risk should be seen as indicating the value to them of winning. A win sets a precedent which could serve the British Nationalist regime very well as it proceeds with its aim to subsume Scotland in a new ‘Great Britain’. Or ‘Greater England’.
Besides, if they lose they still get something out of it. Remember that this is really all about (primarily) the Scottish Parliament enacting legislation which may constrain the British state’s ability to impose its laws on Scotland. Ultimately, it is about preserving the Union. And preserving the power that the Union allows England-as-Britain to exert over its annexed territories to the north and west. If the UK Supreme Court rules against the British Government this will be perceived and portrayed as evidence that the devolution experiment is failing. It will be held to justify ‘corrective measures’ to weaken the devolved Parliaments – particularly Holyrood – relative to Westminster. They win, they win. They lose, they win. What could be more British than that?
The reason I’m annoyed with myself for not properly examining this matter is that I have long maintained that given the inevitability of confrontation between a (sadly hypothetical) Scottish Government determined to restore Scotland’s independence and a British political elite equally determined to preserve their ‘precious’ Union, it would obviously be to the former’s advantage to select the issue at the heart of the confrontation. It would be to our imagined Scottish Government’s benefit to be able to choose the ground on which the fight is fought. Here is a perfect example of a government doing just that. And I failed to spot it. How embarrassing!
As we’ve seen, losing in court doesn’t do the British Nationalist regime any great harm. It will quietly turn the loss to its advantage while the British media dutifully plays down the significance of the ruling. Just a technicality. Nothing to see here. Move along! As we’ve also noted, the gains from a win far outweigh the potential awkwardness of losing. Why? Because of the similarities between and parallels with the issue on which the Scottish Government would almost inevitably choose to undertake the ‘final confrontation’ with the British state. The issue of the status of the Scottish Parliament.
I do not pretend to Professor McHarg’s expertise in matters of constitutional law,. But it seems obvious even to a lay observer that the action which will trigger the process by which Scotland’s independence will be restored must involve asserting the primacy in Scotland of the Scottish Parliament on the basis of the sovereignty of the Scottish people and the incontestable democratic legitimacy this bestows on the Parliament that the sovereign people of Scotland elect. Such action is itself legitimised by a body of international laws and conventions. Most importantly the Charter of the United Nations and various declarations subsequent to that Charter. We begin to see those similarities and parallels now, do we not?
If we had a Scottish Government that was prepared to take the necessary action to initiate the process of restoring Scotland’s independence that Government would expect the British state to challenge its action with all vigour. But said Scottish Government could be very confident of repelling this challenge on account of having chosen a position that is easy to defend and seriously problematic to attack. In challenging the Scottish Parliament’s declaration of primacy the British state would be obliged to argue that the people of Scotland are not sovereign; that we do not therefore have the right of self-determination and that Westminster’s democratic legitimacy in Scotland is greater than Holyrood’s. I’m no lawyer. But that’s not an argument I’d like to try and make in front of the UK Supreme Court. It would help if I had some sort of precedent to refer to. A UK Supreme Court ruling effectively affirming parliamentary sovereignty and the primacy of Westminster would provide a strong crutch for a weak case.
Nicola Sturgeon has described the UK Government’s maneuver “jaw-dropping”. A term which implies an element of surprise. But this shouldn’t be surprising at all. It’s what they do. It’s what we should expect them to do. What is surprising – nay shocking! – is that Nicola Sturgeon continues to hope that the British Nationalist regime which goes to these lengths to protect and preserve the Union will give and honour a promise to cooperate fully and honestly with a process that will almost certainly end the Union. Now that is truly jaw-dropping.