Stop rushing to the courts First Minister and start talks

As of Monday we are back to intergovernmental relations conducted as a pub fight in EastEnders, both sides out on the pavement, broken glass all around, and cries of “Leave it, they’re not worth it!” filling the night air.

How tempting it is to walk away and leave them to it. A plague on both their houses. We were just about coping with the notion of the General Election being used as a “de facto referendum”, whatever that means. Now another runaway train, the Section 35 Express, is hurtling down the track. How much constitutional drama can one small but beautifully formed nation be expected to take?

Knowing the chief protagonists as we do makes walking away even more appealing. It was inevitable, not least because he had been threatening it for a while, that Alister Jack would block the gender recognition reform bill, as passed by the Scottish Parliament. It was just as predictable, not least because she has form in this area, that Nicola Sturgeon’s response would be, “See you in court”.

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But on the grounds that no problem was ever solved quicker for the involvement of lawyers, and because it will cost the Scottish taxpayer another fortune in fees if legal action goes ahead, the sensible solution here would be to get round the table.

That nice Mr Jack offered as much in his letter to the First Minister. “I am happy to meet if you wish to.” Isn’t that fancy? Sounded like he might even break out the good biscuits.

Yet the first point to note about the Secretary of State for Scotland is that he is well and truly “at it”. Stirring the pot. Acting the goat. He is at it like no Tory Minister has been at it since the last one was at it (shall we agree on Liz Truss calling Nicola Sturgeon an “attention seeker”?). He is at it so brazenly one almost admires the sheer nerve.

Hard to say what was the biggest giveaway. Maybe it was the breaking off from the dry legal wording in his letter to point out the “chilling effects” the bill would have on single-sex spaces. Playing to the gallery there.

Or was it publishing his reasons for blocking the bill after he got to his feet in the Commons, giving MPs barely any time to digest the details?

We don’t see a lot of Mr Jack, busy as he is doing whatever it is he does, so it can be difficult to get a handle on the man. For some, the last sighting of him was in Downing Street where he was part of a small crowd waiting to wave off Boris Johnson and his wife Carrie. There stood Mr Jack, Jacob Rees-Mogg to the left of him, Nadine Dorries to the right. He gave Mr Johnson a shoulder squeeze and the PM reciprocated. Carrie planted a kiss on both cheeks.

Analysis: Scottish Government lawyers will have field day

Seeing how close he is to the former Prime Minister, one wonders if Mr Johnson has been giving him the benefit of his advice on how to rile the Scots. Could this have been a case of revenge best served cold for the chilly reception Mr Johnson received from Nicola Sturgeon on the steps of Bute House? A bit of mischief from the old chief? Pettier things have happened.

Could Boris Johnson be partaking in his usual mischief? (Image: Newsquest)

It is necessary to cast the net wide when trying to pin down why Mr Jack waded in with a Section 35 order for the first time, because his stated reasons make little or no sense.

He does not want divergence, for example, between Scotland and the rUK, yet that has been an accepted part of the relationship from the off. If we have managed to run separate legal and education systems for all this time, coping with different gender recognition processes is surely manageable.

If not, solve the difficulty another way rather than using the nuclear option of Section 35.

The main thrust of Mr Jack’s opposition is that the Scottish bill would have an adverse impact on the operation of UK-wide equality legislation. Fancy that never coming up during all the years of discussion and consultations on the subject. Don’t we feel silly now? What on earth made us think there was no clash with the Equality Act 2010? Was it the bit of the bill that stated: “For the avoidance of doubt, nothing in this Act modifies the Equality Act 2010”? Or was the parliament crossing its fingers and hoping for the best on that one?

All of this could be covered in talks between London and Edinburgh. Unless Mr Jack is objecting to any reform of the process, in which case that is a whole different discussion.

There will be those who say Ms Sturgeon shouldn’t bother with any talks. She could just sit back and relish the fight with London, play it for all the votes it is worth. Negotiation brings with it the risk of defeat.

I get that. Of course Mr Jack has built an elephant trap, one so big that it can be seen from space, so work around it. Take Michelle Obama’s advice: when they go low, you go high. Be the bigger politician. Smother your opponents in reasonableness. Floor them with your arguments. If none of that works, then consider going to court.

I caught an interview with Henry McLeish on The Nine the other night. The former First Minister drew a comparison between the gender reform bill, now blocked, and his own efforts to bring in free personal care in the face of objections from Downing Street.

“I met the Chancellor, I met the PM, I met the Health Secretary,” he recalled. “They did not like this one bit and demanded of me that I drop it. But I didn’t, because we had the legal competence, it was in the interests of Scotland, and it had all party support.”

Of course the ministers he met were from his own party, but Blair and Brown were no pushovers.

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Ms Sturgeon has the added difficulty in that she will be dealing with the Conservatives, but again, let us be positive.

Think of it as a test, because you can be sure the public will see it that way. If the First Minister and her colleagues cannot deal with the likes of Mr Jack on a relatively straightforward, though controversial, matter as this, it hardly bodes well for Scotland in any independence negotiations.