Shades of legal grey – Part 4

PART 4

This briefing paper has been produced by former journalist David Torrance, long time critic of the SNP government in Scotland, now working as a researcher in the House of Commons library. Briefing papers are produced to provide information on issues of current or impending importance.

• Reference to the Supreme Court
• The briefing paper indicates three routes under which a “devolution issue” can reach the Supreme Court:
• 1) Through reference of a Bill that is before the Scottish Parliament by Scottish or UK law officers.
• 2) Via a statutory reference or appeal of a “devolution issue” to the Court as set out in Schedule 6 of the 1998 Act.
• 3) Through the normal judicial process, with cases arriving at the Court on appeal from lower courts.

The Scottish Secretary, Alister Jack, today (10th March) insisted

– – the UK Government will reject any calls for indyref2, regardless of the result of the Holyrood election. He said any ballot that’s not signed off by Downing Street will be challenged in the courts.

The Supreme Court will test the scope of the relevant reservation in the Scotland Act 1998, examining – drawing on relevant statute, case law and supporting documents – whether the purpose and effect of referendum legislation related to “the Union”.

Joanna Cherry MP QC has argued that courts should: “look to the wider constitutional context and to have some comments to make about a Government which does not allow a 2nd indyref when there is a clear electoral mandate in favour of one.”

And we’re back in grey areas again with questions of what constitutes a mandate – seats or votes, from one or more parties, which parliament’s elections are relevant? Some argue that issues such as Scottish independence “are too constitutionally fundamental and politically contentious to be left to the courts”.

Some argue that referral of referendum legislation to the courts could cause significant difficulties such as provoking “retaliatory legislation from Westminster to make clear that such legislation is not within Holyrood’s competence, similar to the fate of the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill.” A unionist boycott and no co-operation from the UK Government in implementing a vote for independence could also be possibilities.

In January 2021 the Outer House of the Court of Session considered a declarator sought by Martin Keatings with his counsel arguing that a potential independence referendum did not in itself relate to a reserved matter. The question was deemed by Lady Carmichael to be “hypothetical, academic and premature”. An appeal was lodged and will be heard in April.

So where does that leave Scotland and the desire of the majority of its people for independence?

The will of the people was a phrase much used during the Brexit debate and afterwards. The UK Parliament was delivering the will of the people – though not the Scottish people, 62% of whom voted to remain. The UK government can chorus it has the law on its side (though that is as yet untested in court), it has the upper hand, it has the majority in Westminster, it has the ability to outvote Scottish MPs at every turn.

The UK is a union of countries, yet it’s often forgotten that it’s an evolving union, not static. England and Wales joined in the 16th century, followed at the beginning of the 17th by the Union of the Crowns with England and Scotland remaining separate states but sharing a monarch. 1707 brought the union of parliaments. Over the years the Acts of Union have been amended by the UK Parliament. Fourteen Articles of the Union were repealed wholly or in part by the Statute Law Revision Acts in 1867, 1871, 1906 and 1948. The early 19th century brought union with Ireland creating the United Kingdom of Great Britain and Ireland. In 1920 Ireland was partitioned with devolved parliaments in the north and south, but in 1921 the Anglo-Irish Treaty acknowledged southern Ireland’s secession from the UK. It was granted dominion status in 1922, leaving the British Commonwealth in 1949.

So we have a UK Government which has already had to bow to pressure for independence from colonies and what it saw as an integral part of the UK. Between 1776 and 1997 a significant number of colonies, protectorates, mandates, and territories became independent from the UK. Most achieved this through negotiation followed by legislation at Westminster; some Dominions gradually moved towards full autonomy; a few – the United States in 1776 and Southern Rhodesia in 1965 – unilaterally declared independence.

Scotland has no statutory process (no Article 50) under which we can opt for independence. Even Northern Ireland now has a process by which it can make its desire for independence known and have a referendum held on it.

Scotland alone is at the mercy of the Westminster Government. A union of equals? That has been proved far from reality. Westminster has a Tory Government and Scotland has not voted in a majority of Tory MPs for well over half a century, so it is not a government representative of people in Scotland. And should Westminster decide to ignore our desire for independence, even if there is a majority for it in May’s election, and challenges a referendum in court, then the question asked must be whether the UK is even now a democracy. And if not, what part would it be playing in the world and how much influence would it have.

Scottish independence affects England as well as Scotland, not only for our resources it enjoys, but also its position in the world. The Mother of Parliaments now looks more like a dinosaur, a fossilised relic of bygone days, unable to reform itself or its processes for the 21st century. Out of the EU it will increasingly be viewed as irrelevant. Its only hope is to bite the bullet. Johnson believes he has freed the UK from the bonds of the EU. Now is his time to free England from the bonds of Scotland and a union that is no longer fit for purpose. Independence will enable a new relationship between the UK’s constituent countries, one much more suited to the challenges of the 21st century. It would be seen as an enlightened move, a democratic move, one that acknowledges self determinations and its benefits.

Boris Johnson and his Tory government would do well to take heed of Donald Dewar’s advice:

“But, as I said, the sovereignty of the Scottish people, which is often prayed in aid, is still there in the sense that, if they vote for a point of view, for change, and mean that they want that change by their vote, any elected politician in this country must very carefully take that into account.”