From reader Contrary:

The crowd-justice thing I promoted here yesterday has unfortunately reached its target – unfortunate because it’ll cost me more than I can really afford, oh well more the fool me – but good that it is now going ahead. It’s not a magic bullet, it’s just one thing, one stage in the process to finally allow us to be given a choice – and such a sad state of affairs it is that we need to push to be allowed to vote – all mandates are in order and all events have come to pass that should allow us immediately, now, to know when our referendum is. The number of people saying ‘you had your vote,,,’ is astonishing. How is that rational thinking in a democracy? Also the use of ‘you’ or ‘youse’ has become evident, indicating an othering of a pre-judged group. I chat with extremist unionists on occasion, but can’t get a coherent answer on what group this is that they are othering – just ‘not them’ I guess, those people that are capable of more than just quoting bigoted headlines, you know, the thinking population.

Anyway, the group Forward as One (appear to be based in Dunfermline) has posted the advice from the advocate on the question: does the Scottish Parliament have the right to hold a referendum on Scottish independence with the law as it currently stands?

https://m.facebook.com/ForwardAsOneScot/posts/1524477237705304?__xts__%5B0%5D=68.ARBqIW0c_ZfZCv_NJ3eGCAUn3GoOhk0X6v_HO6CA-XqVK83dSnlEJDHVhS5TlSdt8UQTmCHzCzpgBpMAtq7XWYlItBpq4a_47Xy8wdqmEi2obYLFUheso_wI3XN-Mshwx0RJlfA0eCfzULwvOVCIQNe-KE-gJlb_vRn4qWSMj79HL-ZjzB9EAdvv8pqkpsIhjDZUOYHcosGLj-v4xBlzFqPcveyw_Ykwr7lKiyzxCusflm_0rIZTSBAZy427fj4a0KItcWEsxFCNmZGnoJjYTe1IbJEq1kymGkv8tE1T61VxIoKXCvrIw2crwDi1B6uLBoCA6WA-cP60QAPeWiU53OqW_S9_2GMOjmxMgwriiruRjZhpbtYXgAl4YSYVk7CtEtUAyBDmzJGmv8aX8EfziZTGlQ4vytxMALpFnpwTQK4jKw4mTPZcdva6TVSp5nUnuYjLTxXyHL2GI1At10wp&__tn__=-R

A bit irritatingly they’ve posted on Facebook and each page as an image (you won’t be reading it on your phone without very sharp eyesight).

The summary is that there is a very good argument to say that current law does allow for the Scottish Parliament to legislate for an independence referendum. The document is fascinating as it gives the history of constitutional matters and the relationship between the Union Parliament and the parliaments of the other nations. His main arguments to the court appear to be that constitutional matters constantly change, that the Scotland Act 1998 changed the constitution and the treaty of union (which said that there would be forever only one union Parliament). He goes into detail about why the court should rule on this issue, and those arguments appear fairly strong (it needs clarified, and this can only be done in a court of law). And, the crux of the matter, the legislative competence of the Scottish Parliament on reserved matters – the Scotland Act that defines this, he mentions two clauses, this first says the treaty of union cannot be changed by Scotland, the second lists reserved matters and it only mentions the trade agreements of the Treat of Union. He argues that a referendum in and of itself does not change anything – legislating to poll the people only potentially initiates changes, and it is the intention of the legislation that matters – the purpose would be to open negotiations, not to declare UDI – means that the referendum does not impinge on reserved matters.

Well, it needs to get past the hurdle of the Court of Session agreeing to rule on the matter – my opinion is its about bloody time, but judges may not agree – and then the ruling could go either way, probably a 50-50 chance. I don’t think the urgency of the matter was emphasised enough, but I assume any orders sent to court would do so? I wish there was more information about the next steps, but I guess we have to wait. Again. The strength of the argument, which is predicated on interpretation and the niceties of law, I don’t know about, but I think it’s as good as it gets, and we have to hope Westminster isn’t able to change constitutional law in the meantime.

The Scottish Parliament absolutely and clearly, as set out in the Scotland Act, has the right to hold a referendum on anything and everything, (unlike the Welsh assembly), so it is only the nuance of does the subject impinge on reserved matters, and does that matter? The legislation for a referendum does NOT change any reserved matters, so they are not legislating to change anything reserved when initiating an independence referendum – the outcome of that referendum could or could not relate to reserved matters (the treaty of union), but that does not make the initial legislation relate to reserved matters in itself, because the outcome is uncertain.