By Alasdair Galloway
Most commentators are of the view that if Nicola Sturgeon asks Boris Johnson for another S30 Order – precedent being the Edinburgh Agreement – the answer will be some variation of “No”, “Not now”, “Now is not the time” or “I see no demand for another referendum”. Or put short – NAW.
At the same time, Nicola has made clear that a referendum must be “legal”. Interestingly, DRoss has made clear that his side would not participate in one that was illegal (does that leave him enough wriggle room, or is “illegal” the same as “not legal? Do “unofficial referenda” count? No doubt Dougie will let us all know in due course).
Anyhow, asking for a S30 is arguably the waste of a stamp, which no doubt will be added to the £20 million being wasted on referendum preparation. Cieran Martin helpfully points out this morning in the Herald, that the Johnson gang have closed off all “legal” approaches to a referendum (as they are constantly so confident they will win, WHY?). However, as Martin points out, ““The goal of the Scottish Government and the wider independence movement is not to hold a referendum. It’s to achieve independence.” Thus, the question can then only be “what next”?
I am obliged to a long time SNP member for reminding me that you don’t tell your opponent in advance what you are going to do. We all know a S30 Order will not be forthcoming, so what is the First Minister going to do then? No matter how much Dross, Sarwar and ACH go on, or McWhirter or Campbell may complain, does it make sense to tell everyone before you have to?
To see what might be possible one place to look is the law, and in this case the Scotland Act 1998, which is where the fabled S30 resides. Yet, S30 is not the really important section. It does little more than set out how the transfer of powers would work – it allows a transfer of powers. But if no transfer of powers is forthcoming, it also sets out the only circumstances where this would be necessary.
“(1)An Act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Parliament.
(2)A provision is outside that competence so far as any of the following paragraphs apply—
(a)it would form part of the law of a country or territory other than Scotland, or confer or remove functions exercisable otherwise than in or as regards Scotland,
(b)it relates to reserved matters,
(c)it is in breach of the restrictions in Schedule 4,
(d)it is incompatible with any of the Convention rights F1…,
(e)it would remove the Lord Advocate from his position as head of the systems of criminal prosecution and investigation of deaths in Scotland.
(3)For the purposes of this section, the question whether a provision of an Act of the Scottish Parliament relates to a reserved matter is to be determined, subject to subsection (4), by reference to the purpose of the provision, having regard (among other things) to its effect in all the circumstances.
(4)A provision which—
(a)would otherwise not relate to reserved matters, but
(b)makes modifications of Scots private law, or Scots criminal law, as it applies to reserved matters,is to be treated as relating to reserved matters unless the purpose of the provision is to make the law in question apply consistently to reserved matters and otherwise.”
Section 1 I would suggest is fairly obvious and uncontentious. It is only when we get to Section 2 where difficulties come into view. (a) and (d) to (e ) pose no problems – all the action is at (b). Now given that the “Constitution” IS a reserved matter one might imagine that we are sunk here.
However, a very prescient letter by David Brookens, “retired solicitor advocate, Whiting Bay, Arran” was published on this matter in the Herald recently (https://www.heraldscotland.com/news/20216109.letters-support-independence-soon-vote/)
“I NOTE an interesting contribution from Professor Ciaran Martin (“What’s really behind launch of Sturgeon’s ‘Indyref2’ push?”, The Herald, June 16), but he’s getting way ahead of himself and completely missing the point, in my respectful submission.
Since no Scottish Parliament legislation is yet in place we can only speculate as to what its terms might be but its purpose will not be to “compel the United Kingdom to dissolve itself ”, it will simply be seeking to lay a question before the electorate.
The question for the Supreme Court would be two-fold. First, does the Scotland Act of 1998 give the Scottish Parliament the legislative competence to pass such legislation and, secondly, do the terms of this proposed legislation comply with that competence? Despite the outpourings of politicians and the media – BBC Scotland regularly offends here – there is a respectable body of legal opinion which suggests the Scottish Parliament does indeed have that competence but that is many removes from impacting on the Union itself. The future of the Union will not be affected until Westminster knows the outcome and agrees, if necessary, to respect it.” (my emphasis).
There are two key points in this. Rather perversely let’s take the second one first.
Given the wording of s29 the case being put by the Scottish Government is that their proposed vote doesn’t affect the Union at all. In 2012 there was a view that the Scottish Government DID have the power to take forward a referendum on their own See https://www.heraldscotland.com/news/13044585.salmond-thatcheresque-rivals-play-hands/ or see https://www.centreonconstitutionalchange.ac.uk/opinions/second-scottish-independence-referendum-without-s30-order-legal-question-demands-political by Professor Stephen Tierney, director of the Centre for Constitutional Law at the University of Edinburgh). The latter is particularly useful, since he makes clear that the route was not pursued for 2014 was that “regardless of whether one was a Yes or a No voter, it was far better in terms of fostering a conducive environment for debate that a referendum, without the consent of the UK Parliament, was not attempted”. I think, given present circumstances, we can see what he means.
And of course, that support for independence at the time of the Edinburgh Agreement stood, according to Blair McDougall, at 28% and the whole thing should be a ‘walk in the park’, is of course another reason.
We are not though in that zone any longer. Another referendum, whatever else it might be, will not, from Westminster’s point of view, be a ‘walk in the park’. However, the Westminster Government may not be able to protect itself by just saying “Naw”, for as Tierney points out whether a Bill relates or not to a reserved matter depends on its the purpose, “having regard ‘to its effect in all the circumstances’” Therefore, the important point here is that it can be argued that since a vote will not of and by itself affect the Union – it won’t abolish it for instance – that organizing a vote is within the powers of the Scottish Parliament. All that is being done is to lay a question before the electorate
Therefore, we must appreciate that all a referendum does is to consult the electorate on independence and does not, in itself, do anything itself to end the Union. Indeed, even in 2014 my own feeling was that had the won that vote this was not the end, though (to be Churchillian) it might have been “the end of the beginning”. Even in 2014 while the political consequences would have been severe had Yes won out (think not acting on Brexit vote), it was not impossible that the politically undead (Forsyth, Foulkes, Lang, Brian Wilson, SIU et al) would have done their very best to ensure that the vote was not acted on. After all there is no law that says that a referendum outcome must be acted upon and the House of Commons is sovereign. Indeed in their judgement in the Miller case re Brexit the Supreme Court makes the point that as Westminster is sovereign whether or not to act on a referendum vote is a political decision, not a legal one.
Therefore, as Mr Brookens helpfully concludes, “The future of the Union will not be affected until Westminster knows the outcome and agrees, if necessary, to respect it”. In other words, a vote, whether organized with or without a S30 Order, is just that – it’s only a vote. The key issue is whether Westminster acts accordingly.
Thus, if what matters is what happens at Westminster, even if there is a S30 order – that is not the end of the matter. The question then would remain, “what next” if we cannot rely on Westminster to act democratically, respecting the outcome of a vote?
This morning Alex Salmond’s speech to the Alba Party is quoted in the Herald. The most important of the three points he makes is that “the SNP should cease referring to a section 30 referendum as the “gold standard”. It isn’t, but rather one of a number of ways to give democratic substance to Scotland’s national right of self-determination” and in this regard he is right. If it is blocked off to us, the purpose of the campaign, as Ciaran Martin points out is to win independence, not cool our heels while a succession of Westminster Prime Ministers refuses a Section 30 Order.
In passing, I think it is becoming most important to resist the portrayal of a referendum as “illegal” if it does not come with a Section 30 Order. This is not the case. A referendum that had no implications for the constitution (or the monarchy, or the other reserved matters) – i.e. it was not outwith the Scotland Act – would be perfectly legal. The problem in that case though would be to get Westminster to “respect” the vote. How?
Once again I have a broad agreement with Salmond that what is needed is “a determined campaign of civic action, parliamentary intervention and diplomatic initiative to press home Scotland’s Claim of Right.”
Craig Murray put is slightly differently – and typically more belligerently- five years ago “One day, all supporters of Independence are going to be forced to get their heads round the fact that London is going for the Madrid solution, and we are not going to achieve Independence without using peaceful, non-violent routes which are nevertheless going to be deemed illegal by the Establishment.” https://www.craigmurray.org.uk/archives/2018/10/taking-the-radical-road-with-auob/
Let’s see what Nicola has to say on Tuesday, but the ground for a S30 looks treacherous, at best, and difficult for any other referendum, both before and afterwards. In hearing her, we should be clear that this is no more than another move in a game of multi-dimensional chess.