By Alasdair Galloway
Where now for the good ship indyref2?
Today the Westminster Government have lodged papers with the UK Supreme Court urging it to refuse to hear the request by the Lord Advocate concerning the lawfulness, or not, of the proposed Referendum Bill that the Scottish Government want to put into Holyrood. Not surprisingly a good deal of Westminster’s case is that the Scottish Parliament lacks the power to hold a referendum without a S30 Order. However, they have gone further, asking the Supreme Court not to hear the Lord Advocate’s request, as, it argues, the Bill is presently “only in draft form and could be amended as it moves through Holyrood and is ‘premature’.”
It must be obvious to even the purblind that the chances of a S30 Order are nil, if that good. It should though be understood that the current talk of “not for at least 10 years” from the Tory Leadership hopefuls is them talking to their fellow MPs, the Tory Party membership and those places where they have or harbour serious hopes of MPs. In short, they aren’t talking to us!
That said, a S30 Order isn’t going to happen unless Father MacChristmas wins the vote.
What is perhaps a bit more surprising is that Westminster has moved to have the whole thing thrown out without hearing the issues.
It is undeniable that the Bill IS in draft form – or at least has not been subjected to debate at Holyrood, and thus may well be amended as it goes through its stages. For what it’s worth, I suspect the political reality is that it won’t be ammended. I presume the Bill in its present form has been seen by Patrick Harvie and Lorna Slater who support it, and there then would be no need to compromise – if such were possible – with the Unionist parties. However, even if it were and Westminster thought there was even a wee chance that an amendment took it beyond Holyrood’s powers, they wouldn’t be back at the Supreme Court in no time at all. The Supreme Court may even be able to write in guarantees which, if not fulfilled, would lead to the case being renewed?
This, however, has not been helped by the case brought by Martin Keatings, in April last year, at the Court of Session. Keatings had asked for a ruling that the Scottish Government had the power to introduce an Independence Referendum Bill. This had been refused in the Court of First Instance, but Keatings had appealed the ruling. At the same time the Westminster Government had appealed another part of the ruling, that the Court of Session could scrutinise a measure for legislative competency prior to Royal Assent.
The Court Appellate Division denied the former as it was held by Lord Carloway that “A draft Bill has no legal status. The result of the election is not yet known. A Bill may or may not be introduced, depending upon the Government formed as a consequence of the election. If introduced, a Bill may or may not be passed by the Parliament, depending upon that institution’s composition. If a Bill is introduced, it may or may not be in the form which is contained in the draft. No matter what its initial form, it may be amended.. All of these eventualities render the current remedies sought premature, hypothetical and academic. A decision by this Court on the matters litigated would serve no practical purpose.”
If we work through these requirements, we find that now (Keatings case, above was heard in April last year – ie before the Holyrood election) several have disappeared. The result of the election is known, we know the government and that it has a majority to see any Bill through if it wishes. The weakness, as the UK Government’s Law Officers have identified is that the Bill could be amended, though as I argue above, this does not seem fatal to me. If the Supreme Court are asked to rule on the lawfulness or not of a specific Bill, with most of the uncertainties the Court of Session put in the way having gone, then what the Supreme Court is being asked to do is to comment on the lawfulness of THAT Bill, given near certainty it would be passed if introduced into Holyrood.
However, the Court of Session agreed the latter, that for the Court of Session to scrutinise a measure for legislative competency prior to Royal Assent was incompatible with the Scotland Act, and in particular Section 33 which reads:
“The Advocate General, the Lord Advocate or the Attorney General may refer the question of whether a Bill or any provision of a Bill would be within the legislative competence of the Parliament to the Supreme Court for decision.”
Thus the Supreme Court is the only game in town!
Perhaps most worryingly though, Lord Carloway, who delivered judgement, writes at paragraph  “The question would have been whether an Act to hold a referendum on Scottish Independence “relates to” (s 29(2)(b)) “the Union of the Kingdoms of Scotland and England” or “the Parliament of the United Kingdom” (sch 5 part I para 1(b) and (c)) having regard to its effect in all the circumstances (s 29(3)). The Act would relate to these reserved matters if it had “more than a loose or consequential connection with them” (UK Withdrawal from the EU (Legal Continuity (Scotland) Bill 2019 SC (UKSC) at para , quoting Martin v Most 2010 SC (UKSC) 40, Lord Walker at para ). Viewed in this way, it may not be too difficult to arrive at a conclusion, but that is a matter, perhaps, for another day.”
It doesn’t seem terribly difficult to forecast that if the Supreme Court follows Lord Carloway’s judgement that the chances of the draft Bill being found to be lawful are slim to none. The issue is, as the above quote makes clear, whether the Referendum Bill has “more than a loose or consequential connection with” one or more of the issues set out in S29 of the Scotland Act, including “the Union of the Kingdoms of Scotland and England” or “the Parliament of the United Kingdom”.
In other words, what is the purpose – or the effect – of the proposed referendum if it is not to further the cause of Scottish independence (and thus bringing to an end the Union of the Kingdoms) and to bring this closer?
What is surprising, a little, is that Westminster has chosen to become a party to the case brought by the Lord Advocate. If they are confident why not let the Scottish Government hang itself?
It is sometimes argued – and it has some force – that the case at the Supreme Court is a “win win” for the Scottish Government. If the Court holds that Holyrood does have the power to call a referendum without Westminster’s say so, then on we go. If it holds Holyrood doesn’t have this power then this can be portrayed – at least in some Nationalist circles – as an English court denying the wishes of the Scottish electorate, which would not be a bad basis for going into the next UK General Election with plan B – a one issue election, where if the SNP win a majority of MPs AND votes cast, then this would be taken as a mandate to begin negotiations with Westminster for our independence. Westminster having associated itself with the case, if Westminster’s success was guaranteed, is a move of questionable strategy.
If no referendum is possible within the law as it stands, then the next stage is the “de facto” referendum, the single-issue general election. So, let’s suppose the SNP take 58 Scottish seats at a general election and 55% of the vote. What happens when Westminster does no more than say “how nice”?
This is the point where such as Alba, Peter Bell, Gareth Wardell et al. have arrived at. They have seen, correctly, that the legal route is unlikely to deliver success. As an example, let’s imagine the Supreme Court backs the Scottish Government’s claim to have the power to call a referendum, which is held in due course involving all shades of opinion, and this time we get it right and win. Say, we reverse the 2014 vote, with Yes taking 55% of the vote.
The problem with the stance of the above is that Westminster would not have engaged with this at all, probably wont (or not without more) and are likely to ignore it. If, for instance a referendum organized by the Scottish Government, if approved by the Supreme Court might be legal, but Westminster wouldnot want it to happen. When we win this referendum – or take a majority of MPs and votes – what is there to make Westminster engage with all of this?
The point of that rather depressing conclusion is that this is not a legal issue – though that doesn’t mean that illegality can run wild. Rather it is a political issue in the sense of “the activities associated with the governance of a country or area, especially the debate between parties having power”. Westminster has to be brought to engage with such an outcome, and to be willing (however unwillingly) to negotiate our claim for independence. Even in 2014, I didn’t consider winning the vote would be the end. Certainly, it would be hard for Westminster to just walk away. The paradigm was always if Yes took the majority of votes then independence would be negotiated. But, would it have been? There wouldn’t be Tory back woodsmen (along with Brian Wilson and George Foulkes) who would hope to stymie the whole thing? Blandishments such as everything within the UK but independence wouldn’t have been made? If Westminster doesn’t engage, is unwilling to enter negotiations, what do we do?
It is over this that I disagree with such as Alba, Peter Bell, Wings over Scotland etc, wh0 seem to think we can just willy nilly declare independence and fall into the arms of an adoring international community. There are in fact plenty of other countries who are likely to be mightily pissed off if we do succeed. That list includes any country with a national movement (eg Spain, Belgium), concerned that their national movements will pull the same stunt. Then there are the Americans, if we tell rUK to take away their weapons of mass destruction, particularly in short order (btw, faced with no base on Cyprus, the UK simply annexed RAF Akratiri, declaring it Uk territory). Without endorsement by Westminster (granted however unwillingly) making our way as an independent country is going to be very difficult – at best!
On the other hand, if the Scottish electorate make clear their opposition to remaining as part of the Union – and in ways that go beyond merely voting in elections – this is likely to lead to friendly states putting pressure on the UK.
But this time, we don’t even have the Edinburgh Agreement as a backstop – such as it would have been. This would be a vote against Westminster’s wishes, that they had nothing to do with; OR the outcome of a vote at a unique election. I doubt either, on their own, will lead anywhere meaningful.
The aim of the independence movement is to secure independence for our country, but it has to be appreciated that a preceding step is to get Westminster acquiescence with this. How do we achieve that? Maybe, to quote Carloway, “that is a matter, perhaps, for another day” but I am certain it will involve political action to secure international supp0rt (EU, UN, ECHR as well as individual states), but also actions that are contrary to law even if they are peaceful.
Perhaps Scotland has to become ungovernable in order to secure its independence? Discuss. Do not write on both sides of the paper at the same time.