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 [66] “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 [27], quoting Martin v Most 2010 SC (UKSC) 40, Lord Walker at para [49]). 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.
Talking-up Scotland / Scottish media fact checking is like shooting fish in a barrel 
We should be shaking the tree already democracy in the UK is only acceptable if your English or Northern Irish the rest of us live in oppression, a colony and cash cow for England. Interestingly Labour have woke up to his in Wales but not Scotland, Keir Hardies party of home rule. The Infuriatration of politics by the elements of the state in UK,Ok. is a disgrace , democracy is a veneer an illusion it doesn’t exist. This why the SNP are so quiet, they have been taken over to maintain the Westminster game of slight of hand.
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Thought provoking piece Alasdair, and good to see a more realistic analysis to counter calls to just do it. If we went down that route it is hard to see how we could ever disentangle the ties to the UK without any cooperation or backing from the wider world. On the other hand their now is not the time mantra indicates the unionists are fully aware of our dilemma and have no plans to move on from this stance
For what it’s worth I think there are several things we should be working on now. One would be the ongoing hard slog of contacting constituency MPs on an individual basis, not to lambast them but to try to get conversations going. Then also targeting party leaders, again with the aim of making sure our views are heard and trying to change minds, no matter how hard or useless this might feel just now. I think we need to recognise they are not all bad people and, if we want them to engage with us we need to show willingness to do the same
Third a campaign to challenge the misinformation and bias in the UK as a whole. Every one of our elected representatives needs to go out prepared to challenge the Scottland bad narrative. As ordinary peeps we can contribute by writing letters, calling in to phone ins, attending meetings etc, in particular targeting influential sources where our messages will have most effect but also recognising the need to listen & be respectful of opposing ideas when joining in discussions
Fourth I see someone on twitter muting the idea of establishing a civil rights movement, certainly something to consider. We are a politically aware nation (on the indy topic at least) but more of us need to take this further and get involved in citizen action and active campaigning rather than passively (or angrily) waiting for our politicians to sort it.
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SCRM, Scottish Civil Rights Movement, let all the Scottish yes movements adopt this stance and bring our cause to the world’s attention.
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The elephant in the room which just about every author of this kind of article seems not to notice is that Scotland entered this union by a properly constituted international Treaty and as we have heard repeatedly from the PM of the UK downwards there is nothing in law can prevent a sovereign nation from withdrawing from a Treaty.
Treaty makes domestic law, domestic law cannot alter a Treaty, Treaty law is International law. Do we expect westminster to stomp its feet and throw its toys out of the pram, of course we do. Have we not just witnessed the complete and utter shambles of brexit, will they behave any differently regarding Scotland’s withdrawal. Of course not. Let’s cross that bridge when come to it.
The SP have been confronted with a dilemma, whether to hide behind the Scotland Act and deny a legal referendum or to acknowledge the principal of Scottish popular sovereignty. In essence the Scottish parliament has been instructed by the people of Scotland to hold a referendum by the people of Scotland, both Nicola Sturgeon and the Lord Advocate have referenced this by ‘ there are issues to consider ‘.
My guess is the SO will hide behind the Scotland Act and then we move on to instructing westminster.
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It’s clearly a day for considering citizen action – George Mombiot has an article in the Guardian today but lost me with references to someone’s theory. The New Statesman has a piece which says pretty much the same as Alasdair does here (though maybe less favourable of us Scots) and ends with this
“The image emerging from all this – increasingly shown, not told – is nothing short of a de facto conspiracy, across all parts of the British political establishment, to punish Scotland for straying outside of the lines of political consensus, stripping the Scottish people of any prospect of representation or redress on their own terms. Perhaps the unionists have stumbled upon their own version of “show don’t tell”: if that doesn’t persuade Scots to finally head for the door, nothing will, and we can all go back to the old normal. But that doesn’t make it right”
Worth a read I thought
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I see the author of the New Statesman article referred to by brobb has this view: ‘Scotland is more of a hypothesis than a fact.’
The author’s analysis of Labour’s position – given the likely readership of the New Statesman – is for me the most interesting part of the article (with my emphasis):
‘Supporters of independence are told that if we don’t like the Tories, we should just vote Labour instead. But what if Scots don’t want to do that either? THE LABOUR PARTY, TERRIFIED OF THE ENGLISH RIGHT-WING PRESS, is increasingly adopting the fundamental principle that it WILL NEVER DO ANY KIND OF DEAL WITH the SNP – even as it PROMISES TO LEGALLY MANDATE COOPERATION between the UK and Scottish governments.
‘Further plans for constitutional reform, helmed by Gordon Brown, are reportedly BEING OBSTRUCTED BY MEMBERS OF KEIR STARMER’S SHADOW CABINET WHO REPRESENT ENGLISH SEATS. Labour’s positioning towards the SNP is far more revealing than its support for further devolution: if Scottish voters make a decision Labour don’t like, LABOUR WILL USE THE ENGLISH MAJORITY TO IGNORE THEM UNTIL THEY ARE WORN DOWN INTO CHANGING THEIR MIND.’
And this is worth repeating: ‘The image emerging from all this – increasingly shown, not told – is NOTHING SHORT OF A DE FACTO CONSPIRACY, ACROSS ALL PARTS OF THE BRITISH POLITICAL ESTABLISHMENT, to punish Scotland for straying outside of the lines of political consensus, STRIPPING THE SCOTTISH PEOPLE OF ANY PROSPECT OF REPRESENTATION OR REDRESS ON THEIR OWN TERMS.’
This becoming a consensus view. On 27 June, 2022, the Daily Express reported this from Professor Ciaran Martin who helped negotiate the 2014 independence referendum on behalf of the Cameron government. Martin concludes: “So at the moment, while in principle Scotland can become independent, in practice it can’t, NO MATTER HOW IT VOTES AT ELECTIONS, OR HOW OFTEN IT DOES SO.”
The old Tory and new Labour ‘suppressionists’ in lock-step to put and keep Scotland in a constitutional prison cell! Does the British Establishment have no capacity to learn from history?
I see little prospect of changing Tory minds but every effort to call-out and embarrass the Labour leadership – and the evidently complicit Lib Dems – in front of party members and voters should be taken.
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The message being pushed by these articles is clear, Scotland as a country doesn’t exist. Do you accept that.
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Golfnut, I suppose in the eyes of many unionists Scotland is indeed not seen as a country in its own right. Just as many of us here fervently want Scotland to be independent there will be equal numbers of union supporters who can’t bear the idea.
The trouble is just about all of us (on both sides) are selectively reading, following and endorsing articles, ideas, posts and news which reinforce our belief. We see all these Tory leadership candidates as denying Scotland’s democratic will and focus mostly on their indy views rather than anything else they may say. Equally I’m sure union supporters see a validation of the UK, much in the same way as N Ireland’s orange marchers and the DUP. And of course even among indy folk grievances feed grievances as anyone looking at twitter’s response to Neil Hanvey and Kenny McAskill’s actions today – SNP and Alba supporters taking shots at each other rather than trying to keep the lines of communication open
We are not in the same position as Ireland I know but it was only when politicians and activists there were persuaded, cajoled and pushed into talking to each other, coming to terms with equally valid viewpoints that old divisions were if not healed at least patched over. My own opinion that it was Mo Mowlam who deserved the credit for doing the donkey work, even if the bigger names got the public credit. This in turn has let those seeking a united Ireland put in the hard work of winning support, making the part of the country they do control a better place and above all continuing to talk and debate and change minds. I know it’s not perfect yet and that the undercurrents are still very near the surface but it’s a pretty good result all the same
And do you know (this might well get me barred from any indy site) I listened to Iain Murray on LBC yesterday not talking about Scotland but on Westminster politics and what he said seemed sound enough. The passion and impatience and burning desire we have to see Scotland independent is absorbing, often exciting and has given us a cause to believe in and work towards but lets not ever forget that talking, persuading, negotiation and sometimes compromise may be more effective in getting us what we want
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I would be interested in viewing any validation you could provide demonstrating the Treaty of Union allowed westminster to claim Scotland was extinguished. It wasn’t an opinion shared by Lord Cooper in 1953, nor by the UK Gov, when legislating for devolution via the Scotland Act as they site the Treaty of Union as the authority for reserving the Crown and the Constitution to the Union parliament. I would also suggest the Queen has no idea this event took place since her office declares ” 2 crowns on one head ” regards the Union between England and Scotland.
This nonsense was formulated to support England/RUK’s claim as the Continuing State. If allowed it would create serious territorial problems for Scotland in future negotiations with westminster. Retaining sterling and the Crown, both of which have earned the FM ridicule from the usual suspects, are fundamental to Scotland leaving the union with the same status and territorial integrity when agreeing to the union.
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I’m not saying Scotland doesn’t exist as a nation or that Westminster can claim this. What I meant was there are many folk in England and Scotland who think differently and believe falsely that the UK is one country – not helped by the many politicians and journalists who don’t make this distinction either. I just don’t think shouting as loud as we can will get them to accept the facts, I think that just makes folk defensive but we do need to get this fact and others known more widely
Just think, say I have in the past stopped reading the Herald and the Scotsman and only read the National, but my union supporting neighbour has done the opposite. Neither of us are getting the chance to understand and challenge our opinions, or do anything to influence how we each view Scotland as it is now and how it could be. In some ways talking to people might seem harder than staging protests, marching or campaigning but it is something we could all try
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Good thought provoking article Alasdair.
I have wondered if “Scotland” had the right to determine our own future before the Scotland Act was introduced?
Unionist politicians previously stated that Scots only had to elect a majority of pro-independence MPs from Scotland to start negotiations.
If so, is there any way to challenge the Union using the Articles of the Treaty? It would require a private case being brought to the SC rather than an elected (under the Scotland Act) Scottish government.
Otherwise it then becomes incumbent on us (“The People”) to make Scotland less of an asset to our southron chums, and more of a burden. Disruption of Westminster, street agitation. Marches. Eggs and flour (the 20th century way), stop traffic in London, interrupting live TV programs would be a start.
Next……………………………………?
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Unfortunately, I have long suspected that it might have to come down to general strikes and various other actions to force the matter. Gandhi proved that it can be done.
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I really enjoyed this article. Thank you. A reasonably series of assumptions.
In 2018 I was at a Believe in Scotland ambassador’s trading course an we discussed this possibility. We all agreed disruptive action would be needed in England by us. Non violent action ad in blocking tube stations etc.
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At the end of the day
This matter will be settled not by any other than the citizens of Scotland
We and we alone are the sovereign power and none else are
Quite simply you cannot govern without consent
Many ways to demonstrate such
1.Strikes
2.Pull the Union flag down
Wherever it flies
3.Block peacefully all borders rail and road
4.Block access to all MOD bases
5.Refuse BBC licence
6.Blockade Pacific quay
7.Mass protests outside all courts and prisons
8.Civil actions raised against Westminster by all routes
9.Jam up whole legal system
10.Boycott all union flagged
Or UK produced goods
The list goes on and on
We never shall have our identity of human rights erased
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You could add – refuse to pay tax to UK exchequer.
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Big John
But in a very Clever and subtle manner
E.G.
Road licence fund, do not pay but set up a special reserve account
Which can be freed after indy, but also drawdown for emergency repair and ongoing maintenance
Where there is a will,A way shall always be found
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BWO background I am a pensioner and canvassed for Independence both in 2014 and at the last General Election but have not attended any meetings of ‘Pensioners for Independence’ since as I failed to see the point until the starting gun is fired. I say this as IF it transpires that the only route to Independence is as is suggested ‘civil disobedience’ then we are best place to act. So if like me you are in the age/retired category then I would urge you to make your presence known. We could make the difference.
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If people want Independence vote for it. The UN (EU) charter supports self governance and self determination, if people vote for it. Enmeshed in the Devolution solution.
Members have to honour it or break International Treaties and be sanctioned. Scotland has friends and allies worldwide who will support it. Democracy. The Declaration at Arbroath. One person, one vote. Established worldwide. 1928 Universal Suffrage. Some before, some later. Some still on the way to achieving it.
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