12th October 2022
Yesterday and today there has been a fascinating case argued before the Supreme Court.
The case is about whether the Scottish parliament can legislate not for independence but for a non-binding referendum on the question of independence.
There is no dispute that actual independence is a matter legally reserved for the parliament in Westminster.
Nonetheless the Scottish government has come up with this clever wheeze of saying that even though the union is a reserved matter, there should be nothing to stop it holding an advisory referendum on the issue.
But the really clever wheeze is how they have framed this case so that it is being heard at the Supreme Court even without a bill being presented to the Scottish parliament let alone passed by the Scottish government.
The Scottish government has done this by means of a “reference” – which allows the devolved governments to refer questions directly to the Supreme Court.
This is unusual both legally and constitutionally, as the Supreme Court is normally an appellate court and not a court of first instance.
And so this is a rare occasion where the Supreme Court is acting, in effect, as a pure constitutional court, rather than just happening to hear an appeal of a constitutionally interesting case.
The Supreme Court website sets out the following:
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The reference is framed as being about whether it is open to the Lord Advocate to advise that a bill with such a provision can be brought forward – as set out in the Scottish government’s published case:
This is an ingenious approach.
And nobody knows if it will succeed – not least because there is no precedent to guide us.
The Scottish government needs to jump two hurdles.
The first is the jurisdictional hurdle of whether this is a question that can even be answered by the Supreme Court at this stage.
The second is the substantial hurdle of whether such an advisory referendum is within the competence of the Scottish parliament.
On the balance of probability, any party to litigation needing to jump two such high hurdles is unlikely to succeed.
But nonetheless this is certainly a case to watch with interest – and you should, if possible, watch the footage of the hearings linked to at the Supreme Court page.
My own personal view from having watched some of the hearing is that the Lord Advocate – on behalf of the Scottish government – put the case as well as it could be.
In particular, she explained the legal route that the Supreme Court could take should it want to do so.
In response, the United Kingdom government was less impressive, though this may just be my personal bias.
But little is likely to depend on the oral advocacy – the Supreme Court now has to digest the extensive written documents which have been placed before it by the parties, and that may take months.
So we may have some time to wait.
Whatever the decision, it will be interesting to read the court’s reasoning in this exceptional and potentially consequential case.
For we all know about “advisory” referendums, don’t we..?
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It would be ironic, in the extreme, if “Call me Dave’s” foolish gambit caused the UK to “accidentally” leave the EU and then led (directly) to the break-up of the UK.
I’m British and happy to include the Scots, the Irish and (even) my fellow Englishmen into the mix. However, with the disgraceful way that HMG has behaved (well, to everyone!) towards the devolved parliaments, I think the fair outcome would be to become a federation – assuming that a majority (carefully constructed!) wanted it, of course.
One fascinating aspect of this case is that there is no legal bar to Scottish Ministers introducing their Bill in the Scottish Parliament. The only reason the Lord Advocate is in court is because she does not have confidence as to the legislative competence of the draft Bill. The only reason she needs confidence is that she needs to sign it off before Ministers can introduce it. But the requirement to sign off Bills introduced by Scottish Ministers only exists because the Ministerial Code says it does in Section 3.4
“A Bill must also be accompanied by a statement, which will have been cleared with the Law Officers, that the Bill is within the legislative competence of the Scottish Parliament.
The Ministerial Code is a non-statutory document, the author of which is the First Minister. So Ministers cannot introduce this Bill because of a non-statutory rule created by the First Minister. Change the rule and Ministers can introduce the Bill.
Which begs the question as to whether the reference will be accepted given that following the Ministerial Code is arguably not a function of the LA or the Executive under the Scotland Act.
It seems odd that ordinary people in England can simply call a referendum quite easily, while in Scotland the government itself cannot do it.
I’d be interested in your thoughts on Craig Murray’s contribution. His main beef is that he believes Scotland has a unilateral right to self-determination and should not be constrained by what the UK government or courts rule.
https://www.craigmurray.org.uk/archives/2022/10/a-legal-farce/
Repeating here the essence of what I said there, Craig overstates his case. If Scotland has a right to self-determination in international law, it is not a positive right, only a double negative one: should it succeed in establishing its independence factually by political acts, the fact that this occurred contrary to the UK’s constitutional arrangements would not affect recognition of Scotland by other States (though if the UK hadn’t thoroughly discredited itself in other ways, it might be able to persuade many to withhold recognition anyway, for what that would be worth – in practice, not much; on the other hand, as a permanent member of the UN Security Council it could still unilaterally block a Scottish application for UN membership if it is prepared to pay the political price).
The argument made by the UK for the Kosovo advisory opinion that Craig cites remains valid as a matter of international law, but because the UK is dualist State, it would not trump the UK’s own constitutional law in a UK court. So the only benefit of putting it to the Supreme Court, as he says the Lord Advocate should have done, is performative: the argument would be bound to fail, but there may be the expectation of political gain from the Supreme Court being seen to “deny” self-determination to Scotland, when in fact it would merely be saying it is irrelevant in this context. (It might still come in handy in future in the courts of third countries when the status of a Scotland that unilaterally declares itself independent is at issue, e.g. on whether its representatives or property outside Scotland are entitled to benefit from customary international law State immunity, which might depend on whether Scotland, assuming it had not been recognised by the forum State, had nonetheless objectively achieved Statehood.)
In sum, Craig’s line of reasoning works for a Scotland that has already taken the independence plunge against the UK’s wishes, but we are not there yet, and it doesn’t really work in advance of that.
No reference to UDI ?
What about non judicial avenues ?
A series of civic meetings up and down Scotland to discuss issues such as borders, passports, a possible Monarch , Republicanism and written constitutions could all help move the debate forwards or even backwards .
Finally (with apologies to James Joyce) for Scotland to become a new Scotland perhaps it needs to become more European !
Whatever one’s viewpoint “Exiles” and “Dubliners” really get to the heart of the issues with nationalism on a human if not legalistic scale.
“..For we all know about “advisory” referendums, don’t we..?..”
Careful Will Robinson, danger, danger.
It’s not apparent that we’re comparing apples with apples when it comes to the referendum on leaving/remaining in the EU and the devolved government of Scotland being able to call a pukka ( legitimate) referendum which you acknowledge in your introduction.
Setting false expectations to an electorate always has downsides & is unedyfying.
Which expectation was false, and how do you presume to know what the electorate expected?
In order to presume that the electorate expected the EU vote to be binding, you need to hold that either the electorate is ignorant of its own constitutional mechanisms, or that the prime minister has the power to override parliament and command the people in the manner of their voting.
Look again at Cameron’s Chatham House speech: he almost literally says that he knows we were planning to treat the vote as advisory and he forbids it.
So, in the case of the EU referendum, it was in the statute that the referendum was advisory – we all knew ( most informed people did) that this was the case. Politically of course it was binding on steroids.
Even DAG writes:
“There is no dispute that actual independence is a matter legally reserved for the parliament in Westminster….”
Irrespective of the clever wheeze, It’s sad but the Scottish Parliament just doesn’t have the power to offer a legitimate referendum.
Maybe in a few years, or decade, the UK Parliament will enact a law to allow the Scottish Parliament to offer a legitimate referendum. Offering a faux referendum in the interim is in my view offensive.
“Politically of course it was binding on steroids. ”
Was it? In countries with an “informed” electorate advisory referenda are advisory.
“It’s sad but the Scottish Parliament just doesn’t have the power
to offer a legitimate referendum.”
You think it is sad? Maybe I read a bit too much between your lines, but I feel you can hardly conceal your schadenfreude (pardon my French, Maurice ;) towards the Scots and their petty initiatives.
Dem da rules – it ain’t pretty or petty.
An interesting question was posed on Twitter the other day but unfortunately no one with the requisite expertise has replied. Perhaps, DAG you could comment on it? It seems Scotland needs a section 30 order to be able to proceed with a referendum to leave the Union. Let’s fantasise a moment and suppose that one day England finally realised that it and the Union are not one and the same, and therefore (haughtily?) decided it wanted to leave the Union, would it too need some sort of section 30-like order to be able to hold their own referendum? If not, why not, and why then should Scotland? (I declare an interest: I’m from Scotland).
It would not need one. Because there isn’t much English devolution, the lack of an England Act with its own section 30 and the absence of an English parliament means that England’s only route to independence is to form a governing majority in the House of Commons, which it can usually easily do. Only from 2017-2019 has one party ever won a majority of England without getting an UK-wide majority in the process.
The same route is technically open to Scotland and the other parts of the UK. It’s just that in addition to 100% of the seats in those regions, they somehow have to gain the additional 270-310 seats they need – and the only place they’re available is England.
It’s a tidy wee scheme alright.
Of course it will succeed, even I can predict that. We should all know by now that the SC is a political court.
Give the SNP as much support as possible to achieve their aim. Probably do something similar for Sinn Fein. The idea being breakup the UK and have each of the constituent parts rejoin the EU. Just leaving England with, of course, some trillion pound bill for the empire.
Sorry, I know I sound cynical, but I have no faith in the SC on constitutional matters.
I thought the most interesting point raised by the Lord Advocate was when she used the analogy of time zones and the clocks.
If Westminster legislated to keep the UK on BST all year round, would a referendum on the matter in Scotland be outwith the legislative competence of the Scottish Parliament, because clocks and time are a reserved matter?
It seems to me it would take a peculiarly narrow reading of the Act to come to that conclusion.
It seems that the fact that it is contested by the UK government is both tactically wrong and should give the court the impression that it is not merely a reference on a point of constitutional law. Surely references are not contested using the adversarial hearing process?
The contest by the UK Govt. elevates it to a dispute, I assume, is a matter for the SC’s jurisdiction.