With the normal caveat that I’m not a legal expert, it seems to me to be utter nonsense to claim that the Supreme Court ruling a few days ago scuppers hopes that a legal referendum can be held without a Section 30 order. The issues involved are very different. The crux of the ruling was that the Scottish Parliament cannot constrain the UK Parliament’s unlimited powers to legislate for Scotland, even on devolved matters. But as far as a referendum is concerned, the argument of the legal experts who believe Holyrood already has the powers to hold a vote is that the UK Parliament’s right to legislate would not be constrained in any way, because they would not be bound by the outcome of a purely consultative referendum. (Of course they’d be bound in a moral rather than a legal sense, which is why they’re so terrified of a consultative referendum).
A slightly more convincing argument is that, although the ruling is not directly relevant to the legality of a referendum, it nevertheless reveals the Supreme Court to be a deeply conservative and instinctively British Nationalist body which is highly likely to dream up a legal argument for striking down a referendum, even if we have no idea yet what that argument will be. Well, that may or may not be the case, but it strikes me that the amateur psychoanalysing of judges is not the most sensible or reliable way of forecasting the outcome of complex legal cases. We need to concentrate on the things we can control, and stop worrying about the things we can’t. What we can control (and by “we” I mean the pro-independence side under the leadership of the Scottish Government) is legislating for a referendum – something that frankly we should already be doing or already have done. What we cannot control is whether that legislation is then challenged by the UK Government or by a private citizen used by the UK Government as a proxy, or whether any such challenge is successful. In a sense that doesn’t really matter, because this is a process that has to be gone through. If a legal challenge fails, the problem is solved – we won’t need a Section 30 order and a referendum will go ahead. But if the challenge is upheld, we’ll still be further forward because we’ll have demonstrated to the Scottish people that the referendum route is totally closed off and that the UK Government’s pigheaded intransigence has left us with only one reasonable option for pursuing a democratic mandate for independence – namely via a parliamentary election. That will be a moment of liberation, because it will break us out of the “No to Indyref2”, “now is not the time”, “once in a generation” paradigm. Parliamentary elections take place at least once every five years, and there’s not much the UK Government can do about that, short of a Nazi-style Enabling Act.
As ever, though, the real problem is that the ruling may encourage the Scottish Government’s ongoing passivity. Let’s be honest, pretty much everything encourages the Scottish Government’s ongoing passivity. “We might fail so it’s really important we don’t even try” has been the guiding principle since the catastrophic loss of nerve in 2017, and that shows no sign of changing. Anyone who seriously wants independence should be terrified by Nicola Sturgeon’s admission that she doesn’t know how the impasse will be broken, but that she thinks it somehow will be, one way or another, because “time is on her side”. Decoded, that means the SNP leadership’s solution is to do absolutely nothing with even more studied determination and wait for something to turn up. Spoiler alert: nothing will turn up, even if we wait decades, because the British constitution does not change and the British state’s vested interest in keeping Scotland prisoner does not change. If we want the weather to change, we have to change it ourselves.
And there’s another way in which a truly radical and daring pro-independence government might have reacted to the Supreme Court ruling. Aileen McHarg pointed out that there’s now a clear incentive for the Scottish Parliament to refuse to agree to Sewel motions giving the UK Parliament consent to legislate on a specified devolved matter, because the court has created a novel distinction between laws on devolved matters passed by each parliament – Holyrood can only control/influence the interpretation and implementation of legislation it has passed itself. But that also, I would suggest, means there’s an incentive for Holyrood to “re-legislate” on swathes of laws passed after previous Sewel motions, so that the new Holyrood laws replace the Westminster laws, thus rendering the ruling largely redundant. That would be roughly analogous to what the Parti Québécois administration used to do when it invoked the “notwithstanding clause” (allowing Canadian provincial legislatures to override court rulings of unconstitutionality) on every single piece of legislation it introduced, even when there was no particular reason to think that was actually necessary.
In other news over the past week, Alister Jack has revealed that Scotland will only be held as a prisoner against its will for another eighteen years. In the year 2039, dictatorship will be replaced by a “YouGov democracy”, ie. we can have the things we want as long as YouGov say we want them (supermajority requirements apply, naturally). So that’s exciting. Only six thousand, five hundred and seventy-four more sleeps to go.
* * *
Whatever the rights and wrongs of the Supreme Court ruling (and it’s interesting that many eminent experts believe the judges erred in law), it’s worth remembering that the Scottish people were firmly opposed to the UK Government taking the matter to court in the first place. Here is the result of a Scot Goes Pop / Panelbase poll conducted in April –
The Scottish Parliament recently passed legislation that incorporates the UN Convention on the Rights of the Child into Scots Law. The law seeks to protect children’s rights by forbidding public authorities from acting in a way that is incompatible with the UN Convention. However, the UK Government are challenging the law in the Supreme Court on the basis that it would interfere with the UK Parliament’s right to make laws for Scotland. Although the UK Government are allowed to challenge laws that they think may exceed the Scottish Parliament’s powers, they are under no obligation to do so. Do you think the UK Government are right or wrong to challenge the new Scottish law on children’s rights?
