Here's the facts on the Scottish independence case at the UK Supreme Court

  • First published in : Visit Website
  • First published on: 14th Oct 2022

Many column inches have been expended this week on the Lord Advocate’s Supreme Court reference. This newspaper had several reporters covering the proceedings, so readers have been favoured with detailed accounts of what was said in court. Due to my parliamentary duties, I was only able to watch the first morning. However, I have followed reports closely and caught up with a bit of the livestream.

In a nutshell what seems to have happened is that the UK Government lawyer spent most of his time trying to persuade the court not to address the substance of the issue, while the Lord Advocate addressed both the arguments for and against the Scottish parliament being allowed to legislate for an advisory independence referendum. Sadly, we heard little or nothing about the right to self-determination and the other important issues addressed in the written arguments supporting the SNP’s third-party intervention because the party’s lawyers were not allowed to make an oral submission and had to sit in the cheap seats with the rest of us.

Light relief was provided by Alex Cole-Hamilton who popped by, didn’t understand what was going on and stomped off in a childish tantrum saying it was “boring”. Thus, he afforded us an insight into why the party he now leads, once a proud supporter of home rule, has been reduced to a sad rump in the Scottish parliament.

There's been some excellent analysis of the case in this newspaper and others by Andrew Tickell, the legal expert and broadcaster, so I won't repeat what he has said. Rather today I want to take the opportunity to remind readers of the basic political and constitutional facts surrounding this case.

If the UK Government had any respect at all for Scottish democracy, this court hearing would not have been necessary. At the 2021 Scottish election voters elected a government with a manifesto commitment to hold a second independence referendum. The last time that happened, after the 2011 Scottish election, the U.K. Government respected that mandate and, after a period of negotiation, Alex Salmond and David Cameron entered into an agreement to put beyond doubt the legality of the independence referendum the Scottish parliament went on to hold. They also agreed that both governments would respect the result.

So, there is an established constitutional precedent of the right thing to do in these circumstances. The unwritten British constitution proceeds by way of custom and practice. If the UK Government respected their own constitution and democracy, they would replicate what happened a decade ago, come to the negotiating table and enter into a second Edinburgh Agreement. That they will not do that this time round is unconstitutional as well as a denial of democracy.

Just think how English voters would have felt if, after they elected a Tory Government in 2015 with a manifesto commitment to hold a referendum on leaving the European Union, the EU Commission had tried to block that referendum. You don’t need much imagination to envisage the outrage that would have prompted.

It looks like we may have to wait some months for the result of the court hearing. The fact that the court will take such a significant amount of time to look at the issue carefully shows, like the two days of argument in court, that those who assumed it was a foregone conclusion that the Lord Advocate would lose the case were wrong. Clearly the Justices engaged with the substance of the argument. Dr Andrew Tickell has reminded us that the legal controversy underlying this case is real and that academic opinion on the likely outcome is divided. There has existed for some years a respectable body of legal opinion, of which I am part, that the Scottish parliament does have the power to hold an advisory referendum.

Aileen McHarg, Professor of Public Law and Human Rights at Durham Law School, was right to say that that the outcome of constitutional cases can be unpredictable. The chattering classes thought both the article 50 revocation case and the case about the unlawful prorogation of parliament, by Boris Johnson, were doomed to fail; but I and my fellow litigants proved them wrong when we won both cases.

I still hope that the Supreme Court will consider the wider constitutional context including Scotland’s right to self-determination, the constitutional importance of the SNP’s manifesto pledges, and the principle of democracy which should play a key role in the UK’s constitution. I think it’s a real pity that these issues were not addressed in any detail in the oral submissions.

Professor Ciaran Martin, of the University of Oxford’s Blatnavik School of Government was previously a UK Government civil servant and one of the architects of the Edinburgh agreement. He has written extensively about the current situation. He has knocked on the head any idea that the “once in a generation” phrase, parroted by Conservatives in their attempt to block a second referendum, is anything other than a slogan. It has no constitutional relevance he says. I agree and I would also point out that the idea that voters in Scotland should have to wait indefinitely for another poll does not sit easy with the terms of the Northern Ireland Act 1998 which envisaged that a cross border poll on reunification of Ireland may be repeated after a period of 7 years. Why should Scottish democracy be curtailed in a way that Northern Irish democracy is not?

Professor Martin has said that if there were to be a conflict between the law and the clear political mandate of the Scottish Government, that would be a “…very difficult situation for the UK as a whole.” It would go “…to the heart of the question of the character of the union between Scotland and England. Is it a union of consent or a union upheld by the force of law?”

We don’t have an answer to that question as yet, but I think is fair to say most people had assumed that the union of Scotland and England was one of consent. There is no constitutional impediment to Scotland leaving the UK. If it turns out to be the Hotel California where you can check out, but you can never leave, that would be a highly undemocratic situation and one which would be politically and constitutionally unsustainable. 

Joanna Cherry KC MP

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