Unionists shouldn't be so confident about stopping indyref2

  • First published in : Visit Website
  • First published on: 12th Aug 2022

Wednesday saw the UK Government publish its response to the Lord Advocate’s Supreme Court bid to obtain clarity on whether the Scottish parliament can legislate for a second independence referendum. I have had a lot of queries from people who are confused by the legal process so I thought I would devote today’s column to explaining where we are. 

At the end of June, the Lord Advocate filed a reference with the Supreme Court. Here is the question she wants them to determine:  
“Does the provision of the proposed Scottish Independence Referendum Bill that provides that the question to be asked in a referendum would be “Should Scotland be an independent country?” relate to reserved matters? In particular, does it relate to: (i) the Union of the Kingdoms of Scotland and England (para.1(b) of Schedule 5); and/or (ii) the Parliament of the United Kingdom (para.1(c) of Schedule 5)?”

The references to paragraphs and schedules are to the Scotland Act 1998 which set up the current Scottish parliament. The argument in court will focus on whether the parliament has the power under the 1998 Act to pass the Independence Referendum Bill.

While our current parliament is a creature of that Act, if you see it, as Winnie Ewing did, as the reconvention of the parliament adjourned on 25th March 1707, following the Treaty of Union, and the democratically elected parliament of the sovereign people of Scotland, then I am sure that, like me, you feel its powers should be considerably wider. The Lord Advocate is not making that point, but the SNP have sought permission to intervene in the case as a third party in order to make submissions on the right to self-determination. If permitted to intervene, our legal team will argue that self-determination is a central pillar of modern international law and, therefore, should inform the interpretation of the 1998 Act when considering the question posed by the Lord Advocate. You can read the SNP’s written argument here. The position on the right to self-determination in international law is set out at paragraphs 32-49.  Readers might find paragraph 37 particularly interesting as it sets out what the UK had to say about self-determination when it made a written statement to the International Court of Justice about Kosovo’s unilateral declaration of independence. The UK accepted that international law does not “... prohibit secession or separation, or guarantee the unity of predecessor states against internal movements leading to separation or independence with the support of the people’s concerned.” This is a rather more generous position than they are currently taking towards the democratic mandate in Scotland for a second independence referendum.

The arguments which the SNP seek to make need to be heard in order to put matters in their proper context. They also cover the separate and discrete constitutional tradition in Scotland and the fact that the principle of the unlimited sovereignty of Parliament is a distinctively English principle which has no counterpart in Scottish Constitutional law.  In Scotland it is the people who are sovereign. But it is perhaps on the issue of the right to self-determination that it is most important that they are heard.

Prior to devolution Scotland’s right to self-determination was well recognised. Indeed, the view was widely held, including by Mrs Thatcher, that all that was needed to commence negotiations for Scottish independence was the election of a majority of SNP MPs at Westminster.

There is precedent in the history of the unwritten British constitution for a union such as that between Scotland and England to be dissolved. The Acts of the Parliament of Great Britain and Ireland effecting their union in 1800 were brought to an end on 6 December 1920 following a negotiated agreement. What triggered the process was the election of a majority of Sinn Fein MPs to the British parliament in December 1918. And yes, there was a war of independence in between and no, I am obviously not advocating that we should follow suit. My point is that there is legal precedent for the process of bringing the union to an end by negotiated agreement after a general election victory for the nationalist cause.

It would be a strange thing indeed if the Scotland Act 1998, an Act designed to enhance democracy in Scotland, should have reduced or hobbled in any way Scotland’s right to self-determination. It would also be a curious thing if a very recent statute establishing the modern phenomenon of Scottish devolution was to be the last word on Scotland's right to self-determination, negating any other legal or constitutional arguments that might have been made.

The Supreme Court has yet to rule on whether the SNP will be permitted to intervene and make these arguments but expect a decision soon as the case is set down to be heard on 11 and 12 October.

It will be fascinating to see what the UK Government’s legal team have to say in response to the SNP’s arguments on self-determination, particularly given their position on the Kosovan case. You won't be surprised to hear that their written case lodged this week is silent on the issue. In fact, the UK Government wants the Supreme Court to throw the Lord Advocate’s reference out, without even hearing the substantive arguments.  They say that the case brought by the Lord Advocate does not fall within the jurisdiction of the court, because the Scottish parliament has not as yet passed the bill and that even if it did, the court should use its inherent discretion to decline to hear the case.

On the substance of the Lord Advocate’s question, their position is that a referendum on Scottish independence “plainly” relates to the reserved matters of the Union and of the parliament of the UK. The UK Government’s submission is grist to the mill of those unionists and commentators who have rubbished the argument that the Scottish parliament has the power to legislate for a second independence referendum.  They are wrong to do so.

The argument that the Scotland Act can be construed in such a way as to allow for Holyrood to hold an independence referendum is well established. In 2012, before the Edinburgh Agreement was reached, 7 legal academics including 3 distinguished professors published a paper challenging the view that only Westminster had the authority to call an independence referendum.

So, it is simply wrong to say, as I heard one unionist commentator argue recently, that ‘no lawyer of standing” supports the case. I support the case and so does Aidan O’Neill QC, counsel in the recent Keatings case. Given that together we lead the teams that won two of the most important constitutional law cases in the UK, ever (the prorogation case and the Article 50 revocation case), I would hope we might be seen as “lawyers of standing”.

I have long argued that we should test the argument in court as part of a wider political strategy, so I am pleased that the idea of court action has now been embraced. However, my plan was that the case would be heard after the Scottish parliament had passed the bill. This might have avoided any arguments about prematurity, and I think it would have strengthened the case by demonstrating that the democratically elected parliament was foursquare behind the bill, thus making it more difficult for the Supreme Court to overturn.

However, the Lord Advocate's advice has led to testing the case in advance and the FM has won plaudits from many on what could prove to be a canny strategy. 

Joanna Cherry KC MP


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