Best of three. What of a fresh Scottish independence referendum?

Best of three. What of a fresh Scottish independence referendum?

As Sting once sang, you can’t control an independent heart.  Boris Johnson, however, seems set to try.  In the face of opinion polls showing that the SNP are heading for an overall majority at Holyrood with a mandate for a fresh referendum on Scottish independence, he is giving every impression of a man who intends not to agree to one being held.  

Scotland is not yet a colony of Westminster.  If, however, the UK government tries to block the clearly-expressed wish of the Scottish electorate to have a new opportunity to choose their future, the relationship becomes colonial.  If you don’t accept this as a mandate, what will you accept?  A violent uprising?  

You may not like the idea of Scotland becoming independent: as someone who self-identifies as British, I don’t.  That’s hardly a good reason to be obstructive.  And indeed, all you do by being obstructive is to make it much more likely that Scotland will eventually become independent and to ensure that will be much more disruptive.  

However, the Prime Minister looks set on a short-sighted and immoral course of action, as so often, so the SNP needs to be ready to respond.  What could they do?  What should they do?  

The SNP is working on an 11 point roadmap.  Its key passages are as follows:

“The SNP Scottish Government continues to maintain that a referendum must be beyond legal challenge to ensure legitimacy and acceptance at home and abroad… If the SNP takes office the Scottish Government will again request a Section 30 order from the UK Government believing and publicly contending that in such circumstances there could be no moral or democratic justification for denying that request… the SNP’s proposition, for which we will be seeking the express authority of the Scottish people, will be clear and unambiguous – if there is a parliamentary majority so to do, we will introduce and pass a Bill so that the necessary arrangements for the referendum can be made and implemented thereafter once the pandemic is over…

The choice of the U.K. government will be clear; to either (1) agree that the Scottish Parliament already has the power to legislate for a referendum or (2) in line with precedent, agree the section 30 order to put that question beyond any doubt; or (3) take legal action to dispute the legal basis of the referendum and seek to block the will of the Scottish people in the courts. Such a legal challenge would be vigorously opposed by an SNP Scottish Government.“

Stirring words.  Will it work?  Let’s do something that no one who talks about the powers of the Scottish government ever does and actually look at the Scotland Act 1998.

The first thing to get straight is this stuff about “reserved powers”. The assumption among many is that if something is a reserved power, Westminster gets to deal with it and Holyrood doesn’t.  We need to be a bit more precise.

The concept of “reserved powers” relates to the Scottish Parliament, not the Scottish government.  Section 29 provides as follows:

(1) An Act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Parliament.

(2) A provision is outside that competence so far as any of the following paragraphs apply—

(b) it relates to reserved matters”.

So, can the Scottish Parliament legislate for a referendum on independence?  The reserved matters are listed at Schedule 5 and include:

“(a)the Crown, including succession to the Crown and a regency,

(b)the Union of the Kingdoms of Scotland and England,

(c)the Parliament of the United Kingdom”

I’m struggling to see how a referendum on independence doesn’t relate to (the test in s29(1)(b)) these three things.  As a matter of everyday language, it does.  You could argue and no doubt the SNP would argue that a referendum on independence is separate from the idea of independence itself.  Personally, I don’t fancy that argument at all.

Let’s assume for now I’m right.  What does that mean?  Section 29(1)’s words are clear: such an Act of the Scottish Parliament is not law.

But what does that mean? It doesn’t say that the passing the Act was illegal.  It doesn’t say that it is necessarily without effect.  It just says that it isn’t law.  It presumably acts as a non-binding instruction to the executive to hold a referendum if it so wishes.  In the envisaged circumstances, it will so wish.  If the Scottish government acts in accordance with a non-binding instruction of the Scottish Parliament and does not break any other laws along the way, it is not obvious to see how its actions can properly be challenged.

Which leads me onto the next question: what laws do you need to have in place to set up a referendum?  There is a lot of electoral law in place, but that’s already there and will automatically cover any vote that comes within its scope. Much of the rest is declaratory rather than breaking new ground.  Most of the machinery of holding a referendum is administrative.  On this occasion, even the question to be asked is oven-ready.

At this point I imagine you are shuffling in the chair and assuming Meeks has gone mad (it is kind of you to assume that I have a journey to make there).  But you may be astonished to learn that such a referendum would not be breaking new ground.  And the precedent is very recent.

In 2016, Malcolm Turnbull was elected in Australia on a promise of holding a referendum on same sex marriage.  The legislation was voted down in the Senate, whereupon his government made the referendum a postal ballot.  The validity of this was challenged in the courts.  The Australian government won.

Australian case law is of persuasive authority in the UK.  And the reasoning in this case (though turgid) persuades me.  I expect it would be followed.  In practice, the Scottish government has been spending public money relating to its pursuit of independence for some time without challenge – see, for example, this report.  If anyone wants to argue that such expenditure is beyond their powers, they face an uphill struggle.

Now, such a referendum would be advisory only.  But so was the referendum in 2014.  For that matter, so was the Brexit referendum in 2016.

So the SNP’s plan looks likely to me to work.  If the British government wants to challenge the SNP’s plans, it will do so with a substantial chance of ending up with the SNP having their referendum validated by the courts, and having alienated the Scottish public in the process.  If it doesn’t challenge the SNP’s plans, it will look timid and powerless.  So perhaps the safest approach for the British government would be to agree to a referendum after all.  At least it then could negotiate over timing and set down markers for how long a “generation” will last this time.  If there is to be a next time.

Alastair Meeks

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