Can't cite, sorry. But interesting all the same ...
A 2020 Scottish independence referendum – what if Westminster says No?
Regardless of the General Election result, Nicola Sturgeon will seek a Section 30 order before the end of the year. A section 30 order temporarily transfers the power over the constitution,
meaning that the result of a new referendum on Scottish independence would have legal status. Therefore, it would not be a Catalan style referendum, as it would be recognised by the
international community as a valid result – that is important.
Calling for a 2020 referendum puts the SNP in a better position to encourage independence supporting voters to vote for them, and steal independence supporting Labour voters. A clever move,
which on the one hand will push all hard-line supporters of the Union into the arms of the Conservatives, thus saving a few of their MPs in SNP/Tory marginal seats. On the other hand,
it will leave the unionist cause to defend an extreme unionist position of saying No to any independence referendum, despite the nation itself moving in favour of one.
The SNP message is nuanced, however. It is not based on a full-on clarion call of “let’s be independent”, but rather, on Scotland’s “right to choose”, which is more widely accepted and harder to argue against.
Can Nicola Sturgeon deliver a 2020 independence referendum as she is claiming? Well, the answer to that is maybe. It all depends on the result of the General Election and a potential legal challenge
should the new PM say no.
So who will be the next PM?
Currently, the polls suggest that the most likely GE result is a Conservative majority. The second most likely outcome would be a Conservative minority government, as it is now, but closer to a majority.
The third most likely outcome is a completely hung parliament. Beyond that, results, such as a Labour majority win, start to look unlikely without a massive tactical voting switch. Labour forming a Government
with the balance of power sitting with the SNP is more likely than a Labour win. However, there is still probably less than a 1 in 4 chance of this happening. So, we are most likely looking at Boris Johnson
becoming PM and the Conservatives saying no to indyref 2 – if so what are the Scottish First Minister’s options?
There are two big clues to this. Firstly, in the SNP manifesto which states: “In order to put a referendum beyond legal challenge, we will seek a transfer of power, such as a section 30 order under The Scotland Act”,
the keywords are “such as”. If the UK Government says no to a section 30, the SNP will seek alternative legal routes. Secondly, the FM stated last week that “the matter has “never been tested in court.”
We have already reached a point in UK politics where the UK Supreme Court had to overrule the prorogation of the Commons following the SNP’s Joanna Cherry’s (and others) legal action.
Therefore, a legal challenge to force the legal status of indyref2 is not unreasonable and would fit with the “such as a section 30 order” statement.
A legal challenge would rest on the status of Scotland as a nation, which was a member of a union of nations and therefore, has the right to decide its own future.
To state that Scotland does not have the right to self-determination, the UK Government would have to argue that Scotland is not a nation and that Scotland ceased to exist with the Act of Union.
This would be unacceptable to most Scots.
If the UK Government goes to court and loses, then Holyrood can hold a legal referendum that would be accepted by the international community. Even if Westminster refused to accept the result,
Holyrood would be able to action the result and become legally independent. On the other hand, if the UK Government were to win such a court case, it would also mean by default that England
ceased to exist with the Act of Union. If the question is “what would drive support for Scottish independence to 80% in both Scotland and England?”, then there is your answer.
The legal challenge, however, would not start in the UK Supreme Court, but Scotland’s highest court – The Court of Session. This is the court that ruled that the prorogation of Parliament was unlawful,
and by doing so, forced the UK Supreme Court to reopen parliament. That was a test case because the UK Supreme Court doesn’t outrank the Court of Session on Scots law.
Therefore, if an act is illegal under Scottish law, even if it were legal under English law, that act can’t apply to Scotland as appeals are held under Scots law.
If the Court of Session and the Supreme Court disagree it gets tricky. There is only one court that could possibly have any authority over such a constitutional issue, and that is the International Court
of Justice in the Hague. As part of the UN, it would first have to decide if Scotland is a member of the UN by virtue of being a nation-state – a member of a multi-nation state that was a UN member.
If it agrees Scotland is a nation, then it could hear the dispute. However, having agreed Scotland is a nation-state, it would then have to overrule the UK Supreme Court,
as Article 1 of the UN charter states that “every peoples have a right to self-determination”.
Now we would get The Claim of Right
The Claim of Right, an Act first passed by the old Parliament of Scotland in 1689 but updated and accepted by both Holyrood and Westminster in recent years. The
Claim of Right is a key document defining of UK and Scottish constitutional law. In layman’s terms, it states that Scotland remains a nation and the Scottish people retain their right to choose the best form
of government for themselves. On July 4th 2018, the SNP Westminster leader, Ian Blackford MP, used an opposition day motion to put the Claim of Right to a vote in Westminster.
Despite a colourful debate with complaints and interruptions, it was passed by the UK Government, without a division (unanimously). That Westminster vote was non-binding,
in that its status did not set a UK legally binding precedent.
So, it has to be tested in the Scottish Court of Session, which I would expect to confirm the claim, and then appealed to the UK Supreme Court, putting it in an impossible situation.
The UK Supreme Court does not have the power to remove Scotland’s nation status, only to rule on whether Scotland has already lost its nation status.
The UK Government would not be willing to make that case as it means England also ceases to exist as a nation.
So, essentially we see why Theresa May didn’t say she would say no to a Scottish independence referendum. She knew she couldn’t really, and cleverly said: “Now is not the time”.
They cannot defend saying no, but they can defend saying not yet. Boris Johnston just isn’t as clever as Theresa May and that’s a scary thought.
Ireland can hold a referendum every seven years.
However, there is a precedent here that limits the ability to eternally say not yet. The Scotland Act (that set up the Scottish parliament), does not mention referendums. It does state, however,
that any issue not clearly reserved is, by default, devolved to Holyrood. Therefore, the Scottish Government can hold a referendum, it is just its legal status that is up for grabs. In Ireland and Wales however,
the authority of their parliaments to hold referenda was specifically restricted, indicating the lack of any claim of right in existence for those nations.
However, the Good Friday agreement sets a precedent. It allows for Irish re-unification referenda once every seven years, if all the people of Ireland support one being held. Seven years is the precedent.
This is possibly why Labour has realised it is unwise to say no to a second referendum and are pressing the case that an SNP majority in the Scottish Elections in 2021 (seven years after 2014) would trigger a section 30 order.
Labour is aware that the Scottish Parliament’s voting system is designed to stop the SNP gaining a majority, a goal it has only once failed to achieve in the face of 3 SNP victories. Labour also hope that by winning GE 2019,
their policies in action will diminish support for Scottish independence. That would have to be tested, but the most likely outcome (barring disaster for the Tories or tactical voting on a previously unseen scale)
is that the Conservatives will form the next Government, say no to a referendum, and the Scottish and UK Governments will be heading to court.
Could common sense and democracy win?
Before all this legal chaos though maybe someone will see sense and let democracy win? If the Scottish Government has to go to court to prove the legality of a referendum then the UK Government
will also lose in the court of public opinion. Maybe Boris Johnson will start to fancy being the man who leads England to Independence? So 2020 is a definite maybe but there will be another
Scottish independence referendum in the term of this next parliament one way or another.