In the name of the Wee Man, surely not another challenge to the legality of the independence referendum? In this morning's Sunday Times, the paper reports that the Scottish Parliament's decision to limit the referendum franchise to those residing in Scotland is illegal under European Union law, and faces "good prospects" of being waylaid in our courts and declared unlawful.
The story has since been picked up by the Daily Mail and others who characteristically carelessly misrepresent the case as a question of human rights - rather than EU - law. James Wallace - the tiresome and self-promoting face of expatriate grief about being excluded from the referendum franchise - strikes again. For those who breathed a sigh of relief after the Edinburgh Agreement was signed, hoping we were beyond such vexatious legal contrivances, this headline and the threat is unlikely to be welcome.
The legal brain behind these reports is Aidan O'Neill QC. O'Neill is a talented and creative public lawyer - but his recent track record in the UK courts also casts him as the patron saint of lost causes. For those who have followed his recent cases, one can only be impressed by O'Neill capacity to scrape together a defensible argument from the scrappiest of material. He has made extensive - and entirely unsuccessful - use of EU law arguments in his recent outings in our courts, seeking to challenge the bans on prisoner votes at the UK and Scottish level. Even if Wallace and his aggrieved comrades scraped together the booty necessary to pursue their grievances in court, this is kite flying of the first order and if the UK Supreme Court was even willing to entertain the argument, I'd fully expect them to blast it out of the sky, as it has blasted each and every one of O'Neill's other playful attempts to extend the province of EU law to controversial questions of constitutional and public law.
In the 2013 UK Supreme Court case of Chester and McGeogh, O'Neill attempted to persuade the seven justices that his (imprisoned) client's right to vote in European and Scottish parliamentary elections was protected not just by the European Convention on Human Rights, but also European Union law. His efforts to do so, while plucky and imaginative, were resoundingly unsuccessful. O'Neill's EU law submissions were unanimously rejected by the court.
Not to be dissuaded, O'Neill re-deployed his expertise before Lord Glennie in the Outer House of the Court of Session in Moohan last December, contending that EU law prevented Holyrood from excluding another three prisoners from the referendum franchise. O'Neill argued that the referendum might deprive his three clients of their EU citizenship rights, and as a consequence, EU law was engaged and required their inclusion in September's plebiscite. But like the Supreme Court, Lord Glennie wasn't willing to play. It remains to be seen if his argument will prosper better in the Inner House on appeal, but I rather doubt it.
Today's Sunday Times report seems to rely on the same logic O'Neill appealed to in Moohan. If three prisoners had a right to challenge the legality of the referendum on the grounds that they might lose their EU citizenship rights if there is a Yes vote, the same case could be made about the many more Scottish-born folk, who no longer live in Scottish constituencies, who won't be able to vote on the 18th of September. So what did the court make of O'Neill's submissions under this heading the last time they were tested?
Short version: it didn't fly. EU law submissions having been vigorously spiked by Lord Mance and his colleagues in the UK Supreme Court, O'Neill was forced into something of a rearguard action, premised on the (controversial) question of Scotland's EU status after a Yes vote in the referendum. Lord Glennie concluded that:
"Even if I had found that EU law was engaged, on the basis that the independence referendum was a referendum directly affecting the question of EU membership and EU citizenship, I would not as a result necessarily have concluded that the franchise arrangements put in place by the Scottish Parliament in the Franchise Act contravened EU law."
Observing:
"... in legal terms there is no simple answer, either in law or in fact. They correctly describe the legal situation as sui generis, pointing out that the various EU Treaties do not specifically cover the point. But the difficulty goes further than that. As is apparent from the terms of their Opinion, and as is perhaps obvious to anyone with even a passing acquaintance with the arguments for and against, the decision on continued membership will not ultimately be decided solely as a legal question but will, to a greater or lesser extent, involve questions of hard politics.The court is not in a position to know fully what political considerations will be brought to bear on the issue, and with what leverage. Accordingly, to ask the court to decide the question whether upon achieving independence Scotland would cease for a time to be a member of the EU, with consequences for its nationals in terms of their citizenship of the EU, would be to ask the court to predict the outcome of robust and complex negotiations. That is a question largely of fact. It is not a task which the court is equipped."
If I was looking for a skilled advocate to help make an improbable public law case, I'd cheerfully instruct Mr O'Neill, confident he could cobble together something imaginative and take to his pins and make the case to the court with customary vigour and vim. You look to an advocate to put your case, however hopeless. But politically, this is a dubious, late wrecking enterprise with which I have no sympathy whatever. Questions of the franchise are essentially political, yet we heard sod all from Wallace and his soured comrades when Holyrood came to consider the referendum franchise last year, arguing the case for a broader electoral role, accommodating interested voters south of the border, or elsewhere in these islands. They declined to make that case or campaign for it, winning allies and advancing their argument politically.
Having neglected that opportunity to contribute to our political processes, they now propose to go to law to right a perceived injustice they more or less mutely acceded to using a wildly speculative construction of European Union law. The appropriate place for these debates is the open air of the parliamentary chamber, not the narrow halls of our court houses. The constitutional debate is fraught enough without the belated sallies of vexatious litigants.
