19 June 2011

Time the SNP got serious about the independence referendum...

I believe I've mentioned the work of Susan Silbey and Patricia Ewick once or twice before. The Common Place of Law: Stories from Everyday Life was published in 1998. Based on empirical research conducted in the American State of New Jersey, their research was concerned with "social constructions of legality". Key questions include "How do people experience and interpret law in the context of their daily lives? How do commonplace transactions and relationships come to assume or not assume a legal character? And in what ways is legality constructed by these popular understandings, interpretations and enactments of law"? [p.33]. As these research questions imply, Silbey and Ewick were particularly interested in "popular" conceptions of law, rather than isolating understandings of legality to classical "legal" actors, such as lawyers, judges - the police. From their studies, they generated three legal consciousness narratives. Some of the terms employed are highly problematic and much contested in the associated literature - the idea of "legal consciousness" in particular is controversial - I don't propose to descend into these academic imbroglios in any detail.

Sufficeth to say, Ewick and Silbey discerned a range of attitudes about law from their interviewees, from the idea of law as terrain of conflict, working with the law and manipulating its rules and strictures to realise ends and desires - to individuals standing before the law, experienced and conceived as a timeless, neutral, objective body of determinate standards, requiring only their submission. I'm sure from your own experience, you will be able to recall examples of conversations, which turn to legal subjects - and you find yourself or your companion earnestly saying "that isn't legal". I can still vividly recall overhearing one such earnest discussion in a pub, after Iraq had been invaded. Two old fellows, neither of whom, best I could discern from their talk, had any legal training at all, entertained several minutes of conversation, concluding "... of course it's an illegal war."

At the time, I rather ungenerously chortled at this. Lawyers are often disposed to treat such popular legal commentaries as simply inaccurate or poorly informed, rather than something interesting in their own right (albeit quite uninteresting, as an authoritative opinion on some knotty legal conundrum).  Although I've misplaced the reference, a Scottish lawyer recently published an article in a learned journal (off the top of my head, I think it was the Edinburgh Law Review) touching on the online analysis of the prosecution of Tommy Sheridan - and particularly, the gap between popular understandings of the significance of particular aspects of the case and the view of legal professionals. For example, folk who attended closely to the trial will recall that the Advocate Depute narrowed the scope of the final indictment against Sheridan in the final days of proceedings. Many interpreted this as an indication that the Crown case was imperilled, an extraordinary concession in the face of Tommy's remorseless advocacy. Not so, if the final verdict is anything to go by.

I was reminded of all of this by a piece in the Scotland on Sunday this morning, in which Michael Moore's Tory mosca, David Mundell, "warned" the SNP about the risk of a legal challenge to the competence of Holyrood's referendum Bill...

"In an interview with Scotland on Sunday, Mundell said that if the SNP pressed ahead with a form which did not have Westminster support, disgruntled Unionists would probably go to the courts.  Such a dispute could involve a Unionist supporter challenging the Scottish Parliament's right to hold the referendum.  Lawyers said last night that such a legal challenge would go first to the Scottish courts, but could end up in the Supreme Court in London, whose validity has been attacked by Salmond and SNP ministers in recent weeks over its intervention in the Nat Fraser case. Mundell said: "I think it is essential that we work together to make sure that it is valid and stands up to third-party scrutiny, so there are no process issues and that there are no challenges based on process." He added: "I think it is very important the UK Government is involved in shaping the referendum to make sure we get a valid proper referendum that is free from challenge."

Supporters of independence will be very tempted to write this off as the UK Government flying a kite, indicating louche moves to scupper the referendum by nefarious legal means. However, it is vital that pro-independence and pro-referendum folk realise that Mundell has a point, or at least the ghost of a point. While it isn't necessary for the Scottish Government to consult with Westminster to winnow a legislatively competent referendum Bill - Alex Salmond simply does not have a free hand in framing this legislation. It is no answer to a legal case in the Scots Courts to cry "the Scottish people are sovereign", or even to cite international theorising about inalienable rights to self-determination and their exercise.

We are not assisted in Scotland by journalists who feel free to dispense legal advice (here's looking at your, Mr MacWhirter...) about issues beyond their ken. This is often at its most problematic where politics is concerned.For example, after the Holyrood election, Mr MacWhirter blithely reassured us that holding an independence referendum was within the powers of the Scottish Parliament. All well and good. I agree that there is a case that such a referendum does fall within Holyrood's powers. I agree that it would be outrageous if the institution could not hold such a ballot. However, the autonomous judiciary, interpreting the limited powers of the Scottish Parliament under the Scotland Act 1998, is exceedingly unlikely to be satisfied with the argument that the SNP won the election, ergo their referendum Bill is intra vires. This loose attitude towards law, and the failure to take it seriously, tends to generate eminently predictable "surprises" for the press, where their confident predictions that all is well collapse in the face of juridical interpretations. 

The point is that Holyrood's tribunes may feel themselves to be legislatively sovereign, or basically so, able to do whatever they like. They may be scandalised by Court findings that they're powers are circumscribed. However, that does nothing to alleviate the basic legal fact that Holyrood was not "born free" and cannot, in law, simply do as it fancies. Whether or not it is regarded as political legitimate, it is simply loopy to expect judges to abandon their dry work of legal analysis, by clause and section, simply because you have an alternative constitutional vision for the Scottish Parliament. This is not simply a question of the independence referendum. In the UK Supreme Court this week, the Justices heard the appeal of insurers against Holyrood's pleural plaques legislation. As those watching proceedings on the t'internet would have noticed, counsel for the Lord Advocate, Alan Dewar QC, put in an exceedingly ponderous and long-winded performance - and if Holyrood's Damages (Asbestos-related Conditions) (Scotland) Act is held to be intra vires by the UK Supreme Court, despite its retrospective application, it will be despite the potency of Dewar's interminable oral advocacy, rather than because of it.

The case against the pleural plaques legislation was brought by a band of insurers, no doubt venally pursuing their own material interests, working with the law.  As Mundell has pointed out, any independence referendum passed by Holyrood could face a similar challenge. In terms of judicial authorities, it is still early days in the interpretation of the Scotland Act 1998. While there may be questions of title and interest to sue (which I won't go into), the basic legal fact is that any punter with money to spend, opposed to a referendum on independence, will be able to solicit the review of any Referendum (Scotland) Act under the Scotland Act. Commentators often suggest that trying to scupper the independence referendum using legal means is likely to outrage public opinion and afford Nationalists advantages when attitudes towards independence are tallied. They imply, as a result of this, that no legal challenge will be lodged. While I suspect they are correct that formal political entities, such as the UK government and Unionist political parties, are unlikely to do so - what of the lone Unionist litigant who has no political reputation to sustain, who is hell-bent only on foiling the perfidious Nationalist plot using judicial means? That a legal challenge would be potentially politically disastrous may trouble him not at all. It is with this character which Nationalists, quite seriously, may have to contend. He is not a fictional spectre raised up by villainous Unionists, but a real possibility, even a likelihood.

This action-happy figure need not even succeed in his case, to cause no end of disruption.  The press may entertain notions about canny Alex Salmond, holding the referendum at a time best-laid to suit himself. However, merely consider this. The Scottish Parliament's Damages (Asbestos-related Conditions) (Scotland) Act received royal assent on the 17th of April 2009 - and the final hearing on its legislative competence was heard in the UK Supreme Court only this week. We await their judgment. If time really is of the essence, pro-nationalists ought to be profoundly concerned about the risks of legal review of the independence referendum. We should also take the legislative competence issue far more seriously, rather than pretending that it does not exist, or allowing ourself to be duped by political commentators, moonlighting as barrack-room lawyers. This isn't Mundell flying a kite. This isn't (particularly) Her Majesty's government making mischief. Nor, for that matter, can the potential problem be wished away by fierce invocations of politics, democratic legitimacy, self-determination or what have you.  While legal consciousness narratives are interesting, it is only a fool who comes to love his own ignorance, and noisily continues to broadcast it in the face of irrefutable contrary facts.


  1. Lalland's - I bow to your legal expertise but the reality I suggest is that a law is only applicable if the people to whom the law is applied agree.

    As Mr Bumble stated - "If that is the law, sir, then the law is an ass."

    The people did not agree to the law of Thatcher's incorrectly called 'Poll Tax' and it was repealed. The same will happen to clause 17 of the 1999 Scotland Act because unless the people of Scotland agree to the Supreme Court curtailing what they see as their rights, liberties and freedoms then the 'gemme's a bogey' anyway.

    The problem for Westminster is that win or lose the 'Law' as currently applied only enhances Salmond's position and the scene is already being set for a Scotland that will increasingly seek to ignore both Westminster and the less than 'Supreme Court'- the very opposite of what you argue as being the case.

    The more the Scots see Westminster Law and the Supreme Court being used to thwart their ambitions for steadily increasing autonomy the faster the UK's break up will occur.

  2. Excellent article which clears a few questions I had.

  3. Peter,

    Certainly, it is easy to see that legal delays and court reviews are unlikely to please many people, particularly if the objections appear cavilling and contrary to democratic sensibilities. My point is not that this is not the case - but merely that the SNP in government and pro-independence folk should brace themselves for legal problems, if the referendum is passed through the devolved Scottish legislature. Warnings that individuals may challenge the Referendum Act should not be written off, as many will be tempted to write them off - as mere mischief making. Equally, even if a Court decides the referendum is legally competent - the government should at least apply itself to the real possibility of delay, never mind the even thornier question of whether a referendum on independence falls foul of the constitutional reservations under schedule 5 of the Scotland Act 1998.

    If the UK Supreme Court knocked down the referendum Bill as ultra vires - that would clearly have political consequences. It seems to me only good sense to retain a clear idea that this result in Court is perfectly possible, and lay our schemes accordingly. In fairness, it is my understanding that those in government are familiar with these problems and are well-advised about the legal difficulties. It is the public, by contrast, who has been comprehensively badly informed (mostly by omission and official secrecy).

    Don't get me wrong, by no means do I want to write out the politics of all of this - but given how cavalier most Scottish commentators are about legal questions, and how often courts surprise them - it behoves much better-informed calculations about the legal limb of politico-legal questions of just this sort. To put it in terms of the legal consciousness studies I mention, I'm not arguing that we should behave as if before the law, deferring to a timeless and objective system. Pro-nationalists should certainly keep a tactical sensibility about all of this - we should certainly work with the law in Ewick & Silbey's terms, to achieve our goals.


    Glad that the article proved instructive.

  4. Lallans,

    What happened in the Faroes in 1946 has relevance perhaps?


  5. LPW

    Do you think that the possibility of the referendum issue going to the Supreme Court explains Salmond picking a public fight with Lord Hope?

    The SOS article suggests that it is the wording of the question which could lead to a legal challenge, rather than the holding of the referendum.

    I assume that there will have been extensive research undertaken to determine which choice of words is most likely to deliver the desired result. Would a FOI request allow access to the research?

    'UK MINISTERS have warned Alex Salmond he must seek their support on the wording of his independence referendum or face the possibility of a legal challenge that could end up in the Supreme Court.'

  6. This was a very interesting look at the problem looking at the issue from a purely legal perspective and devoid of any jingoistic flag waving. it is also largely irrelevant. It doesn't matter if it is quite right and proper to challenge the referendum. I doubt that it is mischief making, but it would be a colossal blunder on the part of the pro-unionist camp to make the attempt. The legality is not the issue, it's how it would be perceived in Scotland. Something the pro-unionists seem to fail to take into account. the poll tax (yes, that old chestnut but hear me out) was introduced in our country one year ahead of the rest of the UK. It was not imposed, but it was done nonetheless, by a deeply unpopular government who never considered how the Scots would react to it. They actually believed it would be popular. When they realized how ghastly an error it was, they got rid of it in the rest of the Uk first, not Scotland which had to wait another year. To this day the Scottish conservatives still can't see why it made scots angry and more importantly how it would be perceived. They were an elected government, and they had the right, and it was possible to do it because the ratings valuation had already been completed in Scotland first. but they never considered how it would play here. Any attempt by the UK government to do something to hinder the referendum, delay it, or challenge it legally will play just as badly to Scottish sensibilities and the legality of the challenge will get lost in the storm that would follow.
    the pro-unionists would then have the same stink hang around them as the scots tories do now, and Salmond and the SNP will get the result they want.

    I have a theory and it's only my theory and not "the theory": Salmond needs something to give his plans for independence the support they need from the Scots public. This issue with the legality of this being decided in an English court of Law would be all He would need. Chuck in a few perusing and pugnacious unionists (preferably Tory) to make a few imbecilic & belligerent pronouncements and he will have all the ingredients he needs.

    sadly the pro-unionists are behaving to type and unwittingly perhaps are dancing to the SNP tune. perhaps I am giving Eck too much credit and it will be more opportunism than grand strategy, but the result will be the same.

    the legality of the challenge can go fly a kite basically...and I fear the unionists are to blind to see it.

  7. James Morton

    It is refreshing to see, particularly from a nationalist, an accurate account of the reason for the introduction of the poll tax in Scotland a year before the rest of the UK, rather than the now accepted version that Scotland was used as a test case. Such is the power of the myth that prior to the election Cameron even apologised for the mythical version. Shades of Liberty Vallance.

    Regarding the referendum, as I said previously, it is the wording of the question(s)that is likely to lead to a legal challenge, not the legality of holding the referendum per se. The truth of course is that Salmond, who is on record as saying a referendum can only be held once in a generation, will not want to hold a referendum unless he is certain he will get the result he wants. Otherwise the issue is off the agenda for the rest of his life (though of course he could just ignore his previous pronouncement a la 'I will not stand for the leadership'.) Salmond will be looking for any excuse to delay holding a referendum and a legal challenge would fit the bill just nicely, thank you. Look out for more tub thumping about the Supreme Court.

  8. I think the chances of the unionist parties challenging the wording of the referendum is zero, as nothing could be more damaging to their cause.

    There is however the possibility of an individual doing it who is not part of the mainstream political process.

    What I think is unclear is whether the Supreme Court would be required to give a judgement on that or whether they have the option to just say this is not really something that is for us to judge on. Commonsense would suggest the latter but who knows?

    If the Supreme Court did decide to get involved that would not just annoy the SNP, it would annoy everyone.

  9. Incidentally I think the key political point is that Holyrood's tibunes (the SNP ones anyway) know fine well that they are NOT legislatively sovereign.

    That is the reason why the Supreme Court can decide, if it wishes, to overturn Holyrood legislation but could not do the same for Westminster legislation.

  10. Anonymous:
    I agree with you that Salmond is looking for anything to delay the referendum. As I said in the previous post he is (in the role of either grand strategist or great opportunist) looking for flashpoints to help him create the watertight case he needs to convince the Scots we would be better off without westminster & the rest of the UK. Legal blocking moves or the assertion that a UK court has the ability to block/overturn the actions of an elected Scottish parliament, will be the grist to Salmonds mill, the caulk he needs to seal up the good ship independence and make it seaworthy.
    the best thing the Unionists could do would be to keep the peace and hold their tongues. try to avoid giving Salmond any ammunition, let the SNP make it's own case without any unintended assistance from their camp.
    Sadly they seem hellbent on rubbing Scots up the wrong way, with their needlessly aggressive approach. Just like the poll tax was the first nail in the coffin for the Tories, this legal dance could achieve the exact thing they want to avoid: the breaking up of the UK.

  11. Kill DeWabbit,

    I rather hope not.

    Anonymous (19 June 2011 20:21),

    It cannot be ruled out. On the working point, the two issues are indistinguishable, insofar as we are talking about a Holyrood-mandated ballot on independence, under its present powers. If it was me, I'd have insisted that the Scotland Bill be amended to make crystal clear that holding such a referendum is within Holyrood's powers (a clear exception to the general constitutional reservations of the Scotland Act of 1998). On your research point, I am certain that the Scottish Government legal service have extensively engaged with these issues. It is testament to their discipline, frankly, that save for John McTernan's article in the Scotsman, they have not leaked any other hint that the referendum Bill may be legally problematic.

    I'm not very up on my Freedom of Information legislation, but I am aware that in general, legal advice to the government is not publicly disclosed.

  12. James Morton,

    Your comment impressed on me another point - pro-Unionist should be as worried (if not more so) about the real possibility of the stymieing litigant I mentioned, challenging any Referendum Act in the courts. Although it is a temptation to see Mundell as making mischief, in another respect, we could argue that with this intervention, he is just trying to save his own (political) bacon.

  13. LPW

    It's not legal advice that's of interest, it's the research carried out by psychologists and marketing experts on how to word the question(s) in order to get the desired result.

    The smart thing would be for Westminster to hold a referendum and effectively shoot the SNP fox.

  14. Anonymous,

    We clearly have different interests! ;-)

  15. Anonymous - the Scottish Government would not carry out research of the type you suggest.

    The SNP, on the other hand, would be able to do that - but the SNP is not publicly funded and therefore not subject to FoI.

  16. While it's a incontestable fact the law has played its role in all forms of government; has it the right to be used as a tool in order to subvert democracy?

  17. Gents,

    The writing is on the wall, a major legal hurdle may just require some "outside" help.
    I refer to the "RelmofScotland.com" and the documented acts of a few Scots who used outside influence to drive Blair into producing the Scotland Act. So we need a plan of action to bring the EU into the fray again. Just getting them to oversee what Westminster is playing at would be sufficient for now I think.

    After all it is my human rights that London appears to wish to circumvent.

  18. Gents,

    Stick with me please...it has been said in the above posts that the "dry work of legal analysis, by clause and section" should not be omitted. I agree, so, what of the original Treaty of Union? Is legally binding or is it just a political "habit".

    I would strongly suggest that that little bit of paper was not "born free" either.

  19. Indy,

    I suspect you are right on that. If such calculations are afoot, I'm sure it'd be a party rather than a governmental matter.


    Your question suggested another to me - what conception of a judge's (and law's) role in a democracy are being advanced here? After all, a vast number (I avoid saying "all", to avoid the danger of a single contrary example!) of democratic states have systems judicial and constitutional review in place, limiting the powers of their institutions in the domain of fundamental rights. One might support an alternative system - a sovereign and legally unfettered parliament - but I've never understood the SNP to be proposing such a thing in an independent Scotland. Indeed, the party's draft constitution for Scotland is explicitly committed to a legislature whose powers are limited by judicially-enforceable fundamental rights (see Article VI 1(a) specifically). I'm not arguing that the strictures of the Scotland Act vis-a-vis reserved matters should be understood in precisely the same way - but generally, the relationship between law and politics you mention is sometimes knottier than it seems.


    Your point about the Westminster parliament's sovereignty - or the extent to which parliament is bound by its founding Union documents - is a familiar and vexed one. You will likely be familiar with Lord President Cooper's opinion in MacCormick v Lord Advocate on precisely this issue.