20 April 2015

The return of the monster

So, let me get this straight. From 2011 until the Edinburgh Agreement of 2012, senior figures in the coalition government and in the Labour opposition were as one: Holyrood did not enjoy the legal power to order an independence referendum on its own authority.

The SNP may have claimed a thumping majority in Holyrood, the party may run the Scottish Government, and they might claim a political mandate from their 2011 election victory - but in law, at least, any referendum required Westminster's consent. The referendum "related to a reserved matter" - the Union - and as such, was beyond the powers given to the Edinburgh parliament in the Scotland Act of 1998.

Advocate General and Liberal Democrat peer, Jim Wallace, gave a speech at the University of Glasgow, setting out this legal analysis "The UK government’s legal view is that the Scottish Parliament has no power to deliver a referendum on independence." The cross-party Scottish Affairs Committee, under the unabashedly partisan headship of Glasgow South West MP Ian Davidson, endorsed Wallace's analysis, claiming that it was crystal clear that the proposed referendum fell outwith Holyrood's legal competence and would almost certainly be struck down in the courts. David Cameron echoed the threats and menaces of his Liberal Scottish legal advisor.  

Neither the Labour Party, nor the Liberal Democrats and Tories wanted to block the poll - they accepted that there ought to be a "legal fair and decisive" vote - but the Better Together chorus was at one on the illegality of any unilateral attempt by Holyrood to order a poll without reference to the Mother of Parliaments on the banks of the Thames.

The Edinburgh Agreement and the subsequent order under s.30 of the Scotland Act cleared up this legal uncertainty, explicitly authorising a referendum on independence, subject to the conditions that the Electoral Commission was involved, that no "devo max" question appeared on the ballot -- and that the poll was held by Hogmanay 2014.  

The constitutional hour glass having run out on the 2014 referendum, you might imagine that Labour, Tory and Liberal Democratic parliamentarians would believe that we had returned to the ante referendum status quo. At least legally. If they had any faith in their legal analysis in 2011 and 2012, they would draw comfort from the thought that no future #indyref is currently possible, without negotiated consent from Westminster. You might have thought that they would feel pretty damn pleased with themselves. The only risk of another independence referendum, in their legal analysis, is if the overwhelmingly pro-Union majority in the House of Commons voted to allow one.  So why the exaggerated air of snark and panic?

But truth, reason and fidelity to their past arguments seem to have gone out the window in these heady general election days. In a last desperate gambit, Labour, Tory and Liberal Democrat candidates and ministers are blundering around the country, and blethering to their fellow travellers in the media, screeching that the perfidious Nats are plotting to inflict another separation poll upon the Scottish and British people. This, you know, despite categorical statements from senior SNP sources that none of this is on the cards. 

But on their own legal analysis, the only route, the only viable legal path to another independence referendum is if the overwhelmingly pro-union majority in the House of Commons and Lords voted to authorise one. The only danger of Jim Murphy experiencing another referendum is if he slurps too much Irn Bru, and in the grip of a sugar high, gallops through the wrong lobby in the palace of Westminster. According to his government's legal analysis, Nicola can no more force David Cameron to endure another referendum, than she can introduce a Scottish minimum wage, or unilaterally seize control over Scotland's social security net.

If there is, as senior Labour folk all argued, a crystal clear UK lock on granting or refusing an #indyref, why the manufactured panic? It couldn't be a desperate ploy, could it? A last ditch, knowing and winking nonsense designed to put the fear up credulous people who know no better? Heaven forfend.  

What's that coming over the hill? Is it a monster? Is it a monster?


  1. A 300 year old Union destroyed by Irn Bru? It's too hideous to contemplate.

  2. Why has no MSM journalist challenged theUnionists about this? It would surely embarrass them.

    You have made a very good point. Good on you!

    Let's hope for a large number of SNPs on May 8th!

    1. It certainly could. But I have some sympathy with our media. Politics is a whirling present. Memories are short. Too short, too often.

  3. Here's the text of a letter from me in The Times from February 2012. Nothing has changed.
    Sir, Yet again an article in your pages (“Ministers to discuss vote as one-question”, Feb 4) proceeds upon the assumption that before the Scottish Government can lawfully hold an independence referendum there must be a transfer of powers (by means of a section 30 order) by the United Kingdom Government; and that this fact gives the UK Government the opportunity to attach restrictive conditions as the price of any such transfer. This is an all-too prevalent misconception.
    The Scottish Government’s present legal position on entitlement to hold a referendum is a strong one. Any conditions sought to be imposed by the UK Government can therefore be considered strictly on their merits and not as a price that must be paid, however reluctantly, in order to secure authority lawfully to hold a referendum at all.
    Notwithstanding the restrictions on the Scottish Government’s devolved competence contained in the Scotland Act 1998, no-one disputes that it can lawfully make proposals to, or hold conversations or enter into negotiations with, the United Kingdom Government about (i) altering the constitutional position of Scotland or (ii) widening the devolved powers of the Scottish Government and Parliament (including amending or removing some or all of the matters reserved to the United Kingdom which are set out in Schedule 5 of the Act).

    That being the case, it is inconceivable that any court would hold that it was beyond the legal power of the Scottish Government to promote legislation to enable it to consult the Scottish electorate (by means of a referendum) about whether the Scottish Government should or should not make such proposals to, or hold such conversations or enter into such negotiations with, the Government of the United Kingdom. This is reinforced by section 101(2) of the 1998 Act which provides that any provision of an Act of the Scottish Parliament is “to be read as narrowly as is required for it to be within competence, if such a reading is possible, and is to have effect accordingly”.

    That does not, of course, exclude the possibility that referendum legislation might be challenged, as being beyond the Scottish Parliament’s powers, in the courts of Scotland and all the way to the UK Supreme Court. But any such challenge would be doomed to failure.

    1. Robert,

      My point here is not about the merits of demerits of the legal arguments -- so much as the debating points. Your position is certainly defensible, and if it was advanced by Labour, Tories or Lib Dems, they might have a coherent point to make here. But it is not their position on the law. They do not even countenance the possibility you might be right.

    2. The UN does though.

    3. I've blogged before about international law and the scope of the right to self determination. It doesn't go so far as many folk imagine. At least at the moment.

  4. Well lots of laws remain on the book long after their application has become impossible - 'interracial' marriage was illegal in Alabama until 2000.

    I expect the same may be said about any reserve on a referendum vote

    'If the law supposes that," said Mr. Bumble, squeezing his hat emphatically in both hands, "the law is a ass — a idiot. If that's the eye of the law, the law is a bachelor; and the worst I wish the law is, that his eye may be opened by experience — by experience.”

    1. All of my jurisprudential utterances are made while squeezing a chapeau.

    2. You do have a rather Dickensian name and role - Mr Tickell the gad fly!

    3. But "Andrew" seems a touch flat-footed. Need to change my forename to something more gruesome. Obadiah, perhaps...

  5. As a layperson in these matters it strikes me that constitutional law is, in essence, not founded on anything absolute, or even ethical, but on playground (non-)etiquette:

    You can't do that
    Who says?
    Yeah, you and whose army ... oh ... that one

    It is, in its entirety and totality, a fiction. Yourself and Prof Tomkins may agree on this. It's not physics, the laws of the universe or anything like that. As such it can be criticised in the way that you can criticise art or literature, but not in the way that you challenge a scientific hypothesis.

    It's made up. You don't have to believe it. You can believe in better.

    1. Matt: bang on. It is a matter of politics, in our unentrenched and uncodified constitution.

      In point of fact, Professor Tomkins and I do not agree on the status of indyrefs under the Scotland Act as it stands unamended after the s.30 order process. My view has been and remains that it is arguably intra vires for Holyrood to order a poll under its existing powers, for reasons along the lines of those advanced by Professor Black above. Tomkins takes the more categorical view of Jim Wallace and the Scottish Affairs Committee.

    2. Indeed Andrew - but we all agree that it's made up, a game in which the rules can be changed.

      When one party changes the rules and the other disagrees, there is no *ultimate authority*, so there has to be discussion. I hazard that some might argue that there *is* an ultimate authority in constitional arrangements, but if so I would call this argument delusional.

    3. There, we are in a different domain. Unless something like a s.30 order is made, we are left with the authority of the Scotland Act 1998, and the UK Supreme Court is empowered authoritatively to adjudicate on whether or not laws fall within Holyrood's legislative competence. This isn't delusional: it is the reality of the situation, and barring something transgressive and revolutionary, we cannot afford entirely to ignore it.

  6. Bagehot on the mystic nature of royalty and the constitution -

    'If a king is a useful public functionary who may be changed, and in whose place you may make another, you cannot regard him with mystic awe and wonder; and if you are bound to worship him, of course you cannot change him. Accordingly, during the whole reigns of George I. and George II. the sentiment of religious loyalty altogether ceased to support the Crown. The prerogative of the king had no strong party to support it; the Tories, who naturally would support it, disliked the actual king; and the Whigs, according to their creed, disliked the king`s office. Until the accession of George III. the most vigorous opponents of the Crown were the country gentlemen, its natural friends, and the representatives of quiet rural districts, where loyalty is mostly to be found, if anywhere. But after the accession of George III. the common feeling came back to the same point as in Queen Anne`s time. The English were ready to take the new young prince as the beginning of a sacred line of sovereigns, just as they had been willing to take an old lady, who was the second cousin of his great-great-grandmother. So it is now. If you ask the immense majority of the Queen`s subjects by what right she rules, they would never tell you that she rules by Parliamentary right, by virtue of 6 Anne, c. 7. They will say she rules by "God`s grace"; they believe that they have a mystic obligation to obey her. When her family came to the Crown it was a sort of treason to maintain the inalienable right of lineal sovereignty, for it was equivalent to saying that the claim of another family was better than hers: but now, in the strange course of human events, that very sentiment has become her surest and best support.'

  7. We used to say 'God's Grace' when our desire conflicted with the letter, now we say 'People's Will'