Tuesday, July 19, 2022

A Supreme Skirmish

I'm slightly concerned to see it being claimed that the Scottish Government have won a "major victory" in their legal tussle with London over an independence referendum.  First of all, it's not a major victory, it's just the outcome of a preliminary skirmish. But more to the point is that legal rulings should never be how we define victory or defeat.  If we celebrate and bestow importance upon the Supreme Court rejecting London's call for the Lord Advocate's referral to not even be considered, we would logically have to bestow even greater importance on London eventually winning the substantive case, which remains likely.  That's not what should matter to us.  We're looking to win a mandate for independence from the Scottish people, not from a handful of conservative judges hundreds of miles away.

That said, the Supreme Court's decision is a relief.  If it had gone the other way, the impression would have been that Nicola Sturgeon's strategy had already failed, because she clearly wanted the theatrics of a televised court defeat to justify moving on to a plebiscite election.  With the Supreme Court refusing to even adjudicate on whether a referendum is legal, she would have been left with an embarrassing choice between just two options - either a) hurriedly replace the Lord Advocate with someone willing to certify the Referendum Bill as legal, or b) declare that the Supreme Court refusing to make a decision is identical to them striking down a referendum, and proceed with a plebiscite election anyway.  I presume she would have plumped for the latter, but her reasoning would have rung a bit hollow.

I'm more than happy to criticise Ms Sturgeon when it's justified, but I do think it's a tad unfair to criticise her for throwing away the chance of a consultative referendum by allowing the Supreme Court to set a precedent by ruling that such a referendum can only be held with Westminster's permission.  The reality is that there's no way of attempting to hold a referendum without risking the Supreme Court striking it down and setting a nasty precedent.  This moment was always going to have to arrive - it couldn't be averted, unless we had jumped straight to a plebiscite election.  Admittedly, it would have been preferable for the Scottish Government to pass referendum legislation and then wait for it be challenged, rather than effectively challenge their own law.  But the outcome would almost certainly have been identical - remember that the Supreme Court had no qualms about striking down legislation that had already been passed unanimously by the Scottish Parliament.

In any case, I'm not sure we should be scared of a legal precedent that essentially renders any future independence referendum impossible, because that would put an end once and for all to "once in a generation".  We would then revert to the pre-1999 position of seeking an outright mandate for independence via a scheduled election - and there's never longer than five years to wait for the next scheduled election.

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9 comments:

  1. In reality the judges are responsible for apply legislation not politicians, that's all what happened here.

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  2. Nothing new. The Scottish government continues to obey Westminster law.

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    1. If you don't obey the law you get arrested, what do you think would happen if the Scottish government didn't obey the law?

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  3. "... and there's never longer than five years to wait for the next scheduled election."

    Is there any news on the recent census regarding the number of people settling in Scotland from England since the last census?

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    1. Could you explain what that question has to do with the sentence you've quoted?

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    2. Sorry for the delay, James. What I meant was that waiting for five years at a time will not be in the interests of the independence movement if there is a continuing migration of people from England [the majority of whom, in my opinion, will be No voters] into Scotland. I'll be interested to see when the recent census is made public just how many people from England have settled here since the last census.

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    3. Well, the next general election is only two years away, not five. If we fail to get a mandate this time, we can't do this every five minutes no matter what the downsides of a delay, but once every four or five years does not seem excessive.

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  4. I have seen several references to the Lord Advocate being unwilling to certify the referendum bill as being within the powers of Holyrood. What she actually said was she wasn't sure if the bill was or was not within Holyrood's powers and I'm convinced this was just a form of words to justify taking the case to the court. She had to express doubt in her ability to certify the bill or else she wouldn't have been able to take it to the court.

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    1. Honestly, it's the other way round. Bain refused to certify (even though many potential alternative Lord Advocates would have certified), so they've had to do it this way and reframe it as a strategic choice.

      "What she actually said was she wasn't sure if the bill was or was not within Holyrood's powers"

      Precisely. That was her clear indication that she wouldn't have certified.

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