After months of the UK Government claiming that the Peoples Action on Section 30 was hypothetical, accademic, premature and that the ordinary electorate do not have the right to ask reasonable legal questions about their own parliament, the 2 day hearing has just completed with Lady Carmichael, yesterday.
By now (interesting timing) you will have seen the story in the National about the SNP’s 11 point plan, with the subheading “SNP will hold legal indyref and dare Westminster to challenge it in court.”
The first thing I will say to that is that you cannot hold a “legal” indyref if you have not first ascertained if it is legal. We know this because the word legal is followed by the words “dare Westminster to challenge it in court”. If you are expecting a legal challenge then it means that automatically that the SNP do not know one way or the other if it would be legal.
The irony is that we made this exact argument over the past two days (and over the past year) and counsel for the Lord Advocate stated that there was nothing on the table to indicate that the Scottish Ministers would not be seeking to hold a referendum without knowing if it was or wasn’t competent. That has clearly now been found to be false, because you cannot, on one hand, purport to hold a legal referendum and also then advance the fact that it will be challenged by the UK Government. Because if you are expecting a challenge, then there is an open question about the lawfulness of that act. That’s just basic common sense.
It’s like saying that a washing machine will not need to be repaired for at least 25 years and then trying to sell a 5-year guarantee. The very fact that you are trying to sell an extended guarantee for the appliance shows that the appliance could break down in the next 5 years.
Also, the word legal is the incorrect term to use here. Legal and Illegal are terms used to describe something which is specifically allowed or prohibited in law – in black and white as it were. The proper terms to use in this case are Lawful or Unlawful because the written law is uncertain on the subject. We know it is uncertain because it is literally the point of the Peoples Action on Section 30. If the question over the legality of something comes down to mibye aye, mibye naw, then you are talking about lawful and unlawful, not legal and illegal. And the First Minister knows the distinction because she studied law.
I have to raise doubts about this article. The SNP leadership have decided upon a course of action which gives me great concern. It is the one thing we’ve been warning about since the case started a year ago.
The SNP are saying that they intend to put a draft bill forward in March. They will then campaign on a promise to put that bill to the chamber of Holyrood if they are elected.
This, in of itself, makes absolutely zero sense politically and zero sense legislatively. The SNP could have easily passed the bill through Holyrood before the election with a clause in that act which specified the conditions under which it could be activated i.e. a majority vote of Holyrood. They would have then been able to campaign on a clear mandate of activating that bill after the 2021 elections. But the most important thing about putting the bill through fully and making it an act is that it would have protected the right of the Scottish People because it having been fully legislated for, it would have had protection from possible interference at Westminster with respect to reserved laws which could be passed.
But no, the SNP have decided only to put forward a draft bill to Holyrood, just before they break off for the election campaign. This will leave the bill on public display, and within minutes of it being made public, the UK Governments legal teams will set to work finding ways to undermine the bill through laws passed at Westminster.
Now let’s say for argument that the UK Government doesn’t undermine the bill the minute it is published and wait until the SNP put the bill to the floor after the 2021 elections to challenge the bill for competency before the court. This would immediately prevent the bill from gaining royal assent until the court decision on whether the bill was lawful or not. The problem is that while the court battle is going on, there is nothing to stop the Tories at Westminster from passing legislation, or modifying existing legislation to take provisions of the indyref bill out of the competence of Holyrood.
How do we know this? Well! This is exactly what the tories did to the SNP with the continuity bill. While the Scottish Government was fighting the UK Government in court, Westminster modified an act of parliament to make certain provisions of the continuity bill out of the hands of Holyrood, the court was then forced to rule against the continuity bill because of the law changes at Westminster gaining royal assent.
Make no mistake, the SNP are playing an extremely dangerous game here. They have exposed us to at least three avenues of legislative attack from the Tories at Westminster and this could very well end up costing us independence.
So what now for the Peoples Action on Section 30?
If we can prove beyond a doubt that the Scottish Parliament has the power to legislate for a second referendum without the consent of Westminster, then when the SNP put their bill forward, Westminster will have nothing to challenge. That’s because establishing that it is competent for the Scottish Parliament to legislate for indyref2 means that by default it establishes their bill would also be competent.
In other words, this case has never mattered more.
So much for a stress-free weekend!
As you know, the hearings are complete and Lady Carmichael expects to render an opinion within days, not weeks. It is almost certain there will be an appeal, either by the UK Gov, or by us. One way or another though – we’re going to see this case to its conclusion.