Scotland’s independence referendum–the law and the Supreme Court

An extract from what I had to say on the law and Scotland on 13th October UK Supreme Court - constitutional and independence implications

This also contains links to a number of earlier blogs on Scottish Law and the Supreme Court – see URL links.

EXTRACT

Thursday, 13 October 2011

In the light of the recent UK Supreme Court judgment (I spell it judgment against my instincts towards judgement because I believe this is legal practice) and certain remarks about what the Scottish Parliament can and cannot do - which some have interpreted as a shot across the SNP Government’s bows in relation to the referendum - a number of correspondents have asked me if I plan to comment. Firstly, this is properly Peat Worrier’s blog territory, and secondly, I have said pretty much what I wanted to say about the UK Supreme Court in the following blogs -

The UK Supreme Court and the Scottish legal system

The UK Supreme Court–FMQs 16th June 2011 – Holyrood

The UK Supreme Court, the judges–and the Union’s future

The UK Supreme Court–the debate polarises and takes on new dimensions

DAVID CAMERON’S STATEMENT, COMMONS DEBATE 10th Jan. AND SUBSEQUENT FALLOUT

I am not a lawyer. Fortunately, nationalists have a lawyer who blogs – Lallands Peat Worrier, who recently outed himself on television, revealing a long-haired young man – Andrew Tickell who was not at all like the image built up by many readers of his superb blog, who may have fondly imagined him, as I did, as a crusty old Edinburgh lawyer in a old leather armchair, with whisky in hand.

Anyone who wants an informed and authoritative account of the law as it relates to Scottish and UK affairs, independence and referendums should go to his blog Lallands Peat Worrier

My perspective of the law as it affect Scotland’s independence is that of an informed voter, with a special knowledge of negotiation and the dynamics of reaching agreement in situations of conflict, especially ones that are defined by formal and perhaps legally binding agreements and contracts. In other words, my expertise lies in defining how a party to a dispute should regard the law and how that party or parties may - or may not - use the law to resolve disputes, i.e. a client perspective.

FUNDAMENTALS AS I SEE THEM

The law as it applies to political and constitutional matters is a very different beast to the criminal law and civil law, especially when that law reaches beyond the nation state, e.g. European Law, international law and human rights legislation.

The issue between Scotland and the UK involves Scottish Law, UK Law, especially as it relates to devolution, European Law and potentially international law.

Two ancient legal systems exist side by side, and have done for over 300 years in the United Kingdom. The Union made one aspect of that law supreme across the UK through the UK Parliament, Westminster. Scotland has its Parliament and its devolved administration by courtesy of that law, The Scotland Act, and the extent of the Scottish Parliament’s powers are determined by that Act, and can be altered or revoked by the UK Parliament.

The UK and Scotland are also bound by European law and by the European Human Rights Act and the European Court of Human Rights at Strasbourg.

Until the establishment of the UK Supreme Court, appeals on certain matters of law went to Strasbourg. The UK Supreme Court was set up to provide a UK Court of Appeal on Human Rights matters, but also to rule on constitutional matters.

It was no coincidence that the UK Supreme Court was set up with such powers at the same time as the Westminster Government became aware that the independence of Scotland had become a very real possibility, with huge constitutional implications.

Scotland’s wish to be independent means that it wishes to be independent of all UK law, and therefore of the UK Supreme Court. But that system of law, and specifically that court – the UK Supreme Court - can restrict or frustrate Scotland’s attempts to be secure its independence – or at least, it can attempt to do so.

It can be argued that it was set up at this time to permit it to do exactly that, and no amount of high rhetoric about the rule of law can obscure that stark possibility. All the indicators in the dispute that has built up since the UK Prime Minister’s ill-judged intervention into Scottish affairs tend to support that conclusion.

That is not to say that the UK Supreme Court would accept this attempt to politicise its role – one can hope that they wouldn’t - but remember the the UK decided to go into an illegal war in Iraq on very dubious grounds, based on legal advice at the highest level, advice that was changed at the last moment.

The message is – We, the UK Government, will use the legal system that Scotland’s independence seeks to be free of to control and limit its right to consult the Scottish people. Unless Scotland accepts the UK Parliament’s conditions for the referendum and its right to control and monitor it with its own designated bodies, the UK Supreme Court will be used to challenge, delay and block the referendum, and declare it illegal.

In other words, the interest group that wants to keep Scotland in the Union, and bound by this framework of law, will attempt to use that law to stop Scotland from determining whether the voters of Scotland wish to remain a part of that legal system.

Of course, all of this mumbo-jumbo is cloaked in language that suggest that the UK has Scotland’s best interests at heart, and that they wish to facilitate the referendum. No one who watched and listened to all of yesterday’s one-and-a-quarter hour debate in the Commons could seriously entertain such a proposition.

This is a stark, high-stakes political game, with the law being used as a tool in that game to maintain the dominant power structure.

The UK Government -

- did not want a Nationalist Government – the devolved settlement and the electoral system were specifically designed to prevent nationalists from ever gaining power

- did not want a referendum at all, and frustrated attempts by the minority Scottish Government to call one in the last term of SNP Government

- now, faced with the inevitability of a referendum being called, the UK Government wants it to be held at a time and in a manner that will ensure that independence is rejected, and are willing to use the law and specifically the new UK Supreme Court to block or delay the referendum if their conditions are not met.

The Scottish Government, in contrast, wants to hold the referendum on their timescale, identified broadly in the election campaign as the second half of the Parliamentary term, and now specifically confirmed as Autumn 2014, with the Scottish Government determining the timing, eligibility to vote, the questions and the question formulation. They also want to win.

This is not a legal dispute – it is naked power politics, with a willingness to use the law to further the political objectives of each party to the dispute.

But the SNP Government can claim the moral high ground, because their wish is to determine the will of the Scottish electorate democratically, and to accept their verdict.

The last thing the UK Government want is to allow the Scottish people their voice, because the Scottish people have decisively rejected the two parties that now constitute the UK Government.

The last thing the Labour Party wants is for the voice of the Scottish people to be heard, because the Scottish people decisively rejected them on May 5th 2011, as the people of the UK decisively rejected them in May 2010.

The UK Labour Party will have a dismal future when Scotland becomes independent. All Scottish Labour politicians (MPS) in Westminster (and all Scottish Tory and LibDems MPs) would become redundant overnight, Scottish Lords would be in a very strange place indeed, and only Scottish Labour politicians in Holyrood, i.e. MSPs, would have a political future, and perhaps a bright one, in the new Scotland.

Some are beginning to recognise this.

COMMERCIAL AND CIVIL ANALOGIES

Consider what happens if a breakdown occurs in a a civil contract of long duration. Firstly, let it be clearly stated that it does not take both parties to end the relationship – it only requires that one is determined to end that relationship. The only question then is the manner in which the relationship is ended. It can be done amicably and legally by agreement and by observing the previously agreed terms of the relationship, or one party can simply walk away unilaterally, leaving the other party to determine how they will react.

The other party cannot stop the relationship ending – they can only attempt to penalise the party walking away, by either invoking legal penalties provided for in the original contract, or attempting to secure damages by law.

Ideally, parties negotiate the terms of the breakup without invoking the law, or perhaps use the law to assist in the negotiations and the drafting of the agreed settlement.

The decision on whether or not to use the law in such dispute is made by the parties to the dispute, unlike under the criminal law, where if a breach occurs, the prosecuting authorities may decide to invoke the law whether or not the parties agree.

(If I murder another person, the decision to invoke the law and to prosecute does not lie with the dependants of the deceased. If I rob a bank, the bank can’t decide to let me off – a crime has been committed and the law will act regardless of the will of the parties.)

The way in which disputes over the independence of nations are resolved follow loosely the same principles – independence can be achieved by negotiation, with reference to the law, it can be achieved by force, ignoring the law – i.e by revolution - or it can be achieved by UDI – a unilateral declaration of independence. If this is not challenged, it is called a velvet revolution, e.g Slovenia.

There is are abundant historical examples of countries achieving their independence, some very recent, many from the British Empire, and there are current examples that are works in progress, e.g. the Arab Spring.

Of one thing you can be sure – the law will not be the key determinant in Scotland’s future – it will be the will of the people, and, I hope, the good sense of the politicians, with minimal reference to the law.

Read my previous blogs (see links above) for more information. If the law itself interests you, read the estimable Lallands Peat Worrier.

Saor Alba!