Indyref2: You call this a “wildcat”?

Sunday National, 30th January 2021.

On 12th of May 1998, the Tory MP Michael Ancram asked Donald Dewar a simple question. The future First Minister was explaining the logical structure of the Scotland Bill to the House of Commons, and the structure of devolved and reserved matters it would create. “The Secretary of State mentioned the Union of the United Kingdom being a reserved matter. Does that mean that a referendum on the union also will be a reserved matter and not available to the Scottish Parliament?” A week may seem a long time in politics – whether you’re in the thick of an election campaign or responding to a global pandemic – but there can’t be many House of Commons questions which retain their relevance 22 years later.

You might have expected Donald Dewar simply to say “yes” to the soft ball question he was bowled by the former MP for Edinburgh South – but he didn’t. Instead, Dewar told the Commons only “it is clear that constitutional change – the political bones of the parliamentary system and any alteration to that system – is a reserved matter. That would obviously include any change or any preparations for change.” At the time, this answer struck not only Ancram – but Dominic Grieve and Tam Dalyell – as pettifogging.

Dewar’s “charm, wit and verbal facility disguise that there has been no answer to a fundamental question,” Tam Dalyell quipped. Grieve – a smart lawyer even then – also caught the evasion in Dewar’s parliamentary answer. “A referendum in itself would not be a constitutional change but a mechanism of consultation. On that understanding, would the holding of a referendum be within the competence of the Scottish Parliament?” Grieve asked. It remains a good question.

Dewar concluded that “a referendum that purported to pave the way for something that was ultra vires is itself ultra vires.” Even down the years, it is obvious he didn’t actually answer Grieve’s question: what about a referendum that just asks Scots what they think about the constitution?Rummage through the Scotland Act Dewar piloted through the Commons. You’ll find nothing in it restricting the Scottish Parliament’s powers to canvas the views of the population, or to take the political temperature of the public.

Back in the 1990s, in the House of Lords, one former Tory Lord Advocate came to the same conclusion. Lord Mackay of Drumadoon argued “it would be perfectly possible to construct a respectable legal argument that it was within the legislative competence of the Scottish parliament to pass an Act of Parliament authorising the executive to hold a referendum on the issue of whether or not those who voted in Scotland wished Scotland to be separate from the UK.”

We’re still having that argument now, just as Ancram’s question remains unanswered. The gap in Donald Dewar’s parliamentary answer remains open, and the eleven-point plan Mike Russell submitted to the SNP’s national assembly this week commits the Scottish Government to exploiting – or exploring, delete as preferred – this legal ambiguity in the light of a democratic and moral mandate to revisit the national question.

It’s important to realise this legal predicament isn’t new – though the first experience of it in Scottish politics largely took place behind closed doors, in a different political context, under a different First Minister. When the SNP dislodged Labour as the largest party in 2007, the party began its National Conversation. There clearly weren’t the votes for an independence referendum in this divided Scottish Parliament – but the election of a Nationalist minority government represented an opportunity to make the case both for independence and more devolution within the United Kingdom.

After the SNP majority was returned in 2011, and the reality of an independence referendum came unexpectedly into prospect, Alex Salmond’s second administration began to throw around a range of different formulations. While voters in September 2014 were confronted with the simple question – “should Scotland be an independent country?” – early Scottish Government proposals for the wording of the poll included a range of tortured formulations.

One draft suggested the question should ask the public whether they believed the “Scottish Parliament’s powers should also be extended to enable independence to be achieved.” An earlier proposal invited the electorate to express a view on the idea “that the Scottish Government should negotiate a settlement with the Government of the United Kingdom so that Scotland becomes an independent state.” This was, the draft stressed, a decision “to consult people in Scotland.” It was not, the language stressed, a Bill to break up Britain unilaterally.

Just why was the language of these earlier versions so tortured? It wasn’t because government lawyers had woollier minds back in the early 2000s or the ministers then in office were any fonder of legal workarounds than the ones in office now – it’s because they were drafting referendum legislation against the backdrop of the Scotland Act and the question put by Ancram to Dewar more
than a decade earlier.

They were working up that “respectable legal argument” Lord Mackay of Drumadoon was talking about that Holyrood has the legislative competence to ask Scots what they think of an idea of constitutional change. The language speaks for itself, with its careful and convoluted emphasis on consultation and negotiation. Nobody, looking at the language of these Bills, could mistake the referendum being proposed for a unilateral declaration of independence.

The word “advisory” is chucked around a lit in the debate on independence – mostly unhelpfully since legally-binding referendums in the UK are as rare as hen’s teeth. There was nothing binding about the Brexit poll, or the referendum of 2014 either. Both were, strictly speaking, only gauges of public opinion, from which no legal consequences necessarily flowed.

But as we’ve seen – finding ourselves tossed outside of the European Union and stuck inside this one – referendums are gauges whose readings have material force in our politics if not our law. By the same token, as we’ve seen in the laborious toil of “getting Brexit done,” a referendum majority is only the beginning of a job of legal work to make the basic political idea a reality. This crack is where the credible case for a lawful indyref comes in.

The idea it might be intra vires for Holyrood to pass referendum legislation is something legally unqualified unionists have given themselves licence to scoff at, but it has never been as implausible as they would like it to seem. BBC bulletins and high profile broadcasters now seem to have given themselves permission simply to assert that such a referendum would not be legal – ignoring the
weight of eminent legal commentary making clear that this isn’t necessarily so.

Some of this confusion is down to how people continue to argue about the legality of an independence referendum. This is reflected in the title given to the crowdfunded action attempting to secure a declarator from the Court of Session that a hypothetical indyref Bill is hypothetically within Holyrood’s powers. The People’s Action on Section 30 began life – and began crowdfunding – on the basis they’d sue Boris Johnson for refusing to grant an order under section 30 of the Scotland Act.

This approach was based on a basic but common misconception. It assumed that section 30 of the Scotland Act is somehow mainly concerned about referendums or independence. But if you dig out the detail of the legislation, you’ll discover this understanding is mistaken. Look for references to referendums, the constitution, or independence in section 30 of the Scotland Act, and you’ll look in vain. All it does is give the UK government the power to amend the list of reserved matters in the Scotland Act.

As you probably know, the Scotland Act is built around a reserved powers model. Westminster listed everything Holyrood has no control over – but Holyrood can legislate about anything which isn’t on the list. It is often simply asserted that “the constitution” is a reserved matter, but this ignores the simple language of the legislation, which reserves only “aspects” of the constitution. Among those “aspects” of the constitutions which are reserved in the union of Scotland and England. Which brings us back to Michael Ancram’s question.

The Scotland Act makes clear that “whether a provision of an Act of the Scottish Parliament relates to a reserved matter” is to be determined “by reference to the purpose of the provision” and with regard to “its effect in all the circumstances.” That might sound awfully abstract, so think about it this way. What is the “object and purpose” of a referendum on independence? There are different
ways of looking at this question.

For example, in the lead up to the 2014 vote, every single MSP in Holyrood supported the legal framework for the referendum. Would it make sense to say that Ruth Davidson’s “object and purpose” in voting for these referendum Bills was to deliver Scottish independence? Do you really think Johann Lamont was endorsing the break-up of Britain, by agreeing that a poll should take place? This is precisely this kind of logic which underpins the argument Holyrood can’t lawfully ask the Scottish people what they think about their constitutional future. They wrongly assume the test for judging a referendum’s legality are the consequences which might flow from just one side winning.

The same goes for the “effect” of a referendum Bill. The case against Holyrood having the power to ask the question largely assumes that such a referendum would result in a Yes vote, and as a result, the break of up Britain follows. But why should this be assumed at all? Go back to 2014. Legally – ask yourself – what was the “effect” of the 2014 referendum? The public were consulted, a majority view was expressed – and a few campaigners found themselves fined for breaching campaign regulations. But beyond this, what did the 2014 referendum actually change? What rights did it create or eliminate? What rules of law did it rewrite? It changed, to use non-technical vocabulary, the square route of f* all.

It is against this backdrop Mike Russell’s proposals have to be understood. The SNP should, he argues, seek “the express authority of the Scottish people” for another poll in a “clear and unambiguous” way. In the absence of UK government cooperation, “if there is a parliamentary majority so to do,” his Roadmap commits the SNP to “introduce and pass a Bill so that the necessary arrangements for the referendum can be made and implemented thereafter once the pandemic is over.”

And if the UK government don’t like that? Mike Russell’s message is: bring it on. Boris Johnson’s administration faces two alternative courses of action. Either accept the mandate and put the legality of a poll beyond doubt, or “take legal action to dispute the legal basis of the referendum and seek to block the will of the Scottish people in the courts.” Mr Russell indicates “such a legal challenge would be vigorously opposed by an SNP Scottish Government.”

How would this work in practice? When legislation is introduced to Holyrood, two people need to express a view on whether it falls within Holyrood’s competence. The first is the minister charged with responsibility for the proposals. The second is the Presiding Officer. But as we’ve seen with Brexit, these are just legal opinions: they have no binding effect. No consequences follow from the presiding officer ruling against you – particularly if you have a parliamentary majority which is content to pass the Bill.

We’ve seen this at work recently. The incumbent PO Ken Macintosh thought Holyrood’s Brexit legislation was outside the Parliament’s competence. Parliament legislated anyway. The Supreme Court ultimately disagreed with Macintosh’s interpretation. People often think about the law as a great book of rules. Particularly here, it doesn’t work like that. It is a domain of principles and interpretation, and reasonable people often reasonably disagree on points of principle and interpretation.

What would happen next? Firstly, the UK government would have to decide whether or not to try to spike the Bill before the Queen granted it royal assent. Boris Johnson’s new Advocate General would need to refer it directly to the Supreme Court, where the lawyers on all sides could argue the point out, and the legality of the Bill would be decided. If Boris Johnson got cold feet – any interested punter could intervene in the much slower and more convoluted process through the Court of Session.

The implications are political too. It shouldn’t be up to a group of well-meaning pro-independence activists – in the attempt to establish the legality of a referendum – accidentally to convince a court to say the opposite. If the UK government are going to take this political line, if they’re going to ignore clear parliamentary mandates, they ought to take it, argue it out in public, and wear the outcome around their necks with all of the political consequences that heralds. The same goes for the Scottish Government.

If the Supreme Court ruled in their favour on this plan, talk of a wildcat and illegitimate referendum should be for the birds. There can be no political or moral basis to refuse to recognise a process which is not only democratically but legally endorsed, consistent with the best principles of international law and the longstanding principle that Scots are a people with the right to determine the form of government best suited to their needs. But what if the course case went the other way? Far-sighted analysts of Mike Russell’s plan are right to asked, “what then”? Frankly, there isn’t a straightforward legal or political answer to that question, and anybody who tells you there is fencing snake oil.

In legal terms, the answer is: impasse. Politically? That has to depend, on the public reactions and the political system’s response across these islands. It is one thing to say “now is not the time.” Saying “no, not now, never” invites a different response. But we do not know how increasingly independence-minded Scots would react to this proposition. It may be we need to find ourselves there, to have a clear idea of where precisely our room for political manoeuvre lies. The same goes for the so-called Plan B – which in almost every particular, resembles Plan A, dependent as it is on UK government recognition of election results as a mandate for constitutional change. The question “what happens if they say no?” is as germane here as elsewhere.

I don’t know about you, but September 2014 already feels like half a lifetime away. The past is always a foreign country – but even by the ordinary timelines of political change, the United Kingdom of 2014 is now unrecognisable, even without the experience of a pandemic which has left many of us housebound, watching winter rain fall.

Some of this is personal, some political. You’ll all have your own stories. Whether or not you support Scottish independence, whether you hope this union endures or ends, whether you are a pro- European SNP voter or a pro-Brexit Tory – I don’t think anyone can seriously maintain we’re living in an unaltered Kingdom, as Brexiteers try to convince us this creaking old barge is Global Britain, as firms look enviously at the European partners, as their goods and services cross the border without a fist of new bureaucracy and a wrapping of red tape. The change of circumstances we’ve lived through during the last seven years, on any serious reckoning, have been material.

When the national returning officer read out the final tallies on that grey morning in September, there were 40 Scottish Labour MPs in the House of Commons, and the leader of the Liberal Democrats was deputy Prime Minister – not an ennobled non-entity with just ten colleagues huddled round him for warmth. As Margaret Curran danced a little jig on the steps of Pacific Quay as the results from Clanmannanshire and Orkney rolled it, we remained European citizens, able to move, work and trade freely across the continent. Aberdeen’s fish markets here a fog of noise and industry. Scotland’s fishing boats braved the North Sea – rather than resting in port, leaving Scotland’s langoustines to swim for another day.

In the years since, the Scottish Labour Party has had four permanent leaders, and is currently in the market for a fifth. Even the Scottish Tories has burned through three. More than 337,000 people have been born in this country since September 2014, and over 380,000 people have died. Times change, and we change with the times. The politics is mutable. But the legal questions? More than two decades into devolution, they remain curiously familiar. If a pro-independence majority is elected in May, we may finally get a definitive answer to Michael Ancram’s question.

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