Opinion
jimsillars@holyrood.com
“The fate of the SNP Government’s flagship policy, the referendum on the constitution, may end up before these judges”
Legal arguments Jim Sillars
I do hope no further insulting words
from our Scottish ministers are hurled at their Lordships in the UK Supreme Court, because the fate of the SNP Government’s flagship policy, the referendum on the constitution, may end up before these judges. How come? I am of the view that although
the constitution is a reserved matter for Westminster, the mandate the SNP got in May from the Scottish people, to hold a referendum, should trump anything that is in the Scotland Act preventing it from doing so. Tat politics should triumph over strict legality is not, however, the law; and it may be in the law courts that the question of which takes precedence is decided. It is always helpful to test one’s own opinions against the opposite view. Not something practised these days by the new political class. It used to be called think before you leap. I know that David Cameron has said
that with its mandate, Alex Salmond’s government should be able to go ahead with the referendum. But then David Cameron is the Prime Minister, not a dictator. He does not command or control people like Michael Forsyth, Malcolm Rifkind, the lawyer from Glasgow who has threatened to contest the legality of the Scottish Government’s right to hold it, and many others who would love to put a spoke in the SNP wheel. Let us assume that the Referendum Bill, which will entail the expenditure of public money, passes its first legal test – gaining the certificate of competence from the Presiding Officer. Tricia Marwick saying no? I don’t think so. Let us further assume that the Glasgow lawyer, or someone else, decided to test that certificate and the Government’s Bill in the Court of Session, arguing that as the law stands, the Scottish Parliament and Government cannot hold a referendum on the constitution as it is a reserved matter; and that both are acting ultra vires. Let as assume some more: that the Court of Session decides that
the Government’s political mandate carries more weight than the Scotland Act’s reservation of the constitution to Westminster. Having lost in Edinburgh, the Glasgow lawyer can appeal to
the Supreme Court in London because, without question, this is a devolution matter, a civil not a criminal issue, leaving an undisputed straight legal road from the Edinburgh court to the London one. Te Supreme Court is, on its present form and record, likely to apply the law as it stands irrespective of any political claim to overcome it. Tey may say, with some logic, that the SNP could not seek a mandate to hold a referendum when the Scotland Act was known to forbid it to do so, especially as that legal barrier was not explained to the electorate, and therefore, the electorate was not actually invited to challenge that legal position. Te Supreme Court may well question whether if the electorate had been so informed of the legal position,
they would have voted for a referendum run by the Scottish Government; that failure to so inform the people voting trumps the claim to a mandate and so becomes fatal to the SNP case. Tey may say that asking the electorate to
endorse a legal nonsense out of ignorance of the true legal position, does not make that nonsense valid in law. Let us, however, assume that the Court
of Session in Edinburgh agrees with the Glasgow lawyer and strikes down the Referendum Bill as being ultra vires. Where would that leave the Scottish Government? With only one action – to lodge an appeal to the Supreme Court, where it says the judges know little about Scotland, and are mere ambulance chasers. I am sure their Lordships would, whatever their personal feelings might be about being insulted, judicially ignore the contempt that has flowed towards them from the First Minister and his Scottish justice colleague. But what an embarrassment for the SNP if
they had to appeal to the court they denigrated. What I have outlined may not, of course, ever happen. It is,
however, the legal path along which the case would run if the SNP Government’s Referendum Bill is challenged in the courts. It would be foolish for any SNP minister to ignore the fact that, in law, the constitution is not a matter over which power can be exercised by the Scottish Parliament, because it is not sovereign and is constrained by the terms of the Scotland Act. How does the SNP avoid going along that legal path, strewn with
difficulties? Some, of course, may be happy to go along it and be blocked by a court based in the capital of England. Tey may believe that such an action against their government with its mandate would have the whole of Scotland up in nationalist arms. Don’t bet on it. A defeat at the Supreme Court would be just that, a defeat that would dampen, not ignite feeling in Scotland. Far better to get the matter sorted out now. Put David Cameron on
the spot this parliamentary session; make him act on his own words, using his coalition majority. Get him to eliminate any possible legal challenges to the Scottish Government holding its referendum. Te Scotland Bill is going through Westminster, and due to come back to the Scottish Parliament soon. It is the instrument through which he can remove any legal doubts. Let the SNP in Westminster table an amendment giving clear legal powers to the Scottish Parliament to hold a referendum on independence in this Parliament, and let us see Cameron voting it through. If such an amendment is tabled and then defeated by the Coalition
then three things are certain. Alex Salmond will know the so-called ‘respect’ agenda is dead; he will have a case for a genuine grievance against the London government; and he had better prepare for going down the road to the Supreme Court.
13 June 2011 Holyrood 73
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