Members of the Scottish Parliament – Seán Crossan's Scots Law

This is a relatively short article about today’s major constitutional law story which relates to the future of the United Kingdom as a unitary state.

The U.K. Supreme Court has finally ruled that the Scottish Parliament does not have the legislative power to hold a referendum (either a legally binding one or a purely advisory one).

A link to the judgement can be found below:

https://www.supremecourt.uk/cases/uksc-2022-0098.html

This clearly represents a significant set back for supporters of independence for Scotland and the casual observer may arrive at the lazy conclusion that the matter is decided for the foreseeable future.

I think this is somewhat premature. The judgement of the Supreme Court contains difficulties for the U.K. Parliament and the Government of Prime Minister Rishi Sunak in the sense that the Union of the Scottish and English Parliaments in 1707 is clearly not one of a voluntary nature.

By implying this, the judgement may represent something of a red rag to the bull for many pro-independence Scots. It will certainly give the SNP/Green Government in Edinburgh a rather large stick to beat whichever British Government happens to be in power over the next few years.

In any event, there are legal precedents for dissolution of the union of nations within the framework of the British and Irish State (as I have previously argued in The Long and Winding Irish Road).

It should not be forgotten that 26 Irish counties (now the sovereign state of the Republic of Ireland) are obviously no longer in union with the United Kingdom. In fact, the original Acts of Parliament which led to the Union of Great Britain and Ireland stated:

The First Article of the Act of Union (Ireland) 1801 (above)

This piece of legislation (and it’s Westminster counterpart) contained the (very) ambitious statement that Great Britain and Ireland were to be united for ever. The ancient Greeks had a word for this type of mindset – hubris. This word means an excess of pride or over confidence.

Unfortunately, for the parliamentary draftsmen of both pieces of legislation, they could not possibly foresee that this permanent union would be seriously undermined by the Government of Ireland Act 1920. I shouldn’t have to say this, but 119 years is self evidently not a union for ever.

It is also worth highlighting that the remaining six counties of the North of Ireland are still part of the political framework of the United Kingdom, but it is not a racing certainty that this will continue. The rise of Sinn Fein as the largest political party in the Northern Ireland Assembly has raised huge question marks about the constitutional status of the six counties. I don’t think it’s a stretch of the imagination to say that the future of the United Kingdom of Great Britain and Northern Ireland looks very uncertain.

Even the Soviet Union (the USSR) explicitly gave its constituent Republics the right to secede in its 1977 Constitution (a right which had existed in previous versions). This right, of course, was more apparent than real as long as the Cold War endured. With the fall of Communism in the late 1980s and early 1990s, the political space was created for the Soviet Republics to chart their own courses. Admittedly, this hasn’t always been plain sailing as the current war in Ukraine and other conflicts in Armenia, Azerbaijan and Georgia amply demonstrate).

Interestingly, when the Brexit Referendum of 23 June 2016 produced a narrow majority in favour of the U.K. leaving the European Union, there was no clear constitutional process for a member state to secede. Yet, on 31 January 2020, the U.K. became a former EU State.

This really leads me to the conclusion of this very short article: independence for Scotland is a political question rather than a legal question. The Supreme Court has answered a relatively easy question in the sense that the architecture of the Scotland Act 1998 does not currently permit the Scottish Parliament to hold a binding or non-binding referendum. As with the Irish Question over a century ago, permanent unions between countries or political units tend to be anything but.

One door closes and another opens …

The link to my previous article, The Long and Irish Winding Road can be found below:

https://seancrossansscotslaw.com/2021/01/10/the-long-and-winding-irish-road/

Copyright Seán J Crossan, 23 November 2022

On 23 April 2019, Monica Lennon, a Member of the Scottish Parliament for the Labour Party introduced the Period Products (Free Provision) (Scotland) Bill (a draft law). There is nothing particularly unusual about this. After all, it is the job of our parliamentarians to make laws on behalf of the people of Scotland.

The purpose of this Bill captured the imagination of many and gained quite a bit of media attention due to its objective: the eradication of one of the sources of poverty endured by many women on low incomes in Scotland. In short, Ms Lennon’s Bill would ensure that women were given free access to period products.

Although the Bill’s objective was universally praised, the Scottish Government expressed doubts about its financial sustainability – and Ms Lennon, after all, is an opposition and backbench member of Parliament. Politics is politics after all.

Now, after some time in the equivalent of the parliamentary doldrums, the Bill has been given a new lease of life having been approved (the main principles of the proposal in any case) by a majority of Ms Lennon’s Holyrood colleagues.

That is not to say that the Bill will be passed as it was originally introduced to Parliament last April. It is more than likely that it will be subject to intense scrutiny by parliamentary committee and a range of amendments will be proposed.

What the shape of any eventual law will look like is anyone’s guess at this stage, but all credit to Ms Lennon who has persisted in pushing forward this important issue and keeping it firmly in the spotlight.

This is nothing new: most Bills will be subject to amendments as they undergo the scrutiny of the legislature. This is part and parcel of parliamentary life; compromises will have to be made in order that a Bill can be placed on the statute books i.e. can move beyond a mere proposal to something more concrete and lasting – an Act of Parliament.

An info graphic showing the current progress of the Bill (now at Stage 2) can be seen below: