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).
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 aunion 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:
Could supporters of independence for Scotland succeed in their objective without the need to hold a second independence referendum or IndyRef2? Let me put it another way: could Scottish independence be secured without the need for the U.K. Government and Parliament to grant a Section 30 order under the Scotland Act 1998?
Joanna Cherry, a leading Scottish National Party MP and QC certainly seems to think so and, as a highly competent member of the Scottish Bar, she has a legal precedent to hand.
The precedent in question is the Anglo-Irish Treaty of which led to the creation of the 26 County Irish Free State and the 6 County State of Northern Ireland. Coincidentally, it was actually the 99th anniversary of the Treaty being ratified by the Irish Parliament on 7 January 1922.
A link to an article in The Scotsman about Joanna Cherry’s views on the Anglo-Irish Treaty can be found below:
As a precedent, the Treaty is not, however, entirely unproblematic: it is an error to believe that a truly, independent Irish Republic was created in 1922 as a result of the Treaty. It was, in fact, not until 1949 that Éamon de Valera, Prime Minister (Taoiseach) of the Irish Free State felt sufficiently confident to break decisively with the United Kingdom. By this point, Britain had lost its position to the United States of America as the leading global power and former British Imperial possessions, such as the Indian Empire (modern day Bangladesh, India, Pakistan and Sri Lanka), had been granted independence.
More controversially, the Treaty was the direct result of Irish Republicans pursuing an armed struggle against the United Kingdom between 1919 and 1921 (the War of Independence) which had forced the British to come to the negotiating table. Although, it has to be conceded that, many members of the United Nations have gained their independence fully or partially as a result of armed struggles.
Arguably, in 1918-19, the United Kingdom was still the pre-eminent global power – it had emerged as a victor in the First World War and with an enlarged Empire.
That said, this situation hid considerable political and economic weaknesses on the part of the British; and Republican commanders, like Michael Collins and Éamon de Valera, recognised this and were determined to take full advantage in order to further Irish independence. The Anglo-Irish Treaty from the British perspective was, therefore, a considerable concession to Irish nationalism.
Where Collins and de Valera parted company was in their reading of where the Treaty might eventually lead in the immediate aftermath of the War of Independence. The Pro-Treaty Republicans (led by Collins) were convinced that this was the best outcome that they could hope to achieve in the current circumstances whereas the Anti-Treaty Republicans (led by de Valera) felt that one more push would secure the Irish Republic for which they yearned.
Michael Collins, de Valera’s comrade and later bitter enemy, made a pragmatic choice to back the Treaty (he had, after all, put his signature to the document).
Collins’ principal argument was that, although the Treaty fell far short of Republican demands, it provided the space to obtain greater freedom for Ireland. His beliefs would ultimately cost him his life, but his Pro-Treaty stance would prevail and would define the Island of Ireland politically and geographically for the next 100 years (the Island of Ireland is still split to this very day).
De Valera and his supporters were outraged because the Treaty represented a humiliation and a betrayal of their purist nationalist vision of a united Republic of Ireland comprising all 32 Counties.
In modern constitutional terms, Collins would be regarded as a gradualist. As a matter of political necessity, de Valera too would be forced to adopt a gradualist approach in his quest for the Holy Grail of Irish independence, but this would only come about following a crushing military defeat of the Anti-Treaty camp at the hands of Free State Forces.
The repentant revolutionary
In 1926, de Valera made a significant decision by abandoning the armed struggle by entering Irish constitutional politics when he established Fianna Fáil. Until that time, de Valera and his Republican supporters had followed a policy of absentionism whereby they refused to take seats in the Irish Parliament. For the nearly the next quarter of a century, de Valera and Fianna Fáil would work towards the creation of an Irish Republic using the constitutional apparatus of the Free State.
This dramatic change of strategy was due, in a large part, to de Valera’s defeat in the Irish Civil War (1922-23) where opposing wings of the Irish Republican Army and Sinn Fein had split and quarrelled (violently) in their response to the Anglo-Irish Treaty.
A constitutional anomaly?
According to the eminent Irish historian, Tim Pat Coogan*, the Irish Free State was something of a constitutional anomaly in the sense that it had an imprecise legal status when compared to the other self-governing Dominions of the British Empire such as Australia, Canada, New Zealand and South Africa.
According to David Lloyd George, Prime Minister of the United Kingdom and one of the signatories of the Anglo-Irish Treaty, the term ‘Dominion’ was “something that has never been defined by Act of Parliament, even in this country, and yet it works perfectly.” (Mansergh, 1934**)
The Irish people would not share Lloyd George’s confident assertion: they knew what the Free State was not i.e. the free and independent Irish Republic for which many of them had fought. Lloyd George and his British co-signatory, Winston Churchill, were fiercely opposed to the creation of anything resembling an Irish Republic.
In any event, whatever its precise legal status, the creation of the Irish State had come about in profoundly different (not to say stark) circumstances from the other Dominions of the British Empire. These other Dominions had come into existence by way of an evolutionary process marked by incremental change. There can be no doubt that the Irish Free State had been created as a result of a violent revolutionary struggle.
The territory of the Free State would initially comprise all 32 Irish Counties, but the 6 Northern Counties with their Protestant and Unionist majorities speedily exercised their right to secede from the new State. The partition of the Island of Ireland, of course, continues to this very day.
Equally distasteful to Republican sentiments was the fact that King George V and his successors would continue to be King in Ireland (the Irish Head of State). Still more galling for Irish Republicans, those elected members of Dáil Éireann (the lower House of the Irish Parliament) and Seanad Éireann (the upper House of Parliament) would have to take a personal oath of allegiance to George V and his successors:
Article 17.
The oath to be taken by members of the Oireachtas [Irish National Parliament] shall be in the following form:—
I _______________ do solemnly swear true faith and allegiance to the Constitution of the Irish Free State as by law established, and that I will be faithful to H. M. King George V., his heirs and successors by law in virtue of the common citizenship of Ireland with Great Britain and her adherence to and membership of the group of nations forming the British Commonwealth of Nations.
Such oath shall be taken and subscribed by every member of the Oireachtas before taking his seat therein before the Representative of the Crown or some other person authorised by him.
The King and his successors would be represented at official functions by a Governor General. It is not an understatement to say that the British Crown was an anathema to Irish Republicans – irrespective of their views on the Treaty.
There would also be a continuing British military presence on Irish Free State territory, namely, the 3 naval bases of Fort Dunree (County Donegal) and Bere and Spike Islands (County Cork). The Free State Government would eventually gain control of these bases in 1938 – a fact which made Winston Churchill, then a backbench Conservative MP, apoplectic. He would argue, not without justification, that these bases would be vitally important for Britain in the event of any future hostilities with Nazi Germany.
Fort Dunree on Lough Swilly, Donegal and its superb, natural anchorage – Photo by Evan McMenamin on Unsplash
All of the above represented significant obstacles to the creation of an independent Irish State and it is often now forgotten that it was the genius of de Valera who used the constitutional architecture of the Treaty to undermine British influence in the 26 Southern Irish Counties.
Conclusion
In 1922, the prospects of the creation of an Irish Republic were by no means certain. The Irish Free State, created by the Anglo-Irish Treaty, was undoubtedly a constitutional anomaly.
Éamon de Valera was forced to make the long journey from revolutionary firebrand to establishment politician. This was due, in a large part, to his defeat in the Irish Civil War (1922-23) where opposing wings of the Irish Republican Army and Sinn Fein had split and quarrelled (violently) in their response to the Anglo-Irish Treaty.
It would take considerable skill and patience on the part of de Valera and his supporters in Fianna Fáil to achieve the goal of an Irish Republic. It should be recalled that it was only in 1949 that an Irish Republic (minus the 6 Northern Counties) came into existence.
These are factors which supporters of Scottish Independence who are attracted to Joanna Cherry’s argument would be well advised to study in detail. Cherry advances an interesting precedent, but it is not without its problems. The Anglo-Irish Treaty of 1921 does not provide a straight road to Scottish independence. There were many twists and turns in this road before a sovereign Irish Republic emerged and, even, then this was a lesser entity due to the decision by the Northern Six Counties to remain part of the U.K.
Further reading:
The Irish Civil War by Tim Pat Coogan and George Morrison (Weidenfeld & Nicolson, 1998)
The Irish Free State: Its Government and its Politics by Nicholas Mansergh (George Allen & Unwin, 1934). Available at:
Both is the answer to the question posed by the above Blog title.
And to what does the question refer? The British General Election results of Thursday 12 December 2019.
But before I venture some thoughts about what last Thursday’s results might mean for IndyRef2, I’d like to go back to the UK General Election of 1992. It may be instructive to remember the words of Jim Sillars, a then prominent Scottish Nationalist politician and Westminster Parliamentarian:
‘We have not yet resolved the paradox of when Scotland votes for the Labour Party and England votes for the Tories [the Conservative Party].’
Returning to the events of the General Election just past, Sillars’ remarks can be easily updated to read what happens when Scotland votes for the Scottish Nationalist Party, but England votes for the Conservatives?
Like all good questions, there is no easy answer to it. Yes, Boris Johnson MP is now the Prime Minister of a Conservative Party majority UK Government. Brexit will now almost get done (excuse the poor English – not mine).
And yet, there may be trouble ahead.
As predicted, the UK Government has restated its opposition to Indyref2.
Yesterday, during Sophy Ridge’s Show on Sky News, Michael Gove MP, a senior UK Cabinet Minister, rejected the idea of a second independence referendum (please see the link below):
The last Referendum on the question of Scottish Independence (held on Thursday 18 September 2014) too place because the then UK Government and Parliament gave their consent. This constitutional arrangement became known as the Edinburgh (St Andrew’s) Agreement of 15 October 2012 and operated under the auspices of Section 30 of the Scotland Act 1998.
Secondly, what’s the political position and where does the Scottish Government go from here?
This is about the political long game and the Scottish Government is attempting to shame the UK Government into giving it the right to hold a second referendum.
Scotland’s First Minister is pointing to her democratic mandate from the Scottish electorate after the SNP increased its share of Westminster parliamentary seats from 35 to 48. Any refusal on part the UK Government to approve another referendum can and will be portrayed as a deliberate denial of the Scottish people’s fundamental democratic rights.
I often have to remind my students that when we elect a Parliament, we are appointing legislators (law makers) – as well as politicians.
Mr Johnson is clearly political master of all he surveys …
… for now at least.
Both Governments are clearly playing to their respective constituencies and it will be interesting to see if a greater impetus for Scottish independence begins to build north of the border.
The next Scottish parliamentary elections in May 2021 will provide some idea of the strength (or weakness) of the pro-independence cause.
Currently, despite the SNP’s electoral successes last Thursday night, Nicola Sturgeon and her Government certainly have the weaker hand, but in a political poker game of high stakes (the survival or dissolution of the 300 year old union between Scotland and England), high politics may well yet overcome dry, legal arguments.
As the German statesman, Otto von Bismarck noted:
‘Politicsis the art of the possible.’
The old statesman also remarked:
‘Politics is not a science, as the professors are apt to suppose. It is an art.’
Who will be the more artful politician: Nicola Sturgeon or Boris Johnson? Time will tell.
Can you contain your excitement? Indyref2 (or a second Scottish Independence Referendum) is definitely on the horizon…
… except that it isn’t, but this is the impression given by sections of the Scottish and UK media.
On 28 May 2019, Michael Russell MSP, a senior Scottish Government Minister introduced the Referendums (Scotland) Bill in the Scottish Parliament.
Does this pave the way for more constitutional upheaval (as if Brexit woes aren’t enough at the moment?) across Scotland and the rest of the UK?
Well … actually, no it doesn’t.
Are we on the cusp of a political event approximating the Apocalypse or the Second Coming? Hardly.
From a cursory glance of the Bill and its accompanying documents, it’s very hard to see any mention of Indyref2. In fact, the aims of the Bill are incredibly modest:
“This Bill provides a legislative framework for referendums. It provides a power for the Scottish Ministers, by regulations, to provide for the holding of referendums throughout Scotland within the legislative competence of the Scottish Parliament.”[my emphasis]
Critically, even Ken MacIntosh MSP, Presiding Officer of the Scottish Parliament has stated:
“In my view, the provisions of the Referendums (Scotland) Bill would be within the legislative competence of the Scottish Parliament.”
The Bill is very limited in scope (or timid depending upon your viewpoint). There’s nothing problematic about a future Scottish Government wishing to consult the people of Scotland through the medium of direct democracy (i.e. a referendum) on issues that are firmly within the legislative competence of the Scottish Parliament. Off the top of my head, I can think of several matters which might be suitable for direct democracy e.g. local government, NHS reorganisation, Police and Fire Services reform; education and more thorny, ethical and moral matters such as abortion and euthanasia.
In terms of the Scotland Acts 1998 and 2016, the Scottish Parliament is confined to legislating upon matters or issues which are deemed to be “devolved”. It is not permitted to legislate upon matters which are deemed to be “reserved” to the Westminster Parliament.
In a previous blog (“Bring it on! (or Indyref2?)” published on 26 April 2019), I emphasised that the last Referendum on the question of Scottish Independence (held on Thursday 18 September 2014) was permitted to go ahead because the then UK Government and Parliament gave their consent. This constitutional arrangement became known as the Edinburgh Agreement of 15 October 2012 and operated under the auspices of Section 30 of the Scotland Act 1998.
Currently, it does not seem likely that the UK Government and the next British Prime Minister (who we know will come from the Conservative Westminster Parliamentary Party) are likely to agree to Indyref2 going ahead.
So, what does the Scottish Government hope to achieve?
Be in no doubt: this is about the political long game and the Scottish Government is attempting to shame the UK Government into giving it the right to hold a second referendum.
Scotland’s First Minister, Nicola Sturgeon MSP is calculating that she can portray the refusal of the UK Government to approve another referendum as a deliberate denial of the Scottish people’s fundamental democratic rights. If a UK led Conservative Government becomes even more unpopular, SNP activists and other independence supporters are hoping that it will become politically costly for the Conservatives to continue to oppose a second referendum.
Where will it all end? At the moment, who can really predict the future with any degree of certainty.
Interesting times indeed!
An infographic (taken from the Scottish Parliament’s website) showing the introduction of the Referendums (Scotland) Bill can be seen below:
The subsequent progress of the Bill can be seen in the info graphic below:
A link to the Bill and its accompanying documents can be found below:
The Scottish government wants to hold a new independence referendum in the second half of 2020.
Postscript
On Friday 6 December 2019, 6 days before the UK General Election, Nicola Sturgeon MSP, First Minister of Scotland conceded that a legal Indyref2 was a ‘hard fact’ that some supporters of Scottish independence would have to accept.
What Ms Sturgeon was alluding to was a question of fact as we like to say in the law: the power to hold a future referendum on Scottish independence lies with the Westminster or UK Parliament in terms of Section 30 of the Scotland Act 1998.
Boris Johnson, the current UK Prime Minister has emphatically ruled out any second independence referendum if a majority Conservative Party Government is re-elected next Thursday.
Some Scottish independence activists have advocated a Catalan style independence referendum i.e. going ahead with a poll without legal authority. Understandably, this not a popular option where the First Minister is concerned when one remembers the chaotic (not to say) violent events in October 2017 during the independence referendum in Catalunya
A link to a discussion on the BBC website about the tensions over tactics in the Scottish pro-independence movement can be found below:
Well, there you have it: Scotland’s worst kept political secret. First Minster, Nicola Sturgeon announced this week at Holyrood that she wishes to bring legislation forward to hold a second, Scottish Independence referendum sometime in 2021.
The trouble is that this is a matter reserved to the Westminster or UK Parliament in terms of the Scotland Acts 1998 and 2016 i.e. it is a constitutional matter. In other words, the UK Parliament must agree to any request from the Scottish Parliament to hold another referendum. The referendum of 2014 was permitted because the then UK Prime Minister, David Cameron agreed to it. This was known as the Edinburgh Agreement signed by representatives of both the Scottish and UK Governments on 15 October 2012. Under Section 30 of the Scotland Act 1998, a legislative instrument (known as an Order-in-Council) was drafted permitting the referendum to proceed on terms agreed by both Governments.
Fast forward 5 years from the last independence referendum and it would seem that any permission from the UK Government, let alone the UK Parliament is most unlikely. In fact, David Liddington MP, Prime Minister Theresa May’s de facto Deputy, hit back almost immediately in response to Ms Sturgeon’s announcement to state that permission for a referendum would not be forthcoming.
Now, Mr Liddington is correct in strict legal terms. The future territorial integrity of the United Kingdom is a matter reserved to the national parliament at Westminster – not a local parliament such as Holyrood.
And yet … this is where politics rather than strict legal interpretations might come into play. The current UK Government ‘led’ by Theresa May is weak, divided, obsessed with Brexit and lacking a majority in the House of Commons. It has a limited shelf-life. This is an administration which no longer speaks with any real authority on the great political questions of our age (and that’s just the opinion of most Conservative MPs).
Mr Liddington’s refusal may well come back to haunt the Conservatives both in Scotland and nationally. Expect Ms Sturgeon to make maximum political capital here by saying that this is a deliberate attempt to thwart the political will of the Scottish people. At the last UK General Election (8 June 2017), the Conservative Party made impressive gains in the number of Scottish Westminster seats. Since then, with the mishandling of Brexit, continuing opposition to an independence referendum might mean that these electoral advances could be undermined, even reversed. It’s by no means certain that a future Jeremy Corbyn led UK Government (not a foregone conclusion) will favour a second independence referendum. There are many factors that still have to be played out here.
Ms Sturgeon (or one of her Ministers) could introduce a Referendum Bill to Holyrood, but would this be a credible legal move? Almost certainly not: Holyrood’s Presiding Officer would (rightly) be under huge pressure to declare the Bill as not having the necessary legislative competence in terms of the Scotland Acts. The Bill would have tremendous symbolic power and would almost certainly fire up independence supporters who are itching for IndyRef2.
Never mind the legal arguments, expect the action to take place on the political front.
Please find below a number of links to articles discussing the prospect of IndyRef2:
In a previous post published on 22 January 2019 (Philosophical beliefs (or you’d better believe it!), I drew attention to the ongoing of Employment Tribunal case of Christopher McEleny against the Ministry of Defence.
Mr McEleny is an SNP councillor for Inverclyde and some time ago he ran for the Party’s Deputy Leadership post. In his day job, Mr McEleny was employed as an electrician by the UK Ministry of Defence at one of its sites in Beith, Ayrshire.
When his employer found out that Mr McEleny was running for the Deputy Leadership post, he claims that was pulled in to a meeting and grilled about his views on Trident amongst other things. He also had his security clearance revoked and was suspended. Although he was reinstated, Mr McEleny later decided to leave his job with the MOD.
Mr McEleny brought a claim under Section 10 of the Equality Act 2010 alleging that he had suffered direct discrimination on the grounds of his philosophical beliefs i.e. his belief in Scottish independence as a concept which forms and influences many of his decisions in life.
At a Preliminary Hearing in July 2018, the Employment Tribunal Judge ruled that belief in Scottish independence could constitute a philosophical belief which was capable of being protected under the Equality Act 2010. It should be noted that Mr McEleny was able to demonstrate that many of the decisions that he makes and the ways in which he chooses to live his life are firmly based on his belief in Scottish independence. It is important to appreciate that him merely being a member of the SNP was not enough: you have demonstrate that you live by your beliefs.
The Ministry of Defence disagreed with this finding and appealed. Employment Tribunal Frances Eccles has now considered the appeal and has decided that a belief in Scottish independence can constitute a protected characteristic for the purposes of the Equality Act 2010.
Mr McEleny’s claim must still proceed to a full Employment Tribunal Hearing in which he will have to demonstrate that he was subjected to unlawful discrimination by reason of his philosophical beliefs.
A link to an article about the latest turn in Mr McEleny’s case can be found below:
Seán Crossan's Scots Law 