Law or high politics?

Photo by Element5 Digital on Unsplash

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):

http://news.sky.com/story/michael-gove-absolutely-rules-out-second-scottish-independence-referendum-11887189

Nicola Sturgeon MSP, First Minister of Scotland quickly responded by stating that Scotland ‘cannot be imprisoned’ within the UK:

https://www.bbc.co.uk/news/av/election-2019-50801743/nicola-sturgeon-scotland-cannot-be-imprisoned-in-uk

So this is where law and high politics collide.

Firstly, what’s the legal position?

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:

Politics is 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.

Related Blog articles:

A step closer? Indyref2?

https://seancrossansscotslaw.com/2019/06/02/a-step-closer-indyref2/

Bring it on! (or Indeyref2?)

https://seancrossansscotslaw.com/2019/04/26/bring-it-on-or-indyref2/

Copyright Seán J Crossan, 16 December 2019

A step closer? Indyref2?

Photo by Seán J Crossan

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:

https://www.parliament.scot/parliamentarybusiness/Bills/111844.aspx

Finally, you can find links to some news articles below which discuss the implications of the Bill:

https://news.sky.com/story/nicola-sturgeon-clashes-with-tory-hopefuls-over-second-independence-referendum-11731033

Indyref2 ‘framework’ bill published at Holyrood

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:

General election 2019: Sturgeon says legal indyref2 is a ‘hard truth’

The first minister says the only way to win a second indyref is for any vote to be legally-binding.

Copyright Seán J Crossan, 3 June and 6 December 2019

Bring it on! (or IndyRef2?)

Photo by Andrew Buchanan on Unsplash

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:

https://wingsoverscotland.com/a-plan-of-little-action/#more-109725

Nicola Sturgeon calls for indyref2 by 2021 Holyrood elections

Scottish independence: UK government ‘will not grant indyref2 consent’

Copyright Seán J Crossan, 26 April 2019

Braveheart?

Photo by Petia Koleva on Unsplash

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:

https://www.holyrood.com/articles/news/judge-upholds-ruling-belief-independence-protected-under-equality-law-religion

Copyright – Seán J Crossan, 12 March 2019