Independence Ambassadors Politics ScotRef

What now that Boris has said No to a Scottish Independence Referendum?

The UK Prime Minister, Boris Johnson, has written to the Scottish First Minister, Nicola Sturgeon, to refuse her demand for Westminster to transfer the power to hold a second independence referendum to the Scottish parliament.  The letter contains (attached) a clear falsehood that Nicola Sturgeon promised that the 2014 referendum would be a once in a lifetime opportunity – she said that she thought it would be, but made no such promise.  That type of bluster and falsehood may win cheers in Westminster, but it will go down very badly with voters in Scotland.

The Scottish First Minister responded that:  Johnson’s formal refusal of her request for a referendum to be held later this year was “predictable but also unsustainable and self-defeating”, and insisted that “Scotland will have the right to choose”.

Following the 2019 General election result, where the SNP won a super majority of 80% of the Scottish Westminster seats, the Scottish First Minister sought the permanent transfer of the powers to hold a referendum from Westminster to the Scottish Parliament. Her goal is to deliver her mandate to hold a second independence referendum after the UK has left the EU on January 31st 2020. The transfer of powers would mean that the result of a new referendum on Scottish independence would have legal status. Therefore, it would not be a Catalan style referendum, as it would be recognised by the international community as a valid result – that is important.

Calling for a 2020 referendum puts the SNP in a better position to encourage pro-independence voters to support them, and steal independence supporting Labour voters, just at a time when Labour in Scotland are actively discussing supporting a second referendum. Making the request, knowing that the likely result would be a denial of their clear mandate, puts the Conservative Prime Minister on the wrong side of democracy. A clever move, which leaves the unionist cause trying to defend an extreme unionist position of saying No to any independence referendum, despite the nation itself moving in favour of one and recognising the democratic mandate won by the SNP.

The SNP message is nuanced, however. It is not based on a full-on clarion call of “let’s be independent”, but rather, on Scotland’s “right to choose”, which is more widely accepted and harder to argue against. This is designed to play well with undecided voters, especially those that do not like the idea of leaving the EU with the rest of the UK. Can Nicola Sturgeon deliver a 2020 independence referendum as she is claiming? Well, the answer to that is still maybe. However, it has always been doubtful and a legal challenge is now almost inevitable.

So what are the Scottish First Minister’s options?

There are two big clues to this. Firstly, in the SNP manifesto which states: “In order to put a referendum beyond legal challenge, we will seek a transfer of power, such as a section 30 order under The Scotland Act”, the keywords are “such as”. If the UK Government says no to a section 30, the SNP will seek alternative legal routes. The FM herself stated that “the matter has “never been tested in court.”

Joanna Cherry MP outside the Court of Session in Edinburgh

We have already reached a point in UK politics where the UK Supreme Court had to overrule the prorogation of the Commons following the SNP’s Joanna Cherry’s (and others) legal action. Therefore, a legal challenge to force the legal status of indyref2 is not unreasonable and would fit with the “such as a section 30 order” statement.

A legal challenge would rest on the status of Scotland as a nation, which is a member of a union of nations, and so, has the right to decide its own future. To state that Scotland does not have the right to self-determination, the UK Government would have to argue that Scotland is not a nation and that Scotland ceased to exist with the Act of Union. This would be unacceptable to most Scots.

If the UK Government goes to court and loses, then Holyrood can hold a legal referendum that would be accepted by the international community. Even if Westminster refused to accept the result, Holyrood would be able to action the result and become legally independent. On the other hand, if the UK Government were to win such a court case, it would also mean, by default, that England ceased to exist with the Act of Union. If the question is “what would drive support for Scottish independence to 80% in both Scotland and England?”, then there is your answer.

The UK Supreme Court

The UK Supreme Court but can it overturn Scots Law?

The legal challenge, however, would not start in the UK Supreme Court, but Scotland’s highest court – The Court of Session. This is the court that ruled that the prorogation of Parliament was unlawful, and by doing so, forced the UK Supreme Court to reopen parliament. That was a test case because the UK Supreme Court doesn’t outrank the Court of Session on Scots law. Therefore, if an act is illegal under Scottish law, even if it were legal under English law, that act can’t apply to Scotland as appeals are held under Scots law.

The International Court of Justice settles disputes between UN member states.

If the Court of Session and the Supreme Court disagree it gets tricky. There is only one court that could possibly have any authority over such a constitutional issue, and that is the International Court of Justice in the Hague. As part of the UN, it would first have to decide if Scotland is a member of the UN by virtue of being a nation-state – a member of a multi-nation state that was a UN member. If it agrees that Scotland is a nation, then it could hear the dispute. However, having agreed Scotland is a nation-state, it would then have to overrule the UK Supreme Court, as Article 1 of the UN charter states that “every peoples have a right to self-determination”.

Now we would get The Claim of Right

The Claim of Right, an Act first passed by the old Parliament of Scotland in 1689, but updated and accepted by both Holyrood and Westminster in recent years.

The claim of Right is a key document, defining of British and Scottish constitutional law. In layman’s terms, it states that Scotland remains a nation and the Scottish people retain their right to choose the best form of government for themselves. On July 4th 2018, the SNP Westminster leader, Ian Blackford MP, used an opposition day motion to put the Claim of Right to a vote in Westminster. Despite a colourful debate, with complaints and interruptions, it was passed by the UK Government, without a division (unanimously). That Westminster vote was non-binding, in that its status did not set a UK legally binding precedent.

So, it has to be tested in the Scottish Court of Session, which I would expect to confirm the claim. It would then need to be appealed to the UK Supreme Court, putting it in an impossible situation. The UK Supreme Court does not have the power to remove Scotland’s nation status. The UK Government would be foolish to make that case as it means England also ceases to exist as a nation or that Scotland is a legal colony of England.

So, essentially we see why Theresa May didn’t say she would say no to a Scottish independence referendum. She knew she couldn’t really, and cleverly said: “Now is not the time”. They cannot defend saying no, but they can defend saying not yet. Boris Johnson has just proven he isn’t as clever as Theresa May and that’s a very scary thought.

Ireland can hold a referendum every seven years.

However, there is a precedent here that limits the ability to eternally say not yet. The Scotland Act (that set up the Scottish parliament), does not mention referendums. It does state, however, that any issue not clearly reserved is, by default, devolved to Holyrood. Therefore, the Scottish Government can hold a referendum, it is just the legal status that is up for grabs. In Ireland and Wales, however, the authority of their parliaments to hold referenda was specifically restricted, indicating the lack of any claim of right in existence among those nations.

However, the Good Friday agreement sets a precedent. It allows for Irish re-unification referenda once every seven years, if all the people of Ireland support one being held. Seven years is the precedent. This is possibly why Labour has realised it is unwise to say no to a second referendum and are pressing the case that a SNP majority in the Scottish Elections in 2021 (seven years after 2014) would trigger a section 30 order.

Labour is aware that the Scottish Parliament’s voting system is designed to stop the SNP gaining a majority, a goal it has only once failed to achieve in the face of 3 SNP victories – the one time the SNP managed an independence majority alone was due to the special set of circumstances that followed indyref1.  Boris Johnson has just handed the SNP a club to beat the unionist parties with and Labour are in disarray. Therefore, a SNP majority in 2021 now becomes far more likely and the manifesto pledge will not be to hold a referendum but to begin negotiations on Scottish independence if a referendum is not forthcoming after the legal battle. Make no mistake the Scottish government have to demand the second referendum, they can’t ask for a new mandate in 2021 without using or attempting to use the last mandate. They also knew that Johnson would say no and in fact, their end game is significantly more achievable because Johnson said no.

About the author

Gordon MacIntyre-Kemp

Gordon MacIntyre-Kemp is the Founder and Chief Executive of Business for Scotland. Before becoming CEO of Business for Scotland he ran a small social media and sales & marketing consultancy.

With a degree in business, marketing and economics, Gordon has worked as an economic development planning professional, and in marketing roles specialising in pricing modelling and promotional evaluation for global companies (including P&G).

Gordon benefits (not suffers) from dyslexia, and is a proponent of the emerging New Economics School. Gordon contributes articles to Business for Scotland, The National and The Huffington Post.

16 Comments

  • I’m not a lawyer but I got this online be checked
    In 1953, a still-remembered legal action in the
    Court of Session attempted to stop the Queen
    being called Elizabeth II north of the border,
    on the basis that she is Scotland’s first Liz.
    The Queen can call herself anything she likes
    as far as I’m concerned, which is basically
    what the judgment said. But the Lord
    President, Thomas Cooper, who had been a
    Unionist MP in Edinburgh, made important
    points about the British constitution. First, he
    said that “the unlimited sovereignty of
    parliament is a distinctively English principle
    which has no counterpart in Scottish
    constitutional law”.

    Second, observing that the Union
    extinguished the parliaments of Scotland and
    England and replaced them with a new one,
    Cooper dismissed the notion that what
    “happened in 1707 was that Scottish
    representatives were admitted to the
    parliament of England. That is not what was
    done”. Yet in the three centuries since then,
    most UK governments have behaved as if that
    is exactly what was done.
    Iam supportive of independent, just food for thought

  • ive debated too many professors and authorities on the constitutional framework, all anoraks like those here understand it.

    what BfS is portraying here is not devolved vs reserved argument. this UK plc has only ONE constitutional framework, the treaties of 1706, 1707 and the articles of union 1707, known as the treaties of union 1707 to most. or the “Union”.

    Mr Kemp is RIGHT. the political machinations and rhetoric and arguments mean NOTHING in a court of LAW.

    and under scots law, UK LAW AND the treaties of Union 1707, scotlands claim of right over the monarch (claim of right 1689 Scotland), who’s crown IN parliament (Westminster) places scotlands sovereignty in the MPs elected to “that” parliament, as per the treaties of Union 1707 and all subsequent legislations …. which all must adhere to the basic tenet of the treaty of Union (for all time coming) “pursuant to the claim of right”……

    scots as per our sovereign right, under c28 of the claim of right 1689 protected under the treaties and acts of union 1707 for all time coming after the union, elected Scottish MPs on an explicit mandate to seize the powers of holding referenda to a place other than Westminster, IN a Westminster election!

    the SNP shall follow the democratic protocols of the UK plc reserved and devolved structures of political discourse, and request under sewel and the sch5 of SA 1998 a section 30 order on devolving the power to legally agree to and hold, a legally binding fair honest referendum on Scottish independence from this one nation Brexit Bojo and Co DisUnited Kingdom……. when those democratic avenues have been exhausted, the LAST vested sovereign power of the people, with a vast majority of MP seats in Scotland supporting their stance (via ELECTION RESULTS) is c.28 of the claim of right 1689, ….. but that’s for the ICJ, and the UN councils to consider, when scotlands MPs take Boris and Co to court. here is c.28 for your amusement :-

    That for redress of all greivances and for the amending strenthneing and preserveing of the lawes Parliaments ought to be frequently called and allowed to sit and the freedom of speech and debate secured to the members

    this would be considered the reconvening of the old pre union Scottish parliament, these days it would be considered a national convention of all citizens and MPs, Msps, MEPs and councillors….. but they are BY ACTS ANTREATY OF UNION “EMPOWERED” to seek redress of all greivances/ protect laws of Scotland if so deemed by the electorate for example in a UK ELECTION.

    as I said dear pedant unionists and britnats…. see you in court.
    please don’t use democracy in your debates….. you aren’t describing democracy.

    • Thank you Iain Hamilton for a clear and concise explanation of some of the intricacies of the act of union. Alas too many of those of a unionist ilk , either lack the will or wit to understand what a union entails and seem to work under a premise that we are somehow owned and thus subservient to the Westminster English parliament. The election of the despicable Johnson will I hope be the final nail in the coffin of a union that has ill served Scotland .

      The level of support of the SNP at the moment along with the influx of a significant majority of the 16-18yr old voters { prevented from participation either regarding the EU vote or UK elections}. I suspect that despite the branch offices protestations that given the chance of who knows how many years under a Johnson led Tory government , will think about independence far more than in the past.

  • So Gordon, How long do we give the next PM to answer the section 30 request? In the case of Corbyn can we still take it to court if he doesn’t agree with the FM’s timing of indyref2?

  • hi. i liked your article but it reminded me of one of the first Scotland Analysis papers the UK gov put out. On page 75 of “Annex A Opinion: Referendum on the Independence of Scotland – International Law Aspects” written by Professor James Crawford SC and Professor Alan Boyle.
    it says

    “37. For the purpose of this advice, it is not necessary to decide between these two views of the union of 1707. Whether or not England was also extinguished by the union, Scotland certainly was extinguished as a matter of international law, by merger either into an enlarged and renamed England or into an entirely new state.”

    So i aspect if we do mount a legal challenge, this will be the UK’s position. That somehow England wasnt extinguished but Scotland defo was. I think this is ridiculous and is challengable.
    cheers

    • To argue that position is to lose in the court of public opinion regardless of what the judge actually rules.

    • Yes, that is the official legal view prepared by the UK government before IndyRef1. I found it incredible that they would voice and endorse such an obviously chauvinistic view of British ‘history’ but there it is in black and white.

    • Well that is one opinion. If Scotland ceased to exist then there is no union. The fact that Scots Law is recognised by the UK Supreme Court would suggest that it recognises Scotland exists and the Bill of Right would indicate that Scotland exists and has a right to decide how it should be governed as distinct from England.

  • A section 30 is not what you state. You are giving a common interpretation.
    Section actually says nothing other that the Queen will recognise the right of the people of Scotland to be sovereign and it would be nice to be asked to give the ok to that.
    In effect a section 30 is asking us the Scottish people to defer to a UK sovereign and parliament which we really don’t need to.
    So whether doing that and a referendum as a means to Independence, or just declaring it with a majority of SNP MPs is academic.
    Remember this election is being fought on vote SNP and ypu vote to give us the right to be a separate nation in the world.
    Recognition is important but to say if we don’t do a referendum we are like Catalonia is scare mongering and factually incorrect.
    The route I outline is supported by a large number of Yes activists and SNP members.
    I will leave it there.

    • My description of section 30 is adequate for the purpose of the article. By joining the Union and also voting NO Scotland has in the eyes of the international community to defer to the UK parliament. Before any other stance such as UDI is even remotely considered we must go down the democratic referendum route and make our case to the international community. Yes, many supporters on independence support the route you outline but the SNP and the Greens do not and your supporters represent 15% or less of the population so it’s not even worth considering at this juncture.

      • I considered long and hard about whether to respond but, given your comments above, feel obliged to make some statement.

        First, in your reply to Ian McCubbin’s comment when you say “your supporters represent 15% or less of the population”, how do you arrive at that figure? Did you count them? The SNP have deliberately quashed all discussion of constitutional matters and both national and international levels. I should know. We made representations to parliament and left the door wide open internationally for them to consult but they resisted all attempts to open dialogue. Under those circumstances, I find it quite encouraging that as many as 15% of the population have taken the time and trouble to educate themselves.

        I attach, for your reference, a copy of international law on secession, also a copy of two relevant paragraphs of protocols which I drafted – primarily to cover cases where determination was rendered impossible by means accepted in international law:

        5.5 Consistent with this general approach, international law has not treated the legality of the act of secession under the internal law of the predecessor State as determining the effect of that act on the international plane. In most cases of secession, of course, the predecessor State‟s law will not have been complied with: that is true almost as a matter of definition.
        5.6 Nor is compliance with the law of the predecessor State a condition for the declaration of independence to be recognised by third States, if other conditions for recognition are fulfilled. The conditions do not include compliance with the internal legal requirements of the predecessor State. Otherwise the international legality of a secession would be predetermined by the very system of internal law called in question by the circumstances in which the secession is occurring.
        5.7 For the same reason, the constitutional authority of the seceding entity to proclaim independence within the predecessor State is not determinative as a matter of international law. In most if not all cases, provincial or regional authorities will lack the constitutional authority to secede. The act of secession is not thereby excluded. Moreover, representative institutions may legitimately act, and seek to reflect the views of their constituents, beyond the scope of already conferred power.

        The significance of the right of self-determination in the recent practice of recognition of the independence of new states is limited to the fact that, in addition to the usual requirements, recognition depends on an authentic declaration by the state, nation or recognisable national group concerned of its will to be recognised as an independent state. It has to be understood that the form that authenticity takes has to be assessed on an individual basis and the purpose of the complete schedule of applicable protocols in section B (i,ii,& iii) is to delineate the basis for each individual case.

        As of the date of this addendum, (21st day of September 2001), some 62 different national and/or ethnic groups have expressed a wish for independence or some form of authoritative autonomy. This is to establish overriding conditions which may conflict with conditions set out in schedule B or the basic rights of controlling or constitutionally appropriate states as described in schedule A.
        i) Where a national or ethnic group is under threat of persecution leading to threat to life.
        ii) Where there is an irreconcilable dispute over territorial integrity.
        iii) Where a state or identifiable national region is not constrained by constitutional obligations.
        iv) Where a state has an identifiable history as a self-determining entity and
        v) Where that state has an acceptable form of democratic accountability.
        Provision is made for autonomous self-determination either by international treaty or through a statement by the legally constituted government of that state. Protectorate status can only be conferred through a deliberate United Nations resolution and passed by the Security Council.
        In all the above cases (i – iv) the necessity of obtaining an acceptable demonstration of majority support for any form of autonomous status can be held in abeyance permitting formal recognition subject to confirmation by plebiscite or majority election at a date which may be determined beforehand or, itself, may be held in abeyance. In case (v) a majority approval may be deemed obtained by consent of a majority of elected representatives.
        Please see sections C – F for case studies.

        The SNP and Greens are only a part of the wider movement and, under circumstances where the people are discouraged from discussing wider constitutional options, I find your dismissive statement, frankly unacceptable.

        In the few conversations we have had recently, most of my colleagues keep asking, why hasn’t Scotland got on with independence already? I ask the same question myself, but I don’t like to ponder the answer.

        • Spot on, David Younger. The WOKE gradualists of Nicola Sturgeon’s kitchen cabinet cabal quietly took it upon themselves to subject the sovereignty of the Scottish people to the say-so of an English-elected PM sitting in a demonstrably English Parliament in London. None of us who voted the SNP their multi-mandates to hold an IndyRef as Scotland’s Brexit lifeboat conceded to that also mandating them to so subject our claim of being a sovereign people to an English authority acting on a Greater England (aka ‘the UK’) such as a S30. It’s Scotland’s misfortune at the end of a three and a half year open goal of opportunity that our strategy is being decided by a small group of people who have chosen to paint our options into one ‘UK’ corner after another, while handing as malign an entity as the ‘British’ state all the time it needs to focus its overwhelming legislative majority onto reducing our options and powers even further in the ‘national interest’ of a spurious ‘one-nation’ ‘UK’.

      • Why, your section 30 description is neither legal or factual.
        You are joining the soft let’s persuade Camp of Indy politicians who want it nicely agreed with WM and UK.
        Fact the British state has never nicely, reasonably, or graciously given independence to any colony.
        They all had to take it, some harshly and some less so.
        They won’t change, the same elite at Boris’s political honeymoon over festive period will have reinforced this.

    • That is absolutely not what S30 says.

      S30 sets out the mechanisms and circumstances under which reserved matters may be devolved. The requirement is an Order in Council. Who has the power to make an Order in Council? The government and only the government because it is only the government that may draft, introduce and implement legislation. Whoever holds that authority holds the power over deciding which matters are reserved and which are devolved. We recently saw parliament vote to temporarily take control of the order paper to give itself the power to introduce legislation. This was an extraordinary set of circumstances unlikely to be repeated for the question of a Scottish independence referendum.

      The principle that the government introduces legislation is a cornerstone of the UK constitution. Would a court overturn this principle? Even if it did, how would it force the UK parliament to vote for the subsequent legislation? This avenue does not seem to lead anywhere if we think of the legal corollaries.

      The Scottish Parliament does not have the power to authorise an independence referendum (https://publications.parliament.uk/pa/ld201213/ldselect/ldconst/62/6203.htm) . It was the absence of this authority that led to an Order in Council being made for the 2014 referendum. Nothing has substantively changed since then.

      It is an open question whether Scottish voters would consider an unauthorised referendum to have legitimacy and it is a further open question whether Westminster would recognise and implement the result. Regarding Westminster, the key point here is that it would not be bound to implement the result. In fact, it would be bound to ignore the result because it retains the authority to hold an independence referendum. Who knows where this would end. We can all take different views on this but my own is that it would lead to such a poor outcome that I could not support this path.

      The UN charter does not grant the right to self determination as described here. It fleshed out its cursory intention in the founding charter in two further declarations and a comment from a human rights committee. In doing so, it added a crucial caveat: the right to self determination only trumps territorial integrity when representation is denied based on race, colour or creed. During the Indo-Pakistan war the right to self determination of Bangladesh was not granted because although representation was denied it was not denied due to race, colour or creed. Further, the Canadian Supreme Court considered the rights of Quebec. This caveat formed a key role in deciding the right to self determination for Quebec could not be derived from the UN.

      There are only 17 territories that have the right to self determination. These are categorised as Non Self Governing Territories by the UN. There are 17 in total. Of these 17, Gibraltar and the Falklands both exercised their right in recent times. Where the right exists, the UK government has accepted it.

      I don’t know how to fix any of this. However, banging our heads on locked doors is not going to get us anywhere.

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