'Supreme' Court?

The Supreme Court Judgment 23/11/22

What were the judges asked to decide?

The Supreme Court (SC) faced three submissions. One each from the Scottish (SG) and UK (UKG) Governments and one from the SNP. The SG’s was presented by Dorothy Bain, the Lord Advocate, and asked if the Scottish Parliament had the power to hold an advisory referendum on independence. The UKG case was presented by the Advocate General and said that, as no bill proposing a referendum had been put forward by the SG, the SC had nothing to consider. The SNP’s submission was based on the right of all nations to self-determination. The SC heard the first two in person while the SNP case was submitted only in writing.

The SC decision.

The five judges were unanimous in reaching their decision. They did not accept the UKG’s point believing that  the situation demanded clarity and could not be left hanging. They were quite sure that Holyrood could not hold a referendum as the constitution is a reserved matter under the Scotland Act 1998 but Lord Reed seemed to stray into the political sphere in his statement. This seemed even more the case when he rejected the SNP submission on the grounds that the right to self-determination was open only to colonies and, in his view, Scotland was not a colony, not oppressed and had a meaningful say in how it was governed.

Immediate reactions.

BritNats, especially the media and politicians, were jubilant, claiming that the decision had effectively killed the independence campaign. The SG accepted the decision (controversial among indy supporters) and expressed disappointment. With a bit more time to reflect there were some on both sides who saw problems/opportunities in the judgment. Above all it was seen as a denial of democracy (given that the SG was elected in May 2021 on a mandate to hold a referendum) and an end to the notion, long held by supporters of the Union, that it is a Union of consent and therefore the inherent democratic deficit (i.e. that Scotland’s wishes can always be blocked/ignored by the English majority) was accepted. Predictably, shriller BritNats rejected this, usually by referring to the No vote in 2014 as the definitive democratic choice of Scotland.

Was the SC decision political?

In referring to the submissions from the two governments the judges agreed that even if a referendum had “no immediate legal consequences” it would still “be a political event with important political consequences”:

“It is therefore clear that the proposed Bill has more than a loose or consequential connection with the reserved matters of the Union of Scotland and England and the sovereignty of the United Kingdom Parliament.”

This was their justification for rejecting what both governments were asking for and could be seen as simply expanding on their legal thinking. However, note their total acceptance of the principle of the sovereignty of the UK Parliament. There is no surprise that they did so; after all, the Supreme Court was created by the UK Parliament and its previous judgments have upheld the same belief. What purports to be the British Constitution accepts the English principle of the sovereignty of Parliament and completely suppresses the Scottish constitutional principle that sovereignty lies with the people, even though it was a condition of the Treaty of Union that the Scottish constitutional principle must be upheld.

The judges cannot be ignorant of the different constitutional principles because in 2016 the SC said “When the UK Supreme Court has to speak of UK constitutional law, it enters perilous waters because the two constitutional narratives and traditions to which the UK is heir – the English myth emphasizing the sovereignty of the governing institutions of the state (the Crown, and the Crown in Parliament) and an unbroken continuity since Magna Carta in 1215; and the Scottish tradition, since at least the Declaration of Arbroath of 1320, of the sovereignty of the people limiting the powers and rights of the Crown (and Parliaments) – may pull in different directions, but yet have to be reconciled if this union polity is to survive.”

It would seem Lord Reed and his fellow judges had reconciled these differences by completely accepting the English principle of the unlimited sovereignty of the Westminster Parliament.

In this they are not alone for not even the SG upholds the pre-1707 Scottish Constitution though they do pay lip service to the Claim of Right 1689 (and later reassertions in 1988 and 2018) which asserted that the people are sovereign. One could say that by recognising the Supreme Court at all the SG have tacitly accepted the English principle. Why the Scottish legal profession accepted the SC is a mystery when Scots Law was guaranteed its independence from English law and Scotland already has its supreme court, namely the Court of Session.

One could say the judges were correct in their judgment about the Scottish Parliament’s limited powers because the Scottish Parliament (SP) was established by the Scotland Act 1998. But when the SP first met, Winnie Ewing was in the chair and nobody demurred when she announced “the Scottish Parliament is hereby reconvened”. In other words, the historical parliament which broke up in 1707 had come back. In 1707 both Parliaments were stood down (but not abolished) but the English have always behaved as if their parliament simply continued as before except they had graciously allowed a few Scots into it. The Scottish Parliament at Holyrood should pass a bill confirming that the SP set up in 1998 took over from and succeeded the SP of 1707. Westminster will not like it but what is the difference with what the English have assumed?

What the judges had to say about the SNP submission.

The UN Charter says all nations have the right to self-determination but Lord Reed was of the opinion this legal right only applies to a colony or a country which is under foreign occupation and so this does not apply to Scotland. However, the rejection of the SG’s submission surely means that Scotland has been placed in the position where its people are being told that their own democratic decisions cannot be put into effect because a higher authority, which Scotland cannot hold to account, has abrogated to itself the power to decide what is in Scotland’s best interests is in many ways the very definition of classic colonialist paternalism. In other words, you are not a colony but we just won’t let you have a say on your future.

Lord Reed then went further and tried to support his point with reference to Quebec and to Kosovo. Quebec was told by Canada’s Supreme Court it had no right to secede unilaterally. Quebec is a province of Canada, not a nation which formed the union. Moreover Canada has a written constitution and following their Supreme Court’s judgment, the Federal Government of Canada responded rationally, explicitly and thoughtfully by setting out in the Clarity Act of 2000 the principles and procedure to be adopted in responding to any future secession referendum by Quebec or any other province. The act states explicitly that “the government of any province of Canada is entitled to consult its population by referendum on any issue and is entitled to formulate the wording of its referendum question”. The UK has no written constitution so the Westminster government of the day can decide whatever it likes, subject to winning a majority, and no government can bind a successor to stick to that decision. Lord Reed was not really comparing like with like.

The comparison with Kosovo is even more bewildering. When Kosovo seceded from Serbia the UK Government enthusiastically supported its right to do so making a submission to the International Court of Justice which the ICJ accepted. In that submission the UKG said “In most cases of secession, of course, the predecessor State’s law will not have been complied with: that is true as a matter of definition.”

The ICJ agreed and said, “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.”

Lord Reed would appear to be contradicting what was the UKG’s policy with regard to Kosovo.

Where do we go from here?

The SG line is to make the next UK GE a plebiscite election and have rejected the alternative of forcing a Scottish Parliament election instead. There are arguments both for and against either option which have been well rehearsed. The assumption is that a UK election will not happen till 2024 or early 2025 and so there is time to prepare but we cannot discount something much earlier e.g. if the Tories get a ‘coronation boost’ and inflation starts to fall (though not thanks to them). Opinion poll evidence seems to suggest the SC judgment has aroused the anger of Scots at last so it is very important to build on this momentum and not let things slide again. New ammunition for Yessers to use has just become available from Common Weal and Believe in Scotland and this should be put to good effect. The bigger the percentage for Yes the easier it will be to get support from the international community which will ultimately be the deciding factor in getting our independence recognised. The SG still cling to the forlorn hope that Westminster will do the decent thing and acknowledge the democratic will of Scots but we are all more aware of how much they need us now and so how intransigent they will be. The new SNP leadership at Westminster may take a more abrasive line than in the past but above all we need  a tougher line on rebutting BritNat falsehoods wherever they appear. A united front in the Yes campaign would be welcome; Alba have offered to do so but we still have to see the SNP leadership accept this. We may not be able to win without the SNP but we can certainly lose if they do not show more urgency and a greater willingness to make the strong positive case for what Scotland could be. The evidence already exists that people react positively to the idea of policies which promote well-being but that will only happen if we make a break from the failed neoliberalism we have endured for about 40 years.

Andrew Fraser

08/12/22