THE Supreme Court may decide that Scotland does not have the power to hold indyref2 – but it should also conclude the UK Government is “undermining democracy” through its refusal to countenance a second vote, two constitutional experts have said.
They warned that the Supreme Court (UKSC) should note that manifesto pledges made by Scotland’s elected leadership were “at risk of being thwarted by bodies with less democratic legitimacy”.
"The problem is ... the behaviour of the UK Government, in its unwillingness to recognise the ‘material changes in circumstances’ since 2014, and an apparent unwillingness to negotiate with a democratically elected leader," the experts said.
READ JOANNA CHERRY'S ANALYSIS HERE: Win or lose, the Supreme Court's indyref2 case has a key role to play
The intervention comes just one week before the UK’s highest court is due to hear the first day of oral arguments about whether the Scottish Parliament can legislate to hold a second independence referendum.
Scotland’s top law officer, Lord Advocate Dorothy Bain (below), has argued that such a vote falls within devolved powers because it would be purely consultative and of no automatic legal effect.
However, the UK Government’s top law officer for Scotland, Advocate General Keith Stewart, has said that holding an independence vote would be reserved to Westminster as it concretely “relates to” the Union.
Writing for the UK Constitutional Law Association, University of Cambridge academics Shona Wilson Stark and Raffael Fasel made clear that they agree with the UK Government’s arguments.
“Based on the wording of the Scotland Act 1998, we do not believe that the UKSC should decide that the Scottish Parliament can legislate for a referendum without a Section 30 order,” they wrote.
A Section 30 order would allow the Scottish Parliament to legislate in a reserved area, and is the mechanism which was used to let Holyrood hold the first independence referendum in 2014.
The UK Government 'lacks the same democratic legitimacy as the devolved legislature'
However, Wilson Stark and Fasel further argue that there is nothing to prevent the UKSC “from taking seriously the constitutional importance of the SNP’s manifesto and the principle of democracy more broadly”.
The academics point – as they note the SNP also did in their submission to the UKSC – to the Salisbury Convention. This says that the Lords will not block bills mentioned in ruling party’s election manifestos.
Wilson Stark and Fasel said: “Obviously, the Salisbury convention itself does not apply: we are not dealing with a House of Lords voting down government bills that aim to deliver on election manifestos, but rather with a national government that is resisting the free exercise of democratic will-formation in a devolved nation.
“Yet, the SNP have a strong case that a similar underlying principle is engaged. In both contexts, we are faced with elected groups’ manifesto pledges that are at risk of being thwarted by bodies with less democratic legitimacy.”
They add: “The principle of democracy plays a key role in the UK constitution and cannot easily be discarded, especially by an executive body that lacks the same democratic legitimacy as the devolved legislature.”
The Cambridge academics say that while the UKSC may stop short of declaring democracy a legal (and not simply political) principle, that “does not stop it from declaring the UK Government’s actions unconstitutional in a political sense”.
Wilson Stark and Fasel point to precedent in Canada, and say that such a statement against the Tory government could “be an appropriate means of attempting to break the deadlock by exerting some political pressure”.
'The problem is ... the behaviour of the UK Government'
They conclude: “In our view, the problem is neither the UKSC nor the legislation, but the behaviour of the UK Government, in its unwillingness to recognise the ‘material changes in circumstances’ since 2014, and an apparent unwillingness to negotiate with a democratically elected leader.
“The UK Government’s actions may not be contrary to law – but that does not mean that the UKSC cannot play an important role in attempting to encourage civilised negotiations.”
Stephen Tierney, a professor of constitutional theory at the University of Edinburgh, has also written for the UK Constitutional Law Association on the topic of the UKSC indyref2 case.
Like Wilson Stark and Fasel, Tierney argues that the Scottish Parliament does not have the powers necessary to legislate for a second independence referendum.
Tierney’s arguments hinge on conventions around referendums, which he suggests have constitutional impacts, even if they have “no automatic legal effects”.
He wrote: “UK-wide referendums have only been held on three occasions, each of these authorised by an Act of Parliament.
“It was well understood by those who voted, and indeed can reasonably be said to have been a condition upon which they participated, that whether or not the result was legally self-executing it would be politically binding [original italics], requiring Parliament to act upon the outcome.”
As such, Tierney says that a referendum on independence would “relate to” the Union, given the expectation of action which would follow a result.
He said: “There is now a constitutional convention to the effect that Parliament is expected to implement the outcome of any referendum which it authorises either directly, or indirectly.”
In their articles, both Tierney and Wilson Stark and Fasel pointed to Section 63A of the Scotland Act 1998, which says the Scottish Parliament and Government are permanent and “are not to be abolished except on the basis of a decision of the people of Scotland voting in a referendum”.
Tierney says this section is a part of a “series of commitments made by Parliament in law either to implement the result of referendums, or to take no legislative action contrary to the outcome”, demonstrating their constitutional importance.
Wilson Stark and Fasel say the paragraphs “could be interpreted as UK governmental recognition of the democratic importance of the views of the Scottish people and a Scottish right to self-determination”.
Joanna Cherry KC (above), the SNP MP for Edinburgh Central, was cited by the pair in their article as saying that the UKSC should “look to the wider constitutional context and to have some comments to make about a Government which does not allow a second indyref when there is a clear electoral mandate in favour of one”.
Commenting on the arguments, she told The National that she disagreed with the conclusion that the Scottish parliament cannot legislate for indyref2 without a section 30 order.
READ JOANNA CHERRY'S ANALYSIS HERE: Win or lose, the Supreme Court's indyref2 case has a key role to play
However, Cherry said she pleased to see it argued that the Supreme Court should look at the wider constitutional context of the push for indyref2, "including Scotland’s right to self-determination [and] the constitutional importance of the SNP’s manifesto pledges".
Wilson Stark is an official fellow of Girton College and an assistant professor at the University of Cambridge’s Faculty of Law, while Fasel is an affiliated lecturer at the same faculty, as well as holding posts at NYU Law School and the University of Zurich.
