Is it wise…. to rush in where angels should fear to tread?

by Jim Sillars

"the principle of unlimited sovereignty of Parliament is a distinctively English principle and has no counterpart in Scottish constitutional law."

Lord Cooper, Lord President of the Court of Session – MacCormick v Lord Advocate 1953 SC 396

As the word "Think" in any YesThink piece is important, and as this one deals with constitutional law, a debateable field, let me admit I could be wrong in questioning the First Minister's decision for her Government to enter the Supreme Court hearing of the UK Government's appeal on Article 50.

Perhaps hers is a brilliant tactic that apparently no one else has yet been able to see. Perhaps it is not another Brexit PR exercise in blowing the Scottish Government bugle, but will bring before the Supreme Court a solid unassailable legal case whereby the constitutional miracle will be revealed as to how Scotland stays a devolved part of the UK post- Brexit but also remains in the EU at the same time.

For my part I doubt the wisdom of the First Minister instructing the Lord Advocate to become directly involved in that appeal against the ruling of the English High Court on Article 50. There is a good chance we shall come to regret it.

Given the unanimous view of the High Court judges on what constitutes the fundamental base of the UK constitution, the Crown in Parliament is sovereign, I am concerned that, inadvertently, the First Minister may be creating a trap to be used in future against a Yes majority in a second referendum.

There must be no ambiguity about the status of the next referendum. It must be binding not advisory. The Scottish Government's decision to enter the Supreme Court arena could put that necessity at risk.

In letter to The Herald, Isobel Lindsay, with a lifetime experience in the independence movement, wrote this:

'The English High Court decision on Parliament and Brexit has important implications for a future independence referendum. Independence supporters should think very carefully about their response to this. If the ruling is confirmed, it means that the precedent is established that if there is a Yes vote in a Scottish referendum, an alliance of backbench MPs can reject it or more probably sabotage it with amendments designed to make it so disadvantageous to Scotland as to make it unacceptable…..It might also have seemed to be a good debating point to claim that the devolved administrations should have a right of veto but if you f0llow that through logically, then it sets the precedent for English voters to claim the right to vote in an independence referendum and to have veto rights.'"

We can respect the independence of the judiciary AND speak out if we thing they are wrong

I have taken the trouble to read the full judgment, and do not agree with "The Judges against the People" attack. That the Judges may have strayed into political opinion is understandable. They were addressing constitutional law which, more than any other law, entwines law and politics, because the constitution of a country is at root based upon political judgments, political process, and in the case of the UK, evolution over time through the incorporation of new principles arising from new political circumstances, and developments. However, no one in the Yes movement can accept as valid for Scotland the constitutional principle on which the English High Court made its judgement.

I am not a lawyer, but no lay person should be afraid to challenge judgments which claim to be law, especially when the constitution is at the heart of a matter. The independence of the judiciary is important, respect for that independence is fundamental to the rule of law, but judges are not Gods, and if one looks at the history of judicial activism not always impartial. They should not be immune to challenge, and that is especially the case in a UK that, to quote a recent statement from Gordon Brown, is "United only in name."

Cooper or Dicey?

The High Court judges claimed to be "called upon to apply the constitutional law of the United Kingdom," and stated it to be "common ground" among the lawyers appearing before them that "the Crown in Parliament is sovereign." They quote as authority not an Act of Parliament, but Professor A.V. Dicey, a constitutional jurist and his book: An Introduction to the Law of the Constitution, and go on to cite a House of Lords judgment in 2005, no doubt based on Dicey : "The bedrock of the British constitution is…the supremacy of the Crown in Parliament."

Neither Dicey nor the House of Lords view is in concert with the constitutional position as stated by Lord Cooper in Edinburgh. He was no minor judge, but one of the most eminent jurists the Scottish bench has produced. Members of the SNP have always argued that Lord Cooper is right , and they have always asserted that it is the people, not Parliament, that is sovereign in Scotland.

*Does our SNP Government and the Lord Advocate, who will speak for it, agree with Cooper or Dicey? Do his instructions from the First Minister include arguing Cooper? Does it include the assertion of the Scottish people being sovereign? Does it argue from that definition of who is sovereign, that the EU referendum in Scotland was binding and not advisory? These are vital questions. A lot hangs on them. We should know the Government's position on them before he goes south. *

But, what if the Lord Advocate argues the Cooper position and it is rejected by the Supreme Court? As the Supreme Court has jurisdiction over Scots law on non-criminal matters, then that is binding and becomes indisputably Scots constitutional law. Worse, what if he doesn't argue the Cooper position, what if he doesn't challenge the "supremacy of the Crown in Parliament" thereby accepting the High Court definition of who is sovereign? Such a position taken by the Scottish Government's senior law officer will carry an ominous constitutional message, available for exploitation by Unionists against any Yes majority in the next referendum.

Will the Supreme Court back Dicey or Cooper?

Therein lies the Trap

No bookie would give you odds on the Supreme Court taking Lord Cooper's position. It will deal with the case on the same constitutional basis as the English High Court, that Parliament is sovereign, and that a referendum is only advisory unless Parliament says so, and Parliament has not said so.

Therein lies the trap into which the Scottish Government is sailing. If the Lord Advocate ends up faced with the Supreme Court backing the High Court definition of the constitution, parliamentary sovereignty, then the Yes movement should beware. It will mean that any future Scottish independence referendum will only be advisory, and subject to the final say of the Westminster sovereign Parliament, which includes the House of Lords, a number of whose members have recently sounded off about blocking Brexit.

Anyone going to the Supreme Court in future to block a Scottish decision for independence in a referendum will be able to cite such a Supreme Court ruling and precedent in their favour. There are other aspects of the High Court judgment which have had little notice, but will aid those seeking to stop independence. For example, the High Court argues that Parliament must be involved because people will be affected in various ways by the consequences of triggering Article 50. The High Court provides a very wide interpretation of what it means by affected. Scots living in England and English, Welsh and Northern Irish living in Scotland will be affected by Scottish independence on the matter of nationality, and in other ways mentioned by the High Court.

The Supreme Court backing the High Court's ruling on a referendum only being advisory, coupled to the claim of Parliamentary sovereignty, would make any Yes result subject to legal challenge in the Supreme Court. How would the Yes movement fare if it was argued that the UK Government could not enter into independence negotiations without Parliamentary approval, thus giving Unionists the opportunity to negate a Yes victory?

The First Minister's position

But let us assume that the Lord Advocate does argue for Cooper and asserts that under Cooper's view of constitutional law Scotland, having voted 62% for Remain, must be treated differently in the context of UK-EU negotiations and settlement, and in any Supreme Court decision. That would certainly reflect the position so far argued by the First Minister. There is, however, a problem there that the First Minister consistently ignores, which the Supreme Court is unlikely to ignore – the question on the ballot paper.

The UK Government will no doubt point out, in rebuttal of any Scottish input, that the EU referendum ballot paper did not mention Scotland; that the question posed was about the United Kingdom as a whole; and so invite the Supreme Court to apply to any Scottish Government submission the principle of supremacy of the Westminster Parliament. If, as is highly likely, the Supreme Court accepts that argument, then the Yes movement is in a legal corner.

Silence is sometimes the best strategy

There have been several referendums, two for the UK as one entity, and others for its national parts. None, until the EU referendum have they been legally challenged in respect of their method of implementation. That the motives of the challengers is political, although denied, is obvious. The Yes movement should beware of the lesson to be drawn, as Isobel Lindsay has pointed out – it is not necessarily enough to win arithmetically.

There seems a compulsive need on the part of the First Minister to talk about nothing else but Scotland in the context of Brexit. That does no harm in the general political debate except inviting accusations from opponents about neglecting the "day job." Such criticism is unlikely to impose any permanent damage in the long run.

But diving into a major constitutional legal case when it is not necessary, where hard and fast binding law will emerge as precedent in the Scottish legal context if we participate, is a different matter. This is a Brexit obsession too far.

To date the question of Scotland's position has not emerged in the Court wrangle over Article 50. In Paragraph 102, the High Court judgment stated: "In light of the conclusion we have reached by consideration of the terms of the ECA 1972 and the basic constitutional principles , we do not find it necessary to address the supplementary submissions made by Miss Mountfield QC on the effect of the Act of Union of 1707." (my emphasis) Moreover, only a few words were spent on dismissing any consideration of the devolution Acts as having relevance to the issue of Article 50.

If the Scottish Government does not enter the Supreme Court arena, the UK Government appeal will be concerned solely with the use of the Royal Prerogative, and our position as a distinct polity, as a Scottish people, with a different view of the basic constitutional principles from that of English constitutional law, will not be up for decision by the Supreme Court. But put Scotland in there as an active participant, and rulings will emerge that will open any Yes victory to legal challenge in the future.

It is far better that the Lord Advocate stays out of it, because there is nothing to be gained by his participation, given that the Supreme Court is most unlikely to differ from the High Court on the question of Parliamentary sovereignty, and will make its judgments on that basis.

The chances of advisory becoming mandatory in the next Independence referendum?

Obviously, the Yes movement will want no legal doubt of a majority Yes being binding and not advisory in our second referendum. To accomplish that we would need the Westminster Parliament to make that unambiguous when setting the conditions for a second referendum, as it has the power to do.

But would Westminster do that, and in effect give up its claim to sovereignty? I doubt it, especially as a Supreme Court backing of the High Court would keep them in final charge.

Of course political power can overcome legality, and create new legality as Lord Cooper noted of the Statute of Westminster 1931, when the political demands of the Dominions brought an end to the right of Westminster to make their laws, thus creating new sovereign states. So, notwithstanding any ruling on referenda being only advisory, could Scotland generate such political power that our Yes decision in a referendum, even if legally advisory, be so unassailable that no Court would seek to interfere?

The answer of course is yes. Political power can over ride legality, and produce a new legality. But that Yes would have to be of such a magnitude, well over 60%, to have any chance of being accepted irrespective of Supreme Court rulings arising out of the present case. What if we only win 55%, or 52%? Enough to avoid a court challenge on Parliamentary supremacy? I don't think so.

Conclusion

The point of this article is that sending the Lord Advocate into the Supreme Court on a case which has emerged from three of the most senior judges in England, which has the assertion of Parliamentary sovereignty at its foundation, is not sensible. We are in danger of being party to a Supreme Court ruling in favour of the High Court judgment that will anchor Scotland in constitutional case law which could be turned against us in future years, when we have our second referendum.

It would be better if we stayed out of it, and let the Supreme Court decide on a case that arose under English jurisdiction solely on the Prerogative, with us able to claim in future that the Scottish constitutional position was never tested, and so was never declared invalid; and having never been declared invalid would, with our assertion of the sovereignty of the people, be the rock on which we will found our referendum decision and demand that it be implemented.

The Lord Advocate should be withdrawn from the appeal going to the Supreme Court.