Not what it appears

As you may have noticed, there has been quite a lot of snow.

As a result I've been unable to get to my work but it has given me the opportunity to write a blog about a matter of some considerable importance as a reminder that one should never take anything done by the SNP at face value. No matter what they claim to be upto they in reality are only ever up to one thing. Trying to advance the cause of independence.

As you may also have noticed, a year past in June we had a referendum in which the Country voted to leave the European Union. I'm not commenting here on the merits of that decision, my views on it are well known, but rather on its legal consequence.

Currently, Scotland has four sources of law. I set them out in order of introduction.

1.The common law Best example being that murder is a crime without it ever have been declared to be so by any Parliament.

2. UK Statute Law and secondary legislation flowing from Statute Law. Not just in areas outwith devolved competence such as the Employment Rights Act 1996 but also in relation to matters now within devolved competence but on which the law has remained unchanged since the creation of the Scottish Parliament in 1999, such as the Family Law (Scotland) Act 1985.*

3. Scottish Statute Law and secondary legislation passed or authorised by the Holyrood Parliament.

and

4. European Community Law with direct applicability in the UK.

It is this last which so infuriates (some of) the Brexiteers. For it can mean that we have no say (or more precisely no veto) over "our" laws.

But even Jacob Rees-Mogg does not not want EU Law to disappear overnight. He is an improbable anarchist.

Existing EU law is for the vast part both uncontroversial and necessary, setting out commercial rules and standards that would be required in any advanced democracy. So, while Brexit will provide the future opportunity to amend or even repeal these laws, no-one's interest is served by the emergence of a legal vacuum on 29th March 2019. EU Law must therefor be carried forward on that date and Westminster is proposing to do that by means of the European Union (Withdrawal) Bill, currently proceeding through that Parliament.

But, of course, matters are not as simple as that.

And here we must first go off on a wee legal detour.

Our devolution settlement proceeds under the Scotland Act 1998 (as subsequently amended). And ,under that Act, Holyrood, subject to certain other restrictions, the importance of which I will come to, can legislate on any matter not "reserved" to Westminster. Except that when the Scottish Parliament was created in 1999 no-one contemplated that the UK would ever (be daft enough to) leave the EU. So there was no need to "reserve" to Westminster matters on which Westminster had delegated to Strasbourg. 111 such matters it appears. Thanks to a helpful list drawn up no one less than Nicola Sturgeon herself. https://inews.co.uk/news/politics/full-111-eu-powers-scotland-says-denied/

Now, if you are I were so inclined, you might think that Westminster, in preference to Holyrood, legislating about the "Energy Performance of Buildings Directive" is a matter about which a woman, even a woman with grievance as her middle name, would find it difficult about which to become outraged. Particularly as (insofar as she knew about it all) she'd been quite happy to share decision making on the subject with 27 other Countries for nearly twenty years without objection. But of course this wasn't about sharing decision making with 27 Countries but with "them" (copyright Angus Brendan McNeil). "Best of all, 27/28 Countries make decisions together. Worst of all, 2 Countries do". (Apologies to Wales and Northern Ireland).

So, in summary, the position of the SNP is that these decisions should be made anywhere except at Westminster.

But they have been facilitated by the ham fisted way the UK Government has gone about this in their withdrawal Bill. Clause 11(1) of that Bill currently reads

11 Retaining EU restrictions in devolution legislation etc. 

(1) In section 29 of the Scotland Act 1998 (legislative competence of the Scottish Parliament)— 

(a) in subsection (2)(d) (no competence for Scottish Parliament to legislate incompatibly with EU law) for “with EU law” substitute “in breach of the restriction in subsection (4A)”, and

(b) after subsection (4) insert— 

“(4A) Subject to subsections (4B) and (4C), an Act of the Scottish Parliament cannot modify, or confer power by subordinate legislation to modify, retained EU law. 

(4B) Subsection (4A) does not apply so far as the modification would, immediately before exit day, have been within the legislative competence of the Scottish Parliament. 

(4C) Subsection (4A) also does not apply so far as Her Majesty may by Order in Council provide.”


Now, just to explain, if this becomes the final version of the Bill, its effect is that although these 111 matters are not reserved to Westminster, Holyrood would be prevented from changing "inherited law" in any way, while Westminster could do so at a whim, under the principle that power devolved is still power retained.

And nobody at Holyrood is very happy about that, including, importantly, the Scottish Tories.

So, the UK Government has committed itself to re-framing  Clause 11 by House of Lords Amendments and has, behind closed doors, been discussing with Mike Russell, the Scottish Government's Brexit Minister, what changes might be made.

That's where we had got to on Tuesday when Russell suddenly announced he was bringing in his own "Continuity Bill".

Now, to say this was a surprise would be a considerable understatement. The Scottish Government/UK Government talks have not broken down. Indeed Russell has not even withdrawn from them. There is no particular urgency (a point again to which I will return), since we are not leaving the EU for at least a full year and any transitional arrangement need only be in place by then.

That notwithstanding, Russell also announced that this legislation was to be forced through Holyrood  under "Emergency Procedure" in less than a month, rather than the nine month or so it takes for an "ordinary" Government Bill to proceed to a conclusion. A timescale, you will note, which would still be concluded well before 29th March 2019.

And finally, the Bill is of, to put it mildly, dubious legal competence, since it is incompatible with current EU law and Section 29 of the current Scotland Act reads:-

"(1) An Act of the Scottish Parliament is not law so far as any provision of the Act is outwith the legslative competence of the Parliament

 (2) A provision is outside that competence so far as any of the following paragraphs apply.......

  (d) it is incompatible with any of the Convention rights or with EU law....."

(my emphasis).

Now that the Bill is incompatible with current EU Law is not disputed on any side. The view of the Lord Advocate is however that, since it expressly won't have effect until the UK leaves the EU, it can still currently proceed. Although again, why then it needs to proceed as emergency legislation is  point on which he has been strangely silent.

In any event, this argument is, as we lawyers put it "pish".

It tries to draw authority from para 130 of the Supreme Court's ruling in the (Gina) Miller case.

Presumably the Lord Advocate sailed on assuming MSPs would think that "He's the Lord Advocate, he must know what he's doing". And, to be fair, excepting Adam Tomkins, he might have a point. But he doesn't.

Here is Para 130 in full.

130. Accordingly, the devolved legislatures do not have a parallel legislative competence in relation to withdrawal from the European Union. The EU constraints are a means by which the UK Parliament and government make sure that the devolved democratic institutions do not place the United Kingdom in breach of its EU law obligations. The removal of the EU constraints on withdrawal from the EU Treaties will alter the competence of the devolved institutions unless new legislative constraints are introduced. In the absence of such new restraints, withdrawal from the EU will enhance the devolved competence. We consider the effect of the alteration of competence in our discussion of the Sewel Convention in paras 136 to 151 below. 

I have underlined the sentence on which he relies, suggesting it implies Section 29(2)(d) constraint on the Scottish Parliament will automatically expire on the day we leave the EU. This is simply nonsense. There is no precedent at all, ever, for words "disappearing" from a statute as a result of an external event but just so you are in no doubt about it, firstly, have a look at (the first two sentences of) Para132 of the same judgement and indeed refer back to the current terms of Clause 11 of the Withdrawal Bill I quote above. Which does provisionally but expressly repeal clause 29(2)(d). But only at the point the UK leaves the EU.

By the logic of the Lord Advocate's position, if the Scottish Government introduced a Bill to raise a standing army but qualified it by saying this would only come into effect once Scotland was independent, then everything would be hunky dory. Aye, right.

Anyway, enough of this because the Lord Advocate is, I suspect, a pretty isolated legal voice in this matter. As he was when he last lost unanimously in the Supreme Court.

For I must now go off on a different but important wee legal detour.

The Footway Parking and Double Parking (Scotland) Bill 2015.

In March 2015, the SNP backbencher, Sandra White, introduced a Bill at Holyrood with cross Party support to do what it said on the tin. Regulate footway parking and double parking. This was a meretricious measure particularly sought by the visually impaired. There was only one problem with it. It was beyond the (then) legal competence of the Scottish Parliament, because it proposed to legislate in the area of a reserved matter, that reserved matter being Part 1 of the Road Traffic Act 1988. (Pay attention at the back there.) Not in the opinion of some terrible anti devolution Tory, but in the opinion of the then Presiding Officer,  Tricia Marwick. Just about as "of the Purple" as any Scottish Nationalist has ever been.

Now, you may be surprised to hear this, I'm a bit of a nerd when it comes to the statutory framework of the Scottish Parliament. Yet before this episode I had believed that, to introduce a Bill to the Scottish Parliament, you needed two certificates. A statement from the introducer and a statement from the Presiding Officer. Both to the effect that the Bill was within legislative competence. Otherwise the game was a bogey.

Only you don't. The introducer must certainly make that statement but in fact the Presiding Officer must only express an opinion. If it is a negative opinion but the introducer carries on regardless "nothing" immediately can be done. That "nothing" may also become important in due course.

Anyway, Ms White's Bill went on to Committee where it was kicked about for a few months, mainly discussing how it might be amended to become competent, until it fell with the 2016 election. And by the time everybody came back, the, Westminster,  Scotland Act 2016 had made it, when re-introduced, competent.

But something quite important had happened in the meantime. It had become clear that a Bill beyond the legislative competence of the Scottish Parliament could nonetheless progress. For a bit at least.

Anybody still awake?

Hopefully this will wake you up. INDYREF2!!!

Stick with me, I'm slowly getting to the point.

If you Google search "Nicola Sturgeon calls for second independence referendum" you can find a result for just about every month since May 2015, although to be fair a good number of these link only to articles written by over excitable "National" columnists.

But we forget that in March 2017, less than a year ago, she really did do so. Within days, Theresa May told her to f.... go away in respect of gaining legislative consent from Westminster. Whereupon Nicola said she was considering her next move over Easter.

Except, over Easter, the self same Theresa May called a General Election. With the Scottish result we all know. Or, possibly, if you don't know, may finally make you realise that you have stumbled into reading a blog which really isn't intended for you.

So let's go back to what Nicola's next move might have been?

Might she have introduced a Holyrood Bill for a referendum without Westminster's consent?

Well, you see, that's where Sandra White re-emerges as a significant figure. Nobody, even in the SNP, would regard Ms White as the Brain of Britain. Or even, honestly, the Brain of Scotland. Or, even more honestly still, the Brain of her own street. One doubts very much if she could have mustered a counter argument to the Presiding Officer's legal objection to her Bill. Indeed, detailed consideration of the Bill's Committee proceedings leaves you in little doubt on that matter. (The sacrifices I make on my reader's behalf).

But I quite strongly suspect that others saw the path she had inadvertently laid.

So let's assume Ms White's Bill had passed through Stage 3 and become the intended law of Scotland. What would have happened then? Well, firstly, within the next four weeks, the Secretary of State for Scotland could have referred it to the Supreme Court. Where it would have died a pretty immediate death.

But suppose the Secretary of State couldn't be bothered? Or indeed publicly  sympathised with the (now) Act's objectives and saw no reason to intervene? Well some random punter, leaving the football and finding themselves with a ticket for parking on the pavement contrary to the Act would have refused to pay. As his penalty was "beyond the competence of the Scottish Parliament". And eventually the Courts would have supported him in that. That's how the rule of law works.

But, from a political perspective, all of this would have been post legislation. And that's where I (finally you say) start to reach some conclusions.

There is a lot of internal pressure on Nicola to hold a second Independence Referendum. Those in her closest circle know the dangers of that. No polling suggests that Scotland wants such an event, let alone that the Nationalists would win it. But the SNP rank and file are a different matter. If you go back to the 111 powers I refer to above, one of them is the regulation of organ donation. Hardly a matter you or I might worry about, except to ensure it was regulated sensibly by somebody. But not so to the cybernat who intervened to suggest regulation must remain in Scotland to ensure his organs were never donated to an Englishman. And in that he spoke for a fair number of Nicola's foot soldiers.

So, Nicola is under a lot of pressure on this. So knowing how far she might get with this before being "stopped against her will" would be a matter of relief. With a trial run a bonus.

And that, in truth, is what this week has been about. Can the Scottish Government run "legislation" through all it's stages at Holyrood until it is referred, post stage 3, to the Supreme Court? And what can they get away with meantime?

So, I'm going to start with my second question.

There is no conceivable interpretation of the word "emergency" which makes providing for events thirteen months away an emergency. Except until you consider the definition of emergency in the Standing Orders of the Scottish Parliament. For in terms of these Standing Orders (9.21) anything certified by a Minister to be an emergency becomes one if it is supported by a simple majority in the Scottish Parliament. And legislation can then be passed in a day. Although even Mike Russell proposes three weeks in this case.

So, can the word "emergency" be self defined by the Scottish Government and not be subject to judicial review so long as it complies with the Standing Orders? Wouldn't that be interesting to know?

And then return to my first. Could the certification of a Bill as within legislative competence by a Minister, even in bad faith,  also not be subject to judicial review?  Wouldn't that also be interesting to know?

Particularly if an adverse consequence brought no personal liability in costs.

So, in summary, Russell's Bill is going nowhere. Not least because there will be a deal on Clause 11 in the meantime. That's not it's purpose. It's purpose is to set precedents or learn lessons on the way.

Because if you wanted to try and force through a Bill for a second Independence Referendum in a month ("as an emergency") and then risk it all, without interruption, on a single turn of pitch and toss in the Supreme Court, wouldn't it be convenient to know in advance how you might get on in that process?

That's all. Enjoy the weekend.