Homage to Catalonia

This weekend past saw the twenty-fifth anniversary of the fall of the Berlin Wall.

This was an epochal political event in more than one way. For, quite aside from the symbolism of the end to the division not just of Germany but of Europe it was then followed by an entirely orderly transition to a new constitutional settlement, again not just of Germany but of Europe, all carried out within the continuity of the rule of law.

The Germans voted for re-unification and the GDR effectively became part of the Federal Republic inheriting in turn the European Union membership of the latter. This was then followed by the orderly transition into EU membership of the other former countries of the Warsaw Pact and the, more or less orderly, dissolution of the Soviet Union.

It seemed at the time that we were seeing a new order in Europe where disputes were settled not by force of arms but by force of argument. Crucially, I repeat, then encompassed into a legal continuum.

Now, as it transpired in Yugoslavia and more recently in Ukraine, not everyone is yet signed up for this. But undoubtedly the states of Western and Central Europe are. And that has very real consequence for Scotland. 

Here, you need to go back a fair bit in the process that lead to the September 18th Referendum past.

There was, to say the least, considerable doubt whether the Scottish Parliament in May 2011 had the legal vires to hold an Independence Referendum. The Scotland Act 1998 proceeds on the basis that the Scottish Parliament has legal competence in all areas not reserved (legally) to Westminster. But in the areas that are so reserved it has no legal competence at all.

And that lack of legal competence is enforceable in court. Any attempt to legislate outwith the competence of the Parliament can be challenged in court and the decision of the courts (not, crucially, of the Parliament) is final. 

For example, the legislation passed by the Parliament in relation to minimum pricing of alcohol is currently under court challenge as incompatible with the Treaty of European Union. Any legislation incompatible with EU membership being specifically beyond the legal competence of the Scottish Parliament

Suppose the ultimate decision, probably by our Supreme Court having taken advice from the European Court of Justice, is that the legislation is in fact incompatible? Legally then there is no legislation. It's as simple as that. And that has consequence.

Suppose further that the Scottish Government, even with the unanimous support of the Scottish Parliament, announced that we did not accept that legal outcome? That this measure had widespread both cross party and public support and in that knowledge that they were instructing the Police still to arrest those selling alcohol below a certain price and the Crown Office to "prosecute" them?

It simply would not happen. There would be no "law" being broken and no "crime" to be prosecuted. The "legislation" would be no more than a piece of paper. The Police would not arrest; even if they did the Crown would not prosecute; even if they did the courts would not convict. That is what is meant by the rule of law.

Now in terms of Paragraph 1(b) of Part 1 of Schedule 5 to the Scotland Act 1998 (the legislation creating the Scottish Parliament) "The Union of the Kingdoms of Scotland and England" is a matter specifically reserved to Westminster. It is an area therefor where the Scottish Parliament has no legal vires.

But of course Scotland did have a "legal" referendum. Never lose sight however of the fact that this occurred not because the Scottish Parliament acted illegally but because the Westminster Parliament acted to give the Scottish Parliament temporary legal authority to hold such a vote despite the fact that the vote was clearly about "The Union of the Kingdoms of Scotland and England". Temporary legal authority negotiated as part of the Edinburgh Agreement and given legal effect by virtue of an Order in Council made under Section 30 of the Scotland Act 1998. Temporary authority which, there having been a vote, has now expired.

It seems to me that in the kerfuffle that has followed the vote on 18th September this has been completely lost sight of. The newspapers and the SNP leadership hustings are full of discussion about whether there should be an SNP Holyrood 2016 manifesto commitment to another referendum but, with respect, the issue is not when Holyrood might call another vote. Holyrood cannot call another vote unilaterally. The issue is when Westminster might allow such a thing and that's got nothing to do with the SNP. As I say, that was the more or less unanimous legal view prior to the Edinburgh agreement and any lingering doubt was surely resolved when, by seeking the Edinburgh Agreement, the Scottish Government themselves effectively conceded that they needed Westminster permission to act. And in asking the question of Westminster again no-one should expect any answer short of "not for a generation". That, after all, was the basis on which the Nationalists secured their agreement to the referendum just past in the first place

Now, I just want to make clear what I'm saying here. I am not engaged in a political argument over where sovereignty ought to lie in these matters, I am engaged in making a simple legal one. Holyrood has no unilateral legal authority to hold an Independence Referendum. And that means that any purported Holyrood legislation to achieve such an event would be a fundamental legal nullity. Returning Officers would have no legal authority to incur expenditure publicising such a vote, let alone to incur expenditure conducting or counting one. If they were inclined to act illegally (a most unlikely event) they would be interdicted from proceeding by the courts. If they breached the interdict (an even more unlikely event) they would be locked up. That's what the rule of law entails.

But most importantly of all, even if the nationalists somehow got to the end game of a vote and even a vote overwhelmingly for Independence, "everybody" could just ignore it. 

You don't need to take my word for it for that's exactly what has happened in Catalonia this last weekend.

The Nationalist controlled Parliament there announced they were going to hold an Independence Referendum and passed "legislation" to this effect. The Spanish Supreme Court ruled that this legislation had no legal effect as it contravened the Spanish Constitution. That Constitution, adopted after the fall of Franco and endorsed then by all parts of Spain in a referendum, specifically prohibits the unilateral secession of any one part of the Country. A referendum about precisely that proposition was therefor ultra vires of the Catalan Parliament and could not go ahead decided the Supreme Court. After a bit of mucking about, the Catalan Nationalists announced they would accept that outcome but would have an "unofficial" vote, conducted legally (in both senses of the word)  independently of the Parliament but with majority political support from within it

Which the Catalan Nats duly did yesterday when in a derisorily low turn out event the nonetheless differential enthusiasm of the separatists delivered them an 80% Yes vote. But so what? Is Catalonia Independent this morning? Can its Parliament levy any taxes other than those it is allowed to do so under the current constitutional settlement? Can it raise its own army, police its own borders, require anyone at the EU or the UN to consider its application for membership? Is anybody even in Madrid paying the slightest attention?

Now of course there is an alternative but that alternative involves the repudiation of the rule of law and the resort to the use of armed force. But that brings me back to where I started, with the fall of the Berlin Wall. That course of action is not likely to be acceptable not just to Spain but to any other European democracy. It is not how things are now "done" in this part of the world. So even if the Catalans achieved some sort of military victory what they would be left with would be a pariah state excluded from engagement, never mind co-operation, with the rest of democratic Europe. And utterly financially ruined in the process. Which, to be fair, is pretty much the conclusion the Catalan Nationalists have reached themselves. Without progress within the rule of law there can now be no progress. Their referendum has given them another excuse to gripe and moan and....that's it. 

And that's where Scotland is now. Independence outwith the rule of law is just so......... 19th Century and Independence within the rule of law has had its chance. No doubt we will have to put up with our own griping and moaning for some time yet but slowly that will sink in even to the most died in the wool Yesser.

 The vote recently past wasn't just for the moment, it was for keeps. Unless the Nats can somehow explain otherwise. Which, although they continue to put on a brave face for the moment, they know they ultimately can't. Hopefully once we've finally got a competent leadership back at the head of the Scottish Labour Party that will be made clearer to everybody else.