Tuesday, 28 December 2021

Always read the small print.

 And so this is Christmas and what have we done?

Well. in the three working days between Christmas and New Year, I'll be in Court every day, A trial in theory on each of the 29th and 30th.. Although it is already agreed one will plead out and, since the other involves a boy charged with allegedly assaulling his mother, I have some scepticism if  the Crown witnesses will turn up. This is followed by a Police Bail undertaking on Hogmanay which has a taint of the Polis deciding that if they are working that day so will we.be. 

But to be honest I'll be quite pleased to get out the house as there are only so many old films you can watch or chocolates you can eat without becomimg bored, or at least a bit nauseous. I have actually already reached that point. At some point I might even reach that point with wine drinking.

So, with a day before I have some proper work to do, I have decided by way of diversion. to write a blog.

I'll start by referencing a blog post I wrote back in March 2018: Not what it appears On reflection, it would have benefited from a good edit, but in that I posited (for the first time anywhere I think) that the SNP' leadership's s next move might be to introduce a Referendum Bill, pass it through Holyrood and wait for it to be struck down in the Supreme Court. Nearly four years on that appears to be where they actually are, insisting to their rank and file zoomers that only the pandemic is stopping them getting on with that right away'

But when I wrote back in 2018 I had missed one vital point. I assumed a Reerendum Bill could be got running by means of a Minister signing a certificate of legislative competence in bad faith. (The Presiding Officer must also opine on this matter but the Parliament, by simple majority, can ignore that opinion), The point I was then unaware of however, was Section 3(4) of the Scottish Ministerial Code. It provides:

"A Bill must also be accompanied by a statement, which will have been cleared with the Law Officers, that the Bill is within the legislative competence of the Scottish Parliament."

[My emphasis]

Now. we have new Law Officers, Dorothy Bain as Lord Advocate and Ruth Charteris as Solicitor General. These positions, in a process started by Jack McConnell and continued by Alex Salmond, are no longer determined by the political affiliations of their occupants. That is an entirely welcome development. But it has consequence.

When Dorothy Bain was appointed the press were briefed that she believed that Holyrood could legislate for a referendum but the key was in the small print. For it was only on the basis that the referendum would be purely advisory. 

Now there is a body of academic legal  opinion that believes that to be true. It would be fair to say it is a minority view but it has reputable adherents. The point however is that the SNP is not proposing an advisory referendum. Why do we know this? Because in March 2021 they published the Bill they propose (supposedly) to introduce and the word "advisory" or any synonym does not feature.

But, in any event, what if the Lord Advocate says she believes, notwithstanding the text of the Bill it to be purely advisory and then competent, and even sustains that argument in the Supreme Court, what would holding this referendum achieve? Who is being advised? The SNP Government were more than advised in September 2014 but did they stop campaigning for independence? Of course they didn't. Indeed by the Summer of 2016 they were officially calling for the referendum to be re-run and have done so continuously since. If there was engagement from the electorate to the extent, again, that Scotland says No, would they take that advice? Of course they wouldn't. That would involve them resigning office and winding up the SNP.

So why would the other side engage? There would be literally no point. And, as I have pointed out before, if the other side don't engage, what are the chances of the nationalists getting even the 1.6 million votes they got in 2014. In this, entirely hypothetical, advisory referendum, what would be learned from the "advice" that fewer people had voted for independence then  than had done so in September 2014?

This is not happening. It's illusion of happening, to be fair, serves the purpose of getting Sturgeon through SNP Conferences. But that is its sole function.

Merry Christmas. War is over.


P.S. You'll be astonished to learn that, as I typed this, my client tomorrow has been in touch to advise his mother can't come to court tomorrow to give evidence against him as she has had a positive Covid LFT. He's even sent me a copy of her test result. Or at least of somebody's test result.


5 comments:

  1. I'm not quite sure what a "non-advisory" referendum would look like in this context unless it were in terms of Act of Parliament worded something like:-

    "1(1) There will be a referendum on the question of whether Scotland should cease to be part of the United Kingdom on [date A].

    1(2) In the event of there being an affirmative vote in that referendum, Scotland shall cease to be part of the United Kingdom on [date B]."

    Anything other than that "in the event of a certain result in a referendum, a legal result will ensue without further legislation" formula - and nobody, but NOBODY, could seriously believe for a second that legislation in these terms would be within the Scotparl's competence - is of necessity an "advisory" referendum. So in saying she believes an advisory referendum would be OK, Dorothy is effectively saying ANY referendum is OK.

    See what I mean?

    ReplyDelete
    Replies
    1. There is an example of a non-advisory referendum in section 2 of the now repealed European Union Act 2011 (i.e. an EU Treaty is not to be ratified unless a “referendum has been held, and..the majority of those voting in the referendum are in favour of the ratification of the treaty.”):-

      “2 Treaties amending or replacing TEU or TFEU
      (1) A treaty which amends or replaces TEU or TFEU is not to be ratified unless—
      (a) a statement relating to the treaty was laid before Parliament in accordance with section 5,
      (b)the treaty is approved by Act of Parliament, and
      (c) the referendum condition or the exemption condition is met.
      (2) The referendum condition is that—
      (a) the Act providing for the approval of the treaty provides that the provision approving the treaty is not to come into force until a referendum about whether the treaty should be ratified has been held throughout the United Kingdom or, where the treaty also affects Gibraltar, throughout the United Kingdom and Gibraltar,
      (b) the referendum has been held, and
      (c) the majority of those voting in the referendum are in favour of the ratification of the treaty.”

      Delete
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