Good afternoon and greetings from my garden where, improbably in the West of Scotland in June, it is actually sunny and warm enough to sit in the shade to see a lap top screen.
As you are probably aware Sturgeon once again this week "restarted" the campaign for a second independence referendum with a paper which had as much rationale as one from Cowdenbeath suggesting that, since Manchester United and Liverpool play in red, if Cowdenbeath only started playing in red then they would soon be just as successful in European competition.
But I'm not here to mock Sturgeon (beyond that) but rather to try to bring together in one place various propositions surrounding this initiative which remain misunderstood by political commentators who, frankly, in many cases should have better informed themselves. I don't think I'm saying anything new, just trying to bring it together in one place.
The easiest way to do this is by asking various questions of myself and then answering them, For the sake of brevity I will only cite sources where absolutely essential.
Question 1, Could Scotland unilaterally declare itself independent?
Patently not. There are various legal obstacles to this but altogether more practical issues in to the bargain. HMRC and The DWP are UK institutions without access to which we'd have no way of collecting taxes , paying for public sector wages and, even if we had access to resources, paying pensions or benefits. That, rather than dry constitutionalism, is why events in Catalonia were such a farce.
Question 2. Would that change if we had a unilateral referendum and voted for independence?
No, why would it?
Question 3. Could the Holyrood Parliament hold a unilateral referendum anyway? .
No. The constitution and the Union are matters reserved to Westminster. Any attempt to do so would be stopped in the Courts but it wouldn't even get to the stage of that as to even introduce such a Bill the Ministerial Code requires the approval of the Law Officers, which would patently not be forthcoming given the law is so clear. Indeed, by the SNP's own admission they haven't even asked them. And does anybody think that if Alex Salmond thought he could just do this then he wouldn't have done so in 2011?
Question 4. So what is Sturgeon's "Wizard wheeze"?
The Nats think they can get round the problem immediately above by introducing a Bill declared to be expressly "advisory" which might get Law Officer consent. More importantly which might get through the Courts.
Question 5. Would it get through the Courts?
This could only be decided once it was passed. It is well established law that the Courts can interfere in Holyrood's activities as they go on (Whaley v Watson) but the relatively recent decision in Keatings v The Lord Advocate indicates they'd be reluctant to do so.
Question 6. So it would be up to the UK Government to refer the matter to the Supreme Court?
No. This is easily the most common misconception repeated as late as this morning by Martin Geissler on the BBC. In terms of s.29 of the Scotland Act 1998, legislation passed by the Scottish Parliament outwith its legal powers is not law and can therefor be ignored by private citizens and public and private corporate bodies. My best theory as to how things would then play out is that in a Council not controlled by the nationalists, the administration would instruct their officials not to comply with any central government instruction to start to organise such a referendum as it is not law and force the Scottish Government to take them to Court. Alternatively any Scottish citizen could bring proceedings to declare the legislation null and void. That's what happened with the named person legislation. Michael Gove has already said on the record on TV that the UK Government themselves would not bring a legal challenge. Something simply ignored as journalists dance a jig to a nationalist tune.
Question 7. Who would win such a litigation?
That depends on the terms of the Act as passed. If it contained an express declaration that "The result of the vote in this referendum will be of no consequence whatsover.". or they even made that concession in court itself then the Nats might win.. The latter concession is not as absurd as its sounds . They did of course win the court case to strike down their ban on fracking by advising they hadn't actually banned fracking, they just had said that they had. Alternatively, if the court took the view that they could then look to the purpose of the vote and conclude that it was to advance something itself ultra vires of the Parliament they might well lose. The balance of academic opinion is in the latter camp but it is a balance and nobody has seen the putative legislation.
Question 8. Which court would decide this?
In the first instance the Outer House of the Court of Session and on appeal the Inner House. It could in theory go to the Supreme Court but only if the Party then in the losing position chose to send it there. You could therefor see the SNP Government asking the UK Supreme Court to overrule our highest, purely domestic court but somehow I doubt it would come to that.
Question 9. What happens if the legal challenge succeeds?
That's the end of the matter. Forever. For it would be established that Holyrood could never hold a referendum, even an "advisory" one, on a unillateral basis
Question 10. And what happens then?
You'd need to ask the SNP that.
Question 11, What happens if the legal challenge fails?
There is an advisory referendum. We don't turn up on the basis that the SNP would only accept the advice if it was advice they wanted to hear. That was precisely the outcome in 2014.
Question 12. But doesn't that mean they'd win?
Well yes and no. You see, back when they first suggested holding an advisory referendum, as long ago as the 2007-11 Parliament, this might have been, if allowed, a useful tactic. But we have since had an actual referendum with an unprecedented turnout. A referendum where the nationalists got 1.6M votes while losing. Now that referendum took place in an unprecedented blanket of media coverage. That would not, outwith the pages of The National (circulation 20,000, supposedly), be repeated. And if you made the effort to vote Yes then it was in the belief your vote would trigger actual independence. That belief wouldn't be there either in 2023 (ha ha ha). They most certainly would win this one horse race. They might even, with a huge amount of effort, get a million votes. But, the day after, all the UK Government would say is "The SNP have spent £20M of public money to establish that fewer people want Scottish Independence now than did in 2014. We could have told them that for nothing."
Question 13. What happens then?
You'd need to ask the SNP that.
Hopefully that answers all the questions addressed to me via twitter. If I've missed anything anybody needs to know please get back to me on twitter as I've blocked replies because I get ridiculously spammed here by people advising me how to cast a spell to get my wife back, Advice I don't need partly because I don't believe in spells and partly because she has not left me. Although, admittedly she has spent a ridiculous amount of time out shopping for doorknobs so, perhaps, who knows.
And with that I think I've earned a beer.
