Why the SNP's latest "IndyRef2" legal gambit is a non starter

The SNP is willing to waste time and money breaking the law for a "dare".

The Scottish National Party (SNP) are still trying to find ways to force the UK government to agree to allow a second independence referendum. The Scottish Parliament has voted for it, Nicola Sturgeon has asked for it, and Theresa May has said "now is not the time", but hasn't ruled out blocking one for ever (privately Downing Street is briefing it intends the "bold" position of blocking one until 2021, when the next Scottish Parliament elections are scheduled).

So far the SNP themselves have strongly implied that they won't go to courtrun a wildcat referendum, or call a snap Holyrood election to seek an explicit mandate from the Scottish people. That doesn't leave them with many options.

Rather than focusing their efforts on stopping Scotland officially slipping into recession - whilst the rest of the UK powers ahead - their latest gambit is to try and pass a referendum bill in the Holyrood parliament and "dare'" Theresa May to go to The Supreme Court in order to block it.

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This is despite the fact that Holyrood cannot legally pass a bill on devolved matters such as the Union without the permission of the Westminster Parliament. In the legal parlance, Holyrood doesn't have "competence" to legislate, unless Westminster grants these powers to it (which it did temporarily for IndyRef 1 in 2014).

According to "senior SNP figures" who spoke to The Sunday Times, the SNP are going to try a "seldom used procedure" where Holyrood passes a bill that it knows it legally doesn't have competence to pass, in order to "dare" Theresa May to try and strike the law down in The Supreme Court afterwards. This is based on the apparent precedent of an unrelated bill previously introduced at Holyrood by Sandra White MSP, to outlaw pavement & double parking in Scotland.

Slight problem: this is a complete waste of time and is about as likely to succeed as Nicola Sturgeon joining the Tories.

How bills & competence work in Holyrood

When a bill is introduced in Holyrood, the person introducing the bill has to state that they believe it is within the "competence" of Holyrood to legislate for. The Presiding Officer (a bit like the Speaker in Westminster) also has to provide their judgement on whether Holyrood has competence. Both of these are legal requirements under the Scotland Act 1998/2016.

Scenario 1: Both introducer and Presiding Officer agree Holyrood has competence

The vast majority of the time, the introducer of the bill and the Presiding Officer both agree Holyrood has competence. There are rarely competence disagreements, because MSPs aren't in the habit of introducing bills they know don't have competence and wasting everyone's time (e.g a bill to abolish the Queen, or disband the Royal Air Force). If a bill is passed, it is signed by the Queen, and becomes an Act/law (there could still be and have been some legal challenges after this point but I won't go into these here).

Scenario 2: Everyone agrees Holyrood doesn't have competence, so asks Westminster to devolve powers ("Section 30")

When everyone agrees in advance that Holyrood doesn't have competence but Westminster and Holyrood have agreed a bill should still proceed (e.g. for IndyRef 1), Holyrood can pass a motion requesting Westminster grant it temporary powers under "Section 30" of the Scotland Act. If Westminster then grants those powers, any subsequent bill for a referendum will be agreed to by the Presiding Officer as Holyrood will now be temporarily competent. In the case of IndyRef 2, Holyrood has already passed this motion and Nicola Sturgeon has written the letter asking Theresa May for the Section 30 powers.

Scenario 3: There is a disagreement over competence

If the Presiding Officer says Holyrood doesn't have competence, the bill usually doesn't proceed to a vote. This is because even if there was a vote in favour, only the Presiding Officer can send the bill to the Queen for Royal Assent (and only then can it become an Act, or law). According to the Scotland Act: "The Presiding Officer shall not submit a Bill for Royal Assent at any time" if any of the "Law Officers" (the Advocate General, the Lord Advocate or the Attorney General, more on these later) are "entitled" to question "whether a Bill or any provision of a Bill would be within the legislative competence of the Parliament". If any of the Law Officers do want to question a bill, they refer it to The Supreme Court to make a final decision on who is right.

Clearly, if the Presiding Officer doesn't think a bill has competence, he is also going to believe the law officers are entitled to challenge it because of that lack of competence. Even if Holyrood voted on and passed such a bill over the Presiding Officer's objections, he wouldn't send it to the Queen, as he'd expect it to be referred to The Supreme Court - which it inevitably would be. Nobody would go down this route without the express intention of provoking such a challenge in the Supreme Court. Such a referral of this type has never actually happened in Scotland and this scenario is similar to the "plan" envisaged by the SNP.

The "Sandra Solution"

The SNP "plan" briefed to The Times is similar to Scenario 3, and apparently goes something like this:

  1. Introduce a bill for a second independence referendum in Holyrood
  2. Have an SNP MSP declare it competent
  3. Ignore the Presiding Officer when he says it isn't competent
  4. Move the bill through various stages of bi-partisan committee review (all of which will probably declare the bill lacks competence) 
  5. Vote on the bill and pass it
  6. "Dare Theresa May" to challenge the bill in The Supreme Court

What happens after this is unstated, because step 7 would almost certainly be "lose that case in The Supreme Court", making the whole endeavour pointless. It's not much of a "dare" when the other person is virtually guaranteed to win. Regardless, this is a "cunning plan" according to Wings Over Scotland (the most popular pro-independence blog), and a thing of "beauty" according to a "senior nationalist" who spoke to the Times.

Of course, the plan does have a few flaws. Let's go through them.

Flaw 1: The SNP have already acted as if Holyrood doesn't have competence to pass a referendum bill without Section 30 powers.

Nicola Sturgeon has written a letter to Theresa May asking for Section 30 powers for Holyrood to legislate for a new referendum. A motion was passed in Holyrood to enable this letter to be sent. The same procedure was followed for IndyRef 1 in 2014. The SNP said this is the procedure they would follow in their consultation on IndyRef2 in Oct 2016: "If the Scottish Government decides to formally introduce the Bill to Parliament, it would be expected that a section 30 order would be sought and agreed, as in 2014". Therefore, the SNP themselves are acting as if Holyrood doesn't have competence, which is why they asked for Westminster to grant it that competence. Why ask for something if you've already got it? And you can't logically say you actually never needed to ask for permission at all if the answer you get is 'no' (how can it be "permission" if the only answer allowed is yes?)


Note: Schedule 5 of the Scotland Act is clear that "The Union" is a reserved matter, hence the need for a Section 30 order. Despite this, during the initial skirmishes over IndyRef 1, some in the SNP claimed that Scotland had the right to hold an independence referendum and Holyrood had the competence to pass a referendum bill, despite the wording of Schedule 5. This argument ran something like this: we're holding an advisory referendum on the future of the Union, but since that vote itself doesn't actually alter the Union in any way, it doesn't relate to the Union itself. This bizarre proposition was never ruled on by the Presiding Officer in Holyrood, or decided by the courts, as Westminster agreed to a Section 30 order which put the lack of competence beyond doubt. The SNP isn't claiming - yet - that they are going to try this line of argument again. If they did try this approach and appeared likely to win the inevitable Supreme Court case (a virtual impossibility), the UK Government could simply pass a 'Scotland Act 2017' in Westminster specifically making holding advisory referendums a reserved matter, on the basis that the SNP can't be trusted to stay within the spirit of the law, so the law will have to be made more explicit.


Flaw 2: The "Sandra solution" provides no precedent for intentionally ignoring the Presiding Officer.

The Pavement/Parking bill introduced by Sandra White MSP was declared outside of Holyrood's competence by the Presiding Officer (in a detailed response with reference to the relevant sections of the Road Traffic Act). Sandra White simply said it was her "belief" Holyrood did have competence (with no supporting evidence). This created a dispute - though the bill wasn't withdrawn immediately and carried on being considered by various committees "as if" Holyrood did have competence. But this was a genuine dispute about competence and the SNP later admitted the bill shouldn't be put to vote or proceed any further as a result of these issues with competence.

The anonymous "Senior SNP figures" are trying to pretend to The Sunday Times that this creates some kind of precedent. This is absolute nonsense - it doesn't. The Parking/Pavement bill:

  1. Wasn't put to a vote
  2. Wasn't passed by Holyrood
  3. Wasn't sent to the Queen for Royal Assent

All three of those would have to happen this time around. In addition:

  • Holyrood's Local Government and Regeneration committee admitted the White/Parking bill possibly "could not proceed" and flatly declared the bill "was not within the legislative competence" of Holyrood
  • The SNP Transport Minister at the time (Derek Mackay) recommended "no further action should be taken" with the bill, until "legislative competency" issues were resolved, and that the bill be dropped until Holyrood was given competence by Westminster
  • The bill itself was abandoned when Session 4 of Parliament dissolved in March 2016
  • The Scottish Government asked the UK Government to devolve the powers necessary for such a bill to Holyrood (it later did devolve these powers in the Scotland Act 2016, despite these powers not being promised in the 'vow' in the 2014 referendum campaign or recommended by the Smith Commission).

These were major issues with legislative competence over a law outlawing parking on the pavement. Imagine the challenges with a referendum bill.


The Sandra White bill wasn't put to a vote in Holyrood

Holyrood's Local Government and Regeneration Committee accepted the bill may not be able to proceed and only continued to explore it "as if" Holyrood had competence (SP Paper 907, 8th Feb 2016)

Holyrood's Delegated Powers and Law Reform Committee - confirming the Scottish Government requested powers be devolved to resolve the competence issues (SP Paper 819, 28th Oct 2015)

In a debate on 1 March 2016, Sandra White continues to state it is her "belief" that Holyrood had competence to legislate, whilst confirming she was in discussions with Westminster and the Scotland office to delegate powers to put the issue beyond question

SNP Minister (Derek Mackay) confirming to the Local Government and Regeneration committee that no further action should be taken on the bill "until legislative competence" issues are resolved (SP Paper 907, 8th Feb 2016)

 

The Local Government and Regeneration committee admitting "the bill was not within the legislative competence of the Parliament" (SP Paper 907, 8th Feb 2016)


But let's say that unlike in the "Sandra Solution" the SNP decide this time to force an IndyRef2 bill through all of its committee stages and put it up for a vote, despite the competence issues. What happens then?

Flaw 3: One of the Law Officers will refer the bill to The Supreme Court, not "Theresa May"

All three of the law officers will know the bill doesn't have competence - at least two of them would refer it to The Supreme Court, and probably all three. Richard Keen, the Advocate General will definitely challenge it. As would Jeremy Wright, the UK Attorney General. James Wolffe, the Lord Advocate could also step forward to challenge the bill, despite being appointed by Nicola Sturgeon, although the preferable scenario for the SNP is for Keen to make the challenge - as he happens to be a former Chairman of the Scottish Conservative Party and someone the SNP once linked to the Poll Tax. But it will be trivially easy for the UK Government to play this as "the Law Officers" referring the case to the Supreme Court - Theresa May's name won't be anywhere near it.

Flaw 4: The SNP will almost certainly lose in The Supreme Court. 

Regardless of which Law Officer refers the bill, The SNP and Scottish Government would almost certainly lose the case in The Supreme Court. Whilst it is true that "whether the Scottish Parliament can unilaterally hold an ‘advisory’ referendum on [independence] has never been finally resolved", that doesn't mean it is at all likely that when it is resolved, it would be in the SNP's favour. Given the past precedent of using Section 30, it seems extremely likely they would lose.

And given that the Supreme Court would probably consider this "dare" a massive waste of legal time, I wouldn't be surprised if they issued a damning indictment of the entire exercise as they threw the case out. The Supreme Court has already commented in a previous case that the "remarkable" lack of legislative competence legal challenges is due to the the Scottish Parliament being careful not to introduce measures that obviously aren't within its competence.  While some SNP-er's might be persuadable that The Supreme Court is a "Tory Court" or any loss a "legal stitch up", most sensible people in Scotland would see a Supreme Court loss as a huge, predictable and costly defeat for Sturgeon and the SNP that hardly advances their cause.

There is also the question of timing - how long would it take to debate the bill in Holyrood, force it to a vote, and have the Supreme Court hear and decide the case? At least several months, at the end of which the SNP would be back where they started with nothing to show for it.

The scheme that Schedule 5 sets out lies at the heart of the devolution settlement. It contains a long and complicated list of reserved matters which, at first sight, might have been expected to give rise to frequent disputes which would require to be resolved by the courts. That this has not happened until now is due partly to the use of legislative consent motions ... [and] also due in no small measure to the care that is taken by officials within the Parliament to ensure that the provisions that the Scottish Parliament does enact are within competence
— Imperial Tobacco Ltd v Lord Advocate (Scotland) [2012] UK Supreme Court Case 61

 

Conclusion

A second independence referendum bill, if introduced to Holyrood would be declared as lacking competence by the Presiding Officer, and probably never even receive a vote. In the unlikely event there was a vote, and it passed, the Presiding Officer wouldn't send the bill to the Queen - and the inevitable appeal to The Supreme Court would very likely result in the bill being struck down as an obvious violation of the law. About the only benefit the SNP would get out of this process is the ability to hold debates in Holyrood about the bill, and keep the issue of a referendum in the public eye.

But, it seems unlikely that many Scottish people will be happy to watch taxpayers money being spent on a futile legalistic exercise that has virtually no hope of success, merely to try and drum up grievance against the UK government - especially considering Holyrood's lack of legislative activity over the last year in areas the Scottish Government is actually responsible for: NHS Scotland/health, education, agriculture, etc. How are the SNP going to explain taking Parliamentary time debating a bill that they know won't ever become law, and spending money on lawyers, simply for a "dare", whilst the Scottish economy is probably already in recession?

That this ill-considered timewasting exercise is considered a potential "plan" by "senior SNP figures" only demonstrates one kind of competence: incompetence. If the non-precedent of a bill banning parking on the kerb is the best the SNP have got, it also shows that they are fast running out of effective options for how to proceed in the face of determined UK government opposition to a second independence referendum and are unsure of what to do next.