WHEN looking at the past performance of the UK Supreme Court, it appears that it will not take a hypothetical view on something that is not certain to happen. So the declaration by the FM of Scotland Ms Nicola Sturgeon, to the assembled Parliament of Scotland, of October 2023 as the date for the independence referendum, would indeed seem to cover this aspect, together with the legal referral to the court’s justices, in accordance with the UK Government’s Scotland Act.
Of course, the UK Government could hypothetically commence to amend the Scotland Act, to forbid indyref2 unless it is brought into being at the behest of the UK Government, in which case the issue becomes hypothetical in the extreme.
The other issue for the Supreme Court would appear to be whether the Scottish Government, via its parliament, is allowed to ask its citizens anything related to UK Government reserved matters.
It is, however, clear that every political election in Scotland for the last decade or so has essentially asked its citizens whether the UK Government has adequately dealt with UK reserved matters.
The persistent existence of a pro-independence government suggests that the citizens of Scotland have indeed responded and set precedent to such reserved-matter questions.
I would therefore expect October 2023 to be the date of indyref2, unless Section 30 negotiations result in a different date, and further expect that the question from 2014 essentially includes EU membership, existent as per 2014.
Given the track record of this Tory UK Government – and the willingness of UK Labour to keep it in power to ensure that the UK is fully Brexit, in order to have any chance of winning the hearts of the English electorate – I have my doubts about the Westminster parliament willingly passing legislation to decolonise Scotland, any time soon, referendum or not. But, that’s a post-Yes2 question, one of many.
The other potential problem is that the UK Government has/is enacting legislation that reduces the chance of gradual divergence of standards after Scottish independence, to one of rapid divergence followed by gradual but more limited convergence. It is really quite different to take independence as a given, and then try and think of areas where close cooperation with the rUK would be readily possible, other than via the EU. At least not until both Scotland and rUK have written constitutions.
Scottish independence within the EU essentially will mean that Scotland would replace the UK Supreme Court with the European Court of Justice and would remain committed to the European Convention on Human Right. Northern Ireland already has international guarantors holding out this ECJ/EHCR position, with legal precedent set in the Good Friday Agreement and UK/EU withdrawal agreement.
With the NI union with the UK already subject to a potential dislocation, when demand is demonstrated to presumably internationally satisfied standards, so reserved matters are clearly somewhat flexible, and of somewhat hypothetical extent and rigour.
The question for the UK Supreme Court may therefore be whether the extent and rigour of UK reserved matters is in itself hypothetical, and indeed not simply a default of allocation of devolved competence. As such, I am looking forward to indyref2 in October 2023.
Stephen Tingle
Greater Glasgow
NICE one S Gus (Letters, July 5)! Witty treatise on why we should “get indy done now”. Or ... should we wait ... until ... Boris becomes an honest man!
Richard Walthew
Duns
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