The Supreme Court will announce their, likely unanimous, judgement imminently this morning and Wednesday 23rd of November will go down in history as an event in the course of the Scottish Independence journey.
Other event dates, from the Scottish devolution referendum on 11th September 1997 through Independence referendum on September 18th 2014 to Brexit referendum on 23rd June 2016are also part of our history but only time will determine each’s significance on HOW they influence the next steps and the outcomes that result.
We, the people of Scotland have a choice (maybe not yet at a ballot box again) but a choice none the less. Do we let potentially significant events become a footnote of our history or do we ensure that they are significant by making them as a catalyst to energise the sleeping giant of Scotland’s people’s collective power?
Whether you are convinced either way on Scotland’s constitutional future or as yet unsure, this is a moment when your voice matters, you may not easily get another opportunity to shape Scotland’s future.
Those who don’t want to discuss politics or engage in the future direction at the ballot box or between times, will still be consumers of the outcomes. We’ve been CONvinced by a largely insular politico bubble that it’s all too complicated or sophisticated for us mere mortals and they ‘have it covered’.
Well the evidence all around us suggests otherwise and the shiny veneer is wearing thin when people are faced by political failure at every turn. There is not less money, it’s just being skewed to those who need more the least, like Smaug luxuriating on his baubles.
So how should Scotland respond to this event? The judgement from SC could have a counter intuitive effect ironically. Let’s look at them in turn.
1.Is that it?
The Supreme Court do not take the Lord Advocate’s reference and say nothing on the substantive reference.
Result = UK Government win the argument made by James Eadie KC
Reason = draft Bill likely to be found premature (see Keatings)
Probability = low (LA made good points to counter James Eadie, draft bill by Scot Gov is not comparable to no bill in Keatings case). Probability of Bill being passed and coming back to SC via lower courts for judgement. The Supreme Court will find not making any opinion inadvertently drags them into a political arena they will want to steer clear of and stick to legal interpretation of Scotland Act and how it related to this reference re powers to hold an advisory referendum.
2. O bit er, since you asked nicely…
The Supreme Court do not take the Lord Advocate’s reference but express opinion on substantive reference, known as obiter dicta (opinion in court or written judgement that is not essential to the decision thus not legally binding as a precedent).
Result = UK Government win the battle of the argument made by James Eadie KC but the depending on content of obiter dicta they may not ‘win the war’ as the case is again likely to return to SC and a positive opinion on the LA’s reference will encourage a swift move by politicians to pass of an Indy Ref bill through Scots Parliament and a negative opinion may be the tipping point in national opinion for even those who are quite comfortable with devolution but are appalled at the thought of Scotland having a ‘locked door’ with no access to the key.
Reason = draft Bill likely to be found premature (see Keatings) but the Supreme Court will feel this needs at least an opinion expressed as it anticipates a return of a future bill to SC.
Probability = high, more likely than the first outcome and would explain the swift judgement (just over a month) when it was not expected until December 22 or even January 23.
3. Time for Plan B (or is it C?)
The Supreme Court does take the Lord Advocate’s reference and concludes that Scottish Parliament does NOT have the powers under the devolved settlement codified in the Scotland Act to hold an advisory referendum so see how the people of Scotland want to be governed.
Result = UK Government win the battle they didn’t really take part in as the vast bulk of the oral arguement and written submission was focussed on the argument that the La’s reference was premature and should not be taken.
Reason = There will be some wording to the effect that it is out-with the competency of Scottish Parliament’s competency gives resultant outcomes relate to reserved matter or some such. I will be intrigued to read the full judgement if this is the outcome as I thought the LA made a strong written submission and the oral submission although it didn’t set the heather on fire with its delivery. It did cover the core arguments, many un-rebuked by opposing council so should stand. Our favourite on ViveEcosse is the argument that questions the existence of the union (therefore by extension its Supreme Court giving this judgement).
Probability = the expected one if reference is taken but this optimist is going for medium
4. Eek, we’ve a referendum to win!
The Supreme Court does take the Lord Advocate’s reference and concludes that Scottish Parliament DOES have the powers under the devolved settlement codified in the Scotland Act to hold an advisory referendum so see how the people of Scotland want to be governed, as para 18 in Smith Commission states is our right.
Result = Lord Advocate confirms she can determine Scot Gov’s draft Indy Ref Bill as competent and there is nothing to stop this Bill being urgently introduced and passed through an independence supporting majority of MSPs while triggering an official campaign and energising the grassroots to move to formal campaign footing.
Reason = Given there is already a Referendums (Scotland) Bill 2016 which was uncontested and allows Scottish Parliament to hold referenda on any matters devolved, the case comes down to the subject of the referendum and whether the ‘opinion poll’ alone on independence brings it out-with devolved competency for Holyrood.
Many have argued “what’s the point in a glorified opinion poll?” while at the same time putting an expectation on International courts to uphold Scottish democracy. The elephant in the room is that it’s the most likely legal argument to get over the ‘reserved matters’ barrier but crucially, Scotland must first demonstrate the opinion of our people in a recognisable way to assist other governments to assist us. SNP, Greens, Alba and whoever else is pro indy, must have a singular clear, democratic offering if an advisory referendum is to be used as a next step.
Probability = the shock verdict but this optimist is going for medium
So then what?
Regardless of decision of Supreme Court, the next steps are largely the same and within Scotland’s gift!
Next Step: National Conversation announced to be kicked of by FM announcing a Constitutional Convention of elected, civic Scotland, campaign groups and thinks tanks who bring policy from the work of grassroots groups – on both sides of the constitutional debate.
Citizens’ Assembly to harness the momentum of result and engage the people through our representative voice.
Clear next democratic steps dependent on decision:
New draft Indy Ref bill brought by MSP and anticipating legal challenge having removed ‘premature’ barrier
Election where SNP, Greens and Alba must have a singular election offering if a plebiscite is to be used as a next step, essentially using a Scottish franchise election.
New Draft Referendum Bill taken to Scots Parliament as a matter of urgency.
Th key message from today must be:
Scotland’s future is OURS to write!