Tag: Supreme Court

At the demo outside Holyrood in the wake of the Supreme Court decision Catalan-Scot Valentina Servera Clavell made this demand of Westminster on the subject of a voluntary union, “If this union is voluntary, show me the door, so I can walk through it.”

That, for me, pretty much summed up the new democratic stage we find ourselves performing upon. It has very much been on my mind ever since.

I’m thinking out loud again and this will probably get me in a bunch of trouble, like it did the last time, but there you go, ideas need to be shared and stress tested if we are to come to sound conclusions.

I haven’t read any of Gordon Brown’s proposals but I’ve seen enough to know he’s taking the piss.

After the last time I shot my mouth off, about devo-minmax on that occasion, I heard from a lot of folks that I was an eejit and from a surprising number of folks outside the Yes movement who thought they saw an opportunity or a weakness in the Yes camp.

That included folks close to Gordon’s ‘think-tank’ that was supposedly beavering away on these proposals. So I know they know what the problems are and what the solutions might be for them.

So the rubbish they published on Monday feels like an insult. Not to me, or the Yes movement, but to uncertain No voters that are becoming increasingly disillusioned with a UK that is demonstrably no longer the voluntary union they believed it was.

What I don’t think Labour truly understand is that the union’s voluntary nature is part of the glue that holds the UK together. Folk that were worried about the risks of leaving the UK back in 2014 felt safe to vote No because they were in a voluntary arrangement and they could always change their minds at a later date. The fear of the possible downsides of choosing independence outweighed any fears they might have about the status quo because if the worst came to the worst they could always change their minds.

The Supreme Court changed all that two weeks ago and Gordon’s milquetoast recommendations have only highlighted the enormous danger that a marriage they might be having second thoughts about is beginning to turn into something involving basements and padlocks.

That Constitutional Democratic Deficit really is potentially existential for Scotland and very large numbers of Scots are becoming persuaded that enough is enough.

Last week I wrote that I thought that having an Emergency Conference was the right thing for the SNP to do. It absolutely must be up to the rank and file to make the decisions about how the party proceeds from here. However, I am very concerned by the number of senior figures in the party I’ve seen attempting to frame the narrative and trying to steer the discussion towards particular outcomes.

To my mind, based on what the First Minister said when she announced the reference to the Supreme Court and on the outcome of that reference, it is pretty straightforward.

The majority of the electorate in a nation where the People are Sovereign authorised the holding of a referendum on independence in May of 2021. The Supreme Court has ruled that a mandate won in a Holyrood election isn’t good enough to meet the necessary constitutional standard. In my opinion they are wrong and are no longer upholding the rule of law. From a practical standpoint however it is necessary to tick all the legal boxes on our path to independence if there is a risk that we might have to rely on international recognition alone.

The Supreme Court implied, and a number of ‘neutral’ observers have agreed, including the Dean of the Faculty of Advocates, that the Sovereign People of Scotland exercise their Sovereign Will at the ballot box in General Elections for Westminster Members of Parliament.

A majority of votes at a WM GE is a clear, legally accepted, expression of the Sovereign Will of the People of Scotland. Such a de facto referendum would not just be advisory, it would be immediately self executing. What legal superior do the Sovereign People of Scotland have?

They are all careful not to say so too directly but that is essentially the answer you get from them when you press them to tell you what legal route Scotland has out of the UK.

To me talk of having a de facto referendum to seek permission to have an independence referendum that the People of Scotland have already mandated repeatedly is a tactical error that will simply result in us failing to reach the necessary threshold. We need a direct mandate for independence, if Westminster refuses to recognise the outcome, as table stakes in the game of international recognition. Anything less risks having to wait another entire UK election cycle.

But I do recognise that a stance of ‘That’s it, we’ve had enough, if we get a majority we will immediately issue a UDI and form an independent government’ might be a bit strong and risks putting off voters that are annoyed by the refusal of the UK to recognise the democratic mandate of the Scottish Government to hold an independence referendum but don’t necessarily want to vote Yes or would vote Yes but not to a UDI and possibly ending up like Catalonia.

That too might well end up with us falling agonisingly short and failing to achieve our goal.

So it occurred to me, whilst I was fuming about the rubbish Gordon Brown was proposing and ranting to myself that I had told them what they needed to do and they just didn’t listen or deliberately chose to keep repeating the same old stupid strategy of offering a drowning person vouchers for swimming lessons, that there might be a third way based on the proposals I got such a hard time for at New Year.

See the thing is, a de facto referendum at a General Election is either good enough to legally achieve independence or it isn’t.

What I mean by that is that the UK will either accept Scotland’s independence after a majority vote at a GE or it will continue to put its hands over its ears and scream ‘la la la la la’ until the end of time.

If it does the latter then we are in the messy territory of declaring independence unilaterally and seeking international recognition despite the rUK’s objections.

If it does the former then it will be showing us the door, that they are pretending doesn’t exist presently, unlocking it, and letting us walk out because the People of Scotland are Sovereign and it is constitutionally impossible to ignore their wishes if they express them clearly in a majority vote at a UK General Election.

It’s a binary proposition. The rUK will either behave one way or another but the only way we will find out if they will behave in the latter manner is if we win a majority of votes at a General Election on a single issue manifesto.

So if we go into that de facto referendum with a platform that risks failing to get that majority we are cutting off our nose to spite our face.

So here is where I resurrect an idea that nearly got me laughed off the face of the Earth 11 months ago.

We stand on a platform of asking the Sovereign People of Scotland to make unilateral changes to the Scotland Act and the Act of Union that protect the existing powers of Holyrood and expand them in such a way as to ensure that Holyrood can call referendums on reserved matters and that those referendums will be binding and self-executing.

If we are living in one of the worlds where winning such a de facto referendum would have resulted in independence we will have the power to hold a referendum on independence whenever we like, we could even afford to lose that referendum because we could always hold another, there would be nothing Westminster could do to stop us, and Westminster would no longer have the power to change our laws without our permission or reduce the powers of Holyrood.

We could even start gradually expanding Holyrood’s powers in a similar manner to the Faroe Islands. Perhaps we could start by taking back power over energy, or pensions, or foreign policy.

We would have maximised our chances of winning a de facto referendum by not alienating those that are still on the fence about independence, we would still have the best possible chance of achieving independence with a legal, recognised referendum with the full franchise and less pressure on voters to make irrevocable decisions, and we would have given Holyrood a whole suite of new powers that would make independence inevitable in the medium term.

But what if they still say no I hear you cry?

Well, we can make it clear in that case that the rUK will be finally and irrevocably turning its back on democracy and the idea of a voluntary union. At that point Scotland will have been illegally annexed without the consent of its population. They will be bricking over the door that they have claimed leads out of the union.

Then, and only then, we’ll have no other choice than to seek recognition from the international community. I don’t think that backup plan will depress a Yes vote because it relies on Westminster acting in a way they have always claimed they will not. The union would be dead and buried as a concept if they did that.

We’ll be saying ‘Show us the door, unlock it, open it, and let us decide whether we walk through it or not”. It needn’t be the end of the UK if we win but it will be the end of the UK as it is presently constituted and it will settle forever our right to leave whenever we alone choose to do so.

That seems like a win, win, win to me.

DON’T LET THE SNP LEADERSHIP USE THE LAW AS AN EXCUSE FOR POLITICAL INACTION

I originally wrote this about three years ago, in frustration at the SNP leadership continually telling us what we couldn’t do, instead of looking for ways to get round legal blockages. I think it was aimed at the National, but they weren’t that keen on articles criticising the SNP (or maybe it was just boring!) and it never saw print.

The recent Supreme Court case has brought the law back into foreground of the independence debate and, although this has changed the debate to a certain extent, I still think that the gist of what follows is still relevant:

“A major frustration of many SNP members is the timidity of the Leadership in challenging the legal status quo. Law is presented as immutable and we are repeatedly told that various powers haven’t been devolved, so we must obey the letter of the law as it stands.

Now, I’m not a lawyer, I’m an ex tax inspector turned accountant and tax adviser. However, I spent a whole year of my Inspector training studying tax law, and my entire professional career has subsequently revolved around the construction and usage of taxation law. So, I think that I can say with confidence that, far from being immutable, the law is full of inconsistencies and is constantly challenged by political and business pressures. 

For example, when I worked for one of the ‘Big 4’ accounting firms a major client bought into a tax avoidance scheme.

HMRC challenged the scheme. But we were on legally solid, if complicated, ground and HMRC’s arguments never got beyond “we don’t like it, so it must be illegal”.

But, despite not being able to fault the scheme legally, HMRC kept on going – they raised spurious points of law, asked endless questions, and made difficulties with other aspects of the company’s business. Eventually we did a deal – the company revised its tax returns to remove the avoidance scheme and HMRC agreed to accept a tax only settlement, with no interest or penalties.

Which illustrates that, in reality, agreements often have very little to do with the strict letter of the law. HMRC made an essentially political decision to press ahead and the company made a business decision to agree a settlement when continuing became more trouble than it was worth. The law does not exist in isolation and shouldn’t be treated as if it does.

And challenging everyday legal assumptions can have interesting results. A self employed trader who religiously submitted his annual tax returns didn’t register for VAT when he exceeded the threshold. Four years later, he received a demand from HMRC for unpaid VAT plus penalties and interest. 

But was this the open and shut case HMRC thought it was? Broadly, if an inspector has information which is ignored or misinterpreted, HMRC cannot subsequently raise retrospective assessments. Except, these rules were created to protect taxpayers involved in genuine disputes over legal interpretation. They were not intended to help someone who ignored VAT registration requirements.

But HMRC based their VAT calculations on the four year old self assessment returns and never asked for further information, implying that they must have had enough information all along to make a decision on raising the VAT assessments, but hadn’t done anything about it. 

HMRC insisted that the retrospective assessment rules didn’t apply to late registration cases, but we persisted. The case kept getting kicked upstairs until it reached the top. At which point we received a letter from HMRC’s Policy Division cancelling the assessments, as pursuing the case “would not be in the public interest”, which is HMRC code for “If this goes to court, we could lose”.

Which nicely illustrates two points – when people in authority tell you what the law means, what they’re really telling you is what they want it to mean and, secondly, you need to think outside the box as the law is full of unintended consequences which can lead to unexpected results.

But the idea that the law is open to interpretation and that you can maybe use it to your own advantage appears to be of no interest to the SNP leadership. I was involved in two (pre-lockdown) proposals to amend conference resolutions that ended with a variation of the feeble “conference requests that the Westminster Government devolves this power to Scotland” which we all know is simply not going to happen. Both proposals, on Glasgow safe drug rooms and post-Brexit human rights, suggested an outside-the-box/ lateral thinking approach to the relevant law, so that there would be actual actions and consequences if the powers were refused.

So what was the response of the SNP’s leadership, hiding behind the conference committee? On the Glasgow safe drug room issue – “The proposal that the working party would examine the use of health legislation to bypass the fact that drug law remains reserved, was not found to be credible”. There was, of course, no explanation of why it was not credible (and the proposal had been worked on by people who knew what they were talking about).  

And on a post-Brexit human rights proposal – “the committee wasn’t convinced that the mechanism proposed circumvented the conflict – it just delayed it somewhat” Which spectacularly missed the point that the proposal was specifically about pushing at the boundaries to find out exactly what could be achieved (or not).

What the leadership and the committee were actually doing was preventing the conference discussing what the SNP could do to get round arbitrary reserved restrictions, because the leadership didn’t want to rock the boat. And why is this important? It’s important because of the message that it sends out. A political organisation that challenges the status quo on small things, and is constantly trying to push at the boundaries of what is possible to achieve change, is an organisation that is going to be taken seriously, both by  opponents and its supporters. Sometimes it will win, sometimes it won’t, but you can’t win if you don’t even try.  

So, when people tell you that the law is immutable and that the SNP mustn’t push at the boundaries, they’re lying to you. And if the SNP leadership tell you that a Section 30 order is necessary for an independence referendum, that the actual terms and conditions of the Treaties and  Acts of Union are irrelevant today, or that devolved health and safety legislation couldn’t be used to get round problems with, say, safe drug consumption rooms, they’re also insulting your intelligence and taking you (and your vote) for granted.

When you hear that sort of thing, challenge it – ask why, ask what research has been done, ask where and when these assertions have actually been tested legally. Legal challenges won’t always succeed but, if you won’t make the challenge in the first place, then you’re pretty much conceding that you’re just a harmless talking shop that can safely be ignored. Just remember that one of the main reasons for the SNP’s disastrously poor performance in the 2017 Westminster election was because of its failure to convince its supporters that it was worth making an effort. 

Above all, don’t let people who are supposed to be promoting independence use the law to intimidate you and excuse inaction.

What we really want to hear is how the law can be used to  our advantage!

So What’s Next?

Well, that was then, and now we have to deal with the fall out from Nicola Sturgeon’s Kamikaze mission to the Supreme Court. But politics will always trump the law.

Look at Kenmure Street – I’ve been told by Alyn Smith and Joanna Cherry (!) that the SNP had to be whiter than white legally and couldn’t rattle the bars of the cage or do anything provocative.  However, SNP MPs/MSPs, from Nicola Sturgeon down, were more than happy to jump on the Kenmure Street bandwagon when ordinary people took matters into their own hands, despite refusing the previous year to have a resolution on this kind of action discussed at Conference.

So, in the independence movement, I think that we ought not to get too wound up about the Supreme Court decision, and focus more on contact with the general public, getting information out to them and building a strong, popular political movement, than just on conventions and conferences. And, despite the Supreme Court, there is still plenty of scope for using the law to rattle the bars of the cage and make the independence movement look like something more than a talking shop.