Without Section 30, the law won't help Scottish independence

The First Minister rightly argues that “whether or not Scotland becomes an independent country must be a matter for the people who live here – and for all of us, wherever we come from. It is not a decision for any Westminster Prime Minister – and certainly not for one who suffered a crushing defeat in Scotland.” In the wake of the General Election result, that democratic case is unimpeachable.

Thoroughly soaked by their winter campaign, the Scottish Tory script has fallen apart in their hands. It has left Boris Johnson and his Tory drones buzzing around, looking for any other justification for ignoring how the greater part of the Scottish public actually voted.

Jackson Carlaw ran a campaign based entirely on the resisting prospect of indyref2. Like the rest of the party’s platform over the last half-decade, his campaign was essentially anti-political. The Tories offered the public a vacuous, policy-free zone, enlivened with a bit of casual misogyny at the First Minister’s expense. Carlaw offered the promise of a quiet life of easy privilege.

It failed.

Stephen Kerr was vaporized in Stirling. Pete Wishart transformed his 21-vote majority into one of 7550 in Perth and Perthshire North. In Angus, Kirstene Hair – who famously couldn’t make up her mind how to vote on Brexit – has been relieved of any responsibility for making difficult choices about the future of our country ever again. Auf wiedersehen too to Paul Masterton – who seemed like a sweet enough boy but became thoroughly corrupted by the compromises of office – punted oot by the voters of Renfrewshire East.

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It was also a Tory campaign with no nous for expectations management – or too few activists on the ground to get a real sniff of what was coming. Days before the poll, they were bigging up their chances of unseating Angela Crawley in Lanark and Hamilton East. They were confident of an “upset”. Shona Haslam – the leader of Borders council and the Tory candidate – described the constituency as “a solid Unionist, royalist, Rangers-supporting heartland”. You might think of this as an Orange wave. But having been promised – it never appeared. Haslam lost out to the SNP candidate by a thumping 5187 votes. We can all be guilty of listening more closely to people who agree with us rather than those with jarring, alternative outlooks. It’s easy to mistake your diehard base feeling more and more riled up against Nicola Sturgeon with the wider community experiencing similar intensity conniptions. But serious political parties can’t afford these kinds of self-indulgent fantasies.

Having thrived on the giddy sense of momentum after their 2017 results, the Scottish Tories are experiencing a skull-cracking hangover this weekend. The only silver lining is they won’t have to fish Ruth Davidson out of Loch Ness, and Nessie will avoid a sustained course of treatment for post-traumatic stress disorder. The Scottish Tory slogan – and all they have is their slogan – failed. Annie Wells’ lambeg drum has been perforated. And in the dumb silence which follows? There’s really just silence.

For the Union’s prospects in the longer term, this was the worst conceivable outcome. Whether you’re sitting in Newton Mearns or in London, there is no evidence this Conservative Party has the foggiest idea what to do about the Union after Carlaw’s softcore Ian Paisley impression left most of the electorate cold. They seem to have no imaginative capacity to make a positive case for our continued political association with the rest of the UK. Guile having deserted them, all the Tories have left is force. But unions aren’t preserved in the long run by the word “no.” States don’t become stable by blasting “never, never, never” into a loudhailer. Constitutional tensions don’t evaporate by ignoring them.

This is now a stricken Union. Without imaginative responses, it will drown in the pessimism England’s natural party of government has created. Friday was a sore dawn for many of us. But this week, a new generation of Scots has fully experienced what their parents and grandparents have all been through. A new generation knows what it looks and feels like to be governed by a Tory majority which the overwhelming majority of voters in your country reject. A new generation has been left doubting if a progressive UK is possible.

Carlaw not only ran a poor campaign, he is now being investigated for voter fraud

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So what’s next? During the campaign, Nicola Sturgeon has been plagued with questions about legal tricks she might have up her sleeve, if – as seems likely – Boris Johnson is disinclined to acquiesce to the democratic demand for a second referendum on independence. Folk, understandably, want to know if there might be some legal route to challenge the Tories in court. The First Minister and her ministers have issued guarded, non-committal responses. They would “consider all options” in the circumstances, they’ve said.

So could the Scottish Government take the next Johnson administration to court for refusing to make an order under Section 30? I’ll be frank with you. Parking my own political preferences, looked at in the cold light of day, with my lawyering monocle in – I can’t see how any such legal action could fly.

Firstly, some context. There’s a lot of confusion about Section 30 orders, on all sides of the constitutional argument. The way the phrase is thrown around, you might imagine it’s a legal rule about referendums particularly, essentially a permission slip from Whitehall to hold a poll. It isn’t like that at all. Take a moment to look up the text of Section 30 of the Scotland Act – and you’ll read nothing about independence, or referendums, or even the constitution.

So what does Section 30 do? With a little help from Her Majesty the Queen, Section 30 gives the UK Government the legal power to alter the list of reserved matters which fall outside Holyrood’s powers. Such an order was made before the 2014 poll. For a time-limited period, David Cameron’s administration put it beyond legal question that Holyrood had the legal authority to design and deliver the first referendum on Scottish independence. The upshot? Section 30 gives the Johnson administration legal powers to change the Scotland Act – but it doesn’t actually require the Government to do anything.

Consider what’s missing here. There isn’t a dispute mechanism written into the legislation. The Scotland Act has nothing to say about how the UK Government should respond to demands from Edinburgh for the legal underpinning of devolution to be amended. Even such demands have no real legal status. The Act doesn’t give the Scottish Government a right of review or appeal.

So what would the Scottish Government’s course of action be if Johnson tells the First Minister to get stuffed? What legal basis might they have to challenge this inaction? Let’s begin with Scottish constitutional principle of the sovereignty of the people. Can’t that be prayed in aid? Didn’t Westminster endorse the “sovereign right of the people of Scotland to determine their future” in a debate in July last year? Doesn’t that count for anything? The argument of democratic legitimacy is forceful. The political demand is unimpeachable. But the legal orthodoxy sees things differently.

While Lord President Cooper held in MacCormick v Lord Advocate that “the principle of the unlimited sovereignty of Parliament is a distinctively English principle which has no counterpart in Scottish constitutional law” – it doesn’t follow from that, that the courts have a legal basis to force the Prime Minister to give Holyrood the power to hold independence referendums. The fact a majority of the MPs who voted on Ian Blackford’s motion endorsed the language of the 1989 Claim of Right has no legal teeth either.

So, what about the Act of Union then? Unsurprisingly, this founding document of the British state, written as it was in a largely undemocratic age, is entirely silent on the kind of popular, national referendum we’re contemplating here.

And what about the principle of self-determination more general? That’s written into the UN charter, isn’t it? It’s a cardinal principle of international law? Well, yes and no and maybe. The concept of self-determination is indeed a core plank of modern international law – but most of the time, the concept of self-determination doesn’t entail a right to secede which the international community would feel bound to recognise. Just ask the Catalans. Scotland is not Kosovo. But beyond this, we also have a dualist legal system in Scotland, which sharply distinguishes between international law and domestic law – and here’s the kicker – international law isn’t directly enforceable in Scottish courts.

What about the European Convention on Human Rights then? That’s a non-starter too, I’m afraid. The ECHR protects many fundamental rights: religious freedom, privacy, free expression, fair trials. Thanks to the Human Rights Act – which must be hanging from a shoogly peg given the scale of Johnson’s majority – its provisions can be directly enforced in Scottish courts. But if you thumb through the ECHR’s many articles, you won’t find self-determination listed there. EU law has nothing to say about self-determination either. Might the co-operation to deliver the 2014 generate substantive legitimate expectations which the courts would enforce against a reluctant Prime Minister? It is difficult to see how this could work.

Law isn’t the lifeboat you’re looking for. Law can’t solve this problem. The Conservative campaign was premised on the idea they could ignore Scotland’s uncomfortable place in this increasingly uncomfortable Union with impunity, indefinitely. For Tories and the SNP alike, clever lawyering isn’t going to resolve the present impasse, or reintegrate this increasingly disunited Kingdom. Only political pressure can.