Legal expert explains why the refusal of a Section 30 order wouldn't end indy

So potentially there is a legal roadblock on the ­political path to independence.

A lawful referendum is the “gold standard” of ­democratic legitimacy which is essential to ­achieving independence. If Holyrood were to try to hold ­indyref2 without the necessary lawful authority it would face at least three fundamental problems.

Firstly, it is by no means certain that the ­returning officers in the local authorities would obey an ­unlawful instruction to hold such a referendum. ­Secondly, such a wildcat referendum would be ­boycotted by Unionists, destroying its ­credibility as a democratic exercise. One only has to look at the ­dismal ­experience of Catalonia to see this. ­Thirdly, such an unlawful referendum would not be ­recognised by either the UN nor the EU as the basis for Scots ­independence.

So, despite what some may think, Scots UDI is ­simply not practical and any attempt to pursue it would damage the credibility of the cause of ­independence irreparably both domestically and ­internationally. The road to Scots independence must be lawful or it will lead nowhere.

Ultimately, the battle between Nicola Sturgeon and Boris Johnson to hold a second referendum can be understood as a competition between two competing visions of sovereignty: the political versus the ­legal. The First Minister rightly rests her case for holding indyref2 on the democratic mandate given to the SNP and the other pro-independence parties on the results of the 2021 election. This is ultimately an argument founded on the sovereignty of the people of Scotland, and it is a political argument.

Johnson, of course, has no political mandate from the people of Scotland. In the 2019 British General Election the Tories won only 25.1% of the Scottish vote and in May 2021 the Tories again received only around 25% of the vote. But for Johnson and ­Douglas Ross that political weakness in Scotland does not matter when it comes to forbidding a second referendum, because Johnson commands the Westminster Parliamentary machine.

Under the political argument fig leaf of the Tory “generation game” and arguments about the size of the pro-independence political majority in ­Scotland lies the naked legal power of the British Prime ­Minister. Johnson, with his 80-seat majority of ­Conservative MP’s (elected by only 43.6% of the votes cast) can do whatever he wants simply by ­refusing to pass Westminster legislation authorising indyref2 because, as every first year law student knows, the Westminster Parliament is the legal ­sovereign of the UK. ­Moreover, traditionally at law the sovereignty of Westminster is unlimited in any way, save that ­Parliament cannot bind its successors.

The potential Unionist legal veto on Scots democracy comes about because the rules of Scots politics are set by the Scotland Act 1998 – the Westminster Parliament statue which created the Scottish Parliament. Under the Scotland Act it would appear that a second independence referendum can only be called with the permission of the Westminster Parliament because the constitution is a “reserved matter”. In other words Westminster did not give Holyrood the power to pass any laws affecting the constitution, which would arguably include holding a referendum to change the constitution by dissolving the Union.

The power to make laws is called by lawyers ­using the Latin word, vires and to act beyond powers is ­ultra vires. The key provision here is Section 29 which sets out the “Legislative Competence” of the Scottish Parliament and which states there is no competence to make laws on “reserved matters”, and under Schedule 5 one such reserved matter is “the Union of the Kingdoms of Scotland and England”.

While it is clear that Holyrood could not unilaterally legislate to end the Union it is less clear if that means it cannot hold a referendum on ending the Union and various lawyers have opposing views on this but one must accept that it is quite possible that the Supreme Court would rule such a referendum ultra vires of Holyrood.

Indeed, the Inner House of the Court of Session strongly hinted it would be ultra vires in the recent case of Keating v the Lord Advocate, albeit that case was deemed incompetent on procedural grounds.

This problem was avoided in the 2016 referendum by means of the 2012 ­Edinburgh Agreement between the Scots and British Governments whereby Westminster agreed to enact a Section 30 order authorising the referendum. But ­“Edinburgh Agreement 2” seems unlikely at the present moment, so at some point during the five-year term of this Scots Parliament it is likely that the political force of Scots democracy is going to meet the apparently immovable object of the Westminster Parliament.

This is why many understandably cry “Where is the Plan B when BoJo says no? Must we give up all hope of achieving independence?”.

My reply is no, there may be a legal way forward, it may be that Scotland can ­invoke “Plan D – Plan Democracy” but that democracy must be exercised via a lawful referendum.

IF Johnson continues to refuse to grant permission to Holyrood to hold a second referendum the next stage in the legal battle is that Holyrood will pass a bill authorising a second referendum. If the UK Government wishes to stop the indyref2 bill from receiving the Royal Assent and so becoming law then under Section 33 it must then instruct their Advocate General to lodge an objection to the competence of the bill with the Supreme Court within one month.

In the unlikely event that there is no such objection from Westminster there would still be the possibility of a private citizen challenging the lawfulness of the indyref Act in the courts.

So what we may soon face is a ­battle between the legal sovereignty of the Westminster Parliament and the ­political sovereignty of the Scots People. The ­orthodox legal view on such a clash is, ­unsurprisingly, to give priority to legal sovereignty over “mere” political ­sovereignty, and of course this is the view favoured by Unionist politicians.

The legal sovereignty of the Westminster Parliament is an article of faith among British constitutional lawyers and most British politicians and its sacred text is the 1885 book by AV Dicey The Law of the Constitution (1885) where he wrote: “The principle of Parliamentary sovereignty means neither more nor less than this, namely, that Parliament … has, under the English constitution, the right to make or unmake any law ­whatever; and, further, that no person or body is recognised by the law of England as ­having a right to override or set aside the legislation of Parliament.”

A simpler way of expressing this ­principle is in terms of legislative supremacy. For example, Professor AW Bradley giving evidence to the House of Commons in 2010 said: “Dicey’s Law of the Constitution made famous the phrase ‘the sovereignty of Parliament’, but a more exact term for the legal doctrine is ‘legislative supremacy’, whereby the ­power of the Queen-in-Parliament to legislate is ­subject to no legal limitations, and the courts have no power to review the validity of Acts of Parliament.”

So, if this account is true, any attempt by the Scots Government to challenge a refusal to grant a Section 30 order is doomed to failure, because the courts simply lack the power to review decisions of Westminster. However, the legal basis of Parliament’s sovereignty is far from clear.

To a large extent it is a product of the battles in English history between the monarchs and parliaments in Tudor and Stuart time and especially in the legal revolution of the so called Glorious Revolution of 1689 which deposed James VII and II, and of the Act of Succession 1701 which gave the throne to the Hanoverians.

Some legal experts consider the ­Sovereignty of Parliament to be a ­doctrine of the Common Law, a creation of the courts, others consider it a recognition by the courts of a political fact. This later approach is the view of the former Tory MSP and John Millar Professor of Public Law at the University of Glasgow, Adam Tomkins.

READ MORE: Tory MSP says Scotland should be legally forced to stay in the Union

Giving evidence in 2010 to the House of Common he stated: “The doctrine of the sovereignty of Parliament is better understood as having its legal source in judicial recognition of political fact than in the common law.”

But although Tomkins was there seeking to uphold the doctrine of Parliamentary Sovereignty from being challenged the courts, he actually unwittingly showed the way forward to overturning that sovereignty in the case of Scotland.

What the courts give, the courts can take away and political facts change greatly over the years and it is clear that the Sovereignty of the Westminster ­Parliament is a merely contingent construct not an eternal truth.

In the past the courts may have recognised the “political fact” of sovereignty, but what if the political facts change? Surely in the modern world the ­ultimate basis for judicial deference to the ­Westminster Parliament is the ­democratic legitimacy of that parliament: the ­Commons is elected judges are not. But, crucially in 2021, Westminster no longer has a monopoly on democracy as it did when Dicey was writing in 1885, Holyrood also has democratic legitimacy.

The legal orthodox view on the powers of Holyrood is that expressed by the late uber-Unionist Enoch Powell that “power devolved is power retained” but that is only true if one adopts a narrowly 19th centuury legal perspective. If one adopts a 21st century political perspective, the conclusion is quite the reverse: “power derived from democracy is power freed”.

The authority of the Scots Government does not derive merely from the Scotland Act 1998, as a narrow legal formalist would argue, but also from the democratic consent of the Scots People. If the Scots people chose to give their elected representatives in Holyrood the authority to hold a referendum of independence, then arguably Holyrood has that power not just in political terms but also legal terms.

In other words, the Sovereignty of Westminster is affected or limited by the mandate given by the Scots people to ­Holyrood. This would undoubtedly be a very bold or novel line to argue before the Supreme Court but I believe not an ­unreasonable one.

ULTIMATELY, neither the ordinary citizen nor even the judges obey the laws enacted by Westminster or Holyrood solely because the arguments of ancient Tudor and Stuart history, the writings of Dicey or old case law. They do so because they believe that those decision are legitimatised by democratic elections.

When Dicey wrote in 1885, there was only one elected institution in the UK, the House of Commons and that was the ultimate’s basis for the sovereignty of Westminster. But in 2021 there are three other elected institutions within the UK each representing the wishes of the people of their respective nations in Scotland, Ireland and Wales.

This shows a possible legal route to removing the Westminster veto on holding indyref2. In a section 33 case (or other legal challenge in the form of an action by a private citizen, a route that seem increasingly likely according to media rumours and the refusal of Gove to say if the Government will object) the Scots Government should ask the Supreme Courts to reconsider the basis of Westminster Sovereignty. So instead of focusing solely on the vires of Holyrood we should consider the vires of Westminster.

In recent years some senior judges have already hinted that such an approach would be acceptable to them.

In the 2005 Supreme Court Case of Jackson v Attorney General Lord Steyn remarked: “We do not in the United Kingdom have an uncontrolled constitution … The settlement contained in the Scotland Act 1998 also point to a divided sovereignty .... The classic account given by Dicey of the doctrine of the supremacy of Parliament, pure and absolute as it was, can now be seen to be out of place in the modern United Kingdom. Nevertheless, the supremacy of Parliament is still the general principle of our constitution. It is a construct of the common law. The judges created this principle. If that is so, it is not unthinkable that circumstances could arise where the courts may have to qualify a principle established on a different hypothesis of constitutionalism....”

Applying this approach, a possible way to removing the block of the Westminster Parliament on decisions of the Scots Parliament becomes clear. Ask the Supreme Court to recognise that the democratic authority of Holyrood greatly qualifies apparently unlimited sovereign legal authority of Westminster.

READ MORE: Adam Tomkins: Holyrood-run indyref2 may be deemed legal in Supreme Court

The Scots Government should in the court action challenge the very existence of the legal power of Westminster to say no to indyref2, by plainly asserting that the democratic legitimacy of Holyrood trumps that of the Westminster Parliament over Scots affairs, giving it Holyrood the legal authority to hold an independence referendum.

This argument is especially strong in the context of an indyref2 bill because in this case Holyrood would not be asking for new powers for itself to make laws in any other areas beyond those granted to it by Westminster in the Scotland Act 1998. Rather Holyrood is merely asking for the authority to allow the Scots People a democratic decision on the continuation of the Union.

All that would be asked of the Supreme Court is to rule that the legal Sovereignty of Westminster may not be used to thwart to democratic mandate of the Scots Parliament to consult the people of Scotland. If the Supreme Court were to rule against the lawfulness of the IndyRef2 Bill it would be sending Scotland the message that the Union is a prison based on legal coercion, a prison which no democratic key can unlock.

But perhaps the Supreme Court will provide that democratic key by holding that the ultimate basis of the Union must be democratic consent.

So what is “Plan B”? I would suggest it is to ask the Supreme Court to authorise “Plan D” – “Plan Democracy” nothing more, but nothing less.