Joshua Rozenberg: It is not for the courts to redraw the UK's borders
Can and should the Supreme Court decide the UK border?
IF THE SCOTTISH NATIONAL party does well enough in the elections on 6 May, the UK Supreme Court may soon become the focus of public attention once again. At stake will be nothing less than the future of the United Kingdom. The SNP is committed to holding a second referendum on independence for Scotland. The 2014 vote — which rejected independence by 55 to 45 per cent — had the blessing of the UK government. This one will not.
Unlike its Westminster progenitor, the Scottish parliament has limited powers. Any act of the Scottish parliament that “relates to” the “Union of the Kingdoms of Scotland and England” is outside its legislative competence. That’s one of a number of matters that were reserved to UK legislators by the Scotland Act 1998.
How, then, was an independence referendum possible? Section 30 of the act allows the Westminster government to modify reserved functions. Ministers simply made a temporary order allowing Scotland to vote in 2014. Well, say the SNP, we’d like another of those section 30 orders, please. And if Boris Johnson refuses? We’ll pass the legislation anyway — and dare you to challenge it.
That’s where the Supreme Court comes in. Whenever the Scottish parliament passes legislation, the attorney general has four weeks to ask the court whether it was within the legislature’s competence. The Supremes are surely bound to conclude that — in the absence of a section 30 order — Scottish legislation authorising an independence referendum is of no effect.
You can imagine how the SNP might portray such a result:
English judges trying to block a democratic mandate delivered by Scottish voters. Except that, by a curious coincidence, both the president of the UK
Supreme Court and his deputy are Scots. I’m sure that won’t make the slightest difference to how they interpret the Scotland Act. But I wouldn’t put it past the SNP to argue that Lords Reed and Hodge should recuse themselves — stand aside — on the basis that they stand to lose their jobs if Scotland leaves the UK.
IS THERE ANY WAY of avoiding a confrontation between the two governments? How about a consultative or non-binding vote — perhaps a homage to Catalonia, which tried something similar in 2014? One problem is that even a symbolic vote would presumably “relate to” the union and therefore be outside the Scottish government’s powers. That was certainly the UK government’s view when the Scotland Act was going through parliament. On the other hand, the Scottish government argued in 2007 that a vote for independence would not, in itself, change the nature of the union; it would simply give the Scottish government a mandate to start negotiations.
But a consultative referendum — a glorified opinion poll — could be thwarted if unionists simply abstained from voting, secure in the knowledge that the result would not be binding. There would certainly be a majority for independence, but the result would be meaningless. And Nicola Sturgeon, the SNP leader, has made it clear that any referendum must go through the proper processes. How else could it have any legitimacy?
Alex Salmond, Sturgeon’s predecessor and nemesis, said that the 2014 referendum would be a “once in a generation opportunity”. But things have changed since then: the country that the Scots voted against leaving was still a member of the EU. An independent Scotland might wish to rejoin it.
Leave aside the question of whether EU members facing secessionist movements in their own countries would welcome a breakaway state. The biggest change since 2014 is that we now understand all too well how dangerous a referendum can be.
I AM NOT TAKING an anti-Brexit position here. The point is a broader one: however good the competing sides in a binary dispute may be at putting their arguments to voters, they cannot provide information about terms that are yet to be agreed.
Jonathan Sumption makes the point well in his new book Law in a Time of Crisis (Profile, £16.99), though very little in the book is new apart from this section. “If there is one thing the aftermath of the Europe referendum should have taught us,” he writes, “it is that any referendum must be decisive of the issues. That means that if it is to be held at all it must be held after, and not before, a contingent agreement has been reached on the terms.”
Lord Sumption maintains that Scottish independence should be a decision for the UK as a whole. Both the future make-up of the UK and the future of Scotland should be for the UK parliament to decide. “As a national parliament for the whole of the UK,” he writes, “the Westminster parliament is both bound and entitled to take its own view of the interests of Scotland even if it differs from that of most Scots.”
The principle of self-determination is well established in international law.
But so is the principle of territorial integrity. It is not for the courts to redraw the UK’s boundaries. Nor should it be a matter for voters in a referendum. It must be a decision for the United Kingdom parliament alone.