Attempt to draw parallels between Scotland and Kosovo dismissed
Court throws out SNP’S belief that Scots are oppressed, along with its ‘advisory’ referendum
The decisive ruling delivered by the Supreme Court’s Scottish president yesterday finally ended a debate that has rumbled on for a quarter of a century.
Even before the Scottish Parliament was formally established, politicians and legal scholars had argued over whether the devolved legislature would be entitled to hold a “non-binding” referendum on leaving the UK.
The fact that the Supreme Court answered the question at all, and so emphatically, surprised some experts.
Some had predicted that the court would dodge the issue by finding that the unusual process used to refer the matter for a ruling had been inappropriate and premature.
The verdict dismantled the notion that Scots are an “oppressed” people or that the country is compatible to a “colony” – claims commonly made by extreme nationalists and legitimised by the SNP’S written submission.
It had always been suspected that the more outlandish SNP claims, including that Scotland was comparable to Kosovo, were intended as red meat for the party base, frustrated at a more measured position taken by Dorothy Bail, Nicola Sturgeon’s Lord Advocate.
But the fact that Lord Reed and his colleagues took on the arguments in such detail – and dismissed them so mercilessly – delighted Unionists even as Ms Sturgeon and her activists vowed that they would ultimately win the war.
‘The court could not have been clearer in its dismissal of the SNP’S absurd claim that Scotland is some kind of oppressed colony’
Scotland is ‘not a colony’
The Supreme Court shot down SNP claims that Scots should be considered “a people” and that their “inalienable” right to self-determination under international law was being thwarted.
While the party was blocked from oral arguments in court, it was allowed to make a written submission which included far more unconventional legal arguments than those presented by the Lord Advocate Dorothy Bain, Nicola Sturgeon’s top law officer.
The SNP suggested that by blocking a referendum, the UK Government is interfering with “fundamental rights” of Scots and compared their struggle to Kosovo’s fight for self-determination after years of bloody ethnic conflict.
However, the court ruled there were “insuperable obstacles” to the SNP’S claims, adding: “The principle of self-determination is simply not in play here.” Lord Reed said that a Canadian court case relied upon by the SNP, concerning the independence movement in Quebec, found that a right to self-determination only applied in former colonies or in cases where people were oppressed
The court ruling pointed out that submissions by the UK Government, in support of Kosovo’s declaration of independence and cited by the SNP, stated that there was no internationally recognised “right” to selfdetermination in Scotland’s context.
Lord Reed said: “The SNP rely on the judgment of the Canadian Supreme Court in a case concerned with Quebec. But in that case, the court held that the right to self-determination under international law only exists in situations of former colonies, or where a people is oppressed as, for example, under a foreign military occupation or where a definable group is denied meaningful access to government to pursue their political, economic, cultural and social development.
“The court found that Quebec did not meet the threshold of a colonial people or an oppressed people. Nor could it be suggested that Quebecers were denied meaningful access to government to pursue their political, economic, cultural and social development. The same is true of Scotland and the people of Scotland.”
Holyrood has no power to call Indyref2
Ms Sturgeon had planned to hold an independence referendum on Oct 19 next year, without UK government consent. She has now been forced to ditch the proposal – the third time she has abandoned a timetable for a referendum.
Ms Bain, as Lord Advocate, had suggested that because a referendum result, in itself, would not end the Union, it should have been ruled that a Holyrood-run vote did not impede powers reserved to Westminster under the UK constitution. Under the Scotland Act that established devolution, “the Union of the Kingdoms of Scotland and England” and “the Parliament of the United Kingdom” are explicitly within Westminster’s remit.
The Supreme Court rejected the argument that because the result of an “advisory” referendum would not be legally binding, it would not relate to reserved matters.
Lord Reed explained judges were obliged to consider the “purpose and effect” of a provision, as well its consequences in a legal sense.
“A lawfully held referendum would have important political consequences relating to the Union and the United Kingdom Parliament,” he said.
“Its outcome would possess the authority, in a constitution and political culture founded upon democracy, of a democratic expression of the view of the Scottish electorate.
“It would either strengthen or weaken the democratic legitimacy of the Union and of the United Kingdom Parliament’s sovereignty over Scotland, depending on which view prevailed. It would either support or undermine the democratic credentials of the independence movement.”
He added: “It’s therefore clear that the proposed Bill has more than a loose or consequential connection with the reserved matters of a union of Scotland
Court answers ‘festering issue’
Arguments over whether Holyrood could hold its own referendum began even before the legislature was set up in 1999. Scholars have described the debate as a “festering issue”.
The UK Government had invited the Supreme Court not to deliver a ruling on the question, claiming the obscure legal mechanism deployed by Scotland’s Lord Advocate to refer the matter was inappropriate and premature. Usually, a Bill would have to progress through Holyrood before it could be challenged by Westminster in the courts but the Lord Advocate had refused to sign off Ms Sturgeon’s Indyref2 plans as being within Holyrood powers, meaning she took an alternative route to the UK’S top court.
The Supreme Court dismissed fears it was being used by the Lord Advocate as a “legal advice centre”. It agreed with her that the referral had been made in “exceptional circumstances” and that it was in the public interest to answer the question once and for all.