Tom Gordon: Nicola Sturgeon’s trial is the start of his long goodbye
APRIL is the cruellest month, said TS Eliot. But October seems pretty gloomy these days too. Besides the energy crisis, if you’re an SNP campaigner, there’s the UK Supreme Court to look forward to.
In the aftermath of the party conference in Aberdeen – its draft agenda full of bouncy ideas for campaigning in the referendum scheduled for 2023 – the Court begins to hear the case that could hit it in the head.
Last week Lord Advocate Dorothy Bain QC released the written submission she intends to submit on behalf of the Scottish Government. Nicola Sturgeon wants the Court to rule that Holyrood has the power to keep Indyref2 under its devolved steam, meaning Westminster cannot block it.
However, it’s also pretty clear that she doesn’t trust the Lord Advocate to do so. The day after Ms Bain’s written case was published, Ms Sturgeon ensured that the SNP asked the court to join the case in arguing for the same outcome.
This is an unprecedented situation.
The Government’s top legal officer, at the request of the Prime Minister, has referred the question of whether Holyrood has the requisite power to the Court, saying it is in the public interest to obtain a final decision on this “smoldering question”.
In particular, Ms Bain asked judges to decide whether a referendum bill that would see Scots ask the question ‘Should Scotland be an independent country?’ 2014 issue, “would relate” to matters reserved for Westminster, including the Union.
If they decide the bill doesn’t, then Ms Sturgeon can have Indyref2 next year.
But if, as seems more likely, the Court decides that it would encroach on Westminster territory, then the Bill will be dropped.
In which case, Ms Sturgeon said she would fight the 2014 general election as a ‘de facto referendum’ on the sole issue of independence, and all those SNP conference plans go up in smoke.
It is not difficult to see why the SNP wants to intervene. The Lord Advocate’s written case is atrociously party-neutral, presenting both sides of the argument, and if anything gives more show to why Holyrood cannot hold Indyref2 under its current powers, including Donald Dewar’s smoking gun telling the Commons so clearly that MPs were passing the Devolution Act.
Indeed, it is difficult to detect that Ms Bain is advancing any type of case in favor of the outcome desired by the Prime Minister.
It is also understandable. The case is going to court precisely because the Lord Advocate does not know whether Holyrood has the power to hold Indyref2 or not. It’s “unlikely she has the confidence” to call him, she admits. So his reference is actually to say, “I’m stuck here. Help me. Tell me what to do.”
As part of this process, she put forward arguments as to why Holyrood might have the power to fly solo, but they are far from overwhelming.
They include saying that a referendum asking people their views on independence would have no legal effect, while asking the Court to ignore politics and stick closely to the law. The proposed bill “does not aim at any particular result” and “concerns the Union only indirectly or consecutively”. Oh yeah.
She continues: “Beyond the immediate effect of ascertaining the will of the Scottish people, the practical effects of an advisory referendum are speculative. The court should not indulge in such speculation because it is not equipped to do so. But if the Court isn’t equipped to recognize blinding evidence, then I don’t know why it is equipped.
As former Supreme Court Justice Lord Sumption so aptly put it, “Most laws are just common sense with buttons.”
If the Court were to ignore common sense context and the Scottish Act 1998 states that it must consider ‘all the circumstances’ in deciding whether a matter is reserved, then it would be ridiculing itself and ridiculing the law. It is not wild speculation that the Scottish government is driven by more than mere curiosity.
Ms Sturgeon is keen to remind people that she was re-elected last year on a manifesto of commitment to a referendum, and that same manifesto said: ‘The SNP is clear that the referendum must be able to deliver the ‘independence.”
By intervening, the SNP can make its own more forceful arguments, challenging the Court’s previous rigid view of Westminster’s sovereignty and asking it to consider the right to self-determination recognized in international law.
It can also, bluntly, inject some drama. Two days of overpaid eggheads thinking about what “relates to” means is not the stuff of which democratic dreams are made. And if – when – the SNP loses, it can weaponize the verdict by saying it has exposed the limits of the British constitution.
But there is also a risk that an SNP intervention is unnecessary. As Roddy Dunlop QC, the Dean of the Faculty of Advocates, puts it: “It has the potential to rather cut to the knees protests that there is no politics involved in the referral.”
The result could be that Prime Minister Sturgeon uses scarce taxpayers’ money in the dim hope of getting a positive ruling from the Court, while SNP leader Sturgeon spends his members’ subs to undermine that same process. .
This would suggest that the exercise was still about theater, not substance, and the SNP’s adversaries would make hay.
It’s a bet that indicates that Ms. Sturgeon feels she has little more to lose.
At the end of 2014, at the start of management, Ms Sturgeon went on a bizarre and selfish tour of stadiums around the country that saw her breathlessly compared to a rock star.
As she faces her political mortality with Indyref2 a vain hope, she seems to come full circle.
The Supreme Court case and the general election feel like the beginning and end of an equally selfish farewell.
She leaves the political scene as she arrived there: empty-handed.