AN extract from legal advice which argues the Supreme Court overreached into judicial activism by blocking Holyrood from holding indyref2 has been published by the Alba party.
The advice, written by constitutional law specialist Aidan O’Neill KC, argues that the Supreme Court's decision "to prohibit the (democratically elected and legitimate) Scottish Parliament from directly consulting the Scottish people which elected it ... is, to say the least, paradoxical".
It says that, instead of presenting a "a constitutional vision which is founded on principles of democracy", the ruling appears to be "gouvernement des juges [judicial activism] par excellence".
The advice further suggests that the Supreme Court judges had “by way of judicial fiat [sought] to protect the Union Parliament”.
It states: “The UK Supreme Court can only be required to face up to this judicial overreach by the Scottish Parliament exercising its democratically founded legitimacy by passing new referendum legislation with a newly worded question: for example ‘Should the Scottish Parliament have the power to legislate for an referendum on Scottish independence?’”
The publication of the advice comes as Ash Regan – who became Alba’s first MSP after defecting during their party conference in late October – has written to fellow parliamentarians urging them to support her proposed new referendum bid.
Regan is seeking, as O’Neill’s advice suggests, to have the Scottish Government hold a referendum asking if the Scottish Parliament should “have the power to negotiate for and legislate for Scottish independence”.
Alba say this ballot should be held on September 19, 2024 – the 10th anniversary of the first independence referendum.
In her letter to her fellow MSPs, Regan (above) said: “I believe that a referendum on the powers of the Scottish Parliament will help advance the cause of Scotland. The Supreme Court said that the Scottish Parliament doesn’t have the legislative competence to hold a referendum on the question of ‘should Scotland be an independent country?’.
“The Supreme Court’s decision does not mean that the Scottish Parliament cannot hold referendums and regardless of your view on the constitution it would be a judicial overreach for any court to say that the democratically elected parliament of Scotland cannot consult the people of Scotland on the future powers of their Parliament.
“If the Scottish Government decides to embrace this referendum then it will be held next year. If they do not then I will need your support once I lodge a draft referendum bill.”
You can read the full extract from Aidan O’Neill’s legal advice here:
6.42 The result of the UK Supreme Court’s decision is to prohibit the (democratically elected and legitimate) Scottish Parliament from directly consulting the Scottish people which elected it, and to whom they are accountable. This is, to say the least, paradoxical and does not smack of a constitutional vision which is founded on principles of democracy. Instead, this appears instead to be gouvernement des juges par excellence. If and insofar as the Scottish Parliament passes legislation which has what the current UK Supreme Court judges consider to have political effects which are detrimental to the people’s views on the continued legitimacy of the Union it would appear to be beyond the powers of the Scottish Parliament to pass it. This cannot be right. This is instead judicial overreach in that it appears to be an attempt at legal enforcement by the judges of what they have determined is an essentially political constitution.
6.43 If you have a political constitution then by definition it is for politics to resolve matters and for the judges to back off and leave politics to work our matters for itself. It is not for the judges – particularly against a background in which the only constitutional principle to which they now hold is the “supremacy” (sic) of the Union Parliament – to step in and by way of judicial fiat seek to protect the Union Parliament against having to exercise its political powers to override the Scottish Parliament.
6.44 The UK Supreme Court can only be required to face up to this judicial overreach by the Scottish Parliament exercising its democratically founded legitimacy by passing new referendum legislation with a newly worded question: for example “Should the Scottish Parliament have the power to legislate for an referendum on Scottish independence?” or perhaps more ambitiously “Should the Scottish Parliament have the power to negotiate and legislate for Scottish independence?”. Holding a referendum on such a newly worded referendum question might well have complex political ramifications in terms of how the legitimacy of the Union is understood and experienced but there is simply no proper constitutional theory – consistent with the Union’s polity’s own recognition in the wording of the Scotland Act 1998 of the distinct Scottish demos and the long history and understanding of the relationship of Scotland to the rest of the United Kingdom as being one of voluntary union and not incorporated or annexation.
