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When will indyref2 happen?


Colkitto

Indyref2  

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With Dorothy Bain not off to the most auspicious of starts at the Supreme Court though, and Plan B to win either a majority of seats or over 50% in the GE (we don't know which yet), it could yet be some time before Indy Ref 2/Independence happens, rendering penshuuuns moot.

Edited by Jedi
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8 minutes ago, Jedi said:

With Dorothy Bain not off to the most auspicious of starts at the Supreme Court though, and Plan B to win either a majority of seats or over 50% in the GE (we don't know which yet), it could yet be some time before Indy Ref 2/Independence happens, rendering penshuuuns moot.

I take it you've heard the SG have lost their case?

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23 minutes ago, TheScarf said:

It will, but at the moment, you’re talking shite.

So Dorothy Bain has made a compelling case so far, based on her statements...okay then.

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1 hour ago, DeeTillEhDeh said:

It was a comment about evidence presented - the Advocate General of Scotland also presented evidence - just making clear that his evidence was on behalf of HM Government.

He made zero attempt to address any of the points made by the Scottish Government.

The Lord Advocate presented the SG's case and the UK Government's case was presented by Sir James Eadie.  I'm not aware of the Advocate General for Scotland having any involvement.

The initial poster referred to Dorothy Bain's submissions and followed that up by saying that they'd have been as well having Donald Findlay presenting the SG's case.

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The Lord Advocate presented the SG's case and the UK Government's case was presented by Sir James Eadie.  I'm not aware of the Advocate General for Scotland having any involvement.
The initial poster referred to Dorothy Bain's submissions and followed that up by saying that they'd have been as well having Donald Findlay presenting the SG's case.
I missed the first comment.

Lord Stewart of Dirleton (as the Advocate General of Scotland) presented written evidence 2 days ago. The Mail were all over it yesterday.

You can imagine how they reported it.

I haven't seen any of the presentations as I'm on holiday. At the end of the day the judgement will be based on the actual content of the written and oral submissions and not their actual presentation - this isn’t an American TV law court.

As others have said if they finish reach a final decision then it can be used either way by independence campaigners.

I think the worst outcome is a "we can't make decision" ruling test kicks a final decision down the road.


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6 hours ago, Jedi said:

Interesting to see that Dorothy Bain herself, doesn't appear to believe in her own arguments, or indeed in the 'competence' of the Scottish govt to hold a Referendum at present...Some quotes from her this week:

1) “I could not clear the bill as appended. I do not have the necessary confidence that the bill is within the competence of the Scottish parliament
2) “A referendum on a matter which is ultra vires, is also ultra vires” (so beyond the powers of the Scottish parliament then, in Bain's own opinion)
3) “It is a peculiarity that the Scotland Act refers to the Union of the Kingdoms of Scotland and England. Those states no longer exist, having been replaced by the United Kingdom”…(two hours later) “Nothing turns on the peculiarity. The union is a full political and economic union between what were two previously independent countries.”
4) “There is clearly a cogent argument that the Scottish Parliament does not have the competence to pass this bill”

Don't see the Supreme Court route ending well when the SNP's own appointed lawyer doesn't actually believe that the case should or could win.

^^^ copied & pasted from Craig Murray's blog.

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31 minutes ago, TONTROOPER said:

^^^ copied & pasted from Craig Murray's blog.

So because Craig Murray cites the quotes (which he does), means that she didn't actually say these things in court?

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2 hours ago, Jedi said:

So because Craig Murray cites the quotes (which he does), means that she didn't actually say these things in court?

Craig Murray is a fucking moon howler. This is, according to Andrew Tickell (an actual lawyer) the jist of it:

Quote

 

THE political issues may be combustible, but few rhetorical fireworks went off on Tuesday as the UK Supreme Court began its two-day oral hearing on whether the Scottish Parliament has the legislative competence to hold its own referendum on Scottish independence.

Viewers who tuned in expecting to hear evidence and witnesses and cross-examination, or lawyers arguing about the right of self-determination in international law, or reflection of the significance of the Claim of Right – 1689 or 1989 – were destined to be disappointed.

Because this case turns not on these principles, but the approach Lord Reed and his four colleagues take to the construction of the Scotland Act 1998 and its complex and often convoluted system of devolved and reserved powers.

The legal issues are technical, but boil down to two key issues: Does Holyrood have the power to legislate for an independence referendum, and should the court decide this issue now? The Lord Advocate argues they should.

The Scottish Government has produced a draft independence Referendum Bill. Kicking off proceedings, Dorothy Bain KC asked the Court to decide whether or not this draft bill falls within Holyrood’s legislative competence. The Scotland Act gives her the power to refer “devolution issues” to the court for resolution. But is this a “devolution issue”?

The Lord Advocate persuasively argued this isn’t an “abstract” or academic legal argument. “It is,” she said “a live issue” and the court has the opportunity to “provide certainty and clarity to the Scottish Government, Parliament and public” about whether the structures of devolution allow the Parliament’s pro-independence majority to honour the manifesto commitments which returned them to Holyrood in May last year.

The main thrust of her submissions was that the uncertainty is damaging, and the court can in good conscience eliminate that now. She pointed to a lack of academic consensus about whether Holyrood has competence or not. She pointed out that even if the Scottish Government Bill is stymied, there’s every likelihood a pro-independence backbencher would push a proposal to a vote, and it is only a matter of time before the court had to reconvene to determine the question.

What does the UK Government argue?

The UK Government – represented in court by Treasury Devil Sir James Eadie KC – argue that the Supreme Court doesn’t owe the Lord Advocate an answer to this question. Or at least: Not today. They contend that the proper course is for Holyrood to pass a Referendum Bill – and then and only then, should the Supreme Court have its say.

Their argument, essentially, is “not today, milord.” The courts don’t give advisory opinions – not even to law officers who find themselves in the awkward situation of being unsure whether or not to sign-off a bill.

Dorothy Bain disagrees. It isn’t her job she says to be the “arbiter” or what Holyrood can and cannot do. “It is not constitutionally appropriate that a Lord Officer exercise such a function,” she said. But the court can make that call. Bain argues that in the name of “legal certainty, it is the responsible course and in the public interest” to resolve the issue one way or the other. Essentially: Why kick the can down the road?

On the merits, the Lord Advocate’s case rests on the distinction between “self-executing” and “advisory” referendums. If Holyrood stages a referendum in October next year, what is its purpose and effect? Bain argues that its objective purpose is simply to ask the people of Scotland what they think about their system of government.

If a second independence referendum is held, it will not unilaterally break up Britain any more than the Brexit vote in 2016 resulted in the UK’s immediate departure from the European Union. Not a clause of law will change as a consequence. The Supreme Court is a court of law: not a court of politics or political consequences. Judges should focus on the legal effect of the proposed referendum bill, and not its unforeseen and unforeseeable consequences in the changeable world of politics.

So, what now?

Already at this stage, one thing is clear: Don’t expect an early resolution of these legal issues. On Sunday, retired Supreme Court judge Lord Hope speculated that the final judgment may be handed down in six to eight weeks. Opening the hearing, the current President of the Court poured cold water on that timetable. “It is likely to be some months before we give our judgment,” Lord Reed said, stressing that the two days of argument for and against are just the “tip of the iceberg” of material the five justices have been asked to consider. Arguments continue tomorrow, as the UK Government develops its case.

 

 

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On the merits, the Lord Advocate’s case rests on the distinction between “self-executing” and “advisory” referendums. If Holyrood stages a referendum in October next year, what is its purpose and effect? Bain argues that its objective purpose is simply to ask the people of Scotland what they think about their system of government.

So could still turn out to be 'advisory', and not self-executing then.

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3 minutes ago, Jedi said:

On the merits, the Lord Advocate’s case rests on the distinction between “self-executing” and “advisory” referendums. If Holyrood stages a referendum in October next year, what is its purpose and effect? Bain argues that its objective purpose is simply to ask the people of Scotland what they think about their system of government.

So could still turn out to be 'advisory', and not self-executing then.

Aye, so was the 2014 referendum. So was the 2016 Brexit referendum. They are all advisory. 

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Quote

You may recognise Eadie. He rejoices under the professional title of “Treasury Devil,” and is a senior adviser to the UK Government on the knottiest legal problems it encounters. He has represented the British government in some of the most high-profile cases which have reached the Supreme Court in recent years, including the 2019 challenge to Boris Johnson’s unlawful attempt to prorogue the Westminster Parliament to get his Brexit proposals over the line. You win some, you lose some I guess.

If you judged Eadie’s arguments purely on length, then you might conclude his clients in Whitehall are particularly keen for the Supreme Court to refuse to decide whether or not Holyrood can call an independence referendum.

This might strike you as an extraordinary waste of time, billable hours and human industry – but it seems to be the UK Government’s preferred outcome. But why?

Why do the Tories think this is their best-case scenario?

There’s a real legal controversy here. Uncertainty about this issue has “festered” away for years, as the Lord Advocate observed in her closing argument. I’ve lost count of the number of articles I’ve written about it over the last decade. Why defer a confrontation with the inevitable? Why refuse to answer a question we know the courts will have to answer eventually?

Eadie has some technical points, suggesting that Dorothy Bain is effectively trying to side-step the protocols set out in the Scotland Act for the scrutiny of legislation. He also raised the slippery slope argument. If Lord Reed and his colleagues decide to answer Dorothy Bain’s question, he submitted, then Scottish law officers might end up firing hypothetical questions at the Supreme Court “willy nilly,” “farming out” its legal work to the court rather than taking responsibility for their own decisions.

Bain clearly didn’t much care for Eadie’s insinuation – to put it mildly. As the Lord Advocate pointed out in rebuttal, this is the first time this power has been used in over 20 years of devolution. It wasn’t “raised on a whim.” There’s no cause for “belittling and minimising the enormity of this issue,” she said.

But with a little cynicism and a dose of low animal cunning, you can follow the political calculations which informed Eadie’s courtroom strategy. First, if the court declines to make a substantive ruling, the political spin writes itself: “Supreme Court snub Sturgeon in Scotland Act 

The story then won’t be the anti-democratic arguments advanced for the British government – and their attempts to stymie a poll people have voted for. Instead, the opposition will be presented with a golden opportunity to attack the competence of the devolved administration and imply this process was a vast waste of public money for which the Scottish Government can be blamed.

More than that, the UK Government may be gambling on the idea that returning the issue to Holyrood with all of the fundamental legal uncertainty unresolved means the SNP will be effectively snookered by the contradictions this referendum process was designed to resolve. 

What then?

If the Lord Advocate won’t sign off the bill as within Holyrood’s powers, and the Referendum Bill can’t be introduced unless she signs it off – the threat of a referendum will be once again deferred, until pro-independence politicians work out some way of bringing the proposal onto the floor of Parliament. There are obvious options, as far as it goes. They can either put the bill it into the hands of a backbencher who doesn’t benefit from the legal advice of law officers – or Nicola Sturgeon could amend the Ministerial Code to clarify the distinct roles of the Lord Advocate and the minister in charge of the bill. But things will get messy.

If the latter course is taken, expect that too to prompt opposition blowback, notwithstanding the fact that the Lord Advocate has herself pointed out that it isn’t “constitutionally appropriate” for her to act as a final court or “arbiter” of whether a proposal is within Holyrood’s legislative competence. The law requires the minister in charge of the bill to say they believe a proposal would fall within competence – not the law officers.

People sometimes assume the law is always clear and straightforward – but it isn’t. Particularly constitutional law. And even the best lawyers can get the law wrong, or fail to anticipate an important objection or challenge which life in its infinite diversity throws up. The framework we have at the moment fails to recognise this.

So that, I think, is the readthrough, and why Eadie’s case was so focused on getting the case kicked at the threshold. This outcome would cause the SNP-led administration in Edinburgh the biggest headaches. But the court gave few clues during oral argument today about where it is leaning.

As the five judges head home to contemplate the legal arguments they’ve heard over the last two days – and the briefs hit the bar and wonder what arguments have landed and what missed – I’m struck by the different layers of uncertainty we face about what the outcome might be, and how different political actors can and will react to the potential outcomes.

The first possibility is that the judges have been persuaded that “now is not the time” to answer the question the Lord Advocate has tried to put before the court. If so, the ball will be knocked back into Holyrood. Then we’re left twiddling our thumbs till the bill passes, the UK Government intervenes, and the issue returns to the Supreme Court for a second time, retreading all the arguments and reheating the submissions the court has already heard over the last couple of days.

 

Alternatively, Lord Reed and his colleagues may take a different view – and offer an answer to the more fundamental question in play here: Does an advisory referendum “relate to a reserved matter” or not? If they find the proposed referendum does trespass into reserved matters, how will the Scottish Government react? If they find the proposed referendum doesn’t trespass into reserved matters, how will the UK Government react?

Will they let the bill progress unmolested through Holyrood? Will they exploit ideas of parliamentary sovereignty to spike the referendum, whatever conclusion the Supreme court reaches? Or will they settle on the boycott policy Scottish Tories have been threatening for a while? Or will they decide instead to engage in a constructive and meaningful way with a democratic process which not only delivers a manifesto commitment supported by a majority of MSPs, but upheld as lawful by the UK Supreme Court? Packing away the legal files, this is the end of the beginning. For the rest? Who knows. Let’s see.

 

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