Given that the constitution is a reserved matter under the Scotland Act (1998), only an act of the Westminster British parliament in London can grant a Section 30 order. It cannot be legislated for under any circumstances in the devolved British parliament in Scotland. And precisely because Westminster – and Westminster alone – is sovereign, no set of conditions or political realities in Scotland can compel the British government in London to grant a Section 30 order. What does this mean?
There are no legal routes to independence. We cannot challenge the British government over its refusal to grant a Section 30 because there is no mechanism in law with which to do this, and there is no constitutional requirement of the British government to do it either. This was always a fiction. Scotland does not have the same relationship of consent with the London government the people of the north of Ireland have in the Good Friday Agreement. Britain does not legally require the consent of the Scottish people to government Scotland.
Derry-born woman Emma DeSouza has never considered herself British. She identifies as Irish, and the GFA – accepted in good faith by the people of Ireland – gives her the right to identify “as Irish or British, or both.” The GFA confirms that anyone born in the British occupied six counties has the right “to hold both British and Irish citizenship.” But recent events around Britain’s decision to leave the European Union have exposed what Republicans have always known; that Britain signed this treaty in bad faith and had no intention of honouring its terms
The ruling of the Supreme Court offers Scotland and Scotland’s elected representatives – the only representatives of the sovereignty of the Scottish people – a whole new set of opportunities. British government attempts to stifle the Scottish government can now be challenged in the Supreme Court and retarded by the precedent this sets. In principle, it removes from the British government the assumed right to grant or withhold permission for constitutional referenda in Scotland, voted for by the Scottish parliament and Scottish MPs in the House of Commons.
Moreover, this judgement in itself renders it weak and vulnerable – once again subjecting the independence of the Scottish legal system to that of the British state. In referring the matter to the final judgement of the Supreme Court in London the implication is that the Court of Session is not the highest court in Scotland – that it has no real independence, that Scots Law must be tested through a higher British court before it can be considered valid, legal and binding in and over this so-called union of equals. This strikes me as utterly pathetic.
In sum, for as long as Scotland and its valuable natural resources are of economic and strategic value to the British state, the law will function to preserve the integrity of the British state – even if that means denying the democratic will of the majority of Scottish people. The familiar argument against this assertion; that we had an independence referendum in September 2014, is a facile one. Scotland was granted an independence referendum in 2012 by David Cameron, a serial gambler, in the assumption we would lose.
When the Advocate General says Westminster is sovereign and the Scottish parliament is not he is presuming a definition of sovereignty which is fundamentally foreign to the Scottish national constitution. More than this, he is assuming a unicity – a singular notion of sovereignty and power in a singular British state – that has never before been made explicit. He is giving England’s idea of sovereignty priority over that of Scotland. This engenders a worrying logical problem; unicity renders the heretofore existing duality of legal understandings impossible.
McHarg writes that the requirement for a Section 30 order – that is the permission of the London government to call a referendum – is not actually an expressly reserved matter.