Those of you who are getting all excited about the Keatings effort would do well to read ‘Andrew Tickell: Crowdfunded indyref2 court bid may be a bad waste of good cash‘. The following extract gives a flavour of the article.
While the courts may accept a referendum falls within Holyrood’s competence, it is just as likely they do what O’Neill predicted in 2011 and decide Holyrood has no such competence. Given that clear and present danger, it isn’t obvious why now’s the time to run it. Save as an expression of frustration, the tactical thinking behind the timing of this intervention is not obvious. It is sometimes assumed legal clarity will be politically useful. This isn’t necessarily the case. Alex Salmond was able to exploit legal uncertainty effectively in the run-up to the Edinburgh Agreement. A negative decision on Holyrood’s legislative competence at this stage in the electoral cycle can only restrict the Scottish Parliament’s scope to put political pressure on Westminster. I don’t understand why we should be doing the UK Government’s work for them. I don’t see why we should be working to spare them the political hit of trying to frustrate referendum legislation when the pro-independence majority in Holyrood actually passes it.
The last part of the above is of particular importance. Andrew Tickell isn’t the only one who is perplexed by an effort to ‘prove’ something which should be assumed. It is not for the pro-independence side of the constitutional divide to establish the competence of the Scottish Parliament. It is for the other side to make the case against our right of self-determination.
When you have a position that is easily defended you don’t go on the attack. Rather, you invite an attack by your opponents. This action was always wrong-headed. As actions born of frustration tend to be.
For all Martin Keatings’ fine words about the role of the courts in a democracy there are matters which must be beyond the scope of even the highest court. To illustrate the point I might ask if you would go to court to establish your right not to be owned by another person. Of course, such an action would never get as far as the courts. But use your imagination. Would you even consider asking the question about your right not to be held in slavery? Would you effectively acknowledge that your right not to be considered property is something that can be determined by a court of law? Does not the asking of the question necessarily imply that the matter of whether you can be enslaved is open to question? If you accept that the court may rule one way are you not accepting that it might rule the other way? If you insist that a court ruling against the possibility of your enslavement must be respected is not the inescapable corollary that a ruling that you may be enslaved must be afforded equal respect?
That example is ridiculous because the right not to be enslaved is inalienable. It cannot be questioned, far less denied. As a democrat, I must hold popular sovereignty to have the same status. If I am to adhere to the fundamental principles of democracy am I not obliged to regard the right of self-determination as being inalienable just as the right to be immune from slavery is inalienable? If I would not question one inalienable right why would I question something which, as a democrat, I am compelled to maintain is equally inalienable?
What should have happened – indeed, what must still happen regardless of this ill-thought court action – is that the Scottish Parliament asserts its competence in all constitutional matters on the basis of the sovereignty of the people of Scotland and the Scottish Parliament’s undeniable democratic legitimacy. It would then have been up to the British government to make the case that the British parliament is sovereign and that it has greater democratic legitimacy than Holyrood. Personally, I am eager to hear how they will argue such a case.
If they even mount such a challenge. It may be that the preciousness of their Union compels them to take the matter to court even if their case is all but impossible to argue. Or they might at that stage decide that the preciousness of the Union is outweighed by the need to secure a good deal with independent Scotland – for the same reasons that make the Union so precious to them.
However the British state might respond, Scotland’s democratically elected government must be assumed to already have the rightful authority to propose the exercise of the inalienable right of self-determination vested in Scotland’s people. Otherwise how can we maintain that it is the legitimate government of independent Scotland? By the same token, the Scottish Parliament must be assumed to possess the rightful authority to sanction the exercise of our right of self-determination. This authority derives from the sovereign people of Scotland. There is no higher authority. Not even the courts.
Martin Keatings misses out something very important when he says,
Governments propose laws, parliaments create laws, police enforce laws, the procurators fiscal prosecute under those laws.
He omits to mention that governments propose laws only with a mandate from the people. His statement is accurate but for this rather puzzling omission. Does the following not better describe the way things are supposed to work in a democracy?
The people choose the government. Governments propose laws. Parliaments create laws. Police enforce laws. The procurators fiscal prosecute under those laws.