I AM reliably informed that if he chose to and studied hard, Douglas Ross could make the jump from assistant referee to the top rank of referees in Scotland and possibly even Europe. The MP for Moray is held in some respect at the SFA, but on Sunday he will just be running the line for the Rangers v St Mirren match. His hobby remains just that – it isn’t his main job.
It says much about fitba’ daft Scotland that his performance at Ibrox will come under much more scrutiny than his bid to become the leader of the Scottish Conservatives.
Of one thing we can now be certain – Ross is firmly in the no to indyref2 camp. He said this week that “Nicola Sturgeon did sign that agreement with the UK and Scottish governments that it would be once in a generation”. That’s a lie, by the way.
If that is to be the standard of his policies, can I suggest that Ross stick to linesmanship? It is clear that the Tories are yet again going to fight the next Scottish parliamentary elections on the ‘no to indyref2’ platform – you know, the one that saw them cuffed in the European and general elections last year. They had a one trick pony and played it in the Holyrood election on May 5, 2016, and the following month Brexit destroyed all their arguments.
The question for the Yes movement is how do we achieve a legal second referendum? First of all, the SNP and the Greens and any other party committed to a second referendum must campaign on that basis and win a majority in the Scottish Parliament next year. We have to accept that we must have a legal referendum, and that means gaining a Section 30 order or court approval for indyref2. For it is the international community, as represented in the United Nations and the European Union, which will confer legitimacy on an independent Scotland, not simply our assertions, and we must do the process correctly by law.
READ MORE: Douglas Ross ‘rewriting history’ with indyref2 claim
Whoever is in 10 Downing Street next May will undoubtedly refuse a Section 30 order to hold a legitimate referendum, because they know they will lose their precious Union.
That’s why the Scottish Government must start preparing the case for an action in the Scottish courts followed by the UK Supreme Court (UKSC) to force the granting of a Section 30 order to allow the Scottish Parliament to conduct indyref2, or to gain court approval for a referendum outwith the section 30 process.
The UKSC has shown successive Tory Governments that it is not their lapdog, and the Scottish courts certainly showed it over the illegal proroguing of Parliament. The ‘Union’ may be a reserved matter for Westminster, but the courts will decide if that ‘Union’ reservation can legally prevent democracy.
The Johnson-Ross defence will be the Union reservation and that Alex Salmond and Nicola Sturgeon said the 2014 referendum was a once in a lifetime/generation opportunity. That is true, that remark was used, but the context was political, not legal. Nowhere in the Edinburgh Agreement did it say the referendum was a one-off and indeed the subsequent Smith Commission’s report made it clear that the recommendations that became the Scotland Act 2016 expressly did not rule out a second referendum. Chapter 2, section 18 of the final report clearly states: “It is agreed that nothing in this report prevents Scotland becoming an independent country in the future should the people of Scotland so choose”.
The reason why that is important is because it is a document put before the Westminster Parliament which underpinned subsequent legislation, and can therefore be founded upon in court.
Here’s another finding from the Commons as passed on July 4, 2018: “That this House endorses the principles of the Claim of Right for Scotland, agreed by the Scottish Constitutional Convention in 1989 and by the Scottish Parliament in 2012, and therefore acknowledges the sovereign right of the Scottish people to determine the form of government best suited to their needs.”
It gets even better. Indefatigable indy campaigner Martin Keatings was reported last week as having had a setback in the case he is bringing against the UK and Scottish governments to confirm that the Scottish Parliament has the legal power to hold a second referendum.
He was seeking a Protective Expenses Order so that he personally didn’t have to face a bill running into high six figures if he lost. The judge, Lady Poole, refused the order but on one of the criteria Keatings won a spectacular victory which has been under-reported massively, and no wonder.
Lady Poole had to consider where Keatings’ case had a “real prospect of success” and this was her conclusion: “In the circumstances, having regard to the dicta that I should not look at this matter too closely and that the hurdle (even in a permission context where arguability is not enough) is not intended to be a high one, I find that the case has real prospects of success.” (my italics).
READ MORE: FACT CHECK: Claim SNP vowed indyref was 'once in a lifetime' opportunity
And then she cut to the heart of the matter: “But I also consider that although the low hurdle of real prospects of success has been surmounted, the case is not strong in the absence of any Bill or Act of the Scottish Parliament containing specific provisions to which the 1998 Act can be applied.”
In other words, only when there is an Act of the Scottish Parliament declaring that there will definitely be a second referendum – the current Referendums (Scotland) Act 2020 does not do so – can the matter be tested in court.
It will end up in the Supreme Court and with all respect I would ask the justices to consider this one binding agreement between the UK and Scottish Governments.
“The United Kingdom and Scottish Governments are committed, through the Memorandum of Understanding between them and others, to working together on matters of mutual interest and to the principles of good communication and mutual respect. The two governments have reached this agreement in that spirit. They look forward to a referendum that is legal and fair producing a decisive and respected outcome. The two governments are committed to continue to work together constructively in the light of the outcome, whatever it is, in the best interests of the people of Scotland and of the rest of the United Kingdom.”
Note the phrases “in the best interests” and “working together on matters of mutual interest and to the principles of good communication and mutual respect”. And that whole paragraph is the final one of the Edinburgh Agreement…
Judges don’t decide matters on what politicians say, thankfully, but what laws and agreements state. Keatings may win his case and we’ll all know where we stand, but I think it will be the UKSC that will eventually decide on the legitimacy of a second referendum. The legal case for indyref2 is strong and we should start preparing for it now.
This article is part of a new digital-only section of our website, where we’ll bring you reaction, analysis and opinion pieces by our best writers in real-time, without you having to wait for the newspaper to be printed. Please send any feedback to callum.baird@thenational.scot
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