SNP MP and KC Joanna Cherry writes for The National in response to claims from legal experts Shona Wilson Stark and Raffael Fasel that the Supreme Court must consider the wider democratic mandate in its ruling on indyref2, but rule that Scotland does not have the powers to hold a vote without Westminster consent ...

I disagree with the conclusion that legally the Scottish Parliament cannot legislate for indyref2 without a section 30 order. Legal opinion is divided on this, and I am part of a respectable body of legal opinion that thinks there are good arguments that, looking to the wording of the Scotland Act, our Parliament does have that power. 

So, for example, had I been the Lord Advocate I would have been content to certify the bill as competent and then the issue would have been tested before the court after the bill had been passed by the Scottish Parliament. I believe that having the full weight and legitimacy of the Parliament behind the bill might have made it harder for the Supreme Court to strike it down, and I note that the authors of the second article seem to recognise this.  

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I also believe that in that event, even if the case was lost, the Scottish Government and the independence movement would have been left in a stronger position for future political negotiations with the foundation of a bill that had the authoritative approval of the Scottish Parliament, notwithstanding that the UKSC had struck it down.   

I am pleased that Cambridge academics Shona Wilson Stark and Raffael Fasel also agree with me that the UKSC should look to the wider constitutional context when deciding the case before it, including Scotland’s right to self-determination, the constitutional importance of the SNP’s manifesto pledges, and the principle of democracy which, the authors say, plays a key role in the UK’s constitution. Or at least, it should.  

These points are canvassed in the written argument lodged on behalf of the SNP in their third-party intervention, and I would hope that the Lord Advocate will feel able to adopt their arguments.   

Wilson Stark and Fasel are also correct in identifying that ultimately the problem here is the unconstitutional and undemocratic behaviour of the UK Government in refusing a section 30 order. I agree.

Arguably, granting a section 30 order is the custom and practice of the UK Constitution as it has evolved, because that’s what happened last time the Scottish Parliament had a mandate to hold a referendum. So, win or lose, I agree that the Supreme Court could play an important role in attempting to encourage the UK Government to engage in “civilised negotiations”.  

As is perhaps clear, despite having argued that testing this issue before the Supreme Court could have formed part of a wider strategy to force the UK Government to the negotiating table, I have not been part of the political or legal decision-making that has brought the case to court next week, but I shall be watching as avidly as everyone else to see the outcome.