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1 July 2021

Why the battle over Scottish independence is heading for the courts

The SNP will try to use courtroom clashes with the UK government to build anger among the electorate.

By Chris Deerin

The definition of the term “lawfare” has varied over the years. According to the well-regarded US website of that name, it has been deployed since the 1950s in contexts ranging from divorce law to colonialism. More recently, it has most commonly come to mean the use of the law and courts in debates about matters of national security.

In Britain, we might define modern lawfare differently. In the past few years our courts, used to keeping a comfortable if distant watching-brief over government and policy, have been dragged reluctantly into the major political disputes of our time. Increasingly, pressure groups seek to block government actions with which they disagree by securing rulings from judges, all the way up to the UK Supreme Court.

The most prominent examples have inevitably concerned Brexit, where pro-EU campaigners sought to strengthen parliament’s hand against what they saw as an overmighty executive. Now it has been contracted, this habit is proving hard to shake – for example, the Good Law Project, set up by the high-profile lawyer Jolyon Maugham, defines itself as “a not-for-profit campaign organisation that uses the law to protect the interests of the public. We fight cases that defend, define or change the law and we use litigation to engage and educate. We challenge abuses of power, exploitation, inequality, and injustice.” It is lawfare in theory and action, with recent news releases boasting that the “High Court rules Michael Gove broke the law by giving a contract to a communications agency run by long-time associates of him and Dominic Cummings”, and scoops about private email use by ministers in relation to the so-called VIP lane for Covid-19 contracts.

There is clearly a time and a place for all this. Equally clearly, the risks and downsides of such an approach are obvious. Asking the courts to overrule democratically elected governments and proscribe their power on any kind of regular basis is a dangerous practice. There is further risk in establishing a principle that the outcome of parliamentary debates and votes need only be contingent. And it inevitably politicises the legal system by pitting ministers against judges, and invites a reaction – whether in the form of the Daily Mail’sEnemies of the People” response to the Brexit rulings, or Boris Johnson’s subsequent legislative moves to limit the courts’ remit in political matters, whether on the timing of elections or the dissolution of parliament.

Regardless, it seems clear that the UK’s future holds more rather than less of this activity. And having spread from the US to the UK, it is now making its presence felt in Scotland.

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On Monday and Tuesday this week (28 and 29 June), the UK Supreme Court heard a dispute between the Holyrood and Westminster governments about the former’s right to pass two bills in their current form, namely, the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill and the European Charter of Local Self-Government (Incorporation) (Scotland) Bill. UK law officers argue that certain provisions in the bills are outside the legislative competence of the Scottish parliament.

I created a bit of a stink earlier this week when I wrote that I’ve come to believe there won’t be a second Scottish independence referendum within this Holyrood parliament, despite the SNP’s manifesto pledge to that effect ahead of May’s election. I find it impossible to describe the path to a democratic referendum in current circumstances.

I know from SNP sources that this analysis is not being breezily dismissed. It seems likely, therefore, that where it’s felt the democratic route has failed, there will be a temptation to recruit the law instead. The SNP will attempt to create courtroom clashes with the UK government whenever it can over the coming years, both to illustrate the constraints on its own power and to build anger among the electorate that this is the case. It will seek to paint Westminster as unreasonable, bullying, intent on grabbing back power from the devolution settlement – you name it.

And all of this would appear to pave the way for the ultimate legal challenge – on whether Holyrood has the right to call an independence referendum without Westminster’s express permission. Michael Gove, who is leading the pro-Union operation, has refused to be drawn on whether the UK government would take its Scottish counterpart to the Supreme Court to block such a step. But if Gove doesn’t want to get involved, there are doubtless individuals within Scotland’s pro-UK pressure groups who will see it as their chance to be a tartan Gina Miller. You can see the headlines now: “UK Court Bans Indyref”.

You might argue, as the former senior UK civil servant Ciaran Martin does, that the Johnson government has effectively removed any route to independence by refusing to acknowledge the SNP’s manifesto commitment and subsequent election triumph. This risks creating “a Union of coercion rather than consent”, he argues.

But it’s also true that there is no overwhelming demand in Scotland for a second referendum any time soon, or any indication that the Yes side would win one. As time drains, and as Nicola Sturgeon grows ever more desperate under increasingly intense pressure from her already restive movement, the lawyers are likely to be pressed into action as everything and anything is thrown at the wall.

Lawfare is here to stay. We’ll see you in court.