Sunday 24 July 2022

The SNP's indyref2 legal argument is based on lies and deceit


I like court room dramas, but I’ve never been interested in law as a subject. The reason is that it is neither about morality, nor is it about truth. I accept that laws are necessary and that therefore there must be lawyers to interpret the law. Law is a lucrative profession that pays more than most of have the chance of earning, but much of this earning power is a function of law being deliberately obscure and obtuse. A simplification of our laws just as a simplification of our tax regulations, would put many lawyers and accountants justifiably out of business.

My dislike of law does not mean I dislike lawyers. Everyone has the right to earn money as he pleases and use the circumstances that exist.  Lawyers provide a necessary service, which all of us need and can charge what the market will bear. But the reason I hold law as a subject in contempt has been ably demonstrated by the attempt by Dorothy Bain, the Lord Advocate, to argue that Nicola Sturgeon can hold an independence referendum without the permission of the British Government.

Bain argues that such a referendum can be held because it would be advisory. But we learned in 2016 that all referendums in the UK are advisory. This had never occurred to me prior to 2016. No one during any of the previous referendums that had taken place had ever said that the result could be ignored. I keep expecting someone to pop up after the next General Election to tell us that the vote was merely advisory and that the party that won had actually lost.

Bain argues that it is within the powers of the Scottish Government to “ascertain the wishes of the people of Scotland on their future”. But it is just this that makes me hold such legal reasoning in contempt. Because the Scottish Government would not merely be ascertaining the wishes of Scottish voters. The SNP is merely pretending that such a referendum would be advisory. If Yes won, the SNP would be demanding independence and would use the so called advisory referendum as justification for it.

To be genuinely advisory it must be possible for the Westminster Government to legally, morally and politically reject the result. We know after 2016 that it was legally, morally and politically possible for politicians to campaign to reject the Leave vote. People like Nicola Sturgeon campaigned and argued that it was justified to Remain in the EU or else to ask the electorate again in a people’s vote.

So, if we are to take seriously the “advisory” nature of the proposed referendum on independence it must be possible legally, morally and politically to reject the vote or at the very least ask the voters to vote again on the question.

But the SNP would go crazy if Westminster treated a Yes vote in this way, even though they treated the voted to Leave the EU in exactly that way. The SNP did not think that the vote in 2014 was advisory, nor did anyone else. They expected it to be implemented in exactly the same way as a General Election. We all did. The SNP would expect the same for indyref2 whether advisory or not.

So, it is not true that the Scottish Government thinks the proposed referendum is advisory. It is crossing its fingers when it argues in this way. Bain like so many lawyers is using clever words, stratagems and ruses to evade truth. The fact that the law allows her to do so is why I view the subject as uninteresting.

Although the Scottish Government would expect the result to be implemented (i.e., it would not really be advisory), Bain argues the referendum   “would not purport to alter or impede any legal rule constituting or affecting the Union of the Kingdoms of Scotland and England either directly or indirectly” But this involves a contradiction. The Scottish Government would expect the referendum result to be implemented, but does not think it would purport to change anything about the constitution, i.e., it would not be implemented.

She thinks the Supreme Court should ignore any practical effects of a Yes vote because any political changes would be speculative. But this too is dishonest the practical affect that the Scottish Government expects and would demand is not speculative. It expects the practical effect to be Scotland leaving the United Kingdom.

Bain argues that the referendum “would not purport to restrict the powers, authority or jurisdiction of the UK Parliament”. But she knows this is not true. The Scottish Government thinks that a Yes vote would force the British Government to grant it independence in just the same way as a vote in 2014 would have forced it. This would restrict the authority of the British Government and its jurisdiction because it would no longer have sovereignty over Scotland.

Bain thinks that the “Yes/No question Ms Sturgeon wants to use on the ballot paper is “neutral” about whether Scotland should be independent and the proposed Bill is “not directed at any particular outcome”.

Why then doesn’t Sturgeon ask the Electoral Commission to adjudicate whether Yes/No is fair. How can it be fair when polling consistently shows a different result for Leave/Remain? But the idea that the proposed Bill to hold the referendum is not directed at any particular outcome, is simply untrue and Bain knows it. The purpose of the Bill is to achieve Scottish independence by means of a referendum. To pretend otherwise involves a deception.

The reason the law is held in contempt by so many of us is that it is frequently used by lawyers to argue something that is untrue or simply not in the law. Abortion has nothing to do with the 14th amendment, but that amendment was used to justify it for decades. Illegal immigration has nothing to do with the right to family life, yet lawyers use such a right to prevent criminals being deported. It is perfectly clear that the Scotland Act reserves constitutional issues to Westminster, but clever lawyers uninterested in truth try to find a way round this.

The ability of lawyers to evade the meaning of the law is precisely what enables them to command the salaries that they do. Bain will earn more than an average lawyer, because she understands the law well enough to be “economical with the truth” about it.

It is the moral equivalent of a lawyer who knows that his client is a murderer who uses his knowledge of the law to evade the truth of his client’s guilt to get him off.

The Scottish Government knows that it does not hold the power to organise a referendum like the one we had in 2014. It knows this, because that referendum was agreed with the British Government and the one that it proposes next year would not be agreed. Bain knows this too, but she wants to get the Scottish Government off. She wants to give it powers that it does not have, by evading the truth.

It is for this reason that I think the law is neither about morality, nor about truth and it is also why I would simply ignore a referendum founded on lies and deceit.