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How losing indyref2 court battle could help Scotland win independence

EVEN a lost court case over Scotland’s right to hold a second independence referendum could benefit the Yes cause due to the “awkward” legal arguments the UK Government will be forced to make, one of the architects of the Edinburgh Agreement has said.

Professor Ciaran Martin, the former constitution director at the Cabinet Office, made headlines last month after he told the Edinburgh International Book Festival that he expected the Scottish Government would lose any court case over a right to hold a referendum.

However, speaking to The National, Martin said he had been “quite surprised” to see the focus of those headlines as that had not been the main thrust of his argument.

Instead, Martin suggested that a court case, as well as providing “a lot of entertainment and good political copy”, may well play out to the Yes side’s advantage, even if holding indyref2 were deemed outwith Holyrood’s competence.

READ MORE: Why are Scots not more outraged at ‘dramatic’ change in Union, Tom Devine asks

“The theatre and substance of a court wrangle may work in their favour,” he explained.

“The UK Government will have to make very awkward arguments, such as that Scotland’s not really a nation with a right to self-determination.

“Something I heard time and again from convinced Unionists in Scotland is that they would vote passionately and campaign passionately to stay in the Union, but if anyone ever told them in all seriousness that Scotland had no right to leave, then that would be a different matter.”

By way of an example, Martin pointed to Northern Ireland and the Unionists’ failed attempt to have the protocol imposed by Boris Johnson’s Brexit deal struck down.

Despite losing the case, “the Unionists won a valuable political victory … by gaining in the judgment the remark that article six of the Act of the Union with Ireland of 1800 had effectively been repealed”.

“When the Unionist politicians went back to their core electorate and said [that], that was a big deal.”

He goes on: “If a UK law officer or Supreme Court judge basically opines that Scotland doesn’t really have the right to leave, that’s just political rhetoric, then I think you can see what the independence movement could do with that politically.

“The real arguments against having a referendum are not that it was ‘once in a generation’, it’s not that it’s polling at 50% or 60% or whatever Alister Jack’s threshold is. Those are not legal arguments but political ones, and the courts will not entertain them.

“‘Once in a generation’ was not a legal commitment, believe me, I prepared the legal documents for the Edinburgh Agreement. It’s just a slogan.

“The legal arguments will be that Scotland does not have the right to leave the United Kingdom if Westminster does not wish it to be so. It may be that that’s quite strong medicine for some Scottish voters.”

Martin, now an adviser for Paladin Capital and professor of government at Oxford University, said he had initially intervened in the constitutional debate as he was “genuinely concerned about the health of politics” ahead of the Holyrood election in May.

“Some of the rhetoric coming out of London [was] saying ‘under no circumstances for decades’ – that can’t be right,” he said.

“We have treated constitutional Scottish nationalism as a legitimate political aim since the 30s, so to say it is unobtainable under any circumstances for decades, which is effectively what they [the Tories] were saying before the election, I thought was wrong. That’s why I intervened.”

Martin also told The National why he had described the Internal Market Act as a “constitutional land grab” in a recent blog post in which he also accused the UK Government of showing “hostility” towards devolution.

READ MORE: Welsh Government to take legal action over Westminster ‘power grab’ act

Ahead of the passing of the controversial act, the SNP warned that it was a concerted attack on devolution and labelled it a “Westminster power grab”. However, the Tories insisted it was in fact a “power surge” that would see Holyrood gain influence.

Martin said that by introducing a policy of using the “lowest common denominator” when it came to things like food regulation, the act had “neutered” the devolved administrations.

He said: “Under the Internal Market Act, if England says ‘we don’t care about that’, then the regulations of England apply throughout the UK.

“Basically, you in effect neuter the devolved administrations’ ability to regulate things like consumer products, which is quite a big deal.

“That’s quite a big devolved power, [and] there is a power now which means you can effectively override the decisions of Holyrood, Stormont, and the Senedd in regulatory matters.”



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