Thank you very much for your email asking me and my fellow MPs to contribute to your fundraiser. Where I want to wish you well, and note the impressive sum that you have raised so far, I will not be making any donation.
There are a number of concerns I have about this initiative. First and foremost is that I believe it may compromise progress towards securing our aim of independence. I also fundamentally believe that where legal actions may at some time be required, Scottish independence will be determined by political means and not through initiatives in the courts.
Where legal opinion is split on whether you may be successful, my exclusively political view looking at the available evidence, is it is unlikely to be successful. There are also further questions about whether you will be able to continue the fundraising efforts for a series of very expensive actions which may be required throughout all the necessary stages of this case. You will also be aware that the Scottish Government is not supporting this action.
But it is the likelihood of failure that I want to highlight as my main concern.
There are many good reasons why both sides in this debate have left this issue unresolved. For the independence case, having this tested (at this stage) and the prospect of losing it now could be disastrous for our independence prospects. The first response from unionists following a defeated action would be of unbridled jubilation. Where they are currently losing the argument, whilst having to observe support for independence at a sustained majority for the first time in our history, securing a judgement that a Scottish designed independence referendum is ‘illegal’ might just gift them a boost to their moribund campaign.
Secondly, if the UK Government were to continue to refuse to participate in a properly constructed ‘legal’ referendum, agreed by both sides, we might need to use a Scottish based referendum as either a tactic to force them to an arrangement or as a basis of a campaign to resolve the issue. If it is already declared ‘illegal’ this will not be available to us. Where I note that you and your supporters take a fairly casual and cavalier approach to any defeat what you may be doing is creating a legal cage for a Scottish designed referendum and then have that referendum permanently locked inside it.
I do however note that you may be successful, and even if I personally believe that to be unlikely, that would indeed be a positive outcome. However that satisfaction might be short lived. Firstly we would still require the UK to participate in a referendum to supply a ‘No’ case and we would further require them to recognise any result to secure a legal basis to the referendum and to have it internationally recognised. There are also further legal hurdles in the Scotland Act 1998 to overcome about reservations in relation to the constitution. Secondly, and perhaps more importantly, any legal judgement will detail the provisions on which any action is successful. There is nothing to stop the UK subsequently amending the Scotland Act to make a referendum retrospectively illegal. This is exactly what they did in relation to the Scottish Parliament’s Continuity Bill and there is no reason to believe they wouldn’t do it again. A court ‘victory’ therefore may take us no further forward than we are now.
Finally, the letter you sent me barely made any sense referring variously to issues of popular ‘sovereignty’ and a ‘Section 30’ order. I believe that recognised legal authorities have already pointed out to you that neither of these issues have anything to do with the action you are raising. Your action is exclusively about whether Holyrood legislating for an independence referendum “relates to a reserved matter” under the Scotland Act. A Section 30 Order and ‘sovereignty’ are not detailed in your action and have nothing to do with your intended court case.
I know that independence supporters are desperate to see their nation secure its rightful place in the community of nations and are looking for anything that might secure some sort of shortcut to achieving that. However, those of us elected to secure independence for our nation have a responsibility to detail reservations we may have on particular plans and proposals and highlight some of the difficulties that might emerge from pursuing certain actions. I’m afraid that your action does not provide a helpful way forward and presents just far too many risks. For those reasons I will not be contributing to your fund-raising appeal.