Scottish referendum decision clarifies power to call border poll sits with Westminster too – Slugger O’Toole

The written constitution of Great Britain is cumbersome, archaic and difficult to interpret without the help of judges. There have been many calls over the centuries for a written code like the US (and almost everywhere else that was once Britain, including Ireland).

Enter the UK Supreme Court ruling on whether Scotland has the unilateral right to hold a referendum on independence. The court held that calling a referendum went beyond the “legislative powers of the Scottish Parliament”.

More importantly, the ruling states that such a measure could result in “the end of the sovereignty of the Commonwealth and the United Kingdom Parliament over Scotland” and therefore leaves such a matter to Westminster.

Most importantly (for Scotland and Northern Ireland), on the question that the proposed referendum in Scotland would be advisory only and therefore not binding immediately to comply with the decision, says:

The impact of the bill will not be limited to holding a referendum. Even if the referendum had no immediate legal consequences, it would be a political event with important political consequences [78-81]. It is therefore clear that the proposed Bill has more than a loose or consequential connection with the protected matters of the Union of Scotland and England and the sovereignty of the United Kingdom Parliament. Accordingly, the proposed Bill relates to protected matters and is outside the legislative powers of the Scottish Parliament. [82-83], [92].

That’s exactly it. If leaving the UK is a political issue, then holding a referendum on a high-level constitutional issue (even an advisory one, as we saw from the 2016 EU referendum) could cause things to get completely out of Westminster’s control.

Consent at Westminster is thus the critical trigger in both cases. Yes, we put it in writing A pair of referendums is a legitimate way out, though this is what few people understand Westminster must first agree to this.

What the judgment does is express the reality of devolution under this unwritten UK constitution.

This explains why the #BorderQuery remains in the hands of the Secretary of State for #NorthernIreland and therefore cannot be used, at least for another generation, whatever the flow.

What few have yet realized is that it is seen not as an interesting experiment in devolution in England, Wales and Scotland, but as a way to help the island of Ireland settle its stormy relationship.

So if calling a border poll is a political issue for Westminster, when do we think the Westminster government will call if the optimal outcome for the union is 50% + 1? The fastest way home is the longest way.

Devolution is not an opportunity to share the compulsion to work with generational enemies, but an unpleasant reality for most of its participants, who perceive it as a disgusting drug that someone else forces them to take.

But without an alternative (and have you noticed how NI political actors seem to be long on criticizing each other but short on mentioning other viable options?) power is here to stay. And Westminster still has the key to the door.

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