Posts Tagged ‘Scotland’

The Guardian view of Boris Johnson: neglecting the nation | Editorial

He ignores the floods while pursuing immigration plans and an attack on the BBC, which are destructive and divisive. The prime minister does not care

Two weeks after Storm Ciara rolled across Britain and Ireland and a week after Storm Dennis did the same, extensive parts of rural Britain remain under many feet of flood water. Heavy rains in the last 48 hours have prolonged the misery. The floods extend from Surrey to Cumbria, and from the Scottish Borders to the Welsh Marches. The counties in the Wye, Severn, Trent and Yorkshire Ouse watersheds are again hard hit. As the climate crisis deepens, such events are likely to be both increasingly common and increasingly severe.

People are extraordinarily resilient in the face of this kind of emergency. But human hardiness, community solidarity and individual kindness are not enough when floods repeatedly lay waste to homes, livelihoods, land, infrastructure and services. Ultimately it is only the state, both at local and national level, that can ensure the scale of preventive and responsive measures necessary to show that the whole nation is committed to enabling diverse ways of life to continue with reasonable security.

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Migration: how Scotland hoped to do things differently

Scotland set out its own proposals for a post-Brexit migration regime in January, but they have been rejected. Sarah Kyambi (Migration Policy Scotland) explains how Holyrood hoped to attract migrants to areas suffering from depopulation, and why the Home Office’s proposed salary threshold will make it particularly hard to encourage people to migrate to Scotland.

The Scottish government put forward proposals on migration in January 2020, and these marked a welcome shift towards more sensible policymaking. This week’s Home Office proposals for a new points-based immigration system, on the other hand, signal political agendas rather than a desire to address the practical challenges migration presents. I will focus here on the Scottish proposals; further detail on the UK proposals can be found here and here.

boturua
The ruins of Taigh Bhàlaigh, Botarua, North Uist. In 2018 the National Records of Scotland said the population of Na h-Eileanan Siar would fall by 5% by 2026. Photo: Tom Parnell via a CC-BY-SA 2.0 licence

The Scottish proposals tried to develop a more cohesive approach on migration, in line with the principles of dignity, fairness and respect to which the Scottish government aspires generally. The main thrust was towards an immigration system better tailored to addressing the needs of Scotland, both economically and socially. It stands in marked contrast to the proposed UK points-based system – the main feature of which is the almost complete restriction of immigration into lower-paid work.

Scotland’s population is what sets it apart most markedly from the rest of the UK. The most significant proposal within the Scottish paper, therefore, is the plan to commission expertise to inform a pilot on migration to rural and remote locations, where Scotland’s demographic challenges bite hardest.

The arguments in support of this approach found merit with the Home Office and the Migration Advisory Commission only last year, following the submission of further evidence and more nuanced analysis from the Scottish government’s Expert Advisory Group. Migration is not a straightforward answer to population challenges, but the Scottish government is right to insist that it needs the ability to draw upon migration as a key part of its response. Working out how to attract, select and retain migrants to places where people are leaving is a complicated task. The nuances are difficult to untangle and explore in the brash controversies that currently characterise the debate.

The key proposal for a ‘Scottish visa’ finds the Scottish government playing a little politics of its own. The call for a visa or green card for Scotland has been made before. But the proposals here do not involve devolving the power to issue visas. Border control functions on entry clearance (identity and security checks) would be retained at central government level. The proposals are similar to regionalised systems in countries like Canada and Australia. They include a role for the Scottish government in setting criteria for migration to Scotland under this additional entry route, selecting and nominating candidates, and a scrutinising role for the Scottish Parliament.

One interesting proposal is for the Scottish government itself to undertake the sponsorship role that currently falls to employers. This could offer a workable solution to the need for sponsorship, which under the current system poses a formidable barrier for small and medium size enterprises (SMEs). Scotland, with its proportionately higher share of SMEs, is understandably keen to smooth the way for business. The idea of replacing employer sponsorship with a designated public authority also offers the prospect of making common cause with other UK regions facing similar concerns as free movement comes to an end.

It is sobering to note that the current UK plans will need to be in action by the end of the year. Free movement provides access to a flexible and often highly qualified workforce, with EEA nationals filling jobs across the pay spectrum. The new restrictive regime calls time on this, with the lower earnings threshold set at £25,600. Fewer than half of jobs in Scotland would meet that threshold, and only 10% of those in personal care services earn more than £25,000. It is easy to see why government and employers in Scotland are worried that central government policy leaves little room for Scotland to pursue its aims. In fact, restrictive regimes like the one announced today will channel migrants precisely to those areas with the highest wages and the densest population, undermining the UK government’s previous assurance that ‘our new system will work for all parts of the UK’. Increasingly, the centralised nature of the UK’s immigration system is generating support for more regional differentiation. The Scottish government’s proposals make a convincing case for why this is needed. They also provide a mechanism for identifying who would be classed as a migrant working in Scotland, suggesting use of the Scottish tax code for this purpose.

What is missing is the detail on enforcement. While we know that regional immigration schemes do not require border checks between regions, what is needed is a clearer idea of how this additional entry route would be integrated into overall immigration enforcement. To a great extent the answer lies with the Home Office, which would continue to have responsibility for enforcement.

It is frustrating that Scotland’s plea for a more accommodating approach is falling on deaf ears. Worse, engagement between the two administrations on this critical and complex issue remains nearly non-existent. At a breakfast briefing in Edinburgh this week, business representatives gathered to discuss the Scottish proposals with the Scottish Minister for Public Finance and Migration, Ben Macpherson MSP. The event was overshadowed by alarm and dismay among business stakeholders on the proposed points-based system. It also revealed a serious lack of dialogue, let alone co-operation, between the Scottish government and the Home Office on immigration. It would behoove both sides to work together. Many aspects of the Scottish government’s proposals have merit, but they are complex and will require piloting, co-operation and testing in their implementation. However, the tenor and content of the new UK proposals makes it difficult to imagine this kind of co-operation in the immediate future.

This post represents the views of the author and not those of the Brexit blog, nor LSE.

Scottish Tories urge rethink over points-based immigration

Plans to lobby Downing Street over Priti Patel’s proposalsbranded a ‘work in progress’

The Scottish Tory leader, Jackson Carlaw, plans to lobby Boris Johnson over complaints that Home Office plans for a points-based immigration system could damage Scotland’s economy.

In his first public statement on Priti Patel’s plans, Carlaw told reporters at Holyrood he has been pressurising the home secretary to relax many of the obstacles to low-skilled, low-waged migrants she plans to introduce.

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Iain Halliday: Can the Scottish Parliament Legislate for a Second Independence Referendum?

Following the December 2019 election result, which resulted in the Conservative party winning an overall majority, but losing several of their seats in Scotland to the SNP, there has been renewed calls for a second referendum on Scottish independence.

There is an ongoing debate regarding whether the Scottish Government and Parliament can hold a referendum without the consent of the UK Government and Parliament. The reason this is uncertain is because the Scottish Parliament cannot pass whatever legislation it wishes to pass in the same way the UK Parliament at Westminster can. It can only pass legislation if it does not relate to a “reserved matter”. The Scotland Act 1998 lists the various matters which are reserved.  One such matter is “the Union of the Kingdoms of Scotland and England”.

So the question is, would an Act of the Scottish Parliament providing for a second independence referendum “relate to” the Union of the Kingdoms of Scotland and England? Whether a provision relates to a reserved matter is to be determined by reference to the purpose of the provision, having regard (among other things) to its effect in all the circumstances.

This questions was left without an answer in the lead up to the 2014 referendum as the UK Government agreed to confer competence upon the Scottish Parliament for a limited period through what is referred to as a section 30 Order. For the reasons previously highlighted on this blog, a similar approach for a second referendum would be preferable.

However the UK Government seems unwilling to repeat this course of action and so the debate has, once again, become relevant. Some have claimed that the issue has been settled by the passing of the Referendums (Scotland) Act 2020, however this Act merely implements a legal framework for the holding of referendums in Scotland; it does not provide for any particular referendum, on any particular issue, to be held.  Further legislation would be needed to make provision for a second independence referendum. So what would the purpose of that legislation be, having regard to its effects in all of the circumstances?

Purpose

In relation to purpose it has been argued that there could be numerous reasons why the Scottish Parliament (as distinct from the Scottish Government) may wish to pass legislation allowing a referendum on Scottish independence. For instance many MSPs may vote for such legislation to put the matter to rest for the foreseeable future (or at least until a further change of circumstances justifies a renewed call for independence). Parliament’s intention would not necessarily be to dissolve the Union. The Government’s political motivation for passing legislation is not the same as its purpose. 

A great deal of deference is afforded to the Scottish Parliament:

“…the elected members of a legislature… are best placed to judge what is in the country’s best interest as a whole. A sovereign Parliament is, according to the traditional view, immune from judicial scrutiny because it is protected by the principle of sovereignty. But it shares with the devolved legislatures, which are not sovereign, the advantages that flow from the depth and width of the experience of its elected members and the mandate that has been given to them by the electorate. This suggests that the judges should intervene, if at all, only in the most exceptional circumstances” – AXA General Insurance Ltd v HM Advocate [2011] UKSC 46 at para 39)

Given this general reluctance to interfere with the decisions of a democratically elected parliament, and the requirement that Acts of the Scottish Parliament are read “as narrowly as is required for it to be within competence, if such a reading is possible”, the Supreme Court may be hesitant to declare legislation providing for a second independence referendum unlawful.  

On the other hand, it could be argued that the SNP’s political purpose in introducing legislation for a second independence referendum would be highly relevant when considering the legal purpose of that legislation. The intention of the Scottish Government is indisputably clear: they want Scotland to be an independent country. The purpose of the referendum would clearly be to achieve a ‘Yes’ vote and deliver independence (i.e. dissolve the Union between Scotland and England, which is a reserved matter), not simply to conduct a market research exercise.

The purpose of the Scotland Act 1998 itself is also of relevance. This is determined primarily with reference to the text, including headings:

“In deciding what that provision is intended to reserve, it is necessary to take account of its statutory context, including the heading of paragraph 1: Imperial Tobacco, para 17. As we have mentioned, paragraph 1 is headed “The Constitution”. It reserves five aspects of the constitution. They are all fundamental elements of the constitution of the UK, and of Scotland’s place within it: the Crown, the Union, the UK Parliament, and the existence of Scotland’s higher civil and criminal courts.” – The UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill Reference [2018] UKSC 64 at paragraph 60

However the court can also consider the wider context of legislation, including statements made in parliament during passage of the Act, to determine its meaning and purpose. The purpose of the Scotland Act was to create a limited legislature; and it is fairly clear from the parliamentary debates during passage of the Act that the reservation of “the Union of the Kingdoms of Scotland and England” was intended to ensure that a referendum on Scottish independence would be outwith those limits. Whilst not determinative, the fact that the Westminster Parliament did not intend to confer the power to hold a referendum on independence upon the newly established Scottish Parliament is likely to be given weight when interpreting the provisions of the 1998 Act.

Effect

In relation to the effect of a second independence referendum, as the referendum would be advisory, it has been argued that the effect would not be to break up the United Kingdom. Such an outcome would also only occur in the event of a ‘Yes’ vote. Even if this were to occur dissolution of the Union would take place separately, at a later date, under separate legislation (which would need to be passed at Westminster). The referendum merely determines whether the Scottish people wish to take this separate step.

This interpretation is supported by the Supreme Court’s decision in Miller (No. 1) which highlighted that the effect of any particular referendum must depend on the terms of the statute which authorises it. For several other referendums the relevant legislation has stipulated what should happen in response to the referendum result, and what changes in the law were to follow, and how they were to be effected. The legislation providing for the Brexit referendum in 2016 did not.

The UK Government argued that:

“…having referred the question whether to leave or remain to the electorate, Parliament cannot have intended that, upon the electorate voting to leave, the same question would be referred straight back to it.” –Miller & Anor v Secretary of State for Exiting the European Union [2017] UKSC 5 at paragraph 120

This was rejected by the Supreme Court, which held that the Brexit referendum had not changed the law and that Parliament was required to legislate to authorise the start of the Brexit process (which they subsequently did).

The Supreme Court concluded that:

“…the referendum of 2016 did not change the law in a way which would allow ministers to withdraw the United Kingdom from the European Union without legislation. But that in no way means that it is devoid of effect. It means that, unless and until acted on by Parliament, its force is political rather than legal. It has already shown itself to be of great political significance.” – Miller & Anor v Secretary of State for Exiting the European Union [2017] UKSC 5 at paragraph 124

Applying this argument to the context of Scottish independence, it could be said that a vote in favour of Scottish independence, although of great political significance, would have no legal effect (assuming the legislation was silent on the effect of a ‘Yes’ vote) and, as such, would not relate to the reserved matter of the Union. Westminster would need to legislate to implement the outcome of the referendum, in the same way that it did following the Brexit referendum.

On the other hand, it can be argued that there is nothing to suggest that the “effect” of an Act of the Scottish Parliament is to be understood in a strictly legal sense. The effect must be considered “in all the circumstances”. The political effect of a Yes vote following another Scottish independence referendum would clearly be to bring an end to the Union between Scotland and England. Arguably such a vote could create a legal obligation requiring UK Ministers to commence negotiations to bring about independence, as was the case with the Quebec Secession Reference in Canada.

The Supreme Court had this to say about the Brexit referendum:

“As everyone knows, a referendum was held (pursuant to the European Union Referendum Act 2015) on 23rd June 2016. The majority of those voting voted to leave the European Union. Technically, the result was not legally binding. But the Government had pledged to honour the result and it has since been treated as politically and democratically binding. Successive Governments and Parliament have acted on that basis”. (Miller & Cherry v The Prime Minister [2019] UKSC 4)

Would a Scottish independence referendum be treated any differently? Perhaps it would, if it was made clear, and widely accepted, prior to the vote taking place that it was not politically or democratically binding. However if that is to be the case, what is the point in having the vote in the first place?

A great deal of emphasis is often placed on this line of argument, however it is worth bearing in mind that:

“The effect of a provision is merely one of the circumstances to which the court must have regard when determining the purpose.” (SEPA and others v Scottish Coal Company Ltd and others [2013] CSIH 108 at paragraph 150)

As such the effect of the referendum is unlikely to be decisive when determining the purpose of the relevant legislation, particularly given that the effect cannot be known until the vote takes place and the outcome declared. 

Conclusion

Ultimately it will be up to the Supreme Court to decide the issue, if called upon to do so. Given Nicola Sturgeon’s dogged determination to hold a second referendum within the next couple of years, and Boris Johnson’s summary dismissal of any call for recognition of Scotland’s distinctive place within the Union, it seems likely that we will not need to wait too long to find out the answer.

Iain Halliday is an Associate Solicitor at McGill & Co Solicitors.

(Suggested citation: I. Halliday, ‘Can the Scottish Parliament Legislate for a Second Independence Referendum?’, U.K. Const. L. Blog (13th Feb. 2020) (available at https://ukconstitutionallaw.org/))

#Indiref2: Twitter and the Potential for a Second Scottish Independence Referendum

On Twitter, conversations around Scotland’s independence, dampened momentarily by a failed referendum in 2014, have been reinvigorated with the advent of Brexit. This article examines how public sentiment towards Scottish independence varies across the United Kingdom’s four constituent nations (England, Wales, Northern Ireland, and Scotland) by analyzing tweets made in January of this year in lead up to Brexit. Perhaps not surprisingly, the majority of tweets totaling 4,462 (71.4%) on the subject were sent from the mainland of Scotland. 1,387 (22.2%) tweets were sent from England, whereas Wales and Northern Ireland have 286 and 212 tweets respectively, collectively accounting for ...

Nationalism is winning – on both sides of the Scottish border | Rafael Behr

If you’re not a Tory it’s hard to defend the union when Boris Johnson is its champion

More people in England have already forgotten the name of the Scottish finance minister who resigned last week than ever knew it before the scandal broke. Derek Mackay was hardly a celebrity in Scotland, but his disgrace made news there for more than a few hours. Mackay had compulsively messaged a 16-year-old boy on social media, calling him “cute” and offering him trips out. The behaviour was “foolish”, he said. Opponents called it predatory.

Questions followed about the Scottish National party’s handling of the matter and how its leader, Nicola Sturgeon, should patch the hole in her cabinet, but England had tuned out by then. Scandal is union-wide; aftermath is devolved. This isn’t new. People have limited bandwidth for politics, and the SNP doesn’t govern England. Holyrood is a niche interest even for Westminster nerds. But the longer this segregation of political cultures goes on, the harder it gets to argue for a United Kingdom.

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Windrush: MPs ask government for answers on deportation flights – as it happened

Rolling coverage of the day’s political developments as they happened

Related: What does the Irish election result mean for Brexit?

The legal challenge against the government plan to deport 50 people to Jamaica tomorrow (see 12.32pm) has been refused, the BBC’s Adina Campbell reports.

BREAKING: A legal challenge to stop tomorrow’s deportation flight to Jamaica has been refused at the High Court. 50 people will be forcibly removed. The government say they are serious criminal offenders.

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