On Wednesday morning (Dec 17th), the Supreme Court will publish its reasoning for refusing the Appeal against the Lord Advocate (Scotland) which asked if the Referendum was lawful.
Being mindful that the Referendum was imminent, the Supreme Court took the extraordinary action of offering their decision immediately after the end of the one day hearing in July, but reserving their reasoning for that Decision until later.
That hasty decision was that the Referendum was lawful.
The 'hook' on which the Appeal was launched was that prisoners are disbarred from participating in the Referrendum as a consequence of the rules regarding prisoners rights to vote in a political election. (Clearly, if the outcome of the Refferendum was a 'yes' majority, then the Executive would have been obliged to promptly hold an election, which would have to be constrained by those disbarring rules).
The decision appealed against can be read here :
http://www.bailii.org/scot/cases/ScotCS/2014/2014CSIH56.html
This Wednesday's Decision will have no bearing now on anything that happens, so will only be for academic interest.
However, it was a question which interests me greatly, and while I hesitate to critisise the representations of the Petitioners (equiv. to the Apellants in England), I do believe that some of the crucial points were not adequately articulated durng the hearing (in fact, I had suggested an example to the Lord Advocate's Counsel that I suspect might have been more persuasive than that of prisoners!).
One crucial point was that the Referendum was a question of long-term governance and nationality, and in establishing a legislature - in contrast, an election is a question of politics (over a defined period) and democracy. The distinction becomes more acute when you consider the rules for eligibility which were applied - the rules admit anyone to participate in the Referendum if they are registered as resident in Scotland and if they are citizen of the EU or the Commonwealth or the Republic of Ireland (and not barred such as prisoners).
These rules include many people whose interest is short-term.
But these rules
exclude others whose interest with a more permanent interest in creating a Scottish nation-state; these might include owning a substantial investment in Scottish property or other assets:- land owners, property owners, having Power of Attorney on behalf of Scottish citizens unable to vote through their own incapacity; holding Directorships or Trusteeships of Scottish enterprise, institutions, Charities; those working in Scotland for Scottish institutions, government, enterprise etc. and, of course, Scottish people living elsewhere (such as the in the EU or Commonwealth) and whose nationality might be about to change, but not otherwise falling within the rules of an election.
It was argued that the exclusions violated a Scottish person's Common Law rights.
Another crucial point was that the Referendum was incompatible with the ECHR Article 3 Protocol 1 and Article 10.
We can expect the reasoning to be published on the Supreme Court's website later on Wednesday :
http://www.supremecourt.uk
