The Weekly Round-up: Scottish independence referendum, retained EU law and social media
30 November 2022
In the News…
The Supreme Court has ruled unanimously that the Scottish parliament does not have the power to pass legislation that would allow for a second referendum on Scottish independence. Such legislation, the Supreme Court found, would touch on ‘reserved matters’, that is, matters affecting the United Kingdom as a whole. The Scottish government unsuccessfully argued that a referendum would be advisory, and as it would not have immediate impact on the existence of the UK, would not touch on reserved matters. Sturgeon, while respecting the ruling, commented that it confirmed that the UK can no longer be pictured as a voluntary partnership and noted that the next general election could serve as a ‘de facto referendum’.
Nurses are preparing to strike for the first time on the 15th and 20th of December. The issues in question include low pay and unsafe staffing levels. The Royal College of Nursing (RCN) has reported that experienced nurses are 20% worse off in real terms than in 2010, due to many pay increases below the rate of inflation, and that 25,000 nursing staff have left the Nursing and Midwifery Council register since last year. If ministers continue to refuse to engage in formal negotiations with the RCN, the strikes will go ahead across England, Wales and Northern Ireland, and are expected to have a severe impact on care.
Charities that have been pouring money into care services that they provide under contracts to councils and the NHS are becoming unable to maintain their financial subsidising. The cost of living crisis, soaring energy prices and the staffing crisis in social care are all destabilising an already-precarious financial situation. Leonard Chesire has begun evicting some residents, and providers are increasingly returning their contracts to deliver care. Lack of investment by the state has made operating at a loss the norm for some service providers. This is now creating the possibility for systemic collapse and low quality of life for those relying on care services.
In other news…
In response to the government’s Retained EU Law (Revocation and Reform) (REUL) Bill, which proposes removing thousands of EU laws from post-Brexit UK, Meta (the parent group that includes Facebook and Instagram) has asked that laws relating to the functioning of social media companies should be ‘maintained elsewhere’ or ‘removed from the scope’ of the REUL bill, as otherwise, social media groups may be ‘less likely to operate in the UK’, to quote Richard Earley, Meta’s UK public policy manager. The REUL bill is at committee stage. It has recently been described by Lord Andersen KC as asking Parliament to ‘sign a blank cheque in relation to 2,400 pieces of retained EU law’ (p2), giving no indication of what alternative provisions the government will think ‘appropriate’ under clause 15 of the bill. Andersen called for more clarity around the meaning of this ‘extraordinary executive power grab’ (p8).
Owen Paterson, a former MP who was entangled in a lobbying scandal, and a prominent Brexiter, has decided to challenge a finding by the parliamentary commissioner that he broke the rules regarding MPs engaging in paid lobbying. Paterson will take the UK to the European Court of Human Rights (ECtHR), arguing that his Article 8 right to respect for private life has been violated; more specifically, Paterson argued in his application to the ECtHR the public finding against him damage his reputation and the process of investigation was ‘not fair in many basic respects’.
In the courts…
On November 23rd, in REFERENCE by the Lord Advocate of devolution issues under paragraph 34 of Schedule 6 to the Scotland Act 1998, the Supreme Court handed down a judgment regarding the question of whether the Scottish Parliament has power to legislate for holding a referendum on Scottish independence. The court concluded that firstly, the question referred was indeed a devolution issue and that consequently, the court had jurisdiction to decide it (47); and secondly, that they should accept the reference, noting the ‘exceptional’ circumstances of the case which included the immediate practical consequences of any answer to the question (53). It was submitted that the Bill related to reserved matters, as the purpose of a referendum on Scottish independence related to bringing about an end to the United Kingdom Parliament’s ability to make laws for Scotland (58-63). On the other hand, it was argued that an advisory referendum did not disempower the UK Parliament and was speculative in its effects (64-69). The phrases ‘relates to’, ‘purpose’ and ‘effect’ were all scrutinised by the court, in terms of the scope of their particular meanings and so whether the purpose and effects of the referendum related to reserved matters (57, 70-83). The court concluded that the referendum would have ‘more than a loose or consequential connection with the Union of Scotland and England’ and ‘with the sovereignty of that Parliament’ (82). An argument based on the principle of self-determination was rejected. Following the Supreme Court of Canada in the Reference re Secession of Quebec [1998] 2 SCR 217, the court applied the observations that the right to external self-determination comes into play under international law only when the territory meets the threshold of consisting of a colonial or oppressed population, or one where people lack meaningful access to political, economic, social and cultural development. Comparing Scotland to Quebec, they deemed that only internal self-determination was open to the people of Scotland. In addition, the court found that no reading of the relevant section of the Scotland Act could breach the right to self-determination arising in international law, and that the allocation of powers within it does not infringe the principle of legality (90). The court concluded as follows: ‘the provision of the proposed Scottish Independence Referendum Bill that provides that the question to be asked in a referendum would be “Should Scotland be an independent country?” does relate to reserved matters’, namely, to the union of Scotland and England and to the UK Parliament (92).
On November 25th, in Crowter and Others v Secretary of State for Health and Social Care [2022] EWCA Civ 1559, the Court of Appeal handed down judgment relating to whether ‘the availability of abortion in cases of serious foetal abnormality interferes with the human rights of people living with Down’s syndrome’ (2). Abortion is currently available at any stage of pregnancy where two doctors form the good faith opinion that there is ‘a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped’. The claim was that it is contrary to the European Convention on Human Rights (ECHR) to permit abortions of children with Down’s syndrome or other ‘serious handicaps’, especially after 24 weeks (3). The ECHR does not give rights to the unborn, but one claimant was allowed to appeal, as her rights, as a person living with Down’s syndrome, were at issue. The claim was that the Article 8 right to respect for private life, which includes a right to respect for ‘the sense of identity and the feelings of self-worth and self-confidence” of people with serious disabilities’ (5), was interfered with as the law in question conveyed a message that those with such ‘serious handicaps’ are of lesser value (5). It was also claimed that Article 14 was interfered with, as the law was discriminatory. The appeal was unanimously dismissed, as the law in question does not interfere with the rights of living disabled people. The Court recognised that upset and offence caused by the diagnosis of serious disability might be a trigger for termination at any stage of pregnancy, but it noted that the perception of the law’s implications was not deemed to be enough to cause an interference with Article 8 rights. The Court of Appeal endorsed the High Court’s position that the ECHR gives the democratically-elected legislature a ‘wide margin of appreciation’ in determining the balance between many rights and interests relating to abortion, and agreed that the current law falls within that margin (101-117). Lord Justice Underhill noted that the courts are concerned with the legality of the law, but not with the law itself and whether it was the appropriate one; that, he concluded, remained a question for Parliament.
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