Daily Archives: September 27, 2022

Numerous books and articles published in recent years have deplored the condition of American higher education. On the one hand, costs keep outpacing inflation by a wide margin. On the other, questions are increasingly raised about the quality of what students and parents are getting for their money. Outside the STEM fields, in which our colleges and universities continue to excel, newspapers regularly highlight students who, having majored in subjects broadly called the "humanities" at prestigious and costly schools, find themselves unable to obtain gainful employment in their field of interestand hence to repay the hefty loans they may have taken out to finance their education (at least without the benefit of Joe Biden's federal bailout). Finally, a large proportion of our institutions of higher learning have succumbed to politicization: Many faculty use their courses as occasions for partisan indoctrination, syllabi are subject to censorship or "trigger warnings" for potentially offending various designated "minorities," visiting speakers are harassed or disinvited if they express dissenting points of view, and students report being "canceled" by their classmates for violating politically correct taboos.

In Part I of The Death of Learning, John Agresto acknowledges the force of each of the foregoing criticisms. But the greatest value of his book lies in its second part, devoted to the theme of "Redeeming and Reconstructing Liberal Education." While scolding the snobbery of societal elites toward fellow citizens who don't pursue a college degree, instead entering the working world directly, Agresto aims to defend the value of a genuinely liberal education, not only for the individual who receives it, but for his country. But to do this requires reconceptualizing the nature and meaning of liberal education.

Agresto is uniquely qualified to undertake this task. Having taught political philosophy at several prominent colleges and universities and authored five books (some dealing with the American constitutional tradition and the role of the Supreme Court), he held a senior position at the National Endowment for the Humanities before serving as president for 11 years at St. John's College in Santa Fe (one of two campuses of America's premier "great books" school). He capped his formal academic career by serving as senior adviser for higher education to the Coalition Provisional Authority in Iraq, where he held the positions of dean, provost, and chancellor of the American University there.

In his preface Agresto identifies several incidents that provided the impetus for this book. The first was his dissatisfaction with the contributions to a volume he once edited on the "uses" of the humanities. Those essays suffered from the "conceit" that "the liberal arts have no uses'" and lack any purpose than themselves; that they have no role, in particular, in promoting good citizenship; and that "true" humanistic scholarship must be "narrowly focused and academic" rather than broadly accessible. A second impetus was the widely publicized 1998 dismantling of Stanford University's Western Culture curriculum (required of all freshmen) in favor of a new course "capitulating to the self-aggrandizing demands of student radicals," the content of which would conform to the dicta of "ethnic and gender proportional representation." A third was a challenge the author received from William F. Buckley on his Firing Line television show to the notion that all young people, whatever their intended vocation, "should be given the opportunity to be exposed to great literature," science, and history (since some find those studies neither interesting nor useful).

But the final stimulus Agresto mentions suggested the opposite of Buckley's position as well as that of the art-for-art's-sake humanities scholars and Stanford radicals: a question posed to him by three freshmen at the Iraqi university he helped to found, who had been studying Thucydides'History of the Peloponnesian War: Were the Americans "Spartans" rather than "Athenians"that is, would they betray their allies as the Spartans had done? The students' challenge exemplified the way that a serious education in the humanities may benefit all young people, regardless of their nationality, their ethnic, economic, religious, or racial background, or their likely future careers, that might not arise without the study of classic, transhistorical texts, and which might be crucial to their enjoyment of a meaningful life and their role as thoughtful citizens.

Agresto summarizes the reasons for the growing loss of respect for liberal education in America in two phrases: the "denigration of the high" and the "stigmatization of the ordinary." The first phrase refers to the suicidal destruction of the liberal arts by "radicalized" teachers of fields like history, literature, philosophy, and classics who, in the name of "equity," replace nonideological courses on the history of Western civilization or American history with those devoted exclusively to the history of the oppression of women and minorities; allow arts requirements to be satisfied by courses on rock and roll; and incorporate courses devoted to comic books ("graphic novels") into the literature curriculum (I offer the last two examples based on personal observation).

To add to Agresto's point, I would note the replacement of the political and diplomatic history that used to constitute the core of the history curriculum with "social" issues focusing not only on oppression but more generally on how ordinary people lived, as in their diets and clothing fashions. This change illustrates a point made by Alexis de Tocqueville in Democracy in America: Whereas in aristocratic times, historians emphasize and even exaggerate the influence of great individuals in shaping events, democratic historians adopt the view that history is determined by impersonal forces operating on the masses. Tocqueville's aspiration was to encourage democratic people to think more highly of their capacities, rather than succumb to fate.

By the "stigmatization of the ordinary," Agresto means the view common among today's academics "that it is not merely the highest expressions of our culture that need to be toppled but this culture's more ordinary manifestations the common views of right and wrong" held by most people, including national pride and the ethical beliefs that are supported by "conventional Western religious understandings."

In response to the disparagement of most Americans as bigots and racists by academic movements like "critical race theory," Agresto observes that people "across the political spectrum," regardless of their race, ethnicity, or economic status, regard "slavery and racism as betrayals of our founding principles of liberty and equality," while also believing "that merit, achievement, moral responsibility, and character are all to be assessed" on an individual basis, not any "collective identity," and that "no special status, no entitlement or punishment, should be bestowed simply by virtue of identity-group membership."

In the second, affirmative part of his book, Agresto opens with a chapter titled "Liberal Education in Its Fullness," which addresses the benefits a true liberal education offers for the individual's happiness as well as that of others. From the outset he stresses that his defense of the liberal arts will be "tough-minded," not a mushy one that promotes qualities like sensitivity and humaneness. As he observes, most of the great Western writers were "tough-minded and challenging" rather than (usually) "sentimental."

Agresto is himself no sentimentalist when it comes to the recent prehistory of liberal-arts instruction. Citing C.S. Lewis (he might have added Nietzsche), Agresto objects to the tendency of the professariat to focus on the historical context or biography of a great writer rather than assessing the truth of an authorial claim. By rejecting "the opportunity to see the world as a great author saw it," we make the study of his writing not only valueless, but boring. Agresto adds, "Only second-class books are truly captives of their times," rather than having transhistorical value. (As an example, he cites the way that Hawthorne's Scarlet Letter was written not for the sake of historical analysis, but to raise fundamental issues of "character and morals" for readers to contemplate.)

The plausible, nonhistoricist assumption that great writers from antiquity onwards made that "human nature doesn't change all that much over time" entails that they may raise major questions we might not have contemplated from within the intellectual confines of our own society. (Recall the query posed by those Iraqi students.) At their core, as Agresto puts it, "the liberal arts are a way of understanding the most important human questions through reason and reflection."

Turning, more specifically, to the reasons for studying "Western civilization and its American annex," Agresto first answers: "Because that tradition is ours." Regardless of one's country of origin or ethnic background, if you live in a Western nation, you become part of a common culture, shaped by a common set of great and good bookswhich is not incompatible with also studying works that are specific to your specific religious or ethnic background.

A particularly astute insight of Agresto's is his challenge to the often-asserted claim that the value of liberal-arts instruction lies in encouraging "critical thinking." As he observes, "too often radical questioning" of the sort espoused by today's "politicized professariat" is just an excuse not for learning but rather for "dismissing" books that don't agree with the current conventional wisdom. As Hegel and Nietzsche had observed, professors who approach great books, or historical figures, in this way are really just "puffing [themselves] up": Even if I'm not as wise as Socrates, the professor is saying, at least I'm free from his (supposed) prejudices. Rather than rely on a scholarly tradition or current doctrines to tell us how to read classic books, Agresto urges a return to "an older understanding of the liberal arts as the home not of sophistication but of naivet," or open-mindedness.

In contemplating the value of the liberal arts for the individual, Agresto acknowledges that while studying classic books may help engender the virtues of intellectual courage (in "grappling with some of the greatest minds") and humility (knowing that we are seekers more than possessors of knowledge), there is merit to Cardinal Newman's point (and Aristotle's) that knowledge cannot in itself engender the sort of "command over the passions" that moral virtue requires. But he emphasizes another virtue, much undervalued by political partisans today, that liberal education can also generate: moderation, reflecting awareness of the limitedness of our knowledge, in contrast to the "elitist sanctimony" toward other people's moral, religious, and political beliefs that underlies much of the public's alienation from the liberal arts. Properly taught, the great books "can keep us from being ruled over by slogans," and even to confront secondhand (not only firsthand) "the baser parts of our nature," as well as its nobler potentialities.

At this point Agresto shifts focus from how liberal education benefits the individual to how it serves his country. As he observes, such learned members of America's founding generation as Jefferson, Madison, and Princeton's John Witherspoon would not have accepted the claim that such education serves no purpose beyond itself. He concludes that as the recipients of the learning of men like Shakespeare and Milton, we can repay them only by keeping their thought alive.

In his concluding chapter, "Where Do We Go from Here?" Agresto cites several promising models of the sort of education he has proposed. These include (besides St. John's College) the Core Texts program at Assumption University; the Jack Miller Center, which "has built a community of professors and teachers dedicated to teaching American history, principles of democratic government, and constitutional law and history"; and the "comprehensive" American University of Iraq, founded only 14 years ago in the Kurdish area (but with an enrollment that has grown from 45 to over 1,600). Its curriculum and mode of instruction, he observes, are the direct opposite of the narrow curriculum and "draconian" emphasis on memorization that prevailed under the Saddam Hussein regime.

While spreading this liberal-arts model will be costly, Agresto, ex-college president, has useful advice on how to address the costs, citing the multiple donors to the soon-to-open University of Austin; offering adult education in the great books to supplement regular tuition, including the Summer Classics and Executive Seminars programs at St. John's; and the need to recruit allies in graduate programs in medicine, law, and the sciences to the cause.

Limits of space prevent me from discussing the six useful appendices to this volume, which address (among other topics) Lincoln's self-education in the classics; the case for studying Latin and Greek; and "The Politics of Reading." The book concludes with "messages" to high school teachers and principals and to high school seniors preparing to choose a college.

This is a splendid book that deserves to be read by every professor and academic official who seeks to restore liberal education; by every student (and prospective student) sharing that interest; and by the parents who'll be paying the tuition. In fact it should be read by every public-spirited citizen.

The Death of Learning: How American Education Has Failed Our Students and What to Do About Itby John AgrestoEncounter Books, 256 pp., $30.99

David Lewis Schaefer is a professor of political science at the College of the Holy Cross.

Excerpt from:

Oh, the Humanities! - Washington Free Beacon

Vladislav Starodubtsev: Thank you for inviting me. Its great to see you here.

Bill Fletcher: I want to just start with, what is the current situation? We get various reports in mainstream media, and Im interested both in terms of your look at the war, but also whats happening within Ukraine itself with the Ukrainian government?

Vladislav Starodubtsev: Okay, I will probably start from afar. Once the war started, actually the day before, Russian officials called to the Ukrainian parliament and said that they want a complete surrender of Ukraine to Russia. Ukrainian officials said to them that we will wait a few months for the complete surrender of Russia. On the next day, there was a parliamentary brief where Zelevsky gathered all the politicians of all parties, all the military personal and high government officials, and they were preparing for the invasion the next day.

Russians tried to capture Ukraine for a week, and US and European officials, at the day of the invasion, were calling Zelenskyy and people in parliament and asking them to leave to safety and abandon Kyiv, but as we see now in the six months after the invasion, nothing like this happened, and all the Western governments that were saying that Ukraine will fall in three days just completely failed and cannot understand what to do now.

In this situation, Ukraine still fights and resists Russian occupation, and today theyre starting a new counter-offensive to liberate [inaudible] from the occupation. Its a lot more Ukrainians are doing a lot more than people from the West and general politicians expected from them. Actually, we are showing great resistance to the occupation.

But of course the war creates a lot of problems, a lot of social problems, a lot of political problems that we need to be honest with. What the Zelenskyy government does is absolutely awful and creates a lot more social instability [inaudible] in times of war by using the situation as a pretext for attacking the rights of trade unions, of the people who are in precarious conditions, attacking of housing rights, of social rights, depriving of basic social securities for the needs of advancing their market fundamentalist ideology.

This creates a lot of social tensions in Ukraine. A few weeks ago, there were a few laws adopted that just completely harm the rights of trade unions to defend their workers, and a few laws that introduced zero-hour contracts that actually deprives the right of eight-hour working days and the right to have minimum wage and stable working conditions.

At the same time, they are progressing privatization laws. They are even privatizing the [inaudible] industry, so in times of war, where war economy is needed and social dialogue and social stability is absolutely necessary to enforce, they are pushing for awful neoliberal reforms.

Bill Fletcher: Well, let me ask you this. It may be a naive question. But picking up on your last point, at a point where this invasion remains underway, why is the Zelenskyy government carrying out policies that, in effect, will destabilize Ukraine?

Vladislav Starodubtsev: I think its more ideological. They believe that theyre doing good stuff, that this policy should be done in times of war, and even before the war. They have this very market fundamentalist worldview, that everything could be solved by the market hand, and if you just let the market do everything, it will be done. Of course its absolutely not working. Its actually collapsing the country in real time. Theyre doing tax cuts, prioritization, and cuts to the workers rights, but theyre trying to push for their agenda to the final. Theyre actually using the situation of the war to push for the most horrible reforms in economic democracy and trade union rights that were introduced a few years ago, that they failed to push at that time. For them its a possibility to achieve their vision of Ukraine. I wouldnt say that its a pretty good vision, especially in times of war. Its absolutely compromising the Ukrainian defense.

Bill Fletcher: Now, as you know when the Theres been what I think to be a sort of strange response to the Russian invasion on the part of many leftists and progressives in the West, including but not limited to in the United States. When the Russians invaded Ukraine, I thought it was obviously a settled question that the Russians were the aggressors and everybody should oppose that and support the Ukrainian resistance. But a different set of different views began to surface. Im curious how you and other Ukrainians look at this phenomenon within different left and progressive circles in the West, of some people actually supporting the invasion, others essentially adopting the point of view of Henry Kissinger, the former secretary of state, and insisting on what the terms of a settlement should be. Very different points of view about whether the United States or anyone else should provide arms to Ukraine, and people are all over the place. Im wondering how you and your organization and others view this phenomenon.

Vladislav Starodubtsev: I would say that 99% of the left and general Ukrainian society have only one opinion on all of these issues. Theyre, of course, supporting Ukraine for the fight to total victory, and for the, of course, sending heavy weapons to Ukraine, to Ukrainian resistance, because its a question of survival. Its a question of their democratic rights, of their national rights, and of their lives in general, of being able to live a peaceful life, not in the horrible fascist occupation.

Of course, all these debates, theyre just awful. A few days ago, I think yesterday, there was an event organized by Democratic Socialists of America, these very random people that have no legitimacy to talk about Ukraine, that were talking the same thing about peace negotiation, about US aggression, proxy war, that actually just denigrates any opinion of the Ukrainian population and what we are thinking, and tries to speak over our heads to ensure their word views and political agenda. Its, of course, absolutely awful.

This situation, I would say, is very colonial thinking, that only the US has some subjectivity in world politics. Even Russians cannot do it, or the Russian state, cannot do anything without their subjectivity. Theyre only reacting to the actions of the US government or other Western governments. These views denie a possibility of states to do independent politics and be imperialist without any relations to the US, and kind of justifies those aggressions on the US. But of course, its absolutely untrue.

Such people are actually arguing for peaceful settlement with Russian imperialism, thinking that if theyre compromising with the fascists, they will build a more progressive world order. Theyre, for some reason, thinking that building the world based on the rule of the strongest and based on the multipolar imperialists [inaudible] for world power. Its actually a more progressive and democratic world that we have right now, but there is nothing progressive in the multipower world of multiple imperialism. Theres nothing progressive in the world where a status quo can be destroyed by the rule of the strongest against the weakest nations. There is no anything progressive or democratic, and that these beliefs and views are the same as Henry Kissinger should tell something to the left, especially the American left.

Bill Fletcher: One of the principal arguments that you hear is that the NATO expansion into Eastern Europe was what provoked Putin, and that had there not been a NATO expansion and had there not been discussions within Ukraine about the possibility of entering NATO, that none of this wouldve happened. How do you respond to that?

Vladislav Starodubtsev: There was a NATO in Chechnya, but no, of course, but Russia still went to war with the Chechnyan people and so destroyed their countries, actually two times, and they werent needing any NATO expansion for this. But for some reason for now, everyone believes that Russia is a peaceful actor that only defended itself from, I dont know This image of NATO expansion is absolutely untrue.

Ukraine actually never, ever after its independence, had any war. It didnt have an army and didnt have any aggressive ambitions against Russia or any other countries. Ukraine even gave its nuclear arsenal Its the second country in the world that denuclearized all their nuclear arsenal just to show that its a peaceful country that doesnt want any conflict, while Russia attacked Georgia, attacked Chechnya, and now attacking Ukraine from 2014, and theyre using different explanations for all of this.

Chechnya, for example, was an integral part of the Russian republic. Georgia was a [inaudible] people. Ukraine was actually the A multiplier argument. Thats Ukrainians nation shouldnt exist, that Ukrainians are As an ideology. Theyre talking about Ukrainians as ideology, not as a nation Is hostile to the ideal of Russia, that Russian people are somehow oppressed in Ukraine and so on and so on. Theyre using multiple arguments just trying to appeal to any authors they can possibly do. To the far right, to the far left, to centrists, and so on and so on.

But the fact of what theyre doing now, theyre doing complete justification of occupied cities.

Theyre prohibiting any Ukrainian [inaudible] of occupied cities. Theyre the stronghold of Ukrainian [inaudible] and all Ukrainian teachers that are teaching in Ukraine are prohibited in occupied regions. Theyre doing [inaudible] and oppression, killing people for engaging in Actually their [inaudible] of their democratic rights. Their repressing trade unions and so on, is the reaction to the [inaudible] itself. Its really a country that wants to defend itself and would attack and enforce their culture, enforce radical assimilation politics, and kill thousands of people to defend itself. Is it really a realistic argument? Is this? I think no.

Bill Fletcher: Putin has made a number of threats, implied and, actually quite explicitly, regarding nuclear weaponry and the potential use of tactical and maybe even strategic nuclear weapons. There are those that say that US military support to Ukraine simply prolongs this conflict and brings us closer to a nuclear exchange. How would you respond to that?

Vladislav Starodubtsev: I would respond very easily, that if you always compromise with fascist powers and dictators, you will come to the period that there will be nothing to compromise left. If you want to stop a fascist terrorist state that is engaged in genocides, just by feeling that it could continue to do horrible things and completely continue to do aggressions, they will continue to do this. They will have all carte blanche to go for the other countries, to go for Poland, to go for Baltic states, and just expand farther and farther. This argument that says that if you want to stop Russia, if you will give weapons to Ukraine, that it could promote nuclear war and escalation and problems and conflicts, it just shows that people want to compromise with fascist states and compromise their Actually not their, but freedom of other people, to appease the dictatorship and the fascist regime that have as its ideology expansion and occupation of foreign territories. With such compromises, itll be giving a very strong signal to the world that any state can expand and attack any state that they want if they have nuclear weapons.

Is it a correct argument for abolishing nuclear weapons? It just gives a lot more privileges to the states that already have them. It creates the world order, as I said, based on the rule of strongest and based on the rule of the countries that have nuclear weapons. Its actually not helping to de-escalate everything. It only gives a carte blanche for continuing such actions for forever. Because if you dont give any answer to this, these powers will just continue to invade and show other countries that there is such a possibility to attack bigger states.

Bill Fletcher: Let me ask you one final question, and its something thats been rolling around in my head since I interviewed professor Noam Chomsky a few months ago. In effect, he said that, while he opposed the Russian invasion of Ukraine, that there was very little that we in the United States, progressives, could do to influence Putin, but what we could do is influence the Biden administration, the United States government, and put pressure on them to not expand the war. That was essentially his orientation. It led me to wonder several things that went beyond what he was raising, and one is, what is it that you and other Ukrainian leftists would recommend? What would you like progressives, liberals, leftists in the United States to be doing now that theyre not doing to support Ukraines right to existence?

Vladislav Starodubtsev: Theres been a war going on already for six months. A lot of people in the West are tired of speaking about Ukraine over and over again. Theyre thinking that their countries or their governments already sent too much weapons, gave too much help to Ukraine, and that its a settled question, but in reality, the Ukrainian army is absolutely, the Soviet army has some equipment dating to the 50s of the last century. There are some artillery shells made during Stalin times. And of course such an army couldnt effectively resist the second largest army in the world.

What the left should do, its actually what left all throughout history did. Its supporting oppressed people and oppressed nations, and giving them the right to resist and to fight against the oppression. In this situation, the most empowering and emancipational thing is to demand sending more weapons to Ukraine, heavy weapons, artillery, tanks, planes that are empowering Ukrainian people, a weak nation, oppressed nation, to fight for their rights for existence, and to put an end of the world order that is based on the rule of the strongest, of imperialism, and of military aggressions.

Defending Ukraine, at the moment, is defending democratic rights in all of the world, and actually defending the world order, because if Ukraine will fall, and there will be no strong answer from any of the world powers, it means that any other country could do something like this. Turkey can destroy all its opponents, continue invasion to [inaudible] and so and so on, and continue their military aggression in all other states, for example. China can do something [inaudible] Taiwan, Serbia, and Kosovo. So it creates a carte blanche for the world to be a lot more dangerous and a lot more authoritarian than it was ever before. Practically, the left wing should oppose this and do everything for Russia to lose this war. It includes sending weapons and adopting the most heavy sanctions on the Russian state that will hamper the war economy and wont allow the Russian state to pay wages for their military personnel, for the workers that are working in the plants that are producing tanks and other military equipment.

The most important thing to do is to agitate for the weapons and agitate for the sanctions, to continue pressure from the grassroots organizations and popular movements, and for the government to adopt such positions. The fact that governments are still supporting Ukraine, its not because theyre very altruistic, very democratic, and so on and so on. Its because popular opinion is with Ukraine. They cant just ignore this issue. All of their governments, US, even Britain, wanted to sell Ukraine. They didnt adopt any strong sanctions in 2014 and they didnt provide any help, practical help, in 2014. The first [inaudible] Ukraine, absolutely imperialist Minsk agreement, and continued business as usual with Russia. They are trading arms with Russia, theyre doing their capitalist cooperation, and now theyre just waiting for any possibility to continue this cooperation. For there to be any possibility at all, trading with fuel and gas with Russia, trading arms with Russia, and so on.

The things that the left should do is to pressure, from the popular movements, their governments, the same governments that wanted to sell to Ukraine in the first three days of the invasion and were calling Zelenskyy to move to leave and just to [inaudible] war, to pressure their governments to support Ukraine, and continue to support until the Ukrainian people will have their total victory.

20 September 2022

Source: The Real News Network.

Read more:

One Ukrainian democratic socialists opinion on the war - International Viewpoint

IN THE SUPREME COURT OF THE UNITED KINGDOM

IN THE REFERENCE BY THE LORD ADVOCATE UNDER PARAGRAPH 34 OF SCHEDULE 6 OF THE SCOTLAND ACT 1998

IN RELATION TO WHETHER THE QUESTION FOR A REFERENDUM ON SCOTTISH INDEPENDENCE CONTAINED IN THE PROPOSED BILL RELATES TO RESERVED MATTERS

WRITTEN SUBMISSIONS ON BEHALF OF THE SCOTTISH NATIONAL PARTY

1.1. These submissions are presented on behalf of the Scottish National Party (the Intervener) for the assistance of the court in accordance with the directions issued by this court on 7 September 2022.

1.2. In relation to the questions posed by the Lord Advocate in her reference, the Intervener respectfully submits that, for the reasons set out in more detail below, the answer should be as follows: The proposed Scottish Independence Referendum Bill does not relate to reserved matters; and in particular does not relate to (i) the Union of the Kingdoms of Scotland and England, or (ii) the Parliament of the United Kingdom.

2.1. The Interveners submissions focus on the requirement to construe the Scotland Act 1998 (the 1998 Act) in accordance with rather than contrary to the right of all peoples to self-determination.

2.2. This focus should not be understood to be the only argument favoured by the Intervener. The Intervener supports the arguments of the Lord Advocate in favour of legislative competence as contained at 114-129 and 135-138 of her written case.

2.3. The Intervener emphasises that it is not advocating for a direct exercise or implementation of the right to self-determination in these proceedings. Its argument may be summarised as follows:

2.4. The preliminary matter of competency is largely a matter for the principal parties and the Intervener makes no submissions in relation to that matter except for one comment. The Intervener notes that the Advocate Generals written case at 45 suggests that the issues contained within a governments political manifesto are to be dismissed as nothing more than party politics. The Intervener rejects the suggestion that the basis on which a government was elected by its electorate has nothing to do with the law. The rule of law and the trust of the electorate in its elected government is wholly undermined by the suggestion that the mandate given to such a government is to be regarded as nothing more than political rhetoric once that government takes office. While circumstances will impact on the intended programme of any government, it is nevertheless the case that a people is entitled to expect its government to seek to govern on the basis on which it sought to be elected. That is a fundamental principle of government and to find otherwise would wholly undermine the legitimacy of any executive branch of government and the trust of the public in government as a whole. The Interveners commitment to holding a referendum on Scottish independence is, and was understood by the public to be, at the core of its policy offer and programme of government. While matters such as timing may be affected by events, that commitment is a key factor in the Intervener securing continued electoral success in Scotland in both the United Kingdom and Scottish Parliaments. In a matter such as this where there is a known legal dispute as to the competence of a proposed measure, it is wholly sensible for the Lord Advocate and wholly appropriate given her constitutional role to set out to this court the dispute and to seek to have the matter placed beyond doubt in advance. It is a question that will inevitably require resolution by this court at some point. Having this matter resolved now will provide legal certainty and avoid unnecessary future legal process. The decision of Lord Drummond Young in Wightman v Secretary of State for Exiting the European Union 2019 SC 111 at 67 is particularly prescient:

The fundamental purpose of the supervisory jurisdiction is in my opinion to ensure that all government, whether at a national or local level, and all actions by public authorities are carried out in accordance with the law. That purpose is fundamental to the rule of law; public authorities of every sort, from national government downwards, must observe the law. The scope of the supervisory jurisdiction must in my opinion be determined by that fundamental purpose. Consequently I would have no hesitation in rejecting any arguments based on procedural niceties, or the detailed scope of previous descriptions of the supervisory jurisdiction, if they appear to stand in the way of the proper enforcement of the rule of law.

3.1. The right to self-determination, as a fundamental and inalienable right, must inform the interpretation of the 1998 Act when considering the answer to the questions posed by the Lord Advocate.

3.2. Article 1 of the UN Charter, adopted in 1945, provides that one of the fundamental purposes and principles of the United Nations is to develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples. In December 1960 the General Assembly adopted Resolution 1514. Resolution 1514 declares as follows at paragraph 2:

All peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

3.3. In 1966 the General Assembly adopted the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights. Each Covenant replicated the terms of paragraph 2 of Resolution 1514.

3.4. In his separate opinion in the ICJ Advisory Opinion on the legal consequences of the separation of the Chagos Archipelago from Mauritius, Judge Patrick Robinson notes as follows in relation to paragraph 2 of Resolution 1514:

Written in the present tense, this is very strong and forceful language, declaratory of existing rights. Indeed the entire Declaration is clear and unequivocal in the language it uses. Rosalyn Higgins [The Development of International Law through the Political Organs of the United Nations, Oxford University Press (OUP), 1963] captures very well the essence and spirit of the resolution when she commented that the right to self- determination is regarded not as a right enforceable at some future time in indefinite circumstances, but a legal right here and now.

The incorporation of the right to self-determination as the first article in the two international Covenants, which have received widespread ratifications, solidifies its development as a fundamental human right, and indeed, the foundation for all other human rights. This unity is achieved by the existence of a common basis applicable to both purposes, namely, respect for the inherent dignity and worth of the human person.1

3.5. The Intervener submits that, in light of the above and the central and core position of the right of all peoples to self-determination, the right is of fundamental significance perhaps one of the most fundamental rights of all, referred to by the General Assembly as inalienable.2

3.6. In an international law context, the right to self-determination was perhaps most prominent during the post-colonial independence movement. The right is, however, not restricted to such circumstances and this is best captured in the words of Judge Cancado Trindade in relation to the unilateral declaration of independence made by Kosovo:

The historical process of emancipation of peoples in the recent past (mid-twentieth century onwards) came to be identified as emanating from the principle of self-determination, more precisely external self-determination. It confronted and overcame the oppression of peoples as widely known at that time. It became widespread in the historical process of decolonization. Later on, with the recurrence of oppression as manifested in other forms, and within independent States, the emancipation of peoples came to be inspired by the principle of self-determination, more precisely internal self-determination, so as to oppose tyranny.3

3.7. In the context of the Kosovan unilateral declaration, the United Kingdom made submissions to the ICJ. Within those submissions, the United Kingdom wrote as follows:

To summarise, international law favours the territorial integrity of States. Outside the context of self-determination, normally limited to situations of colonial type or those involving foreign occupation, it does not confer any right to secede. But neither, in general, does it prohibit secession or separation, or guarantee the unity of predecessor States against internal movements leading to separation or independence with the support of the peoples concerned.4

3.8. The United Kingdom therefore recognises the fundamental right of a people to self- determination and understands that discrete peoples within a State may determine, as is their right, that they no longer wish to form part of that State.

4.1. There is no universally accepted definition of what constitutes a people for the purposes of the right to self-determination as the matter is situation dependent.5 A people can be constituted by reference to a State boundary, as was often the case with the independence of former colonial territories. That, however, is not the only possible definition and it is entirely possible as with Kosovo for a people to be represented by a smaller group within a State boundary. That distinction is the difference between external self-determination and internal self-determination as set out above. Commenting on the distinction, Dr Kalana Senaratne writes:

It can be noted here that the separation of the concept of self-determination into two distinct parts internal and external has served an important purpose. The distinction, in teasing out an internal dimension of self-determination, allows international lawyers to emphasize the need to take the freedoms of the people within a state more seriously.6

4.2. It is therefore entirely possible, where there is an accepted geographic boundary within a State, for the determination of a people to be made by reference to such a boundary, constituted of those who have chosen to live there. That determination is particularly clear where the geographic area already has its own legislature and legal system as is the case with Scotland as set out in more detail below.

4.3. The United Kingdom has recognised the concept of internal self-determination since at least the mid-1980s. In a statement made as the UK Representative to the General Assemblys Third Committee on 12 October 1984, Mr R Fursland said:

The right of self-determination has pride of place in both International Covenants, and rightly so. It is not only important in itself, but a necessary foundation for the exercise of other human rights. One might get the impression from some UN debates that the right of self-determination can only be denied from outside, by invasion and foreign occupation. And indeed, the occupation and brutalisation of peoples by foreign invaders in, for example, Afghanistan and Cambodia represent glaring contemporary violations of this right. But we must not forget that peoples can also be deprived of this right by their own countrymen.

It cannot be reiterated too often that, according to the International Covenants, self- determination is a right which belongs to peoples, not to governments. The fact that a country is not occupied by a foreign power does not automatically mean that its people enjoy the right of self-determination. They enjoy that right only if, in the words of the Covenants, they are enabled to freely determine their political status and freely pursue their economic, social and cultural development. Self-determination is not a one-off exercise. It cannot be achieved for any people by one revolution or one election. It is a continuous process. It requires that peoples be given continuing opportunities to choose their governments and social systems, and to change them requires that they should be enabled to exercise other rights set out in the Covenants, such as the rights to freedom of thought and expression; the rights of peaceful assembly and freedom of association; the right to take part in the conduct of public affairs, either directly or through freely chosen representatives; and the right to vote and be elected at genuine periodic elections.

Mr Chairman, the principle of self-determination is both inalienable and indivisible. It is fundamental to international peace and security, and to the protection of national integrity. As nation states, all of us have a vital interest in it. We cannot afford to be selective in its application, because none of us except perhaps the very strongest can be sure when our own right of self- determination may be threatened.

4.4. The reference to the inalienability of the right to self-determination was also made by the UK Representative in 1983:

The Committee has repeatedly declared its belief in the inalienable right of self-determination. Inalienable is a very strong word. It means birthright; it means you cannot get rid of it; it means that the Falklanders have a right of self-determination which no one can take from them. The United Kingdom shares that view.8

4.5. The United Kingdoms position, therefore, at least on the international stage, appears to be clear in that a people has an inalienable right to self-determination which cannot be taken away from them, and that a people can exist within a state boundary.

5.1. The answer to this question is undoubtedly yes.

5.2. That the United Kingdom in its current form consists of separate nations is clear when one has regard to the terms of the various Acts of Union bringing it about. The Union With England Act 1707 refers expressly to the two kingdoms of Scotland and England. That notwithstanding, the 1707 Act makes express provision for Scotlands separate legal, educational, and ecclesiastical systems to remain separate from those of England. On the recent accession of King Charles III, His Majesty was expressly required to make certain declarations in relation to the independence of the Church of Scotland, for example, borne of the Claim of Right 1689.

5.3. Scotland elects representatives to its Parliament; the scope of the people of Scotland is certainly sufficiently clear geographically. The geographic scope is, in fact, set out as schedule 1 to the 1998 Act. The Scottish Parliament exercises its legislative power for and over the people of Scotland to whom it is democratically accountable. It is firmly rooted in the traditions of a universal democracy: AXA v Lord Advocate [2011] UKSC 46, 2012 SC (UKSC) 122 per Lord Hope at 49. Scotland has discrete administrative bodies and distinct social and economic policies. The role of the Scottish Parliament has developed since its inception, most clearly by the extension of its powers under the Scotland Act 2016. The role and significance of the Scottish Parliament must, therefore, be understood in its current context. The Scottish Parliament regularly debates and legislates upon matters of significant importance to the people of Scotland. It is to the Scottish Parliament that the Scottish people regularly turn on matters of material in their lives. It is the Scottish Parliament and the Scottish Parliament alone that represents and legislates exclusively for the people of Scotland.

5.4. Following the referendum on Scottish independence in 2014, the Smith Commission was established to consider further devolution of powers to the Scottish Parliament, standing the campaign promises made to the Scottish people by each of the three main UK parties. Per paragraph 20 of the Commissions report:

Reflecting the sovereign right of the people of Scotland to determine the form of government best suited to their needs, as expressed in the referendum on 18 September 2014, and in the context of Scotland remaining within the UK, an enhanced devolution settlement for Scotland will be durable, responsive and democratic.

It is clear from the first clause of that paragraph that it is recognised throughout the UK that the people of Scotland are the people with the authority to decide their own future.

The work of the Smith Commission, which followed discussions between the UK and Scottish Governments, led to the enactment of the Scotland Act 20169.

5.5. If it were not sufficiently clear that the people of Scotland are a people from those matters above, the answer can be found definitively by having regard to section 63A(3) of the 1998 Act which provides as follows:

In view of that commitment it is declared that the Scottish Parliament and the Scottish Government are not to be abolished except on the basis of a decision of the people of Scotland voting in a referendum.

That provision was introduced by the UK Parliament by way of the Scotland Act 2016 and makes it clear that there is a distinct and determinable demos of the people of Scotland and that that demos represents a people for the purposes of the right to self- determination.

5.6. For those reasons, the people of Scotland are a people for the purposes of the right to self-determination.

6.1. It is the Interveners submission that the right to self-determination, as a fundamental and inalienable right, must inform the interpretation of the 1998 Act when considering the answer to the questions posed by the Lord Advocate.

6.2. The Scottish constitutional tradition as distinct from the English equivalent is set out famously and most succinctly by Lord President Cooper in MacCormick v Lord Advocate 1953 SC 396 at 411:

The principle of the unlimited sovereignty of Parliament is a distinctively English principle which has no counterpart in Scottish constitutional law. It derives its origin from Coke and Blackstone, and was widely popularised during the nineteenth century by Bagehot and Dicey, the latter having stated the doctrine in its classic form in his Law of the Constitution. Considering that the Union legislation extinguished the Parliaments of Scotland and England and replaced them by a new Parliament, I have difficulty in seeing why it should have been supposed that the new Parliament of Great Britain must inherit all the peculiar characteristics of the English Parliament but none of the Scottish Parliament, as if all that happened in 1707 was that Scottish representatives were admitted to the Parliament of England. That is not what was done.

6.3. The Scottish constitutional tradition does not subscribe to the form of sovereignty of Parliament described by Diceyan theory as the despotism of the King in Parliament.10

6.4. It is not clear to what extent any part of the United Kingdom continues to regard the power of the UK Parliament to be truly unfettered. No power is without limit. In a modern democracy, the rule of law is maintained through a balance of the three branches of government, and not by attempts by one of them to override or usurp the role of the others: Cherry v Advocate General [2019] UKSC 41, [2020] SC (UKSC) 1 Per Lady Hale at 33-34. When the case was in the Inner House, Lord Drummond Young noted:

The rule of law requires that any act of the executive, or any other public institution, must be liable to judicial scrutiny to ensure that it is within the scope of the legal power under which it is exercised. The boundaries of any legal power are necessarily a matter for the courts, and the courts must have jurisdiction to determine what those boundaries are and whether they have been exceeded. That jurisdiction is constitutionally important, and in my opinion the courts should not shrink from exercising it. Consequently, if the expression non-justiciable means that the courts have no jurisdiction to consider whether a power has been lawfully exercised, it is a concept that is incompatible with the rule of law and contrary to fundamental features of the constitution of the United Kingdom.11

6.5. In Moohan v Lord Advocate [2014] UKSC 67, 2015 SC (UKSC) 1 Lord Hodge said at 35: I do not exclude the possibility that in the very unlikely event that a parliamentary majority abusively sought to entrench its power by a curtailment of the franchise or similar device, the common law, informed by principles of democracy and the rule of law and international norms, would be able to declare such legislation unlawful.

6.6. Such limits as a matter of law are particularly acute when one is concerned with interferences with fundamental rights. This court has consistently held that fundamental rights cannot be overridden by general or ambiguous words and, even when faced with express statutory authorisation of an intrusion into a fundamental right, such authorisation will be interpreted narrowly and strictly: AXA General Insurance Ltd v Lord Advocate [2011] UKSC 46, 2012 SC (UKSC) 122 per Lord Reed at 152; R (UNISON) v Lord Chancellor [2017] UKSC 51, [2020] AC 869 per Lord Reed at 65, 66, 77-84; Pham v Secretary of State for the Home Department [2015] UKSC 19, [2015] 1 WLR 1591 per Lord Reed at 119.

6.7. Whether through the enduring nature of the Scottish constitutional tradition or by way of the rebalancing of the three branches of government as part of a more modern understanding of what the rule of law means, it is not the case (if it ever was) that the UK Parliament is without restraint or limit. It may well have supreme legislative competence, in that it can legislate in relation to any area, but it is not the case that, consistent with the rule of law, it is able to override, remove, or otherwise interfere with fundamental rights (such as the right to self-determination) without clear and unambiguous statutory authority12 and without a clear, rational and evidenced basis for doing so. In these circumstances, there is neither unambiguous statutory authority nor any clear, rational and evidenced basis for seeking to interfere with such a fundamental right.

6.8. Beyond that matter, however, standing the existence and significance of the right to self- determination, there is a strong presumption in favour of interpreting domestic legislation in a manner which is compatible with international law. In Assange v Swedish Prosecution Authority [2012] UKSC 22, [2012] 2 AC 471, Lord Dyson determined as follows at 122:

But there is no doubt that there is a strong presumption in favour of interpreting an English statute in a way which does not place the United Kingdom in breach of its international obligations.

6.9. In an extra-judicial speech given by Lord Mance on 13 February 201713 on the subject of International Law in the UK Supreme Court, Lord Mance said (at 8):

First, international law has received much domestic attention, because of a strong presumption that domestic law, including statute law, can and should be read consistently with international law. And the volume of international law bodies and instruments, in areas as diverse as environmental law or the law relating to children, has accentuated the relevance of this tendency, even if international law can still sometimes be characterised as vague or unsettled. The presumption as recognised in English law is a strong one.14

6.10. The Advocate General, in his written case to this court, has suggested at 71 that the Union of Scotland and England is, par excellence, a UK-wide matter and that is why it might be reserved. The clear implication of that is that the Advocate General believes as a matter of law that, should Scotland wish to become an independent country but the remainder of the United Kingdom does not want that, the remainder of the United Kingdom should have the ability to prevent Scottish independence. Whilst that belief might explain some of the political rhetoric, nothing could be further from the truth as a matter of law. A right to self-determination is not dependent or conditional on others agreeing with that decision. The right to self-determination of a people is exercised by that people and that people alone. The United Kingdom has a clear role in the negotiation of the manner in which Scotland leaves the Union should Scotland choose to do so and the implementation thereof, but that does not give the UK Government any ability in law to veto, prevent or hinder the expression by the Scottish people of their right to self-determination. The decision of the Canadian Supreme Court, which is referred to at paragraph 7.6 below, is a very clear example of exactly that form of procedure when considering the exercise of the right to self-determination within an existing State.

6.11. Of the 650 seats in the House of Commons, 59 are for Scottish constituencies. MPs from Scottish constituencies account for less than ten percent of the chamber. The UK leaders of the Conservative and Labour parties have indicated they will not countenance a further referendum on Scottish independence. There is accordingly no practical way in which the right to self-determination can be advanced through that legislature. If there is no way in which to exercise a right, it is no right at all: ubi jus ibi remedium.15

6.12. In construing the relevant sections of the 1998 Act in the circumstances of this case, therefore, the right to self-determination requires to be taken into account and, where there is a choice between a reading which is compatible with that right and a reading which is not compatible, the compatible reading should prevail.

7.1. It is important to understand the manner in which the question of legislative competence under the 1998 Act must be approached.

7.2. The Scottish Parliaments role in the day-to-day lives of the people of Scotland has increased since its inception nearly 25 years ago. It plays a central role in the lives of the people of Scotland and is responsible for legislating for them in a manner that is focused on their needs. It considers and debates Scotlands place in the UK and in the world, and is the place to which the Scottish people turn and expect their lives to be reflected and represented. As a result, the 1998 Act must be interpreted in line with its evolving purpose and within the context of the developing role of the Scottish Parliament. A modern approach to the interpretation of legislation in this manner is set out succinctly by Lord Burrows in an extra-judicial speech given on 24 March 2022, particularly at section 3 thereof.16

7.3. The provisions of section 29 of the 1998 Act insofar as relevant to current matters are set out by the Lord Advocate at 88 of her written case.

7.4. The Intervener agrees with the arguments made by the Lord Advocate in support of the competence of the Bill. The effect of previous authorities on the meaning of relates to indicate that this court requires, firstly, to consider the purpose of the Bill and, secondly, to determine whether it has more than a loose or consequential connection with a reserved matter.

7.5. The purpose and effect of the Bill is to give a democratic method of ascertaining the views of the Scottish people in relation to the question asked. Whatever the outcome of a referendum, it cannot of itself have any effect on the Union or on the UK Parliament. That there would be subsequent discussions between the UK and Scottish Governments in the event that the Scottish people indicate their support for Scottish independence does not change that. Those discussions are separate from the referendum and do not inform its purpose, bearing in mind the words of this court:

The purpose of an enactment may extend beyond its legal effect, but it is not the same thing as its political motivation.17

7.6. The use of a non-self-executing referendum as a method of ascertaining the views of an electorate in questions of the independence of a people is considered in detail in the decision of the Supreme Court of Canada in the matter of the Reference re Secession of Quebec [1998] 2 RCS 217. At 87-97 of that decision, it is noted that the referendum, whilst having no direct or legal effect on the constitution, may provide a democratic method of ascertaining the views of the electorate on important political questions on a particular occasion. Subsequent discussions or negotiations, which are by necessity conditional on the outcome of such a referendum, are separate and discrete matters. The proposed referendum on Scottish independence would not be a referendum which sought to dictate the terms of a proposed secession to the other parties in the manner found to be legally unsound by the Supreme Court of Canada. That court found as follows at 92:

The continued existence and operation of the Canadian constitutional order cannot remain indifferent to the clear expression of a clear majority of Quebecers that they no longer wish to remain in Canada. This would amount to the assertion that other constitutionally recognized principles necessarily trump the clearly expressed democratic will of the people of Quebec. Such a proposition fails to give sufficient weight to the underlying constitutional principles that must inform the amendment process, including the principles of democracy and federalism. The rights of other provinces and the federal government cannot deny the right of the government of Quebec to pursue secession, should a clear majority of the people of Quebec choose that goal, so long as in doing so, Quebec respects the rights of others.

This is consistent with the Interveners submission to this court. The Scottish people have a right to express themselves in relation to their constitutional and political future. Should they express a view that they would like to move away from the current system, that would be a matter for negotiations after the referendum. Speculation or concern about the outcome of such a referendum, however, cannot properly form a basis on which the UK Government seeks to prevent it taking place.

7.7. The argument from the Advocate General for a broader interpretation of the phrase relates to is premised on an assumption that the Scottish people will indicate their support for Scottish independence. While that is the hope of the Intervener, it cannot be assumed, and the fallacy of the Advocate Generals argument is clear if one considers the effect of the proposed referendum in the event that the Scottish people do not indicate their support for independence. In that situation, it cannot possibly be suggested on any reasonable basis that the effect of the referendum is anything other than a determination of the will of the Scottish people.

7.8. Notwithstanding the undeniable political importance of a referendum, it is difficult to see how the holding of a referendum to determine the view of the Scottish people has anything more than a loose or consequential connection with any reserved matter in the 1998 Act. Seeking to test the views of the Scottish people by way of a referendum is perfectly competent and, standing the continued electoral mandate of the Intervener, it is democratically unthinkable that the people of Scotland would be denied such a right to express their view.

7.9. Beyond that, however, there is a positive statutory requirement on courts, when interpreting a Scottish Bill to read such a Bill (or Act) in a manner which brings it within legislative competence if such a reading is possible: 1998 Act, section 101(2). This statutory requirement is consistent with the Interveners argument anent a reading which is compatible with international law. If such a reading is possible, that is the reading which should prevail.

7.10. In that context, the arguments, as set out by the Lord Advocate, are premised on whether relates to should be given a broad or a narrow reading. The 1998 Act is without question a constitutional statute: AXA v Lord Advocate [2011] UKSC 46, 2012 SC (UKSC) 122 per Lord Reed at 153. As such, in accordance with settled principles of interpretation, its provisions must be interpreted purposively and not on a strictly literal basis: Robinson v Secretary of State for Northern Ireland [2002] UKHL 32 at 11; AXA v Lord Advocate [2011] UKSC 46, 2012 SC (UKSC) 122 per Lord Reed at 153.

7.11. The broader reading of the phrase cannot have been the intention of the UK Parliament when one has regard to all of the relevant factors. There is nothing to suggest that the UK Parliaments intention was to stifle democratic expression; that would be an astonishing proposition which one would expect to be set out expressly in the 1998 Act and it is not. That is particularly so, given, as is noted in AXA v Lord Advocate [2011] UKSC 46, 2012 SC (UKSC) 122 per Lord Reed at 153:

Parliament did not legislate in a vacuum: it legislated for a liberal democracy founded on particular constitutional principles and traditions. That being so, Parliament cannot be taken to have intended to establish a body which was free to abrogate fundamental rights or to violate the rule of law.

7.12. The argument benefits from being tested against other reserved matters in schedule 5of the 1998 Act. Take for example heading C10 of schedule 5, which includes the reservation internet services. It cannot reasonably be suggested applying the purported broad reading that the Scottish Parliament is not permitted to legislate on anything related to websites, to require certain information notices to be placed online, or to ask a question of the electorate about upgrading broadband infrastructure. Such an outcome would be patently absurd. That being the case, it is unfathomable for one heading under schedule 5 to be held to a different standard than is applied to others, bearing in mind that the scheme of devolution in Scotland is that everything is devolved unless it is expressly reserved.

7.13. The particular matter of whether the Scottish Parliament could hold a referendum in relation to independence was discussed during the passage of the Scotland Bill through the UK Parliament. While recognising the difficulties inherent in discerning Parliamentary intention18, standing the apparent ambiguity in the reading which has led to this reference being necessary, having regard to those discussions would be of assistance to the court, given their clarity on the issue from the then UK Government. In particular, the Intervener draws the courts attention to an interaction on 24 July 1997. On that day, having been asked expressly:

Will the right hon. Gentleman reiterate that nothing in the documents, or in any response that he will give, will interfere in any way with the sovereign right of the people of Scotland to determine their own constitutional future, whatever that may be?,

the then Secretary of State for Scotland, Donald Dewar, responded:

If I did try to build such barriers, they would be futile and without effect. At the end of the day, in practical politics, what matters is what people want. If the hon. Gentleman is able to carry the people of Scotland, no doubt he will be able to advance his cause.

7.14. The entire purpose of devolution was to empower the devolved nations and not to disempower them. The clear intention of the UK Parliament was to reserve to the UK Parliament the power to legislate for the implementation of any legislation which has the effect of amending or altering the Union or the scope of the UK Parliament. A non-self-executing referendum does not seek to do any of those things and nor does it have any such effect.

7.15. Furthermore, the matter having been expressly raised with the UK Government during the passage of the Bill through the UK Parliament on a number of occasions, it would have been very simple for the matter to have been expressly reserved and put beyond doubt in a clear and unambiguous expression of its intention. The UK Parliament did just that in the Northern Ireland Act 1998 at section 1 which provides that Northern Ireland shall remain part of the UK until such time as a majority vote in favour of leaving in a poll carried out in accordance with schedule 1 of that Act. Schedule 1 of that Act expressly provides that the poll shall be the responsibility of the Secretary of State.19 The UK Parliament opted not to include any such express provision in the Scotland Act 1998.

7.16. Should a subsequent UK Government have wished to seek to extend the reservation in relation to a referendum on independence, it could at any time have sought to garner support for such an amendment in the UK Parliament. No such amendment has been made.

7.17. To the extent that a subsequent UK Government now seeks to make use of the wording enacted in the 1998 Act effectively to stifle democratic expressions of will, that is very clearly not the purpose for which the 1998 Act was enacted. Indeed, such an attempt would frustrate the purpose of the 1998 Act and would be subject to review: Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997; RM v Scottish Ministers 2012 UKSC 58, 2013 SC (UKSC) 139 per Lord Reed at 42-48.

7.18. To the contrary, the narrow reading of relates to does not infringe upon the rights of the people of Scotland to express their view as to how they choose to be governed and nor does it run contrary to the purpose of the devolution settlement. The narrow reading permits the question to be asked in accordance with the norms of international law as set out above and in accordance with the strong presumption in favour of a reading which is compatible with international law.

7.19. The narrow reading retains the reservation to the UK Parliament of the overarching power to enact any subsequent implementing legislation just as it did in 1922 with the Irish Free State Agreement Act 1922 and the Irish Free State Constitution Act 1922, and in 1949 with the Ireland Act 1949.

7.20. Neither the narrow reading of the phrase relates to nor the holding of a single question, non-self-executing referendum as proposed in the Bill removes or reduces any power currently vested in the UK Parliament.

7.21. Most importantly, however, for the purposes of these submissions, the narrow reading of the phrase does not infringe upon, reduce, or deny the Scottish peoples inalienable right to self-determination. For that reason, any doubt between the two possible readings that continues to exist must result in the narrowest reading being given to the phrase relates to.

7.22. Put short, the holding of a consultative referendum does not result in a reduction in the scope of the powers of the UK Parliament and nor does it, of itself, have any effect on the Union. Legislation to enable such a referendum does not, therefore, relate to the reservation of the Union nor to the Parliament of the United Kingdom. Holding such a referendum, however, represents the expression by a people of their right to self- determination which should not be interfered with except under the clearest and most extreme circumstances.

7.23. The Scottish Parliament has the legislative authority to legislate for a non-self-executing referendum on Scottish independence in order to seek to determine the views of the Scottish people on that matter.

8.1. Taking all of the above matters into account, it is the respectful submission of the Intervener that:

8.2. As well as being consistent with international legal norms, the narrow reading of relates to is consistent with the statutory interpretation exercise as required by section 101 of the 1998 Act and it is consistent with the overarching purpose of the devolution legislation. The broader reading of relates to does not satisfy any of those requirements.

8.3. When answering the questions posed by the Lord Advocate, therefore, the submission of the Intervener is that this court should find that the Scottish Parliament may legislate for a non-self-executing referendum on Scottish independence and, accordingly, the proposed Scottish Independence Referendum Bill does not relate to (i) the Union of the Kingdoms of Scotland and England, or (ii) the Parliament of the United Kingdom for the purposes of the Scotland Act 1998.

Claire Mitchell KC David Welsh Instructed by Stuart Munro, Livingstone Brown

Footnotes:

Link:

The SNP's Supreme Court submission on the independence referendum Scottish National Party - SNP