A significant development in the referendum debate since my last post has been the UK Government’s announcement that its legal advice is that only Westminster, not Holyrood, has the legal power to hold a referendum on independence. That’s hardly surprising, but nor is it conclusive.
It’s not surprising because when governments want to do something, they frequently get a legal opinion to help bolster their case. When Henry VIII of England wanted to divorce Catherine of Aragon in order to marry Anne Boleyn, he got his Lord Chancellor, Thomas Cromwell, to provide the legal arguments to justify his actions. Similarly, when Tony Blair wanted to invade Iraq, Lord Goldsmith duly obliged with an opinion showing that it could be justified under international law.
I make no comment about the validity of the arguments in any of these cases. Rather, I merely cite them to illustrate that governments’ in-house lawyers don’t simply sit there all the time providing disinterested advice with the wisdom of Solomon. Sometimes they also seem required to strain every sinew to provide a plausible legal rationale to back up what their political masters want to do, or have already determined to do.
Nor is Westminster’s legal opinion conclusive. One party to a dispute may have its legal opinion, but that’s not the end of the matter. Others can hold different opinions. That’s why we have judges and courts: to rule on who is right and who is wrong. And governments, like private individuals or corporate bodies, are subject to the rule of law, at least in democracies. Whether the UK Government chooses to have its opinion tested in the courts is a political decision, not a matter of law.