PM’s pointless trip to Orkney sealed case for independence - Lesley Riddoch

Any attempt to limit powers of judicial review in Scotland would be challenged immediately, writes Lesley Riddoch.

Last week, when Boris Johnson made his trip north, the soul of a nation was laid bare. But not Scotland’s.

The most unremittingly hostile coverage of Mr Johnson’s Orkney jaunt came from the English media who, with a few exceptions, panned the Prime Minister’s message, motives and choice of relatively remote and solidly unionist locations.

Indeed, southern journalists and broadcasters were quick to observe that the Union’s jacket is sitting on a gey shoogly peg and many rejoiced in that fact.
John Crace’s Guardian’s column was circulating as Boris was making his extremely guarded walkabouts on Friday. Headlined “Boris visited Scotland to save the Union. Mission accomplished – for the SNP”, the piece imagined a Thick of it style exchange between the hapless Prime Minister and his despairing aides.

“Boris lumbered out of the car and went through his prepared routine. No one loved the Scotch more than him. Which is why they were better off in the Union because without Westminster to hold their hands they would all be dead. And talk of another independence referendum was nonsense because they had one back in 2014. So who cared if there was a clear majority in favour of another, that Scotland overwhelmingly wanted to stay in the EU and that its people had seldom held a prime minister in such open contempt?”

No punches pulled there.

Later, appearing on BBC Radio 2 and BBC Radio 5 Live programmes, I discovered there was no need to remember the latest poll findings or Prime/First Ministerial ratings – these evidential body blows to the Union had all been built into the presenters’ opening remarks. Channel 4 News went beyond the usual concerns about borders, deficits and currency to interview scientist, human rights activist and slavery expert Professor Sir Geoff Palmer. He compared Scotland with Jamaica, whose departure from colonial rule was part of the “natural progression of all people…to want to manage their own affairs”.

It was an interesting choice of interviewee – to paraphrase Donald Dewar, an unexpected new singer of a very auld sang.

Now this is not to suggest that London (and Salford) have somehow defected en masse to the cause of Scottish independence. But recognition of Scotland’s better Covid outcomes and admiration for our better performing First Minister were almost palpable on Friday. At last, the British media seemed to get the intractable nature of Scotland’s constitutional dilemma without needing to have every detail hammered home. As one BBC reporter observed, “The Prime Minister’s offering cash, the Scots are demanding powers.”

Well, quite.

That’s a big change.

I got the feeling many English commentators, finally focused on Scotland’s predicament, were saying inwardly, “If we were you, we’d just leave.”

I know that is a sweeping generalisation. Departure from the Union is easier said than done and London’s proxy exasperation for Scotland’s democratic dilemma could change again tomorrow. But somehow the inevitability of independence has become an unremarkable part of the post-Brexit narrative south of the Border, compounded by the errors of Covid lockdown. Break-up’s expected. The only question is how long it will take for Scotland to force another vote, whose hand will be on the tiller when that happens and whether Northern Ireland gets there first with a border poll for reunification.

Who knows what’s prompted this newfound admiration for the Celts – a roundabout way to express contempt for a Prime Minister loathed by progressive English journalists? Is it recognition of the Scots ability to ignore the “lure of greatness” that justified Brexit in England? Did recent opinion polls registering 54 per cent support validate the case for independence in a way no pundit or politician has been able to do? Or is another dynamic at work – do southern commentators with a “guid conceit” of themselves know they would never tolerate Scotland’s teeth-grinding impotence, no matter the cost and messiness of divorce?

Whatever the reason, the Prime Minister’s pointless trip to the Orkney Islands seems to have sealed the case for Scottish independence – in England.

But news broke that very same day of another Johnson move that could galvanise the independence campaign north of the Border whiled being dismissed as a largely technocratic change south of it.

The Tory leader has apparently speeded up plans to curb the judiciary after axing a manifesto pledge to hold a commission before changing the way the courts can operate. It seems a hand-picked panel could now give the nod for legislation in early 2021 that prevents any repeat of the Prime Minister’s humiliating defeat at the Supreme Court last September, when his decision to prorogue Parliament was ruled unlawful, and before that in 2017, when it ruled an Act of Parliament was needed to trigger Article 50.

The Tory leader says the courts are being used to “conduct politics by another means” so he must define in law what they can and cannot challenge. This is nonsense – the “offending” Supreme Court rulings have simply strengthened MPs against an Executive that has “consistently chosen to legislate during the Covid crisis without reference to Parliament by using emergency powers and statutory instruments to create new criminal offences by ministerial fiat”, as Queen Mary University of London history lecturer Dr Robert Saunders has observed.

So does the Tory leader intend any limitation on the powers of judicial review to include Scotland, even though we have a separate legal system, guaranteed by the Treaty of Union? If he does, that incendiary move will prompt an immediate challenge.

As one of the architects of his Supreme Court defeats, SNP MP Joanna Cherry, tweeted yesterday: “Scotland’s legal system is independent of England’s. This predates devolution. If Mr Johnson seriously intends to interfere with the right to judicial review in Scotland, I and others will see him in court again.”

That would be no small clash of wills, political outlooks and legal systems. Such a move would infuriate professionals, many of whom have hitherto sat outside the constitutional hurly-burly. And such court action would inevitably test the protective worth of the Union’s founding treaty.

Perhaps Mr Johnson thinks Scots, forced to accept their parliament could be dissolved overnight by a supreme Westminster, will merely shrug again when the sovereignty of their legal system is threatened.

If so, Mr Johnson is very badly mistaken.

And England’s increasingly Union-sceptic journalists will find themselves with another powerful and unexpected twist in the tale.