The legality, under English law, of Elon Musk's $44bn Twitter deal termination ✎

Elon Musk has recently disclosed that he intends to withdraw from his agreement to buy the social media company Twitter for $44bn. He has accused them of disclosing "false and misleading" information vis-a-vis the number of bots and spam accounts.

In turn, Twitter's Chairman, Bret Taylor, countered that the board was "committed to closing the transaction on the price and terms agreed upon with Mr Musk".

This means a legal battle over whether to enforce the agreement.

In this blog piece, I would like to briefly outline how Elon Musk would fare if the corporate acquisition was governed by English law.

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Introduction to the Takeover Panel & "Material Adverse Change" Clauses

In the UK, public takeovers are regulated by the Panel on Takeovers and Mergers ("Takeover Panel"). Following the Companies Act 2006, the Takeover Panel became a statutory authority. But before then, it was established in the late 1960s as an independent body – encouraged by the Governor of the Bank of England and the Chairman of the London Stock Exchange – that produced guidelines and rules & behaved as a regulator of takeovers in the UK. Currently, the Takeover Panel consists of up to thirty-six members from leading financial and business organisations.

The main function of the Takeover Panel is to issue and administer the City Code on Takeovers and Mergers ("Code") which aims to promote and achieve equality of treatment and opportunity for shareholders in a takeover bid. It aims to prevent underhanded and unfair tricks and tactics that hurt shareholders and promote integrity in the UK's financial market.

Before moving into the law, it is useful at this juncture to define a technical term applicable to this subject . Material Adverse Change clauses ("MAC clauses") allow an offeror to walk away from a merger and acquisition ("M&A") transaction after parties have signed the merger agreement but before the transaction has been formally closed.

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Principle against "false markets" & rule 13 (conditions in M&A agreements)

In the Code, the fourth principle explains that the Takeover Panel seeks to avoid the creation of "false markets" and, accordingly, limit the ability of an offeror to withdraw from the transaction. In company law, "false markets" are understood as the inflated or depressed swings in the underlining price of a security brought on by erroneous or inefficient information. 

The fourth principle says: (Link)

False markets must not be created in the securities of the offeree company, of the offeror company or of any other company concerned by the bid in such a way that the rise or fall of the prices of the securities becomes artificial and the normal functioning of the markets is distorted. 

Additionally, and more specifically, rule 13 of the Code relates to conditions in the M&A agreement. Rule 13.5 says:

An offeror may only invoke a condition or pre-condition so as to cause the offer not to proceed, to lapse or to be withdrawn with the consent of the Panel. The firm offer announcement and the offer document must each incorporate language which appropriately reflects this requirement. The Panel will normally only give its consent if the circumstances which give rise to the right to invoke the condition or pre-condition are of material significance to the offeror in the context of the offer. This will be judged by reference to the facts of each case at the time that the relevant circumstances arise. (Emphasis mine)

The effect of Rule 13.5 is that the Takeover Panel can determine whether the offeror can exit a transaction if the issue is "of material significance".

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Conclusions about Elon Musk

Firstly, as can be seen in the graph below, the Elon Musk's offer to buy Twitter & subsequent withdrawal clearly created a false market. Additionally, the nature of Elon Musk's very public pronouncements and broadcasts exposes him to the dos-and-don'ts of corporate disclosures. Thus, under English law, I would think that his public pronouncements had the effect of contravening the principles of the Code vis-à-vis creation of false markets and potential disclosure liabilities.

Secondly, the question is whether Elon Musk's concern about the number of bots and fake accounts amounted, as he said on Twitter, to a "material breach of multiple provisions". In contrast, Twitter has maintained that the bot figure stands at 5%. Assuming that Twitter's figure is incorrect, in point of fact; it is worth asking whether bots at 5%, 10%, 25%, 35% etc… have any bearing on Twitter's cash flow, earnings, and balance sheet.

I am aware that Prof. Aswath Damodaran is a recent proponent of users-based valuations in DCFs and general corporate theory. Nevertheless, from my point of view, this theory seems a bit unsafe and doubtful; and so, presently, I would prefer to anchor valuations in more "traditional" corporate earnings only. Indeed, MAC clauses are designed and calculated to offset changes in the economic prospects of the company after the signing of the agreement. To my mind, Elon Musk would have to show deterioration in the business, assets, and financial position etc… of Twitter.

So, wrapping it all up; I would argue that Elon Musk's very public pronouncements of the Twitter takeover, and his purported justification for withdrawing are probably insufficient in English law to warrant the Takeover Panel suspending the takeover.

The Queen, the law, and the resignation of her PM Boris Johnson ✎

I would like to write about the events of the past week. Our constitutional conventions – that govern the Prime Minister's standing – have been tested and have been proven robust.

The incredible and almost unprecedent series of resignations from the Cabinet may have sounded alarming; but – beneath the surface – the system worked. I also think that even if the PM had decided not to resign, then our essentially political constitution with its conventions would have counteracted the crisis. 

History and law of the Prime Ministership

The office of the Prime Minister has evolved by convention – as opposed to legal doctrine – and is almost entirely uncodified. The Prime Minister, formerly the First Lord of the Treasury, harks back to the early 18th century with Sir Robert Walpole (1721—42). By tradition, the Second Lord of the Treasury was the Chancellor of the Exchequer. The modern rise of 'political parties' – as well as developments in the nineteenth century vis-a-vis the Crown and political conventions – solidified the need for such an office as a necessary feature of our constitution. 

The office of the Prime Minister did not arise from any specific statutory footing. The jurist A.V. Dicey first coined the expression "constitutional convention" to describe the democratic principles of the British constitution. Dicey explained that these conventions had fashioned constitutional democratic commitments by the Crown (what he called the "constitutional morality") that elevated "the ultimate supremacy of the electorate as the true political sovereign of the state". John Stuart Mill also identified these unwritten "maxims" of the constitution.

In modern times, the power to appoint a Prime Minster is governed by the constitutional convention of the Crown's prerogative in appointing the individual commanding the confidence of the lower house of Parliament. In other words, the leader of the party with an overall majority in the Commons. (Interestingly, while the current convention dictates that the Prime Minister needs to be a member of the House of Commons; in 1963, Sir Alec Douglas-Home was invited to the Prime Ministership – to succeed Harold Macmillan – from the House of Lords.)

In terms of the Queen's influence, Her Majesty's role – as Walter Bagehot described it – is "to advice, encourage and to warn" her Prime Minister in her weekly audiences. In truth, the Prime Minister leads the Cabinet whose Ministers the Crown appoints on the advice, and at the request, of the Prime Minister.

While the PM is primus inter pares in the Cabinet, that power is conditional on the continuing support of Cabinet colleagues and members of the party. The resignation of Rishi Sunak, former Chancellor of The Exchequer, is reminiscent of the resignation of Geoffrey Howe which ultimately drew the resignation of Margaret Thatcher (the UK's longest-serving Prime Minister since World War II). Afterwards, the issue of the new premier is the focus of the internal party apparatus and leadership procedures of the party with the electoral mandate.

The conventions work

In The Times, Lord Sumption wrote that:

Last Thursday's events marked the triumph of constitutional conventions. The civil service measured up to its reputation for honesty and impartiality; Parliament showed that even party discipline and a large majority will not protect a PM who defies the standards on which our politics depends. Johnson trampled on the conventions of his office. The political cost was high. He lost his job. That is how conventions are supposed to work.

I agree. In a nutshell, Boris Johnson pushed the conventions to their limit and was defeated. Amid the recent political bloodshed, my view is that the UK's unwritten constitution – with its political shape and form – has proven itself durable and sturdy.

There is some degree of uncertainty in the convention regarding whether the incumbent Prime Minister may remain in office until it becomes clear that a successor will be able to command the confidence of the party (or parliament, in the case of an election). The Cabinet Manual 2011 (para 2.10) states: 

The application of these principles depends on the specific circumstances and it remains a matter for the Prime Minister, as the Sovereign's principal adviser, to judge the appropriate time at which to resign, either from their individual position as Prime Minister or on behalf of the government. Recent examples suggest that previous Prime Ministers have not offered their resignations until there was a situation in which clear advice could be given to the Sovereign on who should be asked to form a government. It remains to be seen whether or not these examples will be regarded in future as having established a constitutional convention.

To my mind, it would be preferable to tender a formal resignation when the alternative premier has been settled by the party. 

The Queen's "reserve powers"

As already explained, the Crown generally acts on the advice of the Prime Minister. The royal prerogatives are largely exercised directly through ministers of the Crown. However, the Queen still exercises some prerogative powers herself which are at her discretion. These are known as the Crown's "reserve powers" ("personal prerogatives" as per Sir lvor Jennings). 

Below I quote two different sources which suggest that the Queen could under extraordinary circumstances exercise the reserve powers against the government of the day.

According to the Cabinet Manual:

Historically, the Sovereign has made use of reserve powers to dismiss a Prime Minister or to make a personal choice of successor, although this was last used in 1834 and was regarded as having undermined the Sovereign. In modern times the convention has been that the Sovereign should not be drawn into party politics, and if there is doubt it is the responsibility of those involved in the political process, and in particular the parties represented in Parliament, to seek to determine and communicate clearly to the Sovereign who is best placed to be able to command the confidence of the House of Commons. (Emphasis mine)

Prof Anne Twomey:

The existence of those reserve powers, nonetheless, remains essential to the effectiveness of the sovereign's personal influence. Today it is less the sovereign's social superiority that is likely to trouble a prime minister's mind than the sovereign's underlying constitutional power and the public's support for the sovereign, which is often much greater than that of the prime minister ... While the cardinal convention requires the sovereign and her vice-regal representatives to act upon the advice of responsible ministers, other than when exercising a reserve power, there is a degree of latitude in determining when the advice of ministers is final and must be obeyed ... The difficulty lies in ascertaining the point at which the sovereign must give way and how far he or she may go in terms of the initial refusal to act upon advice. (Source: From Bagehot to Brexit: The Monarch's Rights to be Consulted, to Encourage and to Warn)

It seems to me that the Crown's autonomous use of the reserve powers (which include the appointment and dismissal of Prime Ministers) is contingent on two factors: namely, the existence of an exceptional political crisis justifying the Crown's refusal to act on the advice of the Prime Minister, and a public consensus in favour of the Crown's intervention. 

For example, today, it seems that the government is giving Parliament a vote on whether MPs have confidence in the government (BBC News). If the Prime Minister had lost that vote of confidence but refused to tender his resignation (and continued to inhabit Downing Street), then it seems to me that the Queen, under her reserve powers, could actually intercede and dismiss her Prime Minister. The Crown's constitutional weight and authority would eclipse the government. Moreover, that exercise of power would probably strengthen the future of the monarchy. 

This would be preferable to a system which, perhaps like America, would involve the courts issuing an injunction demanding the resignation of the PM and/or ordering the Queen to make an alternative appointment. Our constitution is political in character: not legal.

Film review: Top Gun: Maverick – Exciting film with impressive aerial stunts ✎

Top Gun: Maverick is the sequel to the original 1986 film. I must admit that my recollection of that classical is somewhat fuzzy now, but I do remember the original being quite excellent with some iconic music and cinematography. This reboot illustrates the quandary of re-capturing the dynamism and eclat that marked the original whilst trying to create a new fresh storyline. In my view, the narrative and story fall quite short.

There is the problem of Tom Cruise’s Maverick. How do you introduce the babyish adolescent Maverick of former days that is still in his prime, bold and daring? According to this film, you make your character behave and act as though he hasn’t actually grown up. The film begins with some spine-tingling scenes of Maverick in a Hypersonic Jet flying at Mach-10. Credit to Kosinski: these are some terrific scenes. There is something majestic in the sublime beauty of a jet soaring through the clouds in the upper atmosphere. Just beautiful. 

Nevertheless, we see Maverick prepared to take absurd and totally ridiculous risks whilst also suffering from some psychological holdover from the previous film. What has Maverick been doing since 1986? He has still not recovered from the death of his Goose and is mired with regrets about his past. Still! Indeed, his wisecrack jokes and grins seem a bit disjointed in a man approaching his fifties. He also appears to have no real friends, no relationships, no girlfriend, no children etc... Here is a lonely man who will risk death in going above Mach-10 for no reason. He has also never been promoted to a position of seniority in the air-force and is made to feel like a relic. It’s a bit depressing. 

Moreover, for me, the film The Mummy imparted a lingering suspicion that Tom Cruise only has a limited repertoire that he brings to a character. It’s the same set of looks and delivery and so on: whether Mission Impossible or Top Gun. I’m not sure if that’s fair, but it’s my suspicion (exception might be War of the Worlds).

At any rate, Maverick is ordered to train the “elites of the elites” to carry out a nondescript operation against Tehran. As I say, the plot isn’t what drives Top Gun: Maverick. Instead, it is the background for action-packed planes in the sky, fraternal comradery, and a lot of bro-ing. The group is a fairly cliché bunch: with the token arrogant rude one, the token female, the token nerd, etc... Among their number is Rooster (Miles Teller), son of his former friend Goose. There is surprisingly very little interaction in their burgeoning relationship. For example, Rooster’s initial residual anger and resentment is somehow transformed into their hugging, embracing and high-five-ing one another. We never seem to get a sense of closure between them over past traumas and difficulties. There are brief moments of wistful reflection for Maverick; but these are promptly offset by beach scenes, muscular toned bodies, sharp hairlines, broad shoulders & chiselled jawlines etc... (but no shower scenes with men in their white towels, unfortunately.).

Nevertheless, Kosinski has created such action-packed, immersive, adrenaline-inducing cinematography that one can overlook these problems: from cameras positioned inside the cockpit, to the explosive sonic blast and pressure of flight captured in and around the F-18 (I think?). I also appreciated the audible bursts of inhalation in the cockpit reflecting large g-forces. It adds to the experience as planes are darting around the landscape (and it’s a point which most people would not have realised). 

Unfortunately, the plot is somewhat lacking which leads to a lack of finality and closure.

The legality of Julian Assange's extradition to the United States ✎

The Home Secretary Priti Patel recently approved Julian Assange's extradition to the US to stand trial over charges of illegally obtaining and publishing highly classified documents. As you can see from today's new, it seems Julian Assange is trying to judicial review the Home Secretary's decision to approve his extradition. Watch this space - I've been following this never-ending Assange saga.

I write this piece for two reasons. Firstly, I want to defend the courts and the British state. The Blair government brought into our domestic law a US—UK treaty of extradition. International law requires that the government not have a choice in the matter. Secondly, because I like writing about these things, I would like to briefly discuss the High Court judgment and the possibility of further appeal.

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Background

Julian Assange has never really seen justice. He has managed to evade justice in Sweden for charges and allegations that would amount to rape under English law. In 2007, the Court of Appeal (BAILII link) held that having sexual intercourse without a condom — when his partner insisted that she would only have sexual intercourse if he had used a condom — amounted to rape under the Sexual Offences Act 2003 by violating the basic definition of consent (under section 74). The Court of Appeal — in relation to the other accuser whom Assange had sexual intercourse with while she was asleep — was also held to be rape as it obviously precluded any consent. When he faced the prospect of being extradited to Sweden he fled to the Ecuadorian embassy — Indeed, Ecuador, that bastion of freedom (classified as "not free" in the Freedom of the Press Report 2016 by Freedom House) — and caused his backers a considerable loss in bail money — £340,000 (The Guardian). He then made a nuisance of himself — through ungracious attitude and bad personal hygiene — at the embassy and outstayed his welcome. Fast-forwarding to the present, he has exhausted all decent avenues and friendships (e.g., Jemima Khan in the New Statesman). I lament the Swedish director of public prosecutions dropping the case. She said "at this point, all possibilities to conduct the investigation are exhausted" noting that "if he, at a later date, makes himself available, I will be able to decide to resume the investigation immediately" (The Guardian). I don't think those rape charges will ever be answered for.

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The government's obligations under the Extradition Act 2003

The UK–US extradition treaty of 2003 was implemented into UK law under the UK Extradition Act 2003. Under this Act, it is fairly straightforward for the United States to request an extradition of someone currently in the UK — including the extradition of British citizens. In United States of America v Assange, High Court and Magistrates' Court cases were based on the Extradition Act 2003.

The legislation has been used many times. For example, against British citizen Gary McKinnon (under hacking charges) whose extradition was averted for clemency reasons. Also, against Navinder Sarao (the 'flash crash trader') for financial market crimes and manipulation. Although, I believe the United States ultimately decided against his extradition. 

Under the 2003 Act, the Home Secretary is bound by law to sign an extradition order unless the following grounds for refusal are met:

1. Facing the death penalty
2. Speciality arrangement in place
3. Earlier extradition to United Kingdom from other territory and consent needed for onwards extradition.
4. Earlier transfer to United Kingdom by International Criminal Court

Ultimately, the High Court ruled that Assange could be extradited because they accepted assurances from the US government that Assange would not be held in maximum security prisons. Moreover, as per the jurisprudence of the European Convention of Human Rights, following the Soering Case, the UK is prohibited from extraditing a person who may face the death penalty. I have no doubt similar commitments by the US government were given to that effect. Thus, there is no legal reason for the extradition order to be refused.

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The High Court case

In United States of America v Assange [2021] EWHC 3313 (Admin), the appeal by the United States succeeded on the grounds relating to assurances produced by the US government (viz. grounds 2 and 5). The grounds of appeal in the judgment are considered briefly (BAILII link): 

Ground 2: Applying the test under section 91, judge ought to have notified the USA of her provisional view to afford it opportunity of offering assurances to the court.

Ground 5: USA provided UK with a package of assurances responsive to the judge's specific findings in this case. 

Both of these have been grouped together and concerning the legal effect of "Diplomatic Note no. 74" dated 5 February 2021. It seems it was late in the proceedings before it was admitted and the judge rejected it in the interests of preventing "further delay to proceedings". Lord Burnett - relying on India v Dhir [2020] EWHC 200 (Admin) - held that it was a question of why the assurances were delayed:

It is necessary to examine the reasons why the assurances have been offered at a late stage and to consider the practicability or otherwise of the requesting state having put them forward earlier. It is also necessary to consider whether the requesting state has delayed the offer of assurances for tactical reasons or has acted in bad faith: if it has, that may be a factor which affects the court's decision whether to receive the assurances. If, however, a court were to refuse to entertain an offer of assurances solely on the ground that the assurances had been offered at a late stage, the result might be a windfall to an alleged or convicted criminal, which would defeat the public interest in extradition.

Nevertheless, he concluded vis-a-vis the assurances that:

We do not accept that the USA refrained for tactical reasons from offering assurances at an earlier stage, or acted in bad faith in choosing only to offer them at the appeal stage ... We see no merit in the criticisms made of the individual assurances ... That risk is in our judgment excluded by the assurances which are offered. It follows that we are satisfied that, if the assurances had been before the judge, she would have answered the relevant question differently.

Nothing controversial or surprising here. Lord Burnett's conclusions strikes me as pure common sense.

Ground 1: Judge incorrectly applied the test under section 91

The United States seemed to have argued that:

the judge's approach applied a test which amounted to an obligation on a requesting state to guarantee that a requested person could not commit suicide in any circumstances ... [in] the judge went too far in a predictive assessment of what might happen in the long term. 

Lord Burnett weighed the factors that the judge considered and concluded that "we are not persuaded that the judge failed to take such matters into account".

The ground failed but it seemed shaky to start with. Again, common sense.

Ground 3: In issue concerning the principal psychiatric expert (Professor Kopelman) having misled judge on a material issue, but his evidence was nevertheless relied upon (or that little weight should be attached to it). Also, question of his lack of independence. Had judge attributed different weight to evidence, judge would not have applied section 91 differently.

Ground 4: Judge erred in overall assessment of evidence going to the risk of suicide

I found a very interesting article by Gareth Corfield (The Register) which covers this in some depth. It seems Professor Kopelman was ambiguous — which had the effect of misleading the court — which Lord Burnett held should not have been treated so leniently by the judge:

In our view, Professor Kopelman plainly did not comply with those statements, because in his first report he chose not to state what he knew of the relationship between Mr Assange and Ms Moris when opining on the effects of Mr Assange's "solitary confinement" in the Embassy and the risk of suicide; and subsequently he failed to correct his report or to make clear his earlier knowledge of the relationship.
With all respect to the judge, we cannot agree with her implicit finding that Professor Kopelman's failings could be excused or overlooked merely because his conduct could be viewed as "an understandable human response". Many people mislead courts for reasons which might be understandable but that does not excuse the behaviour and it is incompatible with the obligations of an expert witness to do so.

Once again, there is nothing tendentious here. Common sense prevails.

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Further appeal rejected

It seems appeal from the High Court must go to the Supreme Court as per section 114(4) of the Extradition Act. A decision must be made granting leave to appeal. 

I can't seem to find whether it was granted. However, according to Amnesty International (Amnesty International press), the Supreme Court has rejected any further appeal.

Quite bizarrely, in that press release, they said: 

Today's decision is a blow to Julian Assange and to justice. The Supreme Court has missed an opportunity to clarify the UK's acceptance of deeply flawed diplomatic assurances against torture. Such assurances are inherently unreliable and leave people at risk of severe abuse upon extradition or other transfer.  

I don't think Amnesty International understand that there needs to be a contentious point of law worth appealing to the Supreme Court — not a vague admonition that things 'should change'. From what I've read, the High Court's judgment was mostly common sense and covered very little of contention.

Watch this space.

The legality of Scotland's referendum on independence ✎

It seems that the UK Supreme Court may soon have to decide on whether Scotland can separately authorise a referendum on the Scottish independence question. It seems Nicola Sturgeon plans to hold the vote in October 2023. 

I have concluded that it would be legal for the Scottish Parliament to proceed with the referendum independently. I will first draw attention to the relevant sections in the Scotland Act 1998, followed by some analysis and discussion; and then concluded with a broader point about our constitution.

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The relevant aspects of the devolved powers in the Scotland Act 1998

• Section 28(7) - Reserves the UK Parliament's right to legislate for Scotland.
• Section 29 - An Act of the Scottish Parliament is law unless it is beyond its legislative competence. 
• Section 30 - The "reserved matters" are listed under six headings: the constitution, political parties, foreign affairs, public service, defence, and treason.
• Section 30(3) - How to determine whether a provision relates to a "reserved matter"
• Schedule 1, paragraph 1(b) - Aspects of the constitution including "the Union of the Kingdoms of Scotland and England"

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The legal criteria

1. Can the Scottish Parliament operate outside its "legislative competence"?

The answer is 'No'. In AXA General Insurance v HM Advocate, Lord Hope laid out the basics by noting that:

The United Kingdom Parliament has vested in the Scottish Parliament the authority to make laws that are within its devolved competence. It is nevertheless a body to which decision-making powers have been delegated. And it does not enjoy the sovereignty of the Crown in Parliament that, as Lord Bingham said in Jackson, para 9, is the bedrock of the British constitution. Sovereignty remains with the United Kingdom Parliament. The Scottish Parliament's power to legislate is not unconstrained. It cannot make or unmake any law it wishes. Section 29(1) declares that an Act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Parliament. (Emphasis added)

2. Does the purported provision relate to a "reserved matter"?

Having established the need for the Scottish Parliament to operate within its legislative competence, it is then necessary to examine whether the referendum falls under the category of a "reserved matter" (appropriate to the Westminster Parliament). To answer this question, section 30(3) of the Scotland Act requires the court to consider; firstly, the purpose of the provision; and, secondly, "its effect in all the circumstances".

According to Nicola Sturgeon, the legislation would seek to authorise a "consultative, not self-executing" referendum. The problem here is that referenda are not sources of law. They capture a snapshot of opinion at a given time — and that is all they do. At this juncture, it is worth distinguishing between a political purpose and a legal purpose. To my mind, there is no doubt that Nicola Sturgeon and the Scottish National Party are using the referendum for their political ambition of an independent Scotland. But that is quite different from its legal purpose. Under the rules of statutory interpretation, the courts do not imply the ambitions of political parties into statute. The courts instead confine themselves to the language of a provision and interpret them with respect to what Parliament meant it to achieve.

As I mentioned, our constitution does not recognize referenda as a source of law. This is critical. Because it is not as if it were some unilateral declaration amounting to a cessation. Independence is an entirely separate process to a referendum. So, rather than focusing on the purpose of the provision; the more relevant, and perhaps more difficult, question for the Supreme Court is the extent to which the "effect in all the circumstances" of the referendum shifts the legislation into the sphere of a "reserved matter". The logical corollary entails the Supreme Court weighing the ostensible political "effect" - taking into account some concept of causation - to determine whether they amount to a legal "effect".

The political effect would presumably be the strong vote 'yes' in favour of independence which, one assumes, the UK government would be apt to take notice of and which would trigger negotiations leading to independence. However, the earlier Scottish referendum and, to a lesser extent, even the Brexit referendum did not produce a conclusive or very strong vote. The results were too uncertain to make any easy prediction as to its effect. Indeed, in the previous referendum, the sufficiently large 'no' vote would, in my view, militate against any self-assured proposition that a referendum is causative of independence. 

Moreover, even if one assumes the strong 'yes' vote for independence; a further assumption is that the UK government will, in fact, proceed with measures enacting Scottish independence. An alternative approach may entail the government undertaking further negotiation, with more devolution to the Scottish Parliament over time - while the UK government withholding final independence.

My point is that there are too many political and pragmatic ifs and what-ifs to deprive the courts from constructing and assembling an alternative plausible political reality, with sufficient certainty, to infer a legal effect.

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The wisdom of uncodified constitutions

What the Scotland Act 1998 demonstrates is how a political and practical issue has been transformed into an academic legal problem through the codification of Scotland's legal system. Our UK constitution is political in character. Disputes, such as these are strikingly rare in our legal system.

On the other hand, in the United States - and especially currently in light of the Dobbs v Jackson Women's Health - the morphing of political issues into legal disputes has forced the US Supreme Court into highly political and controversial subjects. It has resulted in an ugly and nasty undertone in US politics. 

The above discussion ought to be warning to the advocates of the UK adopting a written codified constitution.