Sunday 24 January 2021

The SNP road map is neither a road nor a map


The SNP’s Michael Russell has just put forward a paper entitled “The road to a referendum that is beyond legal challenge”.

But has anything really changed?

The first point he makes is that

1 The Scottish Parliament has already passed two bills that lay the groundwork for a referendum on

independence The first was the Referendums (Scotland) Bill which became law on the 29th of January

2020. The Scottish Elections (Franchise & Representation) Bill was then passed in February and gained

Royal Assent on the 1st of April.

But it is worth pointing out that the Referendums (Scotland) Bill “would only allow for referendums on issues which the Scottish Parliament has responsibility for. These are known as a ‘devolved’ matters.” The Scottish Government can then organise a referendum on agriculture, forestry and fisheries, health and social services and other similar matters.

The franchise bill tells us only who would be allowed to vote about fish and agriculture, because these are the only issues that the Scottish Government is allowed to legislate referendums on. The first point therefore is completely irrelevant and merely a diversion and distraction from the issue of holding a referendum on independence.

Russell continues

 5. The SNP Scottish Government announced in the Programme for Government in September 2020 that a draft bill for an independence referendum, to give people in Scotland the right to choose their own future, would be published before the Holyrood election in May 2021 and would be enacted if an SNP Scottish Government is re-elected with a majority to do so (either as a result of gaining an overall majority or if it had such a majority as a result of support from another pro -independence party).

But such a bill would obviously be outside the competence of the Scottish Parliament because it would be about a reserved matter, the Constitution. The Scottish Government can no more publish a bill on an independence referendum than it can publish a bill on abolishing nuclear weapons or annexing the Faroe Islands. This is just another example of the Scottish Government attempting to act in areas outside its remit.

The Scottish people voted for a devolved Parliament in 1997 with certain limitations. These limitations are what makes it devolved. If they did not exist, we would have voted for independence in 1997. If that had been the offer, we would not have voted for the Scottish Parliament at all. Whenever the SNP goes beyond its remit, it is acting contrary to the referendum of 1997 and indeed removing the moral justification of that vote.

A legitimate response would be for the UK Government to repeal the Scotland Act which is the legal basis for the existence of the Scottish Parliament. This could be done quite easily because whatever is in the latest manifestation of the Scotland Act 2016 about the permanence of the Scottish Parliament cannot limit the actions of a subsequent Parliament at Westminster.

The SNP cannot logically have a manifesto commitment to something that is outside the competence of the Scottish Parliament. It cannot for instance have a commitment to join the European Union, because foreign relations are reserved. Such a manifesto commitment would be just as meaningless as a commitment to an independence referendum.

Russell continues

7. The SNP Scottish Government continues to maintain that a referendum must be beyond legal challenge to ensure legitimacy and acceptance at home and abroad. This is the surest way by far of becoming a independent country. It should be held after the pandemic, at a time to be decided by the democratically elected Scottish Parliament. The SNP believes that should be in the early part of the new term.

The key point about democracy however is that the Scottish Government only has the democratic right to do what is within its remit. It has no democratic right, even if it pretends that it does, to do something that is reserved. To attempt to do something that is not devolved would therefore be undemocratic.

Russell admits as much

8. If the SNP takes office the Scottish Government will again request a Section 30 order from the UK Government believing and publicly contending that in such circumstances there could be no moral or democratic justification for denying that request. If the UK Government were to adopt such a position its position would be unsustainable both at home and abroad.

The only legal route is for the Scottish Government to ask permission from the UK Government to hold an independence referendum. This permission was granted by David Cameron’s Government, but it is not automatic, because the matter is reserved. It is not the Scottish Government’s business. If the UK Government refuses to grant a Section 30 order, the SNP could attempt to win a vote in Westminster. If it won such a vote by persuading enough MPs of the legitimacy of its wish, then a bill granting Scotland a second independence referendum would be published. This is the SNP’s only legal route given a refusal by the UK Government.

There is of course a perfect moral and democratic justification for refusing the SNP’s request for a second independence referendum even if the SNP gains a majority in the Scottish Parliament. The democratic justification is that the SNP is attempting to use a democratic majority over devolved issues to justify a majority over reserved matters that it does not have.

The moral justification is that Scotland was granted a referendum in 2014. The basis for that vote The Edinburgh Agreement was that the referendum would be decisive and both sides would accept the result. The issue therefore has been decided.

There was nothing in the Edinburgh Agreement about subsequent events such as the EU referendum changing the decisiveness. Nor did either campaign argue that the result could be overturned by subsequent events.

The SNP cannot logically claim that leaving the EU changed matters because if Scotland had voted Yes in 2014 Scotland would have left the EU. Only independent nation states can apply to join, which means after becoming independent Scotland would have had to apply from scratch. This means we would have spent at least some time outside the EU.

The UK Government would be supported internationally in denying a devolved Parliament the right to legislate on non-devolved matters, because this would be the equivalent of allowing a state in the USA to question American foreign policy or a part of Germany or France to declare war on each other. Internal secession is supported by very few members of the United Nations and none of the Security Council except Britain. Far from being unsustainable, the UK’s position would be sustained by nearly every other country in the world.

Would the UK’s refusal to allow a second independence referendum be unsustainable in the UK? Well this could be put to the test at a General Election. The Secession Party could be formed with the goal of achieving independence for whichever parts of the UK desired it. If it won a majority, then those parts would be allowed to secede.

Would it be unsustainable in Scotland for the UK Government to continue to refuse a referendum? There would be anger no doubt amongst independence supporters and journalists, but what could they practically do about it? They could revolt or attempt another route to independence. If they succeeded, then Scotland would become an independent country. But this would be the illegal route. Scotland might not be recognised by many other countries. It would be barred from joining the EU, which requires adherence to the rule of law as an entry condition, and there would be no transition period and no deal with the UK.

As soon as Scotland achieved independence illegally Treasury money would cease, the trade deal that the UK has negotiated with the EU and any others would not apply to Scotland, and it is likely a hard border would be created between England and Scotland. This route could succeed if the UK decided it wasn’t worth trying to hang onto Scotland, but it would amount to a Unilateral Declaration of Independence (UDI). Scotland could expect neither cooperation nor friendly relations between Scotland and the former UK. If you fancy that route good luck to you, but I suspect hundreds of thousands of Scots would boycott any such illegal attempt to separate and if separation were achieved, they would vote with their feet.

Russell continues

10. In these circumstances, in which there has been an unambiguously expressed democratic decision by the people of Scotland and their Parliament to have a legal referendum the choice of the U.K. government will be clear; to either (1) agree that the Scottish Parliament already has the power to legislate for a referendum or (2) in line with precedent, agree the section 30 order to put that question beyond any doubt; or (3) take legal action to dispute the legal basis of the referendum and seek to block the will of the Scottish people in the courts. Such a legal challenge would be vigorously opposed by an SNP Scottish Government.


The Scottish Government can only legally legislate on devolved matters. It can have no democratic mandate over reserved matters. A supposed electoral mandate over a reserved matter does not change this. So, (1) the UK Government can refuse to agree that the Scottish Parliament has a power that it logically does not. (2) There is no precedent for granting a Section 30 order because logically if you have to ask permission for something it follows that that permission may not be granted. (3) The UK Government would not have to take legal action against the Scottish Parliament rather if the Scottish Parliament attempted to legislate on a reserved matter by introducing a bill for a second referendum, the UK Government could simply refuse to acknowledge the legitimacy of it. It could refuse therefore to allow the Electoral Commission to be involved and could advise Scots not to take part. The BBC and other broadcasters could be made to ignore the referendum and the result could be treated as of no significance. This would leave the SNP with the choice of going down the illegal route, declaring independence anyway or waiting for the chance to hold a legal referendum when given permission.

I am forced to conclude that Michael Russell’s road map is neither a road nor a map.