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.
