I have been away from home for rather longer than expected, which has made writing rather more difficult and I haven’t been paying as much attention to the news from Scotland. There have been storms, a change from monochrome Scottish November to Technicolor. We are still just about going along the yellow brick road to independence, but unfortunately some lions and tigers and bears oh my have been encountered. What have you learned Effie?
It turns out that the promise that the next General Election would be a de facto referendum on independence wasn’t quite a promise at all. Perhaps it was just some prime steak to throw to the lions and tigers and bears. After all we have spent every year since 2014 with a promise that next year there would be a referendum, just as the Jewish diaspora for 2000 years told themselves that next year they would be in Jerusalem until one day they finally made it.
Nicola Sturgeon or her MPs scared that they would lose their seats suddenly realised that there was a good chance that they would lose this de facto referendum and so it looks as if it will be postponed until the next Holyrood election, where they hope that they will have a better chance because children and foreigners are allowed to vote.
But it isn’t up to only the SNP to decide the meaning of elections. If the SNP plus Greens and Alba get less than 50% of the vote it would be perfectly reasonable for the Government whether Labour or Conservative to declare that you have had your second referendum and lost. Sturgeon cannot unsay what she has already said. If General Elections can be referendums and if not how can they be de facto ones, then the failure of Scottish nationalist parties to win 50% of the vote can be interpreted by anyone as losing a referendum.
Whether the next Holyrood election will be declared a de facto referendum will depend on whether the SNP thinks it can win it. But while a General Election is an election to a Parliament which has the competence to decide whether Scotland can be independent or not. It is after all a reserved matter. An election to Holyrood is an election to a Parliament which the Supreme Court has told us lacks the competence to decide whether Scotland can be independent. It cannot legislate for a referendum, but requires permission.
But how can an election to Holyrood be a de facto referendum on independence if Holyrood itself lacks the competence to legislate for such a referendum? How can such a Parliament even declare that such an election is a de facto referendum?
Worse Holyrood has a weird form of proportional representation which almost no one understands. There are votes for constituencies and votes for list regions. Let’s say I vote Labour for the constituency but Green for the list. Is that one vote for independence and one vote against? Odder still it might be possible for nationalist parties to win 50% of the vote, but be unable to form a Government, which could not anyway legislate for a referendum de facto or otherwise.
Much of this is now just noise. The important issue was determined by the Supreme Court not by it saying that Holyrood could not legislate for a referendum, but much more devastatingly when it said that Scotland did not have a legal right to secede.
If Scotland does not have a legal right to independence because that right simply no more applies to places like Scotland than it does to places like Saxony, Lombardy or Vermont, then it legally matters not one jot or tittle whether the SNP, Alba et al wins 50% or more in a General Election, Holyrood election or local council election.
It is for Westminster alone to decide whether it grants Scottish independence, just as it was for Washington alone to decide whether it would grant South Carolina independence. The UK is a unitary state and Westminster is sovereign.
It then becomes a political matter. David Cameron felt compelled to give Alex Salmond a referendum. He could and I believe should have refused for the reasons above. If Scottish nationalist parties won 50% in a de facto referendum, whatever that is, it would still be up to Westminster to decide either to grant independence or more likely to grant a legal referendum, but this would be matter of politics rather than law. Legally Westminster can refuse forever even if the SNP won 100% in its phony referendum.
What has changed lately is that while David Cameron felt compelled by SNP success at Holyrood to grant a legal referendum, subsequent Prime Ministers are moving gradually away from this idea. Scots voted to stay in the UK, which still more justifies this changed the situation. With the legal backing of the Supreme Court a Prime Minister will no longer feel politically compelled like Cameron. He or she can legally and perhaps politically to say No forever. The UK is becoming like France or Germany where there is no question of a part seceding. It is becoming a dead issue rotting from the head down and beginning to smell.
All of this was very strangely foreseen a long time ago
There are two royal fish so styled by the English law writers—the whale and the sturgeon; both royal property under certain limitations, and nominally supplying the tenth branch of the crown’s ordinary revenue. I know not that any other author has hinted of the matter; but by inference it seems to me that the sturgeon must be divided in the same way as the whale, the King receiving the highly dense and elastic head peculiar to that fish, which, symbolically regarded, may possibly be humorously grounded upon some presumed congeniality. And thus there seems a reason in all things, even in law.
What did you learn Effie? That Sturgeon’s head is dense. It changes its mind elastically. The rotting head, her leadership is divided from both her party and supporters and the whole Sturgeon belongs to the Crown.
Scottish nationalism is holed beneath the waterline still more than the Pequod. Once the law says that Scotland has no legal right to secession, it becomes absurd to pretend that it is undemocratic if secession is not granted. You cannot have a democratic right to something to which you don’t have a legal right. You cannot vote to steal something that is not yours.
Devolution gave people like Sturgeon more power than they could have dreamed of, but there were limits built in and the limits are becoming still more limited. There seems a reason in all things, even in law.
