In this third, final and a little lengthy article, I want to lay out how I think the Scottish government should proceed to secure a new independence referendum and other possible outcomes. Firstly, we need to look at why the Scottish government has been pursuing the Section 30 route to a referendum. The reason is simple. Legitimacy and recognition. We need a route that will be recognised internationally, world wide. A referendum after a S30 order ensures that recognition and it ensures the cooperation of the newly independent Former United Kingdom (FUK for short).
I understand that many people rail against a referendum route that is effectively the choice of the UK, but the fact is the S30 route exists, it has been used before, it works and it will be recognised by all. In the end a S30 may not happen and we will have to look at other ways to proceed. That’s the Twilight Zone and we’ll enter it a little later in this article.
With the Covid19 epidemic continuing to rage it looks likely now that no progress will be made until the May elections. Many are imploring the SNP to act now before Brexit but it isn’t going to happen and if I was in the SNPs shoes I’d wait as well. No course of action, or inaction if you prefer, is without risk of course but there are advantages to waiting.
Brexit, and it looks like either a no deal Brexit or a last minute crap deal Brexit, is going to negatively impact the country, further fuelling discontent and increasing support for independence. If the SNP maintains the support currently reflected by the opinion polls they are going to be back in government quite possibly as a majority government. This will trigger a fresh vote for a referendum in the Scottish parliament and a demand for a S30 order. The SNP rationale is that the democratic and political pressure on the Tories will be so great that they will concede the S30. For reasons covered in the earlier articles that’s not likely to happen.
So if that scenario comes to pass what will the SNP do? Well I don’t know and I’m not at all sure they do, so here’s what I would do. If you have exhausted all the political and constitutional routes, and you have, the next step has to be the courts. To me there is an obvious route but I have never, ever heard it suggested. What I believe we should be doing is challenging the UK government in court over the refusal to grant a S30 order. It is clearly undemocratic, I believe unconstitutional and therefore unlawful.
I’m aware that some believe we should just organise a referendum without a S30 and that Martin Keatings is currently prosecuting a case in the courts to establish that Scotland has the legal right to hold a referendum without Westminsters consent. I hope he succeeds but even if he does it doesn’t guarantee Westminster would recognise the result.
If we win a court case forcing the UK government to sign a S30 order the UK has to recognise it and the rest of the world will follow. You may say of course that it is the UK gov that has the power to grant a S30 and you’d be right. But what they don’t have is the right to abuse that power and ignore the will of parliament, in this case the Scottish parliament.
In very recent times both the current and previous Conservative governments have found themselves in the Supreme Court precisely because they abused power for their own political ends and tried to cut parliament out of the process. That’s a tricky policy in a parliamentary democracy. Both these cases were Brexit related. Theresa May wanted to use the ancient and archaic power of the Royal Prerogative to ensure Brexit was dealt with by Cabinet and the Westminster parliament would not have a say. Boris Johnson wanted to prorogue the Westminster parliament. In other words to discontinue the parliamentary session. He wanted to do this to severely limit parliaments opportunities to debate Brexit. Both May and Johnson lost in the Supreme Court because they abused their power for their own political gain.
It is important to be clear here. No one disputed that they didn’t have these powers, only that they had misused them.
So what is different about the UK gov refusal to grant a S30? Nothing, except it is actually worse than the two cases cited above. Why? Because the Scottish parliament has already voted for a referendum. Debate hasn’t been prevented as in Westminster’s two Brexit examples. The Scottish parliament has had a debate and made a decision. That decision has been effectively overturned by the Prime Minister. Just as in the two Westminster parliament cases the argument isn’t whether the UK gov has the power to grant a S30 order, it is that that power has been abused.
Clearly the UK gov decision is undemocratic because the Scottish parliament has voted in favour of a referendum. It is unconstitutional for the same reason. The UK has no written constitution. The constitution is formed by a body of law and precedent dating back centuries. That precedent completely backs the Scottish government request for a S30. The position is exactly the same as 2014. Once again the Scottish people have elected a government committed to an independence referendum. Once again the Scottish parliament has voted in favour of a referendum. But unlike 2014 when the UK gov recognised the democratic mandate provided by the Scottish parliament and passed the S30 order, they are refusing to do so this time.
As we discussed in part 2 of this article the UK gov has no legitimate reason of any kind to refuse the S30. They are doing so for their own political reasons, i.e. they are afraid they will lose. The democratic mandate could not be clearer, the constitutional precedent is also absolutely clear. The UK governments motives are purely for political advantage. Surely that must be as illegal as their motives in the two Brexit cases where the Supreme Court ruled against them.
Immediately after the May Scottish election and assuming a majority indy supporting parliament, the Scottish government should demand a Section 30 order. If Westminster refuses then the Scottish gov is faced with the choice of either doing nothing again or taking the UK gov to court. If it does nothing the SNP is finished. That may seem a bold statement but the purpose of the SNP is to gain Scottish independence and if they don’t pursue it a new party will appear to take their place. Witness the rise of the Brexit party from nothing to win the European elections. Let’s hope the SNP are bright enough to realise that. They should of course go to court and I’ve laid out what I think they should do. They may have a different/better idea, we’ll see.
So what if the court finds against the Scottish government. I don’t think they will but what if they do? What if Westminster can hold up a referendum until the 12th of never? Welcome to the Twilight Zone. We now have a constitutional crisis of a magnitude unprecedented in British constitutional history.
If there is no political/democratic/constitutional/ legal route to independence then the United Kingdom is not a union of nations & countries. It is an English colonial structure and Scotland, Wales and Northern Ireland are the colonies. It means the 1706 Treaty of Union was/is a sham. It was, as has been argued by others before, merely a device for England to absorb Scotland.
In these circumstances all political, constitutional and legal routes within the UK framework have been exhausted. So where do we go from that point? The possibilites are endless and we could speculate all day. But one thing remains vital, international recognition. The UN Charter guarantees the right to self determination. But whatever the vagaries of international law the reality is that political recognition is what is required .
That means the Scottish government must, if it is not already doing so, talk to as many countries as possible and crucially the EU to explain to them our constitutional set up and how it has been abused, to emphasise that Scotland has followed it meticulously and to gain their support for unilateral action. That action should include the Scottish parliament rescinding the Act of Union and authorising an independence referendum with international oversight.
Let’s hope democratic sense, or the law, prevails and a Section 32 referendum can take place. If it can’t the stars are well aligned for Scotland. With the UK finally out of the EU at the end of the transition period at the end of January 2021, the EU which must be mightly pissed off with the UK and the Tories in particular by now, will be much freer to express support for an independent Scotland.
In the US President Biden will be in office. Biden is also no lover of the UK and fiercly opposed to the UK’s internal market bill which he sees as a threat to the Good Friday Agreement. He, like the Scottish gov, has close ties to Ireland and Irelands influence with the US could be very helpful in obtaining US recognition for Scottish independence.
With the likelihood of action outside of S30 now quite likely the Scottish gov should be working overtime in establishing international links.
So all to play for even with the niggling delay for 6mths. The SNP have to step up and get it done and court is the place to start. They need to put the UK gov under the Section 30 cosh. Now, even more than in 2014, the whole wellbeing and future of our country is at stake.