In mid-August I spoke at the Edinburgh International Book Festival about Scotland and the future of the United Kingdom.
My theme was that when the constitutional debate resumes (which it will) after the post-Holyrood election lull, there could, and in my view should, be a debate not just on what independence means, but on what remaining in the Union means. This is a fundamentally different proposition than it was in 2014, and not just because of Brexit.
In 2014, the three UK-wide unionist parties (which, let’s not forget, at the time held 53 of Scotland’s 59 Westminster seats between them) were all evidently comfortable with devolution. Both the UK government and the broader Better Together campaign spoke of ‘the best of both worlds’ of an autonomous Scotland within a devolved UK. As the polls tightened, the response was ‘the vow’ of more devolution.
Things are different this time. In July, Welsh First Minister Mark Drakeford, leader of the most successful unionist party in any of the devolved territories, warned of ‘a Government that is instinctively hostile’ for the first time in the history of devolution. Sometimes such hostility is just blurted out; sometimes it becomes law, such as the constitutional land grab that is the Internal Market Act. Combined with the unworkability of fully federal models in the UK, this instability within the Union means that when Scotland is debating its constitutional future, the nature of the Union it’s being invited to stay in merits more discussion than last time.
Insofar as I thought any of my arguments would attract attention, it was this one. But instead, coverage emphasised a throwaway restatement of my long-articulated view that the Scottish government is likely (though I did not say certain) to lose any legal case brought against referendum legislation it seeks to pass in Holyrood in the absence of a Section 30 power agreed with Westminster.
So, it is worth setting out the several reasons why I hold this view. More importantly, though, it is also worth setting out why the question does not ultimately matter.
First, British courts have dropped broad recent hints about their constitutional posture. In the first of two cases brought against the government by Gina Miller over Brexit, the Supreme Court took a very traditional, Diceyean view of parliamentary sovereignty as it relates to devolution. Perhaps more significantly, the Court of Session earlier this year dismissed a case about the Scottish government’s draft referendum bill as hypothetical, but in doing so, Lord Carloway, the Lord President, wrote that had a real bill come to court the question would have been whether an Act to hold a referendum on Scottish independence ‘relates to the Union of the Kingdoms of Scotland and England’, before caustically concluding that ‘viewed in this way, it may not be too difficult to arrive at a conclusion’.
Second, the courts may well see the 2012 Edinburgh Agreement as a binding precedent that Westminster’s role is broadly accepted. As far back as 2007, the first SNP administration (well short of a pro-independence majority) noted in the first ever Scottish government paper about a referendum that ‘the competence of the Scottish Parliament to legislate for a referendum would depend on the precise proposition in the referendum Bill, or any adjustments made to the competence of the parliament before the Bill is introduced’.
These two caveats are intriguing. The second – the reference to adjusting the power of the Scottish Parliament, which only Westminster can do – reflects the reality of the deal struck in 2012. But the first – the reference to ‘the precise proposition’ – is more interesting still. It reflects the view of a number of scholars over many years that there might be a way for Holyrood to phrase the wording of a referendum in such a way as it would be seen to be ‘consultative’; merely seeking the view of the people rather than constituting an action in and of itself that the Scottish Parliament is not allowed to do. The courts, so this argument goes, would not therefore see it as unlawful.
That might be true. But so what? All the court would be allowing Holyrood to do is spend money organising a referendum. But the aim of the Scottish government, and the wider nationalist movement, is not to have a referendum. It is to achieve independence. And a court victory on a technicality about the wording of an independence referendum is not part of a viable path to that destination.
As Aileen McHarg and Chris McCorkindale have written, ‘a state may become independent in one of two ways: either with the consent or at least acquiescence of the parent state…or via a unilateral declaration of independence [UDI]’. Modern Scottish nationalism is based entirely on the first of these. Westminster must consent.
Whilst a British court could decline to block Holyrood’s legislation for some sort of referendum (in my view unlikely, but possible), no court can compel Westminster to act upon one. Westminster has an inexhaustible list of legal and procedural tools to block Scottish independence if it so wishes. In the light of a court defeat, it could pass legislation to reverse the judgment and outlaw the referendum. Or it could encourage unionists to boycott the vote, and state it will not recognise or act upon the result. Ultimately, Westminster can decline to repeal the Act of Union, and refuse to recognise an independent Scotland. Some of these actions might – might – increase political support for independence. But no court could or would do anything to stop them.
No negotiated indy?
If Westminster does not play ball, the long-standing Scottish nationalist plan for negotiated independence collapses. Even if moderate independence supporters were on board with a Scottish UDI – a big ‘if’ – no country Scotland would want as an ally will recognise its independence against the wishes of the British government. Whatever the current state of the transatlantic alliance, no American President would recognise an independent Scotland against the wishes of Downing Street. Spain would not countenance a ‘breakaway’ state’s accession to the EU: that’s why it accepts Montenegro’s candidacy (because it separated with the consent of Serbia) but not Kosovo’s (because it separated from Serbia without its consent). Even China and Russia might balk at recognising Scotland, mindful of their own separatist problems. So a Scottish government seeking recognition in these circumstances would meet the same flat refusal as that encountered by Éamon de Valera’s emissaries to Woodrow Wilson and Georges Clemenceau in 1919, and Scotland would not be a recognised independent state.
So Scotland’s only viable path to independence is by agreement with the rest of the UK. Therefore it all comes back to a political question: whether Scotland still has the right to leave the Union, and if so, how. As far back as 2002, in their masterly study of the modalities of Scottish independence, Jo Eric Murkens, Peter Jones and Michael Keating wrote of a ‘Catch 22 situation whereby the UK Government publicly recognises Scotland’s entitlement to independence and to hold a referendum but does not in practice provide the constitutional mechanisms to give effect to those rights, rendering them futile’.
Since then, Westminster has of course given effect to those rights with the 2014 referendum. But before the 2021 election, UK ministers were ruling out doing so again in any and all circumstances for decades to come. That approach has softened. But there is still no light shed under what circumstances a second vote could happen. The Secretary of State for Scotland, Alister Jack, seemingly invented some criteria in a late summer media interview, but it’s unclear as to whether this was interview rhetoric or a change in policy. (And since ridiculed by Johnson’s Downing Street Spads: Ed).
Fundamentally, there is a question which goes to the heart of whether the Anglo-Scottish Union remains one upheld by consent, which in turn is part of a wider question of what this redesigned, post-Brexit union is going to look like. This is a political question which not just should not be settled by the courts; it cannot be.
First published by the Constitution Unit