This week’s Holyrood election debate should not be allowed to pass without noting how it highlighted the dismal state of Unionism. Nicola Sturgeon revisited a point she has been underscoring heavily during this campaign: that a majority of nationalist MSPs returned after May 6 would represent a mandate for another referendum on Scotland seceding from the United Kingdom.
Scottish nationalists have a curious relationship with popular sovereignty, seeing no contradiction in espousing this doctrine while harking back to the Declaration of Arbroath, a pledge of aristocratic fealty and an apologia for the divine right of kings. Among Sturgeon’s statements during the STV debate was: ‘The future of the country should be for the people in Scotland to decide. That is democracy.’
It is certainly one model of democracy but one at odds with parliamentary sovereignty, which has been acknowledged as the Westminster model since the 19th century. Now, you might say the theorising of AV Dicey and Walter Bagehot is out of step with contemporary thinking about political legitimacy but, even if that was a dispositive argument, it does rather bring us back to the nationalists’ muddled thinking. The Declaration of Arbroath was written in 1320.
Sturgeon also challenged Scottish Labour leader Anas Sarwar on this ‘question of basic democratic principle’, asking:
If at this election Scotland returns a majority of MSPs who support, after the pandemic, Scotland having the right to choose independence in a referendum, do you think that vote of the Scottish people should be respected or do you think Boris Johnson has the right to block it?
Sarwar’s response was non-committal, even evasive. His line on a second referendum has been that Scotland should not return to ‘the old arguments of the past’ and should focus instead on the recovery from Covid-19. That is, more or less, the same position espoused by the Scottish Conservatives and the Scottish Liberal Democrats, though the former tend to emphasise the point that the 2014 referendum settled matters while the latter stress the divisiveness of that plebiscite.
What none of the pro-Union parties are saying is that this is an entirely moot point. The constitution is a reserved power. It is no more possible to obtain a mandate at a Holyrood election on a matter reserved to Westminster than it is for Wokingham Borough Council to obtain a mandate at the local elections for declaring war on Belgium. Resisting Sturgeon’s attempts to annex one of the slivers of constitutional territory left to the UK Parliament is not anti-democratic, it is defending both popular democracy and parliamentary sovereignty.
There have been two Scottish constitutional referendums in the past quarter-century, the first in 1997 and the second in 2014. In 1997, voters were asked if they wished there to be a Scottish parliament to handle devolved matters alongside the UK Parliament which would continue to administer reserved affairs. A majority agreed to the proposal and it was enacted. In 2014, voters were asked if they wished the Scottish parliament to assume full legislative powers through independence. A majority rejected this proposal. That is a question of basic democratic principle, too.
If you favour popular democracy, these two referendum results are significant hurdles. The demos set up a parliament for devolved policy then declined to transform it into a parliament for reserved policy too. By continuing to assert competency over reserved matters, Sturgeon and other nationalists show their disregard for parliamentary and popular sovereignty alike. It is Sturgeon who refuses to accept the democratic will, even as she declares it the basis for her political machinations.
These arguments are not easy to make in the context of a Holyrood election or in Scottish politics generally. They are too open to demagoguery. Perhaps more importantly, they threaten the power base that the new Scottish establishment has built up since 1999 and will defend to the last the way establishments do. This problem was created by Westminster and Westminster will have to solve it. I have argued for a new Act of Union that strengthens the United Kingdom and prevents devolution being misused to dismantle it. I am not optimistic about the chances of this happening under either this government or the alternative one across the Commons.
Westminster is scared of its own shadow when it comes to Scotland but it should not be so afraid that it shies away from defending fundamental constitutional principles. There is a legitimate path to another referendum on ending the UK: passing a Bill for one in Parliament. Two of the last four general elections resulted in a hung Commons. Should the next election produce a similar outcome, the SNP could extract a referendum in exchange for confidence and supply. What it cannot do is hijack the Scottish parliament to an end for which it wasn’t intended, over which it holds no constitutional authority, and which the voters have already rejected.
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