Process over policy was never a route to Indy
The recent inquiry by the Scottish Parliament’s Constitution Committee into the lack of a legislative roadmap to independence told us little that Common Weal hadn’t already predicted. The real question is what to do about it.
The Scottish Parliament’s Constitution Committee has recently concluded a short investigation into legal mechanisms for triggering a second independence referendum. The final report and the reports of the evidence sessions are worth reading, but the conclusions are fairly simple albeit in a direction that probably won’t please anyone who has an especially vested interest in the process for Scottish independence.
Essentially, the principle of becoming independent is itself legal (as opposed to many states which have constitutions that explicitly prohibit the secession of components of the state) but there is currently no legal mechanism in place that would allow for Scotland either to unilaterally declare independence nor to unilaterally hold a public referendum (even an “advisory” one) on the question of Scottish independence. This stands in contrast with various other states which explicitly legislate to allow components to secede either unilaterally or provide a mechanism to translate the democratic will of their residents into the legislative process of independence.
Instead, the processes which would allow for independence cannot be enacted unilaterally and may only be enacted via the UK Government or UK Parliament. This includes a mechanism similar to the one in place for Northern Ireland which would allow for a poll on leaving the UK and reunifying with Ireland if public sentiment makes it seem likely to the UK Secretary of State for Northern Ireland that such a poll would return a result for reunification. That’s a slightly technical wording but the crucial point is that public polls in favour of reunification are only a mandate for a referendum if the UK Government chooses to not be wilfully blind to them – the veto is still in their hands.
As is the legislative process of becoming independent – that can’t be done by the Scottish Parliament passing a ‘Divorce Act’, but instead by Westminster passing legislation to enact independence. The obvious route to my mind is that they would amend the Scotland Act to delete Schedule 5 and so remove the list of reserved powers – essentially devolving everything not already devolved.
Then it might add Scotland to the Statute of Westminster 1931 which essentially says that new UK laws won’t apply to Dominions and the Commonwealth nations unless they explicitly request or consent to it. Only then could this be followed by a Scottish Act or Constitution Article to make it unlawful to request or consent to such laws plus further laws to remove the role of the UK Supreme Court and other state apparatus that may remain plus something to clarify questions around Crown succession or to remove the Magic Hat entirely and become a Republic.
Another crucial conclusion is that there is no international law that can be applied to legislatively compel Westminster to act on public sentiment or on the calls for a referendum. The UN isn’t going to send in blue-helmeted peacekeepers to enforce some hypothetical ‘Decolonialisation Mandate’ or something like that.
Instead, the Committee concludes, that the question of independence was less a legislative question but more a diplomatic and democratic one. Essentially, that independence could be legislated for should it need to be, but this is only going to happen in practice when the UK Government decides that it needs to be.
Here’s the thing – This was also pretty much exactly the thought process that went in to us writing our books Direction in 2023 and our policy paper Within Our Grasp in 2019. It’s important to note that the latter paper was written before the Supreme Court ruled that a unilateral advisory referendum would be unlawful – a decision that at the time seemed likely but far from assured and therefore until that moment was ambiguous.
“Our goal should be to set up the situation where Westminster has absolutely no choice but to come to the negotiating table to enable independence because not doing so would be worse for them.”
We recognised long before this Committee was even conceived that the question of independence was going to be more about democracy and diplomacy than sheer legislation and we’ve taken quite some flak over the years from trying to push back against elements of the independence campaign who tried to magic independence into being by finding ‘one weird trick the lawyers won’t tell you about’ that would somehow invalidate the Act of Union and prove that Scotland had, in fact, been independent all along. I remember with wry fondness one person who reacted to my explainer of the legislative process above by calling me a “Colonialist Westminster Shill”.
Wishing independence into being isn’t going to make it happen, but the lack of a clear legislative process with goalposts and milestones isn’t a weakness either. Goodhart’s Law very much applies here in that some process that demands that, for example, public polls show 60%+ support for a sustained period of six months before a referendum can be considered could always be knocked into the long grass by a single 59% poll or – perhaps worse – could bounce us into campaign mode without a plan for the day after (like Brexit). Even the SNP’s foolish target of calling for a referendum if there’s an SNP majority in May grants the UK Government the ability to decline that offer even if every single MSP in Holyrood is openly pro-indy, but only 63 of them are SNP.
Instead we should recognise that the precise legislative formulation for independence is ultimately irrelevant. If Westminster has the ultimate veto over whether or not it goes ahead, then we must recognise that they will always enact that veto if doing so causes them fewer problems than not doing so. This is why Sturgeon’s 2017 demand for a referendum was dismissed with a curt “now is not the time” and every other attempt with even less.
This was the purpose of our book and policy paper. Our goal should be to set up the situation where Westminster has absolutely no choice but to come to the negotiating table to enable independence because not doing so would be worse for them. I’ll leave the details of that strategy behind the links to the book and paper (please go read them and buy the book) other than to say that only one component of it is building the public support for independence to undeniable levels.
We also need to consider building an escalating pressure campaign whereby Westminster essentially realises that governing a Scotland that no longer wants to be governed is more hassle than it’s worth (which, if the propaganda is true, is already not worth much because we’re such a money sink).
We weren’t invited to give evidence to the Committee, despite the detailed work we’ve done on the topic, but if we had been we may have questioned the reason for the inquiry being called. Its conclusion was obvious to us long before it was even started and so should have been obvious to the people who called it. I fear that the inquiry was never designed to be part of a coordinated ladder of escalating pressure but was instead another attempt at substituting process for policy.
There’s a simple test of whether I’m right or not. One that will separate a checkbox exercise designed to let the parties tell potential voters they’re doing something from one where they are actually doing something to bring about independence.
The Committee’s final conclusion calls for the Scottish Government and UK Government to negotiate a pathway to exercising Scotland’s right to determine its constitutional future as a matter of urgency.
The test is this: What will you, the politicians, do when (not if) Westminster once again says ‘No’?
