What the Scottish Government should have been doing

One of the big complaints among some supporters of Scottish independence in recent years has been about the apparent foot-dragging by the Scottish Government in their supposed pursuit of the powers to hold a second referendum on independence.

Following the SNP’s overwhelming victory in Scotland in the General Election at the end of last year – in the face of the Conservatives gaining a healthy majority at the UK level – arguments have intensified as to whether there should be a second indepedence vote. Notable within that debate have been voices that have been previously (and perhaps still currently) opponents of independence who nonetheless accept that perhaps the time has come to at least reconsider the issue of whether a vote is held.

The Scottish Government themselves have been active on this front too, with their request to the newly-strengthened Prime Minister, Boris Johnson, that the power to hold another referendum should be transferred from the UK Government to the Scottish Government.

However Johnson for his part has stuck firmly to the line that there should not be another referendum and that the powers should remain with the UK Government.

This is despite an impressive publication from the Scottish Government to accompany their request, which sets out the case for why the powers should be transferred.

It’s worth a read: it sets out why there has been a material change in circumstance since the 2014 referendum (namely that Scotland voted against Brexit but was lumbered with it by the wider UK result), explains the mandate the Scottish Government currently has to pursue another referendum, and sets out the draft legislation that could bring about such a transfer.

The problem is, however, that the case it contains is entirely moral and political (why the powers should be transferred) and says nothing about the constitutional or legal case (why the powers must be transferred).

And this is an important distinction – because as long as the UK Government holds to power to say no to a transfer, it is entirely within its right to do so. The moral and political case set out so powerfully by the Scottish Government is completely irrelevant if the UK Government is disinclined to go along with it.

What next? What happens when – and it is when, not if – the UK Government formally respond to this request in the negative?

We’ll find out soon, but for the moment we just don’t know. The Scottish Government have said that they would review their options as and when the time comes, but frankly that is an abject failure of responsibility for the simple reason that it is precisely the situation we were in the day after the Brexit vote.

When the UK voted – narrowly – to leave the EU and Scotland overwhelmingly voted to remain, the Scottish Government indicated its desire to implement its manifesto commitment and hold another independence referendum, but the Prime Minister of the day, Theresa May (remember her?), famously said “now is not the time”.

Since then, the Scottish Government appears to have done little other than stamp its feet half-heartedly and repeat its argument that the powers should be transferred – while continuing to do nothing to set out that they must be transferred.

In those three years, many nationals of other EU countries have left out of fear and uncertainty, jobs have been lost, money has been wasted, tension and hate has risen, the UK’s (and Scotland’s) standing within the EU has been diminished, and the case for independence changes because it will now be a case for going back in rather than remaining in.

The Scottish Government’s “wait and see” policy has been a cowardly, dithering disaster, because it has had no material impact on the facts on the ground: which are that we are leaving at the end of this month.

So in this blog post, I want to – admittedly somewhat speculatively – imagine what the Scottish Government should have done since the Brexit referendum and how different things might look today had they taken a stronger path.

I imagine – and it really is an act of imagination rather than prediction, given the uncertainties of the situation and my own lack of expertise in law or constitutional politics – that the story could have looked as follows…

Phase 1: the request

The day after the vote to leave the EU, the Scottish Government should have formally requested the powers to hold a referendum to be transferred. The UK Government would have come back with its “now is not the time” line, of course.

At the same time as the request, though, the Scottish Government should have outlined what it would do in the face of a “no” and emphasise not just the moral “should” but the constitutional “must”. And this is what that path is.

Phase 2: off to court

The moment the formal “now is not the time” pinged into the Scottish Government’s inbox, court proceedings should have commenced. In this, the Scottish Government should have challenged the UK Government’s ruling not with the moral argument but with the constitutional one: setting out not that it is morally right that powers should transfer, but that is a legal error to refuse.

The case here might be along the lines that the reserving of powers over a referendum flies in the face of internationally accepted principles of self-determination, the EU’s principle of subsidiarity, and the constitutional basis of the United Kingdom as a voluntary union entered into by two previously independent kingdoms.

I have no idea how good such a case might be or what the outcome might be, but it is certain that there would be appeals by the losing side that would take the to the UK Supreme Court, and onwards to the European Court of Justice.

This is important for two reasons. Firstly, on a practical level, committing to this court action straight away would leave as much time as possible for the action at the ECJ (which is of course an institution of the European Union). With days left of our EU membership, this option has now gone, but to have started the courts process in June 2016 would mean there would probably still be time for this stage.

And yes, the Scottish Government could have lost at every stage including the ECJ. I stress again I am not an expert on this, so I cannot genuinely say what would have happened. But in a sense it doesn’t really matter, and this leads us to the second reason why the journey through the courts should have begun immediately: it would have been a long, interminably complex, hideously expensive and inordinately time-consuming process.

Which sounds like a very good reason not to do it, but on the other hand to have this action looming over Scottish, UK and European politics would keep the issue to the fore. It would have all the right people talking about it who wouldn’t otherwise be noticing: politicians and party members in the other countries of the UK, the legal system, other EU governments, civic society, experts and think tanks, and more. In short, Scottish independence would spent three years being the “hot topic” of European politics, potentially rivalling the Brexit negotiations, and even distracting from them (undermining the UK’s case).

There would be a number of consequences of this. Firstly, the Scottish Government would have an enormous audience with which to raise the profile internationally of the arguments for Scottish independence; arguably higher than they were in the run-up to the 2014 referendum. Secondly, debates in the rest of the UK would be sparked, with (among others) membership of the Labour and Conservative parties beginning to discuss whether it is actually worth keeping Scotland if the price is huge court bills, political paralysis and a threat to a smooth Brexit. Thirdly, that paralysis would be felt acutely by the UK Government – already weakened by the 2017-2019 parliamentary arithmetic domestically and in the EU negotiations – who would then face a complex legal and constitutional front on which to fight for the very essence and foundation of their supposedly precious union. Fourthly, the EU would be forced to confront its own ambiguous views about internal secession – a tidying up exercise that is long-needed.

What next?

What would be the outcome of all of that? Well, I’ve not got a crystal ball. Who knows what way the courts would have gone? Let’s go with the worst case scenario (and one that is presumably not a certainty) that the arguments all the way up to the ECJ result in defeat for the Scottish Government.

One take on this might be humiliation for the Scottish Government: a few years of political paralysis, accompanied by huge legal costs, with the SNP’s defining policy being comprehensively legally blocked.

While all that might be arguable – and I have some sympathy for the idea that at least we’d know – what is clear from the other side of the debate is that there would be further grave legal questions at stake: effectively the general idea of self-determination would have been declared illegal. And that is something that, internationally, simply does not stand up. This is where other dimensions come into play, and why – alongside the court action – there should be parallel activities being undertaken by the Scottish Government in other arenas.

Phase 3: Parallel activities

While the issue of transferring powers over a referendum weaves its way through Scottish, UK and European courts, the Scottish Government could be raising the issue in other forums.

One might be the United Nations, which upholds in its charter the right of people to self-determination. I don’t know enough about the UN’s structures but do know that – while its members are independent countries – there are many observer missions, lobbying activity, and petitions raised by non-state actors. The Scottish Government could have been spending the last three years exploring what avenues it has here, confronting the UN with the argument that its fundamental right of self-determination is being blocked by courts in Scotland, the UK or the EU (depending on the stage things have reached).

Similarly with the Council of Europe, a separate body to the EU which is responsible for the European Court of Human Rights, arguments about Scotland’s right to a referendum could be presented as a human rights issue.

Accompanying all this could be bilateral lobbying by the Scottish Government of individual member states of the EU to argue for the principle of the right to self-determination. This activity might need to be done selectively, because Spain – for instance – has demonstrated it does not believe a territory has the right to secede if the wider entity does not permit it, but many other governments will be more sympathetic. Other members of the EU have had three years of the UK’s terrible handling of the Brexit negotiations and have had their patience tested and tolerance of the UK’s attitudes weakened.

The time has been ripe for the Scottish Government to be asking these governments firstly whether they want to be seen to be supporting the UK’s denial of a transfer of powers and secondly whether they can assure as smooth a path as possible for the continuation of Scotland’s presence within the EU. I am not at all persuaded there is any evidence of the Scottish Government having done anything with this strategic opportunity.

Beyond governmental and legal activity, there is a wider case for demonstrations, campaigns based on the voices of EU citizens in Scotland, town hall tours of England with a “let them go” idea, and pressure on political parties and media south of the border to openly debate the issue.

It’s likely that such a PR offensive might have positive results. After all, the SNP and Scottish Government have received a lot of warmth and support from south of the border in their continuing opposition to Brexit, and many regard Sturgeon as one of the strongest “remain” voices in the UK. If, at the same time as continuing this admirable work, she had appealed to English progressives to consider all the above issues about referendum powers, such calls would have fallen on receptive ears.

But what if…?

But what if all that had been tried, and it had failed? What if it was all for nothing?

Well, yes. It might all have failed spectacularly. That is not the entirety of my point however. All these steps I’ve imagined aren’t just about seeking a technical victory, however likely or not that might be. They’re about keeping the issue to the fore.

I’m sick of looking back on the last three years and finding no evidence whatsoever of substantive progress having been made by the Scottish Government. I’m gutted that the Scottish Government’s vocal defences of EU citizens’ rights were just warm platitudes. I’m devastated that in just a few days we will be leaving the European Union against our will.

Yes the above course of action might have failed. But I’d rather Scotland went down fighting than meekly sticking to a “wait and see” line. I’d rather we had been known the world over as a country subjected to a democratic injustice.

Yes it could have all been for nothing. But without having tried, we will simply never find out. And who knows… it might just have worked.

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