Roadmap or not, the Scots need permission to go independent

It has become a cliche in British politics to say that Scotland will leave the United Kingdom sometime soon. Such cliches are usually a sign of lazy thinking, but cynics are right to warn that our country is at risk of breaking up. It has been for several years.

Over the weekend the Scottish National Party (SNP) set out its plan to make North Britain independent again. I’d assumed that the party’s attempts to hold a referendum would end with a simple refusal from Westminster, but the nats have other ideas.

For one thing, an activist is pursuing a legal case to establish that the Scottish parliament in Holyrood has the right to legislate for a referendum without the UK government’s say so. A judgement is expected soon.

In the meantime the SNP has set out its ‘roadmap’, in the jargon, to force Westminster’s hand. If the scheduled Scottish parliamentary elections in May return a pro-referendum majority, as is expected, the presumed Scottish government will want to legislate for another public independence vote.

As with the previous referendum a Section 30 order will be requested from Westminster. If granted this would enable Scotland’s parliament to legislate on a referendum.

As the SNP contends, “in such circumstances there could be no moral or democratic justification for denying that request. If the UK government were to adopt such a position its position would be unsustainable both at home and abroad.”

This, the nats say, would leave Westminster with three choices. First, it could agree that Scotland has the power to legislate. Second, it could authorise the Section 30 order. Or third, it could “take legal action to dispute the legal basis of the referendum and seek to block the will of the Scottish people in the courts.”

However, even assuming that this does reflect the will of the Scottish people, which polling seems to suggest, I’m sceptical that these are Westminster’s only options. To my eye there is a fourth: refuse permission for another referendum, and wait.

My reasoning is that Holyrood, like any devolved power, cannot devolve powers to itself without permission from central government. This is demonstrated by the fact that the Scottish government would apply for a Section 30 order in the first place. Ultimately it is the British parliament that is sovereign, leaving the decision in the hands of any government backed by a House of Commons majority.

If it refused to authorise a referendum, the British government would oblige the nats to make the next move. One option, seemingly favoured by the more radical faction, is to hold a referendum anyway. This would risk being seen as illegitimate “at home and abroad”, especially because SNP leader Nicola Sturgeon has rule such a vote out previously.

The other option, probably more attractive to moderates, is to fight the matter in the courts. Stephen Daisley, a Scottish journalist of unionist leanings, has speculated that the existing activist case might go to the British Supreme Court in London. Nationalist lawyers might find other causes for similar complaint.

Maybe such a case would be successful. But the path outlined above is a deal bumpier than the original 11-step roadmap suggests. The experience of Catalonia in Spain points to a broader rule: in modern democracies secession can only take place with the consent of a central government, especially when voters are narrowly divided.

Long-term something more will probably be needed. Former prime minister Gordon Brown is only the latest to join calls for a new constitutional settlement. At the end of last year Labour leader Keir Starmer announced a commission to discuss the topic with particular reference to Scotland.

Boris Johnson will also go north to make a unionist appeal to Scots this week. Even somebody as irresponsible as the current prime minister must have noticed that Scotland’s position poses an existential threat to the UK. But he still has time to deal with it.

Jimmy Nicholls
Jimmy Nicholls
Writes somewhat about British politics and associated matters. Contact jimmy@rightdishonourable.com

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