Denying Scotland a referendum would prove that Britain really is broken
While Britain’s democracy is an antiquated theme park, in Scotland, sovereignty lies with the people, not the Crown
The struggle for Scottish independence is heading to the courts.
Last week, Nicola Sturgeon announced her government will hold a referendum next year, with or without Westminster’s permission.
She also said: “A referendum… if it is to be deliverable, command confidence and achieve its objective, must be lawful.”
The first minister says she will announce her path through this legalistic thicket in the coming weeks. Some claim that it’s impossible – that only Westminster can grant such a vote, and Boris Johnson has been clear that he won’t.
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Others take a different view. As senior law lecturer at Glasgow Caledonian University, Andrew Tickell, said to me: “It’s arguable. It’s not been authoritatively decided by any court. There are strong arguments in favour and strong against.”
The Sunday Times, meanwhile, predicted Sturgeon’s proposed route will amount to a “legal wheeze” – some kind of trickery designed to get around the intention of the Scotland Act 1998, which set up the Scottish parliament but reserved decisions about “the Union of the Kingdoms of Scotland and England” to Westminster.
The implication from Sturgeon’s critics is pretty clear. This isn’t something you’re really allowed to do. If you go ahead, it will be through a dubious sleight of hand. Know your place.
In the UK’s legal setup, that may well be the view judges take. In Britain, Westminster – “the Crown in Parliament” – is sovereign. Any power anyone else has is only lent from there. And where does this absolute sovereignty stem from? They don’t like to talk about this part, because it sounds a bit silly, but, the answer, ultimately, is God: prime ministers rule with permission from the Queen, the Queen was crowned by the Archbishop of Canterbury, on behalf of the deity of the Abrahamic faiths.
Seen this way, the establishment of the Scottish and Welsh parliaments was an act of generosity, and if they get too uppity, they are committing blasphemy.
The central pillar of Britain’s unwritten constitution comes from a time when leeches and bloodletting were common cures
The problem for Westminster is that Scotland’s political culture has long nurtured a different tradition. In Edinburgh in 1989, 58 of Scotland’s then 72 MPs – including Gordon Brown, Alistair Darling and Menzies Campbell – gathered along with trade union, church and other civil society leaders to sign the Claim of Right, declaring: “We, gathered as the Scottish Constitutional Convention, do hereby acknowledge the sovereign right of the Scottish people to determine the form of Government best suited to their needs.”
Their document was a clear invocation of the 1689 Claim of Right Act, which limited the power of the Scottish Crown over the Scottish parliament, and which itself echoed a tradition stretching back to the Declaration of Arbroath, and perhaps, to notions of tanistry, whereby Celtic kings and chieftains were appointed not by God, but by and from among councils of powerful men.
While these historic declarations and traditions certainly didn’t amount to democracy, they leave a cultural imprint. There is a strong sense in Scotland that it is not the Crown in Parliament that is sovereign, but the people.
When MSPs are sworn in after each election, they are legally required to pledge loyalty to the Queen. But since the foundation of the Scottish parliament, a tradition has emerged whereby many preface their affirmation with a statement about the sovereignty of the people of Scotland. After the 2021 election, Sturgeon herself pledged: “Loyalty to the people of Scotland, in line with the Scottish constitutional tradition of the sovereignty of the people.”
This democratic tradition has no legal force in the British system. The central pillar of Britain’s unwritten constitution – the sovereignty of the Crown in Parliament – comes from a time when doctors thought the body was made up of four humors and controlled by four elements, when leeches and bloodletting were common cures, when people thought the Earth was the centre of the universe and that there was an all-powerful God who interfered in matters of men, who appointed kings and tsars to govern different patches of the planet.
For those of us who aren’t religious zealots, of course, this all sounds ridiculous. But that’s because Britain has a silly theme park for a state, whose parliament is opened each year by a gaudy historical re-enactment society, and whose people are granted democratic rights from above, rather than owning them themselves.
Of course, that doesn’t stop Britain’s leaders from using the rhetoric of democratic legitimacy.
At the 2019 UK general election, the Conservative Party won 43.6% of the vote. Speaking to supporters early the next morning, Boris Johnson was jubilant. “With this mandate,” he asked his stans, “we will, at last, be able to do what?”
“Get Brexit done!” the fandom squealed. “You were paying attention!” Johnson replied.
“This election means that getting Brexit done is now the irrefutable, irresistible, unarguable decision of the British people… I think we've put an end to all those miserable threats of a second referendum,” the prime minister continued.
In reality, more than 52% of voters had backed parties that promised a second Brexit referendum. But in a parliamentary democracy, that doesn’t matter. 56% of MPs were elected on a manifesto opposing one. And so we got the hard Brexit that Johnson had pledged.
Sixteen months later was the Scottish election, where both the SNP and the Greens increased their number of seats. 56% of the MSPs elected had pledged to support a second independence referendum. More than 50% of the electorate used their party ‘list’ votes to back parties that promised such a vote. Most Scots agree that the Scottish government has a mandate to hold an independence referendum.
British courts may well find that the people of Scotland don’t have the right to decide our constitutional future. But if they do, then they will only confirm what we already know: that Britain’s ridiculous, neo-feudal political system is totally broken. And that the sooner we can escape it, the better.
To echo the prime minister, it is “now the irrefutable, irresistible, unarguable decision” of the Scottish people that we should again vote on our constitutional future.
We shouldn’t be surprised that the Conservatives refuse to allow such a vote to go ahead, despite this basic democratic fact. But if Labour and the Liberal Democrats no longer acknowledge, as their MPs declared in 1989, “the sovereign right of the Scottish people to determine the form of government best suited to their needs”, then they should say so, and be honest that they believe in a world of fairy tales, Gods and kings.
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