Monday 13 March 2017

Round 2.0

Nicola Sturgeon announced this morning that, in the absence of evidence of the United Kingdom government making concessions to accommodate the devolved nations in their approach to Brexit negotiations, she intends to hold a second independence referendum between Autumn 2018 and Spring 2019. She has stated she will seek that the UK Parliament should make another section 30 Order, transferring competence to allow the Scottish Parliament to legislate for such a referendum, on essentially the same basis as happened in 2013 ahead of the one in September 2014.

The Scottish Parliament does not, on the face of it, have the legislative competence to hold a referendum. Legislation that "relates to" the "Union of the Kingdoms of Scotland and England" is "not law". The effect of this is that the Scottish Parliament cannot, among other things, use the full electoral register, have a referendum overseen and managed by the Electoral Commission, or authorise or regulate donations and expenditure to facilitate the holding of such a poll.

If a poll took place against that backdrop, it would be very similar to the "non-referendum popular consultation" organised by the Catalan Government in November 2014. Several officials of the Catalan Government have since been brought before the criminal courts on charges of disobeying several constitutional court orders and misusing public funds. That referendum had low turnout, boycotted as it was by the anti-secession side at the urging of, among others, the Partido Popular and the Spanish Government led by it. The result was therefore ignored by the Spanish Government, on putatively constitutional grounds.

Whether Nicola Sturgeon would be prepared to defy the UK Government, and potentially the UK Supreme Court, and hold a referendum or an unofficial poll anyway remains to be seen. In other countries, like Canada, there is not an explicit prohibition on the holding of secession referendums by sub-state governments. Quebec, for example, can unilaterally hold a referendum, but the result only commits the Canadian government to "enter into negotiations to respond to the desire" of the people to secede. This clearly falls far short of a legal obligation to give effect to secession, but allows the people to have their say.

There are two aspects I wish briefly to reflect-on today. One of them is political, and the other is constitutional.

She has called this too soon

Firstly, I think Nicola Sturgeon has made a mistake today. She was half right when she said a referendum should not happen until the terms of Brexit are known but before Scotland is prevented from choosing its own path. The problem here is one of basic chronology. If you hold a referendum in Autumn 2018 or Spring 2019, there simply is not enough time to negotiate the terms of secession from the UK before a Hard Brexit takes effect. Short of unanimous agreement by the Member States, we Scotland will be "dragged out of the EU against our will". There is therefore nothing to be gained, in my view from holding a referendum this soon and potentially it is more likely to create unnecessary uncertainty by mixing the two processes. It would be far smarter to have waited until the Brexit deal actually takes effect, since it will likely take effect before independence regardless before returning to this question at a point when potential accession talks would be more feasible. I think she is more likely to lose a referendum that takes place sooner and as the Quebec experience shows, this really would kill the question for a generation to lose second time around.

Section 30 is just asking for a fight

The second point is that the constitutional position, which insists the Scottish Parliament must get consent to hold a referendum, is itself a flawed one. It sets two governments up against one another, and suggests that, on a more fundamental democratic level, this isn't a decision that the Scottish people are entitled to take for themselves. This reflects a particularly restrictive conception of devolution and of the union itself, and essentially says that the powers of self-government of the Scottish people are at the generous forbearance of Westminster and not ones that exist as of right. It is my belief, and I have argued in my (as of yet, not complete) doctoral thesis, that the UK should have adopted a different approach, granting general competence in this area to the Scottish Parliament, but subjecting it to conditions. We should be borrowing from other ways this issue has been dealt with. This might include minimum waiting periods between referendums (as in the Northern Ireland Act) and higher or discretionary thresholds required depending on the nature of the question asked and the frequency of referendums (borrowing in part from Canada's Clarity Act).

The effect of creating a possible situation in which referendums are denied, or held unconstitutionally, degrades the democratic process. It undermines the ability of political institutions to ensure that referendums are properly regulated and monitored, and it generates a gap between the perceived political legitimacy of processes in the eyes of the people and the constitutional legality of processes. It is also a massive boon to sub-state nationalist movements, which typically see a surge and solidification of support when governmental and judicial institutions are seen to act intransigently towards them. At least if you permanently regulate the terms on which a referendum may be held, that removes partisan vetoes from the equation. It says that the Scottish Parliament must ultimately decide for itself what is the responsible course of action.

We must also learn to separate the holding of referendums from the implementation of their results. The EU referendum shows why this is important, but so does the Reference Re Secession of Quebec. In the absence of governmental consensus, the proper forum to resolve the differences of opinion in relation to secession should be in how the UK responds to the vote to secede and not a quarrel about whether or not the referendum should be allowed to happen. As Stephen Tierney and others have said in the past, one of the biggest strengths of the 2014 Scottish referendum was that it debated substance not process. If our second referendum is to be more like the Catalan one, and less like either the first Scottish one, or the second Quebec one that the Canadian government went out of its way not to prevent happening (despite it arguably being, then, unconstitutional) then that is going to be much less healthy for reconciling the Scottish people after the votes are counted.

No one should want that.

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