Nonsensical conclusions

Of course, being a creature of the devolved Scottish Parliament, the Constitution, Europe, External Affairs and Culture Committee was bound to avoid the most obvious conclusion. If no legal route to a second independence referendum exists, the route would have to be illegal. Illegal, that is, in terms of local (British) law. Any route to independence must traverse the space between the strictures of local law and the principles of international law. But this committee couldn’t say this, even if it was recognised by every member. They had to pander to the colonial power. To do otherwise would be to invite ferocious attacks from both the Scottish Government and the UK Government. By telling the truth, the committee would attract condemnation from both sides of the constitutional issue. Being honest about Scotland’s constitutional predicament would require extraordinary courage such as is seldom, if ever, associated with professional politicians.

The committee’s conclusions are as nonsensical as they were always bound to be. The National lists the options identified.

• An amendment to the Scotland Act that would give to the Scottish Parliament powers to legislate directly for a referendum “if certain criteria are met (such as the referendum provisions in St Kitts and Nevis or in Liechtenstein) or that confers such a power more broadly (such as in the Turks and Caicos Islands)”.

• An amendment to the Scotland Act that would “place a duty and/or confer a discretionary power to hold a referendum on the UK Government (or to transfer such a power to the Scottish Parliament) if certain criteria are met (such as the referendum provisions contained in the Northern Ireland Act or in the constitution of Ethiopia)”.

• A binding political agreement between the Scottish and UK Governments as to what measures should determine the clear will of the people of Scotland to be asked the question of Scottish independence. Suggested measures included votes in devolved and/or UK elections, votes in the devolved legislature, opinion polls, or other forms of civic engagement such as citizens’ assemblies.

The first two option explicitly refer to transferred powers. That is to say, the competence(s) necessary to legislate for a referendum on independence transferred from Westminster to Holyrood. What makes this nonsensical is the fact that Westminster cannot transfer powers which supersede its own powers. In a proper constitutional referendum, the sovereign people of Scotland would have the final say. But the doctrine of parliamentary sovereignty means that Westminster must always have the final say.

The only power that can be transferred to Holyrood is the power to hold a referendum that has no legal or constitutional effect. A referendum which is strictly consultative, with ultimate disposal being in the hands of the British parliament. A referendum which is non-self-executing, meaning nothing ensues from it. It doesn’t do anything.

The third option is also nonsensical for the same reason, although it is less explicit about transferred powers. The UK Government wouldn’t and couldn’t enter into a “binding political agreement” which involved the Scottish Parliament obtaining powers which couldn’t be overruled by Westminster.

The third option also makes clear the irresolvable conflict between the principle of popular sovereignty and the idea of transferred powers as a legal route to independence by way of a proper constitutional referendum. As explained above, transferred powers can never be such as would permit a proper constitutional referendum. But if the people of Scotland are sovereign, why is the agreement of the British state required? If the “clear will of the people of Scotland” is to have a constitutional referendum, and if the people are sovereign, there is no role for Westminster in the process. If the people of Scotland are sovereign, their will must be enacted regardless of the preferences of any external agent.

There is no route to a proper constitutional referendum and thence to independence, through the legal and constitutional framework which has evolved under the imperative to preserve the Union. If we are to restore Scotland’s independence, we will require political actors unafraid to step outside that framework and smart enough to do so while remaining strictly within the bounds of international law and the fundamental principles of democracy.

The politicians we have are lacking on both counts. They are too fearful to openly recognise the true nature of Scotland’s constitutional predicament. And if any of them are as clever as they would need to be, they are doing a damned good job of keeping that light under a bushel.

There is no route to a proper constitutional referendum and thence to independence, that does not pass through a point at which there is confrontation—almost certainly acrimonious—with the British state. None of Scotland’s current political caste seems fit for the job. Those that might have the wit, lack the will. Those that might have the will, invariably lack the wit. This unflattering assessment is amply borne out by the report of the Constitution, Europe, External Affairs and Culture Committee.