The UK Supreme Court – constitutional and independence implications

In the light of the recent UK Supreme Court judgment (I spell it judgment against my instincts towards judgement because I believe this is legal practice) and certain remarks about what the Scottish Parliament can and cannot do - which some have interpreted as a shot across the SNP Government’s bows in relation to the referendum - a number of correspondents have asked me if I plan to comment. Firstly, this is properly Peat Worrier’s blog territory, and secondly, I have said pretty much what I wanted to say about the UK Supreme Court in the following blogs -

The UK Supreme Court and the Scottish legal system

The UK Supreme Court–FMQs 16th June 2011 – Holyrood

The UK Supreme Court, the judges–and the Union’s future

The UK Supreme Court–the debate polarises and takes on new dimensions

 

There are very fundamental questions raised about constitutional issues and the rule of law arising from the very existence of the UK Supreme Court. I have no legal qualifications or training – I am simply a citizen under the law. But I believe that the setting up of the UK Supreme Court was a political act, and that law and legal systems and processes exist within a political concept and a state – in this case The United Kingdom of Great Britain and Northern Ireland - but also within concepts of the rule of law that transcend the state, closely allied to concepts of justice that also transcend the state.

I have a simple, and some might say, a simplistic view of the Union. It was a contract, entered into under bribery and duress, but entered into nonetheless, that united two kingdoms under a single sovereign state. Each signatory to that agreement and subsequent relevant treaties and amendments surrendered their individual sovereignty as formerly independent nation states to the new state. It was, like any contract, intended to be to the mutual benefit of those who entered into it.

The question arises inevitably, as in any contract, how does one party terminate that contract if it no longer serves their interests? Since it cannot be argued that any treaty or contract is permanent, there must be a mechanism and a process, especially in a democracy in the 21st century.

It cannot be argued that all parties to the contract must have unanimity and consensus before one party has a right to withdraw. That would confer a right of veto on withdrawal.

The normal mechanism for withdrawal from a contract is to serve notice of intention to withdraw, discuss the terms of the withdrawal, and observe any notice periods and cancellation obligations that were part of the original contractual document, or were incurred by subsequent agreed amendments. Parallels can – and have been - drawn with ending an employment contract, a commercial contract or a contract of marriage, the latter to the point of tedium. However, when considering withdrawal from a state or empire, such parallels are not entirely adequate, and in any case, there are more appropriate real life models to consider, namely that of countries achieving their independence.

WITHDRAWAL FROM A STATE OR EMPIRE

The British Empire can draw on a long history of events, in the progressive loss of that empire, that demonstrate very clearly what the options have been, and how they have been exercised.

Without attempting to catalogue that particular history, the options that are evident from a wider history, as I see them, are as follow -

1. Negotiate a peaceful exit under the terms of the treaties and obligations that exist.

2. Unilaterally withdraw, but negotiate on the obligations.

3.  Unilaterally withdraw (unilateral declaration of independence. UDI) and wait to see what the other party does, i.e. secede. (When this is successful, it is called a velvet revolution.)

4. Unilaterally withdraw and repudiate all obligations as null and void.

Option One is the clear preferred option of the SNP. They are committed to achieving independence through democratic means.

If negotiation fails, or any of the other three options are resisted by the existing state as constituted, the possibility exists of at least civil resistance and disobedience, or in the extreme case, violence, which may manifest itself as repressive violence by the larger state against the country attempting to achieve independence, or revolutionary violence by the smaller entity against the state.

The British State can look at both relatively peaceful and amicable examples, and also at notoriously violent examples. The island of Ireland offers many salutary lessons.

WHERE WE ARE NOW

A significant number of the Scottish electorate now wish to withdraw from the United Kingdom.

A significant number wish to remain in the UK.

An appreciable number have not yet made up their minds.

These numbers can only be estimated by polling methods, and can only be ultimately determined by a referendum. The Scottish electorate has twice elected a political party to govern them – the second time with a massive and decisive majority - called The Scottish National Party, one that is committed to the independence of Scotland as a nation state.

The Scottish electorate, in a general election a year earlier, elected a decisive majority of Labour MPS, a party that is committed to maintaining the Union, to govern them in the UK Parliament. (The UK electorate as a whole cast their votes in a manner that was not as clean cut or decisive, and produced a Coalition. Any analysis of the outcome of the 2010 General election revealed a deeply divided nation, with English voters favouring the Conservative and LibDem parties, two parties that were reduced to  a rump in Scotland.)

Just what the Scottish voters meant by their massive vote for a nationalist party is the subject of partisan interpretation and partisan debate by both sides, but what is accepted, I believe by all parties (and by me) is that not all Scots who voted for the SNP were voting for independence. But it also certain that all of the Scots who did not vote for the SNP in the General election, and voted for Labour, were  not necessarily against independence.

The only way to settle the question of what Scottish voters want is a referendum.

Bluntly, what English, Welsh and Northern Irish voters want Scotland to do is entirely irrelevant, whether they favour Scottish independence or are hostile to it – only the wishes of the Scottish people can and must be considered, and only Scottish voters may vote in such a referendum.

THE TIMING OF THE REFERENDUM

The world economy, the European economy, the UK economy and the Scottish economy are facing the greatest threat for generations. Two arguments can be advanced – one, that right now is the wrong time to call a referendum because the Government of Scotland must concentrate on facing the economic challenge, and two, that the referendum must be held as soon as possible, to secure control of Scottish resources and permit more effective action.

A third argument can be advanced in favour a calling the referendum now, namely that the uncertainty is damaging both Scotland’s and the UK’s economic response to the crisis, and it has to be got out of the way.

The First Minister of Scotland made it clear in the party manifesto and in every subsequent statement, that the referendum will be called in the second half of this Scottish Parliamentary term.

From a realpolitik standpoint, both nationalist and unionist camps have a vested interest in only calling a referendum when opinion polls suggest the time may be opportune for their desired outcome. Anyone who claims that the parties are not motivated by such a considerations is ether disingenuous or a damned fool.

The role of the pollsters is therefore crucial.

One hypothetical situation will suffice to illustrate this – if a series of reputable polls in the next week showed that there was a massive shift among the electorate towards an independent Scotland, the Unionist currently calling for an immediate referendum would suddenly find an enthusiasm for delay and obfuscation. If the polling situation were reversed, the First Minister need do nothing, except wait and hope that they  would shift again before the second half of his term.

DANGERS

At the very least, a substantial minority of Scottish voters are unhappy about their membership of the UK and want out, and a significant minority are undecided. Only a minority of Scots therefore profess themselves wholly satisfied with the status quo. No state, however constituted, can ignore such a situation, especially when those who want out are consumed by passionate conviction, are well organised, and constitute the devolved government of that state.

At a time like this, the people need clear-eyed democrats, both in politics, in the law, and in the media, committed to the rule of law, but also to internationally accepted principles of human rights, free speech and the right to self-determination of free people.

Failure to understand these aspirations, especially in a time of deep economic uncertainty, risks serious consequences, ones that could be profoundly damaging to the people of these islands. Sinister forces lurk on the margins of such situations, waiting their opportunity to de-stabilise the the situation, and exploit and profit from it. Once the levers of power slip into these hands, they cannot be prised off by rational argument and democratic processes.

POSTSCRIPT
Now read this in today's Telegraph, and tell me I have no need to worry.

Alex Salmond faces Commons grilling over Scottish separation