THERE is a fundamental flaw in the SNP’s Supreme Court submission on the independence referendum. As an argument that the people of Scotland have the right of self-determination and that this right is inalienable, the intervention works well. The problem is that two different understandings of the right of self-determination are presented, reflecting the two different purposes of the Scottish Government’s referendum proposal.

For the purpose of persuading the court of the lawfulness of the proposal, the right of self-determination is the opportunity to express a preference as to the constitutional status of the nation and the form of government considered best suited to the needs, priorities and aspirations of the people.

For the purpose of persuading the people of Scotland that our right of self-determination is being honoured, that right is – quite correctly – described as a kind of meta-right from which flows all other democratic rights.

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The court is told that the proposed referendum is no more than a test of public opinion. That it can have no effect and that it therefore cannot impinge on any reserved matter.

The people of Scotland are told that the proposed referendum is our opportunity to decide. That it is our chance to make a choice.

The SNP’s intervention slips and slithers greasily between these two concepts throughout. The crucial question of execution is never addressed other than to explicitly exclude execution from the concept of self-determination provided for the court’s consumption. The ideas of expressing and exercising this inalienable right are confused and conflated as a matter of expediency. The proposed referendum is explicitly stated

to be non-self-executing. Furthermore, it is stated at various points that execution is not a matter for the people of Scotland alone but that it requires the consent and cooperation of the British state. This directly contradicts the concept of self-determination, derived from international law, which holds that the right to self-determination of a people is exercised by that people and that people alone.

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I maintain that the demands of democracy are not satisfied by a procedure in which the people express a preference. I maintain that the demands of democracy require absolutely that the procedure be an expression of the people’s will. I further maintain that the will of the people thus expressed is determinative. It cannot be otherwise given that there is no political authority above the people and that all legitimate political authority derives from the people. The exercise by a people of their right of self-determination must be self-executing or it is not the exercise of that right. It is the other thing ─ the ineffectual expression of a preference which may or may not be realised depending on the amenability of some agency other than the people alone.

The SNP’s arguments regarding the internationally recognised concept of self-determination are powerful. It’s arguments regarding the applicability of that concept to the people of Scotland and prevailing circumstances are unanswerable. But the intervention as a whole lacks the courage of the conviction which the best of it expresses. The intervention constantly retreats from the necessary conclusions of its own arguments. These arguments cannot be discounted or disregarded or contradicted by the UK Supreme Court without flouting principles of democracy firmly established in international laws and conventions. But the court is offered a way out by going along with the idea that the people being permitted a chance to express a preference is enough.

It is not enough for me.

The legal maxim ubi jus ibi remedium is generally translated as meaning “where there is a right, there is a remedy”. The SNP’s intervention establishes the right, but in order to make the Scottish Government’s proposals less unpalatable to the English doctrine of parliamentary sovereignty it forsakes the remedy.

I demand both the right and the remedy, as without the latter the former is no more than a cosmetic device intended to give the appearance of democracy.

Peter A Bell
via email