Union handcuffs can’t stop Scots from reshaping this country

Jeremy Hunt’s Autumn Statement of huge cuts and tax rises saw Labour commit to agreeing to the fiction of the £55 billion “black hole” in public finances and the future Tory fiscal straightjacket.

Such is the lack of difference between Labour and Tories on the big questions. On another huge area there are commonalities between the two – namely the right of Scotland to self-determination, which they both oppose.

This stance will come to a head tomorrow if, as many think likely, the UK Supreme Court throws out rules against Scotland as it seeks the right to hold an independence referendum without agreement from Westminster.

This potentially momentous judgement will have implications not just for Scotland and independence, but for the nature of the Union and the UK.

There are several options open to the Supreme Court. It could judge in the Scottish Government’s favour. It could assess that it is too early in the legislative process of an independence bill. Or, as is more probable, it could take a literal interpretation of the Scotland Act 1998 and the powers of what passes for the UK constitution being “reserved” to Westminster.

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If the Supreme Court says no to Scotland, it will have fundamental consequences for the nature of power and legitimacy in the Union and how Westminster is perceived in Scotland. As Ciaran Martin, lead negotiator for the UK Government in 2014, said last year it will change the nature of the Union from one based on “consent” to “the rule of law”.

He commented on the eve of this new decision: “Whatever happens, don’t blame the judges. This isn’t the US. The Supreme Court is not politicised and we shouldn’t go down that road. The fact is that independence is always and everywhere a political issue, not a legal one.”

Matt Qvortrup, author of the just published 8NOV I Want To Break Free: A Practical Guide To Making A New Country, said: “The consequences of a rejection of the SNP’s case could have several consequences for the UK. It will galvanise support for independence. Having an unrepresentative group of mostly English judges rejecting the will of a majority of the Scottish voters is a godsend for the SNP.”

The official story of the UK is it is a Union of equal parts. The language of 2014 and subsequently from pro-Union circles has been that the UK is “the most successful multi-national Union in the history of humanity” which is a bit of a claim!

Underneath this, for all its faults, the UK until now has shown elements of adaptability and flexibility, making it up constitutionally as we go along. The downside is that there is no such thing as any fundamental rights in the UK; all of our rights as citizens are solely based on Acts of Parliament which can be repealed at the whim of a government.

This has meant that Scotland eventually got a devolved Parliament when we emphatically wanted one (leaving aside 1979). And we got an independence referendum in 2014 when there was a mandate. This version of the UK state will be completely changed by a Supreme Court “No” verdict.

Once upon a time the Union was presented as a voluntary partnership. Harold Macmillan said in 1954 in Edinburgh during an era of Tory popularity in Scotland: “For generation after generation, unity of purpose has been achieved by the Union of our two great kingdoms and of the principality of Wales. But it must be the union of the wedding ring not the handcuff.”

We now have a situation where Anas Sarwar and Douglas Ross cannot say when asked what legal and democratic route they think is open for Scotland to express its self-determination and gain independence. They cannot explicitly say that the logic of their position is that there is none.

Ciaran Martin takes the view that says: “Either the UK body politic accepts Scotland has the right to leave the UK, or it doesn’t. It says it does. But the way the UK constitution works means that the way self-determination is exercised has to have the agreement of the UK Government.”

This leads to people like the Thatcherite Tory Bruges Group saying “the UK is not a union”, ignoring the name of the party they are associated with. Alister Jack, still Scottish Secretary of State for Scotland before his elevation into Lord Jack of Dumfries, has stated that talking of the UK as “four nations” is some kind of separatist scheme.

Decreeing that the nature of the Union can be altered unilaterally without express wishes of the Scottish and Welsh governments has huge consequences. It also has ramifications for Northern Ireland, the endurance of the Good Friday Agreement and any future border poll on the issue of a united Ireland.

It totally undermines the pro-Union argument in Scotland and across the UK. It brings centre stage a disrespect of Scotland and the denial of its democratic right to decide its future, while trying to pretend that nothing has changed and that the Union remains a voluntary partnership.

This makes the argument for Scottish independence and the cause of democracy here synonymous. This unites two powerful rallying calls to the cause of self-government in a way which has similarities to how devolution became “the settled will of the Scottish people” in 1997.

Qvortrup stressed that if the Supreme Court says no, “in the long run, you are not able to run a country if you deny the right of a specific group to choose their path forward. While the decision is legally sound, it probably spells the death knell for the Union as we know it.”

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At the same time the convergence of these two principles means that Scottish opinion cannot just be sanguine about the state of democracy here. We cannot reduce ourselves to a comparison between Holyrood and Westminster and judge ourselves superior.

Last week, Professor James Mitchell of Edinburgh University surveyed the state of Scottish democracy in an Electoral Reform Society Scotland lecture and observed that “the executive branch has grown ever more powerful without compensating democratic oversight” with the rise of an “insider class” blurring party, state and lobbyists, and the atrophying of local government.

Scotland’s right to self-determination practically is based on how we collectively see Scotland as a nation, political community and democracy, and how we articulate and live this.

There is substantial support for Scotland’s right to decide its own future and a majority for the Scottish Government having a 2021 mandate, but not for now a majority for a referendum on the current timetable suggested of October 2023.

If through agitation and pressure those three factors come into alignment – a democratic triptych, if you like – then Scotland’s moral right to a referendum will become all the more powerful and convincing. But in this a referendum is not an end in itself; rather it is a means to an end. Process and good process matters, but so too does understanding the difference between means and ends.

The ultimate goal of an independent Scotland can be aided by focusing on a wider politics than how a referendum happens, the judgement of the Supreme Court and nature of the UK. Rather all of us have to demand that we live in a Scotland which practices everyday democracy and genuine self-government, where power is not hoarded in Holyrood at the expense of the rest of Scotland from the Shetlands to Stranraer.

The nature of power, democracy and legitimacy in the UK will be shaped this week with huge consequences for Scotland and the future of the Union. We are a long way from Macmillan’s unionidea of “the wedding ring not the handcuff”.

But we here have the power, democracy and legitimacy to shape much of the democratic life of our country – and to do so without Westminster’s consent and approval. Remember ultimately we the people of Scotland collectively have the power – whatever the UK Supreme Court says.