No, First Minister

Undemocratic? Refusing independence referendums is what most democracies around the world do.

This is the text of my Scottish Daily Mail column, which appeared on Monday, July 4, 2022.

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There is something that needs to be knocked on the head right now.

It keeps being written and said, with no accompanying evidence, as though it were a revealed Truth. In fact, it is a mere statement of preference, a contentious one at that, and, I think, ultimately unsupportable.

I am talking about the routine assertion that democracy demands the UK Parliament bend to Nicola Sturgeon's will and permit a binding referendum on independence. Sometimes it takes the accusatory form of charging the UK with being something less than a democracy if Westminster refuses to surrender.

The First Minister is chief peddler of this constitutional blancmange. Speaking at Holyrood last week, she claimed she held 'a clear, democratic mandate' for a second referendum and insisted she would not 'allow Scottish democracy to be a prisoner of Boris Johnson or any Prime Minister'.

The UK Government was 'refusing to respect Scottish democracy' and Labour, in failing to back her rebel referendum, had 'set its face so firmly against that fundamental concept of democracy'. Sturgeon, who has form for using inflammatory language on the constitution, warned that 'independence cannot be suppressed'.

To call this nonsense would be an insult to nonsense. For one, there is no mandate for a referendum. The constitution is reserved. Last year's election was to a devolved parliament which has no competency in reserved matters. The SNP could win all 129 Holyrood seats and it still wouldn't have a mandate.

It is impossible to obtain a mandate in one parliament for the exercise of powers held by another parliament. Otherwise, the SNP could secure a mandate for removing Trident from the Clyde by sticking said policy in their next Scottish Parliament manifesto.

That's an argument about process. The argument Sturgeon wants to have is about democratic legitimacy because she figures it will be easier to win in the court of public opinion than in the Supreme Court. Perhaps it will be but that doesn't make her assertions true. There is nothing undemocratic — nothing whatsoever — about refusing separatists an opportunity to dismantle the state.

It would be wholly consistent with parliamentary democracy for the UK Parliament to refuse another referendum in perpetuity. Even if polls consistently indicated popular support for one. Even if the SNP won every Holyrood election from now till Judgement Day. That is how our system works. Sovereignty does not reside with the people, as it does under republican government, but with ‘the Crown-In-Parliament under God’.

There are those who would cavil that this is a description, and an old-fashioned one at that, of the English constitution and that self-determination is part of a separate, Scottish constitutional traditional. To which I say: Grand. Go enforce it.

The SNP and its echo chamber in the media, academia and civil society keep telling us it would be an affront to democracy for Westminster to rule out a referendum or decline to recognise the one Sturgeon says she'll hold next year.

They insinuate that doing so would put the UK at odds with the rest of the democratic world, that the principle of self-determination anoints their efforts as just and righteous. That, in refusing them, the UK would somehow not be a democracy.

This a complete rewriting of the political and constitutional status quo around the world and, though the brazenness is almost admirable, the repetition of wishful thinking does not transform it into chiselled fact.  

Across the globe, obstructing secession is the norm. In the wake of the American Civil War, the US Supreme Court ruled that when a state joined the Union, it ‘entered into an indissoluble relation’ in which there was ‘no place for reconsideration, or revocation, except through revolution, or through consent of the states’.

There are secessionist parties and movements in Texas, California and Alaska, for example, but even if they came to power their only options for achieving independence would be convincing the other states to allow it or by mounting — and, more importantly, winning — an insurrection.

Is the United States not a democracy?

The Grundgesetz, or Basic Law of Germany, does not explicitly prohibit secession but that is how the courts have interpreted its provisions on sovereignty and the powers of the states.

One in three Bavarians wants independence from the Federal Republic but when their right to hold a secession referendum came before the Constitutional Court in 2017, the judges ruled that ‘there is no room under the constitution for individual states to attempt to secede. This violates the constitutional order.’

Is Germany not a democracy?

In recent times, the most infamous example of a regional government flouting constitutional law to make a dash for the exit was Catalonia. The Spanish autonomous community, where nationalists control the legislature, pushed ahead with a wildcat referendum.

This was despite Spain’s constitution forbidding separatism as contrary to ‘the indissoluble unity of the Spanish nation, the common and indivisible country of all Spaniards’. A ruling from the Spanish Constitutional Court interdicting the referendum bill was ignored by Barcelona and local police failed to enforce a Catalan court order to stop the illegal vote.

In the event, Madrid sent in the Guardia Civil, Spain’s formidable gendarmerie, and the referendum was partially disrupted. The GC doesn’t go in for all that modern policing business — it makes The Sweeney look like Midsomer Murders — and there were ugly scenes at polling stations. Anti-independence voters boycotted the poll, which made the 92 per cent Yes vote look absurd, but what mattered most was Madrid’s determination to stand firm. The law was on their side, after all.

Is Spain not a democracy?

Although it has largely been memory-holed by Scottish and other pro-EU nationalists, Madrid’s position was endorsed by the European Commission, which declared the Catalan vote ‘not legal’ and urged ‘unity and stability, not divisiveness and fragmentation’.

Is the European Union not a democracy? (If so, why is the SNP so keen to sign up an independent Scotland for membership?)

The US, Germany and Spain are not outliers. There are provisions for political or territorial indivisibility or inviolability in the constitutions of Bulgaria, Croatia, Cyprus, Czechia, Estonia, Finland, Italy, Luxembourg, Mexico, Norway, Romania, Slovakia and Ukraine. The Lithuanian constitution says the nation’s territory ‘shall be integral and shall not be divided into any state-like formations’.

The Commonwealth of Australia Constitution Act describes the country as ‘one indissoluble Federal Commonwealth’ while Brazil is constitutionally ‘formed by the indissoluble union of states and counties’.

Section 41 of South Africa’s constitution, typically held up by political scientists and legal academics as the very model of a modern national charter, requires ‘all spheres of government and all organs of state’ to ‘preserve the peace, national unity and the indivisibility of the Republic’.

In fact, a 2019 study of the 193 internationally recognised nation-states found that 82 per cent had an indivisibility clause in their constitution, either prohibiting or hindering secession. Just six countries explicitly permit political or territorial units to become independent.

To maintain the assertion that forbidding or hampering an independence referendum is undemocratic, you have to adopt the position that there are only six democracies in the world.

Far from being too obstructive of secession, the UK pays insufficient attention to its sovereign rights as a nation-state. This is born out of our suck-it-and-see common law approach.

While there is a lot to recommend in the organic evolution of case law through sound judging and application of precedent, it's all a bit too insubstantial when it comes to something as fundamental as the continued existence of the state. A bit too 'let's muddle through'. A bit too British.

So while Westminster can (and should) continue saying 'No', perhaps it would be profitable to look to how they handle these matters overseas. We might even do what the SNP is forever urging and learn to be more like all those EU member-states that are a lot less indulgent of separatism than we are.

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