I wonder if our First Minister is aware of the Precautionary Principle. In the context of the duties and responsibilities of the Scottish Government in the current situation of constitutional upheaval, the Precautionary Principle may be stated thus,
Where there exists a threat of serious or irreversible damage to the nation’s interests, lack of total certainty concerning outcomes outwith the control of policy-makers shall not be used to justify postponing measures to prevent such damage.
This might be more succinctly expressed as,
First do no harm or by inaction allow harm to occur.
There can be no doubt that Scotland being forcibly taken out of the EU represents, at the very least, a threat of serious or irreversible damage to the nation’s economic interests as well as our political, social and cultural well-being.
(In fact, it is the Union which poses this threat by affording the British state the power to impose policies such as Brexit on Scotland; but the First Minister has inexplicably chosen to hang the entire independence cause on the Brexit peg, so we shall go along with that for the moment.)
Given the real and imminent threat posed by Brexit, the Precautionary Principle holds that the Scottish Government’s uncertainty about the precise details of the outcome cannot excuse failure to act to prevent Scotland suffering harm.
It may be argued that the duty of the Scottish Government to prevent harm to Scotland extends to preventing harm to neighbouring or other territories where this may impact Scotland. But, to whatever extent such a duty exists it is overridden by a duty to respect the democratic will of the people of those territories. There is not, and neither could there be, an inalienable right to suffer no harm. People have a democratic right to vote against their own interests. Governments may only intervene to mitigate the harm.
It may further be argued that, given the nature of the devolution settlement, the referendum in 2016 was a UK-wide vote on UK membership of the EU; and that, being still part of the UK, Scotland is bound by the result every bit as much as the rest of the UK (rUK). This argument relies on three assumptions or contentions –
- That Scotland is not a nation in any but the most trivial sense of that term.
- That the Scottish Parliament is merely an annex to the UK Parliament.
- That the Scottish Government is merely an adjunct to the UK Government
The first of these assumptions or contentions may be discounted without discussion. The UK Government recognised Scotland’s status as a nation when the UK Prime Minister signed the Edinburgh Agreement prior to the 2014 independence referendum. This fact alone makes it impossible for the British state to now dispute Scotland’s status as a nation.
The remaining assumptions or contentions are less easy to discount. It can readily be maintained that the Scotland Act 1998 makes the Scottish Parliament effectively no more than an annex of Westminster, and the Scottish Government no more than an adjunct to the British executive. But bear in mind that this is a matter of constitutional law. And that, unlike criminal law – which works best by being rigorously obeyed – constitutional law works best by being constantly challenged.
There exists something which we might call the democratic imperative. An existing constitutional settlement, however thoroughly enshrined in law, may be subsidiary to this democratic imperative. That is to say, the imperative to uphold fundamental democratic principles may carry more weight than the need to abide by the letter of constitutional law. It must be so. Otherwise there could have been no social or political progress. We would still be living with absolute monarchs, warring empires and exploited colonies. (To a greater extent than we are!) Women wouldn’t have the vote and employment rights would be a matter for discussion at secretive gatherings of ‘dangerous radicals’.
All these things changed because the democratic imperative was brought into play. Because the reformed condition had greater democratic legitimacy. Women have the vote because that is more democratic than them being prohibited from voting. The demand for workers’ rights was, and remains, a demand founded on the democratic imperative. Greater democratic legitimacy outweighs lesser democratic legitimacy and the constitutional provisions which maintain that lesser democratic legitimacy.
The Scottish Parliament has democratic legitimacy. This is irrefutable. The manner in which it is elected and the way it operates gives it unimpeachable democratic legitimacy. Compared to Holyrood, Westminster has no democratic legitimacy in Scotland. The fact that Scotland elects 59 members of the UK Parliament is all but meaningless given the grotesquely asymmetric nature of the Union.
If the Scottish Parliament has democratic legitimacy then it follows that the Scottish Government does too. Only in extraordinary circumstances does a system which confers democratic legitimacy on the parliament give rise to an administration whose democratic credentials are seriously questionable. The British political system may be an example of those extraordinary circumstances.
That the the Scottish Parliament is superior to Westminster in terms of democratic legitimacy is not a matter of controversy. That, despite this, it continues to be inferior in terms of constitutional law is a matter of great controversy. There are only two ways in which the conflict between democratic legitimacy and constitutional law can be resolved. Either the UK Parliament concedes the complete authority of the Scottish Parliament in Scotland – which is not going to happen; or the Scottish Government asserts that authority in defiance of the constitutional settlement.
The Precautionary Principle demands that the First Minister of Scotland act immediately to prevent the harm that will be done to Scotland, not only by Brexit, but by the impact of ‘One Nation’ British Nationalism. The only way to do this is by asserting the primacy of the Scottish Parliament on the grounds of its democratic legitimacy. That this will entail dissolution of the Union and the restoration of Scotland’s rightful constitutional status may be considered a bonus.
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