The necessity of “unconstitutional action”

I only read the first paragraph of Michael Fry’s column in The National, because the rest appears to be about economics; which is irrelevant to the constitutional issue. But the first paragraph is enough to tell me that Michael Fry is probably better sticking to economics as he clearly hasn’t a clue about constitutional matters.

He writes of a “rising clamour for unconstitutional action”, but signally fails to inform us as to what this supposedly “unconstitutional action” is or where the “clamour” is coming from. In other words, Michael Fry deploys a big fat straw man argument at the outset in the hope of disarming any who might question what follows. This is not the behaviour of someone who has great confidence in their own case.

I haven’t seen anything that could be characterised as a clamour for unconstitutional action. And I am involved in the constitutional debate on a daily basis absent a distracting obsession with abacus-twiddling. I see the occasional mention of a unilateral declaration of independence (UDI), which is nonsensical and irksome for a number of reasons – basically that it is simply inappropriate. But the odd ill-informed outburst hardly amounts to a clamour. Besides which, I’m not sure UDI could even be classified as “unconstitutional”. The answer to the question of whether it is unconstitutional or not would be, “It depends!”.

Being someone who finds fascination in the dismal science, Michael Fry should be familiar with such vague and inconclusive answers. The ‘solutions’ provided by economics depend on so many factors they can hardly be called conclusions at all. Not the least of these factors being who is paying the economist. Economics isn’t a science. Real scientific solutions – developments, discoveries, advances – tend not to be critically dependent on the facts that are selectively ignored; the information that is purposefully excluded or the questions that are judiciously left unasked.

Economics does have a few ‘iron laws’; a scattering of fixed points to which it is tethered in order to prevent it straying too far into the realms of fantasy. Other than that, economics is pretty much entirely at the mercy of personal prejudice and political expediency.

The constitution is, to some extent, similar. Except that nobody makes pompous claims for its credentials as a science. Constitutional law is to criminal law as economics is to Newtonian physics. Although, like any analogy, this one benefits from not being pursued too far, it is illustrative and maybe informative. It’s a matter of flexibility. Universal laws serve real science best when they are strictly observed. Economics works as intended when the analysis is permitted as much leeway as the brief demands. Criminal law is best served by strict obedience. Constitutions are best served by being subject to constant challenge.

We escape the analogy (at last!) by noting that, while the looseness of economics is intended to serve very particular interests, the flexibility of constitutions is intended to serve justice, democracy and society as a whole.

What does Michael Fry mean by “unconstitutional”? What is unconstitutional about any of the actions being touted within the Yes movement in a manner that might sensibly be described as a “clamour”? These are question which only Michael Fry himself can address. Although I very much doubt if he will make any attempt to do so. We must perforce confine ourselves to the wider question of what might make an action unconstitutional.

I am not a constitutional lawyer. But, for present purposes, that may be an advantage. Sometimes, a territory is more satisfyingly – possibly even more fruitfully – explored by one who is not already familiar with the geography.

The obvious answer to the question of what makes an action unconstitutional is that the action is prohibited by the constitution. Obvious and simplistic. Because the prohibition itself may be considered unconstitutional. It may be deemed unconstitutional by some higher authority. It my be unconstitutional by virtue of being contrary to the strictures of natural justice or the demands of fundamental democratic principles. In which case, it is the breach of that prohibition which has the greater claim to constitutionality.

To take an extreme example for the purposes of illustrating the point, a constitution which enshrined the right of individuals to own another person would clearly be unconstitutional in that it is contrary to an overarching prohibition on slavery.

By the same token, the UK Government’s efforts to constrain or prohibit the exercise of Scotland’s right of self-determination must surely be unconstitutional in that it breaches the international laws and conventions guaranteeing the right of self-determination.

I don’t know if, when he talks of “unconstitutional action”, Michael Fry is referring to calls for the Scottish Government to eschew the Section 30 process. But this is the only thing that might fit with his description of a “clamour”. Increasing numbers of people are recognising and acknowledging the folly of committing to a process which is unconstitutional. The realisation is dawning that it is the assertion that rejecting the Section 30 process is unconstitutional which must be challenged.

Another way of defining unconstitutional action might be as action which changes – or attempts to change – what is regarded as constitutional. In that sense, there is no route to the restoration of Scotland’s rightful constitutional status which does not require action which is unconstitutional in terms of the existing constitutional settlement. It must be action which breaks the existing constitutional settlement in order to create a new one.

Perhaps what Michael Fry is referring to when he talks of a “clamour for unconstitutional action” is actually no more than the perfectly calm, if understandably impatient, chorus of voices pointing out the folly of imagining it may be possible to restore Scotland’s independence whilst adhering to the rules imposed by those who are determined to preserve the Union at any cost.

As one of these voices, I’m here to tell Michael Fry, and any who are similarly minded, that timid acceptance of the British state’s constitutional primacy makes the restoration of Scotland’s independence impossible. Genuine power is not given. It is only taken. The British political elite would never grant Scotland independence even if it was in their gift rather than being rightfully ours just for the taking. It is only by ‘unconstitutionally’ asserting the primacy of Scottish popular sovereignty that the Union can at last be dissolved, leaving Scotland free to formulate our own constitution.

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