In the legal opinion commissioned by Forward As One, Aidan O’Neill QC argues that the question of the Scottish Parliament’s competence to legislate on a new independence referendum is a question of law, not a political question and “can only ultimately authoritatively be answered by the courts. I both agree and disagree.
I disagree with the assertion that the matter of the competencies of the Scottish Parliament is purely and solely a matter of law. I disagree because it is a constitutional matter and in constitutional matters ultimate authority must lie with the people. Few things are more fundamental to the constitution than the powers vested in (or withheld from) a nation’s parliament. Even if it is argued that parliamentary competencies are a matter of constitutional law, then it is still primarily and in the first instance a political issue because, in a democracy, the constitutional is an expression of the will of the people.
Constitutional law differs from criminal law in that, where the latter is an attempt to codify the established mores of society, rather than ephemeral public opinion, and works best if it is obeyed and changes only by way of a process rigorously isolated from day-to-day politics, the former must be constantly subject to challenge from all quarters as an intrinsic part of a democratic political process in order that it may truly represent the will of the people. Constitutional law is a special case.
I agree that constitutional change must be subject to legal challenge, if only to formally verify that such change has been established to reflect the will of the people in accordance with the provisions of the constitution. I simply insist that fundamental democratic principles decree that the ultimate authority in all matters rests with the people. And that this authority is most directly relevant in matters relating to the constitution.
The overarching criterion for deciding questions of parliamentary competence is democratic legitimacy, not legality. Where a parliament has incontestable democratic legitimacy – as does the Scottish Parliament – the default assumption must be that all competencies lie with that parliament. The manner in which such competencies are exercised may be subject to legal challenge. But the competencies themselves cannot rightfully be withheld or constrained by any agency with less or no democratic legitimacy.
The democratic legitimacy of the Scottish Parliament derives from the sovereign people of Scotland. It is the institution whereby the people pool their sovereignty and mandate governments of their choosing. If the nation is regarded as a community of communities in accordance with the doctrine of civic nationalism, then Holyrood is where all those communities come together to oversee the management of their mutual interests and negotiate the compromises which resolve political divisions. To propose that such a parliament must be subordinate to the parliament of an entirely different community of communities which manages Scotland’s interests only very badly and resolves political divisions by fiat flies in the face of reason.
Of course, Holyrood was never intended to be the locus of Scotland’s democratic soul. But that is how it has turned out. It has been transformed from an impotent puppet of the British political elite into a fully-fledged national parliament – lacking only the powers to which it alone has a legitimate and rightful claim. Powers that were seized and are being withheld by a parliament which serves only the ruling elites of England-as-Britain.
The competence of the Scottish Parliament to legislate for a new independence referendum is being denied by British politicians for political motives. It is entirely proper, therefore, that this should be challenged by political means. The Scottish Parliament must assert its authority by rejecting the authority asserted by Boris Johnson. The superior authority of the Scottish Parliament must be assumed on the basis of its superordinate democratic legitimacy. This authority must be exercised by the Scottish Government according to the mandate afforded it by the people of Scotland. If this is to risk any form of challenge by the UK Government then the Scottish Government must stand ready to meet this challenge. It is only by meeting and defeating such challenge that Scotland’s democracy can be preserved. It is only by meeting and defeating the resistance of the British state that Scotland’s democracy may be restored.
To be, and deserve to be, a normal independent nation, Scotland must act as a normal independent nation.
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