I have spent the morning poring over Professor Sionaidh Douglas-Scott’s article titled Scottish Independence And The UK Government’s Unreasonable Refusal To Negotiate published by The Centre on Constitutional Change ─ a body which, I confess, I was previously unaware of. Or had forgotten about, as happens rather a lot these days. My attention was drawn to the article by a piece in The National as part of its coverage of the Lord Advocate’s referral to the UK Supreme Court (UKSC) of the Scottish Government’s draft Referendum Bill (UK Government ‘undermining law’ by ignoring SNP independence mandate). That headline seized my attention largely because it suggests questioning of the legality of the UK Government’s conduct in relation to the the ongoing constitutional issue. I have frequently made the point that, while there is much debate over the legality of what the Scottish Government does or proposes or might do in its efforts to resolve the constitutional conflict, we rarely (if ever) see any discussion of the legality of what the UK Government does or intends to do.
The matter of why the default assumption should be that the British way is the right way is a topic well worthy of investigation. Including the question of why this assumption is accepted even by many who insist on the justice of Scotland’s cause. It is far from uncommon to hear someone loudly proclaim that Scotland is a nation and the people of Scotland are sovereign and that we have an absolute and inalienable right to maintain and develop a distinctive national identity and political culture, only to follow this with some qualifier about obtaining the consent and cooperation of the UK Government. Indeed, if you wish to see an example of this then you need only read Professor Douglas-Scott’s article. She presents solid arguments for Scotland’s status as a nation, with all that this implies, yet always comes back to the assumption that this status is subject to the will of the British state. I find it hard to believe that Professor Douglas-Scott would argue in relation to any other nation or people that they were sovereign and possessed the right of self-determination but that they might only exercise this right with the consent of some other nation. And yet this is precisely what is being argued in Scotland’s case.
There is no reading of the UN Charter and relevant Declarations which suggests that the right of self-determination is other than absolute and inalienable. The notion of a qualified or conditional right of self-determination is as oxymoronic as the idea of limited sovereignty. The term ‘sovereign’ is an absolute. It cannot be reduced or constrained in any way without ceasing to be sovereignty. Another name would be needed. It cannot sensibly be called sovereignty if it is not absolute. The term ‘sovereign’ necessarily implies ultimate authority. It cannot be ultimate authority if it is answerable to any other authority. Because that would be to place the other authority above the ultimate authority. Which is a logical impossibility. Likewise with the concept of self-determination. The ‘self’ part of that term can only refer to the nation/people identified as sovereign. The instant ‘self’ becomes ‘self+’, the sovereignty disappears and with it the right of self-determination.
That this irresolvable contradiction should be an unchallenged component of discourse on the constitutional issue defies explanation. It’s like discussing an Escher drawing as if it was an architectural plan for an actual building. In order for the discussion to proceed, all who participate must tacitly agree to completely ignore the impossibility of stairs that descend to a higher level while simultaneously ascending to a lower level. If you are not prepared to accept the proposition that the people of Scotland are simultaneously sovereign and subject to the sovereignty of the British parliament, then you will be deemed to be the one who is talking nonsense. To participate in the mainstream discourse around Scotland’s constitutional issue you must get as comfortable as you can with the concept of qualified or conditional sovereignty. Even if you know that, like Escher’s stairs, the discussion is going nowhere. Or is it everywhere? Or both?
Everything Professor Douglas-Scott says in her article is doubtless perfectly sound ─ so long as we disregard the impossibility at its core. The impossibility of being simultaneously two mutually exclusive things. There is no grey area with sovereignty. There is no ‘middle ground’. There is no ‘third way’. It makes no sense to talk of total sovereignty because there can be no partial sovereignty. It’s all or nothing. What Professor Douglas-Scott says makes sense only as an abstraction. Try to relocate that abstraction in the real world and it just won’t fit. Nonetheless, the professor makes the attempt. She states her intention very succinctly.
The purpose of this exploratory blog is not to rerun the argument of this case, but to raise additional points against the UK Government’s conduct in refusing to negotiate with Scotland on independence.
Straight away we are faced with the great unasked question; the ghost question ─ If Scotland is a nation as other nations but for being in a voluntary political union; if the people of Scotland are sovereign and sovereignty is unbounded; if the right of self-determination is absolute and inalienable, then why should the UK’s refusal to negotiate be an impediment to the exercise of our right of self-determination and thereby a denial of the sovereignty of Scotland’s people and rejection of the idea that Scotland is a nation but for a political union which is not voluntary at all but more akin to annexation?
That unasked and unanswered question hang’s over all of Professor Douglas-Scott’s opinion just as it haunts all of the discourse around the constitutional issue. It stands as a kind of disclaimer which by rights should attach to everything said on the subject of Scotland restoring its independence. It is the unacknowledged ghost at the feast. I’ve acknowledged it. But even as I do I realise that I must let it return to being unacknowledged in order to continue with commentary on Professor Douglas-Scott’s article. None of what follows actually makes any sense unless we pretend that question isn’t extant and crucial.
Professor Douglas-Scott identifies five legal arguments which she maintains should influence the constitutional debate and the deliberations of the UKSC. She summarises these as follows.
The first ground is that the Union between Scotland and England is voluntary, and Scotland’s consent to this Union was not one-off back in 1707, but ongoing and may be withdrawn. A second and related argument concerns Scotland’s right to self-determination in international law, which requires the UK to interpret State law in the light of that obligation. The third ground is the principle of democracy which sustains the legitimacy of elected governments and necessitates that their mandates be taken seriously and not overridden. The fourth ground derives from manifold legal sources over many areas of law which permit a change of circumstances to negate consent formerly given. The fifth ground is the requirement to act in good faith, a principle again observed in many areas of law, both explicitly and impliedly.
Immediately, the ghost question looms before us. Given that Scotland is a nation, the people sovereign etc., why would we need legal grounds to exercise our right of self-determination and dissolve the Union, if the people so choose? The unadorned answer is that we don’t. We shouldn’t. We can’t, if we are not to deny all the things we hold to be true of Scotland’s status as a nation and the sovereignty of the people and the rest. In fact, we cannot accept that we need legal grounds to exercise our right of self-determination without undermining some of the most fundamental principles of democracy. Which is why we can only address Professor Douglas-Scott’s article as an abstraction from that reality in which the principles of democracy hold true. As we address these arguments we necessarily embark upon a game of ‘just suppose’. We must suppose these arguments are being proffered in a world where democracy as we know it doesn’t exist. Where democratic principles don’t apply. Let’s play!
But first we must deal with a quite separate but still dubious assertion. Professor Douglas-Scott says in a preamble on the matter of consent,
Of course, all that follows must be supported by evidence that the Scottish people wishes to exercise its right to self-determination and leave the Union.
Really? Let’s consider that. If Scotland is a nation and the people are sov…. (you know all this by now) then surely the democratically elected government has the authority ─ with parliamentary approval, of course ─ to hold any kind of referendum it wants. Let’s play another game of ‘just suppose’ nested Russian doll-fashion inside the bigger game. Let’s suppose there was no conclusive evidence that the people wanted a referendum on a given matter. Suppose the government chose to hold a referendum anyway. Suppose the government undertook to act in accordance with the outcome of that referendum. Would the government not be just as bound by the result of that referendum as it would have been had the referendum been held due to overwhelming public demand? Could a decisive result be set aside on the grounds that there had been no great demand for the referendum in the first place? What would democratic principle have to say on that?
The idea has been promulgated for long enough to become accepted without question that there must be evidence of a majority in favour of a constitutional referendum before it can even be contemplated. Things that are accepted without question are things that are begging to be questioned. Referendums are held to determine the people’s decision in matters where there is a binary choice. Should we as a nation do A or B? The matter to be decided need not be of great or current public concern for it to be important to the nation. It may require to be settled even if the public as a whole has little or no interest in the issue. It might be something which is crucial to another issue which is of great public interest. For example, there may be considerable demand for land reform. But the nature and extent of what is possible in terms of land reform may depend on the government having certain powers. This may seem arcane to most people and not such as makes for good headlines or rousing rhetoric. But it is necessary to settle the matter of these powers before the popular issue can be addressed. So, a referendum may be warranted regardless of the absence of public demand ─ or evidence thereof.
It might readily be argued that given its responsibility to develop policy for the years and decades ahead, the Scottish Government has to know now what Scotland’s constitutional status might be. If Scotland is in a voluntary political union with England then this union, being voluntary, presumably could be ended at any time. So it is necessary for the Scottish Government to determine just how committed to the Union the people are.
The formulation “evidence that the Scottish people wishes to exercise its right to self-determination and leave the Union” is a bit odd as it seems to assume that both demand the same kind of evidence. It appears to imply that in order to exercise our right of self-determination we must first have made the kind of formal choice that would be involved in dissolving the Union. Nobody can sensibly deny that dissolving the Union would require the consent of a majority of those voting in a referendum such as would be recognised as a formal exercise of our right of self-determination. It is passing strange to imply that the same standard of evidence would be required in order to justify exercising our right of self-determination.
The two things are quite separate. There is the exercise of our right of self-determination. There there is leaving the Union ─ which is one of the two possible outcomes of us exercising our right of self-determination. The right to make the choice is not the choice and not subject to the same evidential requirement as the choice.
Despite this, Professor Douglas-Scott seems to suppose we need legal grounds to justify exercising our right of self-determination. She appears to accept that we have the right of self-determination. We just can’t exercise that right without first jumping through a series of hoops. It seems to trouble her not at all that a requirement to jump through hoops precludes the right of self-determination. Or vice versa ─ the sovereign right of self-determination might be defined as being unburdened by any hoop-jumping requirement. That pesky ghost question just keeps on intruding.
And so to the legal grounds which Professor Douglas-Scott deems sufficient to allow us the exercise of a right no power has the rightful authority to stop us exercising. First, two rolled into one.
Democracy and Self-Determination
… although the Scottish people have an acknowledged right to self-determination, this can only be lawfully actualized through consensual negotiations with the UK Government. It therefore follows that such negotiation should not be unreasonably withheld. As the SNP brief in this case argued, where there exists a right, there must be a remedy: ubi jus ibi remedium.
You may never see the contradiction more starkly stated. The Scottish people have a right to self-determination. But a prerequisite for the exercise of that right is “consensual negotiations” with an external power ─ that is to say, a power which is not part of the ‘self’ in ‘self-determination’. A condition which clearly precludes there being a right to self-determination. The right of self-determination is conditional on one thing and one thing only ─ the will of the people who comprise the ‘self’ in ‘self-determination’. Introduce any other condition and it ceases to be the right of self-determination as defined by the UN Charter. The UN Charter does not say all nations and peoples have the right of self-determination so long as they get the OK from this or that other nation. The following is helpful.
Self-determination is the freedom to choose one’s own acts without external compulsion. The term is generally associated with the freedom of the people of a given territory to determine their own political status. It is the power of a nation to decide how it will be governed without the influence of any other country
The ratification of the United Nations Charter in 1945 at then end of World War II placed the right of self-determination into the framework of international law and diplomacy. The following are a few examples.
Chapter 1, Article 1, part 2 states that purpose of the UN Charter is: “To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace”
Article 1 in both the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) read: “All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.”The Right of Self-Determination
Professor Douglas-Scott says,
By ignoring the mandate of a lawful government, the UK Government’s conduct in this context also undermines the rule of law.
What she does not say but bloody well should, is that the UK Government’s conduct in ignoring that mandate has to be entirely irrelevant. If the right of self-determination exists and democracy prevails then the attitude and behaviour of an external power must be of no consequence.
Change of Circumstances
These examples are proffered as illustrations that not only politics and morality, but also the law itself, is clearly receptive to arguments to dismantle agreements on the basis of a change of circumstances.
The Scottish Government is as much to blame as anyone for introducing the notion that a change of circumstances was relevant to the exercise of our right of self-determination. A concession which inevitably grew to become an insistence by some that the exercise of our right of self-determination could only be justified if it was demonstrated that there had been a sufficient change of circumstances. Need I say who is to be the arbiter of this sufficiency? The British state, of course! Because if the arguments advanced by Professor Douglas-Scott are accepted it is to the British state that we must look for the “consensual negotiations” without which the exercise of our right of self-determination cannot be “lawfully actualized”. So, the British state need only declare there to have been no sufficient change of circumstances to have an effective veto over the exercise of a right which is supposedly absolute and inalienable. No, I don’t get it either!
It matters not at all if politics, morality and the law itself are “clearly receptive to arguments to dismantle agreements on the basis of a change of circumstances”. If the British state is not receptive then the “acknowledged right to self-determination” counts for absolutely nothing. And the British state will never be receptive. Think about it! Not even Brexit could constitute a sufficient change of circumstances as far as the British state is concerned.
If the right of self-determination exists and if democracy prevails then changing circumstances cannot be a factor. And even if it were to be a consideration, the only legitimate arbiter of sufficiency is the people of Scotland. They pronounce on the sufficiency when they vote in a proper constitutional referendum. The constitutional referendum which in our world where we suppose democracy does not prevail and the right of self-determination is meaningless, cannot happen because an external power has declared there to be no sufficient change in circumstances. Is your head starting to hurt?
For those who might argue there is no explicit obligation of good faith between England and Scotland, it is worth noting that recent English and Scottish caselaw has found a good faith obligation implied in “relational contracts.” Although analysis of ‘relational contracts’ has arisen in the context of commercial entities, ‘relational’ attributes apply equally, mutatis mutandis, to relations between England and Scotland.
Surely Professor Sionaidh Douglas-Scott is making a joke. Please tell me her straight-faced use of the term “good faith” in relation to the British ruling elites is an attempt to lighten the mood a little. Please tell me this is no more than her trying to abide by the old adage that advises performers to ‘always leave them laughing’. Perhaps it’s better that I say no more about this one. I will note only that if democracy is dependent on the good faith of the British state then democracy is fucked in ways hitherto unimagined.
The ghost question
In closing, what more or better might I do than once again pose the question which still abides.
If Scotland is a nation as other nations but for being in a voluntary political union; if the people of Scotland are sovereign and sovereignty is unbounded; if the right of self-determination is absolute and inalienable, then why should the UK’s refusal to negotiate be an impediment to the exercise of our right of self-determination and thereby a denial of the sovereignty of Scotland’s people and rejection of the idea that Scotland is a nation but for a political union which is not voluntary at all but more akin to annexation?
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