Shortly after the last referendum I contacted some of my former colleagues in the international constitutional forum to gather their views on the events.
Aside from some very forthright views on the referendum itself, one opinion stuck with me. The respondent, a former ICJ judge gave the view that we were in danger of establishing a precedent by which only a majority vote by all the people in a future referendum would suffice to progress to full independence.
The next referendum, it would appear, would take place in one of two circumstances. Either Westminster grants an order under Section 30 of the Scotland Act or we go it alone. This strikes at the very heart of what is wrong with the Scotland Act.
The Scottish Constitutional Convention produced a very detailed report but the proposed Scotland Act which followed was a very different thing. Several key elements of the original report are missing, namely the constitutional guarantee of the legislature’s existence and the right of Scottish people to examine and vote on any changes in the powers of the legislature being the two most significant. While there may be nothing obvious in principle, in practice, the Scotland Act marks a radical departure from the established protocols avoiding conflict between Scottish and English constitutional law by imposing English constitutional convention over Scottish. All the arguments about whether or not we can hold a referendum hinge on this anomaly and, whatever the outcome, any referendum is still held under the aegis of the Scotland Act and is subject to some form of control and interference by Westminster. Furthermore, as my colleague has suggested, if the referendum is unsuccessful, the precedent has been set. The Scotland Act is accepted and only a referendum majority at any time in the future will be unchallengeable in international law.
So we hold a referendum and get a majority for independence, what’s the problem? Well, international law is a bit vague in many areas but not this one. If we ask an entire country to vote on independence, we have to be sure that we can get fifty percent or more in favour and that fifty per cent is about 2.25 million yes votes. It doesn’t matter how many actually vote, the total we have to achieve remains the same. Currently 3.6 million voters are registered* in Scotland. That figure may well increase with the May election coming up and may increase still further with the prospect of a referendum but I’m reluctant to depend on it. In the 2014 referendum only 3.7m votes were cast. Given the highest poll rating so far showing 58% yes, the actual vote would not be sufficient to get the majority we require. In fact we would need 60.8% - and that’s a best case scenario. By the way, the 58% excludes don’t knows and undecideds. Once these are taken into account, the true figure is about 52%. Furthermore, there is a very serious question mark about the voting rights of about 193,000 EU and Swiss citizens living in Scotland who are set to lose those rights on 1st July 2021. It’s all far too close for comfort.
In the first independence referendum in 2014, no mention was made about an overall majority. The Westminster administration gave consent under the Section 30 rule because they did not believe that the result would be anywhere near as close as it was. It is unlikely that they would make the same mistake again and the insistence on an overall majority will most certainly be part of any agreement if such agreement is ever reached. An attempt to hold a referendum without Westminster consent will inevitably lead to legal action which could take months or even years and, ultimately an overall majority will still be part of any settlement. Without it, the UK government has an argument against the result in international law.
So, do we need to do this?
One of the vagaries of international law lies in the detail of rules on secession. It is accepted that a successor state (that’s us) if it has the apparatus in the form of a democratically elected legislature can make decisions for and on behalf of its people, regardless of whether or not the predecessor state (England) grants it the powers to do so. In fact it is anticipated that the successor state will need to adopt those powers in order to progress independence. If the legislature contains a majority of members committed to independence it does not matter how many actually voted for them, they are the majority in parliament and that’s all that matters. As elected representatives of the people, they may adopt all powers necessary to govern the country in the interests of those who voted for them. It’s how democracy works.
There remains, of course, the matter of whose constitution the Scottish parliament exists under. The prime reason for the Manifesto for Indy is to persuade both the electorate and the candidates that the Scottish parliament is elected specifically as representative of the sovereign will of the Scottish people and has a constitutional duty to carry out that will. This effectively disposes the current Scotland Act to the bin. Rapid action on the international stage in gaining recognition from at least one other state and joining an internationally recognised institution such as the Nordic Council and EFTA makes our position unassailable.
In short, I believe that a referendum is risky and uncertain and allows for substantial interference from the English state possibly leading to a very lengthy and complex process of extraction from the UK. We must canvass all candidates in the upcoming election to demand that they accept their duty as our representatives and not subordinates to Westminster.
*Notes: Since 2016 the Electoral Commission UK wide has adopted a different means of calculating the “registered electorate”. In the past, only those eligible who actually registered were counted but changes in the law which makes it an offence punishable with a fine of up to £1000 coincided with the adoption by default of all identifiable adults as registered whether they formally applied or not. This has created confusion which is still the subject of debate. If we look at the statistics, the figure for Scotland matches the census figures for the total population aged 16+. In other words, every adult in Scotland is on the electoral register. To calculate the actual number of voters it is necessary to adjust this figure which includes people who are deceased, serving prison sentences which disbar them from voting, have moved house or left the country. Typically, the protocol eliminates around 13% of the registered electorate hence the figure of 3.6 million as of 1st December 2020.
Interestingly, in 2014 the electorate who actually made a physical application reached 2.16 million but the number who voted still fell within the statistical algorithm. This has prompted claims in some newspapers that the electorate has fallen sharply in recent years but this is not quite true.
Notes to Editor:
David Younger is a contributor to the group who produced ‘The Manifesto For Indy’ document, which can be read and downloaded from www.manifestoforindy.com.
Two political parties registered with the electoral commission for the May 6th Scottish parliamentary election have adopted ‘The Manifesto For Indy’ and other parties are at different stages of considering adding their support.