3 days ago
Why I stand by my claim after fierce debate that followed it
Three weeks ago, I argued that central to any strategy must be a successful campaign to change UK constitutional law so that the prohibition on the Scottish Parliament even discussing the matter is removed.
This provoked more reaction among readers of this paper than any column I've written before or since. Most of it negative, some harsh. I was variously accused of indulging in political fantasy, not having a clue, offering false hope, sowing confusion and offering an irrational analysis. Jings!
A long reply concluded: 'So long as the SNP of Mr Sheppard and his ilk blind themselves to the straightforward reality of the issue and keep wittering on about the useless diversion of a never-never referendum, independence will elude us.'
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Now, before we go any further, I should make it abundantly clear that I speak only for myself, I do not represent the SNP. Nor do I now, or have I ever had, an ilk.
Let me try to clarify why this is important. In November 2022, the Supreme Court ruled that the reservations to the 1998 Devolution Act prevented the Scottish Parliament discussing or acting on matters relating to the constitution of the UK.
Unless and until that is changed, it will not be possible for the Scottish Parliament to take any action in pursuit of Scotland's independence no matter how many of its members want to do so. That is why I say the main problem is not obtaining a mandate but getting the means to implement it. Pretending this is not a problem doesn't make it go away.
I'm not saying it is the only thing we should be campaigning on, just that it needs to be part of our approach. Of course, the priority must be making the arguments for independence in the first place and showing that self-government would be a better way of marshalling this country's enviable resources than having them siphoned off by Westminster.
Nor am I saying that we re-run a request for Westminster to grant Holyrood the power to hold a referendum. I'm saying the law must be changed to recognise that the Scottish Parliament has the responsibility to represent the views of the people on how they should be governed. It is up to that parliament how they do it. A referendum could be one way. Or a citizens' assembly leading to legislation. Or, in some circumstances, simply demanding that the UK start negotiations on Scotland's independence.
I do not for one moment think this will be an easy change, or that the UK will meekly agree to it even if a new Scottish Parliament overwhelmingly demands it. We will need a serious campaign of public education and mobilisation together with a legal and political strategy designed to apply the maximum pressure to the UK.
Once next year's Scottish elections are over, the UK will move towards the 2029 Westminster election. With an unpopular government and its political classes in disarray, the British state will experience unprecedented political turbulence. We would be daft not to take advantage of it.
Several correspondents have challenged the importance I put on the Supreme Court decision, arguing it does not hinder Scotland deciding to go independent. To quote one: 'UK law and constitution, for what they are worth, do not prohibit it. The Supreme Court decision said nothing about it.'
This line of reasoning says the Supreme Court decision only ruled on the competence of the parliament and not the principle of self-determination of the people. I stand accused of misleading people by conflating the two.
There are two points here. The first is that if the people of Scotland cannot exercise their right to self-determination by electing a representative parliament, then by what other conceivable means might they do so? The court's judgement is very much a real-world block to the exercise of the right to self-determination.
But there's more. As well as ruling on the competence of Holyrood, the Supreme Court also gave an opinion on the matter of self-determination itself. This was in response to argument presented by the SNP, not the Scottish Government, who argued that the Scottish people had the right to self-determination under international law.
The court cited the example of Quebec and extensively quoted the Canadian Supreme Court which denied the province's right to self-determination. It went on to say (paragraph 89) 'in our view these observations apply with equal force to the position of Scotland and the people of Scotland within the United Kingdom'. There's not a lot of ambiguity there.
Changing UK constitutional law isn't the only thing that needs to be done to offer Scotland a path to independence, but it is part of it. As we ask the electorate to vote for the principle of Scotland's political independence, we must also offer a route to it. The more votes we get, the more pressure will build for constitutional change, and the sooner people will get the right to choose an independent future.
