Where There’s a Will (Part 2), by Duncan Sutherland

Guest post.

First Minister Nicola Sturgeon has already declared that she is determined that there will be a further Scottish independence referendum and at a time chosen by the Scottish Parliament. How to achieve that if, as seems to be going to be the case, the UK government will not agree to devolve the power to hold a legally-binding referendum, as happened in respect of the 2014 one?

Surprising though it may seem, there is nothing that can be done to prevent the Scottish Parliament from consulting the Scottish electorate on any subject it chooses. The UK has no power to threaten members of the Scottish Government or anyone else with judicial proceedings for organizing such a consultation on a constitutional matter such even as secession from the UK state, but Scottish Parliament consultations on matters which are reserved to the UK government are, strictly speaking, merely advisory, as indeed are all referendums in the UK unless the relevant legislature has determined otherwise in the case in question.

However, it would be worthwhile for the Scottish Government to proceed with a referendum of this legally limited nature in the face of UK refusal to countenance a legally-binding one, as a majority result in favour of independence would still carry political weight, would undermine the authority of the UK government, particularly in its Brexit negotiations, and would constitute a substantially useful curtain-raiser for stage 2 of a programme of constitutional disobedience conducted in such a way as to be defensible in the circumstances.

Stage 2 involves a bold commitment to rebellion against normal procedural method. The abnormal procedural method which might be resorted to after a successfully organized advisory referendum resulting in a pro-independence majority involves first of all a demand concerning the asserted democratic necessity to respect the will of the Scottish people as expressed in this referendum (which, of course, would be conducted in accordance with the rules which applied in the case of the legally-binding referendum of 2014). The purpose of this demand, which would be bound to be rejected, of course, would simply be to set the UK government up for stage 3.

The demand having been rejected, probably contemptuously and with the patronising condescension to which Scotland is so well accustomed, with the UK PM’s facial contortions becoming increasingly reminiscent of the detested Thatcher countenance, the First Minister, without giving warning of her intention, suddenly announces the resignation of her government. As First Ministers cannot be appointed by the Queen until they have been elected by the Scottish Parliament, and as they cannot form a government before being appointed by Her Majesty, the Scottish National Party and the Scottish Green Party, which together form a pro-independence parliamentary majority, would form a bloc to prevent the formation of a replacement administration, causing a constitutional crisis which could only be resolved by the holding of an emergency Scottish Parliament general election.

A peculiarity of the Catalan language is that, whereas in the English language referendums and elections are held, in Catalan they are celebrated. This forced election which would now follow would indeed be more celebrated than merely held because it would constitute a truly celebratory act of monumental and terminal constitutional defiance, in so far as the electoral process would be transformed by the pro-independence parties on a purely ad hoc basis, perfectly lawfully, into a referendum in effect for the purpose of reinforcing and legitimizing the referendum result which had already been obtained.

Asserted legitimacy would be conferred as a result of the election having been fought as a single-issue contest by the pro-independence bloc for that purpose so that the only function for which the resulting administration could be held to be elected would be to give effect to the referendum result, as it would have no mandate to do anything else. This general election would be the first and last plebiscitary general election of the Scottish devolution era, which it would draw to a close by transforming the Scottish Government into an independent administration charged with the responsibility of drawing up a written constitution (already done by Alex Salmond’s government) and submitting it to the people for approval by referendum, following which it would be adopted by the Scottish Parliament, which would thus be declaring independence on the basis of a comprehensive democratic mandate.

An invitation would be issued to the rump UK government to send a negotiating team to Edinburgh for tea and scones and constructive talks leading to an amicable parting of the ways. If the invitation is refused, all UK government assets would simply have to be seized, including the UK’s terribly expensive nuclear deterrent, which is entirely based in Scotland. Clearly that would not work. Consequently, there would simply have to be independence negotiations in these circumstances, as there would be no feasible alternative.

Needless to say, it would be helpful if these imaginative operations could be conducted in coordination with the already scheduled rebellion in Catalonia, which, like Scotland, sees its future in the European Union.

Where there’s a will there’s a way. (At this point you should be wondering if my tongue is entirely in my cheek. No, only partly.)

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