Scotland is the victim of Westminster’s constitutional doublethink

Philip Rycroft has written a thoughtful article on Scotland. He suggests “It is not too late to renew the marriage vows.” This nuptial image reminds us that the union was a voluntary treaty between two countries—Scotland was not conquered nor ceded to England, and, just as in a marriage, Scotland could decide to leave. Rycroft also suggests that renewing the vows “will require wisdom, statecraft, and a generosity of spirit that is sadly lacking in the political discourse of the south.” I can’t disagree with that.

So far, the UK Government has ignored any initiatives from the Scottish Government, such as white paper proposals for a more variegated Brexit, imposing a forceful unionism that has often ignored the nuances of devolution under the British constitution. Every Scottish district voted against Brexit, but this was treated as of no legal consequence, nor has Scotland been able to participate in any meaningful way in negotiations with the EU.

Suppose there is a pro-independence majority in Holyrood after the May 2021 elections. Quite a few politicians, including John Major, now believe that would be reason enough for the UK Government to facilitate an independence referendum. But I doubt that would sway Boris Johnson, who will surely refuse to cooperate on the legal steps for a referendum which he, as a unionist, is likely to lose.

So where does Scotland go from here? To be sure, the optimal path to Scottish independence would be obviously “constitutional,” such as that followed in the Edinburgh Agreement that led to the 2014 referendum, with the clear consent of the UK Government. That stands in clear contrast to the action taken by Catalonians, who had no such cooperation from the Spanish Government. But what to do now the UK Government refuses to countenance any understanding of the constitution other than the very narrow (and disputed) one that suits it best?

The “flexible,” unwritten, (largely political, as opposed to legal) British constitution has been lauded on many occasions, usually by those who don’t want any change: they don’t want a written constitution, they don’t want federalism, and they certainly don’t want independence for Scotland. However, the UK Government has been very happy to rely on hard law—which usually means (Westminster) parliamentary sovereignty—when it suits. So, without a “Section 30 order” delegating the legal power to Scotland, the argument goes, Scotland cannot hold a referendum.

On the other hand, the argument so often relied on to reject a further independence referendum, that it was a “once-in-a-generation” event—where is that stated in law? As far as I am aware, the nearest we get is a Scottish Government white paper. But many things were said by many parties in 2014 (including for example “The Vow” to give far greater powers to Scotland)—none of them legally enforceable. In any event, after Brexit (and its severe effects on Scotland), surely circumstances have changed. Scots were told in 2014 that the only way to ensure EU membership was to vote to remain in the UK union. Was that undertaking supposed to last a generation as well?

There again, the UK government can be a bit choosy as to what it thinks is “hard law.” Presumably not international law like the Withdrawal Agreement it just signed with the EU, which No 10 is happily violating in the Internal Market Bill, risking damage to Northern Ireland and the devolution settlement. So far, Johnson hasn’t shown any signs of retracting that position, even in the face of historic defeat in the House of Lords and firm overseas disapproval, including that of an incoming Biden administration.

There isn’t a great deal of consistency, or principle, in the Westminster Government’s approach to the constitution. Time and again, Scotland has been told that it is in an “equal partnership,” part of a “precious union,” but there is scant evidence for the UK Government actually observing that. How can a union of four nations exist satisfactorily when its constitution is interpreted in a way that works only for one (the English) part? No “generosity of spirit” evident there. So it should not be so surprising if one party then takes the option of withdrawing from the union altogether.