The devolution settlement isn’t good enough – Scotland has outgrown it

by Alyn Smith
Posted on
1 year ago
4 min read

The UK Supreme Court did us all a favour last week, and I applaud the Scottish Government for taking it to and the SNP who between them took it to the Court.

They’ve taken a legal issue, settled it, and left us all with a far bigger, more interesting and existential democratic one full of far more opportunities and challenges. Challenges for the UK Government especially, and for all politicians of all views.

There were three submissions before the Court, from the two governments, Scottish and UK, and from the SNP.

The Scottish Lord Advocate invited the Court to rule, hypothetically but still not entirely in abstract, on the right of Scotland’s national Parliament to legislate to hold a referendum, even an advisory one – and in the SNP submission in addition to giving a view on what the right to self-determination actually means in the UK and in our interconnected modern world.

The Court could have sided with the UK submission and said all of this is hypothetical and premature, absent a bill passed by Holyrood to hold a poll, nothing to do with us, lads.

It did not, and this is a significant win for the Scottish Government.

It could also, perfectly fairly, have refused to say anything about the right to self-determination, a long-established (though seldom examined in any senior Court) warm and fuzzy feel-good principle of UN and EU law.

Instead, it gave a clear and unanimous view. It also debunked the widespread and genuinely held view that the UK is a voluntary union.

I’m biased, I’m a lawyer myself, and I like things to be binary, black and white, for things to exist, or not.

I watched Catalan friends and colleagues for years agonise about rights that did not exist and support that would not (indeed, did not) come, and I want to see Scotland saved the same torment.

The ruling of the UK Supreme Court on the right to self-determination is of global significance and is a hard blast of chilly reality for a lot of Scots who honestly believed that the UK was a voluntary partnership of equals (and in 2014 voted accordingly).

Under the current devolved settlement, I’m sorry to say, it is not. The UK is not a voluntary union.

That will be a hard learning for a lot of people and we in the Yes movement should be respectful of that.

Because the world is a club of states, the EU is a club of states.

Despite the interconnected and messily overlapping nature of regional and global human society, commerce, data and trade, it is states that make the rules of the clubs they have formed and they’ve written them to suit themselves.

All the warm and fuzzy rhetorical window-dressing about democracy and the rights to self-determination in the UN’s case, or the “ever closer union” of the peoples of Europe in the EU’s, is and has always been a self-serving legal fiction.

This is why we in the Yes movement want Scotland to join that club as a state.

The right to self-determination was always qualified. It existed in a post-colonial context, or in the case of oppression or occupation.

It gave a fig leaf of legality when the international community decided to intervene in failed or failing states like the former Yugoslavia or South Sudan, or invaded ones like Kuwait or Ukraine.

It has never really been meant to empower people.

My predecessor in the European Parliament, the much-missed Professor Neil McCormick, as a member of the European Constitutional Convention, proposed articles to the draft EU Constitution (that eventually became the Lisbon Treaty) specifically to create a right to self-determination in EU law.

The proposals were voted down by all sides. The EU does not have any meaningful right to self-determination, not by accident but by conscious design.

The states will deal with such matters at the time in whatever way best suits them. The UN and international law have the same deliberate fuzziness.

Sovereignty pooled is sovereignty retained, as we know from Brexit, and power devolved is power retained, as we now know, in cold hard black and white, within the UK, under the current constitutional settlement.

And that’s why the current devolved settlement isn’t good enough. Scotland has outgrown it.

Scotland has come a long way politically since 1997 – and the independence referendum, the EU referendum, the aftermath of both and the collapse of integrity and credibility at Westminster leaves the UK with an indefensible and unsustainable democratic deficit.

73% of Scots want back into the EU. 50% or so of Scots want independence. Only 22% of Scots trust the UK Government to act in their interests.

The next electoral event that we know of is the upcoming Westminster election.

That is the next opportunity for the people of Scotland to give their view on how fit for purpose their governance arrangements are, and who is best placed to make decisions for Scotland. A de-facto referendum on Scotland’s right to choose.

The SNP have a clear vision of Scotland’s best future, and that is independence in Europe.

It is up to the SNP to harness that de-facto referendum into achievable change, by defining what we seek and building a consensus for that achievable change, however incremental it may need to be, to build a credible momentum.

We have some thinking yet to do on this, but it is an argument that we can win, and win big for Scotland.