The right to leave
On Ne’erday, Politico published an excellent article by Nicola Sturgeon, explaining why Scotland is a European country that needs independence to meet its aspirations. I have been critical of the lack of progress on achieving independence, but this was very good, and I think it will have been well received in the capitals of Europe.
I have only one real issue with the article. It’s when she boldly asserts that the “U.K. is a voluntary union of countries”. I’m well aware that this is almost certainly the majority view in Scotland, rooted in the belief that the people of Scotland are sovereign and thus ultimately in charge of their own future, and furthered by the fact that the 1707 Acts of Union formed a new country – the Kingdom of Great Britain – out of two formally equal countries, Scotland and England (that happened to have the same monarch).
It does not, however, seem to be a consensus shared by most people in England. South of the border, sovereignty is traditionally deemed to rest with the Houses of Parliament, which for all practical purposes means the House of Commons, or (except for very exceptional times, like 2017–19) the UK Government.
Because of the lack of a codified constitution, nobody actually knows whether Scotland still has a constitutional right to cancel the Acts of Union and become a sovereign country once more, or whether it’s entirely up to Westminster. (This is, of course, what Martin Keating’s court case (PDF) is aiming to find out. Strangely, the Scottish Government is resisting this; I wonder whether this is because they expect him to lose.)
The problem with Nicola Sturgeon’s assertion is that all other EU countries have codified constitutions, which means it’s easy to figure out whether a part of the sovereign state has the right to declare independence or not. So when she writes that the UK is a voluntary union, they’ll assume there must be something in the constitution stating this. They’ll also assume that this was the reason why David Cameron agreed to a referendum so readily last time – they’ll basically think he had no choice.
When the First Minister then adds that “[w]e are committed to a legal, constitutional route to becoming an independent state”, they’ll read that as confirming this interpretation. In other words, what they’ll take from this article is the following: Scotland has a constitutional right to independence, which is why it was allowed to hold a referendum on this topic in 2014; it will now hold another one, and Westminster won’t be able to do a thing about it, so expect an EU membership application from us soon.
I think what Nicola is trying to do is to frame the narrative. She’s hoping that if she acts as if the UK Parliament has a duty to issue a Section 30 order, they’ll simply give in. If most of the UK media were sympathetic to the cause of independence, this might even have been a good strategy. I fear, however, that they won’t pay much attention to this and simply rely on the good old sovereignty of Parliament, which is what they know and trust.
If Martin Keating is successful, there won’t be a problem. If Nicola Sturgeon manages to convince the Tories simply to give in (especially without attaching all sorts of dodgy constraints to the Section 30 order), everything will be fine, too.
But what if the court case fails and Westminster just keeps refusing another Section 30 order? Then Scotland will have two choices: (1) Give up, or (2) find a Plan B.
There are many possible Plan Bs, and some of them are rather good. Most of them, however, depend on doing something first and then getting Westminster’s approval afterwards. That’s not a big deal, and it’s indeed how most countries on this planet have won their independence. It will, however, create a lot of head-scratching in the capitals of the EU; basically, they’ll be asking why Scotland is doing this if the UK is a voluntary union of countries.
I think it’s a strategic error. I think Nicola Sturgeon would be much better off in the longer term if she started explaining the problems that the uncodified constitution is causing, and preparing other countries for the fact that things might not be quite as easy as simply repeating the process leading up to the 2014 referendum.
After all, if she asserts that Scotland has a constitutional right to independence, but the whole world can see that a new referendum isn’t happening, won’t they think it’s because Scotland deep down doesn’t really want to be a sovereign country again?