Next Saturday is a historic Scottish political landmark, for it is a decade on from the signing of the Edinburgh Agreement. On 15 October 2012, four people sat in a room together representing two opposing tiers of the British state. Ratifying the deal for the UK Government coalition of 2010 was former UK Prime Minister David Cameron, accompanied by former Scottish Secretary Michael Moore. The Scottish Government representatives were the former First Minister of Scotland Alex Salmond and his deputy Nicola Sturgeon.
Yet, this week is also significant because on Wednesday, the Supreme Court will decide whether it is within the Scottish Parliament’s competence to legislate for an independence referendum. The Scottish National Party conference conveniently concludes in Aberdeen today, 24 hours before Supreme Court hearings begin, and there is no doubt Scotland’s current First Minister will use her conference speech as a rallying cry to the party faithful. As much as this will create a powerful optic to the five judges, the law still appears clear.
Now, bear with me through the boring part. The Edinburgh Agreement of 2012 enacted Section 30 of the Scotland Act 1998, which stated: “Her Majesty may by Order in Council make any modifications of Schedule 4 or 5.” Schedule 5 referred to reserved matters, including the right to hold a referendum. An amendment was made in the Scotland Act 2016, which states where there is a two-thirds majority in Holyrood on any “protected subject-matter”, including referenda, it must be escalated to “the Supreme Court for decision.”
Essentially the big question this week boils down to: “Who decides whether Scotland can or cannot have a referendum?” The answer, according to law, appears to be Westminster but Nicola Sturgeon questioned the democratic legitimacy of such an arrangement in dialogue with Laura Kuenssberg on Sunday. Even if there is currently no legislative lever, with eight consecutive victories at all tiers of governance in Scotland in almost eight years of her leadership, it is hard to argue against Ms Sturgeon’s democratic mandate.
However, Liz Truss used her first conference speech to Conservative members last week to redraw her position on Scottish independence. She pledged to “face down the separatists who threaten to pull apart our precious union”. She has, however, refused to be drawn concerning how she will respond if Supreme Court judges favour arguments presented by the SNP. In August, the Conservative Lord Frost stated his view that three-quarters of MSPs should support independence before a new referendum is allowed. Bottom of Form
The 19 September was a typically dreich and grey autumnal Scottish day. Having spent the wee hours with a large group of fellow independence-supporters, I awoke around noon still disappointed but also submissive to the will of my fellow compatriots. Despite having engaged in conversations, participated in debates and knocked many doors, I accepted I did not convince enough of my fellow citizens concerning the coherence of my position. Bottom line – I lost and I hastened to the view that independence should be off the table for at least a decade.
Redrawing democratic boundary lines on independence, as Lord Frost has proposed, is not a new tactic but it differs from the confidence which oozed from David Cameron when only 28% of Scots favoured independence as the Edinburgh Agreement was signed. As support for independence grew in 2014 and has sustained itself, this confidence turned to concern and has curdled into contempt to such an extent where the one group to which a right to self-determination does not belong, and from whom is withheld, is the Scottish people.
At this political juncture ten years on, it should neither be the Supreme Court nor the UK Government who decide. With one voice, political leaders should declare, in the words of our revered sixteenth-century Scottish Reformer George Buchanan, “that all political authority ultimately belongs to the people.”