Section 30 Is Not Scotland’s Salvation

I wonder if those who say things like “we are not at the end of the Section 30 order road” have ever stopped to think about what a Section 30 order actually is. When I hear people insisting that a Section 30 order is absolutely required for a referendum on restoring Scotland’s independence to be ‘legal and ‘binding’, I tend to wonder if they have considered what a Section 30 order is for and why this ‘loophole’ was made part of the Scotland Act 1998. After all, we know that the core purpose of the legislation is, not to empower the Scottish Parliament, but to keep it in check. We know that the devolution experiment never had anything to do with addressing the democratic deficit imposed by the Union or improving Scotland’s governance, but was always about creating a new and superficially more democratic framework within which powers could be ‘managed’ without the risk of compromising the Union. So why would the legislation include a provision for granting additional powers to the Scottish Parliament?

The answer, of course, is that it doesn’t. As becomes immediately clear when one reads the relevant text at Section 30(2).

“Her Majesty may by Order in Council make any modifications of Schedule 4 or 5 which She considers necessary or expedient.”

Scotland Act 1998 ¹

Expressed in a less legalistic, and more forthright, fashion what this says is that the British Prime Minister – currently a malignant child-clown named Alexander Boris de Pfeffel Johnson – can alter the powers of the Scottish Parliament whenever they want and in any way they deem “necessary or expedient” for their purposes – that purpose being ever and always the preservation of the Union. I think it’s fair to say that Section 30 isn’t sounding like quite the boon to Scotland some seem to suppose it to be. It is simply another device by which the British state may rein in the Scottish Parliament. Or, at least, that was the intention. Belt and braces legislation. Just in case there were any loopholes which might allow Holyrood more power than was intended, Section 30 allows the British political elite to quickly patch up any chink in the armour protecting the Union.

You may be asking how, if the purpose of Section 30 is to provide extra protection for the Union, did it come to be used to secure a ‘legal and binding’ independence referendum in 2014? To understand how this came about you need know just one thing – Alex Salmond is a lot smarter than David Cameron. Alex Salmond played Cameron like the proverbial old fiddle. He knew his opponent and was keenly aware that he could rely on a mix of hubris, arrogance and ignorance to enable him to extract what he wanted from the then British Prime Minister. And what he wanted was, not the Section 30 order itself, but the Edinburgh Agreement that accompanied it.

Of course, the drafters of the legislation never envisaged Section 30 being used in this way. They assumed the Scottish Parliament would always be controlled by the the British parties, who would never do anything to jeopardise the Union. That’s the way the electoral system was set up. Not, as some imagine, to keep the SNP out, but to keep some combination or permutation of British parties perpetually in. Another safeguard for the Union. You may be starting to discern a pattern.

Alex Salmond is a brilliant political operator. A master of the art of keeping open as many options as possible and a man who can calculate, on the fly, all the values in a complex trade-off. Setting a precedent by requesting a Section 30 order was dangerous because, on the face of it, this might limit the options available in the future. Remember that, in 2012, Salmond had little reason to suppose that a referendum could be won. He was pretty much bounced into going for it because, in 2011, the Scottish electorate broke the voting system in a way that not even Alex Salmond could have predicted. He had to declare the referendum. And he would do his utmost to win it. But he was also planning for the loss and looking to get as much out of the whole exercise as he could.

Aware that the precedent-setting risk involved in requesting a Section 30 order was at least mitigated and almost certainly negated by the unlawfulness of any attempt to deny the right of self-determination, Salmond figured the trade-off was worth it to secure the Edinburgh Agreement and, crucially, formal recognition of Scotland’s right of self-determination by the British state. Asking permission from Cameron must have grated severely on Salmond’s Scottish sensibilities. But, ever the pragmatist, he got on with doing what was necessary.

So, to summarise – the purpose of Section 30 of the Scotland Act 1998, is to afford the British Prime Minister the legal authority to unilaterally and arbitrarily alter the powers of the Scottish Parliament. So much for the ‘most powerful devolved parliament in the world’!

Alex Salmond used the Section 30 procedure to manipulate David Cameron into formally acknowledging Scotland’s right of self-determination as part of a subsidiary plan to ease the way for a new referendum in the event that the 2014 vote went the wrong way.

Salmond realised that this could not set an awkward precedent as the Section 30 procedure would always be trumped by international laws and conventions relating to the right of self-determination. Which does not mean that we should take the British government to court – whatever that may entail. What it means, and what Salmond no doubt intended, is that the British state is powerfully deterred from taking the Scottish Government to court. It is highly unlikely that any constitutional court, including the UK Supreme Court, would uphold the British government’s right to exercise what is effectively a veto over Scotland’s right of self-determination. To do so would be to strike down the Charter of the United Nations. No constitutional court would risk its credibility in this way. No judge would want that on their Debrett’s entry, or their Wikipedia page.

The question, therefore, is not whether we are “at the end of the Section 30 order road”, but whether we should be on that road at all.

Some insist that a Section 30 order is required to make a referendum legal. This is the colonised mind speaking. Note how such people constantly fret about the legality of what Scotland does and its bearing on independent Scotland gaining recognition by the international community. Note how they rarely, if ever, think about questioning the legality of what the British state does. They never ask how a law prohibiting or constraining a fundamental democratic right can possibly be valid. The British political elite has only to assert a power, and the colonised mind unthinkingly accepts it. The superiority of the British state is mindlessly assumed.

What matters in relation to the right of self-determination is, not formal legality, but democratic legitimacy. So long as the process by which the right of self-determination is exercised can be shown to be open and democratic, any law purporting to prohibit or constrain that right cannot itself be legitimate. Especially when that law is imposed by a parliament and a government which itself lacks even the semblance of democratic legitimacy. Who says so? Well, among others, the British government. It is stated with great clarity and concision in the British government’s statement(s) to the International Court of Justice inquiry as to whether the declaration of independence by the provisional institutions of self-government of Kosovo was in accordance with international law.

“5.5 Consistent with this general approach, international law has not treated the legality of the act of secession under the internal law of the predecessor State as determining the effect of that act on the international plane. In most cases of secession, of course, the predecessor State’s law will not have been complied with: that is true almost as a matter of definition.

5.6 Nor is compliance with the law of the predecessor State a condition for the declaration of independence to be recognised by third States, if other conditions for recognition are fulfilled. The conditions do not include compliance with the internal legal requirements of the predecessor State. Otherwise the international legality of a secession would be predetermined by the very system of internal law called in question by the circumstances in which the secession is occurring.

5.7 For the same reason, the constitutional authority of the seceding entity to proclaim independence within the predecessor State is not determinative as a matter of international law. In most if not all cases, provincial or regional authorities will lack the constitutional authority to secede. The act of secession is not thereby excluded. Moreover, representative institutions may legitimately act, and seek to reflect the views of their constituents, beyond the scope of already conferred power.” ²

It is abundantly clear that there is no necessity to follow the Section 30 procedure. So the question becomes one of what, if anything, makes it desirable to do so? And that is a far more difficult question, because it concerns subjective judgement Personally, I just hope that those ‘influencers’ who are advocating for the Section 30 procedure have actually thought it through. And, if our elected leaders are opting for the Section 30 procedure, I feel entitled to demand to know why, and to be assured that they have fully considered all the implications.

The deadly Section 30

I have made plain my views on asking for a Section 30 order on many occasions. It would be a mistake. I take the view that the British Prime Minister cannot have a veto over the right of self-determination that is vested wholly in the people of Scotland and guaranteed by the Charter of the United Nations. To ask Westminster’s permission for a referendum is to acknowledge and affirm their authority to refuse that permission and, thereby, effectively veto the exercise of Scotland’s right of self-determination.

One response to this is that the precedent has been set by Alex Salmond going down the Section 30 route for the 2014 referendum. I reject this argument. I maintain that Salmond had options and chose the Section 30 route only because that was judged to be the best option in the circumstances which prevailed at the time – as discussed above. I see no reason why this should have the effect of precluding all other options for all time.

Those circumstances no longer prevail. The entire political environment has altered dramatically since 2014. To choose the Section 30 route even in such drastically different circumstances could be argued to imply that it is the appropriate or sole option in any circumstances. Asking for a Section 30 order again really would set a precedent. Granting the British political elite a veto over Scotland’s right of self-determination once can be seen as politically astute. Doing so twice would surely be political folly.

The argument goes that the British Prime Minister will refuse the Section 30 order and Nicola Sturgeon can then claim that she tried that route and has now been forced by British intransigence to go another way. That’s really not a good look. Doing something only because you’ve been forced into it doesn’t give the impression of being in control. Going that other route should be a matter of choice. It should be seen as decisive action, rather than compelled reaction.

But what if the British Prime Minister doesn’t refuse that Section 30 order? Suggesting this possibility usually elicits a response querying why she would allow it. What possible reason could a British Prime Minister have for granting a Section 30 order? I can think of one. And it’s all about control of the process.

If the British Prime Minister grants a Section 30 order this means that there must be a new agreement between the two governments establishing the ground rules for the referendum. By asking for the Section 30 order, Nicola Sturgeon would be accepting the need for such a negotiated agreement. The British Prime Minister would then make demands that Nicola Sturgeon couldn’t possibly agree to – such as a qualified majority requirement or the exclusion from the franchise of 16/17-year olds. No agreement! No referendum!

Requesting a Section 30 order is a lose/lose scenario for Nicola Sturgeon. Either way, she ends up having to find another way forward having been made to look weak and having afforded the British political elite an authority to which they are not entitled. The First Minister must seize control of the process from the outset.

Getting assertive

I wonder if our First Minister is aware of the Precautionary Principle. In the context of the duties and responsibilities of the Scottish Government in the current situation of constitutional upheaval, the Precautionary Principle may be stated thus,

“Where there exists a threat of serious or irreversible damage to the nation’s interests, lack of total certainty concerning outcomes outwith the control of policy-makers shall not be used to justify postponing measures to prevent such damage.”

This might be more succinctly expressed as,

“First do no harm or by inaction allow harm to occur.”

There can be no doubt that Scotland being forcibly taken out of the EU represents, at the very least, a threat of serious or irreversible damage to the nation’s economic interests as well as our political, social and cultural well-being.

(In fact, it is the Union which poses this threat by affording the British state the power to impose policies such as Brexit on Scotland; but the First Minister has inexplicably chosen to hang the entire independence cause on the Brexit peg, so we shall go along with that for the moment.)

Given the real and imminent threat posed by Brexit, the Precautionary Principle holds that the Scottish Government’s uncertainty about the precise details of the outcome cannot excuse failure to act to prevent Scotland suffering harm.

It may be argued that the duty of the Scottish Government to prevent harm to Scotland extends to preventing harm to neighbouring or other territories where this may impact Scotland. But, to whatever extent such a duty exists it is overridden by a duty to respect the democratic will of the people of those territories. There is not, and neither could there be, an inalienable right to suffer no harm. People have a democratic right to vote against their own interests. Governments may only intervene to mitigate the harm.

It may further be argued that, given the nature of the devolution settlement, the referendum in 2016 was a UK-wide vote on UK membership of the EU; and that, being still part of the UK, Scotland is bound by the result every bit as much as the rest of the UK (rUK). This argument relies on three assumptions or contentions –

That Scotland is not a nation in any but the most trivial sense of that term.

That the Scottish Parliament is merely an annex to the UK Parliament.

That the Scottish Government is merely an adjunct to the UK Government

The first of these assumptions or contentions may be discounted without discussion. The UK Government recognised Scotland’s status as a nation when the UK Prime Minister signed the Edinburgh Agreement prior to the 2014 independence referendum. This fact alone makes it impossible for the British state to now dispute Scotland’s status as a nation.

The remaining assumptions or contentions are less easy to discount. It can readily be maintained that the Scotland Act 1998 makes the Scottish Parliament effectively no more than an annex of Westminster, and the Scottish Government no more than an adjunct to the British executive. But bear in mind that this is a matter of constitutional law. And that, unlike criminal law – which works best by being rigorously obeyed – constitutional law works best by being constantly challenged.

There exists something which we might call the democratic imperative. An existing constitutional settlement, however thoroughly enshrined in law, may be subsidiary to this democratic imperative. That is to say, the imperative to uphold fundamental democratic principles may carry more weight than the need to abide by the letter of constitutional law. It must be so. Otherwise there could have been no social or political progress. We would still be living with absolute monarchs, warring empires and exploited colonies. (To a greater extent than we are!) Women wouldn’t have the vote and employment rights would be a matter for discussion at secretive gatherings of ‘dangerous radicals’.

All these things changed because the democratic imperative was brought into play. Because the reformed condition had greater democratic legitimacy. Women have the vote because that is more democratic than them being prohibited from voting. The demand for workers’ rights was, and remains, a demand founded on the democratic imperative. Greater democratic legitimacy outweighs lesser democratic legitimacy and the constitutional provisions which maintain that lesser democratic legitimacy.

The Scottish Parliament has democratic legitimacy. This is irrefutable. The manner in which it is elected and the way it operates gives it unimpeachable democratic legitimacy. Compared to Holyrood, Westminster has no democratic legitimacy in Scotland. The fact that Scotland elects 59 members of the UK Parliament is all but meaningless given the grotesquely asymmetric nature of the Union.

If the Scottish Parliament has democratic legitimacy then it follows that the Scottish Government does too. Only in extraordinary circumstances does a system which confers democratic legitimacy on the parliament give rise to an administration whose democratic credentials are seriously questionable. The British political system may be an example of those extraordinary circumstances.

That the Scottish Parliament is superior to Westminster in terms of democratic legitimacy is not a matter of controversy. That, despite this, it continues to be inferior in terms of constitutional law is a matter of great controversy. There are only two ways in which the conflict between democratic legitimacy and constitutional law can be resolved. Either the UK Parliament concedes the complete authority of the Scottish Parliament in Scotland – which is not going to happen; or the Scottish Government asserts that authority in defiance of the constitutional settlement.

The Precautionary Principle demands that the First Minister of Scotland act immediately to prevent the harm that will be done to Scotland, not only by Brexit, but by the impact of ‘One Nation’ British Nationalism. The only way to do this is by asserting the primacy of the Scottish Parliament on the grounds of its democratic legitimacy. That this will entail dissolution of the Union and the restoration of Scotland’s rightful constitutional status may be considered a bonus.

¹ Scotland Act 1998 [https://www.legislation.gov.uk/ukpga/1998/46/section/30]

² Request for an Advisory Opinion of the International Court of Justice on the Question “Is the unilateral declaration of independence by the provisional institutions of self-government of Kosovo in accordance with international law?” – Written Statement of the United Kingdom [https://www.icj-cij.org/files/case-related/141/15638.pdf]