Religion, law and the constitution

Balancing beliefs in Britain

The Conservative Government of the United Kingdom is not currently willing to facilitate a second referendum on Scottish independence, and Boris Johnson has recently cited the war in Ukraine, along with the generally febrile state of geopolitics, as reasons to avoid such distractions. Unsurprisingly, this stance is a source of ongoing frustration for the SNP administration north of the border, and a while ago Nicola Sturgeon’s Government took legal advice on the possibility of unilateral action to organise a vote.

The content of this advice is not currently known, as the Scottish administration have so far resisted disclosing it, but this may change, following a ruling from the Scotland’s Information Commissioner that the legal opinion should be made public. It is very likely that at least parts of the report will be uncomfortable for the SNP, given that constitutional matters in general, and the Union between England and Scotland specifically, are clearly “reserved” and outside of the remit of devolved Parliaments (see Scotland Act 1998, Sch 5, Part 1, 1(b).  Furthermore, a cynical, or at least a canny, observer, might imagine that the Scottish executive would have been more willing to publish the advice if it had been helpful to their cause.

Taking all of this into account, it looks very much as though there has been a clash between the SNP Scottish Government, insisting that it has an electoral mandate to hold a second independence referendum, and the Conservative UK executive replying that the power to arrange such a vote lies exclusively in Westminster. Consequently, as things stand, this move would not be in the best interests of the UK or the international community.

Europe has recently seen the disastrous fall out from the Spanish State Government, and the regional administration of Catalonia locking horns in a similar manner.  In fairness, the pro-independence regime in Catalonia had a far weaker democratic mandate as far as the parliamentary majority was concerned, as well as a much clearer legal context. They were indeed told directly by the Spanish Constitutional Court that their purported vote would infringe the Rule of Law.  Therefore, it would not be fair to claim that the UK is teetering on the edge of quite such an alarming constitutional precipice, nor to directly compare Sturgeon and Puigdemont.  Nevertheless, there are worrying parallels, and the Catalan example is not one which anyone would want to follow.  In the end, an illegal vote took place which demonstrated nothing, lacking any independent scrutiny, proper safeguards or even secure means for law-abiding citizens to participate, whilst various individuals were injured in unnecessary violence and a number of politicians spent significant time in prison. Effectively, everybody lost, and the credibility of both state and regional Governments was eroded.

Equally, Brexit is an example of a state executive actively enabling a referendum, and unleashing social and political mayhem as a consequence.  A narrow victory for one side, bringing about cataclysmic change, generated resentment on both sides, whilst many “Remainers” argued that people had been misled about what they were voting for,  the outcome was advisory only and that Parliament should use its sovereign position to block a move that was contrary to the welfare of the nation.  Equally, many of those in the leave camp saw this response as anti-democratic and unfair, and felt that they were at risk of being cheated of their victory.  The practical aftermath of Brexit continues to cause painful divisions, the current volatile situation with the Northern Ireland protocol being the latest in a seemingly endless parade of bitter conflicts.

So, what does this show?   Are Governments “damned if they do and damned if they don’t” when it comes to organising referendums on controversial and complex questions?   There are certainly pitfalls which cannot be underestimated when it comes to the use of referenda, but it does seem that stubborn resistance to a popular vote under any circumstances is not a viable solution.   Equally, it is crucial to highlight that expectations should be managed: what are people voting for?   what exactly will happen on the basis of a “yes” or “no” decision?  what further choices will have to be made, or treaties negotiated, who will do this, and on what time-scale?  All these issues need to be set out in advance, and all sides have to understand and honour it, both in terms of political regimes and the general population.  The resentment and anger representing the EU did nothing to assist the United Kingdom get its house in order, and made a bad domestic situation worse.  In contrast, the singing of Auld Lang Syne in the European Parliament after approving the withdrawal agreement was one of the few edifying and healing moments.

Perhaps the question of how to do referendums, ultimately relates to how we do political discourse.  It is legitimate to be angry, frustrated or sad at the perspective of ideological opponents, but the response should be to identify the issues at stakes, and tackle those, avoiding ad hominem attacks or demonising other groups.  Furthermore, if all participants in a decision-making process commit to that process, then it is possible to accept its outcomes, even if we may want to change them.   The United Kingdom may wish to re-enter the European Union, Scotland may or may not desire to leave the United Kingdom, and may or may not aim to re-join if it does.  We have hundreds of possibilities before us, but we need to decide wisely how to make collective decisions about our future.


Related Articles

“Indyref legal advice ruling is being ‘considered carefully’-Nicola Sturgeon” BBC News (2/5/22)

“Boris Johnson: This is not the moment for Indyref 2” Holyrood (18/3/22),boris-johnson-this-is-not-the-moment-for-indyref2

“MEPs Sing Auld Lang Syne after approving withdrawal agreement” The Telegraph (29/1/20)