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Europa United contributor, Brendan McKee assesses the current stalemate between the British and Scottish governments over the issues of a second referendum on Scottish independence and finds that there is precedence for the Scottish government’s claim to claiming the political climate has changed since 2014.

There are many reasons why Boris Johnson’s decision to not permit a new referendum on Scottish Independence is unsurprising, from the fact that he had long said he would not approve of such a measure to the fact that it is in keeping with the Tory stance that the issue of Scottish independence is settled. However, it remains quite jarring to hear the UK Prime Minister, a person elected with virtually no support from Scottish voters, make sweeping pronouncements on the state of Scottish politics knowing full well how unpopular he is in Scotland. He must know that such assertions may fuel Scottish resentment and, ultimately, further the desire for independence.

Boris Johnson’s letter to Nicola Sturgeon

This, however, is not new to anyone who has been even partially following UK and politics and so we should set aside the discussion on the political fallout of Johnson’s announcement and instead, spend some time discussing the ethical and legal issues bound up in Johnson’s decision itself, as there are a profound number of troubling flaws with his pronouncement. However, two stand out above the rest due to their importance for both Scotland and the UK: the implication that Scotland cannot decide its political future for itself and that democracy follows the principals of a time capsule and is only lawfully accessible at certain times. Both of these have profound implications not simply for the UK, but arguably for democracy itself. We would do well, then, to take a closer look at what lies behind Johnson’s words.

Self-Determination for Whom?

Firstly, and perhaps most jarringly, is Johnson’s reference to how “the people of Scotland voted decisively on…keep(ing) our United Kingdom together…(and) the UK Government will continue to uphold the democratic decision of Scottish people”. Indeed, if Johnson is so concerned with the democratic decisions of Scotland, then why does he fail to acknowledge the decision the Scottish electorate made during the Brexit referendum? Far from a one off, Scottish voters have routinely supported the SNP, and Remain-oriented parties in general, by a wide margin since the Brexit referendum. I bring this up to highlight the hypocrisy of Johnson’s statement: he claims to defend the act of self-determination that Scotland made in 2014 while at the same time denying them the ability to self-determine in the future. It is morally impossible to balance both sides of this flawed piece of logic, making his argument appear to be purely self-serving and as though self-determination for Scotland is only available when it is in the favour of the UK. Indeed, if self-determination can be exercised by Scotland only with the paternalistic approval of Westminster then there is no self-determination at all. Instead, the UK ought to follow the example set by the Supreme Court of Canada, whose Reference re Secession of Quebec strikes a virtually perfect balance between the competing interests of federalists and separatists. In the decision, the court makes no assertion about Quebec’s ability to have a referendum (it should be noted also that no mainstream politician ever seriously made a comment on the matter either), mostly because by 1998 it was already well accepted that Quebec had the right to do so. However, though Quebec is understood as having the right to unilaterally hold a referendum on secession, the court’s decision made it very clear that it has no unilateral right to secede:

Our democratic institutions necessarily accommodate a continuous process of discussion and evolution, which is reflected in the constitutional right of each participant in the federation to initiate constitutional change. This right implies a reciprocal duty on the other participants to engage in discussions to address any legitimate initiative to change the constitutional order. A clear majority vote in Quebec on a clear question in favour of secession would confer democratic legitimacy on the secession initiative which all of the other participants in Confederation would have to recognize. (Italics added for emphasis)

In short, this means that Quebec has the right to initiate discussions regarding its secession and the federal government and other provinces have an obligation to negotiate the terms of that secession, contingent upon their being clear proof that this is the desire of the majority of the Quebec electorate (it should be noted that there has never been a clarification of precisely what is meant by a “clear majority” and that the Canadian and Quebec governments disagree to this day about what threshold would need to be met to satisfy this). This decision is elegant in its appeal, its moral and legal logic, and its simplicity. Indeed, after this decision came out, the lead up to which was fraught with disagreements between both federalists and sovereigntists, both sides came away happy that the decision protected the core elements of their position. After all, it turned out that there was far more common ground between Ottawa and Quebec City than anyone thought. Moreover, the simplicity of this decision cannot be over stated, as it should be straightforward to anyone that a nation which wishes to leave a union ought to be able to do so. Though this decision is based on the specifics of the Canadian federal system, and therefore its ability to be used as a precedent for Scotland is limited, this decision nonetheless should be taken as a moral benchmark that more states should endeavour to meet. Moreover, its international applicability is easily apparent as, in many ways, the Canadian Supreme Court’s ruling mirrors Brexit: the UK had the undoubted right to leave the EU if the people of the UK so desired, however the terms of that departure required debate and compromise. All of this, however, only underscores more so how simply jarring it is that Scotland is not afforded a right to self-determine its on place in the union literally while Britain exercises its right to self-determination to leave a union.

This gets to the heart of the issue with Johnson’s statement: it understands democracy as a dictatorship of the majority, whereby self-determination is only exercisable by and through the political centre. However, to believe that the majority opinion must always trump all other concerns on an issue is not democracy. Such a position only encourages the foulest sorts of populism and demagoguery on the part of political leaders in the pursuit of their ambitions. After all, in such an envisioning of democracy only the majority need be courted for political action to occur. The outcomes of such a dictatorship of the majority can go as far as taking the form of the violent repression of minority opinions in pursuit of ‘national unity’, as we are now seeing as the Indian government initiates its crackdown on Kashmir. Even those cases which we may deem as being ‘less extreme’ remain reprehensible for their political exclusion of the minority, as it is hard to believe there is anything democratic about a Brexit which excludes the opinion of the population of Scotland and gives them no political recourse on the matter. To understand democracy in such absolute terms is to embrace a perversion of democracy which is not the will of the citizens of the nation but rather the will of only a portion of them. This position, that the majority will represents democracy, may seem seductive for those within the majority as such an exercise of their superior might ensures that they get their way. However, the fact of the matter is that democracy is, inherently, a political system built on compromise and this is the best means by which to incorporate the minority position in political matters. What form this compromise takes may vary, and indeed variety is itself an important aspect of democracy, but it is important that some mechanism for compromise exists for a democracy to be properly functioning.

Time Capsule Democracy

The second flaw in Johnson’s logic is just was jarring as the first: that a new referendum should be prohibited as the 2014 Independence Referendum being “once in a generation”. Now to his credit, he is not just making this argument up, but rather is verbatim quoting a Government of Scotland whitepaper on the referendum, which made this assertion not once but twice. However, it will be quite obvious to any reader that these statements were employed rhetorically as a way to excite voters and boost turnout. Indeed, the SNP would later back off from this stance and go as far as declaring, in their 2016 manifesto, that another referendum could be held if there was a “significant and material change in the circumstances that prevailed in 2014”. I would argue that this position is completely fine, given that it is done in defence of the majority decision of Scotland to remain in the EU as well as not in violation of anything in the Edinburgh Agreement, the legal document which set out the parameters of the 2014 referendum. However, if Johnson wants to assume their initial pronouncement was a binding promise, then he is once again being hypocritical. After all, Johnson promised that no Tory government would ever consent to having any sort of regulatory barrier along the Irish sea, which would result in the North of Ireland having no border with the Republic of Ireland but a border with the rest of the UK, and yet his Brexit bill requires specifically those kind of barriers to be in place to screen the movement of goods.

Northern Ireland presents another, far greater, problem for Boris’ logic regarding the frequency of Scottish referendums. Unlike Scotland, and indeed unlike almost anywhere else in the world, Northern Ireland has a permanent right to a referendum on Irish reunification, referred to as a border poll, which is entrenched within the Belfast Agreement. This right is not perfect, as it can only be called by Westminster via the Northern Irish Secretary and not by the devolved Northern Irish assembly, but it does, rather uniquely, include a clause which specifies that “the Secretary of State shall not make an order…earlier than seven years after the holding of a previous poll under this Schedule.” In other words, Northern Ireland can have a referendum to separate from the UK no more than once every seven years. Now of course this is a right specific to Northern Ireland and it does not extend to Scotland, but it would be extremely problematic to propose different standards on how often a referendum can occur for each of the UK’s four nations. Therefore, if we are to use the Belfast Agreement as a precedent, Scotland ought to be able to have another referendum on or after September 18th, 2021, or more than seven years after its 2014 referendum. To do anything else would be to encourage federal asymmetry within the UK, something which could only lead to problems (as is the case in Spain).

However, Johnson clearly does not see things this way. Perhaps he will change his mind in time, but for now he seems quite set at using the 2014 referendum as a weapon against the agitations of the SNP for a second referendum. Johnson’s appeals that “the will of the people has been heard” and that this will must be followed through with may sound appealing, however this is based on an assumption that democracy is some sort of elected dictatorship whereby we are bound to decisions of the past. This, however, is itself a wholly undemocratic sentiment, one which seems to imagine democracy as a system whereby people voluntarily alienate their own agency. Certainly, elections are expressions of democratic will, as are referendums and similar plebiscites, and their outcomes should be listened to, but to imagine that democracy is limited to and bound by such electoral expression supposes that democracy is simply an exercise of electing a dictatorship. To imagine that once the ballots are cast then the citizens of the nation must simply sit back and watch as their government does as it pleases for the next so many years is simply a farce. The truth of the matter is that democracies must be flexible and must be open to change. The SNP are right to argue that a “significant and material change…circumstances” should warrant a reassessment of the issues, as this is precisely the type of dialogue that democracy is founded upon.

Nicola Sturgeon’s reply to Boris Johnson

Where does this leave Scotland?

Ultimately, Boris Johnson’s statement in regards to a second Scottish referendum is wrong. It is wrong because it denies the Scottish right to self-determination and it is wrong because it assumes that democracy is only periodically accessible. Both Quebec and Northern Ireland provide us with better examples on how to proceed with Scottish demands for a second referendum and for his sake Johnson should take heed of both these cases. To continue to deny Scotland a right to a referendum will only stoke the fires of resentment that many Scots feel and will only fuel arguments for secessionism. If Johnson truly wants to maintain the UK then he is going to have to begin changing the dynamics of how it is run. I have mentioned before the need for a more functional federal system of politics within the UK, but that is a long-term solution. In the immediate future the best thing he can do to safe-guard the UK is to allow the Scots to have their referendum. Perhaps the SNP will succeed if he does, and in that case he can rest assured that he did the morally right thing. Moreover, he can look to the example set by Sweden and Norway more than one hundred years ago and start building the basis for a strong and positive relationship with the newly independent Scotland. However, it is also possible that by allowing the Scots to have another referendum he will prove to them that he, and Westminster, are not the villain and are not hellbent on dominating Scotland. Rather, the people of Scotland can rest assured that their nation has chose to remain in the UK despite Brexit and that their right to self-determination is secure. Either scenario leaves the UK and Scotland better off than it is now, so what does Johnson have to lose? Now is the time for him to swallow his pride and do the right thing. However, I for one will not be holding my breath in anticipation of this.

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Brendan McKee
Brendan Mc Kee is a graduate of the University of Edinburgh with a particular passion for nationalist politics. His work focuses on unpacking the complexities of current affairs and expand the political conversation. You can read more on his blog: https://medium.com/@brendanmckee

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