WeeklyWorker

01.12.2022

Self-determination is a right

Mike Macnair scrutinises the UK Supreme Court’s ruling on ‘Indyref2’ and looks at some typically inadequate left responses

On November 23 the UK Supreme Court handed down its ruling in ‘Reference by the Lord Advocate of devolution issues under paragraph 34 of schedule 6 to the Scotland Act 1998’ - the case on whether the Scottish National Party’s devolved government in Edinburgh should have the power to organise an ‘advisory’ second referendum on independence (otherwise known as ‘Indyref2’). The answer given was that it does not.1

The SNP has responded by suggesting that the next general election will be a “de facto referendum” on independence. Unsurprisingly, Scottish pro-unionist parties disagree.2 The Tories have responded by complaining that work done on the issue by the SNP-Green administration is a waste of taxpayers’ money, and is threatening to take direct control of the Scottish civil service for Westminster to prevent future attempts.3

Socialist Worker (November 23) came out late enough to report the small “instant protests” against the decision in Scotland, and to comment that the judicial decision showed (in their view) the falsity of the SNP’s strategy of relying on elections rather than on street actions. Anticapitalist Resistance simply reposted the statement from the Radical Independence Campaign, denouncing the decision, writing that “The unelected judges of the UK Supreme Court are saying that the Scottish parliament is permanently vassalled to Westminster and its undemocratic parliament, government and state”, and calling for turning the strike wave into a “campaign of mass direct action - strikes, protests, rallies, civil disobedience - against this rotten undemocratic Tory government”. The Morning Star (November 24) peculiarly combined denouncing the constitutional debate as a diversion from the economic struggle, with proposing a constitutional alternative (“progressive federalism”).4 So, how should the left respond to the decision?

Tory spin

After an introduction (pp1-5), a bit more than the first half of the judgment (pp5-21 of 34) is directed towards rejecting the arguments of the UK government that the court either had no jurisdiction to hear the case under the terms of the Scotland Act, or if it had jurisdiction should refuse to hear it as a matter of discretion - whether because the point at issue was obvious, or because the proposal to hold a second referendum was not sufficiently detailed for a court to judge its legality.

On the UK government’s own arguments as to why the court should not hear the case, and on the evidence of the larger part of what followed, the case that the devolved government did not have the relevant power was very strong. So why waste time and attention on an elaborate argument that the court should not hear the case, which needed half the judgment to answer it?

Why they did it became clear with the Tories’ post-judgment complaints about the Scottish government “wasting taxpayers’ money” on Indyref2. By getting the court to refuse to hear the case, the Tories hoped to force the Scots government to ‘play chicken’ - either wholly abandoning Indyref2 and their electoral pledges or spending public funds on a larger scale, while waiting for the UK government to choose the right moment, from the point of view of spin, to bring down the axe in the form of government-initiated litigation to say the planned referendum was unlawful.

The SNP government understandably preferred to have the judicial decision taken at a time of its choosing - hence the reference of the question to the Supreme Court by the Lord Advocate (the Scottish government’s chief law officer). This was also the ‘responsible’ course of action (limiting the amount of public money spent before unlawfulness was established), as well as mitigating the political risk to the SNP. The ‘Reed court’ - the Supreme Court under the presidency of Lord Reed - is famously more Conservative (capital c intended) and more deferential to the executive than the court was in earlier periods.5 But, although there were quite plausible arguments in support of the UK government’s view, the judges were evidently not willing to be made into a mere instrument of UK government and Tory media spin.

Substance

About eight pages of the judgment (pp22-30) are concerned with the straightforward issue of interpretation of the Scotland Act posed by the reference: would holding an ‘advisory’ referendum on independence be a “reserved matter” - as in section 29 of the Scotland Act 1998, which excludes from the competence of the Scottish parliament, among other things, “reserved matters”? And, under Schedule 5,

The following aspects of the constitution are reserved matters, that is -

(a) the Crown, including succession to the Crown and a regency,
(b) the Union of the Kingdoms of Scotland and England,
(c) the Parliament of the United Kingdom …

Scotland becoming independent obviously relates to the “Union of the Kingdoms” and, as a consequence (though less obviously), to “the parliament of the UK”. Though the court devoted some space to rehearsing arguments on both sides about the meaning of “relates to”, the only real argument of substance that Indyref2 would not “relate to” the union was that the proposal was for a merely advisory referendum. After the way in which the supposedly “only advisory” Brexit referendum was elevated by the press into something binding, this argument had low plausibility, and their lordships cited the example of the Brexit referendum to dispose of it (para [79]).

The Radical Independence Campaign statement argues: “The court is saying that a parish or district council in England has the right to call a referendum on any issue, but what was claimed to be the ‘most powerful devolved parliament in the world’ cannot.”

It is, of course, true that local authorities have wide powers to hold local referenda - a recent example in my own area is the 2017 ‘Headington local plan’ referendum approving Oxford District Council’s ‘local plan’ for the Headington locality by 3,310 votes to 543 in a 38% turnout.6 The Tory government has required referendums for local authorities to raise council tax above a threshold set by the minister - a rule recently amended as part of Jeremy Hunt’s austerity measures.7 However, any court would have no difficulty in holding that the use of this power to hold a referendum on secession from the UK would be unlawful - not only in implausible areas like Pimlico, but also more plausible ones like Vectis or Kernow.8 The secession decision would be unrelated to the general powers of the local authority, and the right to hold referendums has to be read as impliedly limited to those general powers. The Scottish parliament, in contrast, looks like a national parliament (and is the parliament of a territory which was sovereign until 1707, which is fairly recent in the history of European states). It is for this reason that the Scotland Act - if the Blair government wanted to prevent secession, as it did - had to expressly reserve the question of the union to the UK parliament.

In short, in this case it is not the “unelected judges” who are denying the right of the Scots government to hold independence referendums without the consent of the UK government. It is the express terms of the Scotland Act 1998 passed by the Blair administration on the back of a landslide electoral victory in 1997. That does not mean that the exclusion of a right to secede in the Scotland Act 1998 was correct. It merely means that, while judges commonly do reach arbitrary decisions with a view to class or party-political advantage, this one is not such a decision.

Self-determination

The political sting in the judgment comes in its tail, in pp31-34. Though the case had been referred to the Supreme Court by the Lord Advocate - ie, the Scottish government - the SNP was allowed to ‘intervene’ in the case to offer further arguments. The argument it offered was that Scotland has a right to self-determination in international law; English law is to be interpreted as far as possible so as to comply with international law; and hence the 1998 Scotland Act should be interpreted so far as possible to be consistent with this right. This in turn would lead to the conclusion that section 29 and schedule 5 should be read as narrowly as possible, and hence permit an ‘advisory’ referendum.

Their lordships’ response to this is in the first place that the Scotland Act is not ambiguous so as to allow the suggested interpretation. This is a weak argument, because if the Scotland Act is entirely clear, then the UK government’s argument that the court should not hear the case should succeed. But, more fundamentally, they deny that Scotland has a right to self-determination in international law. The argument rests on a 1998 decision of the Supreme Court of Canada on whether Quebec could secede, where the court said:

… the international law right to self-determination only generates, at best, a right to external self-determination in situations of former colonies; where a people is oppressed, as for example under foreign military occupation; or where a definable group is denied meaningful access to government to pursue their political, economic, social and cultural development.9

And, on the UK’s 2009 submissions to a United Nations discussion of reference of the secession of Kosovo to the International Court of Justice at the Hague, it stated:

To summarise, international law favours the territorial integrity of states. Outside the context of self-determination, normally limited to situations of colonial type or those involving foreign occupation, it does not confer any ‘right to secede’.10

Hence the Supreme Court now asserts clearly that Scotland does not have the right to self-determination, since it is neither a colony nor subject to foreign occupation. That is, to put it in ‘orthodox Trotskyist’ terms, Scotland does not have the right to self-determination because it is not an ‘oppressed nation’.

Not so long ago this would have been the SWP’s line. Not completely senseless: the political meaning of self-determination is perfectly clearly reactionary where it is for the “southern nation” in the 1860s US, or in the late 20th to early 21st century ‘Padanian’ or ‘Flemish’ aspirations to secede in order to shed the ‘welfare-dependent’ southern parts of Italy/Belgium. But what counts as being an “oppressed” or “colonised” people? Perfectly clearly, from the Kosovo case and other recent instances, the “oppression” test as applied in “international law” gives you the right to self-determination if the USA thinks you should have that right.

More recently, the SWP’s tailism has led to it joining in the chorus of Tom Nairn-like hopes that “breaking up the British state” will open the way to revolution (SWP) or modernisation (Nairn). And that is the line of the SWP’s comment on the judgment: it accuses the SNP of “appealing to successive Tory governments for permission to smash up the union” and relying “on the institutions of the British state, not on mobilising mass support for independence on the streets, combined with civil disobedience”. Here the SWP pretty much openly places itself in the lineage of the anti-electoralists Lenin criticised in 1920 in Leftwing communism. But it does so in the service of “breaking up the British state” as in itself a good thing, without considering that breaking up the British state might have the same sort of ‘benefits’ for the working class as breaking up the Yugoslav state had for the Balkan working class in the 1990s - as is, in fact, most likely.

Referenda are scams: and this is, in fact, just as much true of the ‘Headington local plan’ referendum, as of Indyref2, as of the Brexit referendum or the 2014 Scottish referendum, as of the 1979 referendum on creating the ‘Islamic republic’ of Iran. The Scottish people should have the right to secede - not because Scotland is an oppressed nation, but merely because it is a nation. But it should be the parliament which takes the decision, on the basis of full information about the plans for costs and benefits: not a pig-in-a-poke referendum.

Federalism

The Morning Star more sensibly calls for “progressive federalism”, though saying that this “will remain a mere slogan until the left in every British nation understands the need for it”. But the main burden of the Morning Star editorial on the judgment is: “We cannot, then, risk treating the next election as ‘a referendum on independence,’ as the Scottish first minister wants us to. The class struggle cannot be set aside for another round of constitutional fisticuffs.” And the federalism the Star seeks (besides keeping quiet about the monarchy) is “economic democracy”.

The problem with this approach is simple. It is delusive to suppose that we can fight for “economic democracy” without also fighting for political democracy. It is delusive, indeed, to suppose that we can fight for socialism without fighting for political democracy. This is at least part of the lesson of the fall of the old ‘socialist bloc’: collective decisions without political democracy produce self-serving lies from the leaders and led, and as a result ‘garbage in, garbage out’ plans. The Morning Star is halfway to escaping from the widespread left delusion that the working class can be conned into taking power by focusing exclusively on the economic struggle; but, as this leader shows, only halfway.

mike.macnair@weeklyworker.co.uk

  1. www.supremecourt.uk/cases/uksc-2022-0098.html.↩︎

  2. ‘SNP to make UK general election “de facto” referendum on independence following Supreme Court defeat’ Daily Record November 23; ‘Scottish opposition parties reject SNP’s plan to treat election as referendum’ The Guardian November 24.↩︎

  3. Eg, www.scotsman.com/news/politics/scottish-independence-alister-jack-reveals-role-of-civil-servants-in-scotland-being-looked-at-after-supreme-court-indyref2-verdict-3934450. See also ‘Nightmare of British taxpayers’ money being used to push the break-up of Britain may be over’ The Daily Telegraph November 29.↩︎

  4. socialistworker.co.uk/news/protest-after-supreme-court-denies-scottish-independence-referendum; anticapitalistresistance.org/ric-statement-on-supreme-court-ruling; morningstaronline.co.uk/article/b/supreme-court-rules-holyrood-does-not-have-right-to-stage-independence-referendum.↩︎

  5. www.lrb.co.uk/the-paper/v44/n02/conor-gearty/in-the-shallow-end. See also ukconstitutionallaw.org/2022/04/04/lewis-graham-the-reed-court-by-numbers-how-shallow-is-the-shallow-end.↩︎

  6. www.oxford.gov.uk/info/20069/neighbourhood_planning/1175/headington_neighbourhood_plan_referendum.↩︎

  7. commonslibrary.parliament.uk/research-briefings/sn05682. See also ‘Council tax bill for average Band D home is set to soar by £250 over next five years with series of 5% hikes after Jeremy Hunt ditches rule forcing town halls to hold referendum’ Mail Online November 17.↩︎

  8. Pimlico: as in the movie (en.wikipedia.org/wiki/Passport_to_Pimlico). Vectis: short-lived secessionist movement around 1970 (en.wikipedia.org/wiki/Vectis_National_Party). Kernow: Mebyon Kernow (mebyonkernow.org) presently argues for a devolved parliament rather than for independence.↩︎

  9. Paragraph 88, quoting Reference re secession of Quebec [1998] 2 SCR 217.↩︎

  10. Paragraph 89, quoting Written proceedings in relation to UN General Assembly resolution 63/3 (October 8 2008), Written statement of the United Kingdom in response to the 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?’ (April 17 2009), paragraph 5.33.↩︎