The key flaw in the SNP’s indyref ruse

This week we’ve had the bizarre occurrence of the SNP formally submitting a request to intervene in the Indyref2 Supreme Court case, even though Scotland’s top law officer, the Lord Advocate, has already put forward the Scottish Government’s written case.

To recap, the Lord Advocate Dorothy Bain has referred a prospective bill on a referendum to the UK Supreme Court so that judges can rule on whether Holyrood has the power to unilaterally hold a vote. In a 51-page written submission to the court, Bain argues a referendum, which Nicola Sturgeon wants to see take place in October 2023, would merely demonstrate the views of the Scottish people regarding secession from the UK and would not have the legal outcome of ending the union. Being purely advisory, and having no legal effect, legislation unilaterally enabling a referendum is, therefore, not of a kind that it ‘relates to’ the reserved matter of the union, goes the argument.

That was in June. Now, the SNP has requested a formal intervention in the case, with the party’s lawyers submitting a lengthy application to make their argument. The SNP wishes to be allocated time to make oral and written submissions when court proceedings take place in October. It seems the party is either worried that the Lord Advocate’s case is too even-handed and wishes to sway the judges with its own arguments, or it views the court case and attendant publicity as a useful campaigning platform.

The SNP’s application to be formally heard reiterates the Lord Advocate’s arguments. But it goes further by stating that a ruling in favour of Holyrood having the power to hold a referendum should happen because of the fundamentals of ‘self-determination’ – that Scotland, by definition of being a nation, must have the right to unilaterally hold a referendum on secession from the union.

Citing international law as backing its arguments, it quotes part of the International Covenant on Civil and Political Rights, which was ratified by the UK in 1976:

‘All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.’

It then makes the case that the people of Scotland form a ‘discrete demos or ‘a people’ for the purposes of the right to self-determination’. Holyrood legislating for a referendum without the agreement of Westminster would, therefore, be ‘an exercise by the Scottish people of their right to self-determination’.

It is an odd argument to make. On the one hand, self-determination arguments citing international law are used to promote the idea that the people of Scotland via their parliament are essentially sovereign when it comes to self-determining whether to leave or stay in the union. But having talked up the power of the people, the SNP then seeks to completely downplay that power by making the case that the self-determining referendum is irrelevant to the future of the union. The SNP’s lawyers even go so far as to say that the holding of a referendum would not have ‘anything more than a loose or consequential connection with any reserved matter’.

It’s thin stuff. Can you imagine Nicola Sturgeon accepting that the outcome of such a referendum only has a ‘loose’ connection to the union following a vote to secede?

More significant though is the self-serving interpretation of self-determination, which does not fit with accepted international principles. A useful comparison here is the situation with Quebec and the Canadian Supreme Court’s 1998 judgment on potential secession by the province.

On considering whether a right to unilateral secession exists under international law, the judges deliberated on the right to self-determination. The ruling states:

‘Although much of the Quebec population certainly shares many of the characteristics of a people, it is not necessary to decide the ‘people’ issue because, whatever may be the correct determination of this issue in the context of Quebec, a right to secession only arises under the principle of self-determination of people at international law where ‘a people’ is governed as part of a colonial empire; where ‘a people’ is subject to alien subjugation, domination or exploitation; and possibly where ‘a people’ is denied any meaningful exercise of its right to self-determination within the state of which it forms a part. In other circumstances, peoples are expected to achieve self-determination within the framework of their existing state. A state whose government represents the whole of the people or peoples resident within its territory, on a basis of equality and without discrimination, and respects the principles of self‑determination in its internal arrangements, is entitled to maintain its territorial integrity under international law and to have that territorial integrity recognised by other states.’

The Scottish context is similar to that of Quebec: Scotland is not a colony; Scots are not oppressed; the nation already has internal self-determination. The people of Scotland, like the people of the rest of the UK, have equality without discrimination within the framework of the existing state.

The failure to distinguish between internal and external self-determination should be seen as a critical weakness of the SNP’s arguments. The party’s refusal to accept international norms when it comes to defining self-determination should be taken as a red flag by those who respect democracy. Indeed, if their argument for self-determination were accepted then it would set a dangerous new precedent for all nations-of-nations, which most democracies are in one way or another.

That we are even having these arguments in established western democracies, in what should be a post-nationalist era, is depressing. Hopefully the Supreme Court will recognise the primitive nature of the SNP’s arguments and treat them accordingly.