A Separation Vote in IndyRef2 has no Legitimacy

March 14, 2017

 

A mere two and a half years after suffering defeat in the original separation referendum, just yesterday, Monday 13th March 2017, Sturgeon announced that as First Minister she will make a formal request to the UK Government to hold a second referendum, pending a successful vote at Holyrood. The promise that the initial vote would variously be “once in a generation”, “once in a lifetime” or “clear and decisive” was brushed aside as she announced plans to hold a second vote sometime between late 2018 and early 2019. It is clear that the “will of the Scottish people”, expressed clearly in the original referendum endorsed by nationalist and unionist alike, is held in contempt by the SNP.

 

Despite this, it is widely accepted that the UK Government will grant a Section 30 order for the Scottish ‘government’ to hold a second separation referendum, and that it will at best delay IndyRef2 until some point from late 2019 onwards. In doing so, both parties accept as granted the legitimacy of a second referendum while merely haggling over the date.

 

What isn’t challenged is the idea that a referendum is an entirely acceptable and legitimate way to break up our country. In endorsing a separation referendum, SNP, Labour, Lib Dem and Conservative alike consent to the referendum  as a legal, moral and constitutional mechanism for ending over 300 years of UK union. In granting this, the mainstream unionist parties concede that in the event of a Yes vote, they would abandon their commitment to the Union and embrace the new order of an independent Scotland outside the ‘United Kingdom’, as far as such a thing could be said to exist without one of its original partners.

 

If one takes a step back and thinks about it, this is quite an extraordinary thing. What other developed nation would allow itself to be broken up in such a way, through a simple majority in a one-off vote with no constitutional safeguards? Canada had the sense to introduce the Clarity Act requiring a supermajority for the secession of any of its regions, having learned well form its experience with Quebec separatism. Here in the UK, the original devolution referendum of 1979 had a 40% turnout threshold which proved to be decisive in defeating the separatist campaign, which won a majority of votes in a referendum dominated by abstentionism and apathy. Far less significant changes than the territorial integrity of the nation typically require majorities of 2/3 or more in many liberal democracies. Far from being the imperialist monster that nationalists make it out to be, Britain is uniquely soft with its separatist movements in a way that would be unthinkable on the continent.

 

This unchallenged acceptance of the idea that it is legitimate to break up our country through a simple majority in a one-off referendum, including only a very small part of the electorate, has brought the UK to the brink. We now face the prospect of our country being torn apart despite electing our MPs and government on pro-Union mandates, in a referendum launched by a devolved assembly with no authority on such constitutional matters, just a few years after an original vote which we were told would be “once in a generation”. And all this in a process in which EU citizens living in Scotland take part while Scots who live in other parts of the UK are outrageously denied a say.

 

The position of the Unionist Party is that none of this is in fact acceptable. We do not concede that it is acceptable to break up our country through this referendum process. A separation vote in the event of IndyRef2 would be illegal, unconstitutional, and lack the parliamentary mandate that our representative democracy requires. We offer a short explanation of our position on these matters below.


INDYREF2 IS ILLEGAL

 

Fundamentally, the Union is a reserved matter and as such lies outwith the remit of Holyrood, which is Sturgeon’s chosen platform for launching this second referendum process. This is stated clearly in Section 29 of the Scotland Act 1998. Only the UK Government has a right to legislate on the UK constitution. Because of this, it is in turn the duty of the presiding officer at Holyrood, currently Labour MSP Ken MacIntosh, to reject any bill presented to him which attempts to legislate on matters outwith Holyrood’s competencies as stated in Section 31 of the Scotland Act 1998. And equally, it is his duty to refuse to present any bill for royal assent that attempts to legislate outwith the remit of Holyrood’s powers, according to Section 32 of the Scotland Act 1998. There is therefore no legal mechanism by which Sturgeon can call for a referendum through Holyrood without the UK Government first (and not belatedly after the initial request) granting a Section 30 order and bestowing it power over such matters.

 

All these legal points, sadly, are likely to hold little sway with the current political class and in particular the devolved assembly at Holyrood which has consistently, with the tacit approval of the Conservative UK Government, acted far beyond its remit. So while Holyrood will almost certainly plough ahead with its IndyRef2 plans, the Unionist Party does not regard these actions as legal or in any way appropriate or authoritative.

 

INDYREF2 IS UNCONSTITUTIONAL

 

The UK is a representative, parliamentary democracy where decisions are made by our democratically elected members of parliament. This fact is enshrined in the very Act of Union which created the UK and was true also of the pre-Union parliaments in Scotland and England. Referendums, a very inferior form of direct democracy, were until the political revolution of recent decades regarded as totally unconstitutional and decidedly un-British. They were described by Clement Attlee as “alien to all our traditions”, as devices of demagogues and tyrants favoured only by the far-left and far-right on the continent. The trademark stability of British history owes much to our traditions of representative democracy embodied in the House of Commons.

 

Referendums are inherently divisive and inadequate as a means of making major decisions, forcing people into often arbitrary opposing camps and reducing the diversity of public opinion to two binary, polarised options, in this case ‘Yes’ or ‘No’. There is no room for the nuance seen in representative systems where multiple parties are elected with comprehensive manifestos outlining not just what they support but how exactly they intend to bring it about. This allows room for both clarity and compromise, features that anybody can see have been lacking in our referendums of recent years. Division, polarisation and ultimately a lack of any sort of conclusive result are inherent features of the referendum process. Incidentally, this is why due to our support for the UK leaving the EU, we continue to advocate for the election of pro-Brexit MPs as the most important and direct means of achieving this.

 

When awkwardly jammed into a parliamentary democracy like ours, the biggest problem with referendums is that they set can set up a rival authority to parliament. In the event of a Yes vote in a second referendum, that may indeed be one sort of democratic expression for separation, but it would come into conflict with the expressed will of both the Scottish and the wider UK public in their election of MPs. The British people elected a Conservative Government with a mandate to maintain Union. The Scottish electorate may have sent 56 SNP MPs to Westminster, but none of them won those seats on a manifesto commitment to implement separation or indeed even the referendum they intend to use to bring it about. If we stuck to our traditions and laws of representative democracy and denied the SNP the short-cut of referendums, they would have a far harder time winning seats on manifesto commitments to UDI (Unilateral Declaration of Independence) which they would otherwise require to achieve their separatist goals.  This is really what we should be forcing the SNP to do if they want to make their case for breaking up our country; until they do this, they will, according to our constitution as a representative democracy, have no mandate for separation.

 

Quite apart from coming into conflict with the laws and authority of parliament, a second referendum would conflict with the very laws enshrined in the first one! The Edinburgh Agreement, signed by Sturgeon, Salmond, Cameron and Michael Moore, stated that the referendum of September 2014 was to deliver a “decisive expression of the views of people in Scotland”. This is just one example of how, amidst the overturning of our laws and constitution, we are in effect devolving into arbitrary government where populist nationalist movements and spineless politicians are making our democracy almost redundant. How else can a No voter be expected to feel if they are subjected once again to a vote on the breakup of their country so shortly after they last won its unity?

 

WE WILL REMAIN UNIONIST REGARDLESS OF THE INDYREF2 VOTE

 

We have stated clearly now, long before IndyRef2 itself, that we will not regard a separation vote as a legitimate means of breaking up our country, and have outlined clearly and precisely why we regard a second referendum as illegal, unconstitutional and all-round illegitimate. It is the duty of the Conservative Government, elected on manifesto commitments to maintain Union and oppose a second referendum, to do just this and to deny any illegal requests from Sturgeon to launch a second referendum. Sadly, though predictably, it seems unlikely that they will do this.

 

The Unionist Party will always, regardless of the result of a second referendum, make the case for UK Union and contest elections on manifesto commitments to that policy. A second separation referendum has no legitimacy as a means of breaking up our country according to all our laws and traditions; it is the duty of the UK Government to honour them and we call upon them to do so.

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