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The Constitutional Straitjacket

We are witnessing the erosion of Scotland’s democratic capabilities in real time. This paper will explore how under the UK’s Constitutional framework, the Scottish electorate are unable to determine their own future and are failed by the democratic safeguards supposedly provided by the separation of powers.


At the core of the UK’s legal system is the ‘separation of powers’; a principle ascribed by UK Constitutional law which regulates the scope of powers exercisable by each of the three branches of government; the executive government, legislative parliament, and judicial courts. By establishing an interdependent and evenly balanced division of powers, the system is designed to ensure that each governmental branch is accountable to the others. This web of accountability aims to prevent one branch of government from being able to exert its will on society unchallenged, while simultaneously ensuring that members of society maintain some form of control over the functioning of the legal system through their ability to replace certain branches in democratic elections. This balance of power provides the public with a layered system of protection from bad faith actors, however, for the Scottish electorate, it is fundamentally flawed.  


1.      The Scottish government’s inability to enact referendum legislation.


In 2023, the UK Supreme Court (UKSC) held that the power to authorise an advisory or binding referendum on Scottish independence is reserved to the UK government. The court interpreted provisions within the Scotland Act 1998 which is a piece of modern constitutional legislation regulating the scope of powers afforded to devolved governments. Upon interpreting the act, the court concluded that under the UK’s Constitutional framework, the Scottish Parliament could not legislate to hold a referendum, and that without the approval of the UK government, no lawful referendum could be held. According to this ruling, even if one pro-independence party was elected at Holyrood with 100% of the vote, the Scottish government would not be capable of authorising a referendum or legislating for one. Instead, those powers would remain with the UK government and UK parliament respectively.


2.      Scotland’s democratically deficient electoral inability.


To gain the power required to facilitate an independence referendum on behalf of the Scottish electorate, a pro-independence party would need to win a majority of seats in a UK-wide general election and form a UK government. Only then could they lawfully pass referendum legislation or provide the necessary consent to the Scottish government. However, this threshold is entirely unattainable; Scottish seats account for only 9% of those available in general elections, while 82% of seats are located in England where the respective MPs are elected by Unionist voter bases and have no reason to support Scottish independence. The UK’s electoral system therefore ensures that (without exception) anti-independence supermajorities are always elected in Westminster, and that anti-independence governments are always formed in Downing Street.


The most that the Scottish electorate can possibly do (and have done) is elect a majority of MSP’s and Scottish MP’s which support holding a second referendum. However, even if pro-independence representatives won 100% of the Scottish vote in each election, the respective democratic mandates would not be treated as authoritative by UK law; the MSPs would not be able to pass lawful referendum legislation, and the MPs would not be able to form a UK government or raise the majority of votes needed to pass the necessary legislation.


In practice, this constitutional system has been exceptionally efficient in suppressing Scotland’s democratic expressions; despite having attained several successive mandates from the Scottish electorate to hold a second referendum, the Scottish government have been unable to lawfully pass referendum legislation, have been continually refused authorisation by the UK government, and have seen legislation proposed in the UK parliament to devolve the relevant powers rejected overwhelmingly.


The powers to control Scotland remain concentrated in UK wide sources of authority which the Scottish electorate are unable to exercise democratic control over. Resultingly, the Scottish electorate are by fact and nature, unable to determine their own constitutional future, with that future instead being at the mercy of anti-independence UK governments and parliaments.


3.      Failing separation of powers


Amidst the general democratic injustice highlighted, the UK’s prized separation of powers becomes defective in several ways, with the various failings all stemming from the same fundamental flaw in Scotland’s constitutional settlement which negates the democratic abilities of the Scottish electorate.


The effectiveness of the UK’s separation of powers is partially premised on the electorates ability to remove their government and install members of the legislature as they choose. In turn, democratic elections enable the population to maintain some control over the legal systems functioning, with the separation of powers ensuring that thereafter, the will of the people is not distorted by any bad faith actor.


However, as was previously established, the Scottish electorate cannot effect the necessary change in the UK’s executive or legislature on their own merit, and because of this, the UK’s electoral system ensures that pro-independence governments and parliaments are simply unattainable. Resultingly, where the powers over ‘Scotland only issues’ are held by Westminster, the Scottish electorate cannot play the role which the separation of powers requires of them for that system to have the effect which its founders intended it to.


a)      Parliament’s ability to balance the PM’s discretionary power.


The web of accountability instilled by the separation of powers works in every direction; the legislature can exercise some balancing powers over the executive and vice versa. In practice however, these balancing powers are not always particularly effective; the close political relationship between the two branches means that they almost always share a consensus on key issues and operate to achieve shared objectives. The executive is formed by the leader of whichever party gains the most control over the legislature. Accordingly, the executive government can generally steer the direction of parliament according to their parties’ objectives.


Parliament is therefore unlikely to act against the executive, however, it is by no means constitutionally impossible; the executives’ legislative ability is still premised on their support from parliament, with parliament being able to ‘rebel’ and vote down legislation proposed by the government while also being able to pass legislation contradicting the government’s position if enough support is conjured. While this is rare, it could feasibly be exercised in extreme cases; for example, if a government was refuting the democratic will of the people it serves in an attempt to establish authoritarian control over the population. However, when it is only the democratic will of Scotland which the executive denies, the anti-independence legislatures will instead work with the anti-independence government to ensure their common goal is safeguarded. Again, because Scotland cannot replace the legislature and install one which would promote the democratic rights of Scotland, the separation of powers does not protect Scottish voters from these bad-faith actors.


b)     Judicial intervention.   


The Judicial branch can override a decision taken by the executive if it breaches the scope of their decision-making powers as prescribed by legislation passed by parliament, but they cannot amend or overrule the legislation itself. By the principle of parliamentary sovereignty, legislation is treated as the highest form of legal authority and as such, the courts (in theory) have to interpret and apply it faithfully. This is a strong example of all three branches of government working in harmony to balance each other’s powers, while fair account is given to the democratically elected nature of the parliament. Again however, this aspect of the separation of powers offers the Scottish electorate no protection from UK parliaments and governments which are intent on refuting Scottish democracy.


The principle of parliamentary sovereignty means that if the executive and legislature conspire in a concerted effort to bind the population in a certain way through legislation, then there is usually not much that the courts can do, even if the population is negatively affected by it. This sort of action is generally prevented by the levers of democracy: because the electorate can remove members of the legislature and government at the next election, the self-interests of MPs and the PM are threatened and as such they are encouraged to refrain from acting in contradiction to the public interest. However, Scotland is yet again let down by its inability to influence elections of the UK parliament and government. This democratic deficiency enables the anti-independence executive and legislature to conspire to disapply Scottish democracy with no legal repercussions from the independent courts, and no electoral repercussions from the general public.


In 2022, the UKSC provided an interpretation of the UK’s existing constitutional law which provides that the UK government may strike down referendum legislation passed by the Scottish Parliament and may, at their discretion, refuse to authorise a referendum. The only governmental body which can change such dysfunctional and anti-democratic legal framework is the UK parliament which, as was previously highlighted, cannot be won by a Scottish party and will always be majorly anti-independence. The UKSC in the relevant case interpreted and applied the law as was required of them under the separation of powers, and they could not do anything to safeguard the democratic rights of Scottish citizens.  


c)      Summary.


The Executive, Legislative, and Judicial branches of the UK’s legal system each play their own part in producing a paradoxical system of governance where separated powers are collectively bound by a framework which is designed to inhibit devolved democracy. This is a Constitutional straitjacket under which the Scottish electorate have no ability to democratically determine their own future and are afforded no protection from concerted efforts of UK parliaments and governments to supress their democratic rights. To recap;


a)      According to the politically independent court’s interpretation of existing Constitutional legislation, the Scottish Parliament cannot legislate to hold a referendum.

b)     According to that Constitutional legislation, the UK government (which cannot be formed by a pro-independence party) is entitled to completely refuse to authorise a referendum.

c)      The only body that can legislate for a referendum or change the legislation relevant to authorising a referendum is the UK parliament which a pro-independence party cannot control, even if they get 100% of the Scottish vote.  

d)     The legislature and executive can conspire to ensure that Scotland’s democratic expressions are suppressed without risking electoral repercussions or legal intervention from the courts.

e)     Because the Scottish electorate cannot replace the UK executive or legislative branches, they cannot feasibly install a body which would exercise balancing powers ascribed by the separation of powers to safeguard Scottish democracy.

 

4.      Westminster superiority complex.


The UK’s constitutional framework is democratically dysfunctional and unequivocally confirms that the United Kingdom is not a union of equal nations founded on voluntary consent. The framework has cultivated a culture in Westminster under which London led parties and individual members of Parliament feel entitled to unilaterally determine whether Scotland is allowed to hold a referendum. Labours shadow cabinet minister David Lammy believes that on behalf of his party, he is entitled to “categorically” rule out a second independence referendum in the next ten years. Without ever attaining Scotland’s consent, Lammy thinks that it is his (unelected) parties right to decide Scotland’s future and prospectively revoke the Scottish electorates democratic rights.


Along with Lammy, English MP’s frequently debate whether they should allow Scotland to have another referendum as if it is their natural right to exercise control over the Scottish population. The Westminster consensus is clear; the views of Scottish voters simply do not matter, and while this is not how democracy should work, it is what UK Law facilitates.  


5.      Conclusion.


In a democratic, equal, and voluntary union, the legitimacy of successive electoral mandates in one country would not be circumvented by concentrated and discretionary authority vested in an executive leader which that country cannot replace. Indeed, in a constitutional system truly premised on democracy and regulated by an effective separation of powers, it would be inconceivable that this could upheld by a court of law.


We are witnessing the erosion of Scotland’s democratic capabilities in real time. This union is neither voluntary nor equal. It is not premised on democracy nor consent. It is a one-sided, authoritarian relationship founded on a system of subordination. Scottish voters must reckon with this reality if they are to ever put themselves in a position where their votes count, and their rights are respected.

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