Scotland (Self-Determination)

Neale Hanvey Excerpts

1st reading
Wednesday 1st February 2023 Commons Chamber

[Neale Hanvey (Kirkcaldy and Cowdenbeath) (Alba)]

I beg to move,

That leave be given to bring in a Bill to amend the Scotland Act 1998 to transfer to the power to legislate for a Scottish independence referendum to the Scottish Parliament; to provide that that power may only be exercised where the Scottish public has demonstrated its support for the holding of such a referendum; to provide that no such referendum may be held sooner than seven years after the previous such referendum; and for connected purposes.

The question of whether the ancient nation of Scotland should be an independent country once more continues to be the subject of much debate, indicating that the matter is far from settled. Of course, it is entirely proper for any country to review such matters. Scotland will only become independent as and when the majority of the people of Scotland choose that path, yet that requires a democratic mechanism that is constitutional and satisfies international legal precedent. The Bill seeks to standardise and codify such a requirement in line with the motion passed by this House that endorsed the principles of the 1989 claim of right, which acknowledged the sovereign right of the Scottish people to determine the form of government best suited to their needs.

The Bill is explicit on the necessary conditions to bring that mechanism into play: first, that the power to legislate for a referendum requires a democratic mandate from the Scottish public. Since 2014, that criterion has been met in successive general elections to the Scottish Parliament, most recently in 2021, when a majority of MSPs were elected on a manifesto commitment to deliver an independence referendum. In addition, a majority of the votes cast on the d’Hondt regional list were won by parties that support independence—the SNP, the Scottish Green party and the Alba party. Secondly, the Bill states that no such referendum may be held sooner than seven years after any previous such referendum. In terms of established UK precedent, that would bring Scotland into line with the provisions for a border poll in Northern Ireland regarding the constitutional future of the island of Ireland. As Robert McCorquodale, professor of international law and human rights, sets out, that would be in keeping with the UK’s international legal obligations, applicable to all states, including to peoples within states worldwide, to seek to exercise their right to self-determination.

It is necessary to put the Bill into its political and historical context. In 1707, a majority of Scottish parliamentarians may have been persuaded, but the people were never consulted. The Acts of Union 1707 between England and Scotland created the kingdom of Great Britain, establishing a single political entity yet preserving the territorial, legal and institutional integrity of each partner country. The UK’s constitution is not codified in a single document, so the question of whether the Acts of Union can unilaterally be dissolved by one party is not clear. However, the accepted position hitherto is that the Union is a voluntary association of equal partners and Scotland has an unquestioned right of self-determination. That is a right underpinned by Scots common law which rests not on the Magna Carta, but on the claim of right which continues to assert that it is the people who are sovereign in Scotland.

The Scotland Act of 1998 established the Scottish Parliament, which has the power to legislate on agreed devolved matters within Scotland, while the UK Parliament retains legislative competency on matters reserved to Westminster. It is generally understood that for a country to gain independence a legal process, such as a vote in a referendum, is required. Such a process was established in 2012 through the Edinburgh agreement which was signed by First Minister Alex Salmond and Prime Minister David Cameron. The Edinburgh agreement established a clear process whereby a Scottish general election that returned a Government with a mandate for an independence referendum would enable that Government to petition for authority under section 30 of the Scotland Act to respect the democratic force of that vote in a referendum. While respect for that established process has since been affirmed by the UK Government, in absence of any legal constitutional consensus the matter of Scottish independence has reached a political impasse to the detriment of Scotland’s democratic process.

The Bill seeks to remedy that by setting out the process by which the democratic wishes of the people of Scotland can be respected and enacted. This would preserve their inalienable human rights as a distinct people of the ancient nation of Scotland in accordance with the constitutional tradition of Scotland, the UN charter and extant international law.

Scotland’s distinct constitutional tradition is best expressed by Lord Cooper, in the case of MacCormick v. Lord Advocate:

“The principle of the unlimited sovereignty of Parliament is a distinctively English principle which has no counterpart in Scottish constitutional law.”

In the pleadings of the hon. and learned Member for Edinburgh South West (Joanna Cherry) in her prorogation case to the UK Supreme Court, it was noted that the 1707 parliamentary Union between England and Scotland may have created a new state, but it did not create one nation.

The UK Government enthusiastically claim that they seek to preserve democracy the world over, yet they have moved to block Scotland’s consistently expressed democratic aspirations at each and every turn. Surely it is now time to move to eliminate accusations and counter-accusations of brinkmanship and set out a clear pathway consistent with the precedent across these islands where constitutional friction exists.

Can Government Members imagine the circumstances where, having entered the common market and ratified every subsequent treaty leading to the European Union, the EU Parliament moved to block or interfere with their Brexit vote, or set a limit on when and if such a vote should be held? The notion is ludicrous, because democracy is not a single event, but an evolving and continuous process. That is how civilised people behave and how fundamental rights of freedom of thought and expression are peacefully demonstrated.

As a member of the EU, the UK Government possessed and exercised a veto, yet they claimed their sovereignty was impeded by membership. Scotland has no such equivalent mechanism available to our people and remains subject to the wiles of our larger neighbour, as exemplified by Brexit. How does that constitute access to meaningful political process, as claimed in the recent UK Supreme Court judgment?

Prime Minister Winston Churchill’s signing of the 1941 Atlantic charter brought into being the principle of self-determination of peoples, as now enshrined in the United Nations charter. Margaret Thatcher in her memoirs said of Scotland:

“As a nation, they have an undoubted right to national self-determination”.

John Major, when Prime Minister, said of Scotland that

“no nation could be held irrevocably in a Union against its will”.

None of these senior Conservative politicians sought to constrain the democratic right to self-determination.

In the aftermath of the 2014 referendum, the all-party Smith Commission agreement was signed by all of Scotland’s main political parties and it stated:

“It is agreed that nothing in this report prevents Scotland becoming an independent country in the future should the people of Scotland so choose.”

The effect of this Bill should be uncontroversial for every Member. It merely establishes in law an equivalent mechanism to the principle, already conceded by the UK Government in relation to a border poll in Northern Ireland, that no such referendum may be held sooner than seven years after any previously mandated referendum.

In 1889 in this place, the equality of UK partner countries was asserted by one William Ewart Gladstone MP, saying

“I am to suppose a case in which Scotland unanimously, or by a clearly preponderating voice, were to make the demand on the United Parliament to be treated, not only on the same principle, but in the same manner as Ireland, I could not deny the title of Scotland to urge such a claim.” —[Official Report, 9 April 1889; Vol. 335, c. 101-102.]

That begs the question: why would the UK Government deny democracy to Scotland but not to Northern Ireland? Could the clue lie in the words of former Prime Minister John Major from 1993’s Downing Street declaration that the UK has

“no selfish strategic or economic interest in Northern Ireland”?

In the case of Scotland, the opposite is true. With unconstrained access to our vast resources, energy is transmitted south to millions at no cost.

The decision on Scotland’s future ultimately and rightly must rest in the hands of the people of Scotland. In the constitutional tradition of popular sovereignty in our great country, it is the people who remain sovereign. This Bill is neutral in its effect. It favours neither one side nor the other, but seeks to codify the Scottish people’s right to choose their own constitutional future. To return to 1889, Dr Gavin Clark, MP for Caithness, said on the matter:

“Everybody, even old Tories on the other side, must admit that some change is necessary. Then what is the remedy to be?”—[Official Report, 9 April 1889; Vol. 335, c. 71.]

If democracy matters at all, every Member in this House should support the remedy contained in this Bill regardless of their view on Scottish independence. I commend it to the House.

Question put and agreed to.

Ordered,

That Neale Hanvey, Kenny MacAskill, Joanna Cherry, Angus Brendan MacNeil, Douglas Chapman and Margaret Ferrier present the Bill.

Neale Hanvey accordingly presented the Bill.

Bill read the First time; to be read a Second time on Friday 24 March, and to be printed (Bill 241).

UK Infrastructure Bank Bill [Lords] (Programme) (No.2)

Ordered,

That the Order of 1 November 2022 (UK Infrastructure Bank Bill: Programme) be varied as follows:

(1) Paragraphs (4) and (5) of the Order shall be omitted.

(2) Proceedings on Consideration shall (so far as not previously concluded) be brought to a conclusion three hours before the moment of interruption on the day on which those proceedings are commenced.

(3) Proceedings on Third Reading shall (so far as not previously concluded) be brought to a conclusion two hours before the moment of interruption on that day.—(Scott Mann.)