IGNORE THE SNP GRIEVANCE MACHINE, THE UK REMAINS A DEMOCRACY

The Supreme Court ruling does not undercut Scottish democracy. The UK remains a voluntary union, and no reasonable notion of democracy can say otherwise.

"If the devolution settlement in the Scotland Act is inconsistent with any reasonable notion of Scottish democracy as now seems to be the case, that is the fault of Westminster lawmakers"-First Minister Nicola Sturgeon reacting to the Supreme Court ruling. But just how true is the Sturgeon's claim about democracy?

Defining reasonable notions of democracy

The central claim being offered up here (and we're likely to hear this over and over again from nationalists) is that democracy in Scotland is undercut by the fact Holyrood cannot vote to hold a plebiscite on independence. But I don't find the FMs claim persuasive.

To quote Lord Reed of the Supreme Court, "The powers of the devolved legislatures, like those of other legislatures in most constitutional democracies, are delimited by law."¹ This is the real point.

In mature constitutional democracies across the world, devolved legislatures have competences (powers) they have authority over & others they do not. This doesn't mean the democracy of devolved region/nation in question is suffering from an intolerable democratic deficit

There is not a devolved authority in any mature democracy which has (or could reasonably expect to have) the power to unilaterally alter the terms of its own constitutional and legal limitations.

Are the state governments Germany suffering from a democratic malus because the Federal government exists above them with competences denied to the states? Who would argue Bavaria suffers from a "devolutionary settlement " which is "inconsistent" with notions of democracy?

Remember, devolutionary structures do not exist in a vacuum only impacting on the devolved nations/regions. Again to quote Lord Reed...

"Devolution is not simply a matter of concern to Scotland, Northern Ireland and Wales. It is a crucial aspect of the governance arrangements of the UK"² And this is the key point the FM blithely ignores

Devolutionary structures are designed & intended to balance the desires for self-government by regions/nations and also sustain the integrity of the country in question. This is the normal concept of democracy, devolution and sovereignty across the mature democratic world.

So when the FM's claim Scotland suffers a lack of democracy because Holyrood cannot legislate on areas beyond its powers this is nonsense.

As is any claim that devolved region/nation is suffering lack of democracy on basis it cannot unilaterally vote to break up the country in which it finds itself UK is a voluntary union but there are constitutional rules. None of this undermines its democratic credentials.

Also worth noting is that devolved regions/nations exist within mature democracies. As the Supreme Court ruling today explicitly makes clear, Scotland and its notions of democracy exist inside this context³.

Put simply, Scotland is not a colony. It does not therefore have the reasonable democratic expectation for “self determination” independently of the controlling country. We are not occupied by a foreign power which would confer a “right to secede” automatically.

Devolutionary structures do not undercut democracy

It is not reasonable, nor is it a valid democratic argument, to insist that a devolved authority in a mature democracy should have the powers to unilaterally alter the delimitations on its powers. The dividing lines of what powers a devolved authority has is not something any devolved government can reasonably expect to be a matter for itself alone to alter. Despite this obvious point, this is exactly what Nicola Sturgeon is insisting upon; she wants Holyrood to have the right to set the limits on its own powers unilaterally but this is not a reasonable democratic expectation she should have.

Furthermore, the existence of constitutional limitations on devolved bodies in mature democracies does not imply the absence of a “reasonable notion” of democracy, either in Scotland or anywhere else. Yet, this is precisely the First Ministers claim today. Nobody would seriously argue that German states suffer a fundamental absence of democracy due to the fact devolutionary mechanisms exist within frameworks where certain powers are exercised elsewhere at a federal (that is to say national) level.

In our case - Scotland - we are discussing notions of democracy and reasonable expectations of democracy inside the context of devolutionary structures in a mature democracy. This is not a colonial situation whereby foreign occupation automatically implies a unilateral right to self-determination. For Scotland the issue of devolution is not merely a matter for itself, Wales and Northern Ireland.

Does the First Minister and the wider nationalist movement in Scotland understand all of this? You would hope the did, but even if they did nothing will stop their grievance machine cranking into gear. Ultimately I am left unsure what constitutes Ms Sturgeon’s “reasonable notion” of Scottish democracy.

1. Lord Reed (2019, 27 February), ‘Scotland’s Devolved Settlement and the Role of the Courts The Inaugural Dover House Lecture’, page 18, London, https://www.supremecourt.uk/docs/speech-190227.pdf

2. ibid

3. UK Supreme Court (2022, 23 November), ‘JUDGMENT REFERENCE by the Lord Advocate of devolution issues under paragraph 34 of Schedule 6 to the Scotland Act 1998’ ,page 32-33, https://www.supremecourt.uk/cases/docs/uksc-2022-0098-judgment.pdf