An email to a Tony Blair’s chief of staff Jonathon Powell has been released by the National Archives today, following the rule that government information, including private correspondence is to be published after 30 years. In the email, by Pat McFadden who is now a Labour MP but who at the time was Blair’s special advisor on Scotland, McFadden said that the late Donald Dewar, who was then the Secretary of State for Scotland, believed that the Scottish Parliament would have the power to hold an independence refedrendum without Westminster’s consent. In the email, dated July 22, 1997, McFadden said some Scottish MPs were very scared “that such a referendum could take place” and feared “the slippery slope to independence”.
McFadden wrote that what concerned the Labour MPs was that according to the model of reserved powers which was later adopted in the Scotland Act which is the legislative cornerstone of devolution, Holyrood will have the power to legislate on anything not on the reserved list. The power to hold referendums is in itself not a reserved matter, therefore,”Mc Fadden added, “[Holyrood] can have referendums on anything it wants, even if it cannot enact the result.” He went on to say that the Scottish Secretary of State Donald Dewar was of the view that Holyrood would be able to hold a referendum on independence as well, even though the constitution was on the list of matters reserved to Westminster, and admitted that this followed the logic of the UK Government’s White Paper on devolution.
McFadden wrote: “Donald’s view is that the Scottish Parliament can have a referendum on whatever it likes, even matters outside its competence, which is in line with the logic of the White Paper.”
Although the email has no legal effect, it does vindicate the view of legal experts who have argued that even though the constitution is a reserved matter, Holyrood could nevertheless hold a referendum to test public opinion on independence, even if it can’t legislate on constitutional matters. Although the outcome of such a referendum would not have a legal effect, a victory for supporters of independence would have immense political importance both within the UK and internationally. The referendum would be a consultative one, just like the EU referendum was, and legally it would still be for Westminster to legislate in order to put the result into effect. However as we saw from the Brexit referendum, the political imperative to act on the outcome of even a consultative referendum is overwhelming. The same would be true following a vote in Scotland for independence.
We are currently in a situation where we have a Scottish Government and a large majority of MSPs in Holyrood who have been elected by the people of Scotland specifically in order to ask the country for its views on independence in a referendum. Moreover the anti-independence parties stood on a platform of opposition to consulting the country on its views on independence and were heavily defeated. The logic of the White Paper of Blair’s government upon which the devolution settlement is based is very much that this is a situation where the political demand for a consultation in a referendum of the views of the people of Scotland on independence is crystal clear.
That was precisely McFadden’s fear.
Recently the former Conservative MSP Adam Tomkins, who when he’s not trolling on Twitter with references to Rangers football team is a professor of law, admitted that the legal position of an independence referendum held without Downing Street’s consent was far from clear and that the British Government could not simply assume that the referendum would be struck down by the courts and ruled to be unlawful. There are, he conceded, good legal grounds for arguing that it would be perfectly lawful. Westminster’s claim to absolute sovereignty rests upon the fact that it was until the introduction of devolution the only democratically elected legislature in the UK. That position has now changed. Both the Scottish and Welsh Parliaments have political and democratic legitimacy independent of that of Westminster. Tomkins also admitted that court decisions following the Brexit referendum had considerably muddied the legal waters on the question of the absolute sovereignty of Westminster.
The current position is that the Scottish Government intends to press ahead with a referendum within the term of the current Parliament but after the crisis phase of the pandemic has ended, and to dare Johnson to challenge it in the courts. Irrespective of any ultimate court ruling, even the mere act of a Conservative government in Westminster taking the Scottish Government to court in order to thwart it from putting into effect what it was given an explicit mandate to do by the electorate of Scotland would be politically explosive.
Court action to block a referendum would be an acknowledgement from the British Government that in its view the traditional understanding of the Union as being based on consent was no more and that it was willing to overrule the democratic will of the people of Scotland and prevent them from “choosing the form of government best suited to their needs”. That would be immensely damaging to support for the Union within Scotland (as well as Wales and Northern Ireland) and this is why although Johnson and his allies make no secret of the fact that they will won’t agree to another referendum, they stop short of spelling out precisely how they propose to prevent one from happening.
They know that any steps they take to block a referendum only makes independence more likely and chips away even further at the already crumbling foundations of the Union. They also know that there is no guarantee they’d succeed, placing opponents of independence in an impossible position in a referendum, where they would have to campaign in defence of a UK which did not believe that the future of Scotland should be decided by the people of Scotland, in effect making a case for why democracy in Scotland should be subject to the whims of a government and party which the people of Scotland have repeatedly rejected at the ballot box.
Even if they did succeed, and the courts ruled that a referendum was unlawful, the political pressure for Scotland to have a say on its own future would not simply go away. If anything it would intensify, as Scotland faced the fact that the traditional basis of the Union was a lie and that this is not a union founded on the consent of the people of Scotland, but upon compulsion and the decisions of a government elected by the largest partner in this so-called Union. However ultimately no British Government can prevent the people of Scotland forever from deciding on the future of Scotland.
Over the weekend, The National newspaper revealed that the SNP are preparing for a new independence referendum campaign with the party publishing new material updating arguments for independence in the context of Brexit and the pandemic. The next year is going to be crucial for Scotland’s future. Pat McFadden’s nightmare is about to come true.
NEW MODERATION POLICY
In the wake of recent events I am determined that this site will not become a home for bigots and conspiracy theorists. They will not be welcome here. Moderation is the most stressful part of running a blog, but this site is going to continue to make the positive case for independence. With this in mind as of today a new moderation policy is in force.
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