If the Supreme Court
blocks it, the referendum
should still go ahead
A constant theme in the current referendum debate has been the legality of any proposed referendum. Many authorities have said that a referendum issuing from the Scottish Parliament will not be legally valid unless legal power is granted by Westminster.
This line of argument is based on the 1998 Scotland Act which seems to reserve constitutional matters to Westminster. Other authorities have questioned this and referred to the judgement of Lord President Cooper in the 1953 Court of Session case of MacCormick v the lord advocate. This judgement is clear that the principle of the unlimited sovereignty of parliament is an English principle, whereas in Scotland sovereignty rests with the people.
Unfortunately the late great Professor Sir Neil MacCormick is not around to guide us, and I certainly do not have the competence to take that dispute any further. Rather I wish to do as philosophers sometimes do and set up a thought experiment.
Let us suppose that Alex Salmond decides to hold a referendum. I shall not here take up the issue of whether it should have more than one question, but simply confine the thought experiment to the simple scenario in which there is a proposal to hold the referendum on a given date in 2014.
Let us further suppose that someone challenges this, and that as a result of no doubt prolonged (and expensive) legal argument, the Supreme Court decides that the Scottish Parliament does not have the legal right to hold a referendum. What should the Scottish Parliament do? I suggest that it would be craven indeed to cave in to the Supreme Court, and that the referendum should nevertheless be held, whether legally valid or not.
What would happen? Are we to imagine a dawn raid of policemen to arrest Alex and team? Tory, Labour and Liberal politicians are much given to preaching democracy round the world. Would they, before the eyes of the world, attempt to prevent the holding of this referendum?
The point should be emphasised that millions of people round the world are aware of the position and any attempt by Westminster to over-rule the clear mandate of the Scottish Parliament on the basis of a legal technicality would make Westminster the laughing stock of the world.
Politicians constantly stress 'transparency'. Well, they would certainly have it on the referendum, for the world outside Westminster would see through them. It would be seen by the wider world as hypocrisy on stilts to try to block the referendum on legal grounds.
The rule of law is a fine thing but it works only if there is a consensus supporting it. Throughout history reformers have frequently been obliged to go against the laws of a jurisdiction to bring about change. This has had to happen because laws are often made by ruling parties in their own political, financial or social class interests. It will not look good to the wider world if Westminster is seen to use the bully-boy tactics of the law in an attempt to prevent, or manipulate, the referendum.
Robin Downie is emeritus professor of moral philosophy at