NB: The article does not represent the views of Scotland Matters.

Written by Stephen Bailey:

Here’s how matters stand as concerns the Constitutional question in the UK:

First, there is NOTHING permanent about legislative devolution.

One of the major pieces of evidence the ‘mainstream Unionist’ parties (the ‘Conservatives,’ Labour and Liberal Democrats) have thoroughly embraced the devolution process of more and more powers being granted to the devolved legislatures in Scotland, Northern Ireland (NI) plus Wales and abandoned genuine pro-UK values (which sees the UK as a single (unitary) nation) is the 2016 Scotland Act of the David Cameron era’s so–called ‘Conservative and Unionist’ Party, which states that the legislative devolution ‘settlement’ of Tony Blair’s New Labour is ‘permanent’ and so can never be abolished.

This is just NOT the case under UK Constitutional law.

No (Westminster) Parliament is bound by the laws and acts of any previous sitting of the House of Commons.

The eminent jurist and Constitutional expert A. V. Dicey definitively stated that:

‘NO PARLIAMENT CAN BE BOUND BY ANY PREVIOUS PARLIAMENT OR PASS AN ACT THAT WILL BIND A FUTURE PARLIAMENT. NO OTHER BODY HAS THE POWER TO OVERRIDE OR SET ASIDE AN ACT OF PARLIAMENT’.
– A.V. Dicey’s definition of Parliamentary Supremacy.

and

‘THE DOCTRINE OF IMPLIED REPEAL IS A CONCEPT IN CONSTITUTIONAL THEORY WHICH STATES THAT WHERE AN ACT OF PARLIAMENT OR AN ACT OF CONGRESS (OR OF SOME OTHER LEGISLATURE IN A COMMON LAW SYSTEM) CONFLICTS WITH AN EARLIER ONE, THE LATER ACT TAKES PRECEDENCE AND THE CONFLICTING PARTS OF THE EARLIER ACT BECOMES LEGALLY INOPERABLE’.
– Both quotes from ‘Introduction to the study of the Law of the Constitution’ (1885).

In a nutshell, the 2016 Scotland Act DOESN’T make the current legislative devolution ‘settlement’ legally constitutionally binding and permanent as any future Parliament can repeal it at any time.

Conditions and circumstances do evolve as history unfolds and so consequently the laws governing matters that have changed need to be amended to suit the current situation. Added to this, contrary to what David Cameron has asserted, putting the word ‘permanent’ in the 2016 Scottish Devolution Act DOESN’T mean it can’t be repealed.

Once a Government won a majority in a general election on a manifesto commitment to repeal Tony Blair’s legislative devolution ‘settlement’ (an ironic word to use as devolution has created much division and discord, especially in Scotland and NI) it would have a cast–iron democratic mandate to do so and the path to abolishing the current legislative devolution ‘settlement’ would be very clear under UK Constitutional Law (a win in a referendum would provide a similarly cast-iron democratic mandate).

A bill can be introduced into the House of Commons that repeals the acts of Parliament that set up legislative devolution originally (i.e. the 1998 Scotland Act) and all the subsequent acts that supplemented it (like the 2016 Scotland Act et al.) and legislative devolution would be abolished. The same is true of the acts that set up legislative devolution in Wales and NI.

However, a devolved administration (i.e. that of the SNP or one in NI or Wales) CANNOT get a democratic mandate from an election at a devolved legislature as the Constitution is a reserved matter. ONLY the Union Parliament at Westminster (or a referendum win on the matter) can deliver a constitutionally legal mandate for independence).

Contrary to the falsehoods propagated by David Cameron when he was leader of the supposedly Unionist ‘Conservative’ Party, who knew full well that it just wasn’t the case but who deliberately deceived the public in an arrogant, elitist way, thinking that they were too stupid to understand the facts behind the issue, it is completely possible to abolish legislative devolution by the Parliamentary repeal of the devolution acts that set it up originally.

Second, THE SNP HAS NEVER HAD A ‘MANDATE’ FOR SEPARATION, AND THE FACTS PROVE IT.

It is a commonly touted assertion of the SNP that all elections, Westminster or devolved, will be referenda on independence and if they achieve a majority of seats, then this will give them a mandate for independence.

The whole concept of the SNP and its mandate is extremely vexed in many ways and on many levels.

The idea that anti-UK nationalism has a mandate for independence from ANY election, Westminster, devolved, or local council is THE major fallacy at elections for Scottish constituencies and highlights yet another intrinsic flaw in legislative devolution.

The fact is, the SNP has no mandate for independence and never has, ever.

The bottom-line of UK Constitutional Law is that under New Labour’s devolution ‘settlement’, a Holyrood election cannot deliver a mandate for independence, as the Constitution is a reserved matter, regardless of what is in a party’s manifesto (i.e. independence), or their reason for existing being independence. ONLY the Union Parliament at Westminster can deliver a constitutionally legal and democratic mandate for independence. A referendum win would provide a democratic mandate for abolition, but as such polls are only advisory, would not provide a legally binding commitment to do so.

Devolved elections can only deliver a mandate for a party to form an administration at Holyrood and look after Scotland’s day-to-day matters which are not reserved for Westminster’s consideration, but that’s all.

The same is true of devolved elections in NI and Wales-they only provide a mandate to form an administration at the devolved legislature (Stormont in NI and the Welsh ‘parliament’) and nothing else, including re-unification with Eire (in NI’s case) and independence (in Wales’ case).

But let’s indulge anti-UK nationalism (the SNP/Greens in Scotland, IRA/Sinn Fein in NI and Plaid Cymru in Wales), and place their claims to have a mandate for independence under the closest possible scrutiny.

The SNP’s claim to have derived a mandate for separation as a result of receiving a majority of votes from the public in elections-whether at Westminster, Holyrood and local council-doesn’t survive the objective scrutiny and rigorous examination of the objective, verifiable, empirical data.

In the 2014 independence referendum, ‘Yes’ received only 1,617,989 votes (44.7%), a losing minority. ‘No’ received 2,001,926 (55.3%) votes on a turnout of 84.6%, the highest recorded turnout for an election or referendum in the United Kingdom since universal suffrage. The registered voters numbered 4,283,392 (the electorate). The total Scottish population then was 5,347,600.

Looking at the voting percentages:

• 2015 (Westminster) -SNP: 1,454,436. This was the high-water-mark of the SNP’s success and it represented 36% of the total Westminster Parliament electorate in Scotland at the time of 4,035,400.*
• 2016 (Holyrood)-SNP: 1,059,898 over all constituencies. 953,587 over all regions. The average of both votes is 1,006,743, which is 25% of the total registered electorate for the Holyrood election of 4,030,000.
• 2017 (Westminster)-SNP: 977,569. This was a drop of 476,867 from the 2015 election for the nationalists. This represented 24.9% of the total Westminster Parliament electorate in Scotland at the time of 3,930,000.
• 2019 (Westminster)-SNP: 1,242,380 of the popular vote. This represented 30.65% of the total Westminster Parliament electorate in Scotland at the time of 4,053,100.
• 2021 (Holyrood)-SNP: The SNP got 1,291,204 at the constituency level, and 1,094,374 over all the regions. The average of both votes is 1,192,789 which is 27.9% of the total registered electorate for the Holyrood election of 4,280,923.

This is far less than a third of the eligible electorate and even less of the total Scottish population.

To conclude:

The SNP has NO mandate for independence.

Its victories at Holyrood, Westminster and local council elections represent nothing more than the triumph of a small, vociferous minority (never higher than 36% of the total electorate’s vote and even less of the total Scottish population) of activists running around and shouting the loudest, drowning out the voice of the overwhelming majority.

It only proves that a small and determined group of obsessed, loud and active zealots and extremists can force their will on the rest of the population, completely skewing the genuine will of the majority of the overall population.

Winning a majority of seats in Holyrood and a majority of Westminster seats in Scotland doesn’t give the SNP any mandate for independence when they only represent around a third of the total registered electorate (even less of the total Scottish population) AND the vast majority of opinion polls on independence in Scotland continue to show a majority of Scots want Scotland to stay in the Union.

Click on the following link to see a table of opinion polls on independence in Scotland: https://ballotbox.scot/independence/

The fact of UK Constitutional Law is that the SNP (or any other anti-UK nationalist party in Scotland or any other devolved part of the UK) simply cannot receive a mandate for independence from a devolved election, as the Constitution is a reserved matter and ONLY the Union Parliament at Westminster (or a referendum win on the matter) can deliver a constitutionally legal (though not binding in the case of a referendum) mandate for independence.

The winning party can only receive a mandate to form an administration at the devolved legislature to look after the day-to-day matters that are within their remit for that part of the UK, but that’s all.

Even ignoring the facts of constitutional law, the SNP has no democratic mandate for independence, as the objective, verifiable election statistics above prove (see above for details).

They never have.

SOURCE and NOTE:

Electorate figures are those found via the Office for National Statistics by clicking HERE.

Note: Electorate figures are calculated on 1st December each year, and released in the following year. That means if we want to know the electorate figures for, say, the Holyrood election in May 2016, then we need to consult the “Electoral statistics, UK : 2015” which were calculated on 1st December 2015 and released in February 2016.

The electorate figures for the Westminster Election in Scotland, and the electorate for the Holyrood/Local Elections, are different figures because the franchise is wider for the latter, and includes EU citizens, and since 2016 inclusive, 16-year-olds.

Thirdly, fatalism, the idea that something is going to happen no matter what or which course of action is taken to avoid it is an extremely dangerous and misguided belief. It appears to have set in amongst some of those who want to maintain the Union, who appear to have adopted the misguided belief that the SNP represent the will of the Scottish people and should be collaborated with or that independence is inevitable or both. All these beliefs are erroneous and based upon specious thinking.

From ordinary UK citizens that want to maintain the Union who seem to give off an air of defeatism and seem to want to acquiesce in SNP rule to leaders of the community (politicians mostly) who are far too keen on appeasing anti-UK nationalism and who have no idea of how to take the fight to them, certain pro-UK Britons exude an air of downbeat defeatism.

This is toxic and no good will come of it. It will only aid the continuance of anti-UK nationalist rule and give them undeserved confidence that they can force separation from the rest of the UK on an unwilling public. They are ruthless, sociopathic, narcissistic and monomaniacal in their pursuit of independence and will just manipulate this defeatist attitude for their own purposes.

Don’t aid anti-UK nationalism. There is NOTHING inevitable about independence. The trends in public opinion are still strongly in favour of the Union. A strong majority of Scots, a vastly substantial majority of the Welsh and a majority of citizens of Northern Ireland support their part of the Union staying in the UK. The arguments for keeping the UK together are vastly stronger than those of the anti-UK nationalists, who have demonstrated time and time again that they have no viable plans for independence and that re-unification with Eire would be a recipe for disaster, financially, politically and culturally. They are simply trying to force the pro-UK community into submission with continuous pressure of various kinds (a war of attrition) as they have no positive arguments to offer for independence or re-unification and they know it, hence the pressure tactics of the bully (persuasion has failed so they use intimidation).

Don’t let them. We have by far the better arguments and so deserve to win. Motor on.

Onwards and upwards all those who want to maintain the Union, this United Kingdom of Great Britain and Northern Ireland is NOWHERE NEAR dead. With a strong will, the empty falsehoods and fallacies of anti-UK nationalism can be defeated and a strong, mutually beneficial (for all her parts) Union can exist in perpetuity.

Want to see Scotland under the SNP?