One of the perhaps more unexpected features of the SNP’s first period in power was the relative absence of constitutional disputes between Edinburgh and London. Mr Salmond got upset when Mr Blair appeared to be trying to commit Scotland to a prisoner release scheme with Libya without his agreement, but otherwise, the SNP leader largely confined himself to arguing Scotland’s substantive case both within and outwith the corridors of power.
That clearly is not going to be the case this time around. Within just a month of the SNP’s success in securing an overall Holyrood majority, constitutional disputes already litter the air.
First, Mr Salmond has used the opportunity, created by the fact that the Scotland Bill, designed to implement the recommendations of the Calman Commission is still in mid-legislative stream, to demand that the Bill be beefed up to give Holyrood yet more powers. At the back of the First Minister’s pocket is the possibility that he could veto the Bill, given that under the terms of the Sewel convention it should only be passed with Holyrood’s consent.
Then Lord Hope and his colleagues on the UK Supreme Court have waded into the thicket by ruling that a widely publicised murder trial did not adhere to the requirements of the European Convention on Human Rights. Together with a previous judgement by the same court that overturned the right of the police in Scotland to interview a suspect without a solicitor being present, the ruling has prompted Mr Salmond to argue that the independence of the Scottish criminal legal system, which has survived more than 300 years of the Union, is now under threat.
Finally the Scottish Secretary, Michael Moore, has attracted the First Minister’s ire for suggesting that in the event that the Scottish Government were to secure a referendum mandate to negotiate for independence, the UK Government might insist on holding a second referendum on the conclusion of those negotiations. The First Minister’ spokesperson described Mr Moore’s remarks as ‘withering and irrelevant nonsense’, and argued that a single referendum organised by the Scottish Government provided all the authority required for independence to go ahead.
It seems that the transition from a minority national administration to a majority one has had a profound effect. In part, of course, this reflects the fact that the path towards a Holyrood-inspired referendum is now clear. It means, for example, that questions about how the UK Government would respond to a Yes vote in that referendum have moved from the theoretical to the politically charged.
But the new constitutional rows are also indicative of a broader change of mood. For nationalists, decisions about Scotland’s future can only legitimately be made in Scotland. Counter claims that all UK citizens should have access to the same level of human rights protection or that under the current devolution settlement the UK Government ultimately retains the right to decide constitutional issues hold little water.
Backed by its parliamentary majority, the SNP now feels emboldened to assert this nationalist perspective in its dealings with London. It believed it now has a mandate to do so. The party’s sense that they are the masters now was demonstrated when the Justice Minister, Kenny Macaskill injudiciously suggested that Scotland might withdraw its contribution to the funding of the UK Supreme Court.
In taking this tack, the SNP are succeeding in crowding out other aspects of the issues raised by these constitutional rows. We might ask, for example, whether the police should be allowed to interview a suspect without the support of a lawyer or whether a conviction should be allowed to stand if important evidence is not passed to the defence team. These are certainly hardly trivial questions.
Equally, too, we might ask what would be the most democratic way of ensuring that all of Scotland is fully involved in the decision about whether or not Scotland should become independent? Is it necessarily just to hold a referendum that simply asks whether people want the process to start, but then leave it up to politicians and their officials to make all the detailed decisions? Or should there be a new Constitutional Convention or a renewed National Conversation that discusses how an independent Scotland should be governed and what kind of relationship it would like to have with England – followed by a referendum that ensures that the new settlement does indeed have public approval? The answers to these questions are not immediately obvious either.
From the SNP’s perspective, there is good reason to ensure that such arguments are crowded out. Lurking in the background of the referendum debate is the possibility of a legal challenge to the right of the Scottish Parliament to hold its proposed referendum. Any such challenge would come before the very same Lord Hope and his Supreme Court colleagues. A Supreme Court that was thought to have upheld important human rights might be thought to be better placed to consider any such challenge than one that is thought to have meddled illegitimately in Scotland’s distinctive legal affairs.
Meanwhile, of course, winning two referendums is more difficult than winning just one. And if one advisory referendum was good enough to introduce devolution, why should it not be enough to advance towards independence too? Insisting on a second referendum can certainly seem all too easily like another attempt by unionists to put road blocks in the SNP’s way.
Nevertheless, perhaps it is time to ask how the process of moving Scotland towards independence should proceed should the people of Scotland eventually decide to start the firing gun. Nationalism may be one source of legitimacy, but democracy is another. And it does not necessarily imply leaving everything up to the politicians.