The UK Government says that it will give the Scottish Parliament the legal powers to hold a vote on Scotland’s constitutional position. They needn’t bother. Holyrood, not Westminster, already has both the legal competence and the moral authority to hold the referendum, and to determine its timing and how it will be run.
Holyrood’s right is based on the Scottish Government’s democratic mandate; on international law; and on the same principles that the Westminster Parliament has repeatedly used to justify the extension of its own powers.
First, that the Scottish Government has moral authority, based on a democratic mandate, to hold a referendum, how and when it chooses, should be beyond doubt. The SNP was elected on a prospectus that promised such a referendum. Q.E.D.
Secondly, and on the legal position, the fact that Holyrood, not Westminster, has the right to hold and run the independence referendum derives from international law. The right to self-determination is enshrined in the United Nations Charter of 1945, and appears, inter alia, in both the Preamble to the Charter and in Article 1. The International Court of Justice has also ruled on cases in a way that supports the view that the principle of self-determination has such legal status that the international community is under a mandatory duty to respect it in all circumstances. The UK is bound by the UN Charter and by the judgements of the International Court, and these obligations under international law take precedence over whatever the Scotland Act might or might not say.
The key word in the phrase ‘self-determination’ is ‘self’. The Holyrood Parliament is elected by the Scottish electorate as a whole. However, the Scottish electorate makes up less than 10% of the total electorate to the Westminster Parliament, while only 59 out of 650 MPs in the House of Commons represent Scottish constituencies. Westminster does not represent Scotland: Holyrood does. In those circumstances, a referendum run by Westminster or on terms dictated by Westminster would not, by definition, be self-determination.
Third, it would also be somewhat ironic if the Westminster Parliament sought to constrain the Scottish Parliament’s assertion of its authority, given that Westminster, both before and since the Treaty of Union, has a long track record in extending its powers beyond the status quo, or beyond what might have been technically legal at the time. In asserting its authority against Charles I, in passing the Bill of Rights in 1689, and in the Parliament Act of 1911, the Westminster Parliament, and particularly the House of Commons, has extended its powers. On each occasion it has done so, Westminster has justified its claims on its representative, democratic nature. What is sauce for the goose is sauce for the gander. It is Holyrood’s position as the only democratically-elected body, representative of the whole of Scotland, and solely of Scotland, that gives it the right to determine how and when the independence referendum should be held. Westminster’s claim to have the sole right to hold or dictate the terms of a referendum is no more legitimate than was Charles I’s claim to rule by the divine right of kings.