The speech made by Neale Hanvey, the Alba MP for Kirkcaldy and Cowdenbeath, in Westminster Hall, the House of Commons on 30 November 2022.
I beg to move,
That this House has considered Government policy on a further independence referendum for Scotland.
Today is St Andrew’s day, and on this national day there is a particular significance and imperative. Last week, the UK Supreme Court told the Scottish Government that they could not exercise their democratic mandate to hold an independence referendum. But there was something else in that judgment—something that simply cannot be tolerated. There was the suggestion that, somehow, Scotland as a nation does not possess a right to self-determination. In suggesting that, the London Supreme Court overturned what has been the accepted legal, historic and political position that the UK is a voluntary Union.
Scotland’s separate constitutional tradition is perhaps best summed up in the view expressed by Lord Cooper, in the case of MacCormick v. Lord Advocate,
“The principle of the unlimited sovereignty of Parliament is a distinctively English principle, which has no counterpart in Scottish constitutional law.”
The Supreme Court seems to have repudiated that. Last week’s judgment rendered the UK a state of glaring contradiction. There are contradictions in our shared history, and contradictions of equality, politics, and representation.
The UK enthusiastically claims it seeks to preserve democracy the world over, yet moves to block Scotland at each and every turn. Can the Minister imagine the circumstances where, having entered the common market and ratified every subsequent treaty—leading to the European Union—the EU Parliament moved to block his party’s Brexit vote, or set a limit on when and if such a vote could be heard? The notion is, of course, ludicrous, because democracy is not a single event but an evolving and continuous process. That is how civilised people behave, and how freedom of thought and expression are peacefully demonstrated. Those are the foundations of inalienable human rights.
I will consider the contradictions, concluding with a commentary of the Supreme Court’s judgment. We are often told in this place that Scotland must be proud of our shared history as part of the most successful political union ever. I will test that narrative and ask the Minister to consider our shared history through a Scottish prism.
Before the Union, the English Alien Act 1705 threatened economic sanctions if Scotland did not settle the royal succession, or negotiate for a political union. The treaty was met with vociferous opposition both inside and outside Scotland’s parliamentary chamber but, given threats and enticements, a majority of Scottish parliamentarians were persuaded. The people were never consulted.
It so often goes that this is all ancient history and irrelevant to a modern Scotland in a respectful union of equals. Last week’s judgment challenged that previously understood narrative. What of that modern Scotland? In my lifetime, the political complexion of Westminster rule has rarely reflected the polity of Scotland. We have endured repeated Tory Governments that Scotland did not vote for, or Labour Administrations that took us into illegal wars that we wanted no part of.
Socioeconomic policies have destroyed our communities, exploited our resources and worked against the utility of the people of Scotland, contrary to the Articles of Union. The pursuit of such social and economic policies has driven a stake through the heart of once proud communities. As noted in the pleadings of the hon. and learned Member for Edinburgh South West (Joanna Cherry), in her prorogation case to the UK Supreme Court, the 1707 parliamentary Union between England and Scotland may have created a new state but it did not create one nation.
Scotland was an independent nation for millennia before its coerced incorporation. It remains a distinct and internationally recognised people and country. No clearer is that evidenced than by the much earlier and continuing Union of the Crowns, where our shared monarch does not accede to a single throne of Britain, but takes the separate crowns of the realms of Scotland and England.
As a member of the EU, the UK possessed and exercised a veto, yet claimed its sovereignty was impeded by membership. Scotland has no such mechanism in this place, and is always subject to the wiles of the policy of its larger neighbour, exemplified by Brexit. How does that constitute access to meaningful political process, as claimed by the UK Supreme Court judgment?
In signing the Atlantic charter of 1941, wartime Prime Minister and hero of the Conservative party, Winston Churchill, brought into being the principle of self-determination of peoples, as now set out in the United Nations charter, in article 1(2), article 73 and article 76. Margaret Thatcher in her memoirs said of Scotland:
“As a nation, they have an undoubted right to national self-determination.”
John Major, when Prime Minister, said of Scotland:
“No nation could be held irrevocably in a Union against its will.”
Angus Brendan MacNeil (Na h-Eileanan an Iar) (SNP)
The hon. Gentleman is making a fantastic speech. He started by raising the point about the Supreme Court and self-determination. I found paragraph 88 of the judgment particularly interesting:
“The people in question are entitled to a right to external self-determination because they have been denied the ability to exert internally their right to self-determination.”
The judgment did exactly that; it did limit that right. The reason the judgment did not give the referendum was because, if it happened—even if it had limited legal effect—as it says in paragraph 81, it
“would possess the authority, in a constitution and political culture founded upon democracy”—
and that is all over western Europe. Ultimately, the concession has been made by the Supreme Court that the ballot box rules supreme. Indeed, the ballot box made the Supreme Court because the Supreme Court is a creature of the UK Government, which in turn was made at the ballot box.
Neale Hanvey
I thank the hon. Gentleman for that intervention. I will consider the blurred boundaries of legal and political, as I move through my speech. In 1989, this place reaffirmed and acknowledged the sovereign right of the Scottish people to determine the form of government best suited to their needs. In May 1997, in an exchange with the right hon. Alex Salmond during the passage of the Bill that became the Referendums (Scotland and Wales) Act 1997, the late Donald Dewar responded that he should be the last to challenge the sovereignty of the people, accepting the right of the Scottish people to a choice, including independence, should that be their wish. None of these senior politicians ever placed a limit on or sought to constrain that democratic right to self-determination. Indeed, in the wake of the 2014 referendum, the Smith commission agreement was signed by all of Scotland’s main political parties and it stated:
“It is agreed that nothing in this report prevents Scotland becoming an independent country in the future should the people of Scotland so choose.”
Of course, the Good Friday agreement sets out a reasoned and internationally considered timescale of every seven years to consider constitutional change. A political generation of seven years is not unreasonable, but Scotland is now a year beyond and no further forward. It is therefore imperative; if there is a consented, legal and democratic route by which the people of Ireland —north and south—can choose their own constitutional future in a border poll every seven years, what is the consented, legal and democratic route by which the people of Scotland’s sovereign right to determine their own constitutional future can be respected? That is a right underpinned by Scots law, which rests on the claim of right that asserts that it is the people who are sovereign.
The Supreme Court’s rejection of the argument that Scotland has the right to self-determination in international law was described last week as “problematic”—very problematic—by Michael Keating, emeritus professor of politics at the University of Aberdeen. He states:
“The way is now open for the UK Government to say that there is no time or way for Scotland to exercise its acknowledged right of self-determination”.
He has quite rightly pointed out that in invoking the Canadian court’s ruling on Quebec, the UK Supreme Court failed to mention or consider a further aspect of that Canadian judgment—namely, that if Québec or any other province did vote for independence by a clear majority on a clear question, the Government of Canada would be bound to negotiate. That aspect of the Canadian court’s ruling is significant and in essence reflects a situation where legality meets politics.
Angus Brendan MacNeil
The hon. Gentleman is making a great speech, and I am grateful to him for giving way again. The Holyrood Standing Orders perhaps possess a way, and the Supreme Court has, unwittingly perhaps, opened up every election from now on for people to speak at the ballot box. Under rule 11.10 of the Standing Orders for Holyrood, “Selection of the First Minister”, paragraph 5 mentions what happens when there is one candidate, paragraph 7 when there are two candidates, and paragraph 8 when there are more than two candidates. That, with a combination of no-confidence votes, surely leaves the way open, if it was chosen, for Scotland to determine its own future—if Holyrood decides to do that.
Neale Hanvey
The hon. Gentleman will probably not like my answer, but that is a matter for the Scottish Government to consider.
In addition to the point that I was making about political reality, Professor Keating goes on to argue that not going beyond the letter of the law to look at broader constitutional issues
“risks undermining the conventions and understandings on which”
the UK’s “largely unwritten constitution depends.” Those are wise reflections that both the UK Government and the UK Supreme Court would do well to consider.
With regard to Kosovo, the UK has stated, in its submission to the International Court of Justice:
“The United Kingdom considers that the Declaration of Independence of Kosovo was not incompatible with international law. It was not made in haste or in a political vacuum. Rather, it flowed from the failure of the two sides, and of the international community, after long and sustained effort, to secure any other framework”.
Further, the UK
“considers that developments since 17 February 2008 have crystallised Kosovo independence and cured any deficiency that might initially have existed. As the 1776 Declaration of Independence of the United States”—
David Duguid (Banff and Buchan) (Con)
I want to ask a question of clarification on the comparison to Kosovo. Is the hon. Gentleman really comparing the situation that Scotland finds itself in within the United Kingdom with Kosovo in the literally war-torn former Yugoslavia?
Neale Hanvey
I am referring to the petitioners’ arguments, the Supreme Court’s response and the UK Government’s judgment on the Kosovan situation. I am pursuing a line that was submitted by the petitioner and responded to by the UK Supreme Court.
As the 1776 declaration of independence of the United States of America—a declaration of independence that the United Kingdom opposed at the time—illustrates, many states emerge to independence in what, at the time, were controversial circumstances. That does not vitiate their subsequent emergence into full statehood.
These developments are succinctly crystallised by Robert McCorquodale, a professor of international law and human rights who has himself appeared as an advocate before the International Court of Justice and the UK Supreme Court. The dissolution of the USSR and its influence on the development of the right to self-determination has been examined, and Robert McCorquodale states, “Lithuania’s declaration of independence had substantial impacts on the understanding and application of the right to self-determination. The right to self-determination, which is a human right acknowledged by all states, changed from being limited to people with traditional colonial territories to applying to all states, including to peoples within states. This development has profound effects today, such as enabling people in all states worldwide to seek to exercise their right to self-determination.”
That directly challenges a key assertion of the UK Supreme Court, which led it to conclude that the Scottish Government could not independently consult the Scottish people about independence and that it was in the gift of Westminster. Yet a public petition entitled, “The Treaty of Union 1707 is no longer fit for purpose and Dissolve The Union”, was submitted to this place in 2019 and was rejected by this place for the following reason:
“We can’t accept your petition because this would be a decision of the people of Scotland and not the UK Government or Parliament.”
On that, I wholly agree. For all the reasons given above, the UK Supreme Court’s position cannot stand unchallenged, particularly on our national day.
Today I invite others to sign the declaration of St Andrew’s day, published in my name as early-day motion 633, which asserts the following:
“we the people, elected members and civic organisations of Scotland assert that our nation has the right of self-determination to freely determine our political status and to freely pursue our economic, social and cultural development, mindful of the Scottish constitutional tradition of the sovereignty of the people, we will democratically challenge any authority or government which seeks to deny us that right.”
On Wednesday 23 November 2022, it became clear that the wrong case had been argued at the wrong time and in the wrong court. Just as Westminster and the United Kingdom’s Supreme Court are part of the British state apparatus, so too is the Scottish Parliament, but if Scotland’s Parliament is denied agency over the future of its people, where stands democracy for the Scottish people?
In Scots law, there is no sovereignty higher than that of our people, and here today I have asserted that right into the record. Neither Scotland’s claim of right nor the aspirations of the Scottish people to be a normal, outward-looking, independent nation are the sole purview of any one political party or any individual party leader. We now learn, the UK’s Secretary of State intends to act as a territorial viceroy, banning the Scottish civil service from advancing the democratic will of the Scottish people. Well, I give him fair warning: the independence movement extends far beyond the Scottish civil service. If anything, such an undemocratic move will simply galvanise and liberate the movement by decoupling our ambition from the daily trials of government. We are the nation of the Enlightenment, and our movement possesses minds with more ambition and vision than any Government or civil service that is subject to diktats from London.
At the start of my contribution, I said that this was an issue of contradictions. Let me say today, on St Andrew’s day, that there is no contradiction in Scotland. Scotland is a proud and ancient nation that goes back millennia, and no one but the people of Scotland shall impede, limit or restrict our right to self-determination. It is precisely a week since the Supreme Court gave its judgment on the right of the Scottish Parliament to hold a referendum on Scottish independence. Let me be clear: Charles Stewart Parnell said about another nation that was once a part of the United Kingdom:
“No man has a right to fix a boundary of the march of a nation…no man”—
no court, no Government—has the right to say to another country
“thus far…and no further.”
