Salve Jure Cujus Libet
The above is the full title of what was more commonly known as the Act of Salvo. It appeared at the end of each parliamentary session pre-union and effectively was a statement to the effect that no decision or act of parliament was beyond contest. A clear indication that sovereignty was the property of the Scottish nation and not just parliament. This is in direct contrast to the English model of parliamentary sovereignty.
Following the union, the English model became the default for the whole UK. Barely understood for three hundred years, the loss of popular sovereignty in Scotland has come to the fore recently, exacerbated by poor local democracy and the top down nature of the devolved Scottish parliament which clearly appears to follow the idea of parliamentary sovereignty.
There has been an interesting development, however. In 2020 the Scottish parliament passed a referendums Act. It only encompasses devolved matters so it can’t be used for an independence vote but nevertheless, on the face of it, it may show promise. But we can’t cheer too loudly, the Act should be examined carefully and we need to take note of what it leaves out as much as what is in it. There is no definition of what circumstances might trigger a referendum and the decision on whether or not to hold it lie entirely in the hands of the government with no mention whatsoever of popular engagement other than to vote. In other words, if we wanted any piece of legislation to be put to a vote there is no set way to achieve it.
So let’s look at the Swiss model. Here a precise protocol is set out in the constitution. Any piece of legislation may be contested if just one percent of the voting age population present a petition requesting a referendum and the people have ninety days following the passing of such legislation to present such a petition. Furthermore, there are strict rules regarding full disclosure of the relevant information required for the people to be made aware of prior to voting. If these rules are not followed, the vote is void and must be held again.
In Scotland, the Referendums Act seems to accept that any referendum should be an adversarial contest with different sides presenting their view. Under an accepted system of information dissemination it should not be necessary to have this effectively party political fight where opinions ultimately take precedence over facts. Information should be presented in a cool, disinterested fashion explaining its purpose with the pros and cons fully articulated.
We need to create a practical demonstration of popular sovereignty and in a way which would cause serious problems for Holyrood if they don’t comply and we have an important target in the current justice (VWJR) bill. On a personal level, I am implacably opposed to this or any other government passing legislation which interferes with the legal process unhindered. Of course governments can pass laws and they have every right to suggest changes to the legal system itself but the final decision on such a matter must always lie with the people. The alternative is to grant the right to any future government to alter and pervert the legal system which applies to us all.
The bill currently – government shenanigans notwithstanding – should be presented for its final reading towards the end of September. Scotland Decides is forming a campaign using our voting platform to effectively force the government to put the VWJR bill to a referendum vote. We urge you to support this campaign by registering with us and adding your vote. Voting will open in September and full details and instructions will be posted. Following this we intend to open a further campaign to have the right to a referendum enshrined in the 2020 Act, recognising the right to self-determination.
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