Separation Anxiety

The separation of the legislature and the judiciary is an indication, not a failure, of a healthy liberal democracy. It is the defining behaviour of populists to claim that they speak with the will and the authority of ‘the people against some defined elite. Independent courts must be able to hold the people’s representatives to a higher law – however that does not make them the enemy of the people.

The UK Supreme court, acting in its role as a Scottish court, has come under much misunderstanding and abuse. I’m writing this before their ruling on a unilateral advisory referendum is announced – But regardless of what they rule, perhaps those who have been raving about a court being able to overrule the Government as ‘undemocratic’ might stop to think what the alternative would be, and why,actually, this is the sign of a healthy liberal democracy. Essentially, what many nationalists call for in pursuit of their dogma is no legal oversight of Government. 

Why should a court be able to overrule a plurality or even a majority? 

It’s been a fundamental principle of Democracy from the earliest days that separation of the branches of Government – such as executive, legislature and judiciary, is an important check and balance on power that prevents extremist and regrettable actions. 

Solon’s constitutional reforms to Athenian Democracy distributed power to different classes and gave citizens the right to appeal to the general voters against the magistrates’ rulings. 

The Roman Republican constitution gave a veto to the tribute of plebians, while senators could only suggest laws for the people to ratify. And in the UK, whether it is Nicola Sturgeon wanting to hold a referendum or Boris Johnson proroguing parliament, the Supreme court has the power to hold them to account, regardless of their parliamentary hegemony.

The highest court in the land being separate from the democratically elected Government is an essential check on power. Liberal Democracy means liberal values, – so power cannot just be the tyranny of the majority, or rather more often in the UK, the tyranny of the plurality. What we consider democratic values must also include protection for minority rights, which means there must be a branch, an estate, that can check the Government’s power. 

Many, perhaps most, of the critics don’t care about the law, the principle or the philosophy. They are hypocrites who were happy that the Supreme court could rule against Boris Johnson’s illegal prorogation of parliament and are now unhappy that the Supreme court could rule against Nicola Sturgeon’s ultra-vires power grab (…and vice versa. There will be those unhappy with the Supreme court ruling against Boris who would want them to overrule the Scottish Government now.)

Separation Anxiety 

The separation of branches of Government is healthy – and already somewhat lacking in Scotland, where the Lord Advocate is nominated by the First Minister and attends cabinet. 

Disgraced former SNP First Minister Alex Salmond went so far as to say that if Nicola Sturgeon’s lord advocate wouldn’t support her referendum bill ( because she had no confidence it was legal) she should have appointed a lord advocate who would do the Government’s bidding, regardless of their confidence in the legal competence. 

“The two Lord Advocates that I appointed, Elish Angiolini and Frank Mulholland… I would have expected them to support the Government’s position. And if somebody felt that their conscience, or their difficulties, or their professional reputation, were such that they couldn’t make a convincing argument to anycourt or, much more importantly, take a Bill through the Scottish Parliament, then they wouldn’t have been Lord Advocate. You ( Nicola Sturgeon) didn’t have the sense to ask the Lord Advocate her opinion before you appointed her.” – Alex Salmond

Very much – “These are my principles, and if my Law officer doesn’t find them legal, I can find one who will” 

The Power of Constitutional Review

The power of constitutional review is one of the most important legal safeguards a judiciary in a democracy have: the power to declare the actions of a government unconstitutional. It’s a feature, to one degree or another, of all healthy functioning democracies, either through Supreme Courts or specific constitutional courts.

The UK, along with Isreal, New Zealand and a few other places, famously, have no single codified constitution document, and this is both a weakness and a strength. It is a strength because it does offer more flexibility and adaptability. However the payoff is that there are less restrictions on Governments with majorities beyond convention – and when you get populist nationalist demagogues such as Boris Johnston or Nicola Sturgeon, it can be harder to reign in their extreme unconstitutional tendencies. A constitution should be a higher law that protects us from the tyranny of transient populists. There is a reason most constitutions are so resilient to change, most often requiring broad consensus and supermajorities. 

A manifesto is not a mandate for ultra vires action. 

This is such a critical point. Most of the arguments we are seeing from Scottish Nationalists, both in and outside of the SNP, is that if the court rules that the Scottish Government cannot hold a referendum, then it is somehow proof we don’t live in a democracy. 

We see the claim that there is a ‘cast iron mandate’ to hold a referendum because one was in the SNPs manifesto – this is easily disproven.

A manifesto promise is not a mandate for a body or person to act beyond the powers of their office. This is a critical point to understand, and it is best proven with a simple example: 

 The argument is made that in Scotland, sovereignty lies with the people, so they have the ultimate power, and any infringement of this is an outrage against Democracy. 

By that rationale, the closer to the voters, the bigger the mandate. Well – we have local council elections, where parties put forward manifestos, where people democratically vote. If unionist parties put in their council manifestos that they wish to opt-out of any constitutional change and remain in the UK, and unionists get a plurality in a council area – does that give them the power to unilaterally opt out of any future referendum?

What if someone is elected to a parish council with a manifesto promise to get rid of speed limits, legalise drugs and bring back the death penalty in the parish – if voted in, do they have the mandate to do it and to divert parish funds to pay for it?

No. Even though they have been voted in by the people, they have not been voted into an office with the powers to do so. 

Legally, your local government councillor has the same constitutional powers as your local MSP – none. 

Yet, with the cognitive dissonance which is the modern Scottish malaise, there will be those who argue that the Scottish Government can get a mandate from the voters to have a referendum. Still, a Scottish council, whose democratic legitimacy comes from the same sovereign voters, can’t claim a mandate to opt-out of one. 

It’s subjective application of principles based on convenience to the independence cause. 

Democratic inefficiency is a feature, not a bug.

Those who want to enact change are often frustrated by Democracy, leading to tension between change by revolution and change by reform. That crosses partisan boundaries but also splits movements – such as between the gradualist and fundamentalist wings of Scottish nationalism. 

Yet when democracies are functioning as intended, they are meant to be inefficient; it’s a feature – not a bug. 

Dictatorships are efficient. 

The apocryphal saying about Mussolini, “But he made the trains run on time,” has a grain of truth. Dictatorships can get things done. One person makes a decision, and there’s no red tape to stop them and little to worry about being held accountable. 

What can be done?

I’ve called elsewhere for a clarity act – protecting against populist change and ensuring that progress and change is enacted through thoughtful reform, not slash and burn. Perhaps whatever the Supreme Court finding in this case, it is time to look at a codified constitution protected by a constitutional court such as we see in France, Germany, Italy and Spain: all nations with their own internal separatist threats. 

Without enforcement, a constitution is meaningless. Without independent non-partisan judges, the constitution is weak. If judges were subject to the same inconsistent democratic pressures as the other branches of Government, they would cease to give effective oversight. If they were always subject to the will of the majority, then there is no basis for the protection of minority rights: and should the plurality be misguided – swayed by populist rhetoric into the occasional national outbreaks of mass hysteria that plague us – there would be no branch of Government left to check demagogic power. 

Regardless of the finding, nationalists will rally, campaign, and find grievances. 

The Supreme Court gambit may be nothing more than a delaying stage in Nicola Sturgeon’s exit strategy, but the rhetoric and narrative it has sparked are harmful to Scottish Democracy. 

Without a court that can hold them to account, the authoritarian tendencies of populists will give us the tyranny of the plurality. That’s a bad day for stability, minority rights, and the checks and balances that keep democracies healthy.