Tag Archives: Catalonia

The sovereignty conundrum and the uncertain future of the Union

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Brexit has led to numerous clashes between London and the devolved governments, raising fundamental questions about the very nature of the United Kingdom, in a context where the European Union is no longer available as an ‘external support system’. Michael Keating argues that we need to find new constitutional concepts for living together in a world in which traditional ideas of national sovereignty have lost their relevance.

Since the Brexit vote, there have been repeated clashes between the UK and devolved governments. Some of these concern policy differences, notably over the form Brexit should take. Some reflect the inadequacies of mechanisms for intergovernmental relations. There is an inevitable rivalry between political parties at different levels. Beneath all this, however, are fundamental questions about the nature of the United Kingdom as a polity and where ultimate authority lies, especially after 20 years of devolution.

On the one hand, there is the classic or ‘Westminster’ doctrine, according to which sovereignty resides with the Monarch-in-Parliament. In the absence of a written, codified and enforceable constitution, this is the only foundation of authority. In this view, Westminster has merely ‘lent’ competences to the devolved legislatures, which can be taken back at any time, however politically imprudent that might be. Westminster may not often exercise this power but it provides a trump card in any conflict with the devolved authorities.

This is a powerful doctrine but at the same time an empty one since it rests on a tautology. Westminster is sovereign because, by dint of its sovereign authority, it says it is. The point was illustrated in the debates on the 1978 devolution legislation when an alliance of unionists and nationalists defeated a clause asserting that Westminster remained supreme, the nationalists because they did not want it to be true and the unionists because it was redundant. Westminster sovereignty is a myth, that is a story that may be true or false but works as long as people believe it. When the spell is broken, as it has in recent years, its supporters have to fall back on other arguments. There is a historical argument, that parliamentary sovereignty is rooted in constitutional practice; a normative argument, that in an age of universal suffrage, it really amounts to popular sovereignty; and an instrumental argument, that it allows for powerful and effective government. All are open to question. The historical argument is based on English practice and challenged in Scotland. The normative argument assumes that there is a single UK people with one channel for expression, rather than multiple peoples, the smaller nations having more inclusive electoral systems. The instrumental argument needs to be proven empirically rather than asserted.

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Can Boris Johnson stop Indyref2?

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With the Scottish Parliament elections approaching, the Unit gathered together three experts to discuss the prospect of Boris Johnson seeking to block a second Scottish independence referendum, and how the Scottish government might respond to such efforts. Charlotte Kincaid summarises the contributions.

With the May 2021 Scottish Parliament elections approaching, and the recent attention on the continuing political conflict between First Minister Nicola Sturgeon and her predecessor Alex Salmond, eyes are very much on Scotland and the prospect of a second independence referendum (‘Indyref2’). Boris Johnson has said he would refuse a referendum, but is this possible, and what would be the ramifications? To explore the possibility of Indyref2 and how such a referendum would be brought about, the Constitution Unit hosted a webinar with three experts: Professor Aileen McHarg of Durham Law School; James Forsyth, political editor of The Spectator magazine; and Dr Alan Renwick, Deputy Director of the Constitution Unit. The summaries below are presented in order of the speakers’ contributions.

Professor Aileen McHarg

Professor McHarg explored a number of pathways to a referendum from a legal perspective. She first addressed if the UK government can prevent a second Scottish independence referendum: it can, and it isn’t required to agree to a Section 30 order, or amendments to the Scotland Act to enable Holyrood to legislate for a second referendum – as was the case for the 2014 referendum.

But can the Scottish Parliament legislate for a referendum without a Section 30 order? This is less clear. The SNP has marked its intention to unilaterally introduce a referendum bill with or without a Section 30 order if it wins a majority in Holyrood following the May elections. If the bill passed, it would be subject to legal challenge. If the bill were judged as beyond the Scottish Parliament’s competence, any referendum which followed would not have a legal grounding, and in Aileen’s view, the idea of a referendum was ‘a non-starter’. She described talk of a wildcat referendum – such as that experienced in Catalonia in 2017 as ‘entirely misplaced’. There would be questions concerning the legitimacy of a unilaterally-called referendum, even if it were ruled lawful by the Supreme Court; unionists may be unwilling to engage in such a referendum.

Another possible pathway, although unlikely, is Westminster legislating to dissolve the Union. This is possible because a referendum on Scottish independence is not a legal requirement of independence.

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Making sense of the uncertainty following Catalonia’s declaration of independence

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Catalonia faces an uncertain future following the events of the last month, but the regional elections now scheduled for 21 December are likely to be a key moment in determining its trajectory. Mariana S. Mendes assesses how the crisis developed following the 1 October referendum, arguing that by calling early elections, the Spanish government has attempted to give the pro-independence bloc little opportunity to build momentum behind their resistance efforts, but that if pro-independence parties secure a majority the crisis could escalate again.

A surreal month in Spain’s political life ended the way the Catalan and the Spanish governments had promised to start it – with a unilateral declaration of independence on 27 October, followed by the suppression of Catalonia’s autonomy. Uncompromising positions took the lead and neither the authorities in Madrid nor in Barcelona showed the necessary will or statesmanship to avoid the greatest political crisis Spain has faced since the end of Franco’s era.

That it took the pro-independence bloc 27 days to proclaim independence rather than the 48 hours promised following the 1 October referendum shows, however, that attempts were made at avoiding such a drastic measure. Potentially important factors in this were dissenting voices within the ruling coalition, firms withdrawing from Catalonia, and the lack of international support.

The ambiguous announcement of a ‘suspended declaration of independence’ on 10 October – to make room for dialogue with Madrid – highlighted the conundrum that the head of the Generalitat, Carles Puigdemont, had to confront. On the one hand, pro-independence hardliners threatened to withdraw their support and break up the pro-independence parliamentary majority if independence was not declared. On the other hand, pro-independence pragmatists were alarmed by the potentially high costs of such a move – visible in the more than one thousand firms that moved their headquarters out of Catalonia – and preferred to take a more cautious approach.

To be sure, no one inside the ruling pro-independence coalition expected the Spanish government to react with complacency. What many certainly hoped for was that Madrid’s response would help move Catalonia a step further to independence. If the Spanish authorities reacted with a heavy hand, the case for separation would be further strengthened and so would support for independence – which still requires a convincing majority within Catalonia itself. If instead Madrid had accepted Puigdemont’s call for dialogue, he would be given some leeway to negotiate possible concessions: potentially the acceptance of constitutional changes allowing for a legal referendum, or, as a second best option, a reform of the Statute of Autonomy. At a minimum, he would have sought to avoid the suppression of Catalonia’s autonomy and what is most likely a long prison sentence for him.

But Madrid’s authorities did not need to tie themselves to either model. Instead, they followed the ‘carrot and stick’ approach of Puigdemont. Whereas the latter’s ‘carrot’ was a proposal for dialogue – while keeping the potential stick of a blunt declaration of independence on hand – Madrid’s ‘carrots’ were a series of requests that Puigdemont would have to abide by if they were not to apply article 155 of the Spanish Constitution – the ‘nuclear option’ of suspending Catalonia’s autonomy and deposing the regional government.

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