Point of order

The UK Supreme Court just destroyed the UK. I don't mean it created the conditions in which a second Scottish Independence Referendum is inevitable, although that is also true. I mean it exposed a contradiction at the heart of the UK's unwritten constitution that can no longer be ignored and must result in the collapse of the entire edifice if democratic governance is to be maintained.

Yesterday the UK Supreme Court ruled that the UK Government could not proceed with triggering Article 50 of the Lisbon Treaty without first consulting the Westminster parliament, but may do so without the consent of the Scottish parliament. It ruled that a Legislative Consent Motion under the Sewel Convention was not a legal requirement. As I have written elsewhere, this was already known, however the ruling means that it can no longer be conveniently ignored, with serious consequences for any meaningful devolution.

Some unionists in Scotland advocate a federal system, as a way of balancing the requirements of the Union with those of devolved jurisdictions in a way not currently possible, as the Supreme Court ruling makes abundantly clear. The Supreme Court of any federation, in any equivalent ruling, would have found in favour of the state rather than the federal government. It would have upheld the state's right to withhold legislative consent on matters within its competence and protected it from federal interference, which would typically only be possible under very clearly circumscribed circumstances. It would have arrived at the opposite decision regarding Article 50 and the Scottish parliament.

A federal constitution is ultimately a mechanism for upholding popular sovereignty. The UK Supreme Court has no choice but to blow up the Scotland Act because the UK's bizarre, unwritten frankenconsistution (e.g. the sovereignty of the "crown in parliament") is allowed to override Scottish traditions of popular sovereignty.

The UK's frankenconsititution relies on tacit acceptance for its validity, otherwise it would have to be imposed in a manner that is unacceptable in a democracy. That is, it requires the precedence of popular sovereignty, as the only self-ratifying basis for sovereignty, giving permission that is whispered and then immediately forgotten, as a necessary democratic predication for the charade of parliamentary sovereignty, a predication implicit if not acknowledged in the ermine pageantry of the state opening of parliament. In a democracy, unwritten parliamentary sovereignty cannot exist without unspoken popular sovereignty.

Of course, Scottish Independence would render the sovereignty of the people clear and explicit.

The Scottish parliament gives or withholds legislative consent only on the basis of its own democratic legitimacy. So the ruling regarding the Sewel Convention is in fact of much wider relevance. It potentially destroys the entire constitutional basis for the United Kingdom. It explicitly contradicts the UK constitution's implicit reliance on democratic consent. Parliamentary sovereignty is exercised in a way that contradicts the democratic consent on which its validity relies. The ramifications of the court's decision extend further than the scrapping of the pretence on which Scotland's entire devolved settlement is based. It contradicts the democratic basis of the UK constitution.

This time-bomb was placed under the UK constitution the second the Scotland Bill received royal assent on the 19th of November 1998, because the requirement for Legislative Consent was not legally binding on the UK government, and any exceptions were not clearly circumscribed, with only the single ambiguous weasel word "normal" being left in the text. It was only a matter of time before this bomb went off.

A federal constitution would indeed repair the damage, as envisioned by many Scottish unionists. However there is insufficient political will for the UK constitution to be rewritten along explicitly federal lines, regardless of what Scottish unionists might think. The UK government is currently pre-occupied with Brexit. And if it was incapable of considering the Scottish government's proposals for a differentiated Brexit, the likelihood of a more extensive federal accommodation is vanishingly small. It will resist this idea in the same way and for the same reasons it resisted the proposed third option on the ballot for the Independence Referendum in 2014.

Given the traduction of democracy caused by acknowledging and making explicit the contradictions in the UK constitution in the recent Supreme Court ruling, Scottish Independence is now necessary, not just to protect Scottish interests, but to defend democracy itself.