Laws and legitimacy

Tweet One of the characteristics of the last UK Labour Government was their apparent blind faith in legislation as the answer to everything.  Whatever the problem, the solution was invariably to pass a new law to deal with it.  It gave the appearance of action – which always pleases the spin doctors – without necessarily making much difference to anything.

Jack Straw’s call at the weekend for a new law to declare the UK indissoluble comes from the same stable.  Of course, in the case of Wales, no new law is needed – after all “annexed and incorporated, henceforth and for ever” is about as final and definitive as one can get.  But the fact that there were already laws covering particular issues never stopped them legislating in the past, and I have no reason to believe that it would do so in the future either.

The Welsh precedent also highlights another point.  The fact that the law says that the union is indissoluble does not, and cannot, stop people making a case for dissolving it.  Enforcing such a law requires a much more draconian approach.  That’s been tried in the past as well, but it doesn’t work for ever either.

I remember speaking to a Catalan nationalist in the final years of the Franco regime in Spain, and I asked why he was only arguing for a degree of autonomy rather than independence.  It wasn’t that he was not in favour of independence, merely that Spanish law forbade him from saying so, and in a dictatorship such as Spain was at that time, such a law could be, and was, enforced.  As it happens, the Spanish law forbidding any part of Spain from attaining independence is still in force, and the Spanish government is attempting to rely on that law.  But, as the Catalans are about to prove by holding their own independence referendum in November, such a law cannot prevent them seeking to take responsibility for their own country.

The Catalan experience, in turn, highlights another point.  The words legislation and legitimacy may come from the same root, but legislation is not the only thing which confers legitimacy.  The existence of the Catalan parliament, and the people’s decision to elect to it a majority committed to seeking independence, confers an alternate legitimacy on their actions, and on the referendum which they are about to hold.  That legitimacy comes from the people, and such legitimacy will always trump laws made in the past. 

The legitimacy conferred by electing a majority of nationalists to any parliament brings me to another point.  Over the weekend, Alex Salmond made the entirely rational point that a referendum is not the only possible route to independence.  (Whether it would be wise to seek another route is another question entirely, and I’m not going to go into that here.  I merely support the point that he makes, which is that plenty of countries have seen their legislatures move from devolved power to complete power without holding a referendum.)  The greater the degree of autonomy enjoyed by a parliament, the more credibility its freely-elected representatives have in speaking for the people, even on non-devolved issues.

I doubt Straw’s Law will ever become a reality, but if it does it will be an irrelevance from the day on which it is passed.  The people of Scotland and Wales may never choose to become independent; they have as much right to make that choice as the alternative.  But it won’t be any new law which prevents them.