To secure a second independence referendum, the Scottish government must first prove the referendum's legitimacy. To do so, says Ruairidh Brown, the SNP-Green alliance is implying that the UK government has no moral authority to deny Scots a choice on their future

Moral obligations

In political philosophy, our moral obligations to authority are typically addressed through the concept of political obligation. This, according to TH Green – the Idealist philosopher credited with coining the concept – is concerned with the obligations of ‘the citizen towards the state, and ... of individuals to each other as enforced by a political superior’.

That political obligations were ‘moral’ obligations was, for Green, their crucial distinguishing factor. This emphasis distinguished political from legal obligation; philosophers of political obligation are not concerned with what we must do, or refrain from, under threat of legal repercussions. Rather, they consider what we ethically ought to do or not do. Thus, we can examine actions that citizens undertake out of a moral duty that are not compelled by law, such as voting in an election.

Political obligation can bring the moral authority of the State into question

We can also consider obligations to undertake a course of action out of moral duty, even when it is prohibited by the State. Such was the case when Catalonians defied Spanish authorities to vote in a referendum declared unlawful by Madrid.

Political obligation subsequently brings the moral authority of the State into question; it asks not only 'should I obey this law?,' but 'does the State have the moral authority to dictate this issue for me?'. Such lines of thinking were notable during the pandemic. Many questioned whether the State had the moral authority to regulate citizens’ private lives to the extent it did.

Such a moral question emerged at the centre of Scottish politics last week, as the Scottish National Party (SNP)-Green alliance announced plans for a second Scottish independence referendum. Nicola Sturgeon and Scottish Green leader Patrick Harvie implied that Westminster lacks the moral authority to refuse such a referendum.

Section 30 – the legal barrier for Indyref2

Sturgeon claims she has a ‘indisputable democratic mandate’ to hold a second referendum. This is because the 2021 Scottish parliamentary election resulted in a pro-independence majority in the Scottish parliament.

The SNP and Greens nonetheless face a considerable legal challenge to holding a referendum. The right to make such a vote legal (ie to alter the Union) is reserved for the UK parliament. To temporarily delegate the power to hold a referendum to the Scottish parliament, it must issue a Section 30 Order.

Only the UK parliament has the right to sanction Scotland's independence referendum, despite Sturgeon's 'indisputable democratic mandate'

Prime Minister Boris Johnson has refused to grant a Section 30 Order. Scottish Conservative leader Douglass Ross has said he will urge a boycott of any referendum not sanctioned by such an order.

Sturgeon has, however, insisted she will push forward for a referendum, with or without the Section 30, though in the SNP-Green briefing, she emphasised that a second independence referendum ‘must be lawful’. Sturgeon will not want to make the same mistakes as in the 2017 Catalan referendum. But Sturgeon and Harvie have notably shifted their language, which now emphasises the moral case over the legal one.

The moral case for Indyref2

There was an explicit moral dimension to Sturgeon's argument. She stressed that the UK government no longer governed in the interests of Scotland. She cited Brexit, a policy Scotland ‘did not vote for’ and which is bringing many hardships to Scottish people, as a key example. Patrick Harvie echoed this, and asserted that Westminster policies created income inequality in Scotland. He went as far as to label Westminster as ‘hostile’.

Sturgeon questioned the moral authority of the UK government, especially Prime Minister Boris Johnson. She spoke of a ‘democracy-denying government’ which ‘deeply disrespected and disregarded’ the principles of democracy and rule of law ‘daily’. Meanwhile, Johnson does not ‘respect democracy, the law or any of the norms that… used to underpin democracies in the UK and still do in most other countries’. She further asserted that Johnson had no ‘moral authority anywhere in the UK’.

Sturgeon and Harvie painted a picture of a government and Prime Minister who are ethically bankrupt and without moral authority

Speaking directly to the Prime Minister, Sturgeon said that the evidence he was a democrat was ‘not promising’.

Harvie further cast doubt on Westminster’s moral authority, saying that it only acts when it needs to distract from ‘the pile of fixed penalty notices in the Downing Street inbox’.

Throughout their briefing, Sturgeon and Harvie painted a picture of a UK government and Prime Minister who are ethically bankrupt and have lost the moral authority to decide on Scotland’s future. Westminster may have the legal right to grant a Section 30 order. It does not have the moral right to refuse the Scottish people a choice on their future.

From legal to moral authority

David Hume was famously sceptical of questioning our moral obligation to the law. He feared such questioning could lead to disorder and a rejection of the authority of the State. Such questioning is nevertheless an acute strategy for outflanking Westminster’s monopoly over legal powers, transforming the referendum debate from one of legal authority to one of moral authority.

While she may not have the legal authority to sanction a referendum, Sturgeon has positioned herself on the moral high ground as the defender of Scots democracy against an ethically compromised and antidemocratic Westminster. Sturgeon must forge a way forward, regardless of Section 30, out of a moral duty to democracy.

Continued refusal of a Section 30, meanwhile, only makes the British government appear more morally bankrupt and undemocratic. Thus, it supports the SNP and the Greens' position. Scots may remain legally bound to the United Kingdom, but London’s moral authority over Scotland slides yet further.