I have no doubt confirmed lying bastard Alistair Carmichael MP has his own reasons for trying to discourage Humza Yousaf MSP from conceding the demand Ash Regan MSP is making as the price of her vote against a no confidence motion tabled by idiot Douglas Ross MSP. (That’s a lot of names, I know. But I’m going to have to assume most of my readers are reasonably up to speed with the squirmings and twitchings of our political pond-life, as giving a full account of the background to all of this would necessarily run to several thousand words.)
The demand in question is that the First Minister should lend his government’s support to Ash Regan’s proposed Scottish Parliament Powers Referendum Bill. This Bill does not yet exist even in draft form, as far as I am aware. All we know about it is the ‘information’ disseminated as part of Alba Party’s consultation on the proposal (PDF). The aim of the proposed legislation is stated with a brevity which would be admirable but for the fact that it omits so much that we need to know.
The aim of the Bill is to make provision for ascertaining the views of the people of Scotland on whether the Scottish Parliament should have the powers to negotiate and legislate for independence for Scotland.
If the proposed Bill is enacted it would allow for a Referendum to take place on 19 September 2024 to ask the people of Scotland the Question:
“Should the Scottish Parliament have the power to negotiate and legislate for Scottish independence?”
Sounds good, doesn’t it? As ever, however, we would be well advised to refrain from taking such offerings from politicians at face value. As I pointed out back in January, this proposal is not as good as it appears on the surface.
Let’s pause a moment to consider what powers are being begged from the British state and what powers might actually be given in that fantasy world where the legislation actually takes effect. We can be certain that if the British state were to concede any powers over the constitution, those powers would be limited and conditional. All she can possibly be seeking is a sort of rolling Edinburgh Agreement. A standing Section 30 order, if you like. Because that is the very most the British state might imaginably concede.
A quote that came to me by the circuitous route of X/Twitter reposts struck me as particularly relevant to the warning I had intended to issue today.
On the eve of the American invasion of Iraq, a majority of Americans believed that Saddam Hussein was involved in the 9-11 attacks.
The point, of course, is that what people believe need not bear any relation to reality. People tend to believe what they want to be true. Add some glossy presentation and it’s relatively easy to persuade people that something is more than it really is. Relatively few people look for the detail behind the appealing facade. They don’t ask the awkward questions. If the American people had been able to question their own prejudices and preconceptions, the Bush clan’s bloody revenge might not have been visited on the people of Iraq – with the eager participation of the British Labour government.
There is a lesson in this for all who suppose Ash Regan’s proposed Bill to be a means of ‘breaking the log-jam’ that has prevented Scotland’s cause making any progress for almost a decade. Obviously, we are not talking here about the kind of consequences that flowed from the American public being so easily deceived about Iraq’s connection to the deadly attack on the Twin Towers in New York. But there are consequences to being misled about the reality of the proposed Scottish Parliament Powers Referendum Bill. Those consequences would all but certainly be catastrophic for Scotland’s cause.
As with Neale Hanvey’s Scotland (Self-Determination) Bill at Westminster, Ash Regan’s proposal is for the Scottish Parliament to have tranferred powers. That is to say, the powers that the British state might be prepared to give. But we surely know by now that genuine power is never given. Real power is only ever taken. No matter how superficially appealing an idea may be, it is vital that we consider the implications as thoroughly and dispassionately as we may.
Ash Regan’s Bill is just a Section 30 order request in disguise. So was Neale Hanvey’s Bill. Be absolutely clear that, no matter how attractively it may be dressed-up, a Section 30 request would be disastrous for the cause of restoring Scotland’s independence. Be clear too, that we are talking here about the mere requesting of a Section 30 order, regardless of whether it is refused or granted – the latter having nasty implications of its own. The reason is that a further Section 30 request at this time would establish as the Scottish Government’s position that the Section 30 process is a means by which the people of Scotland may fully and properly exercise our right of self-determination. That the Section 30 process is not an adequate way of exercising our right of self-determination is both a fact and a truth that is essential to the only process by which the people of Scotland will be enabled to fully and properly exercise our right of self-determination.
I fervently hope readers will bear with me as I explain this point as it is crucial to our hopes of ending the Union and restoring Scotland’s rightful constitutional status.
The process I have tagged #ScottishUDI is the only process that works for Scotland’s cause. Now as always, that cause involves two distinct struggles. The struggle to assert and defend our right of self-determination – the right of the people of Scotland to decide the constitutional status of our nation and choose the form of government which we calculate best serves our needs, priorities and aspirations. Only when this struggle is won will we be able to move on to the fight to restore Scotland’s independence.
If Scotland’s political elite is aware of the fact that the fight for independence starts with the fight for self-determination, they consider it too complicated to be understood by the punters. To illustrate the point, when they talk of a de facto referendum it is always an ‘independence referendum’. They go straight to independence, by-passing the critical first step of establishing a process by which the people of Scotland can exercise our right of self-determination in a way that is impeccably democratic and capable of providing a clear, decisive and conclusive answer to the constitutional question. For the professional politicians, the word ‘independence’ is the vote-winner. Talk of independence is easy. Talk of process is difficult. By the same token, talk of independence is easy to hear and understand. Talk of process is, for far too many people, tedious and more complicated than they are inclined to cope with. The professional politicians rely on this attitude. It’s what allows them to get away with fobbing-off the voters with snake-oil solutions.
Ash Regan’s Scottish Parliament Powers Referendum Bill is particularly insidious because at first glance it appears to be the very thing we actually require – a vote to assert the legislative competence of the Scottish Parliament in the reserved matter of the constitution. It isn’t that, of course. It couldn’t be. As previously stated, what is proposed is no more than a referendum on the transfer of powers. And transferred powers can never be such as would permit the full and proper exercise of our right of self-determination. That power can only be taken. That power cannot be given by the British state and even if it could it wouldn’t be that power. There’s no way out of that bind.
The reason I am once again stressing this point about the inherent wrongness of Ash Regan’s proposal is that the situation Humza Yousaf has contrived for himself makes him susceptible to being pressured into conceding the demand to support the Scottish Parliament Powers Referendum Bill. People have to understand that this would be acceptable to Yousaf and the SNP leadership only because it is essentially no different from their existing approach of deferring to Westminster.
People must understand that, for Scotland’s political elite, all routes lead to the Section 30 process – which cannot result in the full and proper exercise of our right of self-determination and hence the restoration of Scotland’s independence.
Perhaps more importantly, a further Section 30 request – with or without a preceding referendum or election pretending to be a referendum – would fatally undermine the necessary presentation of Scotland’s cause first and foremost as a human rights issue. Restoration of our nation’s independence is not a human rights issue. It is an internal (to Scotland!) constitutional issue. Self-determinsation is a human right. It is only by making Scotland’s cause a human rights issue that we will be able to secure a process by which we can fully and properly exercise the right of self-determination.
All supposed ‘routes’ to independence converge at the issue of legislative competence. No matter how they get there, all these ‘routes’ ultimately arrive at the point where the Scottish Parliament has to enact legislation that the British state insists it is not competent to enact. The only way the Scottish Parliament can acquire that legislative competence is to assert it. To take it in defiance of the British state. To take the power to legislate for a proper constitutional referendum entirely made and managed in Scotland and defy the British state to mount a legal challenge.
That legal challenge must involve the British state arguing that Scotland does not have the right of self-detemination. An argument that would be massively problematic for them. Not least because they have previously conceded that Scotland is a nation and does have the right of self-determination. Otherwise, the 2014 referendum – unsatisfactory as it was – could not have happened. Challenging the Scottish Parliament’s assertion of its legislative competence in the area of the constitution would involve arguing that Scotland is not a nation and the people of Scotland are not sovereign and many other things that the British state really doesn’t want to say aloud because to do so would confirm Scotland’s status as annexed territory (a colony) and thus concede the very point they are challenging. They cannot admit that Scotland is a colony without allowing that we must have a way of exercising our human right of self-determination.
Scotland’s case is that the Scottish Parliament having legislative competence to authorise a proper constitutional referendum (see Stirling Directive Appendix II) is the only way the people of Scotland can exercise our right of self-determination. A further Section 30 request detroys this case because it allows the British state another way to challenge the Scottish Parliament’s assertion of legislative competence.
If the Scottish Government submits another Section 30 request this would allow the British state to challenge the Scottish Parliament taking the power to authorise a proper constitutional referendum on the grounds that there already exists a way in which the people of Scotland may exercise our right of self-determination. Namely, the Section 30 process that has been confirmed as an adequate means of exercising our right of self-determination by the Scottish Government.
The Scottish Government must not be allowed to submit a further Section 30 request. Rather, all the nominally pro-independence parties in Scotland must immediately and explicitly repudiate the Section 30 process as an unacceptable and unlawful constraint on the exercise of our human right of self-determination.
Scotland’s fate hangs in the balance. Only the combined might of the independence movement can stop self-serving, blinkered, dogmatic, cowardly politicians making an error that could very well prove fatal to Scotland’s cause. I can only hope that enough people read and understand and are persuaded by this article to make a difference.
Peter A Bell 
Ash Regan’s referendum bill essentially asks the sovereign people of Scotland the following question:
“Should the Scottish Parliament have the power to negotiate and legislate for Scottish independence?”
I very much welcome the broad strategy of having the sovereign people of Scotland declare that the Scottish Parliament, on their behalf, has inter alia the power to negotiate and legislate for Scottish Independence.
However the proposed question leaves the door open for Westminster, of which the Scottish Parliament is only a devolved administration after all, to prevent the Scottish Parliament from putting into action the “negotiate & legislate” activity required by the referendum question. Realistically Holyrood is a creation or creature if you will, of Westminster, and must thus do as Westminster dictates.
So how to deal with this obstacle ? There is maybe a simple answer –
Change the question, Empower the Parliament
The logical basis of the proposed Bill is that the people of Scotland are sovereign. This is accepted by Westminster, by Scottish civic society and internationally and has been reaffirmed many times.
This fact does represent an amazing feat of cognitive dissonance on Westminster’s part because of course it rules the UK on the basis of the sovereignty of the Westminster parliament, hence parliament’s ability to eg declare Rwanda a safe country. But it is a fact that needs to be exploited to the full, and we may have only one chance to exploit it.
The people of Scotland are sovereign, and they need to be asked a question in a referendum or an election which essentially converts or upgrades the Scottish Parliament from being a creature of the parliament of another country into the only parliament lent the power derived from the sovereign people of Scotland.
So the question needs to be something like the following:
“Should the Scottish Parliament be the only parliament with the power to legislate or negotiate on any matter as empowered by the (sovereign) people of Scotland ?”
If the majority react positively to such a question, then that represents a mandate to negotiate the terms of independence without the possibility of any legal constitutional interference from Westminster.
In effect it is a declaration of self-determination.
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Whatever way you look at it, Ash Regan’s Bill is about transferred powers. It can’t be anything else. If she made it a referendum seeking a mandate to assert the legislative competence of the Scottish Parliament to authorise a proper constitutional referendum it would ruled incompetent by the PO. Or it would immediately be quashed with a Section 35 order. For the Scottish Parliament Powers Referendum Bill to even make it as far as the Scottish Parliament, it would have to be precisely the kind of measure which would be fatal to Scotland’s cause.
The Scottish Parliament cannot legislate for a proper constitutional referendum. Simple logic tells you, therefore, that it cannot legislate for a referendum which would afford it the necessary legislative competence. It would be good to have a mandate for the Scottish Parliament having the necessary legislative competence. But it would need to have that competence in order to legislate for a referendum to acuire that competence.
See the problem?
There is, however, a way to get that mandate. Make the coming UK general election a de facto referendum on the powers of the Scottish Parliament. Make it a mandate to assert legislative competence in the area of the constitution – effectively UDI – on the grounds that this is the only way the people of Scotland can exercise our human right of self-determination. Make it a human rights issue! Leave the British state without a legal leg to stand on!
So long as no Scottish First Minister conceded that the Section 30 process satisfies the criteria for a proper constitutional referendum. That would be fatal. If people don’t understand this and stop Yousaf, we are fucked. Ash Regan’s ‘solution’ would leave us just as fucked.
Bear in mind that I am doing something the policians are incapable of doing. I am thinking about the constitutional issue absent the burden of personal ambition, partisan prejudice and electoral considerations. I see the precipice they would walk us over.
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As before we are only a baw hair apart on this, you are looking for power over only constitutional matters, I’m looking for power over all matters including constitutional. We agree on the route to these powers. We agree no S30 route as this acknowledges the need to request power which totally contradicts the sovereignty of the Scottish people.
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As I’ve told you before, if you have power over the constitution you have power over everthing. But there is no human right to power over everything. There is a human right to self-determination. THAT, as I have explained until I am deathly weary, is why we must approach the matter by way of securing our ability to exercise our right of aself-determination. That way, we make it the constitutional issue a human rights issue.
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“Power over the constitutional issue” is by definition included in “power over everything” , it doesn’t stop being a human rights issue just because it is included within a wider definition of powers. Including it in “power over everything” avoids the risk of having something that you think is included in the constitutional issue, being deemed not to fall within the definition of “constitutional issue”. Why take that chance ?
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There was me thinking that the perils of diluting the issue had long since been learned.
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I like a wee drop of water with my Laphroaig – that doesn’t mean that the Laphroaig is not in there !
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Whisky can be diluted. Sovereignty cannot.
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The Scottish people are sovereign. The Scottish parliament is the body that enacts the will of the Scottish people. If there is a pro-independence Scottish government, please explain to me what is wrong with asking the people “Should the Scottish parliament exercise its democratic right to negotiate and legislate for withdrawal from the Union”.
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The Scottish Parliament as it currently stands is a limited-powers devolved institution of the UK parliament, so is not yet the body that enacts the will of the Scottish people. But it could be that body, if the sovereign Scottish people decide at an election or referendum that it is indeed that body.
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Thank you for that clarification. We have to ride roughshod over the Scotland Act at some point in a way that any attempt at interference by Westminster will only further empower the cause of Self-determination.
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This CANNOT be decided by a referendum for the very reason that the “Scottish Parliament as it currently stands is a limited-powers devolved institution of the UK parliament” and so CANNOT legislate for a referendum that would give the Scottish Parliament powers in relation to the constitution. There CANNOT be the referendum that people imagine Ash Regan’s Bill proposes. That Bill can only propose a TRANSFER of powers from Westminster. For reasons which should require no explanation, transferred powers CANNOT be used to authorise a proper constitutional referendum.
Westminster not only would not transfer such powers, it CANNOT transfer them. To do so would run counter to the doctrine of parliamentary sovereignty. It would be constitutionally prohibited. Without parliamentary sovereignty, the structures of power privilege and patronage which comprise the British state would unravel almost overnight.
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Read the fucking article!
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The Parliament should legislate and, if appropriate after endorsement from the electorate in a properly defined constitutional referendum, negotiate the terms of division.
The question should focus on the ability of the Scottish Parliament to enable the exercise of Scotland’s right of self-determination. This is a right guaranteed by the UN charter where a people can select the constitutional option they wish whenever, however, and as often, as they like.
This could be supported by pro-Independence parties standing at each and every election on the unequivocal platform that a vote for them is a vote for the Scottish Parliament to enact that right.
At no stage should there be any involvement of the British government in the process of exercising that right. To do so would be to compromise the sovereignty of the Scottish people – as protected in perpetuity by Scotland’s Claim of Right (1689) – since this would be deferring to a foreign power.
Once ratification to enact self-determination is obtained from the people (at one of each and any subsequent British or Scottish Election going forward) an explicit plebiscite on ending the British Union should be held with terms and conditions set in Scotland. This would cover the question posed, answer options, franchise criteria, referendum timetabling and vote count inspectorate.
If the people of Scotland decide in favour of full self-government of and for the country in that referendum independent statehood should be declared unconditionally, not ‘negotiations for Independence’. The only consultations and dialogue with the rump British representatives would refer to the settlement relating to the splitting up of current joint assets and liabilities.
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When you say “The question…” I take you to mean the question asked in Ash Regan’s proposed referendum. But as I have just put a lot of effort into explaining, the Scottish Parliament cannot legislate for a referendum that would provide a mandate to legislate for a proper constitutional referendum because such proposed legislation would impinge on a reserved matter.
The Scottish Parliament can only acquire the legislative competence required to authorise a proper constitutional referendum by taking it. The Scottish Parliament can only acquire a mandate to take the legislative competence by the informal means of a de facto referendum.
All of this should be obvious. Although it is amazing how difficult it is to explain something which should be obvious. It’s looking like my 2000-word essay has failed to do so. I don’t know how much more I can do.
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“When you say “The question…” I take you to mean the question asked in Ash Regan’s proposed referendum.”
No.
I mean the question asked on the referendum on our constitutional arrangements AFTER the Scottish Parliament’s powers to hold such a referendum have been endorsed by the people. (For the avoidance of doubt the question, in my opinion, should be ‘Do you wish to end the Union?’ or something close to that. The YES/NO answer options would have the same interpretation as in 2014 so as to avoid confusion i.e. no ‘Leave’ or ‘Remain’ options).
The people’s endorsement of this proposal will be signaled in an election where a majority of votes cast for pro-Independence candidates and parties whose manifestos contain the proposal that a vote for them is a vote to permit the Scottish Parliament to legislate to facilitate our right of self-determination.
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That sounds about right. Except that the proper constitutional I envisage would be a vote on a firm proposal to #EndTheUnion passed by the Scottish Parliament. This proposal would be presented in three forms. The full proposal as debated and endorsed by the Scottish Parliament. A 50-100-word ‘explainer’ easily accessible to the vast majority of people. The question on the ballot – 20 words or less.
The question would ask whether the voter agrees with the proposal (Yes) or not (No).
The proposal must state precisely what will ensue from a Yes vote. The opposition would be require to produce a counter-proposal structured in the same way. That way, voters know exactly what they are voting for… or against.
Suggested criteria for a proper constitutional referendum are set out in the Stirling Directive (Appendix II)
Click to access Full-Stirling-Directive.pdf
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Outstanding piece Peter, cuts through all the current flim-flam and gets to the heart of the matter
I have been reposting some of your articles on another not strictly political forum to try and disseminate the realities…
https://www.hmfckickback.co.uk/index.php?/topic/118618-scottish-independence-and-devolution-superthread/page/647/#comments
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Thanks for the sharing. That’s a big help.
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If British Imperialists such as Alistair Carmichael are worried about Ash Regan’s and Alba’s proposal to free Scotland then this suggests pro-independence Scots should get behind it.
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Or it suggests they want pro-independence Scots to get behind it because it ultimately helps preserve the Union.
Besides, neither they nor we know what the proposal is. We can only assume that it must be a proposal to transfer powers (as per a Section 30 order) because anything that really would give British nationalist cause to worry could not be presented to the Scottish Parliament.
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“We can only assume“
No, we can’t.
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Then what else? Understandably, you missed out that bit.
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You really don’t get this logic thing do you?
You are wrong to assume anything, as it is not stated at all, nor is any other course of action after a YES vote. There are many possibilities, are you so unable to think of a few yourself?
And unless you are Ash Regan or Aidan O’Neill, you are also wrong to say this:
“neither they nor we know what the proposal is“
We may not know what their proposal is, but they might.
HTH
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“All she can possibly be seeking is a sort of rolling Edinburgh Agreement. A standing Section 30 order, if you like. Because that is the very most the British state might imaginably concede.“
The Pre Submission Consultation pdf you linked, not only doesn’t say that unless I’ve missed it, it says nothing about what happens after a YES vote.
It is therefore a consultative referendum, of the sort which generally speaking the Scottish Parliament is entitled to carry out to determine future policy. From that point of view even a challenge to the UKSC may well fail, contrary to the French Ambassador told me Carmichael’s panicky claim.
So “they must be stopped” is totally premature and indeed, presumptive.
There are many more ways than one to get from a starting point to a destination, and nothing of promise should be naysayed, specially such as is driven by a highly controversial but knowledgeable, KC.
And by the way, reading between the lines of the various judgements, a Bill from a backbencher has more chance of success on this, than the Scottish Government as legislative competence is not neccessarily at stake.
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I was already aware that you just don’t get it. It was already apparent that you simply can’t.
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Silly comment Peter. Here’s the link you gave:
https://thereferendum.scot/wp-content/uploads/2023/11/Scottish-Parliament-Powers-Referendum-Act.pdf
There are just two references to a Section 30:
“In the 2014 referendum, an Order in Council under section 30 of the Scotland Act 1998 was agreed by Westminster and the Scottish Parliament …“
and
“Despite the clear mandates given by the electorate to date, the UK Government have refused to agree to a consented independence referendum using the mechanism of a Section 30 order to temporarily amend Schedule 5 of the Scotland Act as happened to put the independence referendum of 2014 beyond all legal challenge.”
Both of these in “Background”, NOT “Aims of the Bill”
You jumped to a conclusion not supported by either, or anything else in the pdf.
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