British Army camps in Scotland following the Battle of Culloden. –

If you know where you want to go but need to figure out how to get there then you also need to know where you are. Only when you know the starting point and the end point can you begin to plot a course from one to the other. I say “begin” because identifying the start and end points is only part of the task. Arguably, the easiest part. Because plotting a course between the two requires that you take account of all the points that lie on your proposed course. You need to know where all the obstacles and potential bottlenecks are. You need to know as much as possible about everything that you may encounter on your journey.

Of course, if there is a long, straight road in good condition with no tolls and guaranteed ideal weather, your task is easy. But even then there may be unforeseen impediments such as breakdowns and pile-ups. You have to be prepared to deal with these.

Most of you will have realised by now that I’m not talking about an excursion from Perth to the beach at Aberdour. I’m talking about the journey from Scotland’s present situation to the restoration of our nation’s independence.

We have a pretty good idea of the destination. In fact, we have a plethora of such ideas. Everybody in Scotland’s independence movement may be broadly in agreement about where we want to be when we arrive, but there is considerable difference of opinion about what this place looks like. Not that it is necessary to know what it looks like in order to travel there. But if descriptions differ too much then people will come to think they are headed for a different place altogether. This is what I mean when I say that ‘independence’ is a disputed concept.

It is not possible to build an effective single-issue political campaign around a disputed concept. Such a campaign requires unity, focus and discipline. It can have none of these while there is disagreement about the campaign’s objective. Even a relatively small disagreement will impair focus and fracture unity and lead to indiscipline. Where the disagreement is significant, the campaign will effectively become two or more campaigns competing amongst themselves and failing to adequately engage with the opposition.

That’s what happened in the 2014 referendum campaign. The diversity of the Yes movement became division within the campaign. There was a failure to properly identify and clearly define the common aim. The campaign had nothing around which to coalesce – other than the disputed concept of ‘independence’. As a consequence, the Yes campaign tended to be diffuse, diluted and depleted. It may be argued that the effect was slight. But when an issue is as finely balanced as the constitutional question, small errors can have an impact disproportionate to their size.

The common factor in all visions of independence is the dissolution of the Union. No matter how you envisage independence dissolving the Union is a prerequisite.

Since the first Scottish independence referendum I have been mostly concerned with process – the route by which we reach our destination. I very quickly came to some conclusions. I came to realise that there is no route to independence which abides by the rules set down by the British government. And that there is no route to independence that doesn’t involve confrontation with the British establishment.

Annexation, a formal act whereby a state proclaims its sovereignty over territory hitherto outside its domain. Unlike cession, whereby territory is given or sold through treaty, annexation is a unilateral act made effective by actual possession and legitimized by general recognition.

Annexation is frequently preceded by conquest and military occupation of the conquered territory.

Encyclopaedia Britannica

We were told, and most believed, that Scotland had a democratic route to independence by way of a referendum sanctioned by the UK Government. This is the Section 30 process which was followed for the 2014 Scottish independence referendum. But there is a major problem with this in that the Section 30 process can only work with the full and willing and honest cooperation of the British state. And there is less than no reason to believe that such cooperation might ever be forthcoming.

England-as-Britain not only won’t allow Scotland to restore its independence, it can’t. It is politically impossible for England-as-Britain to permit the dissolution of the Union because, without Scotland, England-as-Britain becomes just England. Without Scotland, the Britain which is the conceit of the ruling elites ceases to exist. Without the Union, the structures of power, privilege and patronage which maintain established power will be weakened to the point of disintegration. The Union is the keystone of those structures. Scotland is a supporting pillar.

So long as there was a democratic route to independence, however questionable, the pretence of a “Union of equals” could be maintained. Many – and one suspects Nicola Sturgeon to be among them – believed, and continue to believe as Michael Fry does. This from his column in The National.

Outrageous as it may be for Boris to deny that the result of the UK General Election makes any difference, there is, legally and constitutionally, no alternative to waiting till he changes his mind. So we will get no new referendum in 2020. We’ll just have to wait and see if outright SNP victory in the Holyrood election of 2021 causes a political rethink in Downing Street. Not only the Scottish government but also various respected independent commentators have been saying it would surely need to.

This is why ‘DIY’ indyref2 won’t be able to deliver independence

Depressing as this description of the situation may be, it accurately reflects Scotland’s true predicament in all respects other than the implied hope that something might make Boris Johnson change his mind and grant a Section 30 order. Or the variation on this hope which supposes that a change of attitude may come with a change of government at Westminster. Both are forlorn hopes. There will be no change of heart; no change of mind; no rethink. No British Prime Minister will ever sanction any process which places the Union in jeopardy. Even if they were minded to do so, they would be prevented.

The Section 30 process is, as I have long maintained, nothing more than a device by which the pretence of democracy could be maintained. A way of keeping alive the hope and belief that Scotland has a democratic route out of the Union. The Section 30 process is a lie.

Why then, you may ask, do we have the likes of Gordon “Intervention Man” Brown striding out of the shadows and onto the stage to warn in doom-lade tones that London rule may ‘soon be over’? There are a number of reasons. Rallying the forces of British Nationalism would be one. Ensuring that the Tories get the blame for putting the Union at risk another. Brown being a pompous, self-regarding, attention-seeking prick who craves the status of a senior statesman that he cannot earn might have something to do with it. But the most important reason, and the one most people may not recognise, is the need to maintain the illusion of the Union being under threat. The illusion that Scotland has a way of dissolving the Union.

Without this pretence, only one conclusion is possible. That there is no democratic route to independence. Or, at least, that there is no democratic route which is both guaranteed and accessible. That is to say, a process which exists and cannot be unilaterally altered. A process which is entirely internal to Scotland. A process which can be initiated and followed by the democratically elected representatives of Scotland’s people without interference or hindrance from any external power.

That is the reality of Scotland’s predicament. It has been the clearly recognisable reality for several years. It is the reality behind the concerns I have expressed about the Section 30 process. It is the reality which I preferred not to explicitly acknowledge whilst it was still possible to pretend that the Section 30 process is what it purports to be.

Without a process such as I have described by which Scotland’s constitutional status can be normalised according to the will of Scotland’s people our present constitutional status cannot be what we have long believed it to be. The starting point on our journey to independence is not what we thought it was. We are not in the place we imagined we were. And this has massive implications for the independence movement and for the Scottish Government.

Without a process by which Scotland can get out of the Union it can no longer be maintained that Scotland remains in the Union by consent. Consent that cannot be withdrawn as readily as it is given isn’t consent at all.

Without a process by which consent can be freely withdrawn Scotland’s status cannot be that of a party to a political union freely entered into and continued. Rather, Scotland must be regarded as annexed territory. Scotland must be regarded as having been annexed by England by stealth over the period since the Union was first imposed on us. Either the Treaty of Union was, in reality, a Declaration of Annexation, or the terms of that treaty have been unilaterally altered by or on behalf of England over the last 313 years.

The question facing Scotland, therefore, is not whether we wish to become independent – that choice is not available to us – but whether we are prepared to tolerate the annexation of our country. And if not, what are we to do about it. Particularly as such a large proportion of Scotland’s people appear eager or content to accept Scotland’s status as a shackled nation.

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Scotland's predicament – a dose of reality!

The Scotland Act wouldn’t exist and devolution wouldn’t have happened if it put the Union in jeopardy. There is and can be, no route to independence that remains within the confines of laws, rules and procedures which are designed for the preservation of the Union. Neither is there any path to independence which does not pass through a point at which there is direct and inevitably acrimonious confrontation with the British establishment.

I have been saying this for five years. And I cannot possibly be the only person who has woken up to the harsh reality of Scotland’s predicament. I have no special insights and I find it glaringly obvious that where there is a political imperative every option will be explored to satisfy that imperative. The British state has always considered it imperative to keep Scotland under London control. That’s what the Union is all about. It is about preventing us from being a nation. It’s about stopping us being any more different than is expedient politically and economically. It is about the status of Britain and the British ruling elites’ conceit of themselves.

Given all that, it can hardly come as a surprise that the same ruling elites have contrived over the last 300 years to devise ways of locking Scotland into what we like to insist is still a voluntary political union.

If, as is now beyond question, there is no guaranteed democratic route to the restoration of Scotland’s independence accessible at will and independently of any other authority by the democratically elected representatives of Scotland’s people then this necessarily implies either that the Union was, in fact, annexation of Scotland by England or that Scotland has since been annexed by stealth.

Scotland has been annexed by England-as-Britain. Until the independence movement and the SNP acknowledge this reality, we are going nowhere. We’ve been fighting the wrong battle. We’ve been fighting for independence when we should have been fighting against annexation. We should have been fighting against the Union.

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Stale and mouldy

I read stuff like this – Leading independence campaigners back new Yes Scotland group – and the years just fall away. I am transported back to 2012/13 and the early days of Yes Scotland and the campaign for the first independence referendum. The Yes movement is in its innocent infancy, the term ‘Project Fear’ has not yet entered the political lexicon, and the lessons of that seemingly interminable campaign have yet to be learned. Everything seems possible because we have yet to discover the true power of the forces ranged against us and to recognise our own weaknesses. Anything seems doable because the intractable issues have yet to be encountered. We are filled with evangelical fervour and sure of the power of our message and as convinced of the appropriateness of the strategy as we are of the righteousness of our cause.

Then, with the dull, damp splat of a wet blanket landing on my face, I am wrenched back to reality. It’s not 2012/13. It’s 2020 and we are days away from an event which stands as the most compelling evidence yet of just how badly Scotland fares in this ‘precious’ Union and how tragic for our nation was the failure of that first referendum campaign. And how the lessons of that failure still haven’t been learned.

Back then, new Yes groups were coming into existence on almost a daily basis. Everybody wanted to be in on the campaign to restore Scotland’s independence. Everybody had their own idea of what that meant. Everybody needed their own group to push that idea. The buzz-words were diversity and openness and inclusiveness. It didn’t matter what your agenda was, if you tacked ‘for Yes’ onto it you were part of the Yes family. Such was the enthusiasm you could have started a group called Cannibals for Yes and nobody would have batted an eye.

Whatever your political philosophy, ethnic background, sexual orientation, form of employment, age, health or lifestyle choices, there was a group for you. If there wasn’t, there soon would be. Whenever the campaign encountered an issue, a group would be set up to address that issue. Setting up a group rapidly became an automatic response to any issue. It still is. Whenever there are signs of campaign fatigue, set up a new group – with or without a crowd-funder to finance it.

Not that all these groups turned out to be no more than a panacea for the moment. Some, like the Scottish Independence Foundation, continue to do valuable work. But all too often the launching of a new organisation, or the relaunching or rebranding of an existing one, is just a distraction or a way of being seen to be doing something. Or deferring something.

Establishing a commission has always been a way of punting hot potatoes into the long grass. The initial fanfare provides the instantly gratifying spectacle that the public (media) demands while the ensuing proceedings can usually be relied upon to be dull enough to kill any interest and protracted enough to allow time for something else to grab the headlines.

Does anybody have a tally of all the new initiatives that have been launched in the past five years? I’m prepared to bet you’ll have missed at least one or two.

There are other deja vu prompts, of course. The old familiar language of positive campaigning and listening to opponents and finding better answers is still in use. There’s always somebody telling us that this or that is the only way to proceed or that this or that demographic has to be persuaded or that doing it any way other than this or that will only put off potential converts. There’s always somebody keen to impart some pearl of wisdom which when stripped of the superfluous verbiage turns out to be no more than the less than stunning observation that if Yes is to win we need to get more people to vote Yes.

And, of course, there’s always somebody anxious to remind us for what certainly seems like the millionth time that the independence movement is “more than just the SNP”.

These things have been repeated so often they have become the phatic language of discourse around the constitutional question. It’s just the meaningless stuff people say to fill silences or to pad out a speech or to make the word count for the article. Having become meaningless, nobody now asks about meaning. Nobody asks if being unexceptionally positive is the most effective way of going about the task of persuading people. Nobody asks if listening rather than talking really is the best way of getting the message across. Nobody asks if constantly striving for better answers to the same questions is worth the effort.

Nobody stops to consider whether sidelining the party political arm of the independence movement is a smart move.

I read stuff like this and I think “here we go again”. I read, for example, Kevin Pringle talking about “the best chance of breaking the [Boris] Johnson veto” and wonder how it is possible that, with all that has happened over the last seven or eight years, such an experienced observer of the political scene in Scotland and beyond could have failed to realise that there is no way to overcome the British Prime Minister’s veto on our right of self-determination. Not when Scotland’s First Minister has accepted the legitimacy of the PM’s authority for such a veto.

How is it possible for anybody to believe that the British political elite might relent under the pressure of a moral argument or references to democratic principles? How can anybody imagine that to be the nature of the British state?

How is it possible for leading figures in the independence movement to recognise that we still need the same things – such as “cross party cooperation” – that we have failed to achieve in all those years of campaigning and acknowledge that we have yet to get support for independence consistently above 50% while simultaneous commending an approach to campaigning which is identical in all meaningful respects to the one that was taken for the 2014 campaign? The one which has become a fixture (fixation?) in the minds of those who make the decisions about campaign strategy.

How is it possible that so vanishingly little can have been learned from past experience?

I read stuff like this and I despair.

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Last chance?

I guess it’s official, then. The new independence referendum postponed from autumn 2018 or spring 2019 but promised for some time in the second half or towards the end of 2020, will not happen. We have the word from Angus Robertson – hardly one of those anonymous party spokespersons. I think it’s safe to say that Angus qualifies as a ‘senior SNP source’.

He is not at all ambiguous about it either. When he eventually gets to the point after enough waffle about how the British Tory government can’t possibly keep doing for much longer what it has effortlessly kept doing for as long as anyone can remember to deter the casual reader, Angus casually states what others have been hinting at almost since a 2020 referendum was not quite promised by the First Minister but dangled in such a way as to have people think that is what they were voting for in last month’s UK general election.

That not-quite-a-promise can be quietly shelved now that the SNP have those votes banked. We’re back to where the SNP leadership always wanted to be.

Hard as it is to endure given the repeated electoral mandates for an independence referendum, the reality is that the issue of indyref2 will be decided in the 2021 Scottish Parliament elections. With a majority of pro-independence MSPs, it will be impossible to oppose Scottish democracy.

Hang on a moment! Wasn’t a massive preponderance of SNP MPs supposed to make it “impossible to oppose Scottish democracy”? In the same way that Brexit was supposed to be the tipping point for a swing in favour of independence.

Angus Robertson goes on to inform us that “a pro-independence majority of MSPs is the key to Scotland’s future”. Well, duh! Does he seriously think we need to be reminded of this? Does he imagine we are unaware of the critical importance of continuing to vote SNP? Does he suppose we can’t figure out for ourselves how it would be if we allowed our Parliament to fall into the hands of the British parties?

We know what the “key” is. We’ve been handing that key to the SNP for thirteen years. We know we will have to hand them that key again in 2021. What we need to know is when are they going to use that key.

As if to conclusively make the case that the British government’s anti-democratic opposition to a referendum must imminently crumble under the onslaught of various people saying it is “unsustainable” – including a few surprising sources – Angus Robertson quotes the former head of communications for the Scottish Conservatives, Andy Maciver.

If the SNP wins the election with a clear manifesto commitment for a second independence referendum, a full two parliamentary terms after their first win, there can be no serious grounds to oppose it. You can’t be a fair-weather democrat. You can’t demand to get Brexit done because voters asked for it whilst demanding that Indyref2 is continually rejected despite voters asking for it.

But the SNP has already won several elections with a clear manifesto commitment. The referendum hasn’t happened. There are no serious grounds to oppose a referendum and never have been. The referendum hasn’t happened. You can’t be a fair-weather democrat. Yet that is as much as the British political elite has ever been. You can’t be hypocritical. Yet the British political elite has never been anything else.

The British establishment’s position is not going to change. If they can discount four or five mandates, they can discount forty or fifty. If they can disregard one expression of the democratic will of Scotland’s people, they can ignore all such expressions. If democratic principles were a consideration for the British state they would not have blocked a referendum in the first place. If they were going to relent, they would have done so long before now.

The SNP will be forgiven for sort of breaking its not-quite-a-promise of a referendum in 2020. But resentment grows exponentially. They will be given yet another mandate in 2021. But, one way or another, that will surely be the last.

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Act to be

In the legal opinion commissioned by Forward As One, Aidan O’Neill QC argues that the question of the Scottish Parliament’s competence to legislate on a new independence referendum is a question of law, not a political question and “can only ultimately authoritatively be answered by the courts. I both agree and disagree.

I disagree with the assertion that the matter of the competencies of the Scottish Parliament is purely and solely a matter of law. I disagree because it is a constitutional matter and in constitutional matters ultimate authority must lie with the people. Few things are more fundamental to the constitution than the powers vested in (or withheld from) a nation’s parliament. Even if it is argued that parliamentary competencies are a matter of constitutional law, then it is still primarily and in the first instance a political issue because, in a democracy, the constitutional is an expression of the will of the people.

Constitutional law differs from criminal law in that, where the latter is an attempt to codify the established mores of society, rather than ephemeral public opinion, and works best if it is obeyed and changes only by way of a process rigorously isolated from day-to-day politics, the former must be constantly subject to challenge from all quarters as an intrinsic part of a democratic political process in order that it may truly represent the will of the people. Constitutional law is a special case.

I agree that constitutional change must be subject to legal challenge, if only to formally verify that such change has been established to reflect the will of the people in accordance with the provisions of the constitution. I simply insist that fundamental democratic principles decree that the ultimate authority in all matters rests with the people. And that this authority is most directly relevant in matters relating to the constitution.

The overarching criterion for deciding questions of parliamentary competence is democratic legitimacy, not legality. Where a parliament has incontestable democratic legitimacy – as does the Scottish Parliament – the default assumption must be that all competencies lie with that parliament. The manner in which such competencies are exercised may be subject to legal challenge. But the competencies themselves cannot rightfully be withheld or constrained by any agency with less or no democratic legitimacy.

The democratic legitimacy of the Scottish Parliament derives from the sovereign people of Scotland. It is the institution whereby the people pool their sovereignty and mandate governments of their choosing. If the nation is regarded as a community of communities in accordance with the doctrine of civic nationalism, then Holyrood is where all those communities come together to oversee the management of their mutual interests and negotiate the compromises which resolve political divisions. To propose that such a parliament must be subordinate to the parliament of an entirely different community of communities which manages Scotland’s interests only very badly and resolves political divisions by fiat flies in the face of reason.

Of course, Holyrood was never intended to be the locus of Scotland’s democratic soul. But that is how it has turned out. It has been transformed from an impotent puppet of the British political elite into a fully-fledged national parliament – lacking only the powers to which it alone has a legitimate and rightful claim. Powers that were seized and are being withheld by a parliament which serves only the ruling elites of England-as-Britain.

The competence of the Scottish Parliament to legislate for a new independence referendum is being denied by British politicians for political motives. It is entirely proper, therefore, that this should be challenged by political means. The Scottish Parliament must assert its authority by rejecting the authority asserted by Boris Johnson. The superior authority of the Scottish Parliament must be assumed on the basis of its superordinate democratic legitimacy. This authority must be exercised by the Scottish Government according to the mandate afforded it by the people of Scotland. If this is to risk any form of challenge by the UK Government then the Scottish Government must stand ready to meet this challenge. It is only by meeting and defeating such challenge that Scotland’s democracy can be preserved. It is only by meeting and defeating the resistance of the British state that Scotland’s democracy may be restored.

To be, and deserve to be, a normal independent nation, Scotland must act as a normal independent nation.

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It is time!

“It’s time to give Scotland the chance to choose our own future.” – Nicola Sturgeon

Give? Really, First Minister? Not to be pernickety, but how can the British government possibly “give” the people of Scotland something which is inalienably ours? How might they gift us something which isn’t in their gift?

And even supposing it was theirs to give, why would we want it? Why would we want anything the British state might be prepared to give to us? If they are prepared to give it, they must consider it worthless. And if it turns out not to be worthless in our hands, they reserve the right to take it back.

Language matters, First Minister. It both expresses and shapes our mindset. If you habitually speak as if you are a supplicant carving a boon from their superior, then that is how you will tend to think of yourself. It is certainly how others will be led to think of you. Especially if you are, by your words, merely confirming their prejudices.

In refusing a Section 30 order Boris Johnson is not clinging jealously to something that is his. He is trying to impede our taking something that is ours. He is attempting to deny us the full and effective exercise of our sovereign right to determine the constitutional status of our nation and choose the form of government which best addresses our needs, priorities and aspirations.

To speak of Scotland being ‘given’ the chance to choose our own future implies that there is some doubt about the fact that the choice must be ours because the future is. It implies a mindset which regards independence as something that would be nice to have if only we could persuade the British state to grant it to us. Better for that you, as First Minister of Scotland and leader of the SNP, should think of independence as an essential thing that is rightfully ours but which is being wrongfully withheld from us by the British state.

Asking for “the chance to choose our own future” also implies a persistent hope that the British political elite will eventually relent. That they can be won over by incessant appeals to reason or principle or conscience. I ask you, First Minister, what cause is there to suppose this to be anything other than a forlorn hope? Does not all evidence and experience indicate that the British political elite is determined to preserve the Union at any cost? Do the words and deeds of British politicians not tell of an abiding disrespect for Scotland and for democracy? Has it not yet become clear to Scotland’s political leaders, as it has to increasing numbers of Scotland’s people, that locking Scotland into the Union is an overarching imperative for England-as-Britain?

And even supposing the right of self-determination was theirs to give and they could be persuaded to give it, do you not recognise that this ‘gift’ would come wrapped in caveats and conditions and conceals traps such as to make it useless for our purposes?

Please, First Minister, stop saying, “It’s time to give Scotland the chance to choose our own future.” Start saying that it is time for Scotland to take what is rightfully ours. Time to defy Boris Johnson and the British government. It is time to stop trying to avoid a confrontation that can only be avoided by abandoning Scotland’s cause. It is time to accept that the route to independence does not and never can lie through Westminster but must be by way of the only Parliament which can claim democratic legitimacy in Scotland. It is time!

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Know thine enemy!

It’s not deluded Unionists we need to be concerned about. Rather, it is those individuals in influential positions within the independence movement who imagine that Boris Johnson’s denial of Scotland’s right of self-determination is “utterly unsustainable”. Or that “the Tory position will not hold”.

For a start, it is not a “Tory position”. It is the position of the British state. It is the position of all the British parties, no matter how they dress it up in the hope of deceiving voters in Scotland. This is not a party political issue. Scotland’s predicament would be the same no matter who was occupying Downing Street.

For some time now I have been expressing concerns about the Scottish Government’s approach to the constitutional issue. In doing so, I have stated that Section 30 of the Scotland Act (1998) is not there to facilitate the granting of new powers to Holyrood. It is there to allow the British Prime Minister to alter the competencies of the Scottish Parliament in whatever way he chooses. In an attempt to refute this point, an apologist for the Union claimed that the British Prime Minister could not fiddle with the list of reserved powers without first getting the nod from the British parliament.

According to this Unionist, the assertion that the British Prime Minister could ‘revise’ the powers of the Scottish Parliament at will was false because the Tories won’t always have a majority at Westminster. But, as I then pointed out, the British parties WOULD always have a majority at Westminster. Approval for stripping powers from the Scottish Parliament will always be a mere formality in the parliament of England-as-Britain.

Alyn Smyth is guilty of the same erroneous thinking as those who go on Yes marches with banners and chants demanding “Tories out!”. Ours is not an anti-Tory campaign. It is an anti-Union campaign. To lose sight of this is to forget the whole point and purpose of the Yes movement. Of course, it would be great to ‘get rid of the Tories’. Just as it would be wonderful to get rid of Trident. But these are secondary aims. They are contingent on the restoration of Scotland’s independence. It is this that must be the focus of our campaign. And of the efforts of our elected representatives.

Every bit as misguided as the idea that the Tories are the problem rather than the Union – and probably more dangerous – is the notion that the British establishment’s position is “unsustainable”. It is deluded to suppose that this position “will not hold”. The reality is that the British political establishment can not only maintain its anti-democratic denial of Scotland’s right of self-determination, it can also implement whatever measures are deemed necessary to ensure that the people of Scotland are never allowed to chose the form of government that best suits our needs.

This is not to say we should just give up. We must not succumb to pessimism or be daunted by the armour which protects established power. But we must properly appreciate the nature of the forces defending the British state’s structures of power, privilege and patronage. Those defences are not going to crumble under a barrage of righteous outrage however rousing the rhetoric of SNP MPs.

Scotland’s cause cannot rely on the British establishment having a change of heart. If Scotland’s independence is to be restored then it must be restored DESPITE the fervent opposition of the British political elite. Not because we’ve shamed them or won them over. The British state has no shame. And no heart.

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