There appears to be a general assumption that (a) Nicola Sturgeon will renew the request for a Section 30 order with a view to holding a new independence referendum; and (b) that Theresa May will refuse. If I have learned anything in more than half a century observing politics – and people – it is that one should beware of easy assumptions.
I have made my views on asking for a Section 30 order plain on many occasions. It would be a mistake. I take the view that the British Prime Minister cannot have a veto over the right of self-determination that is vested wholly in the people of Scotland and guaranteed by the Charter of the United Nations. To ask Westminster’s permission for a referendum is to acknowledge and affirm their authority to refuse that permission and, thereby, effectively veto the exercise of Scotland’s right of self-determination.
One response to this is that the precedent has been set by Alex Salmond going down the Section 30 route for the 2014 referendum. I reject this argument. I maintain that Salmond had options and chose the Section 30 route only because that was judged to be the best option in the circumstances which prevailed at the time. I see no reason why this should have the effect of precluding all other options for all time.
Those circumstances no longer prevail. The entire political environment has altered dramatically since 2014. To choose the Section 30 route even in such drastically different circumstances could be argued to imply that it is the appropriate or sole option in any circumstances. Asking for a Section 30 order again really would set a precedent. Granting the British political elite a veto over Scotland’s right of self-determination once can be seen as politically astute. Doing so twice would surely be political folly.
The argument goes that Theresa May will refuse the Section 30 order and Nicola Sturgeon can then claim that she tried that route and has now been forced by British intransigence to go another way. That’s really not a good look. Doing something only because you’ve been forced into it doesn’t give the impression of being in control. Going that other route should be a matter of choice. It should be seen as decisive action, rather than compelled reaction.
But what if Theresa May doesn’t refuse that Section 30 order? Suggesting this possibility usually elicits a response querying why she would allow it. What possible reason could Theresa May have for granting a Section 30 order? I can think of one. It’s all about control of the process.
If Theresa May grants a Section 30 order this means that there must be a new agreement between the two governments establishing the ground rules for the referendum. By asking for the Section 30 order, Nicola Sturgeon would be accepting the need for such a negotiated agreement. Theresa May would then make demands that Nicola Sturgeon couldn’t possibly agree to – such as a qualified majority requirement or the exclusion from the franchise of 16/17-year olds. No agreement! No referendum!
Requesting a Section 30 order is a lose/lose scenario for Nicola Sturgeon. Either way, she ends up having to find another way forward having been made to look weak and having afforded the British political elite an authority to which they are not entitled. The First Minister must seize control of the process from the outset.
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Peter A Bell 
Beautiful post.
Yes…this is different!
2014 – Scotland wanted to leave the status quo.
2018 – There is no more status quo. In fact England wants to break the status quo.
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Excellent points. I wrote about the UN charter some while back citing its rules on grassroots independence movements. You might wish to read my version of Section 30 and the SNP’s inertia published tonight at midnight – no guarantee you’ll agree with it.
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Post a link. I’m sure others would be interested as well.
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Have added your article to the notes at the end of my essay.
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Absolutely agree. No request for Section30. That is indicative of weakness. Let Scotgov start as they mean to go on – showing they mean to have indy whether WM likes it OR NOT.
This isn’t about WM, this is about Scotland. Therefore, WM should have diddly squat to say about how it, Independence, is processed and achieved. We are not ‘part of WM’s country, a region’. We are a country in and of our own, an ‘equal partner’. So lets behave like an Equal Partner and make our first big decision as such… let’s dissolve the union.
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IMO this is a devilish tricky situation. All I can do is hope Nicola is well advised and makes the right choice, whichever that is. Have you all thought through how a referendum without WM’s approval might work. For example, what if even some of the army of civil servants involved in bringing it about refused to co-operate? Would that not cast doubts on the outcome? IndyRefII has to be flawless to be effective. Otherwise why bother, just declare UDI and see what happens?
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Louise Williams
Firstly our Claim of Right was reconfirmed on 4th July when Ian Blackford MP SNP, called for the House of Commons to recognise the Scots Claim of Right. It passed. (link to the debate)
The Scottish Government is preparing the way perfectly, so even if a section 30 is rejected by the PM (Prime Minister, UK Govt), an advisory referendum can be called. That is the legal right of the Scottish Government, it does not need permission to hold an advisory referendum.
You will note that the BREXIT vote was also an advisory referendum and was subsequently used as the will of the people. This has set a precedent that advisory referendums are recognised by the House of Commons and can be used to act upon.
So, the FM (First Minister of Scotland) asks for a section 30 it can be issued or declined by the PM.
If Sec 30 issued, a referendum happens. If Sec 30 declined, an advisory referendum takes place. Either way, a referendum on Scottish Independence goes ahead.
If a YES wins either, the FM informs the PM and starts negotiations to become independent. If the PM does not recognise this, the FM instantly declares independence and seeks recognition in line with United Nations Charter, Article 1.
Another important fact is, in an Advisory Referendum the UK government should have no input whatsoever.
Before any of this, every diplomatic route has to be explored to get our independence carefully and thoroughly. If that cannot be achieved, which is almost the situation we are in then UDI (Unilateral Declaration of Independence) can be used. This can only be successful in the following conditions.
1. The people of Scotland must vote for it in a majority.
2. All possible political avenues must have been explored first.
3. Other countries of the world recognise Scotland as an independent country. (Note the EU is likely to recognise immediately!).
This is covered by the UN Charter Article 1 and confirmed in the International Covenant on Civil and Political Rights 23 March 1976, Pt1 article 1.
A case to note is Kosovo which declared UDI and had recognition by other states did not go well. This is due to Serbia still claiming governance.
This cannot happen in Scotland as the Claim of Right has already been agreed.
So please do not think that all the right boxes are not being ticked, they are. The Scottish Government know exactly what they are doing. Leave it to the professionals.
Mark Fraser, 24 December 2018
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There is so much wrong with this that I hardly know where to begin. I suppose I must reiterate yet again that the concept of UDI is inappropriate and inapplicable. I’m not going to explain why, however, because I long since realised that if people aren’t able to figure out for themselves why talk of UDI is nonsensical then they are almost certainly not going to understand the explanation. I would suggest only that people ask themselves the obvious question that Marlyn hasn’t asked – who, or what, would Scotland be unilaterally declaring independence from?
Then there’s this stuff about asking for a Section 30 order. I can only assume Marlyn didn’t bother to read the article on which she’s commenting. She certainly doesn’t see fit to address any of the points made explaining why requesting a Section 30 order is a very bad idea. Apparently, it doesn’t matter that it’s a very bad idea. Apparently, the Scottish Government which “know exactly what they are doing” will go ahead regardless.
And what about this “Advisory Referendum”? It seems Marlyn does not agree that the right of self-determination is vested wholly in the people of Scotland. It seems she is quite content to accept the British state’s asserted authority to tell us we aren’t allowed to exercise our right of self-determination. It seems she feels we must not presume to challenge that asserted authority, but instead resort to some technical device so we can pretend we’re actually exercising our democratic right.
Finally, there’s the implication that we should all just shut up and leave it to the professional politicians. Given that most of my readers are likely to be part of the Yes movement, I’m pretty sure I know what they’ll think of that idea.
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Lets suppose Scotland never had a parliament and there was no devolution. Lets imagine we relied on getting a majority of MP’s at Westminster. How would a country then gain independence?
Well there would be no section 30, as that is a device of devolution. Things would be much simpler. The SNP would take their majority at Westminster as a mandate to negotiate independence. This is how it would have happened pre 1999.
Devolution being a tool of unionism is a trap. The SNP are negotiating within the terms of the union that they wish to dissolve. They need to ignore devolution and use the majority at Westminster as their mandate to leave the union.
It really is that simple. Operating within the confines of Devolution is a dead end.
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Interesting piece with some interesting and thought provoking points Peter. However, a couple of points of variance.
You are probably right that when Salmond went for the S30 Order back in the day, he had indeed “judged [it] to be the best option in the circumstances which prevailed at the time”, Indeed, given that he seemed to be pushing an open door, because WM considered the vote would be a walk in the park for them with support for independence thought to be around 28%, it was there for the taking. Nonetheless, that does create a precedent, no matter what was in Salmond’s mind at that time. It might have been the best option then, but the fact is that it is what happened last time – “precedent – an earlier event or action that is regarded as an example or guide to be considered in subsequent similar circumstances”. I dont think there is any getting away from this.
Secondly, you assert that allowing May to refuse a S30 “doesn’t give the impression of being in control”. But Peter, do we not have to recognise the control which the British state exercises just now, over not just the section 30 order but the entire existence of the Scottish Parliament? Had we forgotten or not noticed, the Supreme Court has helpfully spelled this out not once but twice during this Brexit bourach. Is it not one of the reasons we want our independence?
Is there not an observable a strategy by the FM of “catchee monkey”, for instance exhausting every avenue to keep Scotland in the EU, or at least the Single Market? Likewise, were she to embrace some other strategy than a S30 order, would the response not be “but why not same as last time?” (it would though be a laugh to see Davidson and all the rest complain that the FM doesnt want a referendum!). So rather like the EU/ Brexit, I suspect that going for a S30 order – which she has already requested and been told “No”, remember – is part of a similar strategy – “look we tried, but they keep saying no. If we want our country to be independent we have to use another route”.
Lastly your argument that May might just say “yes” is an interesting one, and I must admit I hadnt considered that possibility. But, this would be a “negotiation”, so there is the possibility of two outcomes – deal or no deal. It would be open to the FM to walk away and make public the reasons. Do you not think that gerrymandering the entire process would only add to demands for independence?
Happy New Year by the way.
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Many thanks, Peter, for your calmly logical article… wouldn’t it be grand if more people were gifted with such logic? Our regaining our independence again is pending!
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Disagree with Alasdair’s view on precedent. There are now clearly two material changes in circumstances, namely being dragged out of Europe against our democratic wishes when we were told in 2014 that voting NO was the only way to stay in the EU and, the whole Brexit process which ignored and denied Scotland’s status in the Union. This gives us the opportunity with our current majority of SNP MPs, to give Notice of Intent to dissolve the Union, adopt a draft Constitution (a number of models are available) and campaign for a majority vote on that Constitution. The resulting victory allows us to confirm the Notice of Intent and the work of refining and codifying the document takes place at leisure in our Independent Scotland. No need for section 30, the fulfilment of our Claim of Right, the discharging our obligations to the democratic process all rolled into one.
Happy New Independence Year to all
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By referring to it as the British Government we are also recognising England’s authority over us. British and English are the same thing. An Article 30 order is not required because Scotland neither requires England’s permission to ask itself a constitutional question nor, having asked itself that question, does it require England’s permission to act upon it.
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Well said Peter
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Reblogged this on Ramblings of a 50+ Female.
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