Getting assertive

I wonder if our First Minister is aware of the Precautionary Principle. In the context of the duties and responsibilities of the Scottish Government in the current situation of constitutional upheaval, the Precautionary Principle may be stated thus,

Where there exists a threat of serious or irreversible damage to the nation’s interests, lack of total certainty concerning outcomes outwith the control of policy-makers shall not be used to justify postponing measures to prevent such damage.

This might be more succinctly expressed as,

First do no harm or by inaction allow harm to occur.

There can be no doubt that Scotland being forcibly taken out of the EU represents, at the very least, a threat of serious or irreversible damage to the nation’s economic interests as well as our political, social and cultural well-being.

(In fact, it is the Union which poses this threat by affording the British state the power to impose policies such as Brexit on Scotland; but the First Minister has inexplicably chosen to hang the entire independence cause on the Brexit peg, so we shall go along with that for the moment.)

Given the real and imminent threat posed by Brexit, the Precautionary Principle holds that the Scottish Government’s uncertainty about the precise details of the outcome cannot excuse failure to act to prevent Scotland suffering harm.

It may be argued that the duty of the Scottish Government to prevent harm to Scotland extends to preventing harm to neighbouring or other territories where this may impact Scotland. But, to whatever extent such a duty exists it is overridden by a duty to respect the democratic will of the people of those territories. There is not, and neither could there be, an inalienable right to suffer no harm. People have a democratic right to vote against their own interests. Governments may only intervene to mitigate the harm.

It may further be argued that, given the nature of the devolution settlement, the referendum in 2016 was a UK-wide vote on UK membership of the EU; and that, being still part of the UK, Scotland is bound by the result every bit as much as the rest of the UK (rUK). This argument relies on three assumptions or contentions –

  • That Scotland is not a nation in any but the most trivial sense of that term.
  • That the Scottish Parliament is merely an annex to the UK Parliament.
  • That the Scottish Government is merely an adjunct to the UK Government

The first of these assumptions or contentions may be discounted without discussion. The UK Government recognised Scotland’s status as a nation when the UK Prime Minister signed the Edinburgh Agreement prior to the 2014 independence referendum. This fact alone makes it impossible for the British state to now dispute Scotland’s status as a nation.

The remaining assumptions or contentions are less easy to discount. It can readily be maintained that the Scotland Act 1998 makes the Scottish Parliament effectively no more than an annex of Westminster, and the Scottish Government no more than an adjunct to the British executive. But bear in mind that this is a matter of constitutional law. And that, unlike criminal law – which works best by being rigorously obeyed – constitutional law works best by being constantly challenged.

There exists something which we might call the democratic imperative. An existing constitutional settlement, however thoroughly enshrined in law, may be subsidiary to this democratic imperative. That is to say, the imperative to uphold fundamental democratic principles may carry more weight than the need to abide by the letter of constitutional law. It must be so. Otherwise there could have been no social or political progress. We would still be living with absolute monarchs, warring empires and exploited colonies. (To a greater extent than we are!) Women wouldn’t have the vote and employment rights would be a matter for discussion at secretive gatherings of ‘dangerous radicals’.

All these things changed because the democratic imperative was brought into play. Because the reformed condition had greater democratic legitimacy. Women have the vote because that is more democratic than them being prohibited from voting. The demand for workers’ rights was, and remains, a demand founded on the democratic imperative. Greater democratic legitimacy outweighs lesser democratic legitimacy and the constitutional provisions which maintain that lesser democratic legitimacy.

The Scottish Parliament has democratic legitimacy. This is irrefutable. The manner in which it is elected and the way it operates gives it unimpeachable democratic legitimacy. Compared to Holyrood, Westminster has no democratic legitimacy in Scotland. The fact that Scotland elects 59 members of the UK Parliament is all but meaningless given the grotesquely asymmetric nature of the Union.

If the Scottish Parliament has democratic legitimacy then it follows that the Scottish Government does too. Only in extraordinary circumstances does a system which confers democratic legitimacy on the parliament give rise to an administration whose democratic credentials are seriously questionable. The British political system may be an example of those extraordinary circumstances.

That the the Scottish Parliament is superior to Westminster in terms of democratic legitimacy is not a matter of controversy. That, despite this, it continues to be inferior in terms of constitutional law is a matter of great controversy. There are only two ways in which the conflict between democratic legitimacy and constitutional law can be resolved. Either the UK Parliament concedes the complete authority of the Scottish Parliament in Scotland – which is not going to happen; or the Scottish Government asserts that authority in defiance of the constitutional settlement.

The Precautionary Principle demands that the First Minister of Scotland act immediately to prevent the harm that will be done to Scotland, not only by Brexit, but by the impact of ‘One Nation’ British Nationalism. The only way to do this is by asserting the primacy of the Scottish Parliament on the grounds of its democratic legitimacy. That this will entail dissolution of the Union and the restoration of Scotland’s rightful constitutional status may be considered a bonus.



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20 thoughts on “Getting assertive

  1. That is my take on it, too, and following the ‘greater good’ of Utilitarian Philosophy espoused by that fine English gentleman, Jeremy Bentham, it is a principle long-held in the UK/Britain. It allows for the overriding of daft, deliberately obstructive behaviour of benefit to only a minority or of no benefit to anyone. I think that the ridiculous blocking of Scottish independence comes under that category. The UN itself takes the view that, although self-determination is not an absolute right, means should be available for people to assert it against backward and colonial intransigence. Albeit Scotland cannot truly be called a colony in the accepted sense, having signed a Treaty as a co-signatory, the constant and relentless alienation of Scottish rights by the English part of that agreement (what we might now call Westminster) would almost certainly entitle us to a bye on the matter. In 2014, Scots-born Scots voted for independence by roughly 5%, trouncing the Scots-born Unionists and British Nationalists, but independence was not won because almost 75% of rUK residents and almost 57% of EU residents (others voted against, too) ensured that the referendum would fail.

    I am not having a go at anyone: I am pointing out that, sometimes, you have to be able to override the objections of people who do not have the country’s best interests at heart. That requires that we have to either get round the Scottish Unionists, rUK NO voters and EU NO voters in order to achieve what should be glaringly obvious to anyone or we succumb and play their game, giving them a second bite of the cherry to block independence. Democracy, of course, insists that we ‘persuade’ rather than press, and I think we have been doing that for the past five years almost since 18 September 2014. Now, matters are so dire that we need to make some kind of move one way or another. Personally, I am not at all sure how I could live with another referendum failure, having warned, well in advance, of all the pitfalls, and I am worried that we will leave ourselves no way forward unless we act soon; indeed, I am very sure that we will be storing up dangerous resentment that could explode many years later down the line. We did not ask for any of this: we did not ask to be elbowed out of the Treaty partnership; we did not ask to be treated as an afterthought even while our precious resources were being taken without our being aware of just how precious they were; and we did not ask for Brexit or to be forced into voiceless silence. All this because we were blocked by people who either owe all their allegiance to the Union, or who refuse to owe any allegiance at all to Scotland. That is the matter in stark terms, the recent pro independence poll notwithstanding. There might well be change there, but will it be enough? I hope so, but I think we must risk it anyway, and we must have the Treaty ‘sound’ in law as a parallel legal measure to the political one.

    So, what do we do? Do we say: let’s have another ten years or twenty to try and persuade the NO voters, if we ever can, or do we try to cut our way through the constitutional minefield, wholly English, seeded with constitutional boobytraps to blow our case sky-high? I think it has to be the second scenario because time is not on our side, and the British government is hell-bent on regionalization of the three parts that are not England, and not regions thereof, as well as the North and Midlands parts of England, which are regions thereof. That way, the ruling elite believes, a One Nation UK can be forged, and our carping, as they see it, over our rights, can be silenced as our teeth are drawn. Once we are on a par with the big English regions and cities, we will have to fight like tigers for every crumb and will have no energy left for constitutional matters. You have to give it to them: they know how to play the game we haven’t even learned yet. Running another referendum along the same lines as the first is insanity writ large – for both sides, and the kick-off came with RBS again threatening its departure. It is not a Scottish bank any longer, and we should let it go, demanding our 10% share and turning that into the Scottish Central Bank, saving jobs and investment. If we want to remain part of the UK, post Brexit and part of the regionalisation programme for the new One Nation State, on the other hand, we just have to do nothing.

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    1. I think, BJ, that if Ms Sturgeon tries to form an alliance with other parties to oust Johnson and/or stop a No Deal Brexit, we are going to hell in a handcart because this will precipitate a revolution in England, out of which Scotland cannot possibly fare well. Think Cromwell and the genocide of Scots and Irish. I cannot think why anyone furth of England would wish to precipitate a revolution on them when this must be for them to decide. I agreed with the SNP MPs having a free vote of conscience on the NI situation recently, because: a) I believe that a free vote must be part of a democracy; and b) because the DUP deliberately and venally foisted policies on the rest of us that we did not ask for, facilitating the mess we are in and, hypocritically expected to prevent anyone else from enforcing their own compliance of long-standing UK legislation when they bleat constantly about how British they are. No, we must now look to ourselves. Not allowing Scotland to be dumped on from a great height once again should and must trump imposed constitutional rules that are there in order to thwart any attempt to build a better UK for all of us, and to prevent any break-away when the thwarting and imposing becomes intolerable.

      I agree with Iain MacWhirter that a win in a second indyref is by no means certain (I’d go further and suggest it is more likely than not to end in another failure, because there has been no sea change in the deep core NO vote nor in its allegiance to the UK, although I must give way to the majority who want one, it seems, because they view it as democratic that people who arrived in Scotland in full knowledge of its having a Scottish National Party administration and independence agenda must be allowed their chance to thwart it again) but I also wonder how much of this uncertainty is down to the ‘wait and see’ strategy. I think we must risk an indyref if that is what the majority of supporters want, but I would also make the stipulation that it must be run parallel to a case in the International Court of Justice (ICJ) for resiling the Treaty because that Treaty will come back to haunt us if we do escape the Union, and even if we don’t. If we don’t manage to escape, a new one will be foisted on us and it will be even more onerous than the travesty we have, complementing that One Nation State. I base my assertions on almost a thousand years of having the big neighbour next door trying to subvert us and on evidence that the english MPs hi-jacked the Union.

      As now, in 1707, we protested feebly in news sheets, but did nothing concrete to challenge the perceived wisdom that Scotland had been bought and subsumed by a Greater England. This quite astoundingly ridiculous approach to legal and political burdens placed upon us quite deliberately with no basis continues today with the S30 Order nonsense. Before anyone jumps on me for ‘anti Englishness’ (which must constitute the most laboured and fictitious nonsense ever contrived by those who benefit from its lying and pernicious ability to shut off dissension among those who fail to see through it) I make no apologies for stating the truth of what actually happened in 2014, and while I am sensible of the fact that tensions can be stoked, we must still understand the sources of the 2014 NO votes and acknowledge them if we are to move forward. I have English family myself and they are mainly pro independence, and there is no reason at all for anyone thinking he or she has the right to cement a people who are on the march to independence into a Union they have outgrown. I’m afraid that it is as simple as that, whatever Scots’ origins, new Scots and old, or we have no hope of moving forward together, but every chance of creating a festering sore that will poison all of us if we are not careful.

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  2. As always, PB’s forensic analysis is very compelling. But, the cynic in me says that like the original, Indyref2 will be won and lost in the media. If there is a perception of ‘illegality’, the SNP will be eaten alive by the MSM. And there’s nothing that reasonably minded journos like MacWhirter can do about it.

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    1. It strikes me that there are several strands here: 1) we will win another referendum; 2) Westminster is running scared because it knows we will win another referendum, and that is the reason it withholds its blessing; and 3) the media will be where the next referendum, like the first, was lost. The first is a massive presumption that does not bear scrutiny, despite the recent poll, but it might be right; the second is that Westminster knows it has lost already, but, again, the One Nation State rolls on, weakening our case day by day, so, yet again, we cannot just take that granted; and the third totally misses out the voters themselves or assumes that the voters will be swayed by the media one way or the other, when there is always room for doubt about that. The one constant is the voters.

      How much has really changed since the Brexit vote of 2016? We should have expected a surge for independence, but it did not materialize, and I do not believe that a massive surge for independence, without other factors coming into play, is possible as the demographics stand. A referendum usually brings out more voters than an election, but it is also where the strongest feelings are exhibited. There is something compelling about the Union for too many people for various different reasons: older people, and others, feel the WW II/post war social consensus unity and Britishness; well-heeled Tory voters and the middle-class Labourites and Lib Dems feel entitled to what the Union brought them, regardless of the patently obvious unequal policies that had to be brought in to enable their entitlement and are angry that the SNP should threaten their security; and others are terrified of letting go of the Union for fear of falling off the edge of their known world, afraid of risk, while others are angry at those who do not see things from a wholly socialist perspective. Then, there are those who feel no allegiance to Scotland at all, but to whatever part of rUK they came from, and they are contemptuous of Scottish aspirations on any level if they differ from rUK’s.

      All of these mindsets will have to be overcome before we can win convincingly. In the end, most of these No voters will not budge unless they are forced to by circumstances, but, if you are not prepared to create those circumstances by testing and challenging their mindset, you cannot go anywhere. That is the real lesson of 2014: if you can’t change the mindsets, no matter what you put in place to try and ‘persuade’, it won’t work. Sometimes, reaction must be met with action to spark forward motion.

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      1. I replied to you. Somehow it dropped in as a new entry rather than as a reply. See my post below 9th August 6:58.

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  3. Brian -The section 30 is actually a trap, not a legal necessity.

    Salmond decided on the section 30 for two reasons. Firstly because he had Cameron in his pocket and knew he would get it. Secondly so that the result would be binding on both sides. At no point did Salmond suggest that the section 30 was a legal requirement. It was a mechanism of devolution created by unionists ,so not his first choice.

    Sturgeon by requesting the section 30 , knowing it would be refused. Has painted herself into her own corner. Because in the eyes of the public it now appears to be the only way to get a referendum .The fact that Sturgeon will not provide counter evidence or legal advice stating that presumption is wrong. Has definitely not helped the narrative portrayed to the public in the media.

    There is never going to be a section 30 agreed. Because this time it looks like yes will win. The unionists cannot risk agreeing to a vote. Ultimately they know they cannot stop a Holyrood referendum. So they are hoping they can string Nicola along ,saying no until after Brexit.

    I just hope people realise what is going on here. Nicola will not change a thing until she drops the section 30 narrative. She must now say that we have waited long enough. Recall parliament and ratify a consultative referendum. Lets see how the public view the media and UK trying to portray the Scottish parliament as criminal.

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    1. The British Nationalists and Unionist media will not care, BJ. We always assume that people will be outraged. They rarely are, the majority, unless the conditions are right and the stars aligned for that to happen. If nothing else, Brexit has proved that. The saying that, for men, love is a thing apart, while, for women it is all, also applies to politics: for the political anoraks, it is all; for most people, it is just life and of no great import unless it impinges directly on them, and, often, not even then. Because we have no difficulty in seeing the reality of the situation, it does not follow that they are stupidly and wilfully blind, although many are in the British Nationalist parties, but simply means that they are not aware of what we are aware, and may never be. The Irish 2016 ‘uprising’ was a damp squid as far as most Irish people were concerned until they saw the Black and Tans clubbing their womenfolk, dragging off their husbands, sons and fathers and destroying homes. Westminster is not going to do that. What it is going to do is much more insidious and underhand, and most people won’t even understand that it is happening until it is too late. One of the human tragedies is that we are blissfully uninterested in the tragic circumstances almost always until it is too late, and we never really learn. Every new generation re-invents the wheel, and that is our greatest tragedy. In those circumstances, only action and challenge and refusal will work.

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  4. As a brief aside, for complete, internationally recognisable democratic legitimacy, how about calling an extraordinary constitutional assembly (or whatever it may be called) to which are invited all Scottish Westminster MPs and all Holyrood MSPs.

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    1. The British Nationalist parties have stated that they would boycott it, as they would an advisory referendum (so they say…). We could press ahead, as we have a majority of MSPs in favour of independence, and of MPs, but will the SNP government countenance that? If they insist on a S30 Order and another referendum, which could be lost, it would seem unlikely. On the face of it, democracy seems to be a very obvious thing: the rule of the majority. However, as we have come to realize – in light of the move to enable self-IDing for trans women – the long-held and hard-won rights of others can be trampled inadvertently even as we seek to exercise justice and democracy for minorities. I think the same thing has happened with Scottish independence: by not thinking through the implications of telling NO voters they have every right to block independence with a No vote (because that is, effectively, what was done when we didn’t challenge that No vote in its constituent parts – we handed our future over to people who had already voted against allowing us a future separate from the one pre-ordained for us by them and Westminster) we have actually trampled on the right of Scots to be independent. This has been further exacerbated by the refusal even to allow debate from that quarter.

      If Westminster has silenced us on Brexit, the SNP and wider YES movement have silenced us on the NO vote, as if the vote was conducted by some higher force through the medium of the No voters who were wholly not responsible or answerable for their decision. We are answerable for our decision to vote YES every day of the week; we are routinely insulted; and yet, we must take it on the chin and say nothing. That appears to be the overriding maxim for the 21st century: say nothing. Remain silent. At all times. On every topic. Never reach below the surface, the superficial to discover anything in case what you discover offends somebody somewhere – even when no offence is intended or can reasonably be assumed. We are now living with the tyranny of the minority (women are a majority, chaps, not a minority, remember) even as we seek to prevent discrimination against minorities. I suppose it just never occurred to big-hearted, but misguided people, that minorities contain within them all the vicious, nasty, shallow, venal, selfish, self-interested and devious, etc. traits of majorities, both being human with all the human flaws.

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  5. Insightful and compelling discussion on the part of Peter and his commentators.

    I’m still of the view, however, that Craig Murray’s proposals that the Scottish Parliament resile the Treaty of Union and revoke the Act of Union to be followed by a confirmatory plebiscite, an appeal for support to other countries, and negotiations with the English Government for the just sharing of the assets of the former UK is the way to go. If the result is rejected by the English government, an appeal to International Courts must be made.

    Peter’s citation of the Precautionary Principle is absolutely right. In an emergency situation the Government must act to protect the Nation and its people from harm. According to Craig Murray, the Scottish Parliament has International Law on its side.

    I’m amazed that the SNP is still trying to rescue England by supporting a Government of National Unity. That is to accept that the UK is One Nation. It’s already to have conceded the unlimited sovereignty of the Westminster Government over Scotland, which our constitutional history and Claim of Right do not permit.

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    1. I’m with you and Craig Murray on that, steelwires, but resiling the Treaty will, of necessity, involve the international courts and international law, and, although no outcome can be presumed, we would at least not be at the mercy of the domestic courts whose rulings are based wholly on ‘British’ constitutional law which, to all intents and purposes, and in reality, is English constitutional law, just as ‘British’ politics conducted at the UK level is English politics, in reality. You are right, too, about the One Nation State approach of the SNP, at times – rather doing the job for the British Nationalists. I’m afraid that, in reality, de facto, Westminster’s sovereignty is more or less unlimited. When Charles I lost his head, and parliament reigned supreme, it merely usurped royal prerogative to itself and, by extension, to British governments, and that is why the SNP’s trying to topple Johnson or allying with others to prevent a No Deal, or even Brexit itself, if they do, is tantamount to provoking English revolution. Something has gone very wrong in Scotland with Brexit, and it has taken precedence over everything else, including independence – which, realistically, is, and always was, our sole means of escaping the overweening British State control of our affairs. The moment that the SNP won its majority, in 2015, it should have withdrawn from Westminster then, but the opportunity was listened there are times when the SNP is acting like a British party instead of a Scottish one. If it starts acting on the British scene, interfering in English affairs, it will forfeit its right to complain of British interference in Scottish affairs. Perhaps it’s time for the historians to remind us of the Cromwell era and its impact on Scotland.

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  6. Steel- I don’t honestly believe Nicola will do anything without a section 30.

    We are stuck here , because she will absolutely not act without WM approval.

    I am sorry but she will not deliver independence. We will still be where we are this time next year.

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  7. And we can see these mindsets everyday in the Herald and Scotsman btl comments. There be ostriches; head stuck firmly in sand. Just the other day I was talking a to a good friend who is still wanting a UK in the EU. This is no longer an option. How do you get through to these people; they will die before they see the reality in front of them.

    I kind of agree with you Lorna its going to be very messy and probably violent no matter what happens, George Square 2014 was an opening salvo, and remember They Won the referendum. So “How do we Carry the People?”, which at the end of the day is what matters, and which will minimise though wont thwart he violent types. Especially when the result may be very close, either way. I actually don’t think you can stop the violence, it will be stoked deliberately by “the powers that be” for pure malice if for no other reason.

    So IMHO FWIW I would resile the Treaty and suffer the consequences. There is an enormous weight of evidence on the independence side that would overwhelm any opposition. Once done, a new Treaty could be offered and freely negotiated and just like the UK EU negotiations every utterance would be printed and every clause published. Nothing agreed until everything is agreed. Once complete a vote would be held both North and South of the Border to ratify this new understanding between the people’s of these islands. If the vote was lost then so be it, everyone would have had an opportunity and no-one could complain about the process. That would be fair, open and honest.

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    1. If there is going to be a violent reaction from British Nationalists it will come regardless of the size of the Yes win. Such behaviour then becomes a matter for Police Scotland to deal with. We cannot allow violence or the threat of violence to deter us from following the democratic path.

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    2. I am suggesting there is a better way than having violent clashes on our streets even though police Scotland would do a good job. Alllowing the opposing forces a way to escape, lest they fight to the death as they have no way out. My suggestion is really just that allow the Unionists a face saving way out, in the end I would imagine the new union being between two independent Kingdoms with sharing of some resources. A minor inconvenience to aviod bloodshed.

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      1. If you didn’t notice my original post was to #DissoleTheUnion without a Referendum. Plan B perhaps, but my preference as it leaves no room to doubt the outcome and cannot be thwarted by the insidious ones.
        Besides what better way to “Get Assertive”.

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