Shaping the campaign

Andrew Tickell comes to the inevitable and unavoidable conclusion concerning the motives behind the British Electoral Commission’s insistence on ‘influencing’ the question asked in the new referendum. It’s because it’s the British Electoral Commission. And the important word there is ‘British’. It is an agency of the very entity which seeks to preserve the Union at any cost. It is only to be expected that it will reflect the “Sir Humphrey grade cynicism” of the British political elite.

Any intervention by any agency of the British state must constitute undue – and very likely unlawful – outside interference in the process by which Scotland exercises its right of self-determination.

Andrew’s exploration of the importance – or otherwise – of the language used in a referendum question is as perspicacious as we would expect. But one comment stands out.

… the basic language of a referendum can powerfully shape how the respective sides are able to campaign

This is a crucial insight. The British Electoral Commission – and by extension the British sate – is pretty much exclusively concerned with the the way the framing of the referendum question affects voters. For obvious reasons. The structures of power, privilege and patronage which constitute the British state largely rely on a highly developed apparatus devoted to the manipulation of public perceptions.

But, as Andrew observes, the referendum question is only part of a complex web of influences affecting voters. It is the campaign as a whole that is the context within which these influences operate. So it stands to reason that the most important thing about the question is the way it shapes the campaign. In relation to a new constitutional referendum, that importance is immeasurable.

Consider the question asked in 2014.

Should Scotland be an independent country?

Ask this question of any other nation and you would be regarded as an idiot. The people of those nations might regard the question as offensive, if they thought about it at all rather than dismissing it out of hand. That’s because independence is the normal, default status of a nation. The people of all nations take their independence for granted. It’s the way things are and the way they should be. So a more appropriate question might ask why Scotland must be the exception.

The 2014 referendum campaign was entirely shaped by this questioning of independence. It was the condition of independence that was being challenged, despite this being the ‘natural’ condition of nations. The question was inappropriate and it shaped the campaign in a way that favoured the anti-independence side by forcing the Yes campaign onto the defensive.

Surely simple logic dictates that it is the Union which should be questioned. It is the Union which is anomalous. It is the Union which is ‘unnatural’. It is the Union that sets Scotland apart from other nations. It is the Union that prevents Scotland from being normal.

Consider how different the campaign would have been had the question been,

Should Scotland dissolve the Union with England?

Such a question accepts the default assumption of independence and challenges the claim that an alternative constitutional settlement is preferrable. It forces Unionists to justify the Union. It puts the Union under scrutiny rather than the concept of independence which, despite – or perhaps because of – it being so ‘natural’, can be difficult to define.

Independence was placed at the centre of the constitutional issue. But independence is a disputed concept. Think back to the 2014 referendum. Not only were there massive differences between the way independence was portrayed by the opposing sides, there were significant differences even within the Yes campaign. A multitude of them! There was no single universally agreed idea of independence on which the Yes campaign could focus. Campaigning for a disputed concept is seriously problematic. The anti-independence campaign had no such problem.

The Union is not a disputed concept. It is a fact. It is a concrete thing. What is disputed is the justice and efficacy of that thing. Does this not, even at an intuitive level, seem like a more rational basis for a referendum? Does it not makes sense that, if there is to be a debate, then all the parties should be talking about the same thing? A referendum is, by definition, binary. So surely it is a basic prerequisite of a referendum that everybody should be campaign for or against the same thing.

The 2014 referendum campaign wasn’t so much shaped by the question as badly distorted by it. I accept that it almost certainly had to be that way given the circumstances that pertained 7 or 8 years ago. But the lesson is there to be learned. And circumstances have changed dramatically. We must not allow the new campaign to be distorted in the same way. And allowing agencies of the British state to determine the question is a sure way of ensuring that it is.



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11 thoughts on “Shaping the campaign

    1. Our Union is just not that simple in pragmatic and real terms. People who were acting on our behalf at the time – there was no universal suffrage then – voted legally to join us with the state next door to complete the Crown/Parliament duopoly, and, for some, to enrich themselves. The Treaty of Union is an international treaty that cannot be ignored if we want to have a settlement that has international support. We can say until the cows come home that we have the Claim of Right, but the Claim of Right does no more than let us work through Westminster to achieve our ends, as it did in 1999. A referendum, with a S30 Order, will always require to be agreed by rUK, and they could appeal and hold up independence in the Supreme Court. They are trying now to interfere with the Referendums Bill and could do what they did to the last piece of Holyrood legislation and simply make it redundant, by body-swerving it. We must be realistic. However you cut, slice and dice it, we are stuck with an international agreement that must be honoured at some point, but that does not mean that we cannot dissolve the Union – indeed, we must, and resiling the Treaty itself is one way to do it, but there are others. However, the Treaty must, by definition, as do the EU treaties and agreements, form the basis of any negotiations thereafter. It is profoundly irresponsible, just as the NO Dealers are profoundly irresponsible, to crash out of the UK Union without reference to the Treaty that created that Union. This is where I believe the SNP has lost its way: it has been too ready to obey every Westminster constitutional diktat instead of refusing to acknowledge them at all. The Treaty shows that we never agreed to these constitutional binds; acquiescence and timidity over centuries has led us to this cul de sac. The Treaty shows that the Union we have today was not the Union we signed up to.

      The UKG is in the mess it is in because it believed it could drive a coach and horses through the EU international agreements; and even if there is a No Deal Brexit, the EU will appeal immediately to the international court for compensation for loss of the UK’s contribution (legally agreed) and its precipitate leaving of a trading network that will leave others in limbo for some time. The International Court will always try to enforce the terms of international agreements where they exist, as must the UN, or every international agreement, co-operative action and alliance will fall, by implication.

      The truth of the matter here is that it is the Supreme Court that has the final say on all constitutional matters that are reserved, in any case, to Westminster. Yes, there is no reason why we cannot hold an advisory referendum, without a S30 Order (basically, the Catalunyan way) but there is no way that Westminster can be made to honour it unless the Supreme Court sanctions the result, and it cannot do that because it must obey and rule on the constitutional laws and rules as they are, not as we might want them to be, and that is Westminster’s ace. Not only do we have to be strong in the face of Westminster and Whitehall opposition, but we must also understand that we have to push outwards from within those constitutional barriers that are wholly English in origin, albeit they are deemed to be British. A little reflection on the fact that both a new Union and a new, written constitution have been mooted by elements South of the border, backed by tame Scots. Why would they even think of doing this? The answer is straightforward: because they know that both the Treaty and the constitution as it stands can be overturned by any group powerful enough to attempt it. They really would not bother if both these issues were not dangerous to their self-entitled worldview.

      Yes, a referendum with a S30 Order would be deemed legal and the result would have to be recognized, but they will try to hinder that process for as long as possible; now, they are trying to capture the wording of any future referendum in case they do not manage to prevent one. Any subsequent negotiations would also be the source of more interference, and they would try to evade the Treaty, giving themselves the upper hand. The Treaty is absolutely crucial to the Union and the Union is absolutely crucial to our independence. ‘We’ signed the Treaty, an international contract subject to international law (the use of the term, ‘Articles’, always used for international agreements rather than ‘terms’ or ‘clauses’ gives the game away) and it is a legally-binding agreement, whether it was democratic or not by modern standards. ‘We’ agreed to set up the British state, the Union, mutually, and, although it will be possible for us to resile it on the grounds that its basic tenets have not been honoured by England, indeed, have been spat upon and the Scots treated in an ultra vires fashion since 1707, nevertheless, it still stands, and we must decide, sooner preferably than later, what we are going to do about that.

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      1. I understand the points you make, but Scotland, can and should revoke the Treaty of Union,.We don’t need Westminster’s permission.
        And when we see the stance the new Prime Minister is taking, then there is nothing they can say against Scotland doing exactly as they are doing just now.
        However, it would help, i Scotland went about it, in a more formalized manner, rather than the haphazard way of the UK Govt with EU.
        But it is for Scotland to decide.
        As others have noted, it is a bit of a mystery the approach being taken by the SN[P at this moment in time.
        We should have ended the Union by now, not wait t’ill after London forces us out of EU.
        That way of doing things is not acceptable.
        We wonder yet, the First Minister has some secret plan to surprise us with. We can ony hope she does, for Scotland’s sake.

        Liked by 1 person

      2. “A referendum, with a S30 Order, will always require to be agreed by rUK”

        False.

        There can be no such thing as rUK.

        The United Kingdom of Great Britain is a legal and political entity formed by the Union of two and only two countries – the Kingdom of Scotland and the Kingdom of England (incorporating Wales). It was created by a bilateral internationally recognised treaty. Either party can dissolve a binary union freely entered into.

        It is the case that upon dissolution of the Treaty of Union, its associated enabling acts of parliaments, and any subsequent contingent intra-state treaties and agreements derived therefrom, the United Kingdom of Great Britain will cease to be.

        As you might expect, two and only two successor states will emerge from its discarded husk – the Kingdom of Scotland and the Kingdom of England. There can be no continuing state of an extinguished voluntary union of two nations. It is on its face a daft proposition.

        Consider the tautology: When the Union is dissolved, the Union ceases to be.

        “…but the Claim of Right does no more than let us work through Westminster to achieve our ends, as it did in 1999”

        Meaningless

        “A referendum, with a S30 Order, will always require to be agreed by rUK, and they could appeal and hold up independence in the Supreme Court.”

        The S30 was a device agreed in 2014 to ensure no challenge. However, it is NOT a legal requirement and there is no law preventing the Scottish Government consulting the electorate by way of plebiscite.

        “We must be realistic. However you cut, slice and dice it, we are stuck with an international agreement that must be honoured at some point…”

        It is being honoured in its dissolution. Any international agreement between two parties is dissoluble by either party. Otherwise, one party is enslaved to the other in perpetuity (and this IS the current de facto position of the English Govt and WM). The TOU is being honoured in its dissolution and the simultaneous recreation or the reinstatement of its creators, the independent nations of Scotland and England (incorporating Wales). Both are successor states of the extinguished UK of GB upon which the UK of GB and Ireland was predicated in 1801, and later upon which the UK of GB and Northern Ireland was predicated in 1922.

        “The truth of the matter here is that it is the Supreme Court that has the final say on all constitutional matters that are reserved, in any case, to Westminster. ”

        No it does not. The so called Supreme Court is a construct of English Law packed with English Judges serving English interests and never agreed or featured anywhere in the Treaty. The Treaty of Union stands on its own merits and the People of Scotland have the inalienable right in Scots law and under international law to dissolve THEIR union with England.

        “‘We’ signed the Treaty, an international contract subject to international law… and it is a legally-binding agreement, whether it was democratic or not by modern standards… nevertheless, it still stands, and we must decide, sooner preferably than later, what we are going to do about that.

        The English state holds that Scotland and its people are enslaved in perpetuity. They will not accept the will of the Scottish people for dissolution of the Union. The will not even allow formal expression of that will by the People in a referendum. Thus providing dispositive evidence the the People and the nation is so enslaved by the Treaty.

        Therefore:

        The Sovereign people of Scotland can dissolve the union with England. At the instant of a YES vote the Scottish Parliament and the Government of Scotland derive their power and legitimacy directly from the People, with the authority to treat with England (incorporating Wales) and its government, on the detail of the assets and liabilities of the defunct UK.

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    2. If it is a gift, then once given, it cannot be taken back.

      But, Marcatonix, you are looking at this from the wrong end. It is not theirs to give. It is ours to take.

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      1. Gifts can be given conditionally. Or the thing gifted can be crucially dependent on something that is not gifted. Consider a child presented with a shiny new top-of-the-range mobile phone. What use is it without a SIM and contract? Or, for that matter, without guaranteed access to a power supply in order to charge the device?

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  1. Gordon Keane: indeed, we don’t actually need Westminster’s permission for most of what we can do if the will is there. That is precisely my point. The will simply does not appear to be there when the FM states that she will not seek a referendum unless it is under a S30 Order. We can say we can do this, that and the other, but, if Westminster chooses to block this, that and the other, and the Supreme Court backs up the UKG, what, realistically can we do, except declare UDI (setting aside the Treaty for the moment)? Where is the will to declare UDI? We must break the constitution to break the union, and it does not require the SG to bring the action. Perhaps what we need is another Wings-like initiative to shake the SNP out of its torpor? A crowd-funded people’s action in the International Court of Justice? I am not advocating it, but it is a thought.

    The only constitutional agreement we have made was in 1707, and everything else flows from that. If the Union that was laid out in the Treaty had been delivered, we might now find ourselves in a real constitutional and legal bind, but the facts are that the Treaty Articles have been broken over and over again by one side to that Treaty – England, masquerading as the UK. The Treaty supersedes devolution and devolved powers because it is the very foundation of the UK itself, and it is incompetent to try and supersede oneself from oneself. It is a legal impossibility.

    The Supreme Court has been set up to reflect the British Constitution that has little to do with us, but benefits England, in its guise as the UK, at every turn. All the UKG has to do is go to the Supreme Court with anything whatsoever that it deems to be unconstitutional and, if that thing is also deemed to be unconstitutional by the Court, it will fall. The wording of the Scotland Act has already reflected that catch 22 legal anomaly with the Supreme Court ruling against the SG. What the Supreme Court cannot do is rule on the Treaty in its role as final arbiter of domestic constitutional law. Do you follow me? It would not be competent for it to do so, and the Treaty would require to be ‘sound’ in international law and resiled under international law. It is the one, the only, the sole, constitutional document that is not subject to the ruling of the Supreme Court as final arbiter, and therefore, would be taken out of the ambit of the UKG and all its state arms. I do not pretend that it would be easy or that we would win automatically, but I do believe we have a far greater chance of doing so than by any means at our disposal that comes within the ambit of the UKG and the Supreme Court, as final arbiter of domestic constitutional law.

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  2. Meanwhile, in the real world, Christian Wright… I’m afraid that stating what should be as against what is where meaninglessness lies. So long as the SNP refuses to countenance any other route bar a referendum, complete with S30 Order, we are sunk. We have seen just how weak the Scotland Act is, and Andrew Tickell’s article on wording in The National is very applicable here: the wording is everything; and it can be manipulated to say and, therefore, mean anything. What price devolution, then? I think that you, like Gordon Keane, totally misunderstand what I am saying. I am not some mamby-pamby British Nationalist or apologist for Westminster: I believe in the same things that you do; but I am a pragmatist and realist. What could be, if the will was there, is in no way analogous to what is right now. Neither am I a blood-and-soil nationalist who wants independence at any and all cost and just for its own sake. Like many others, I want a better Scotland for all our people, but I also want the law to work in our favour – which is nigh impossible at the moment while we are thirled to a domestic, UK (actually English) interpretation of all constitutional matters. You have to understand the law and its limitations, but also understand that it can work for you, too, if you are willing to challenge it, just as in politics. I want us not to be an international pariah, but to take our place among the independent nations of the world, a state which we once were in, and can be again. Had we had the Union we should have had, I very much doubt that I would be SNP, joining at around 13 years of age or that I would even contemplate the end of that Union. We did not get that Union: we got a Union that is wholly one-sided, an asymmetrical facsimile of what the Treaty promises. Just as the Vow was not delivered, neither was the Union as envisaged, albeit a few at the time, being very aware of the perfidy of Albion, suspected that would be the case, and mourned the loss of our sovereignty, not the least being Andrew Fletcher of Saltoun. What is, is; what can be is a different country entirely.

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    1. I understand what you are saying,.Lorna,but I have to agree with Christian Wright, and his view of things.
      But at same time, I agree with your point regards SNP leadership, at this present moment in time.
      Unless they are willing, and determined to do things differently, and insist on this stupid and unnecessary Section Order 40 thing, then, indeed, we are at a disadvantage… actually, it is Scotland that is being disadvantaged.
      If SNP does not do something (out of the blue) soon, and we are forced out of EU, in November, and are made to wait, and to wait, and to wait further, and further, as you suggest, SNP could/would go the way of Labour in Scotland, and a new political group will replace them, and take us to Independence, and there will be no Section 30, and no Referendum in the process!

      We don’t and should not have to await ’till such a scenario, as time, has run out, now.
      The damage being done, and that has already been done, is too great to delay further.
      But if we are made to wait more than we need, then it will be the present politicians of today, who will be blamed for it, and none of them will be easily forgiven, regardless of what Party they belong to.

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      1. I have no wish to argue any more and use Mr Bell’s facilities to do so. I will just say this: no matter how we leave the Union, we will have to face, and make use of, that Treaty at some point because it represents the Union itself. Both you and Mr Wright are right, but being right is not enough. That is what I am trying to say. We have to work with what we have right now, and what we have right now is nothing if there is no will to actually do something or if we acquiesce in what the UK has planned for us. No matter how bad it gets, it will not be worse than that post Brexit Tory One Nation State, believe me. If we do not have the guts to stand up to the UK now, how will we do so in the future when it becomes even more unbearable? I do not expect that an independent Scotland will change my own life drastically because I won’t be around long enough, but our children and grandchildren are who we should be focusing on now. For their sake, I would contemplate almost anything to get us out of what awaits and try to hand them a better and freer Scotland than we inherited. Perhaps it will take a Wings List Seat initiative and/or a people’s challenge in the International Court of Justice to extricate ourselves, but I can only speak for myself when I say that the future with the right-wing Tories (and the other British Nationalist parties who will cave in to them, before they would ever support us) terrifies me.

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