When Nicola Sturgeon tells Boris Johnson he can’t imprison Scotland in the Union I hear Johnson retort, “Watch me!”.
The reality is that there is nothing to prevent the British state from effectively locking Scotland into the Union so long as Scotland’s First Minister and the Scottish Government accept that the laws designed to preserve the Union take precedence over everything else – including ‘natural justice’. That is what they have done by committing to the Section 30 process.
Nicola Sturgeon can insist all she wants that Johnson’s position is “unsustainable”. He need only sustain that position in order to prove her wrong. He can stick his tongue out at Sturgeon – metaphorically or literally – and say “Wotchagonnadoboutit?”.
What is she going to do? What can she do? She can wave her mandate at him. But that mandate only has power if Johnson acknowledges it. If he decides he’s not going to recognise the mandate, it counts for nothing. Had Nicola Sturgeon learned this lesson then she would not have committed so absolutely and irrevocably to the Section 30 process. Having accepted the power that this affords Johnson, she can hardly complain about him using that power.
Having burned all her political boats by declaring the Section 30 process the only “legal and constitutional” route to a referendum, Nicola Sturgeon has nowhere to turn but the courts. She has no “legal and constitutional” option but to take the issue out of the political arena and take it into the realm of law. That is not the good news that some suppose it to be.
If you can stand another wet blanket being thrown on the fires of your enthusiasm lit by the SNP’s success in the election, read Andrew Tickell’s column in today’s Sunday National. Basically, he confirms everything I’ve been saying for months now. The law will not rescue Nicola Sturgeon from the corner into which she has painted herself.
Going to the courts was always a huge gamble. Because a finding in favour of the British state would end the matter. Once the courts have confirmed the British Prime Minister’s right to refuse a Section 30 order request ad infinitum, there are no options left for the Scottish First Minister who has acknowledged the power of that refusal to serve as a veto on Scotland’s right of self-determination.
Unless Nicola Sturgeon knows differently! Unless she has some option in mind which keeps the constitutional issue in the political arena and arms the campaign to restore Scotland’s independence for battle with the British state. If such an option exists, then Nicola Sturgeon alone is aware of it. It must be an option that has not occurred to any of the thousands of amateur and professional observers of Scottish politics. How likely is that?
If such an option exists, then it is time for Nicola Sturgeon to get it out in the open. It is time to deploy whatever ace it is that she has up her sleeve. Or, at the very least, to confirm that she does indeed have a political ace up her sleeve.
I don’t think there’s anything up her sleeves but her arms. I would be delighted to be proved wrong, but I strongly suspect Nicola Sturgeon’s fallback strategy all along was to take the matter to court when the Section 30 order was refused. I reckon talk of “all other options” is nothing more than political bluster. There is no ace up her sleeve. We know this because we know precisely how many cards are in the pack and what every one of them looks like. We can see all the cards. There is no 53rd card.
A First Minister who had not committed to the Section 30 process in the way Nicola Sturgeon has would enjoy the benefit of political options that Nicola Sturgeon has denied herself. It has always been clear to those who have thought the matter through that there is no route to independence which does not involve confrontation with the British state. There is no route to independence adhering to the rules put in place to preserve the Union. There is no route to independence which does not involve breaking those rules. For someone who is determined to avoid confrontation and abide by the British state’s rules, there is no route to independence at all.
A First Minister who had not committed to the Section 30 process in the way Nicola Sturgeon has would have the option to take the cause of independence forward through the Scottish Parliament cutting Westminster out of the process altogether. The obvious conclusion, therefore, is that ether Nicola Sturgeon renounces her commitment to the Section 30 process, or we need a First Minister who is not subject to the constraints that Nicola Sturgeon has imposed on herself.
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Peter A Bell 
Mr Bell,
I believe Andrew Tickell to be mistaken. Read my replies, if you like. I base my case on the writings of two very eminent and expert Scottish jurists, one deceased, who have made our case for us. A few years ago, I decided to approach the Treaty from the political perspective, and I arrived at precisely the same conclusions as the two legal experts. I’m not saying this for any kudos – too long in the tooth and uninterested for goal-scoring – but they have the right of it. They are neither of them independence supporters, to my knowledge, but they took the Treaty and the Union apart and stripped them down to their basic parts. I did the same from the political perspective, trying to remain detached. Politics and the law are my two fields of inexpertness, so I claim no particular talent in either. The thing about the law is that you must delve, and delve deep or you miss the real gems. Without being particularly self-congratulatory, I do appear to have a certain small penchant for unearthing wee gems when I set my mind to it. The point is: we can and should take our case to the ICJ and the Floor of the UN, if necessary, while we apply political pressure, refusing to co-operate at Westminster, etc.
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How might “we” access “the ICJ and the Floor of the UN”?
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We file for permission to lodge our case. If the SG will not do this, and after listening to Michael Russell this morning, on the Gordon Brewer programme, it appears that they will not, but will prevaricate over and over again, then, perhaps it is time that a citizens’ delegation set up a crowd-funding campaign to bring it to the international courts. Each and every one of us in Scotland has an interest, just as we each have an interest (in the legal sense, I mean) in the UN charter and on human rights. I am, at the moment, trying to piece together how we go about this, and I will get back to you on that. It is easier for governments to do so by preparing a case and lodging it with the Court. The Court itself will decide and make a ruling on whether the UK government is in breach of an international treaty – the Treaty of Union. This is one of its tasks. It is also called upon to deliberate on violations of human rights and violations of the UN Charter. The UN, as far as I am aware, is open to ‘guest appearances’ by parties interested in getting their message across to the delegates. I would suppose that you have to ask first. Scotland and her representatives have been so collaborative towards the UK that they have never tried. It is time we tried every avenue and opened every door.
Mike Russell was talking about the 2021 Scottish election as though all the talk about a mandate, S30 Order, blah, blah was so much whistling in the wind. They might well win that election, but the British Nationalist parties and, particularly, Westminster, will throw everything at them. We have seen how Corbyn has been destroyed – partly by his own lack of backbone, but also by the sheer malign force of Tory propaganda and money to peddle it. Just why are the SNP so reluctant to even look at alternatives to a second referendum – which, basically, they must know will be refused? I hope that they now have a Plan B which they will put into operation when it is refused because I believe that the UK (England) will behave towards a recalcitrant Scotland as it has done throughout our history and that is to use threats and force against us. We do not have the numerical strength stand up to England, even on a level playing field, so we must start to use the wits we were born with. In Nicola Sturgeon’s shoes, I’d be hammering on the door to the UN building in New York. She’d be a star there, I have no doubt.
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If the SNP is not up to direct confrontation with the British State, then others will be. I do not have any particular strategy, although I do not believe anything should be ruled out.
Craig Murray is now taking about a grand committee of Scottish representatives. This was something I advocated at the beginning of the year. It might be a way of brainstorming or knocking heads together. Or it might turn into a rammy.
Like Ms Campbell I fear the worst, and if she knows of a way of taking the Brits to the ICJ I am behind it.
I also like your own idea of a referendum asking people if they want to dissolve the Union.
There are many more radical attacks I can imagine.
Whatever else, saying there is only one way to do it, does not help at all.
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I really believe that we need to avoid any more referendums unless it is a ratifying referendum after independence or one to decide our future in the EU, with various options to reflect the various opinions. Yes/NO referendums are a recipe for disaster. As far as I am aware, the ICJ or the Floor of the UN may be accessed by anyone in the international community. I’m not being naive: I’m sure there is a process and we would have to abide by it; our strength lies in the Treaty which is an international agreement that can be ruled on only by international law. That is our initial gateway. rUK, of course, would probably present a contrary case or might, for once, behave in a civilized manner and accept that it is beaten. It has, after all, co-signed the international definitive statement on a break-away state, as Craig Murray says. Here we have a man who is probably better equipped than anyone else in Scotland to work on behalf of the Scottish government. Let’s use his expertise. Let’s use the expertise, if permitted, of the later Professor David Walker and that of Ian Campbell who have between them already laid out the groundwork of our case for us. They are/were extremely eminent constitutionalists. The SNP government has so many and so much at its disposal. Why will it not use them? I will say again that I suspect that there are elements around Nicola Sturgeon, not so much in her Cabinet, but, perhaps, in the ranks of the civil service and other advisers, who are deliberately trying to muddy the waters around her. I mean no disrespect to those civil servants and advisers who do their job without fear or favour, but I would bet that elements of the security services are already embedded close to the SG in order to foil and cripple genuine moves towards independence. I would beg Nicola Sturgeon to think long and hard about anyone who keeps advising her to drag her feet now because speed is of the essence. The British State would not be the British State if it does not have someone – at least one – close to the FM’s elbow, whispering in her ear like a Scottish Iago, causing unnecessary hubris.
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So let’s get this done.
I agree about referendums. I have never really been a firm advocate of a second referendum. So the pursuit of a Section 30 Order I feel to be a bit of a diversion.
Nor do I doubt that the departments of dirty tricks are deeply embedded around the whole Scottish government machine.
I am convinced by your arguments.
So what then must we do?
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Scotland’s independence can only be restored with the informed consent of Scotland’s people. The only way of confirming that consent is a plebiscite. There is no way to avoid a referendum. It is merely a question of the form the referendum takes and the process by which we arrive at it.
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Another insightful and incisive analysis, Peter!
I’ve written may times over the past months that independence needs to be taken out of the hanos of the SNP. Others are beginning to write that also. Please let’s get on with it!
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Not “the hanos” I mean “the hands”
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Just for interest Aileen McHarg seems to agree with Andrew Tickell about the S30, and she was one of the Gavin Anderson et al in 2012 who argued the right of the ScotGov to hold a referendum without one. Thing is I think we can as much force the UK Gov to legislate an S30 change, as we could force the UK Gov to give us all £100,000 each by means of QE (no, not her).
But while this is all being discussed, it could well be that the very thought of the Tories refusing will drive people, not just to support holding an Indy Ref as the recent Labour politicians, but also to a YES vote. Which means in its way, the longer before one is turned down – if it is – the better.
I think I remember seeing that the letter from Sturgeon would give 28 days to reply, and if no reply, then she would announce the further steps. I can guess what these will be as others can but hey, the speed of the hand defeats the eye and why spoil the fun? I think one will be forthcoming; we’re just an irritant to the Tories and BoJo is no Unionist, unlike May or Cameron. A mere threat to their plans would be enough for them to throw us in the ditch.
Meanwhile this is a bit of a good time to relax a bit, have a laugh. Getting behind the SNP for this election did mend a few bridges between the SNP stasi as I call them, and the nose-holding reluctant SNP voters, all of whom in the event, voted SNP to give them 48 out of 59 MPs, and nearly more.
There’s not much we can do at the moment, but wait and see what’s up the sleeve. And of course watch movies like “Elf” 🙂
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As has been pointed out on numerous occasions, yes, the more time that passes the greater the chances of being caught in trade deals and agreements made by the UK on our behalf, making independence more and more difficult. I believe that Westminster has already laid a lot of the groundwork for these deals, or knows more or less, how it is going to proceed. They can do noting concrete until we are out of the EU – by 31 January if Johnson has his way. Then, the UK is open for business. How would you halt legally-binding contracts after that? To do so after the fact would make Scotland a pariah. It is not enough to hint to the international community that we are looking to be independent within a year…two years…three years….five years…a decade…fifty years?…we need to make it plain that the UK does not speak for us. Now.
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Well Liam Fox said that 40 countries would be lined up to strike trade deal once we were out , so far it’s with economic powerhouses such as The Palestine Authority , Liechtenstein etc not exactly going to keep British manufacturing going , is iIt? So where does the UK trade?
% of total UK trade in 2018
we trade with the EU 49%
Countries with EU trade agreements 11%
Total 60 %
U.K. trade with the rest of the world 40%
Source :- Department for International Trade
There is no way on God’s Earth we’ll have the equivalent of 60 % trade from day one so we’ll suffer as tariffs will be put on U.K. goods . U.K. industries competitors will be rubbing their hands with glee as they’ll be able to undercut U.K. prices
Don’t expect the EU or Uncle Sam to be all“ nicey-nicey ” . We’ll be rivals and they’ll circle us like barracuda round a rotting corpse
We haven’t even started Trade Treaty negotiations with the EU. So we’ll have to use WTO rules ;however the large fat orange spider in the ointment is that Trump refuses to appoint judges to the WTO Court . Therefore if we get stiffed we can’t appeal .
The EU has done our treaty negotiations for nigh on forty years whilst our negotiators either died or retired. We simply don’t have experienced negotiators “spade ready”. The U.K. is going to be like a nun in a brothel.
The sooner Scotland becomes Independent the better; there’s a lot of goodwill in the EU for Scotland and the sooner we can join or have some sort of Norway -style agreement the less disruptive the transition period will be
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We cannot afford this kind of complacency.
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As I said in my posting: “28 days to reply”, and her letter has to be sent by the end of this year.
Nothing complacent about that, or are you going to camp outside Bute House for the next 6 weeks?
Good Luck with that!
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