Unappealing options

As you get older and your memory starts to deteriorate, you have to deal with an increasing number of problems. You graduate from forgetting to do things to forgetting whether you’ve done things. Just as you get used to being unable to recall names, you start to forget faces. No sooner have you figured out a coping mechanism for that than the next – and probably the worst – stage is upon you and you begin to imagine you recognise faces. Before long, you start to dread leaving the house as every encounter with people involves a stressful struggle with fading faculties.

Similarly, having just resigned yourself to your inability to hold information in your head – such as your children’s names and, betimes, your own – you start reading or hearing bits and pieces of information and thinking you’ve already been given that information, but have forgotten. This may seem trivial, but if the information is important or significant or time-sensitive, it can cause flashes of panic such as an older person can well do without.

I had one on those momentary panic attacks this morning on opening the Sunday National to learn that “Nicola Sturgeon last week set out the next steps on indyref2 after the rejection of a Section 30 order by Boris Johnson“. Did she? How could I have forgotten that? What were these “next steps”?

As the panic subsided I realised this was just a case of a journalist looking for a good scene-setting opening for their article and plumping for one that plays small havoc with the reality. Of course, we’re still waiting to hear what the “next steps” are. A statement has been promised for next week – Wednesday, I think, but don’t take my word for it – when we may learn something memorable.

Not that there will be any great surprises. As Judith Duffy demonstrates when she’s done giving me palpitations, there aren’t that many options and, unless the First Minister has conjured something so novel as to be beyond imagining by anyone else, all the options are known. Judith helpfully lists them and examines each in turn. Almost as if she’s trying to make amends for that opening sentence.

The first, and many feel the most likely option is continuing to push for a Section 30 order, perhaps with the possibility of cross-party support thrown in to give the impression of something new. Not just Section 30 but Section 30 plus! New improved Section 30 with added grudging and condition-ridden concessions to democracy from a handful of British politicians.

Somehow contriving polling indications of a rise in support for independence and/or a new referendum is supposed to add to the pressure on Boris Johnson to change his mind about allowing us to exercise a right he has no legitimate authority to stop us exercising. Pressure that is presently notable only for its absence. Boris Johnson sleeps easy with a very strong hand which includes an 80-strong majority in the House of Commons, sovereignty of parliament enshrined in law by way of the Brexit Act and, of course, the Union. All of which militate against him feeling any pressure at all no matter how often Nicola Sturgeon ‘demands’ a Section 30 order. And no matter how many opposition politicians and assorted celebrities and academics take her side in the matter.

There may be an explanation here for the FM’s delay in responding to Johnson’s totally anticipated Section 30 knock-back. She may be waiting in hope that the first post-election poll(s) will show a significant rise in support for independence. She will be doubly relieved should she get her wish in this regard. She will be glad to see increasing support for independence, of course. But she will also be quietly relieved to have an excuse for continuing to try rely on the goodwill of a British government which, to date, has shown only ill-will in all matters relating to Scotland.

By persisting with the Section 30 process Nicola Sturgeon isn’t only hoping Boris Johnson will change his mind, she’s hoping he’ll undergo a change to his very nature. This conjures images of a cocooned ugly Boris caterpillar emerging as a beautiful butterfly having metamorphosed in the gentle heat of ‘pressure’ from various sources – none of which the now-transformed grotesque Boris-bug held in any regard at all.

Moving on before the corrosiveness of my cynicism about option one burns a hole in my laptop screen, next on Judith’s list is the option of holding a referendum without a Section 30 order. I think this is what is meant by the ridiculous term ‘DIY referendum’. As if there could be any other kind. A flat-pack referendum from IKEA, perhaps? Or a ready-made referendum advertised as requiring no home assembly with free next-day delivery for Amazon Prime subscribers? Maybe the alternative to a ‘DIY referendum’ is one held on our behalf by the Swiss – them having lots of experience. Or maybe it’s just a daft term that we should consign to the bin without further thought.

This option has been suggested by, among others, SNP MSP Alex Neil. He has called for Holyrood to hold its own “consultative vote” on independence. Another rather silly term given that every plebiscite is a consultation with the electorate. But by calling a referendum ‘consultative’ or ‘advisory’ it is implied that the result won’t, or won’t necessarily, have any effect. No immediate or automatic action will flow from the result. It’s a referendum that needn’t cause Unionists any concerns as it will do nothing and change nothing. Other than, maybe, the ‘dynamic’ of the constitutional debate.

What distinguishes this option is that it is normal. This is the way it would be done anywhere else. The government would make a judgement that there was sufficient public demand for a referendum and the whole thing would be dealt with under the auspices of parliament with oversight by some kind of electoral commission. Normality is NOT asking the permission of or inviting interference from any ‘foreign’ agency. If Scotland were a normal country, there would be no obstacles or hindrances to the people of Scotland exercising their right of self-determination.

However it may be dressed up, the real reason for rejecting this option is that Scotland is not a normal country. Scotland is, as has been explained elsewhere, more akin to annexed territory than a nation which is party to a voluntary political union. The difference being that the latter would have direct and unimpeded access to a process by which the political union could be discontinued. Because of the Union, we cannot freely exercise our right of self-determination. And because we can’t freely exercise our right of self-determination, we remain bound by the Union which denies us our sovereignty and our basic democratic rights.

Scotland is effectively annexed by England and trapped. As somebody once said of the 1707 Union, England has caught hold of Scotland and is disinclined to let go.

Next on Judith Duffy’s list of things Nicola Sturgeon might consider as a “next step” is the option of challenging the refusal of a Section 30 order in court. According to the experts, the success of such a legal challenge would be dubious at best. And even winning isn’t winning, because the British state can simply change the law so as to cancel out the win. And even if the case is won and the British state accepts defeat then all that’s been won is confirmation that an independence referendum must be authorised by the British state and a referendum that is critically dependent on the goodwill of the British state which, if it existed, would have obviated the need for a court case.

Apart from the legal issues, and the fact that a court case could be extremely protracted, the Scottish Government taking the British government to court would be a strategic error. As the saying goes, it’s better to ask forgiveness rather than request permission. The Scottish Government should, at all times, act as if it is the democratically legitimate government of Scotland. Because it is! An ‘official’ government wouldn’t seek consent from anyone to hold a referendum. It follows, therefore, that the Scottish Government should act first and be prepared to meet any legal challenge initiated by the British government. In the language of our times, the ‘optics’ are better. The British look like the ones trying to obstruct the democratic process. Which they are!

Which brings us to what I reckon is Nicola Sturgeon’s favoured option – putting things off until the 2021 Scottish Parliament elections. The SNP is good at winning elections. Unsurprisingly, I can’t remember how many elections they’ve won. All of them for the past 12 or 13 years, if I recall correctly. It is understandable, therefore, that Nicola Sturgeon would prefer – perhaps relish – the prospect of an electoral test rather than taking the matter out of the political realm and into the courts; perhaps to languish there for many years.

The problem is that Ms Sturgeon has already come close to exhausting the patience of SNP members and Yes activists. There is a serious risk that failure to deliver the not-quite-promised 2020 referendum will dishearten and even alienate the very people the SNP relies on to man their formidable campaign machine.

And what would be the point? From the outside, it might look like a landslide win for the SNP in 2021 would put even more pressure on the British government. Personally, I’m far from convinced that denying a fourth or fifth or sixth mandate is any more difficult for the British political elite than denying the first. If anything, it’ll get easier with practice.

Yet again with this option we come back to the problem that the Union makes Scotland less than a normal nation. The Union makes Scotland subordinate to England-as-Britain in all matters and at all times. The British state could, in principle, respond to the supposed increased pressure, not by acceding to the request for a Section 30 order, but by abolishing the Scottish Parliament. Something British Nationalists are eager to do anyway.

To the British political mind it makes perfect sense that Scotland’s drive to independence should be permanently halted solely on the grounds that it is a threat to the Union. The self-serving circularity of this ‘reasoning’ would trouble them not at at all.

The final option on Ms Duffy’s list is a referendum on having a referendum. A referendum to prove the level of public demand for an independence referendum. To me, this would seem to combine many of the problems of a so-called ‘DIY referendum’ and the difficulties associated with using the 2021 Holyrood elections as a proxy referendum.

I have long argued that, if the First Minister has the right to demand a Section 30 order then she has the right to hold a referendum. Or, to put it another way, if Boris Johnson has no right to refuse a Section 30 order, as the FM and her ministers have claimed, then he has no authority to block a referendum. Similarly, if the British Prime Minister can discount a mandate for a referendum why would he not discount a mandate to hold a referendum on holding a referendum. The proposal comes up against the problem of infinite iteration. A referendum requires a referendum which also requires a referendum and so on forever and ever. Once you start asking permission, you’re never done asking permission because the very act of asking permission acknowledges the other’s right to demand that you ask permission.

My memory may be defective, but my mind is, I think, still reasonably sharp. Certainly sharp enough to recognise that the statement to be made by Nicola Sturgeon next week may be the most important of her political career. All eyes will be on her. Expectations are high. It’s the sort of situation where a politician would like to have room to manoeuvre. The kind of circumstances when a politician realises the value of options. The moment when they may regret having squandered so many.

None of the options listed by Judith Duffy gets the First Minister out of the bind she has created by her commitment to abiding by the rules set by those who don’t want her to have any options at all. We will learn next week whether she has come up with some way out of the Union entanglement, or whether we’ll all be asked to tune in again next week. If we remember.



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11 thoughts on “Unappealing options

  1. The only way we will tear ourselves from the grasp of Westminster is either through the “Irish” method, which I honestly hope is never required, or by taking direct political action in recalling our MPs, MEPs and along with our MSPs in Holyrood hold a convention of the estates and pronounce the resumption of an Independent state and the revocation of the Act of Union. Should our English masters then choose to invade or occupy our country we are then able to appeal to the UN and other nations as per the UN Charter, drastic. yes,required, I think so!

    Liked by 2 people

  2. My expectations are so low that I doubt I will watch the FM’s speech.

    I know for a fact she won’t tell Johnson to get stuffed (or stronger words to that effect) which is what I would like to hear her say.

    Liked by 1 person

  3. Nicola Sturgeon is a lawyer. Lawyers speak with their heads – sometimes what the heart says is the right way. Let’s hope she listens to her heart for a change.

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  4. all machinations lead to rome basically….. simplest most efficient way, Is an explicit mandate in Holyrood to recall our MPs and negotiate independence, through a snap Holyrood election….. such a mandate in a manifesto would negate section 30, and do what it says on the tin…. recall our MPS tory lib lab and SNP one and all, and hold a national convention to elect DELEGATES with clear delegated powers under that conventions judgement, to dissolve the Union treaties and also, to go to the UN and declare independence and garner 27+ EU nations recognition…..

    then ask the people of Scotland, who would have vote freely in those elections to deliver independence, in a referendum ” heres the negotiated settlement options with England, which would you prefer” etc…… then lets move onto rebuilding our institutions of state like banks and currency and all other nationhood type things a great wee country like Scotland should have….. imagine a world with a free Scotland with a free people…. second enlightenment is very much on its way…. and when the English masses see it for themselves as it happens in Scotland …. well, then the Westminster elite and establishment are f***** lol.

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    1. Only SNP MPs would walk out of Westminster.if it came to it. I would like to think at least some of the Libs would have the sense to do so. We know neither the red tory from Edinburgh, or the blue tories would do so.
      But will SNP recall their MPs?
      It looks unlikely ta this moment.
      And unless they do, they are wasting their time, and Scotland’s time., and allowing Westminster to do as it pleases, simply by their being there, and giving legitimacy to Westminster
      This upcoming, and much vaunted discourse from First Minister, Wednesday better worth the hype.
      But if it is anything like what has so far been suggested, then, I’m sorry, we will find ourselves forced to look elsewhere to get Independence!
      Nothing less than a direct challenge to London will do.
      And today’s stuff about a differing Visa system for Scotland, is meaningless.
      Ok, it is a good idea, and in London ejecting it before before as much as a glance, again shows its disdain and utter contempt for Scotland.
      But in so rejecting it, the First Minster, must in return reject London’s control over Scotland, otherwise, it is what we could well call “Grandstanding” for the sake of it, and nothing else.
      E demand a lot more than this. And in fact, only a lot more will make such ideas possible.

      Liked by 2 people

      1. I’m feeling very depressed about Scotland’s future. I think that the SNP is letting Scotland down and find myself wondering if the Nicola and the mandarins have been co-opted by the British ( =English) state. All they do is grandstand. Is it just to keep the YES supporters happy while colluding to keep Scotland in the Union? If the Treaty of Union has been violated then they must act, but I no longer believe that they want to accomplish independence.

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  5. “… sovereignty of parliament enshrined in law by way of the Brexit Act …”

    The Scottish Government must immediately get advice from a constitutional lawyer in answer to the questions, 1. Does the Act of Parliament which claims sovereignty for the Westminster Parliament over the whole of the UK, break the Treaty of Union, and usurpe the sovereignty of the People of Scotland in Scotland? 2. If that is the case has the Westminster Government in actuality dissolved the Union? 3. Will the properly constituted body that represents the People of Scotland declare the Union to be dissolved pr resile the Treaty of Union? 4. If Scotland acts and the United Kingdom no longer exists before Friday, may Scotland apply to the EU for successor state status and thus retain membership of the EU? These questions are too urgent to be pussyfooting about a referendum. The confirmatory referendum can be held after independence.

    Rees-Mogg has scheduled a discussion of Scotland’s Claim of Right for tomorrow in the Commons. That Claim was agreed to 100% in July 2018. I’m sure R-M does not want to discuss it to agree with it again. this adds urgency to the Scottish Government and Parliament to act.

    Liked by 1 person

    1. Sadly, I suspect it is all too late now. “England as Britain” has moved beyond the point where Scotland can safely intervene.

      It feels like YES will end up walk meekly into a Brexit UK (what ever that looks like) and somehow it has ended up that the SNP kept them in line with: ‘Trust us” ; ‘We have a plan”.

      P.S. Don’t even think “They wouldn’t” or “We wouldn’t let them”. History has repeatedly shown “They would” and they will get away with it.

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