Joanna Cherry is probably mostly right. Peter Wishart is dependably Pete Wishart.
My support for Joanna Cherry’s position is qualified for two principal reasons. The first is that it needs to be made clear that, while the Scottish Government should certainly prepare for a court battle, it must not be the Scottish Government which initiates court action. To support the claim that it is proceeding as it is entitled to, the Scottish Government must proceed as if it was so entitled. Why should the Scottish Government initiate court action to establish the Scottish Parliament’s authority to facilitate the exercise of Scotland’s right of self-determination if it is claimed that the Scottish Parliament already possesses this authority?
The purpose is not to establish either the right of self-determination or the Scottish Parliament’s competence but to assert these.
Consider the ‘optics’. Rather than seem to be trying to extract from the British government something they have the power to withhold how much better, and more honest, is it if the situation is presented as the British government trying to deny our democratic rights.
Also, I see no point whatever in asserting the right to have a pretend referendum. Suppose the court confirms that the Scottish Parliament has competence to facilitate a “consultative” referendum. That still leaves open the question of competence to facilitate the full and effective exercise of our sovereignty in deciding the constitutional status of our nation and choosing the form of government which best suits our needs. And isn’t that what we’re fighting for?
The Scottish Parliament has exclusive democratic legitimacy in Scotland. We cannot and must not settle for it having less than the powers which this entails.
Pete Wishart’s refrain is, as is customary, “Not yet!”. And his insistence on procrastination is as devoid of explanation or supporting argument as ever it was. He boldly asserts that losing a legal challenge would ” set the case for Indy back significantly”. But he doesn’t elaborate. Presumably, we are supposed to just take his word for it. We are not supposed to question his wisdom. Sorry, Pete! I question everything!
I ask the obvious and necessary questions. Where are we now? Where would we be should a court case be lost?
Where we are now is at a road-block in limbo. We are wholly committed to a process which crucially relies on the goodwill and good faith of the British political elite. So, a process which can never lead to a referendum and/or the restoration of Scotland’s independence. We are going nowhere. We have no possibility of going anywhere whilst committed to the Section 30 process. And there seems no way that this commitment can or will be abandoned.
Where will we be if the court doesn’t find in our favour? That very much depends on the precise nature of the action and of the court’s finding. But the worst-case scenario must be that the court upholds the British governments claim that the Scottish Parliament does not have competence to hold a constitutional referendum. (Note that it makes no difference whether this is in relation to a “consultative” or a full referendum. If one is ruled out, they both are. So why aim low?)
It might be argued that this makes us worse off because the British government now has court backing for its anti-democratic position. But all it really means is that the case goes to a higher court. Which is, at least, some kind of movement. And it is movement towards the highest court of all – the one presided over by the people of Scotland.
It is difficult to see how asserting the thing we are fighting for puts us in a worse position than not asserting it. The idea that independence will come if we just continue to accept the Union for long enough makes no sense whatever. There can be no momentum without movement. Right now, because of some bad choices, we are in a place where we have precious little room for movement. Either we remain stationary at the road-block in limbo, or we go drive on and defy the British government to try and stop us.
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Peter A Bell 
Hear, hear. As Joanna Cherry might say but Pete Wishart wouldn’t.
Put the ball in their court so to speak.
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I really don’t see what there is to lose by this approach. Surely any attempt by the British establishment to use the courts to stop a Holyrood referendum would actually accelerate the increase in support for independence. One thing is for sure – if we stick around, just twiddling out thumbs waiting for things to happen on their own, wiaintg for the Scottish people to wake up themslves, the establishment will sooner or later figure out a cunning way of coralling the movement and setting back independence for decades. The SNP have to take the initiative and control the narrative. Fire-fighting against continual media attacks by rebuttal is not enough. Now is the time to strike. Do somehting!
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Absolutely. Take a leaf out of the BritNat playbook and simply assume the right to govern. Make the requisite moves and challenge the London regime to respond. A lose-lose for them, I think.
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PB: “it needs to be made clear that, while the Scottish Government should certainly prepare for a court battle, it must not be the Scottish Government which initiates court action.”
Yeah, Joanna Cherry is definitely talking about that approach:
Joanna Cherry QC
@joannaccherry
Feb 9
Holyrood passes a bill to hold a consultative referendum then lets Johnson mount a legal challenge on whether they had the power to do so. The @UKSupremeCourt decides whether such a referendum is lawful Many legal experts think we would win the argument.
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Why “consultative”? We can win the argument and still lose the court case.
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Peter
To me, here your language/logical argument is at 6s and 7s and fails to land that cutting blow. Normally, you have always found new power in the logic of Scotland’s actual situation…i.e. “Dissolve the Union” is more powerful than UDI.
…If
Scotland’s right of self-determination already exists – how is it ….”regaining independence”….?
…Then
Surely regaining indy is actually the wrong terminology in your argument. It is merely “Dissolving the Union”. Scotlands sovereignty and rights are to either be in or out of any union it so chooses…when ever it chooses.
Hence, why the argument that Scotland already had a vote is absolute shite.
Scotland has the right to leave at any time it so chooses (Geoffrey Cox’s actual argument). Everyone would laugh at a UK PM saying we had a vote, no more. They can say it, but that doesn’t make it so…it only makes them a despot.
It’s Scotland choice. Never let them cast Scotland as a colony…(even if everyone acts as if it is).
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Self-determination and independence are NOT the same thing.
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Peter, you are right that if there is a court challenge then it should be from the British Government. If, however, a National Convention is held, as proposed by Craig Murray, and it resiles the Treaty of Union with England, would not such a challenge be redundant?
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We have to assume the British government will challenge anything and everything in an effort to preserve the Union even in the event of a clear majority in favour of independence. That is why we should not be doing small things. The British government’s challenges are more likely to be successful against small things.
We should also assume that the tendency will be for the courts to favour the status quo. It would be easier for them to rule against small things. They will not lightly set aside the sovereignty of the British parliament. We have to do something which would mean that in ruling for the British government they would be setting aside some universally acknowledged fundamental democratic principle.
This defines the campaign. We should not be focused on trying to prove that independence is a good thing. Independence is assumed to be a good thing anyway. The Brtish nationalists won the No vote by undermining that assumption. By making it seem that independence was ‘a leap in the dark’. We played into their hands allowing independence to be the disputed issue. We should now turn our energies to making the Union the disputed issue.
By establishing that the Union represents a constitutional anomaly that is not compatible with modern democracy we make it difficult for the courts to rule against constitutional reform with the purpose of rectifying the anomaly. And we make it easy for people to vote for such reform.
The reform I’m talking about is the restoration of Scotland’s independence.
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Mr Bell, I think that trying to persuade the majority of NO voters – that is, a hard core of Scottish Unionists, softer Unionists and probably still a majority of rUK residents that the Union is an anomaly and that independence and modern democracy are compatible is going to be well nigh impossible. One NI Unionist, resident in Scotland now, had the temerity to tell a friend that she has an Irish passport, so would still be able to travel to Europe easily and access EU facilities. She had voted NO to Scottish independence in 2014 and shows no remorse. I think the task would be Herculean, myself.
People keep on talking about how Joanna Cherry defeated Johnson in the Scottish court and UKSC, but Johnson was acting illegally – which everyone with a brain could see. That is a very different matter from being challenged on a constitutional matter in the Scottish court and/or UKSC on the Union. That the Union exists is indisputable, in my opinion. It is also indisputable that England-as-the-UK has consistently and repeatedly, with malign intent and self-interest, sought to undermine both the legal nature and the spirit of the Treaty of Union. It can be proved in a court that the Treaty was international in nature (between two, independent sovereign states at the time its was signed) and should, therefore be adjudicated upon in the ICJ rather than a British court at any level. It could be ‘sound’ in the Scottish court before being remitted to the international court. This has the advantage of circumventing any requirement for a majority for independence; if the country is divided down the middle, fifty-fifty, this is the way to settle that dispute, and it would take nothing away from any effort thereafter to hold a referendum.
I personally believe that we would lose a second indyref because this is not about Scottish independence any more: it is about England’s Manifest Destiny; and we stand in the way of that. Johnson is a very dangerous man, and he is just the PM to to change the UK forever. To put it bluntly, they want Scotland: Scotland’s assets and territory; Scotland’s resources and defence situation. What they do not want are Scotland’s people to stand in their way. If we think that is ridiculous, remember the Chagos Islanders. Nobody stands in the way of England’s ruling elite. I don’t say they’d do that to us, but they will do something equally insupportable. Five million against 55 million. If we don’t leave this Union very soon and stop pandering to hostile elements within Scotland, the Scots and Scotland will become just another footnote in history. Greater England is the goal now, as, indeed, it has always been. Maybe erasure from the map is our Manifest Destiny?
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I keep urging people to be realistic. Then, when they do as I ask, I want to complain that they’re being too pessimistic. Just can’t seem to get the balance right.
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Thanks for this Peter. I think this is wise.
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This article makes it clear what we are up against.
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