In this article I hope to set out and explain the arguments which I take with me to the SNP National Assembly on Sunday 24 January 2021. This National Assembly was called in response to protests about discussion of alternative routes to a referendum and independence being effectively blocked at SNP Conference last November. As a prelude to the National Assembly the Cabinet Secretary for the Constitution, Europe and External Affairs Mike Russell today published something that purported to be a “routemap” to a new independence referendum. I have expressed my view of this paltry ‘plan’ in an earlier article. Here I will content myself with describing it as inadequate.
My fear is that the National Assembly will end up being a stage-managed affair in which the SNP leadership’s approach to the constitutional issue – labeled Plan A – is set against the so-called Plan B proposed by Angus Brendan MacNeil MP and Councillor Chris McEleny, to the exclusion of any other arguments.
The problem with Plans A and B is that both give precedence to the Section 30 process and thereby to the British state. Both plans take as their starting point the sovereignty of Westminster. Proponents of these plans will protest. But there is no way to avoid the fact that to request the permission (or ‘agreement’ or whatever euphemism is chosen) of the British Prime Minister is to seriously compromise the sovereignty of Scotland’s people.
What we are talking about here; what is meant when we use the shorthand term ‘referendum’, is the exercise of our right of self-determination as guaranteed by the UN Charter and numerous international conventions. Nobody denies that Scotland has the right of self-determination. Even the British state formally acknowledged this when David Cameron signed the Edinburgh Agreement for the 2014 referendum. Even Boris Johnson and his accomplices in criminal ineptitude do not go so far as to say outright that Scotland is not a nation and that Scotland’s people do not have the right to choose the form of government that best serves their needs, priorities and aspirations. They maintain the pretence of democracy by saying only that the exercise of our right of self-determination is constrained by the stipulation that it must first secure the cooperation of the British government. They claim this is not a veto. But if the exercise of our right of self-determination can only proceed with the cooperation of the British establishment and that cooperation can be withheld without justification then the difference from a veto is merely a matter of semantics.
If the people of Scotland are sovereign there can be no such veto. There can be no constraints on the exercise of our right of self-determination other than the practical consideration that must be taken into account by the government which we elect to implement the process by which we exercise our right of self-determination. Constraints that the democratically elected Scottish Government can be required to justify.
If the people of Scotland are sovereign then our right of self-determination most certainly cannot be constrained by any external agency or foreign government which is not accountable to the people of Scotland. To request a Section 30 order is to acknowledge the authority of the British government to impose conditions on the exercise of our right of self-determination. Thus, such request compromises the sovereignty of the people of Scotland.
I do not consent to the sovereignty of Scotland’s people being compromised. I do not consent to any fraction or degree of our sovereignty being traded for promises of cooperation from a state whose promises cannot be trusted. Cooperation which will not in any circumstances be forthcoming. Cooperation which is not in any case required. All we ask from the British political elite is that, to whatever extent they are able, they abide by the letter and spirit of the international laws and conventions which govern the entitlement to and exercise of the right of self-determination.
I have set out my concerns with and exception to the Section 30 process at length elsewhere. I cover the most essential of these objections here by way of introducing my ‘plan’ and because it is so important. The sovereignty of Scotland’s people (popular sovereignty) – and the right of self-determination which attaches thereto – is one of the three pillars of Scotland’s cause. An understanding of how a Section 30 order conflicts with popular sovereignty is necessary if the fight to restore Scotland’s independence is to be conducted effectively. Because that fight is a fight against the Union from which Section 30 derives. Section 30 of the Scotland Act (1998) is a restatement of the parliamentary (Westminster) sovereignty imposed on Scotland by the Union.
The concepts of popular and parliamentary sovereignty are totally incompatible and mutually exclusive. They cannot exist together. That both have survived to some extent in Scotland is explained by the extent to which the concept of parliamentary sovereignty has been forced on us and the resilience of the concept of popular sovereignty. The conviction that the people are the ultimate source of all legitimate political authority is deeply ingrained in our culture. It has been suppressed. It has never been extinguished. The spark that endured has been fanned into flame by the reconvened Scottish Parliament and fueled by the increasingly iniquitous impositions of the British state.
The second pillar of Scotland’s cause is the distinctiveness of Scotland’s national identity and political culture which is perhaps nowhere more clearly manifested than in the contrast between popular and parliamentary sovereignty. It is that distinctiveness, together with the threat posed to it by the rise of British Nationalism, which reinforces the imperative that we retake the capacity to choose our government according to our own criteria.
The third pillar of Scotland’s cause is the democratic legitimacy of the Scottish Parliament. And Westminster’s total lack of democratic legitimacy. of which more in due course.
The 3 pillars of Scotland’s cause
- Popular sovereignty – the sovereignty of Scotland’s people
- Distinctiveness – the distinctiveness Scotland’s national identity and political culture
- Democratic legitimacy – the indisputable democratic legitimacy of the Scottish Parliament
Manifesto for Independence
Repudiate the Section 30 process
Some months ago I set out what I glorify with the name Manifesto for Independence. It is not that, of course. It is at best the bare bones of a Manifesto for Independence. But my hope and intention was merely to promote discussion of how we approach the constitutional issue. This is a discussion which has been been continuous within the SNP throughout its existence, always adapting to constantly changing circumstances.
Formal discussion of how we might approach the constitutional issue was largely suspended for the duration of the 2014 referendum campaign as the party concentrated on the process settled on by Alex Salmond. But the discussion never restarted in the wake of the 2014 defeat. Nicola Sturgeon declared her total commitment to the Section 30 process and that was supposed to be the end of the matter. It clearly wasn’t. Or it wouldn’t have been felt necessary to call the National Assembly to (hopefully!) discuss alternatives.
Hence the first step in the Manifesto for Independence has to be the repudiation of the Section 30 process. So long as the Section 30 process forms part of any plan to restore Scotland’s independence that plan must fail. There is no route to independence through a legal and constitutional framework derived from the Union. There cannot be a ‘legal’ way to restore Scotland’s independence in a context which makes any viable process to this end illegal. Any plan to hold a free and fair referendum on the question of the Union which might succeed must and shall be pronounced unlawful by the British state.
If Scotland’s independence is to be restored it will necessarily be a process which is outside the legal and constitutional framework established for the purpose of protecting and preserving the grotesquely anachronistic, inherently asymmetric and plainly dysfunctional Union. It will necessarily be ‘illegal’ in the eyes of the British establishment. Our task is to create a process which is impeccably free and fair and therefore perfectly legitimate in the eyes of an international community which respects the UN Charter and the various applicable laws and conventions rather than local laws enacted for anti-democratic purposes.
Renouncing and repudiating the Section 30 process signals our readiness to proceed with the restoration of our independence under the auspices of our own Parliament and other democratic institutions and to do so before the infrastructure of Scotland’s democracy is dismantled by the British state.
Assert the primacy of the Scottish Parliament
Other than the declaration of intent outlined above, the first step in the process of restoring Scotland’s independence must be to confirm the Scottish Parliament as the only legislature with legitimate political authority in Scotland. This primacy must be asserted. There is no other way in which it can be acquired. The Scottish Government, acting on a clear mandate from the sovereign people of Scotland, must propose that the Scottish Parliament assert its competence in all constitutional matters relating to Scotland. When the Scottish Parliament passes this resolution it will effectively be a declaration of Holyrood’s primacy in all matters. Because everything flows from the constitution.
That this is the necessary first step should be obvious. How can Scotland’s independence be restored unless we have a parliament with the power to authorise the process by which this is done? This power must be taken – under a mandate from the electorate. It cannot be acquired by any other means. Power is always taken. It is never given. Anything that is given in the guise of power will ultimate be exposed as nothing of the sort. Power devolved is definitively power retained.
Power must be taken. The primacy of the Scottish Parliament must be asserted. Scotland’s independence must be restored. The only stipulation being that all of this must be done in a manner which is totally and transparently democratic.
Recall MPs and convene National Convention
Having asserted the primacy of the Scottish Parliament we will neither be entitled to nor have use for representation at Westminster. One of the first acts of the Parliament must therefore be to recall Scotland’s MPs to serve in a National Convention comprising all Scotland’s nationally elected representatives along with such representation from civic Scotland as the Parliament deems appropriate.
The role of the National Convention shall be to advise and support the Scottish Parliament. It will have no powers other than those assigned to it by the Scottish Parliament. Its purpose will be to supplement the democratic legitimacy of the Scottish Parliament.
Propose dissolution of the Union subject to referendum
It should be understood that there are almost certainly a number of ways in which the Scottish Government and Scottish Parliament supported by the National Convention can proceed. It goes without saying that there will be challenges from the British state. The idea that there might be a route to independence which cannot be challenged is pure folly. The point of independence is that we face such challenges as an independent nation. We must, therefore, be prepared to face challenges in the process of restoring our independence. Particularly given the nature of the opposition to Scotland’s cause. Every nation that has restored its independence had to deal with challenges of one kind or another. Some great. Some small. Why would Scotland expect to be different?
It is important, therefore, that we take every opportunity to determine the ground on which such challenges will be fought. We must take positions that are easily defended. We should not be the ones mounting challenges. If we hold the sovereignty of Scotland’s people to be unimpeachable, why would we not act accordingly. Power is only ever taken. It must be assumed. If you assert power as of right you don’t seek confirmation from anyone. If anyone wants to claim that you don’t have that power then it is up to them to prove it.
The corollary to this is that you should only assert powers which you are able and willing to defend and that that you should do so in a manner that aids the defence of that power. That means being mindful of the way in which it will be challenged. Take as an example the matter of asserting the primacy of the Scottish Parliament. If this is to be challenged by the British state would they not have to argue that Westminster has greater democratic legitimacy in Scotland than Holyrood? Would they not also have to argue that the people of Scotland are not sovereign? How would you rate their chances of success?
A proposal by the Scottish Government to dissolve the Union subject to a referendum is one way to go. It has the advantage that it makes the Union the contentious issue. It necessitates a total reframing of the constitutional issue. With self-evident consequences for the campaign in the referendum. Which is no bad thing.
To challenge this proposal Unionists would be obliged to argue that Scotland does not have the right of self-determination. Those concerned about ‘international recognition’ might want to ponder which side of that argument is going to find favour with the international community.
Hold a referendum to decide the question of dissolving the Union
Or to put it another way, facilitate the exercise of Scotland’s right of self-determination. Do so by way of a process entirely made and managed in Scotland and designed to be impeccably democratic.
This referendum cannot be ‘illegal’ having been authorised by the Scottish Parliament. Cooperation with the administration of the vote would be compulsory. Any public body refusing such cooperation would be acting illegally.
Again, I do not attempt to be prescriptive about how it is done. I simply say that there must be a referendum to confirm the proposal to dissolve the Union and restore Scotland’s independence. I do not doubt Scotland’s ability to conduct such a democratic event in a way which amply meets the standards required by the international community.
Nor do I have anything to say about what happens next. Obviously, it depends on the outcome of the referendum. If the proposal to dissolve the Union is confirmed in a democratic vote then I would anticipate an interim government charged with enacting a provisional constitution establishing Scotland as an independent nation and setting the date to be celebrated henceforth as Scotland’s Independence day.
I envisage that we would then proceed to elections and the process of adopting and ratifying a full written constitution. Much of the work on this has already been done. There is an abundance of material which can feed into a crowd-sourced constitution. This would then have to be approved by the electorate. It has all been done before. There is no rational reason to suppose Scotland cannot do what scores of other nations have done in the past.
I put the foregoing forward not in the hope or expectation that it will be accepted as a fully-formed plan. Although it may be as fully-formed as what is being offered by the SNP leadership. I put these ideas on the table hoping for no more than that they might prompt and encourage wider and deeper discussion of how we take Scotland’s cause forward building on the foundation of the sovereignty of Scotland’s people; the distinctiveness of Scotland’s national identity and political culture; and the democratic legitimacy of the Scottish Parliament.
As always, I am happy to take questions and comments.