Andrew Tickell has a remarkable talent for making the fog of legal argument a bit less opaque – and doing this in an entertaining way. Reading this illuminating article I was reminded of an observation Dr Tickell made in a commentary on the Keatings court action in this newspaper (Andrew Tickell: Crowdfunded indyref2 court bid may be a bad waste of good cash).
It is sometimes assumed legal clarity will be politically useful. This isn’t necessarily the case. Alex Salmond was able to exploit legal uncertainty effectively in the run-up to the Edinburgh Agreement. A negative decision on Holyrood’s legislative competence at this stage in the electoral cycle can only restrict the Scottish Parliament’s scope to put political pressure on Westminster. I don’t understand why we should be doing the UK Government’s work for them. I don’t see why we should be working to spare them the political hit of trying to frustrate referendum legislation when the pro-independence majority in Holyrood actually passes it.
Alex Salmond exploited the legal uncertainty around the competence of the Scottish Parliament by acting as if he had certainty on his side. He didn’t seek certainty or wait until it came by some other means. He assumed certainty. And it worked. We had the referendum in 2014 because Salmond acted boldly and decisively. And imaginatively. In the absence of statute or precedent he just made it up as he went along; all the time conducting himself as a political leader with the full weight of the law and democratic principle behind him. He talked the talk. He walked the walk. Where the law left a space devoid of certainty he filled it with his own.
It’s not 2014 and never will be again. As Andrew Tickell notes, we live in a very different world. We operate in a markedly different political environment. Only the uncertainty remains. That uncertainty is arguably more valuable now than it was when Alex Salmond exploited it so adroitly. The Keatings action risks depriving us of that precious incertitude.
Assuming the uncertainty survives the attempt to wholly or even partially remove it, we might well ask if there is more need for Salmond-style exploitation, or less. We may usefully ponder whether that brand of politics is appropriate in the this new political environment. We may wonder whether Salmond’s boldness, decisiveness and imaginativeness might be just as efficacious in today’s political context.
I venture to suggest that there is a greater need than ever for political leadership that is artful, purposive and adventurous. In support of this contention I ask only that you look at how Scotland’s cause has fared in the period since 2014 when these attributes have been entirely absent from our political leadership, replaced with caution, indecision and sterility.
The SNP under Nicola Sturgeon has proceeded almost as if the first independence referendum never happened. Looking at the timeline from early 2015 to now it seems that we were taken back to square one. That we were given a fresh non-start. The fight to restore Scotland’s independence was put on hold. All that remained was the increasingly stale rhetoric and the odd ‘initiative’ to prevent – or postpone – the onset of rigor mortis in the body of the independence movement.
I would go further. I would maintain that what is now needed is leadership which is combative rather than bold, assertive rather than decisive, trail-blazing rather than imaginative. It is not just time and opportunity that has been squandered but the cohesiveness of the SNP and the Yes movement. Leadership which might have maintained these is now inadequate. What is now needed is leadership which will act in the absence of that cohesiveness rather than hoping the whole will repair itself when the time comes. Whenever that might be.
What is needed now is leadership which actually leads. Leadership that will build a road to independence rather than waiting for a road to open up. Leadership that will forge ahead and damn the obstacles rather than hoping those obstacles will be removed.
Nicola Sturgeon has been very good at managing the situation that she inherited when she became party leader and First Minister. So good has she been at managing the situation she inherited that she has been increasingly managing the wrong situation as the situation developed and changed. Only a fool would discount Nicola Sturgeon’s ability to handle the day-to-day business of running the country. You’d have to be insane or a British Nationalist fanatic (tautology?) to doubt her ability to manage a crisis of any severity. But the fight to restore Scotland’s independence is just that – a fight. It doesn’t need to be handled or managed. It needs to be confrontational and defiant and even at times heedless of potential risks.
Scotland’s independence will not be restored by negotiation. With whom should we negotiate? Who else owns our sovereignty? Who else has a role in our exercise of our right of self-determination? Negotiation will come in the wake of independence being taken. Scotland’s cause needs leadership that is prepared to take whatever power is needed in order to be able to take all the powers that accrue to a normal nation.
I don’t suppose this is what Andrew Tickell is hinting at. If this or something like it was what he intended to imply by his remarks about Alex Salmond then he has left himself plenty of room for plausible deniability. But then, he would wouldn’t he? He’s a very clever lawyer.