I had an opportunity last night to speak briefly with a ‘senior figure’ in the SNP. I asked him if he and his colleagues in the Scottish Government were aware of the growing clamour among grassroots independence activists for a commitment to something “meaningful” in the party’s manifesto for the Holyrood election in May. When asked to expand on that I said that my preference would be a firm undertaking to assert the primacy of Holyrood on the basis of the sovereignty of Scotland’s people and the democratic legitimacy of the Scottish Parliament.
He showed no signs of having heard, simply rattling off some boilerplate about the 11-point plan. Although he did seem a little taken aback when I pointed out that what I was suggesting was what the 11-point plan proposed anyway and I was merely asking that it be made explicit. Made so that people could have confidence in it.
What I pointed out was that the 11-point plan (I don’t like calling it a ‘plan’) proposes to go ahead with a referendum when the Scottish Government has exhausted all the ways to humiliate itself and thereby us – not to mention compromising the sovereignty of Scotland’s people. Any referendum that is held not having been sanctioned by the British Prime Minister must be sanctioned by the Scottish Parliament. To do that the Scottish Parliament would have to assert its competence in constitutional matters (UDI in all but name.) Which is exactly what we want.
The ‘senior figure’ seemed a tad nonplussed by this observation. He certainly didn’t respond in any meaningful way.
So, why is the SNP so reluctant to state clearly and unambiguously in its manifesto that this is what it intends to do? Why do they balk at promising to assert the democratically legitimate authority of the Parliament that we actually elect?
The suspicion must be that the bit of the 11-point plan that says the Scottish Government will go ahead with a referendum having exhausted all that was mentioned above and the tattered remnants of my patience, is merely a ruse. A bluff which they hope will force Boris Johnson to grant a Section 30 order – which itself would be disastrous for the independence campaign. If, as it seems, they haven’t even considered the stuff about asserting the competence of the Scottish Parliament then the suspicion must be that they haven’t thought it through because they’ve no intentions of actually doing it. They have no intention of holding a referendum without Boris Johnson’s consent.
Boris Johnson isn’t the only one being bluffed here.
Peter A Bell 
It is also possible that this senior figure has not one iota of understanding of your position.
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Given who it was, I doubt that very much. Which confirms only that it wasn’t Pete Wishart.
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🙂 I think you might be surprised how difficult your position is to those encumbered by vested interests.
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Reblogged this on Ramblings of a now 60+ Female.
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Thanks for bringing my attention to this, Peter. I’ll look into it.
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Trying to explain this to people on social media who appear, at the end of the day, to be happy to be ‘bluffed’. Sick of the mantra “Vote SNP or we won’t get independence” when it seems blatantly obvious that the SNP have no intention of pushing for independence.
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Which doesn’t mean we don’t have to vote SNP. We have to do that to keep out the British parties, who are just waiting for a chance to pounce. What we have to do – as it’s the only option left – is to put massive pressure on the party to rethink its whole approach to the constitutional issue.
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I saw a story headline in The NATIONAL the other day that Peter Wishart was saying it would be 2022, before there would be another Referendum.
Didn’t bother with reading it, or to follow the comments etc.
That one story title, pretty much said it all.
As I’ve said previously, too many in SNP seemed to have become the Devolutionist Party for Scotland, but would be happy with Independence at some point as being a better deal, but they have no real intentions of pushing for it.
Still we are left no option but to vote SNP in May, as the alternatives don’t bear thinking about.
There is that possibility of a alternative for the List system, much the way many would vote SNP at constituency level, but Green for the List.
I have no trust for the Greens ow,
bit have yet to wonder f the alternatives exist, as we would and actually need them to.
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If the SNP follows the suggestion which is being attributed to myself in the NEC because I raised in one of the sessions then we have much more leeway in holding a referendum. Or maybe I should say SOME more leeway. Asserting the primacy of the Scottish Parliament will throw a giant spanner in the Brithis Nationalist juggernaut bearing down on us. Imagine if the Sewell Convention was actually a thing. A thing with fucking big teeth. The British Parliament won’t be able to legislate in Scotland. Everything it does will be subject to legal challenge.
In these circumstances it might do no harm if the referendum were put off until 2022. But NOT for Pete Wishart’s reasons.
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Well Peter, hold on to that thought “Asserting the primacy of the Scottish Parliament”. From the Lady Carmichael judgement on Keatings:
“[136] In relation to point (6) it is relevant to note, first, that the pursuer is an enfranchised voter in a system of representative democracy. In the forthcoming elections he and every other voter has the right to vote for representatives in the Scottish Parliament. It is correct to say that Parliament derives its authority, strength and legitimacy from the electorate. It is, however, the elected members who then go on to make judgements, in their capacity as legislators, as to what is in the country’s best interests as a whole: Lord Hope, AXA, paragraph 49. The representatives derive their authority from the voting decisions of the pursuer and others enfranchised to vote in the election.”
and this from earlier – for the pursuer, Keatings, a bit out of context:
” Legal theory must give way to practical realities in a way that was incompatible with a classically Diceyan conception of Parliamentary sovereignty”
I don’t totally get this, but Dicey having been something people nod their heads sagely at, has attracted more and more non-Diceyian arguments, and if I have this right, Dicey is pre-devolution but used to squash Scotland’s interests (putting it in an extreme way).
So anyway, it could be that we’re looking more at this situation for the future, from the Scottish Judge: “It is correct to say that Parliament derives its authority, strength and legitimacy from the electorate.” – an argument O’Neill made at least in his previous oipinion, with the Parliament in mind being the Scottish one.
We’ve had Devolution since 1999 with people voting for representatives for the Scottish parliament. This is the 6th election, in the 23rd year. That’s a lot of authority, strength and legitimacy. Seems to me nothing is neccessarily reserved any longer – the Scotland Act was our starter for 10. But hey, IANAL.
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That is almost precisely my thinking. People tend to treat the law as prescriptive. A set of written rules. And at one level it is. But it is also an organic thing. It grows and develops. The law is there to serve society. If it were the other way round there could be no social progress.
This is probably true of constitutional law even more than of civil law or criminal law etc. Because constitutional law is about power and its use it is fundamental. Everything comes from and goes back to the constitution.
When I first read that passage from the Lady Carmichael judgement on Keatings:a few days ago it occurred to me that something useful may have come out of the process after all. Although I pretty certain there must be a cheaper way of going about it.
My own thinking starts from the question: How does A parliament become THE Parliament? It cannot acquire this status by the grace of another parliament. Power is not given, because the act of giving is in itself an assertion of superior power. Power that is given must therefore in reality remain with the giver. Power is only ever taken. There is no such thing as a ‘permitted coup’. When power changes hand it is always a disruptive act – by definition. Democracy ensures that the disruption is not violent… usually.
The bit about legal theory giving way to practical realities is, as I read it, an acknowledgement of the fact that constitutional law can change by means other than the formal legislative process. That new practical realities may require that the law change accordingly. In terms of constitutional law, there are practical realities created by events and developments in the real world which the constitutional settlement must accommodate.
The idea has taken hold – or has been inculcated – that Scotland’s independence can only be restored by a process set down in law. A process, moreover, so arcane as to be unknowable to the average person. Lady Carmichael in her judgement is acknowledging the reality that where the people go, constitutional law must follow. If the electorate create a new practical reality then the law better run to catch up.
The question then becomes one of how this new practical reality is created and by what criteria is it judged to be a new practical reality that the law must follow rather than resist. This is why I maintain that a government with a super-mandate is what we require as an outcome of the election and NOT a super-majority. Both derive from the people. But the latter gives authority to dispose which must be subsequent to – and in that sense inferior to – the authority to propose. A super-majority empowers the Parliament. But a super-mandate empowers an idea. The idea of the supremacy of the Scottish Parliament.
I just had what may be a beautiful idea as I was finishing that last paragraph. I have previously used the term and hashtag #ScottishUDI to convey the sense that UDI is not a fixed thing but is different according to the context. It occurs to me that what we are talking about here is the people’s UDI. The people effectively declare independence by awarding a super-mandate to the idea of the primacy of the Scottish Parliament. The British state my challenge this. In fact, they all but certainly will. They will be anxious to (re)impose the concept of parliamentary sovereignty. But they will then come up against Lady Carmichael’s ruling that practical realities may take precedence over the constitutional law. OUR practical reality takes precedence over THEIR law.
AFTERTHOUGHT: It just occurred to me that this concept of the new practical practical reality which the law must accommodate describes nicely the way the fait accompli works in politics. The idea that something is already done so we must learn to live with it. Except that the fait accompli generally lacks the legitimacy afforded by a popular mandate. It might be a new practical reality created by military force, for example. Or by being the dominant party in an asymmetric political union. Or by being the executive in a nominal democracy where the executive has usurped a large part of parliament’s power.
These practical realities do not, of course, have the legitimacy of those for which there is a practical mandate. They are practical realities which must be accommodated by the law only if they are conceded to by the people – actively or passively. They cannot become established realities if they are resisted effectively.
It is the fait accompli of Brexit that the British state will use – is using – to unilaterally impose a new constitutional settlement on Scotland. This must be effectively resisted.
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