Legal and constitutional

With all due respect to Professor Michael Keating MA, PhD, FBA, FRSE, AcSS, Doctorat hons.,MAE., I’m no academic but I’ve been saying this for years. A referendum entirely made and managed in Scotland authorised by and under the auspices of the Scottish Parliament and satisfying all the internationally recognised standards for the expression of a nation’s right of self-determination could only be ‘illegal’ in the trivial sense of breaching local laws intended to constrain Scotland’s right of self-determination and prevent its expression in a free and fair manner.

Such a referendum must be constitutionally sound. Given the sovereignty of Scotland’s people and the unquestionable democratic legitimacy of the Scottish Parliament it could not be otherwise. Which is why the first act of any Scottish Government intending to restore Scotland’s independence must be to assert the primacy of the Scottish Parliament. Only when this is done can the Parliament authorise a referendum.

The British state will almost certainly challenge this through the courts. But if in asserting the primacy of Holyrood the Scottish Government is acting on a clear mandate from the people of Scotland, and if the asseveration of the Scottish Parliament’s competence in all constitutional matters is done in the appropriate manner then the British government will be put in the position of having to argue in court that the people of Scotland are NOT sovereign and that Westminster has greater democratic legitimacy in Scotland than Holyrood.

They would be obliged to maintain that Scotland is not a nation in order to maintain that Scotland does not have the right of self-determination. They would have to make the case that Scotland does not have the right to determine its own constitutional status because if they allow that Scotland does have the right of self-determination they would then have to argue that the British state has the authority to constrain that right. Which they cannot have if Scotland is a nation with the same inalienable right of self-determination as any other nation or people.

In all of this the British government would be arguing against relevant provisions of the UN Charter and various UN declarations and internationally accepted conventions. It is entirely possible that the prospect would be too daunting for them. Or at least for their legal advisers. It might be that the British political elite would decide at this point that their interests would be best served by offering negotiations.

This will only be a possibility if the Scottish Government acts decisively and with absolute determination. The slightest sign of weakness and the British will persist in their efforts to deny Scotland’s democratic rights. That level of determination requires the backing of a massive popular mandate – as well as political leaders with the courage to confront the British state without hesitating or flinching.

Two things must happen. Given that the only credible party of government in Scotland is the SNP, the party must immediately adopt the #ManifestoForIndependence (see below). Then the Yes movement must unite in an effort to secure for the post-election Scottish Government the most massive mandate possible. The goal should be a Scottish Government elected on the basis of a manifesto which includes a solemn undertaking to take specific actions within a defined timeframe and with a working majority as well as an overwhelming vote share on both ballots.

The first and most important of these undertaking is the asseveration of the Scottish Parliament’s primacy. This to be followed in timely manner by a proposal to dissolve the Union subject to the approval of the Scottish Parliament and the consent of the Scottish people as determined by means of a free and fair referendum. A referendum which would be both constitutionally sound and entirely in accordance with the only laws that matter – the laws of Scotland.

Only then can we truly say that we are in the process of restoring Scotland’s independence.




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19 thoughts on “Legal and constitutional

  1. I’m not hopeful that the SNP will adopt an assertive approach in this forthcoming election as they seem to be simply advocating a presidential style election campaign with ‘Mother Nicola, she led us through COVID’ as the theme.

    Given that recent surveys have indicated nearly half (47%) of those expressing a view reckon that she has not been entirely honest about the investigation that took place into Alex Salmond, and over 70% reckon she should resign if found to have broken the Ministerial Code, that’s not a clever strategy.

    The SNP must start forcefully stating that the people are sovereign, promote Independence and layout the iniquities of, and aberration that is, The Union.

    And very, very fast.

    Liked by 2 people

  2. It would be great if the SNP were to adopt your Manifesto, Peter, but I doubt that independence is anywhere near the Party’s policy agenda, never mind at the top of the list.

    It appears more concerned with appeasing a tiny minority of loud eejits with a narrow agenda, in the name of earning woke points for its Dear Leader, than of advancing the case for democracy.

    Having held my nose to vote for them since the disastrous 2016 election, my patience with the current SNP has long since expired and now I have nobody to vote for. The Greens are even crazier, and I won’t vote for a Unionist party. The best I can do is spoil my ballot.

    Liked by 3 people

  3. The Scottish independence movement has tied itself in knots about justifying a second referendum since the results of the 2014 vote was announced.

    It seems to me that this has been led by a failing, corrupt SNP leadership who should have been making a case for independence instead. Rather than try to make Westminster out to be an abuser we must leave no matter the consequences they should have laid out a positive future for Scotland alongside a successful Union.

    Nicola Sturgeon had her chance to secure a referendum by supporting Theresa May’s path to Brexit. Why should Scotland fight to block Brexit if we planned to leave the UK?

    May would have been unstoppable in Westminster with the SNP votes guaranteed and she would have paid the price of a referendum – perhaps even a framework for ongoing votes – in return.

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  4. What’s the Plan? Mar
    11
    by weegingerdug
    James Kelly makes a vitally important point in his blog post on Wednesday. https://scotgoespop.blogspot.com/2021/03/the-time-to-decide-how-were-going-to.html He asks an important question of those independence supporters who are vocal in their criticisms of the SNP on social media and who loudly proclaim their lack of trust in Nicola Sturgeon, saying that while they remain committed to independence, they are not going to vote SNP in the Holyrood elections which are just a couple of months away. When you point out to them that as independence supporters we cannot cease making the case for independence, that we must be unstinting in our efforts to formulate arguments that will appeal to undecideds and soft-no voters, some respond with vitriolic anger that they’re not going to wheesht for indy. Well you are not being asked to wheesht for indy. You are rather being asked a quite different question, one to which neither I nor James Kelly have yet to see any sort of answer – to paraphrase somewhat – what is your plan B? Or indeed the plan A?
    The SNP’s critics are exceptionally vociferous in their demands that the SNP formulate a plan B to cover the eventuality that the Johnson Government refuses to agree to a section 30 order. Well the rest of us are entitled to ask such critics what is their plan if their incessant and unceasing attacks on the SNP in general and Nicola Sturgeon in particular only succeed in reducing the SNP’s vote share to the extent that the party goes into reverse at the Holyrood election and loses seats, allowing the British nationalists to deprive the pro-independence parties of a majority? Then there will be no chance at all of a referendum during the next five years.
    Frighteningly this will mean that there will be nothing at all to prevent the Tories from gutting the Scottish Parliament of meaningful powers and taking legislative steps at Westminster to prevent any future Scottish Parliament from holding another referendum without the express consent of Downing Street. Right now the only thing that is keeping the Johnson administration in check is the fear that it might have to formulate a case for the continuation of Westminster rule in a future referendum. Once deprived of that fear there will be absolutely nothing to prevent them from neutering Holyrood and ensuring that they will never again have to fear another independence referendum. They could introduce legislation to make future independence referendums or even plebiscite elections unlawful and put Scotland into a Catalan style trap. After doing that they will pander to the English nationalists in their ranks and abolish the Barnett formula in the name of so-called “fairness”. Scotland will see massive and swingeing cuts to public services and will be powerless to resist.
    The current critics of the SNP are not being asked to wheesht for indy – they have not shut up with their criticisms and attacks. They are being asked to speak up and speak out to explain how they propose to deliver independence within the next five years and how they are going to defend Scotland from a vindictive Conservative party which will not hesitate to put the boot in once the immediate threat of another referendum has been lifted. And if you are worried that the SNP leadership is authoritarian and undemocratic, just wait and see what Johnson Gove and the Conservatives are capable of. Their destruction of public services, health and social care, and employment rights represent a serious threat to the rights of everyone up to and including the right to life itself. It has already been claimed that the Tories’s ideologically driven austerity has been responsible for 130,000 avoidable deaths. https://www.theguardian.com/politics/2019/jun/01/perfect-storm-austerity-behind-130000-deaths-uk-ippr-report They will be responsible for many thousands more before they are done.
    Many of the critics of the SNP claim that Nicola Sturgeon has no intention of delivering another independence referendum. Her supporters vehemently disagree. It seems that certain opponents of the current SNP leadership are determined to replace the possibility that there will not be another referendum within the next five years with the absolute certainty that there won’t be. They are hell-bent on burning down the SNP with no sign of a credible vehicle to replace it. Their a scorched earth policy will force us to live, or rather die , with the consequences of Conservative rule.
    It is not a fact that Nicola Sturgeon will not deliver another referendum in the next five years should the SNP win a majority in May, it is an opinion, and a contested opinion at that. However it is a fact that if there is no pro-independence majority in Holyrood in May we can be absolutely certain that there will be no second independence referedum before 2026, by which time we will have a neutered Scottish Parliament and quite possibly no lawful routes to an independence vote left open to us. Replacing the possibility that you won’t get the outcome you desire with the absolute certainty that you won’t get the outcome you desire is not a logical or a sensible political strategy.
    So far the only strategy approaching a plan from the SNP’s critics are calls to vote for a minor party on the list. The only hope for success with such a strategy is to have a single pro-indy list party led by a person of political stature who is well known to the wider public. Additionally that party needs to stand on the single issue of independence and not to muddy the waters by taking a partisan stand on divisive issues which are not directly related to independence. A far more coordinated, better publicised, and better organised, campaign for a different pro-indy party on the list – RISE, failed dismally in 2016. The current attempts will far no better, for all the noise some of their supporters make on Twitter.
    We currently have two minor pro-indy parties, Action for Independence and the ISP, neither of which enjoys a high public profile and which have both failed even to register in opinion polling. The ISP is most notable for taking a strong stance against the GRA, meaning that it will fail to gain any traction amongst independence supporters who have no issue with the measure – a not inconsiderable constituency. Even worse these two parties have even been unable to agree not to stand against one another and so are most likely to fail to attract enough support to gain any MSPs and to succeed only in splitting the pro-indy vote on the list , and allowing an opponent of independence to sneak in under the wire.
    As has been pointed out numerous times by James Kelly, you can only hope to game the d’Hondt system successfully if you know in advance what the result is going to be in the constituency vote. It follows then that it is only worthwhile to vote for one of these new pro-indy parties on the list if you can be absolutely certain that the SNP will not pick up any seats on the list in your region. In most of Scotland no such certainty exists. As things stand the only pro-independence parties with any realistic chances of winning seats are the SNP in the constituency vote and the list, and the Greens on the list.
    Others demand that May’s election needs to be a plebiscite election, making it a vote directly on independence itself and doing away with the need for a referendum if we win. There are a number of problems with this idea. The first is that there is already a recognised route for Scotland to exercise its right to achieve independence, and that is via a referendum following an agreement with the British government. If we try to short cut that route by going immediately for a plebiscite vote, the outcome is highly unlikely to be recognised by the international community, and without international pressure the British government will not agree to negotiate, claiming that the constitution is a reserved matter and Holyrood is acting unlawfully outside its competence. That’s a position which would no doubt be supported by the UK Supreme court.
    The second problem is that we have not had a Holyrood election since 2016. People have a democratic right to cast their votes on the basis of all the other issues that affect us as a society. There is no guarantee that the 30 to 40% of Labour voters who are sympathetic to independence would switch their votes to the SNP if a few weeks out from the election the vote was declared to be a plebiscite. We would be depriving ourselves of vital pro-independence votes.
    If we try and short circuit the process we risk reducing the pro-indy vote and additionally finding ourselves in a similar position to Catalonia after its referendum in 2016. You may have noticed that Catalonia is still not independent. I’ve always been in favour of a plebiscite vote, but for it to succeed in its aims the timing is crucial.
    We will only get the international community and above all the EU to accept the result of a plebiscite independence election if the British government has been seen to have blocked the existing route to an independence referendum for no other reason than its fear that it’s going to lose. Under such circumstances the EU and the international community is likely to see things very differently, and would act to pressurise Downing Street to negotiate with Scotland’s new pro-independence government. If Downing Street refuses a referendum despite a pro-indy majority in Holyrood elected on an unconditional mandate for another referendum, the Scottish Government would be justified in precipitating a snap election as a plebiscite on independence because the British government will be seen to have frustrated the democratic will of the people of Scotland. It would also then be far more likely that under such circumstances pro-indy Labour supporters would switch to a pro-indy party.
    We can either have a plebiscite election as a futile gesture or we can maximise its chances of producing the desired result. Demanding a plebiscite election this May runs an unacceptably high risk of turning it into a futile gesture. We have nothing to lose and everything to gain by waiting a few more months when we’d have a better chance of both maximising the pro-indy vote and of achieving international recognition. We are only going to get one chance at an independence vote and we must not squander it on a lost cause.
    So the question for the pro-indy critics of the SNP remains. What is your credible strategy for bringing about a referendum within the next five years? Don’t tell us how much you distrust Nicola Sturgeon or the SNP. Don’t tell us how much you dislike certain policies which are not themselves directly related to independence. We’ve heard you already. For months now you have banged on about little else. What we want to know is what your plan is for delivering independence within the next five years bearing in mind that we have a crucial election looming in a few short weeks time and if we don’t secure a pro indy majority we are well and truly screwed and may never get another chance. The only credible plan entails voting for the SNP in sufficient numbers in May that we return an SNP majority government.

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  5. Peter,

    The main points he is making are the same as the ones I made to you recently.

    1. The SNP is our only vehicle to take us to an independent Scotland in the foreseeable future.
    2. The time to change the SNP is not weeks before the most important election in Scottish history. It is after they win a majority and if they do not produce Indyref2 within 12 months.
    3. Attacking the SNP and in particular, Nicola Sturgeon now, only benefits the Unionists. She still has majority support in Scotland.
    4. This is the time for all who want an independent Scotland to work together, not to fight each other.
    5. During Indyref1 I worked with the full spectrum on activists, from Tommy Sheridan on the left to Michael Fry on the right and with people who had no conventional political beliefs.
    NOW IS THE TIME FOR ALL PEOPLE WHO BELIEVE IN INDEPENDENCE FOR SCOTLAND TO SINK OUR DIFFERENCES AND PULL TOGETHER.

    Please help us come together.

    Like

    1. If you think those are still points worth making then you are no better at listening than any of the rest of the #WheeshtForIndy mob. I could go through them one at a time highlighting the fallacies. But what would be the point? It’s evident by the fact that you’re still posting this pish that you have not attended to any of the thousand other times it’s been explained.

      I get so weary of this prideful stupidity. So very weary.

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      1. Peter,

        You have just illustrated very clearly why people with large egos can destroy our independence movement. They are doing more damage to us than the Unionists.

        All of those railing against the SNP think that they and their brilliant ideas are more important than the ideas of others within the Movement.

        Stuart Campbell, Alex Salmond and others like yourself are good examples. They are willing to risk losing the general election in May by bringing down the independence house.

        I and most other supporters of independence will take the best opportunity we have to achieve independence by helping to get a majority SNP government elected in May.

        I do not regularly read your blog, as you clearly assume. Hence, I have not seen your oft repeated arguments against the course of actions I have suggested.

        As in Indyref1, I shall continue to work with all who support our cause. In doing so I shall treat them all with respect, even where I do not agree with all that they say, unlike you.

        Have a good weekend.

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      2. It is clear that you don’t even know why more aware people than yourself are “railing against the SNP”. You comment from a position of proud ignorance. If you’re ever ready to rectify that ignorance, get back to me. Or not.

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  6. Peter,

    Explain to me why it is best to destroy our chance of an SNP majority at Holyrood in May by constantly attacking the SNP leadership in public.

    They certainly have their faults but have gained majority support from the voters in Scotland over the last 12 months.

    Constantly attacking the SNP leadership and others within the Independence Movement just before the General Election only helps Unionists.

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    1. Why would I “explain” something I’m not proposing? I am backing both votes SNP. As I think I said before, you comment from a position of proud – and profound – ignorance. Or to put it another way, you haven’t a fucking clue what you’re talking about.

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      1. Peter,

        It is sad to see this animosity and foul language from a person who considers himself as educated and civilised. You seem to have a Narcissistic personality. You seem to think the world revolves around you and your followers. Why not take a step back and consider the bigger picture. What can you do for the Movement as a whole?

        You clearly think that everyone who disagrees with you is an idiot. You have demonstrated that again with your attack on Pete Wishart today.

        You suggested “If you’re ever ready to rectify that ignorance, get back to me. Or not.”

        I got back to you and you fail to answer my question by denying that you have been openly attacking the leadership of the SNP, on the same day as you attack Pete Wishart. Something does not add up.

        Are you going to explain why it is best for the independence movement to attack the SNP leadership in public immediately before the Scottish general election, or are you simply going to hide behind insults.

        We are both on the same side. Attacking me and many others may make you feel good. However, attacking allies and calling them idiots does not advance our cause.

        I shall continue to work with all members of the Independence Movement, even when they are aggressive and insulting.

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      2. The cod psychology killed any interest I might have had in what you say. You are ignorant and determined to stay that way. You have no idea what the SNP’s critics are actually criticising and you will never know because you are incapable of taking in and processing any information which collides with your faith position. You are a lost cause to education, sonny. That’s a sad condition indeed.

        Henceforth, your comments will be ignored unless there is some indication of a willingness to listen to and try to comprehend the arguments. I will waste no more time on you. While you fight to keep Nicola Sturgeon on her throne, I fight to restore Scotland’s independence.

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      3. Peter,

        Your arrogance and inability to answer questions mean that I have lost any interest in following your blog. You seem incapable of seeing the bigger picture. You fail to realise that constantly attacking allies contributes nothing to our Movement.

        I shall leave you to continue to shout aggressively in your echo chamber.
        I shall abandon your blog and continue to persuade soft NOs and Don’t Knows to join our Movement. That work is how we shall win our independence. People like you and Stewart Campbell are doing nothing useful as you spew out vitriolic bile. You are only damaging our cause.

        Goodbye.

        By attacking me and turning me off your blog you have done nothing to help our cause. You seem to be only interested in boosting your own ego.

        Like

  7. Donald, as a ‘soft No’ I’d be interested in what you would say to persuade me to lend my vote to the SNP.

    I’ve discussed and debated the issues ad nauseum since before the referendum but never really heard much except how terrible Westminster is and how wonderful iScotland would be. I’ve never heard a convincing explanation of what would be done to ensure such a rosy future – indeed I’ve been heavily criticised for asking the question.
    I was utterly bemused by the SNPs behaviour in stifling debate about their own Growth Commission report, while being told that it answered all my questions.

    As far as I can see the Union is safe in Nicola Sturgeons hands.
    Scotland has been a world leader in many areas throughout history and 2021 will surely be remembered as the year we ensured that women’s rights would apply to everyone – except women.

    Like

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