The legal and the political

The Scots Government should in the court action challenge the very existence of the legal power of Westminster to say no to indyref2, by plainly asserting that the democratic legitimacy of Holyrood trumps that of the Westminster Parliament over Scots affairs, giving it Holyrood the legal authority to hold an independence referendum.

Scott Crichton Styles

This is exactly what I have been saying for some years now. The Manifesto for Independence I drafted includes the following as the first step in the process by which Scotland’s independence will be restored –

Assert the primacy of the Scottish Parliament on the basis of its democratic legitimacy and the sovereignty of Scotland’s people

My opinion as a lay person was that the opportunity to make the 2021 Scottish Parliament election the de facto ‘Independence Referendum’ had been missed because of the failure to pressure the SNP into adopting the Manifesto for Independence. I took the view that the mandate had to be massive and specific. It is heartening, therefore, to have a law professor of Scott Crichton Styles’s standing opine that this failure may not after all be an impediment to proceeding on the basis that the Scottish Parliament can claim competence on the grounds of the sovereignty of Scotland’s people and the democratic legitimacy this bestows on Holyrood.

Which means progress now is only a matter of political will. I say “only”, but this is not to understate the serious nature of this impediment. Because SNP members and the wider Yes movement failed to extract from the SNP leadership a firm undertaking to take specified action on a defined time-scale, the matter of what is done and when is entirely to be decided by Nicola Sturgeon. A fact which induces despair and despondency in increasing numbers of those who hope to see Scotland’s independence restored.

As I was reading Mike Russell’s column in the Sunday National (Michael Russell: Tories’ continuing Brexit damage worthy of a Greek tragedy), a thought occurred to me. Not a pleasing thought. Mike bemoans (again!) the dreadful impact of Brexit on Scotland as exemplified by British state betrayals old and new. I pointed out in a comment that all he was doing with this incessant bemoaning of the inevitable was reminding people of the Scottish Government’s failure to save Scotland from this fate – as was promised on numerous occasions. Having made that comment I started to wonder why Mr Russell – and others in the higher echelons of the SNP – was doing this. He is far from being a stupid man. He must realise that his railing against the deleterious effects of Brexit must do as I state in my comment. Yet he, and they, continue to peddle this line of the wicked British political elite doing Scotland down through malice or ineptitude or both.

SNP loyalists will doubtless insist that this endless litany of entirely justified grievance against the British state is part of an effort to advance Scotland’s cause. If so then I cannot help but observe that it is a strikingly ineffective tactic. Ian Blackford’s indignant bombast on this topic is a phenomenon now so familiar as to seem as if it has always been there. (Who doesn’t have the eerie sensation that his well-rehearsed outrage is part of childhood memory?) Yet the polls haven’t moved in favour of Yes since 2014. (The first poll following the 2014 referendum put Yes on 49%. A recent Panelbase poll put Yes on 49%.)

The unpleasant thought crept into my mind that rather than the condemnation of Brexit being part of the independence campaign strategy – as it surely was originally – it has now metamorphosed into nothing more than a vote-winning ploy for the SNP. The SNP has become that thing I have long despised. It has become a party which regards ‘independence’ as merely an electoral marketing device for career politicians and/or a particular political agenda. Weirdly, the SNP has jumped on the bandwagon when it is supposed to be the bandwagon.

Hence the despair and despondency at the thought of Scotland’s cause being so completely dependent on the political will of Nicola Sturgeon et al. Professor Scott Crichton Styles has presented an expert legal opinion which should give Scotland’s independence movement reason to hope. But that spark of hope is quickly extinguished by the realisation that the SNP Scottish Government so evidently lacks the necessary political will. And it’s our fault. The Yes movement must shoulder the burden of responsibility that is its due.

The SNP is a political party. It can only be expected to do as political parties do. More particularly, it can only do and be what its members allow it to do and be, and what its supporters are prepared to tolerate its doing and being without withdrawing that support. If the SNP/Scottish Government lacks the political will to move to a final resolution of the constitutional issue then it’s because we didn’t provide it with that will. We failed to imbue the political arm of our movement with the necessary sense of urgency and determination. We largely expected that political will to exist ‘naturally’ within those leading and managing the party. We were wrong! That’s just not how it works.

I warmly welcome and greatly appreciate this intervention by Scott Crichton Styles. By my reading at least, he seems to have put a stamp of legal authority on the Manifesto for Independence. Unfortunately, the “competition between two competing visions of sovereignty: the political versus the ­legal” to which he refers does not relate only to the British government. He writes,

So potentially there is a legal roadblock on the ­political path to independence.

I would suggest that there is a political roadblock on the legal path to independence. Its name is Nicola Sturgeon.

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4 thoughts on “The legal and the political

  1. If only somewhere in the higher echelons of the SNP someone would read this and act upon it but having seen the photo of the cabinet with Ms Evans smiling enigmatically in the front corner I aint holding my breath.

    Liked by 3 people

  2. Another excellent article. It must be gratifying to have your position so vindicated.

    I do not share your optimism though, unless this government collapses.

    I believe now that since 2014, the SNP in government has done little more than establish the same structures of power patronage and sinecure that have characterised the British state for hundreds of years. I think the politics of identity has scuppered all possibility of actual radical change and replaced political engagement with assorted varieties of identity management.

    Perhaps you might cast your eyes over the following. I refer to your work and would not want to misrepresent it in any way. Thank you.

    Liked by 2 people

    1. If you discovered optimism in the article then some revision may be necessary. The despair and despondency I feel is little different to that which emanates so pungently from your own piece – even if we got there by different routes.

      Much as I agree with the general sentiment of your article I would suggest that reasonable people didn’t flock to Alba in the numbers anticipated by the fantasy precise because they did “think the matter through for themselves”. Alba’s appeal does not survive even the most cursory scrutiny.

      Liked by 1 person

      1. 🙂 my tongue was pressed slightly against my cheek when I used the word “optimism” intending to signify that my despondency was rather more intense than yours.

        I do not see any benefit from engaging with your assertion that ALBA was promulgating fantasy politics, because to some extent I agree, but in others I don’t.

        Like I say in the piece, it was the ALBA strategy that attracted me, not the party, which has become a repository for those who are disgusted with the SNP, whether they have always been so or have only recently seen the light. Just more sectarian shite. As it is implied, I do not believe that the ALBA strategy will now ever work, not least of all because Westminster is very likely to reduce Hollyrood powers, bypass them and generally to run at several steps ahead of any strategy by the devolved administration in Scotland towards actual independence. The new cabinet is a woeful collection of nonentities who will do nothing but invent legislation that wastes the resources of the police.

        Liked by 2 people

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