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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