It occasionally happens that as you read a newspaper story a phrase will leap off the page and smack you so hard that you are unable to focus on the remainder of the article. As you attempt to read on your mind keeps dragging your attention back to that phrase. Very occasionally a piece of text will affect you in this way because it is potent or poetic or perspicacious. The sort of thing that you wish you’d written yourself. More commonly the phrase will seize your attention because it is horribly wrong or gratuitously offensive or because it carries implications that may not be immediately apparent to every reader. Implications that even the author may have been unaware of.
When I encounter such a phrase I will usually check the below-the-line (BTL) comments to see if anyone else has remarked on it. Usually, they haven’t. Most of the comments will relate to more obvious points in the article. This reinforces the point I have so often made that it pays to look beyond and beneath the stuff that instantly grabs your attention. Often enough this is a deliberate ploy to distract from some other aspect of the story. Especially when it’s politicians speaking it pays to attend closely to precisely what is said. It may not be what you immediately think was said or what others tell you was said.
In this instance, it was not a politician being quoted but British journalist turned parliamentary researcher for the House of Commons Library, David Torrance. As a journalist, Torrance was probably best known for his very public and highly theatrical flouncing(s) from Twitter. Or perhaps for self-identifying as the Unionist villain in an SNP party political broadcast. The handful of people who actually read his material may best remember him for his habit of excessive name-dropping. But the laddie has left all that behind him for the more respectable world of back-room staff in the British parliament.
The National today informs us that David Torrance has written a briefing paper. So that’s exciting. House of Commons Library briefing papers are usually stolidly academic texts which provide disinterested and dispassionate analysis of a variety of topics. Rather like the Scottish Parliament Information Centre (SPICe). They are usually to be trusted. Readers will have their own views on how much they trust a former journalist known to have ranked among Better Together’s favourite commentators during the 2014 referendum campaign. David Torrance’s record from that time may make him a tad suspect in the eyes of less forgiving Yes activists. Particularly when he is briefing on some aspect of the constitutional issue. As he is on this occasion.
The briefing is yet another in a long line of inconclusive studies examining the question of the Scottish Parliament’s competence to authorise a new independence referendum. I haven’t read the full briefing, but The National’s report suggests it says that the Scottish Parliament either does or does not have the power to hold a new referendum and that a Referendum Bill either will or will not end up in one court or another and that it might be the British government which is taken to court and that it’ll definitely be one of these things or more so long as it isn’t something else. Riveting stuff!
The phrase that head-butted me as I read the story is in the following quote from David Torrance. The emphasis is mine.
Although the UK and Scottish governments agree that the Scottish parliament cannot unilaterally end the Union (ie enable Scottish independence)…
Referendum bill ‘could end up in court’, House of Commons briefing says
Haud oan a minute! They agree on whit, now!?
It is no surprise to find that this is the position of the British government. The principle of parliamentary sovereignty means that Westminster must be the final arbiter in all matters regardless of any democratic deficit. The Union means that even the impeccable democratic legitimacy of the Scottish Parliament counts for nothing. The principle of popular sovereignty which holds in Scotland counts for nothing. The will of Scotland’s people counts for nothing. The aggregate weight of all that democratic stuff can be cancelled out by a parliament in another country that has no democratic legitimacy in Scotland because it is elected in spite of the contrary wishes of Scotland’s people. Such is the perspective of the British political elite. This anti-democratic stance is hardly shocking to those who understand the true nature of the Union and the British state.
What is truly shocking is that, at least in the opinion of a parliamentary researcher, the Scottish Government takes the same position. I have yet to see any spokesperson for the Scottish Government hastening to refute David Torrance’s statement of their position. It is truly shocking because David Torrance is correct. The position of the Scottish Government is as he states it. The Scottish Government accepts the sovereignty of the British parliament. The Scottish Government agrees with the British state that “the Scottish parliament cannot unilaterally end the Union”. Never mind the fact that this totally contradicts everything SNP politicians say about the people of Scotland being sovereign and their will being paramount. Never mind that this goes against everything you thought you knew about how democracy works. We’re not talking about democracy, we’re talking about the British state and the Union.
Consider what this implies. If the parliament we elect can be overruled by a government we rejected at the polls; if that parliament cannot act according to the will of Scotland’s people, giving effect to that will; if the Scottish Parliament cannot unilaterally dissolve what is supposedly a partnership of equals, restoring Scotland’s independence is rendered impossible. If it can never happen without the agreement of the British parliament then it will never happen because that agreement will never be forthcoming.
It means that even supposing a Section 30 order was granted and a referendum held which returned a decisive Yes vote despite whatever efforts were made by the British to sabotage the process, even then the British parliament could just say No. If the principle of parliamentary sovereignty is accepted then the British parliament can do pretty much whatever it likes without regard for the will of any of the people of these islands. Whatever agreement there may be between the two governments regarding the effect of a Yes vote, that agreement can be overruled by the British parliament. If the parliament we elect says Yes and the parliament we reject says No then the latter supersedes the former. That’s what the Union means for Scotland. The shocking thing is that not only does the Scottish Government go along with this so do approximately one in five of Scotland’s population.
The corollary to all of this is that if Scotland’s independence is to be restored then the primacy of the Scottish Parliament must be asserted. If restoration of our rightful constitutional status is the will of Scotland’s people then the Scottish Parliament must be able to implement that choice. This competence will not be granted – or more correctly lent – by the British state. Not even if the British state lends us the power to have a referendum. ‘Borrowing’ the power to hold a constitutional referendum leaves the power to actually act on the outcome entirely in the hands of the British state. A decisive Yes vote in a formal constitutional referendum ultimately counts for no more than our Remain vote in the EU referendum. That is what the Union means for Scotland.
Only when the Scottish Government rejects the authority of the British state to overrule the democratic will of Scotland’s people can that will be honoured and our choices implemented. Only when the Scottish Parliament asserts its competence in all matters relating to the constitution will Scotland function as a democracy.
Meanwhile, every person in Scotland who values democracy should be outside the Scottish Parliament demanding that it act immediately to end the anti-democratic injustice of the Union.
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Peter A Bell 
Shocking statement by Torrance, and I suspect he is correct. We all agree that sovereignty rests with the Scottish People, and that we have the right to use that people’s sovereignty to sack governments which fail to do what they are elected to do – literally carved in the stone of the Holyrood parliament. If the parliament will not assert the sovereignty of the people, then the people should sack the parliament. (I use “sack” in the terminating employment sense rather than in the Bastille sense, but it is a thought)
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Reblogged this on Ramblings of a now 60+ Female.
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The problem is that probably he is right. The view from Westminster is that sovereignty rests with the Crown In Parliament, what the peasants want or believe is irrelevant.
By playing the game with the Referendum the Scottish Government, as an institution rather than the people who hold power at any one time, acceded to that claim.
The question is over the legitimacy of the Scottish Government. Have the Scottish People transferred their sovereignty to either the Scottish Parliament or Government. (or even to Westminster). How binding is the 1997 Referendum? These are the questions which have to be answered. We should be grateful to Torrance for making the constitutional situation clear. It is better to know than to fool ourselves about what we think (or rather want to be), as opposed to what the people with the power think.
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Torrance is on;y “correct” about the situation, only if the Scottish Parliament allows it so.
Torrance is not correct in actual fact, if Scotland’s Parliament rejects Westminster’s limits upon it.
And if anyone in the Scottish Government, (SNP) is prepared to go along with what Torrance says, then,they too, are in the wrong!
Accepting what London says, here, is not the same thing as saying they can’t, or don’t have the power, etc.
They do have the power, and they can use it.
The fact is, Scotland can end the Union without London’s say so, if it so chooses.
It is unfortunate, they have chosen not to do so, thus far.
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More than that Gordon, if you think something is going to end up in Court it’s utter folly to reveal your side of the case a moment before you have to. Pre-warned is pre-armed, and from that point of view, the UK Gov has droppped its hand clumsily on the table many times in its bluster, whereas the ScotGov has all its cards cupped in its hands.
Hopefully 🙂
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There is no secret hand of cards. There are only so many cards, all of them are known and not all of them can be held or played in any given set of circumstances. The ‘Great Secret Plan’ notion relies on there being a near-infinite number of options, some of which are known only to the person devising the ‘Great Secret Plan’. In real life, options are limited. The ‘Great Secret Plan’ is bound by the rules of the game – the law, parliamentary procedure, standing orders etc. Be absolutely sure that the British state is fully aware of everything that the Scottish Government can or might do. There is absolutely no possibility of surprising them.
The ‘Great Secret Plan’ is secret only from the people of Scotland. Those cards aren’t being hidden from the British. They’re being concealed from us.
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Thank you for writing this Peter.
If nothing else, it will provide a link to refer to in future, for those who are not familiar with thinking about the fundamentals. 😉
As it happens I had seen that Torrance Guff some time ago, and do recall that
my immediate thoughts ran more along the lines of
‘Total Bollards pal. In yer Dreams. Who pays this turd for this shit? ‘
Now you’ve got me even more worried.
The crashing silence from the Murrell Regime on any subject of importance Does have the whiff of compliance and subservience.
😦
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Hi Peter,
Put simply a referendum is advisory, nothing new in here. One can make all the sudies, posts and others be upset or puzzled by a phrase, advisory means ADVISORY fgs.
Take care
Paul
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A referendum CAN be advisory. A referendum may also be mandatory. It is always a choice. By convention, all referendums in the UK are advisory by default. In fact, they cannot be other than advisory if the principle of parliamentary sovereignty is accepted. But when the principle of popular sovereignty is applied then a referendum may be mandatory.
The only way to restore Scotland’s independence is to first repudiate the principle of parliamentary sovereignty and proceed on the basis of the people being sovereign. We do this by asserting the primacy of the Scottish Parliament. Nothing else can happen in terms of resolving the constitutional issue until the Scottish Parliament takes the required power. That power has to be taken in order to be power. Having taken power over constitutional matters, the Scottish Parliament can then authorise a mandatory referendum on a proposal to dissolve the Union. A Yes majority in that referendum obliges the Scottish Government to implement the proposal.
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Well I always thought if YES had won the last time.
The English would have patted us on the head and said good job, you are Independent just as you were before the vote, But you are still in the Union.
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I suspect you’re right. They would have just ignored the Edinburgh Agreement. Unfortunately, we made it easy for them to define what a Yes vote meant because we didn’t campaign on a specific proposal. The referendum produced a result but not a decision. Nothing necessarily followed from either a No or a Yes vote. The British political elite was always going to define the outcome to suit themselves. The question is, what would our government and parliament do about it.
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David Cameron already had the Crawford and Boyle report ready and waiting for us if we did vote YES. They never play fair. I wish it had happened like that because the Treaty would then have had to be ‘sound’ in law, and, boy, would that have created a noise.
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I did see the predecessor of that Torrance paper, and having scanned this one it’s a case of the previous one being updated I think. For me the important thing in it is what effectively it concedes to our side, not the UK institutionally biased claims in it. Biased claimes are well exampled by this claim on page 13:
“Within the United Kingdom itself, Irish independence was achieved via negotiated treaty and ratifying legislation in 1921-22, while there have been two referendums on possible secession: Northern Ireland in 1973 and Scotland in 2014.”
As you say, it pays “to look beyond and beneath the stuff that instantly grabs your attention”. In this case it’s a small word “secession“, because that was NOT what the Referendum in 2014 was about. From the UK’s presumed point of view, it is. But their very own first White Paper back in January 2013, with its infamous Annex A, considered 3 options, with secession as just one of them, the other two being in other words, separation and dissolution. Three very different ways of Scotland achieving Independence, and none of them precluded by any single word in the working of the referendum question: “Should Scotland be an independent country?”
So Torrance is implicitly accepting the assertion of that infamous Annex A, that the rUK would be the cUK – the Continuing UK. But that is indeed, debatable, just one side of the debate, and probably subject to negotiation after a succecssful YES vote.
Click to access Annex_A.pdf
Also, immediately in Crawford & Boyle we have:
“Part I: Executive summary
1. If Scotland were to become independent after the referendum planned for late 2014, it would be with the UK’s agreement rather than by unilateral secession.”
but then later:
“2 2.1 ‘Secession’ is the process by which a group seeks to separate itself from the state
to which it belongs and to create a new state on part of that state’s territory. It is
essentially a unilateral process. ”
So as well as Crawford & Boyle essentially contradicting themselves, Torrance has contradicited himself by his use of the assertive word “secession”.
If I was the ScotGov, I wouldn’t bother confirming or denying Torrance’s version of reality either. Why give your opponent and help at all? As Dauvit Brown said a few months after that rather daft UK Government White Paper and its infamous Annex A:
“Dauvit Broun: By Publishing the Legal Opinion in Support of Their Position, Has the UK Government Created a Threat to rUK’s Position as a Continuing State?”
https://www.scottishconstitutionalfutures.org/Default.aspx?tabid=1767&articleType=ArticleView&articleId=2514
Well, indeed, less said, soonest mended.
First attempt, I’ll delete this if I need to repost!
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I did see the predecessor of that Torrance paper, and having scanned this one it’s a case of the previous one being updated I think. For me the important thing in it is what effectively it concedes to our side, not the UK institutionally biased claims in it. Biased claimes are well exampled by this claim on page 13:
“Within the United Kingdom itself, Irish independence was achieved via negotiated treaty and ratifying legislation in 1921-22, while there have been two referendums on possible secession: Northern Ireland in 1973 and Scotland in 2014.”
As you say, it pays “to look beyond and beneath the stuff that instantly grabs your attention”. In this case it’s a small word “secession“, because that was NOT what the Referendum in 2014 was about. From the UK’s presumed point of view, it is. But their very own first White Paper back in January 2013, with its infamous Annex A, considered 3 options, with secession as just one of them, the other two being in other words, separation and dissolution. Three very different ways of Scotland achieving Independence, and none of them precluded by any single word in the working of the referendum question: “Should Scotland be an independent country?”
So Torrance is implicitly accepting the assertion of that infamous Annex A, that the rUK would be the cUK – the Continuing UK. But that is indeed, debatable, just one side of the debate, and probably subject to negotiation after a succecssful YES vote.
Click to access Annex_A.pdf
Also, immediately in Crawford & Boyle we have:
“Part I: Executive summary
1. If Scotland were to become independent after the referendum planned for late 2014, it would be with the UK’s agreement rather than by unilateral secession.”
but then later:
“2 2.1 ‘Secession’ is the process by which a group seeks to separate itself from the state
to which it belongs and to create a new state on part of that state’s territory. It is
essentially a unilateral process. ”
So as well as Crawford & Boyle essentially contradicting themselves, Torrance has contradicited himself by his use of the assertive word “secession”.
If I was the ScotGov, I wouldn’t bother confirming or denying Torrance’s version of reality either. Why give your opponent and help at all? As Dauvit Brown said a few months after that rather daft UK Government White Paper and its infamous Annex A:
“Dauvit Broun: By Publishing the Legal Opinion in Support of Their Position, Has the UK Government Created a Threat to rUK’s Position as a Continuing State?”
Well, indeed, less said, soonest mended.
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URL for that Broun article as maybe we’re only allowed 1 URL in a posting:
https://www.scottishconstitutionalfutures.org/Default.aspx?tabid=1767&articleType=ArticleView&articleId=2514
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Akismet’s algorithm takes a dim view of multiple links in a post. That’s not usually a problem as I am normally around to manually approve the comments Akismet blocks. But I was out for a few beers yesterday. So shoot me!
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I didn’t male the point about “the important thing in it is what effectively it concedes to our side”. Well, a minor example is this:
“The “Edinburgh Agreement”, however, paused rather than resolved disagreements over the Scottish Parliament’s ability to legislate in this area. ”
Not everybody agrees with that on the Unionist side, some claim it set a precedent, but that “paused” is the written opinion of an approved researcher for the House of Commons itself “to support the work of MPs.”
Its disclaimer “You should not rely upon it as legal or professional advice, or as a substitute for
it.” does not stop it being introduced into court for discussion as some sort of authoritative opinion.
Sorry about the length, if I had more time I’d have made it all shorter!
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Sorry, Indy/Peter: should have read Indy first before posting. The Crawford and Boyle Report effectively changed the traditional UK (English) version of the Treaty, which was that there was a Union, but that Scotland was a partner of sorts, to the Scotland was subsumed. However you slice and dice it, referendum or no referendum, that Treaty still requires to be put to bed. It underpins the UK. Nothing else does. All other constitutional tools on both sides are subordinate to the Treaty because it is not just an agreement between one-time states, it is the founding document that lends the UK its authority – legal, political and moral.
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Quality BTL responses to Peter’s post. The bottom line surely is that the SNP have no right to throw away our undisputable inalienable right to self determination and make it subject to agreement from our colonial masters. That will not happen. Under the dominance of the Charlotte Square mafia and devotion to neo liberal policies that hold out no positives for the mass of the population I fear for Scotland’s future under the current leadership of the SNP.
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Funny you should say that about the BTL comments. It’s something that pleases me greatly.
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Is it possible that the SNP strategy is indeed to affirm the devolved Scottish Parliament has no powers to secede. But that the constitutional power to revoke the Treaties of Union lie with the Scottish contingent of Westminster MPs. Should a plebicite manifesto be presented at the coming UK GE and a majority of MPs winning seats declare in conference…that the Treaties of Union are revoked. Who could say otherwise. So imho that body more than the Scottish devolved Parliament has the power. Maybe reading between the lines….that is what the SNP Government means by refusing to say the SP had the power. And of course being FPTP…the MPs indy majority easier to achieve. For those uber Democrats a referendum could be held on the negotiated settlement. That could not overturn the result but simply mean go back and re negotiate until the referendum agrees.
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That sounds sufficiently unlike a strategy to be a credible account of SNP thinking. And that’s the only credibility it has. For a start, the party has done nothing but talk about a new referendum for the past 8 years. It would be politically very difficult for them to dump that commitment now. Nor has the party shown the slightest interest in a plebiscite election – which I presume is what you mean when you refer to a plebiscite.
Steering clear of the plebiscitary election notion me be one of the more sensible choices the party has made. How do you turn an election into a referendum if none of the other parties agree? The SNP might spend the whole campaign talking about nothing but the single issue of independence. All the other parties, meanwhile, are talking about anything but that single issue. Regardless of the result it would be impossible to claim that people were voting on that single issue alone and not on a host of policies.
If those pro-independence MPs have the power that you suggest then so do all other MPs. They have that power by virtue of being MPs. But Westminster is a single parliament in which all MPs have the same voting rights. You my say the Brits pissed on that principle with EVEL. But if you argued at the time that EVEL was wrong because it created two classes of MP then it’s hard to then argue that it’s OK to do the same when it suits you.
Frankly, I reckon it’s just daft to suppose a relatively tiny contingent in what is effectively a foreign parliament can have greater democratic legitimacy than the parliament in Scotland and entirely elected by the people of Scotland. Of course, it being a daft idea does not preclude it being SNP strategy. But some things must be too silly even for that lot.
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Then again it was a tiny contingent of Scottish Parliamentarians in 1707 that put Scotland into bondage. My understanding is that Holyrood was created with constitutional limitations preventing unilateral decisions on independence. A total democratic deficit. Whether that would stand under international law is open to interpretation. The Scottish MP’s at Westminster, were the continuance of the Scottish Parliament of 1707. So in legal terms should have the right to end the Union by a single vote. As for Holyrood’s democratic deficit, perhaps a National Assembly of all Scottish Parliamentarians to restore the necessary full Constitutional Powers would be in order, basically the same way Westminster got its power, by giving it to themselves.
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You kinda get there in the end.
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