Making her statement to the Scottish Parliament yesterday setting out the SNP+SGP/Scottish Government’s proposed ‘routemap’ to a new independence referendum, Nicola Sturgeon quoted the redoubtable Canon Kenyon Wright speaking as Convener of the Scottish Constitutional Convention on the subject of Scotland’s Claim of Right said,
What if that other voice we all know so well responds by saying, ‘We say no, and we are the state’? Well, we say yes—and we are the people.Wikipedia
Kenyon Right left it at that. He recognised that no more need be said. When we, the people, have spoken that is the end of the matter. The people being sovereign, the word of the people is conclusive. The people being the ultimate source of legitimate political authority, the word of the people is decisive. The people being the nation, the word of the people must take precedence over the word of the state, which has no rightful authority other than that which the people allow.
Kenyon Wright did not say: “We are the people, and we seek the state’s permission to speak.”. He did not say: “We are the people, and we need a court to rule on the authority of our voice.”. He did not say: “We are the people, and we must find a way to speak that does not offend the court or inconvenience the state.”.
Kenyon Wright was not Nicola Sturgeon. Nicola Sturgeon may speak his words with her mouth, but she neither intellectually nor emotionally appreciates their import as he did. She speaks his words and then keeps on talking. She says in effect: “We are the people. But that is not enough.”. Where Kenyon Wright saw the word of the people as unequivocally satisfying the conditions of necessity and sufficiency, Nicola Sturgeon appears to regard the word of the people as no more than input to a debate being conducted above our heads by legislators, administrators and lawyers.
Nicola Sturgeon will say the people of Scotland are sovereign and she will claim to be acting with the authority and on behalf of the sovereign people of Scotland. But she does not act as if the people of Scotland are sovereign. She acts as if the people of Scotland are subordinate to the British state. She behaves as if the word of the people is subject to ratification by a British court. She says we are sovereign, but proceeds on the basis that we are not. She talks the talk of Scottish popular sovereignty. But she walks the walk of British parliamentary sovereignty.
I have long been critical of Nicola Sturgeon’s approach to the constitutional issue. I use the term ‘approach’ advisedly. It is intended as a term broad enough to encompass all aspects of her dealing with the matter. The way she thinks about it and the things she says about it and the things she does relating to it. Everything. I also refer critically to the mindset which informs and steers Nicola Sturgeon’s approach to the constitutional issue. By which I mean the way she conceptualises Scotland’s cause. I, for example, conceive of it as the fight to restore Scotland’s independence. I think of it as being a matter of justice – of righting the ancient wrong of the Union. I regard the people of Scotland as being sovereign and the Union as a political device whereby we are denied the effective exercise of that sovereignty. For me, it is a clear-cut issue. Scotland is a nation. The people of Scotland are sovereign. The people of Scotland alone have the exclusive and inalienable right to determine the constitutional status of the nation and choose the form of government which best serves our needs, priorities and aspirations. This must perforce include the exclusive and inalienable right to decide when and how we exercise our sovereign right of self-determination.
I maintain that we are the people and our word is both necessary and sufficient. Our consent is necessary for the exercise of legitimate political authority. Our command is sufficient to have political authority exercised in accordance with our will. That is the ideal of democracy and while the realities of everyday life may make adherence to this ideal difficult those realities can never justify abandoning the ideal.
This is the mindset that I bring to Scotland’s cause. I am persuaded that this is very closely akin to the mindset which informed Canon Kenyon Wright’s succinct and powerful summation quoted above. I presume to paraphrase his words.
We are the people! We decide!
I had hoped that Nicola Sturgeon’s statement to the Scottish Parliament yesterday would reflect the mindset I’ve just described at least to some extent. While I must acknowledge that there has been some movement on her part it is not such as might indicate any significant change in the way she thinks about Scotland’s cause. While there has been some adjustment to her approach to the constitutional issue, it amounts to little more than cosmetic modification. Having read and re-read the transcript of the First Minister’s statement as well as some of the reactions to it (for example), I would like to make some comments on specific points.
If it does transpire that there is no lawful way for this parliament to give the people of Scotland the choice of independence in a referendum – and if the UK government continues to deny a section 30 order – my party will fight the UK general election on this single question: “Should Scotland be an independent country?”Nicola Sturgeon’s full statement announcing the 2023 independence referendum
For the moment, let’s skip by the issues raised by the term “lawful” and the fact that by her own account she is not intending to “give the people of Scotland the choice of independence in a referendum” and the massive problems associated with putting a Section 30 request at the start of the process and if you’re not exhausted by all that skipping, move on to the part I have highlighted. With apologies to those worn out by the previous skipping, I must ask that you gird your loins for one final skip. and it’s a big one. We’ll get to the matter of the referendum question (again!) a little later. For now, we may content ourselves with welcoming Nicola Sturgeon’s very, very belated realisation that she needs a ‘Plan B’.
Angus B MacNeil MP and Christopher McEleny and more than a few others may be forgiven for letting rip a loud “Telt ye!” on hearing this. How much time and effort did they put into promoting the very action the First Minister has just outlined only to be rudely rebuffed by the SNP leadership? How much abuse did they take for presuming to suggest that the leader might benefit from their advice? Where is the acknowledgement that they were right? Maybe even a wee apology, eh?
I have always been dubious about the idea of using an election as a proxy for a referendum. They are similar democratic process but with very different purposes. My objections to ‘Plan B’ can be found here if readers are interested. (Don’t be put off by the title.) But my main objection to the fuss about a Plan B was always that it took attention away from the far more important matter of ensuring we had a Plan A that would work. Given that Nicola Sturgeon doesn’t have a viable Plan A, I suppose I must be thankful for the very small mercy that she has finally loosened the corset of her obsession with the Section 30 process enough to let in a bit of alternative thinking. It would be so much better if she consigned that corset to the bin. But she doesn’t seem ready to do that. Yet?
Having given one and a bit cheers for Sturgeon’s epiphany concerning Plan B, it’s time to start picking over some of the more contentious bones from her statement. These are the bits I highlighted on my first and second reading of the transcript. I find that my instincts for the controversial usually serve me quite well. But what follows may not be a comprehensive catalogue of my complaints. Make no mistake! If this is the ‘big plan’ it is a pish-poor effort and certainly nothing to get excited about. The transcript landed on my screen not with the solid thud of an impressively substantial statement but with the ominously damp splat of something that’s been in the fridge too long.
I’m going with the call-and-response style here. Bear with me.
The UK and Scottish governments should be sitting down together, responsibly agreeing a process, including a section 30 order, that allows the Scottish people to decide.
Should they? Has Nicola Sturgeon ever asked that question? Has anybody dared to put the question to her? Why should the process of restoring Scotland’s independence require the agreement of a British government that is implacably opposed to the restoration of Scotland’s independence? Stated thus, is the illogicality (I’m trying not to say stupidity) of this line of thought not gob-smackingly obvious? Supposing that agreement is obtained, what is it worth? Just one of the problems with the whole Section 30 process is that it relies totally on the good faith and goodwill of the British political elite. The same British state which, by Sturgeon’s own account, treats Scotland with casual contempt on a good day and open malice at times.
Agreement implies negotiation. Negotiation can only be free and fair between parties of equal status. When all the power lies on one side what ensues is not so much negotiation as the taking of instructions handed down by the party with all the power. Even if the British government isn’t totally dictating the terms of that agreement it is certainly tilting the terms in its favour. And what the **** is the point anyway when the British state cannot be trusted to abide by any of the terms it finds inconvenient?
It’s not even as if Sturgeon disputes the fact that the British government has all the power. Attend to these words, “allows the Scottish people to decide”. Allow!? Why is the offensiveness of this language not obvious to Nicola Sturgeon? It would have been all too apparent to Kenyon Wright. He would surely have recognised that the people of Scotland being sovereign means that they cannot be disallowed from deciding. But the clear implication of Sturgeon’s language is that she is conceding or at minimum compromising the sovereignty of Scotland’s people by acknowledging and legitimising the British state’s authority to disallow the right of the Scottish people to decide.
If we are sovereign, we don’t need to be ‘allowed’. The very concept of permission or consent is inapplicable. It is not and cannot be compatible with the concept of popular sovereignty.
In that letter I will also make clear that I am ready and willing to negotiate the terms of a section 30 order with him.
What I am not willing to do – what I will never do – is allow Scottish democracy to be a prisoner of Boris Johnson or any Prime Minister.
Note what is not said. Sturgeon does not use the term ‘request’ or even ‘demand’. This language is chosen to deceive. It seeks to portray the First Minister going to the British Prime Minister as an equal. But that is not the case. As already noted, the British Prime Minister has all the power. By going to him at all Sturgeon is validating that power. If she was on equal terms, she would be going to him at all. She would be dealing with the referendum as entirely an internal matter for Scotland alone. Informing the British Prime Minister of what is happening would be a matter of courtesy.
The claim that she will not “allow Scottish democracy to be a prisoner of Boris Johnson or any Prime Minister” strike a horribly discordant note coming from the person who has spent her entire time in office to date doing just that – leaving Scotland’s democracy at the mercy of the British state and the British Nationalist incursion into Scotland’s democratic processes and institutions that was creeping eight years ago and proceeds apace today.
My determination is to secure a process that allows the people of Scotland – whether yes, no, or yet to be decided – to express their views in a legal, constitutional referendum, so that the majority view can be established fairly and democratically.
Note again what is not said. Sturgeon assiduously avoids any suggestion that she intends there to be a real constitutional referendum – a formal exercise of Scotland’s right of self-determination which perforce must be self-executing if the people of Scotland are sovereign. More on this anon.
…opposition parties will just keep casting doubt on the legitimacy of the process…
British Nationalists will always cast doubt on any process that might end their precious Union. If Sturgeon is looking for a way to avoid this then she is on a fool’s errand.
Let me turn then to the detail of the steps we will now take to secure the objective of an indisputably lawful referendum
This is nonsense. Nothing is “indisputably lawful”. The lawfulness of anything can be disputed. It’s only a question of whether somebody is prepared to dispute it. The Union is an existential issue for the British state. We have to assume they will always dispute the lawfulness of any move to end the Union.
In common with the 2014 referendum – indeed, in common with the Brexit referendum and the referendum to establish this Parliament – the independence referendum proposed in the Bill will be consultative, not self-executing.
It is to be a pretend referendum. Just as predicted.
There has been much commentary in recent days to the effect that a consultative referendum would not have the same status as the vote in 2014.
This is crafty. It’s the politician’s trick of vehemently denying something that they have not been accused of so that they sound as if they’re addressing the accusation but really they’re not. It may well be that some people have commented to the effect that Sturgeon speaks of. But by far the more pertinent commentary is that which recognises that the proposed referendum will have the same status as the 2014 vote. The only difference being that we now are aware that the kind of referendum being proposed is totally inadequate, completely unsatisfactory, woefully ineffectual and absolutely unacceptable to those who seek the restoration of Scotland’s independence.
If you genuinely seek the restoration of Scotland’s independence why would you propose or endorse (far less celebrate!) a referendum which cannot have the effect of restoring Scotland’s independence? What is the ****ing point? The most such a referendum can do is leave Scotland’s cause exactly where it is now, but lacking the same case for another vote.
Sturgeon says, “The status of the referendum proposed in this Bill is exactly the same as the referendums of 1997, 2014 and 2016.”. That’s the bloody problem! We wanted better! Her job is to take Scotland’s cause forward. Not to have it going back over ground that has already been travelled. The problem with the referendum proposed in this Bill is that is seeks to replicate the 2014 referendum when what is needed is a referendum designed for today’s political environment, not that of a decade ago.
The Bill states that the question on the ballot paper should be – just as it was in 2014 – ‘should Scotland be an independent country’.
What did I just say? If you were proposing a referendum that was fit for purpose then it would be a referendum designed for now, not ten years in the past. (For more on the subject of the referendum question see here and here.)
I can announce that the Scottish Government is proposing that the independence referendum be held on 19 October 2023.
Clever! Announce the date knowing that a large part of the Yes movement will latch onto this and not look too closely at what kind of referendum is being proposed. This will work. I haven’t the slightest doubt that this wee diversionary tactic will be effective. I recognise that I am going to be made to feel like (almost) a lone voice pointing out that we are being fobbed off with a pretendy referendum. I am not at all afraid of being a lone voice. Better that than mindlessly following the mob.
We know that legislative competence can only be determined judicially.
The only questions are: when it ends up in court, and at whose hand.
I can advise Parliament that the Lord Advocate has agreed to make a reference of the provisions in the Bill to the Supreme Court.
The above is a sequential trio of extracts that come at separate points in the transcript of the First Minister’s statement. I don’t think I can be justly accused of distorting the meaning, although I anticipate being assailed with such allegations by those reluctant to try and address the substantive issue. ‘Twas ever thus!
It may be fair to say that legislative competence “can only be determined judicially”. It is certainly true that what matters is the way it is done. Or, as Nicola Sturgeon says, “when it ends up in court, and at whose hand”. The thing is, if she is aware of the importance of the what, when and who, why is she getting it so obviously wrong?
If the people of Scotland are sovereign, and if Sturgeon genuinely believes this to be the case, then everything associated with sovereignty must be assumed. If the people of Scotland are sovereign then there is no need to ask the question. What is asked; when it is asked; and who asks it are all crucial to some degree. Sovereign people don’t ask if the Parliament they have elected is competent to authorise and facilitate the exercise of their right of self-determination. Sovereign people assume those to be the case. Sovereign people proceed on the basis that they are sovereign and therefore the Parliament they elect must have the necessary and sufficient authority to do anything that might be done by a Parliament with impeccable democratic legitimacy and an unambiguous mandate.
It is a short logical step from recognising that it shouldn’t be the people of Scotland asking the question to the realisation that it must therefore be the British state which does the asking. Alternatively, if it must be Scotland asking the question – and Sturgeon makes some sound arguments on this – then the question cannot be whether Scotland has the competence to exercise our right of self-determination but whether the British state has the authority to prohibit us from doing so.
It appears that Sturgeon hasn’t thought this through. had she done so, either she would be challenging the anti-democratic authority asserted by the British state or by asserting the primacy of the Scottish Parliament, forcing the British government to argue that Scotland is not a nation and therefore has none of the attributes of a nation including the right of self-determination (Which the British previously acknowledged in the Edinburgh Agreement.). To argue that we do not have the inherent right of self-determination that even Boris Johnson admits belongs to all nations and peoples is to argue that the people of Scotland are not sovereign. Instead of putting the British in the highly embarrassing position of being forced to acknowledge in court the true nature and purpose of the Union Sturgeon has chosen to let them off the hook and instead ask the UK Supreme Court (UKSC) to confirm something she should be maintaining is beyond question.
Finally, confirmation that the referendum proposed in the Bill is the pretendy referendum some foresaw.
Obviously, it is this government’s hope that the question in this Bill, proposing a referendum that is consultative, not self-executing, and which would seek to ascertain the views of the Scottish people for or against independence, will be deemed to be within the legislative competence of this Parliament.
Sturgeon goes on to say that if the UKSC deems that the Scottish Parliament lacks the legislative competence to authorise even a pretendy referendum (What does that say about the British establishment’s attitude to Scotland?) then she will go with the Plan B which she and her party previous wouldn’t even tolerate being discussed. What she doesn’t say is what happens if after a conclusive Yes vote in the pretendy referendum the British government turns around and says it was only a pretendy referendum so why should they pay any attention to it.
Of all the lessons Nicola Sturgeon has failed to learn, probably the most important is that power is not given, power is only taken. The ‘route map’ set out in her statement, like every other such ‘plan’ I am aware of, leads ultimately not to the restoration of Scotland’s independence but back to the point at which the primacy of the Scottish Parliament must be asserted. Whether it is subsequent to the result of pretendy referendum or the outcome of a plebiscitary election, the next steps towards independence must go through the Scottish Parliament. As things stand, the Scottish Parliament is denied the necessary authority by the Union. That is the sticking point that you arrive at whatever route you take. The choice is only which route to take – direct or circuitous.
Sturgeon has chosen the circuitous route. We may expect that the British will add twists and turns to that road. We’d be foolish to suppose they wouldn’t. All this just to get back to where we are now.
We are the people. We decide. My fear and expectation is that we the people will docilely accept the pretendy referendum being offered and meekly submit to the compromising of our sovereignty in exchange for worthless British promises.
I wonder what Canon Kenyon Wright would have said about all this.
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