Once again, I am perplexed that Joanna Cherry shows not the slightest concern for what kind of referendum is being discussed. She appears to attach no importance at all to the form of the referendum that the UKSC is being asked about. It’s as if anything that has the words ‘independence’ and ‘referendum’ attached is fine. The fact that it’s called an independence referendum is enough.
She is not alone in this disregard for detail. Of course, one would expect the SNP/Sturgeon loyalists to leap to the assumption that it must be just the referendum we need because Nicola says so. Heaven forfend that they should trouble themselves with any of that scrutinising nonsense! Ye gods! People might think they were entertaining doubts about their dear leader. But it’s not only these numpties. I have read a lot of material on this. As well as the court documents I subscribe to the UK Constitutional Law Association blog and read articles such as the one referred to here by Joanna Cherry. All in addition to news and commentary from a variety of sources. I have yet to see any serious discussion of the distinction between the referendum being proposed and a genuine constitutional referendum.
Mostly, the matter is discussed as if what we are (maybe) getting is an opportunity to decide. That’s what a real constitutional referendum is. It is the formal exercise of our inalienable right of self-determination. It is a statement of the will of the people. It produces a decision. The proposed referendum is and does none of this. It is a glorified opinion poll. That is not mere rhetoric. It is precisely what the First Minister and the Lord Advocate have said of the referendum – even if they didn’t use precisely those words. They have been at pains to stress that the referendum is NOT a formal exercise of our right of self-determination. It is NOT a statement of the will of Scotland’s people. It’s just them expressing an opinion – just like in an opinion poll. And just like an opinion poll, the referendum being proposed has no effect.
No sane person would expect the restoration of Scotland’s independence to ensue from an opinion poll. Or even a series of such polls. And yet this glorified opinion poll is discussed as if it will have an effect. As if independence will follow from a Yes vote. It won’t. If the referendum goes ahead as proposed and if it is a Yes vote and even if it is a Yes vote by a huge margin, all that happens is that the Scottish Government goes back to asking for a Section 30 order. Which is exactly where we are now. Where we’ve been for eight years.
Even people like Joanna Cherry – knowledgeable and experienced in the fields of both law and politics – talk about the proposed referendum as if it will have a political effect. Usually only after they’ve been pressed into acknowledging the fact that there can be no direct legal effect. This might be called wishful thinking. But only if one was intent on avoiding the term ‘delusion’. Why would the British state feel any sort of political pressure from a result of a democratic exercise that is absolutely guaranteed to have no effect? Have they shown the slightest indication of being affected by all the past votes that we were assured WOULD have effect? No they bloody haven’t!
Even in the old days when the SNP said a vote for them was a vote for independence, even massive and repeated votes for the SNP didn’t cause the British to budge a millimeter. I intend it as no compliment when I say that the British state has been perfectly consistent in dismissing all such supposedly meaningful votes. So why would any rational person expect them to tremble before a vote which no less a figure than the First Minister of Scotland and leader of the ‘party of independence’ has GUARANTEED will have no effect?
If it was a real constitutional referendum then the British political elite would have cause to worry. A formal exercise by the people of their right of self-determination is not so easily dismissed. But to imagine a glorified opinion poll would have a similar effect is, to be far more polite than I am inclined to be, extremely silly.
Getting back to the case before the UKSC, one would think a KC, no less, would feel obliged to ensure that the subject of the question being asked of the court is accurately presented. But if you read Joanna Cherry’s recent pieces on the subject you could readily be forgiven for supposing that court was being asked to rule on the lawfulness of a genuine constitutional referendum as described earlier. IT IS NOT! The question the UKSC is being asked is whether it is lawful for the Scottish Parliament to legislate for a glorified opinion poll. Even if the court decides that the proposed referendum is indeed lawful this has precisely no implications for a real constitutional referendum. Because a real constitutional referendum is a very different thing from a referendum that has no more standing and no more weight and no more force than an opinion poll.
I would be delighted if somebody could explain to me how a blancmange might have the properties of a breezeblock. I would be pleased if some lawyer could explain how answering a question about what a blancmange can be used for can have implications for what a breezeblock can be used for. We are being offered a blancmange and folk are planning how they’re going to build a house. It’s madness!
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