A blancmange is not a brick

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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12 thoughts on “A blancmange is not a brick

  1. 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.

    Let’s hope the 5 UKSC Justices, 1 Scot, 1 Welsh, 1 NI and 2 English, agree with you. Then we can have our referendum on 19th October 2023.

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      1. You’re right, you’re still not getting it.

        Perhaps you should read what the court actually IS being asked?

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      2. I actually don’t have time to hang around waiting for your slow thinking processes to catch up on the real world, so here’s a useful summary of what the court IS being asked:

        The Lord Advocate contends that neither the draft Bill nor the referendum it proposes relate to the reserved matters of the Union or Parliament because the proposed referendum would be merely ‘advisory’, ‘consultative’ or ‘non-binding’ and hence would have no legal ‘effects’.

        You clearly agree with the LA’s argument so you think the court should rule that the referendum bill CAN be debated and passed by Holyrood, i.e., it is within Holyrood’s competence. Bravo!

        Do you understand now?

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  2. I suspect that most loyalists still think that even an advisory referendum is better than none, and that, if enough people voted for independence, Westminster would be forced to concede. The problem with that approach is, where there is no legal compulsion to act on a referendum, there is no legal compulsion to act on that referendum and, like the mandate, we could have a hundred and nothing would happen.

    Joanna Cherry should really have left the SNP ages ago, but she didn’t, not even after threats of corrective rape against her which were never condemned by Sturgeon or any of her cohort, nor the culprit censured by the party. I don’t find sticking it out particularly impressive in the circumstances. Had she upped sticks and left, perhaps to join ALBA or another independence party, or just to become an independent nationalist, she might well have pulled others out of the SNP with her and created waves. Perhaps she believes she will lead the party one day? Who knows? I, too, feel extremely disappointed that, even if the Supreme Court rules in the SNP’s favour, it will have no leverage to force forward movement.

    If the court does rule in the SNP’s favour, a referendum will have to be held that might well not be won, anyway. Also, accepting a non-executive referendum would mean ruling out a plebiscitary GE. Both scenarios would finish the independence movement for quite some time, or forever, or lead to real resistance. As you say, it is like trying to construct a house out of blancmange bricks. The reason that no SNP lawyer or anyone else will tell you the truth about the proposed referendum, or, indeed, the proposed plebiscitary GE, is because neither will lead to independence because neither is designed to deliver anything other than another SNP term in office.

    You really have to believe that the Supreme Court will rule an advisory referendum within the competence of Holyrood, that the SNP will deliver an advisory referendum, that we will win it hands down, while the Unionists sit back and respect democracy, or failing that, that the SNP will allow an informal loose alliance of independence interests in a plebiscitary GE for the delusion to become reality. Those who believe this scenario don’t understand the Supreme Court, or NS and her cohort, or Westminster. There is no way out of this Union via domestic law: none.

    Liked by 4 people

    1. The weird thing about this situation, Lorna, is that the “SNP lawyers” ARE telling the truth about the proposed referendum. Sturgeon and others are quite explicitly saying the referendum will have no effect. But people are still convinced they’re getting a chance to decide. It is really baffling.

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  3. The only thought I have had about how a blancmange could have the properties of a breezeblock is that in nuSNP land it could self-identify as a large grey chunk of building material, but it would have to wonder whether it was really hard enough.

    Liked by 3 people

  4. Mr Bell wants a binding referendum on a piece of proposed legislation, because you can’t have a binding referendum on a concept. So, in this masterplan, Holyrood and Westminster arrive at a full Scexit agreement before any referendum, then we have a referendum on the agreement.

    Whaky. Even if it wasn’t utterly ridiculous, it would take years. Funny though.

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    1. You don’t speak for me, fuckwit. Because you haven’t a clue. I have to wonder if there is any point in correcting your idiotic misrepresentation of #ScottishUDI. It is so easy to understand that I tend to think anybody who hasn’t got it by now never will. I’ll just ask if any of the people who actually read my articles have ever found me talking about a “full Scexit agreement” between Holyrood and Westminster prior to a real constitutional referendum? No point in asking Mr E(ejit) where he saw it. That would be asking for evidence and his head would probably explode. Then where will he put his hat?

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