We can be heroes!

It is no secret that I deplore the Section 30 process. That is to say, the process by which the First Minister of Scotland, acting on behalf of the sovereign people of Scotland, petitions the British Prime Minister to grant conditional consent that the sovereign people of Scotland exercise their inalienable right to determine the constitutional status of their nation and the form of government which they consider best serves their needs, priorities and aspirations.

The request for a Section 30 order is commonly explained as the Scottish Government asking for transfer from Westminster to the Scottish Parliament of the power to conduct a constitutional referendum. This is grossly misleading. The authority to hold an independence referendum rightfully lies with the Scottish Parliament on account of its democratic legitimacy having been elected by the sovereign people of Scotland. Westminster lacks this democratic legitimacy. A request for a Section 30 order is more correctly explained as the First Minister of Scotland, acting on behalf of the sovereign people of Scotland, courteously asking that the British state temporarily loosen its grip on part of the power it illegitimately withholds from the Scottish Parliament ─ and thereby withholds from the sovereign people of Scotland.

Should the British state agree to this easing of the restrictions it imposes on the Scottish Parliament under the powers afforded it by the Union, it will do so only under such conditions as are deemed necessary to ensure that the Union is not jeopardised by the referendum being consented to. The request for a Section 30 order also serves as an invitation to the British state to participate in a process which is rightfully exclusive to the sovereign people of Scotland. Obviously, the British state’s interference in the referendum would always be for the sole purpose of ensuring that the outcome favours the Union.

The purpose of Section 30 of the Scotland Act (1998) is to affirm and secure the British state’s total control over the competencies of the Scottish Parliament. The relevant text makes this perfectly clear.

Her Majesty may by Order in Council make any modifications of Schedule 4 or 5 which She considers necessary or expedient.

Scotland Act 1998

Schedules 4 and 5 deal with powers reserved to Westminster. Or, to put it more precisely, powers withheld from the Scottish Parliament and thereby the sovereign people of Scotland. It is often mistakenly assumed that Section 30 exists to allow that the Scottish Parliament be granted ‘special’ powers. In fact, Section 30 is a legal device by which the British state can withdraw from the Scottish Parliament any or all of the powers it exercises under the devolution settlement. That it can also be deployed to grant additional powers ─ albeit temporarily and conditionally ─ is entirely incidental to the purpose of Section 30.

Never forget! Devolution is not about empowering Scotland. Devolution is about preserving the Union. Nothing else! Powers granted to the Scottish Parliament using Section 30 of the Scotland Act can never jeopardise the Union any more than the powers granted by the Act itself. A referendum conducted by way of the Section 30 process can never be a true independence referendum. The restoration of Scotland’s independence cannot ensue from any referendum held under the Section 30 process. Any politician who talks of a Section 30 referendum either explicitly or by way of euphemisms such as an ‘agreed’ or ‘negotiated’ referendum, is not talking about an independence referendum.

A further problem with the Section 30 process is that a request for a Section 30 order necessarily compromises the sovereignty of Scotland’s people. Being sovereign means being the ultimate authority. It means there is no superior authority. Sovereign people don’t have to seek permission from anyone. If the First Minister seeks permission on behalf of the Scottish people then this necessarily implies that the people of Scotland are not sovereign. Because requesting a Section 30 order concedes that the British state has the rightful authority to refuse consent. This can only mean that the British state is the ultimate authority. There cannot be two ultimate authorities.

To request a Section 30 order is to deny the sovereignty of Scotland’s people. Requesting a Section 30 order is an act of treachery.

SNP leadership candidate Ash Regan MSP has come closer to an outright repudiation of the Section 30 process than any other Scottish politician ever has, to my knowledge. (I am happy to be corrected on this.) The ‘Plan B’ proposed by Angus MacNeil MP and Chris McEleny clung to the Section 30 process. The de facto referendum proposed by Nicola Sturgeon wasn’t about independence but about asking again for a Section 30 order. Alba Party doesn’t reject the Section 30 process ─ although it has contrived to make many people believe that it does. No politician has come right out and said that they repudiate the Section 30 process on the grounds that it is an illegitimate constraint on the exercise of the right of self-determination by the people of Scotland. Ash Regan has come close. At an SNP leadership campaign husting in Dumfries, she said,

If we go with more of the same – basically what we’ve been doing for the last few years – is that we’ve been winning elections and we’ve been using that as a mandate, or a moral mandate is probably the way I would differentiate it, to go and ask Westminster for a referendum.

And obviously, they’re saying no and actually they won’t even set out under what circumstances they might say yes. We know that that is just not going to happen – that route is shut down.

So I think that seeking another moral mandate, as my two colleagues here are suggesting, I think it’s a bit of a wishy-washy plan and I don’t see that as being what we need in order to move this forward for the people of Scotland.

Regan brands Forbes and Yousaf’s independence plans ‘wishy washy’

Obviously, I wouldn’t expect Ash Regan to say that Humza Yousaf and Kate Forbes are proposing to commit an act of treachery should they be elected leader and become First Minister. But I would have preferred if rather than giving the British state ‘credit’ for having “shut down” the Section 30 route, she had said that, as First Minister, she would shut down that process for all the reasons outlined above. I would prefer if she’d said that abandoning the Section 30 process was Scotland’s choice rather than Westminster’s. It would be excellent if she were to state that it doesn’t matter that we can’t have a Section 30 referendum because we would rather have a referendum that will stand as a formal exercise of our right of self-determination. We would rather have a real constitutional referendum that was actually capable of ending the Union.

Ash Regan hasn’t said any of that… yet! But what she has said is enough to set her apart from the other two candidates. Apart from and above, if the restoration of Scotland’s independence is your priority. She is being far too generous when she describes the offerings from Yousaf and Forbes as “wishy-washy” plans. So long as they are talking about adhering to the Section 30 process theirs is not a ‘plan’ to restore Scotland’s independence. Theirs is a plan to compromise the sovereignty of Scotland’s people by acknowledging the veto power of the British state.

Ash Regan has already said enough to make her the standout candidate for SNP members who wish to defend the sovereignty of Scotland’s people. Ash Regan is the only candidate who is so much as hinting at the kind of bold, assertive, decisive action that Scotland’s cause requires. I would urge her to go further still. At the very least, she must stick to and develop and clarify and solidify the position she has taken.

In offering this encouragement to Ash Regan I would make one further point. I am firmly persuaded that taking a distinctively assertive line on the constitutional issue will attract the support she needs from SNP members. But perhaps more importantly, it will gain her massive support in the wider independence movement where opinion is rapidly moving towards less compliance and more defiance. Not only that but, by explicitly repudiating the Section 30 process she will open up debate about the process both within and without the party. A debate which Nicola Sturgeon strove relentlessly to suppress.

Even if she doesn’t win the SNP leadership, by taking this more assertive stance Ash Regan will be something of a hero to the Yes movement ─ excluding a diminishing group of party loyalists. We need a hero, right now! We really need a hero! I implore Ash Regan to be the hero the Yes movement needs. Then we too can be heroes for Scotland.