Presumably, those backing Ash Regan’s “plan” have had sight of the draft Bill. I have not. So, I cannot comment on it, far less support it. I’m not getting all excited about something which may or may not be a pig in a poke. I want to see the goods before I commit to their purchase.
Edit: Thanks to my occasionally useful friend, Geoff Bush, I now have a link to the .PDF version of the draft Scottish-Parliament-Powers-Referendum-Act. I shall report back when I’ve had a chance to properly look at the document.
What I can comment on is the little Ash Regan has chosen to reveal about her intended proposed draft Bill. (If that sounds tenuous, there’s the very best reason.) The closest thing to a fact we have regarding this proposed draft Bill is the date for the proposed referendum – September 18, 2024. So, my first question would be, why the delay? What happened to using the UK general election as a de facto referendum? That could be as early as May. Even if, as seems more likely, Sunak puts off the election until the last minute – say, late November or early December – we know it is going to happen and could start campaigning for a de facto Yes vote immediately. The date chosen by Ash Regan has obvious symbolic value. But is that value great enough to justify the delay?
The second thing we know with a high degree of certainty if that the draft Bill is to propose a referendum on the question of whether the Scottish Parliament should “have the power to negotiate and legislate for Scottish independence”. Professor Aileen McHarg has already pointed out one problem with this proposal. The intended question clearly relates to the reserved matter of the constitution and would be an easy target for the UK Supreme Court. And that’s supposing it got past the Presiding Officer and her legal advisors. The Lord Advocate would also have something to say, I suspect.
Let me make it clear that I appreciate what Ash Regan is doing. She is bringing some fresh thinking to the constitutional issue. Which, given the staleness of the SNP’s failed approach over the last nine years, has to be a good thing. Fresh thinking is good. Ash only needed to devote a bit more of that thinking to what she was proposing.
I also commend Ash for her willingness to address the issue of process. Something other nominally pro-independence politicians are strangely reluctant to do. More specifically, Ash is at least attempting to address the matter of legislative competence. Which is very welcome. But, again, she seems to have stopped short of fully thinking through her proposed proposal. Asking whether the Scottish Parliament should “have the power to negotiate and legislate for Scottish independence” is putting the cart before the horse. Allow me to explain.
I have frequently pointed out that in order to restore Scotland’s independence we have two battles to fight. The battle to remove impediments to our right to exercise our right of self-determination. And the battle to restore our independence. Obviously, the former takes precedence over the latter. Before we can restore independence, we must establish the capacity to restore independence. The first task is to establish that the Scottish Parliament has the legislative competence to facilitate the exercise of our right of self-determination. In other words, the authority to legislate for a proper, determinative constitutional referendum.
I have long maintained that we have two battles to fight. The first is the battle to assert and defend the sovereignty of Scotland’s people as well as our right of self-determination. Only when this battle is won will we have the means to facilitate the exercise of our right to decide the constitutional status of our nation.
The second battle is that to restore Scotland’s independence. The Alba proposal gets them in the wrong order. The referendum should be on the question of the Scottish Parliament’s powers in relation to all constitutional matters. Obviously, this would include the more specific powers Ash Regan wants to put to a vote. But it is much broader. And, being much broader, it is considerably more potent.
A promising development
There is only one way the Scottish Parliament can acquire the power to legislate on constitutional matters and that is to take that power. That which is given is not real power. From what we know, it seems Ash Regan wants to ask the British state to give the Scottish Parliament certain powers in relation to the constitution. She defers to Westminster. In so doing, she compromises the sovereignty of Scotland’s people. I cannot consent to this and neither should anyone who adheres to the principal of popular sovereignty.
The power Ash wants the British state to concede is the power to end the Union. Preservation of the Union is an imperative for the British state. They not only won’t concede the power to end the Union, they can’t. No doubt Ash anticipates that, should her proposed draft Bill be passed by the Scottish Parliament, the British political elite will respond with the arrogant contempt so ably made manifest by Alister Jack. No doubt she expects a legal challenge. Because of the way her proposed legislation is framed, the inevitable legal challenge will go to the UK Supreme Court. The place such legislation goes to die.
Let’s pause a moment to consider what powers are being begged from the British state and what powers might actually be given in that fantasy world where the legislation actually takes effect. We can be certain that if the British state were to concede any powers over the constitution, those powers would be limited and conditional. All she can possibly be seeking is a sort of rolling Edinburgh Agreement. A standing Section 30 order, if you like. Because that is the very most the British state might imaginably concede. And a powerful imagination is required to envisage that ever happening,
There is a better way. And I am at a loss to understand how, having set off on the journey which brought her to this idea, she chose to disembark the train of thought at a station which has no connections to her desired destination. A better way would have been to fight the first battle first. The battle to ensure we are able to exercise our right of self-determination in a proper constitutional referendum (see Stirling Directive Appendix II). A better way would have been to put the sovereign people of Scotland at the centre of her thinking rather than the British state.
Whether it’s a referendum in September or a de facto referendum attached to the Westminster election by the incorporation of the #ManifestoForIndependence into all pro-independence parties’ manifestos, make the question about the right of self-determination and the means by which we exercise that right. Do not defer to Westminster! Don’t even refer to Westminster! Simply ask the people of Scotland for a mandate to have the Scottish Parliament assert its legislative competence in all matters relating to the constitution.
Ostensibly, this would be for the specific purpose of facilitating the exercise of our right of self-determination which would otherwise be denied to us by the British state. But there is no need to limit ourselves to this. The Scottish parliament must take all powers over the constitution.
Three advantages immediately come to mind. Firstly, it is easier to get people to vote for more powers for the Scottish Parliament than for independence. So, there is a better chance of getting a conclusive vote in in favour of the proposal. Secondly, making the issue self-determination means it becomes a matter of human right and brings into play the European Court of Human Rights (ECHR) and/or the International Court of Justice (ICJ) should there be a legal challenge. Thirdly, it makes a legal challenge less likely because the UK government would have no grounds for objection. Or to be more precise, no arguments it would want aired in open court.
I don’t know whether Ash Regan is amenable to amending her proposals. There is a consultation on the Alba Party website but I was unable to access it for reasons I won’t get into here. I hope she and her colleagues are open to input from dissenting voices. Although experience tells me that’s a forlorn hope. For whatever it may be worth, here are the two things I think Alba Party must do if it is to become a significant force in Scottish politics.
Incorporate the #ManifestoForIndependence in the Alba Party manifesto for the Westminster (and subsequent) elections.
Demand that the Westminster election serve as a de facto referendum on a proposal that the Scottish Parliament assert its legislative competence in all matters relating to Scotland’s constitutional settlement.
That is the game-changer Scotland’s cause requires.
Peter A Bell 
“There is a consultation on the Alba Party website but I was unable to access it for reasons I won’t get into here.”
I may have made a contribution previously – I can’t remember – but now I can’t even find the Consultation on the website. There does not appear to be a Search facility either. If anybody can find it then I’d appreciate it if they could publish in the comments section btl on this article.
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Peter – downloadable here https://thereferendum.scot/wp-content/uploads/2023/11/Scottish-Parliament-Powers-Referendum-Act.pdf
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Thanks, Geoff. But I really don’t understand why this link isn’t included in every post on the subject by anyone representing Alba. It’s almost as if they don’t want anybody looking at it. Which I shall now do.
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That is all very logical Peter and as you have often pointed out it provides a process and a path through this. Thanks.
What i cant understand is complete lack of engagement from Alba or others with these ideas. Their politics must be in the way.
Why is nobody talking openly about this?
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The lack of engagement is one of the ways Alba is indistinguishable from the SNP. A tragic waste of an opportunity. Alba could have been a powerful force for Scotland’s cause before now but for the choices made by the party’s leadership. Just like the SNP!
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I have filled in the survey and commented about taking ALL powers necessary as per our Sovereignty over Westminster’s illegal Sovereignty. I have also commented on the franchise stating we should have a franchise as per U.N. guidelines, indigenous Scots only along with an agreed time residency for others. I have posted the link to the survey along with a request to read a #ManifestoForIndependence first. All the very best Peter I wish this process a very healthy outcome.
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Thanks, Stan.
Did you complete the consultation online? I tried a few times. But I kept landing on a page with instructions to click a non-existent ‘Next’ button.
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Hi Peter
I had no problems, straight through
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That’s odd. Almost certainly to do with my security set-up. But it’s strange that it should exclude just the one button. Unless there’s something iffy about the hyperlink. Which seems unlikely.
One of two things will happen. I will either resolve the issue tomorrow or, much more likely, I’ll have forgotten all about it by then.
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Me too.
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This was the advice to Martin Keatings (Forward as One), and the more interesting parts of it weren’t used in court, no idea why.
https://www.dropbox.com/s/1bkihw5dbltfwpv/Advice%20of%20Senior%20Counsel%20%28FINAL%20at%2014-01-2020%20at%201218%29 .pdf?dl=0 (remove space before .pdf)
Here’s some (for me) key snippets (I may have missed one or two!):
“… the United Kingdom may be said to have evolved over the course of 300 years towards becominga democracy …”
“The essential importance of understanding the UK constitution as being founded on principles of democracy enforceable by the courts, and the fundamental link between democracy and accountability, was most recently reaffirmed in the unanimous 11 judge decision of the UK Supreme Court in Cherry and others v Advocate General for Scotland.”
“Nevertheless, it includes numerous principles of law, which are enforceable by the courts in the same way as other legal principles.In giving them effect, the courts have the responsibility of upholding the values and principles of our [UK} constitution and making them effective.It is their particular responsibility to determine the legal limits of the powers conferred on each branch of government, and to decide whether any exercise of power has transgressed those limits. The courts cannot shirk that responsibility merely on the ground that the question raised is political in tone or context”
“Dicey”
“n a constitutional democracy all power is limited,and it is the task of the courts to explain and set out those boundaries and rule on when and if powers granted under the constitution are being abused.”
“Although, in enacting the Scotland Act 1998,the devolved Scottish Parliament was undoubtedly established by the Union Parliament as a body to which decision-making powers had been delegated,that does not entail that the Scottish Parliament therefore owes its legitimacy to the Union Parliament(or indeed the UK Government)”
“The primary mechanism to affirm and maintain the democratic accountability of a democratic legislature consists in regular periodic elections (under a franchise which aspires so far as practicable to universal and equal suffrage) to determine the legislature’s membership and make-up.”
“On specific issues of political or constitutional moment, however, it might be more appropriate for the legislature to make provision for direct consultation with, and voting by, the people on a specified single issue by way of a referendum”
2 – – – –
The idea for me is that the Scottish Parliament has evolved in its 24 years, been given more democracy by 6 general elections, has gathered more authority to itself, and in doing so has evolved PAST its creation by the Scotland Act. A full franchise of the People of Scotland including 16 and 17 year olds has propelled this evolution. Dicey with his idea of the sovereignty of parliament is long past his sell by date. It’s the people, not the parliament (even including the UK as opposed to Scotland).
Successful recall petitions, by the way, aid and emphasise this natural evolution. And the courts, which up to now have dodged this issue by saying “it’s political”, are wrong to do so. They MUST uphold the Rule of Law which includes the accountability of parliament (UK and Scottish), to the People.
From this point of view, holding a referendum to get the definitive support of the people, that we have the right to hold any bloody referendum we choose, is a good idea, even though if the courts did their job properly and with courage rather than cravenness, it would be unneccessary.
Sorry about the length.
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I always miss something. That advice by the way, was by Aidan O’Neill KC, the same advocate Regan is using. Good luck to her.
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I’m strongly allergic to Dicey by the way. A dude who lived back in the day when it was considered the duty of rich – male – landed – dudes, to put themselves forward for election by other mostly rich landed dudes, and them mostly male.
Well Judges and Judgesses, things have moved on from then, it’s a teeny weeny little thing called – universal suffrage. Keep up at the back there.
The good thing is that bit by bit more legal bods are taking courage in hands to criticise the often ridiculous decisions of the court over constitutional matters. And about time they caught up with the 20th century, let alone the 21st.
That’s it from me you’ll be pleased to know!
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The catch is that Alba seems incapable of fielding a full slate of candidates for a general election. The MFI cannot possibly have any impact if it is only available to voters in three or thirty constituencies.
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And yet Reform U.K. is intending to field candidates in every constituency!
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Who is funding Reform UK? (Rhetorical question.)
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The idea of the #ManifestoForIndependence is that it should be adopted by ALL the nominally pro-independence parties. There will always be at least one such candidate in every constituency. And having a common manifesto obviates any concerns about splitting the vote. Vote for any pro-independence candidate, and you’re voting for the #ManifestoForIndependence.
Of course, concerns about splitting the pro-independence vote suit the SNP. They alone benefit from that particular worry. So it was always unlikely that the SNP would eagerly embrace the #ManifestoForIndependence. They were never likely to be the first to sign-up. If, however, Alba Party was to incorporate the #ManifestoForUndependence in its manifesto, and enjoyed a wee surge in the polls as a result, the SNP would have to think again.
Alba will never be an electoral threat to the SNP until it adopts a distinctive and more radical approach to the constitutional issue. This has been true from the outset and largely explains why the party has been so slow to take off. Alba attracted a lot of the disaffected former SNP members who weren’t inclined to read the small print. There’s barely a trickle of those now. And much the same pattern applies to voters. They need a fresh idea. Ash Regan’s draft Bill isn’t it.
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Your last paragraph here – in particular – is spot-on , P .
It’s massively disappointing & frustrating in equal measure that ALBA is so tepid in actually manifesting it’s stated desire to be all that the current SNP isn’t . It will cost them dearly if they don’t start displaying a much better informed ( by the New Thinking ) and radical face to the Scottish electorate .
I honestly believe there is real appetite and desire for such a stance amongst the disaffected/soon to be disaffected pro-Independence demographic . Boldness begets boldness ; I’m confident this would be true in our case .
Treading the same dreary , unproductive course will simply result in the same dreary , unproductive results . And , sooner , I think , than later , that course will lead Scotland to the cliff-edge , over which the implacable , extremely well resourced forces of Unionism will push us . This is their endgame – the obliteration of any hope/chance for Scotland to regain it’s freedom .
I get the impression , left to her own instincts , Ash Regan has – or certainly could have , the * Right Stuff * to be the leader we urgently require , but is being constrained by the ” Old Thinking ” still dominant within the ALBA leadership .
I don’t suppose anything will change within ALBA before the looming G.E , but if that Party doesn’t make significant progress in it , surely they will be compelled to make some real changes . Yes , including THAT one
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“Boldness begets boldness”
Aye!
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Aye Robert, until ‘THAT’ one is addressed ALBA will along with Ash Regan be constrained by “Old thinking” and will be in grave danger of becoming no more than a appreciation society for disaffected former SNP members.
ALBA Party MUST make ‘significant progress’ well before the next G E if any of the proposed candidates are to achieve any electoral success. ‘Boldness’ you say is required, to date that quality has yet to find meaningful expression!
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A referendum to decide if HR has the ability and the legality to hold a referendum , FFS what a crock of shit that is , what happened to the occasional spouting of Salmond and others that Scots are SOVEREIGN, yet this is the best thing the expert strategist messiah and his latest prodigy can come up with to CHALLENGE the WM establishments hold , please WM can we hold a referendum, NO ,now go away
No wonder Sara Salyers exposures at the ALBA conference excited independence supporters and those exposures and Sara Salyers were immediately sidelined and ignored by the messiah and his troops , it would have meant LEADING the fight for independence , and sharing the vision and REALITY of real SOVEREIGN Scots instead of appealing for more scraps from the masters table, what kind of mentality do you have to have to think proposing a bill to ask for a referendum to ask if you have the authority to run a referendum makes any kind of sense
Nae wonder we’re fucked
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