An ill-conceived Bill

Neale Hanvey’s Scotland (Self-Determination) Private Members’ Bill is fundamentally flawed in a number of ways. It is flawed in that it concedes to the British parliament the authority to veto the right of self-determination that is wholly vested in the sovereign people of Scotland. He is asking that the British political elite graciously grant the Scottish Parliament the legislative competence to facilitate something the people of Scotland have an absolute and inalienable right to do – determine the constitutional status of our nation and choose the form of government which best serves our needs, priorities and aspirations.

Power is not given. Power is only taken. By asking for this power, Neale Hanvey implies acceptance of the British state’s ‘right’ to withhold it. When you ask someone to say yes, you acknowledge their right to say no.

The Bill is also unsatisfactory in that it fails to define what is meant by a “Scottish independence referendum”. The assumption must be that what is being asked for is no more than a kind of rolling Section 30 order. It cannot be a permanent transfer of power because the British state retains the asserted ‘right’ to amend all devolved and reserved powers. What the British state gives with one hand it can readily snatch back with the other.

What the Bill does not seek is the power to hold a proper constitutional referendum. That is to say, a referendum that in all regards accords with internationally recognised standards and stands as the formal exercise by the people of Scotland of their right of self-determination. Even if Neale Hanvey’s Bill did seek the legislative competence to hold a proper constitutional referendum, we may be absolutely certain that the British state would never willingly allow a referendum which met the criteria set out in Stirling Directive Appendix II.

All the British state could conceivably grant – and therefore all Neale Hanvey can possibly be requesting – is the legislative competence to hold a 2014-style Section 30 referendum. A referendum which is, to use Nicola Sturgeon’s phrase, “consultative and non-self-executing”. A referendum such as the Lord Advocate stated could have no legal or constitutional effect. A non-binding referendum which would change nothing.

The legislative competence to facilitate the kind of referendum Scotland needs is not in the gift of Westminster. Only a thoroughly colonised mind puts Westminster thus at the centre of the constitutional issue. The Scottish Parliament can only acquire the legislative competence required to facilitate a proper constitutional referendum by asserting that power in precisely the same way that the British ruling elite asserts its ‘right’ to prohibit us from exercising our right of self-determination.

The people of Scotland are sovereign. That means we are the ultimate source of legitimate political authority in Scotland. Not Westminster! And not Holyrood either! Yet another serious flaw in Neale Hanvey’s Bill is that it allows the Scottish Parliament to place restrictions on our right of self-determination in very much the same way that the British state does. According to the Bill, we would be prevented from exercising our right of self-determination more frequently than once every seven years. Supposing there was enormous public demand for a new constitutional referendum six years after a previous one, the Bill would effectively overrule the sovereign people of Scotland. It would, in fact, deny our sovereignty. It would legitimise the alien concept of parliamentary sovereignty.

Now, it may be argued that we are unlikely to want a constitutional referendum more often that once every seven years. That is not the point. Anything which undermines the principle of popular sovereignty is dangerous and unacceptable.

Neale Hanvey does Scotland’s cause no favours with his ill-conceived Bill. He would do well to withdraw it.