I always read – and reread – Joanna Cherry’s column in The National with great interest – and great care. She is, after all, a highly respected lawyer with a strong track record in representing Scotland’s interests and a well-established reputation for clear and often novel thinking on the constitutional issue. What she says matters. Her opinions carry weight. Her perspective is influential. She is a person of some consequence and when she speaks or writes on matters of constitutional law her utterances should be attended to minutely.
I’m a big fan of the law. Lawyers? Maybe not so much! But the law as a concept, in my view, ranks among the greatest of humankind’s contrivances. Perhaps the greatest. For without it civilised human society as we know it could not exist. I like rules. Not rules for their own sake, but rules which fulfil a function. Arbitrary or pointless or unfair or unenforceable rules are more hindrance than help and tend to defeat the purpose of rules, which is to make behaviour predictable. Large, complex societies could not function without the rules which allow each to know with a fair degree of confidence what the other will do in any given situation. Or, at least, to be cognisant of the range of options available within the law.
We must have confidence in the law and the parameters of behaviour it defines in order to function. When we enter into a contract we have to be confident that that it will be honoured. When we walk down the street we have to be confident that the person coming towards us isn’t going to knock us down and rob us. We fear and detest lawlessness because it erodes our confidence that the world and society will work the way we expect it to.
It is the law which allows us this confidence. The better the law, the greater the confidence and the better society functions. The quality of the law, at least for the lay person, may best be assessed in terms of two criteria – clarity and fairness.
The other reason I’m a big fan of the law is language. To some, the language of the law may seem convoluted and impenetrable. But I find the quest for precision very satisfying. I refer, of course, to the best of the law. Because language can as readily be deployed to obfuscate as to clarify. But when the law at its best defines something then there is absolutely to room for doubt about what that thing is. Whether it is ownership rights or contractual obligations or what is acceptable or otherwise in terms of social behaviour, the more tightly it is defined the more likely it is that the law will be applied similarly in all cases and the more fair the law will be perceived to be.
Fairness is entirely about perception. Justice is what is dispensed by the courts. But that which a court of law deems just, people may well perceive as unfair. And, to a significant degree, if it is regarded as unfair then it is unfair. Good law may thus be defined as law which tends to produce outcomes which are both just and fair. That is to say that good law produces outcomes which satisfy both the precise demands of justice and the more nebulous human sense of fairness. Good law is that which is perceived to be fair by both those it favours and those it does not. By this definition, good law is a rarity. The exception to the rule. But we do the best we can.
All of this is by way of preamble to my comments on Joanna Cherry’s article. As I say, I have read and reread the piece and paid close attention to both the words and the language. Words convey meaning. Language conveys ideas. I want to understand both what Ms Cherry is saying and what she is thinking. I am ever mindful that she is both a lawyer and a politician, with all that this implies.
There’s bits I like. There’s bits I don’t like. I really like this bit,
From time to time activists send me lengthy legalistic arguments about Scotland’s nebulous status in the Union which they believe, if ventilated in “the international courts”, would lead to Scotland’s independence. I’m afraid that belief is misguided. There is no legal shortcut to independence.
I like it particularly because she goes on to stress that “The route to independence is through the ballot box.” It is gratifying to have this point expressed by someone of Joanna Cherry’s standing in Scotland’s independence movement. The “lengthy legalistic arguments” are part of a particular discourse in the constitutional debate which I refer to as ‘cunning plans’. Among those who want it, there have probably always been diverse views on how best to achieve the restoration of Scotland’s independence. For the most part, we no longer consider gathering in a field to smite one another with sharpened metal implements an appropriate way of pursuing a political objective. Although the politics we have may at times fall not far short of that level of brutality. But within the range of behaviours deemed acceptable there is room enough for a considerable variety of proposed solutions.
That there may have been something of a proliferation of ‘cunning plans’ – political, legal and electoral – over the last few years is, I would contend, a measure of popular frustration both with the enmeshing tangle of the British legal and constitutional framework and the SNP administration’s failure to navigate a path through that tangle. People are irked because they see unfairness in what is held to be the law and the people they hoped and expected would rectify this unfairness have not done so. Have made no progress towards. Have failed even to address in a way which inspires confidence.
It is possible that some elements of some of these ‘cunning plans’ may have some utility in the fight to restore Scotland’s rightful constitutional status. I can say only that I have not seen anything that seems useful. For the most part, these ‘cunning plans’ are ill-conceived, ill-considered and over-elaborate. Betimes it seems that those concocting these ‘cunning plans’ suppose that complexity is the key to credibility. My experience is that, either at or just beyond the second ‘if’ of the ‘cunning plan’ it enters the realm of fantasy politics. If this and if that then bring on the pastel-hued unicorns.
Scotland’s independence will not be restored by endless courtroom wrangles over this and that piece of the constitutional jigsaw puzzle. Nor will it be restored by way of the electoral system, no matter how much the arithmetic kaleidoscope is shaken. Joanna Cherry is right. The route to independence is through the ballot box. The people will decide. Not the courts nor the roll of electoral dice. The people must decide on the specific question of whether to discontinue the political union with England. They will deliver this decision by means of voting in a referendum. And that decision will be binding on all.
Which brings me to the bits that I don’t like about Joanna Cherry’s column. Or, at least, the parts I like less.
I strongly disapprove of the reference to a “wildcat or illegal referendum”. In the first place, I have no idea what a “wildcat” referendum might be other than that it is what British Nationalists will call any referendum that they disapprove of. And they have made it clear that they disapprove of any referendum. So, according to them, any referendum we might have would be a “wildcat” referendum. British Nationalists will deploy the term “wildcat” to exploit its connotations of impetuosity and recklessness. They will use it to suggest that any referendum is unofficial, unsanctioned, unauthorised and therefore illegitimate. Language matters! That term, and that type of language, should never be uttered by any SNP politician. Particularly one as prominent and respected as Joanna Cherry.
Nor should she be lending credibility to the concept of a referendum being “illegal”. If for no other reason than that it makes no sense. How could there be such a thing as an “illegal” referendum? If it is not sanctioned by the relevant and legitimate authority then it is not a referendum and cannot happen as a meaningful exercise. If it is declared “illegal” by some authority other than the relevant and legitimate one, then it is the declaration that is meaningless and the referendum perfectly legal.
What matters is not legality but democratic legitimacy. The democratic legitimacy of the authority sanctioning the referendum and the democratic legitimacy of the process involved in conducting the referendum. So long as there is that democratic legitimacy, mere local legality is meaningless.
Joanna Cherry states the issue rather succinctly,
My interest is in the question of how Scotland might hold a legally sanctioned referendum on the question of independence without having to be dependent on the Westminster Government’s permission.
Mine too, Ms Cherry! And I know that the reason the SNP has not found a way through that “enmeshing tangle of the British legal and constitutional framework” is that there is no way through. There is no path to independence within the legal and constitutional framework that has evolved as a carapace for the Union. Therefore, there is no possibility of a referendum that is ‘legal’ in the eyes of a British state unimpeded in its adopting of positions by considerations of fairness or justice or democratic principle.
I get the sense – and it is no more than a personal impression – that Joanna Cherry is aware of the futility of seeking accommodation and cooperation from the British political elite. I strongly suspect she realises that neither Plan A nor Plan B is viable; nor any plan which allows that the British state can have political authority absent any semblance of democratic legitimacy. I get the feeling that Joanna Cherry may be edging towards the position so ably declared by Jim Fairlie only a few weeks ago.
For a change, the headline over Jim’s column stated the point very succinctly.
Scotland must reassert its sovereignty to decide its constitutional future
Scotland! Assert! Sovereignty! Constitution! Those four words sum up the true solution to Scotland’s constitutional conundrum. Because in reality there is no conundrum. Only the Scottish Parliament has democratic legitimacy in Scotland. Therefore, only the Scottish Parliament can have the political authority to sanction a referendum to decide Scotland’s constitutional status. As Jim Fairlie says,
There is a road through this impasse however. It is bold. It is forthright, and it answers only to the people of Scotland.
More and more people are coming to the same conclusion. Scotland’s predicament has become such that it is increasing ridiculous to think in terms of the British state granting its gracious consent, by way of a Section 30 order, to the people of Scotland exercising their fundamental right of self-determination (Plan A). It is just as ridiculous to entertain notions of the British state acknowledging the competence of the Scottish Parliament in constitutional matters by way of the same Section 30 process. If the Scottish Parliament has that competence then it has it by virtue of its democratic legitimacy and not by the good grace of jealous Britannia.
Even if Plan A and/or Plan B were viable they would not satisfy Scottish aspirations. Maybe there was a time when we would have been content with independence as a gift from the British state. (Or maybe there wasn’t and that at least partly explains the tragedy of 2014.) But no longer! No longer will Scottish aspirations be satisfied by anything less than the independence that we take for ourselves. For it to be our independence it must be restored by a process sanctioned by our Parliament and none other!
It’s our nation! It’s our right of self-determination! It’s our referendum! It has nothing to do with Westminster and Westminster should have no role or presence in a process entirely made and managed in Scotland under the auspices of Scotland’s democratic institutions.
What we urgently need is to hear this bold and forthright position declared by our political leaders. Or, at least, by those among our political representatives who possess the fortitude to show leadership. Could this be Joanna Cherry?
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