Unappealing options

As you get older and your memory starts to deteriorate, you have to deal with an increasing number of problems. You graduate from forgetting to do things to forgetting whether you’ve done things. Just as you get used to being unable to recall names, you start to forget faces. No sooner have you figured out a coping mechanism for that than the next – and probably the worst – stage is upon you and you begin to imagine you recognise faces. Before long, you start to dread leaving the house as every encounter with people involves a stressful struggle with fading faculties.

Similarly, having just resigned yourself to your inability to hold information in your head – such as your children’s names and, betimes, your own – you start reading or hearing bits and pieces of information and thinking you’ve already been given that information, but have forgotten. This may seem trivial, but if the information is important or significant or time-sensitive, it can cause flashes of panic such as an older person can well do without.

I had one on those momentary panic attacks this morning on opening the Sunday National to learn that “Nicola Sturgeon last week set out the next steps on indyref2 after the rejection of a Section 30 order by Boris Johnson“. Did she? How could I have forgotten that? What were these “next steps”?

As the panic subsided I realised this was just a case of a journalist looking for a good scene-setting opening for their article and plumping for one that plays small havoc with the reality. Of course, we’re still waiting to hear what the “next steps” are. A statement has been promised for next week – Wednesday, I think, but don’t take my word for it – when we may learn something memorable.

Not that there will be any great surprises. As Judith Duffy demonstrates when she’s done giving me palpitations, there aren’t that many options and, unless the First Minister has conjured something so novel as to be beyond imagining by anyone else, all the options are known. Judith helpfully lists them and examines each in turn. Almost as if she’s trying to make amends for that opening sentence.

The first, and many feel the most likely option is continuing to push for a Section 30 order, perhaps with the possibility of cross-party support thrown in to give the impression of something new. Not just Section 30 but Section 30 plus! New improved Section 30 with added grudging and condition-ridden concessions to democracy from a handful of British politicians.

Somehow contriving polling indications of a rise in support for independence and/or a new referendum is supposed to add to the pressure on Boris Johnson to change his mind about allowing us to exercise a right he has no legitimate authority to stop us exercising. Pressure that is presently notable only for its absence. Boris Johnson sleeps easy with a very strong hand which includes an 80-strong majority in the House of Commons, sovereignty of parliament enshrined in law by way of the Brexit Act and, of course, the Union. All of which militate against him feeling any pressure at all no matter how often Nicola Sturgeon ‘demands’ a Section 30 order. And no matter how many opposition politicians and assorted celebrities and academics take her side in the matter.

There may be an explanation here for the FM’s delay in responding to Johnson’s totally anticipated Section 30 knock-back. She may be waiting in hope that the first post-election poll(s) will show a significant rise in support for independence. She will be doubly relieved should she get her wish in this regard. She will be glad to see increasing support for independence, of course. But she will also be quietly relieved to have an excuse for continuing to try rely on the goodwill of a British government which, to date, has shown only ill-will in all matters relating to Scotland.

By persisting with the Section 30 process Nicola Sturgeon isn’t only hoping Boris Johnson will change his mind, she’s hoping he’ll undergo a change to his very nature. This conjures images of a cocooned ugly Boris caterpillar emerging as a beautiful butterfly having metamorphosed in the gentle heat of ‘pressure’ from various sources – none of which the now-transformed grotesque Boris-bug held in any regard at all.

Moving on before the corrosiveness of my cynicism about option one burns a hole in my laptop screen, next on Judith’s list is the option of holding a referendum without a Section 30 order. I think this is what is meant by the ridiculous term ‘DIY referendum’. As if there could be any other kind. A flat-pack referendum from IKEA, perhaps? Or a ready-made referendum advertised as requiring no home assembly with free next-day delivery for Amazon Prime subscribers? Maybe the alternative to a ‘DIY referendum’ is one held on our behalf by the Swiss – them having lots of experience. Or maybe it’s just a daft term that we should consign to the bin without further thought.

This option has been suggested by, among others, SNP MSP Alex Neil. He has called for Holyrood to hold its own “consultative vote” on independence. Another rather silly term given that every plebiscite is a consultation with the electorate. But by calling a referendum ‘consultative’ or ‘advisory’ it is implied that the result won’t, or won’t necessarily, have any effect. No immediate or automatic action will flow from the result. It’s a referendum that needn’t cause Unionists any concerns as it will do nothing and change nothing. Other than, maybe, the ‘dynamic’ of the constitutional debate.

What distinguishes this option is that it is normal. This is the way it would be done anywhere else. The government would make a judgement that there was sufficient public demand for a referendum and the whole thing would be dealt with under the auspices of parliament with oversight by some kind of electoral commission. Normality is NOT asking the permission of or inviting interference from any ‘foreign’ agency. If Scotland were a normal country, there would be no obstacles or hindrances to the people of Scotland exercising their right of self-determination.

However it may be dressed up, the real reason for rejecting this option is that Scotland is not a normal country. Scotland is, as has been explained elsewhere, more akin to annexed territory than a nation which is party to a voluntary political union. The difference being that the latter would have direct and unimpeded access to a process by which the political union could be discontinued. Because of the Union, we cannot freely exercise our right of self-determination. And because we can’t freely exercise our right of self-determination, we remain bound by the Union which denies us our sovereignty and our basic democratic rights.

Scotland is effectively annexed by England and trapped. As somebody once said of the 1707 Union, England has caught hold of Scotland and is disinclined to let go.

Next on Judith Duffy’s list of things Nicola Sturgeon might consider as a “next step” is the option of challenging the refusal of a Section 30 order in court. According to the experts, the success of such a legal challenge would be dubious at best. And even winning isn’t winning, because the British state can simply change the law so as to cancel out the win. And even if the case is won and the British state accepts defeat then all that’s been won is confirmation that an independence referendum must be authorised by the British state and a referendum that is critically dependent on the goodwill of the British state which, if it existed, would have obviated the need for a court case.

Apart from the legal issues, and the fact that a court case could be extremely protracted, the Scottish Government taking the British government to court would be a strategic error. As the saying goes, it’s better to ask forgiveness rather than request permission. The Scottish Government should, at all times, act as if it is the democratically legitimate government of Scotland. Because it is! An ‘official’ government wouldn’t seek consent from anyone to hold a referendum. It follows, therefore, that the Scottish Government should act first and be prepared to meet any legal challenge initiated by the British government. In the language of our times, the ‘optics’ are better. The British look like the ones trying to obstruct the democratic process. Which they are!

Which brings us to what I reckon is Nicola Sturgeon’s favoured option – putting things off until the 2021 Scottish Parliament elections. The SNP is good at winning elections. Unsurprisingly, I can’t remember how many elections they’ve won. All of them for the past 12 or 13 years, if I recall correctly. It is understandable, therefore, that Nicola Sturgeon would prefer – perhaps relish – the prospect of an electoral test rather than taking the matter out of the political realm and into the courts; perhaps to languish there for many years.

The problem is that Ms Sturgeon has already come close to exhausting the patience of SNP members and Yes activists. There is a serious risk that failure to deliver the not-quite-promised 2020 referendum will dishearten and even alienate the very people the SNP relies on to man their formidable campaign machine.

And what would be the point? From the outside, it might look like a landslide win for the SNP in 2021 would put even more pressure on the British government. Personally, I’m far from convinced that denying a fourth or fifth or sixth mandate is any more difficult for the British political elite than denying the first. If anything, it’ll get easier with practice.

Yet again with this option we come back to the problem that the Union makes Scotland less than a normal nation. The Union makes Scotland subordinate to England-as-Britain in all matters and at all times. The British state could, in principle, respond to the supposed increased pressure, not by acceding to the request for a Section 30 order, but by abolishing the Scottish Parliament. Something British Nationalists are eager to do anyway.

To the British political mind it makes perfect sense that Scotland’s drive to independence should be permanently halted solely on the grounds that it is a threat to the Union. The self-serving circularity of this ‘reasoning’ would trouble them not at at all.

The final option on Ms Duffy’s list is a referendum on having a referendum. A referendum to prove the level of public demand for an independence referendum. To me, this would seem to combine many of the problems of a so-called ‘DIY referendum’ and the difficulties associated with using the 2021 Holyrood elections as a proxy referendum.

I have long argued that, if the First Minister has the right to demand a Section 30 order then she has the right to hold a referendum. Or, to put it another way, if Boris Johnson has no right to refuse a Section 30 order, as the FM and her ministers have claimed, then he has no authority to block a referendum. Similarly, if the British Prime Minister can discount a mandate for a referendum why would he not discount a mandate to hold a referendum on holding a referendum. The proposal comes up against the problem of infinite iteration. A referendum requires a referendum which also requires a referendum and so on forever and ever. Once you start asking permission, you’re never done asking permission because the very act of asking permission acknowledges the other’s right to demand that you ask permission.

My memory may be defective, but my mind is, I think, still reasonably sharp. Certainly sharp enough to recognise that the statement to be made by Nicola Sturgeon next week may be the most important of her political career. All eyes will be on her. Expectations are high. It’s the sort of situation where a politician would like to have room to manoeuvre. The kind of circumstances when a politician realises the value of options. The moment when they may regret having squandered so many.

None of the options listed by Judith Duffy gets the First Minister out of the bind she has created by her commitment to abiding by the rules set by those who don’t want her to have any options at all. We will learn next week whether she has come up with some way out of the Union entanglement, or whether we’ll all be asked to tune in again next week. If we remember.

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Beyond madness?

Given that Boris Johnson’s rejection of her Section 30 order ‘demand’ was anticipated Nicola Sturgeon’s response looks decidedly weak. The observation that the British political elite cares nothing for democracy and holds Scotland in total contempt is just stating the obvious. The claim that the British state’s position is “unsustainable” in the face of it quite evidently being sustained just looks silly. And the stuff about how the awfulness of the Brits will bring about a surge of support for independence might be credible but for the fact that the awfulness of the Brits is the stuff of ancient lore, and the tale of an imminent pro-independence surge seems almost as old.

In terms of action, we get nothing. Apparently, despite having been able to see the rejection letter coming, Nicola wasn’t prepared for it. She needs maybe another week. The nearest we get to anything of substance is the announcement that she will be seeking another parliamentary referendum. Presumably, because there’s a free M&S voucher if you collect enough of the things.

The concern for those of us not inclined to greet the First Minister’s every word with a standing ovation is that the approval she seeks from MSPs will be a straight copy of what was asked for in March 2017. Namely, permission to as permission. Because that’s what all strong leaders do. Isn’t it?

If Nicola Sturgeon goes back to the Scottish Parliament with a motion that mentions “discussions with the UK Government on the details of an order under section 30 of the Scotland Act 1998” then SNP MSPs should tell her to think again. Perhaps reminding her of the definition of insanity often attributed to Albert Einstein. If the definition of insanity is doing the same thing over and over while expecting a different outcome then endlessly repeating a course of action which never had a real possibility of the outcome you’re seeking surely goes well beyond mere madness.

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What's to stop them?

Simple question. What’s to stop them? What’s to stop the British government denying Scotland’s right of self-determination indefinitely?

Ian Blackford asks,

How many times do the people of Scotland have to vote for the SNP to give the Scottish Parliament a mandate to have an independence referendum?

Rather than ask what the number is he’d have done better to ask if there is a number. If one mandate can be dismissed then so can two. And four. And eight. And any number you care to think of. It is no more problematic for the British government to dismiss mandate number 1,765 than mandate number three. Or four. Or whatever it is that we’re at now. If anything, it gets easier for them. They’ll quickly get into a routine.

There is no cost to them. It costs the British government nothing to ignore a mandate for a new referendum. The cost is zero. It doesn’t matter what zero is multiplied by, it is still zero.

Ian Blackford asks,

Is he [Borish Johnson] really prepared to ignore a party that has got 80% of the seats from Scotland in this place and has won 45% of the vote?

Yes, he is. We know he is. Because he’s said he is very often and with as much clarity as he is capable of. And why not? Why shouldn’t he ignore 100% of the seats on 100% of the vote? The set of rules and procedures which Nicola Sturgeon has called the “gold standard” allows any British Prime Minister to ignore any vote in Scotland. Look at our 62% remain vote. 62% is more than 45% and two successive British Prime Ministers have ignored it with effortless ease and at absolutely no cost.

Any British Prime Minister can ignore any vote in Scotland with effortless ease and at absolutely no cost because that set of rules and procedures which Nicola Sturgeon calls the “gold standard” is built on the foundation of a political union contrived and imposed for the purpose of ensuring that the British Prime Minister and the parliament of England-as-Britain will be able to ignore all votes in Scotland in perpetuity.

A question for Ian Blackford. How is that situation going to change if the SNP isn’t prepared, and the Yes movement isn’t allowed, to even mention the possibility of ending the Union?

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The power of disdain

Patrick Harvie is seriously mistaken if he imagines that Boris Johnson is “ignorant of the political fallout from his actions”. Or should we say inactions? He understands the implications perfectly well. Or, if he doesn’t, he has people around him who do. One might credibly suppose the moment of epiphany for Johnson came during the ghastly zip-wire incident. Ghastly for him, at least. Hilarious for the rest of us. That may have been the moment when he realised that it is better to do nothing than make a total arse of anything.

Do nothing, and there’s nothing for the media to latch on to. There’s only so many ways you can say nothing happened. If the media aren’t shoving it in the public’s face every twenty minutes then it isn’t happening. Pretty soon, it never happened. Do nothing and you skip straight to the ‘never happened’ bit.

Boris Johnson has a record for doing and saying things which get him entirely the wrong kind of attention. It makes sense, therefore, that his advisers would encourage him to do and say as little as possible. The basic rule is that if it has the slightest potential to become a YouTube sensation, leave it out. Boris’s propensity for inadvertent slapstick is such that, even with the best efforts of his minders, we still get episodes such as the great hiding in a fridge incident. But at least he didn’t get roasted by Andrew Neil.

It works! The tactic is effective. If it’s a bit awkward, dismiss it! Discount it! Disregard it! Treat it with disdain. The proof of the pudding is that the pudding is now Prime Minister.

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No reply

We are told that Boris Johnson will respond to Nicola Sturgeon’s Section 30 order demand/request “in due course”. What does that mean?

Nicola Sturgeon last made a Section 30 order request at the end of March 2017, when she sent a letter to then British Prime Minister Theresa May. On 7 June 2019 May resigned without ever having made a formal response to Sturgeon’s letter. As far as Theresa May was concerned “due course meant never.

It is now approaching three years since the First Minister sent that letter. It still has not been answered. It was sent to Theresa May in her capacity as British Prime Minister. Boris Johnson took over that role, and responsibility for answering the letter, in late July 2019. He simply continued to disregard it as his predecessor had done.

If a formal request to the British Prime Minister for a Section 30 order from the First Minister of Scotland can be ignored for three years, it can be ignored for four. Or eight. Or indefinitely.

What did Nicola Sturgeon do about her letter being contemptuously ignored? Nothing! Because there was nothing she could do. She must have been aware that she had neither the power nor the political leverage to force a response. That is the nature of the Section 30 process to which she has committed. That is the nature of the relationship between Scotland and England-as-Britain. That is the nature of the Union.

On 19 December 2019, having been given yet another mandate by the people of Scotland, Nicola Sturgeon finally gave up hope of receiving a response to her first letter and sent a new one to Boris Johnson. She did so knowing that nothing had changed in the 30 months since the first letter was sent. She knew that this new letter could be ignored just as its predecessor was. But she sent it anyway.

Along with this second letter the First Minister sent a 38-page document outlining her arguments for the granting of powers which rightfully belong with the Scottish Parliament. Boris Johnson was not unaware of these arguments. Or, at least, the people who advise him were fully acquainted and able to inform him. Theresa May was also aware of these arguments. The arguments carried no weight with her. They carry no weight with Johnson. Nicola Sturgeon is aware of this also.

The curious thing about the case for a Section 30 order being granted is that, if the arguments are sound, there should be no need for the Section 30 order. If Scotland is incontestably entitled to a Section 30 order, as Nicola Sturgeon asserts, then Scotland is unarguably entitled to hold a constitutional referendum.

Once it is accepted that consent is required, it follows that it is accepted that consent may be refused. The argument that something which absolutely cannot be refused absolutely must be requested sounds like something out of Alice in Wonderland.

By committing to the Section 30 process the First Minister has accepted that she can simply be ignored. Something she didn’t mention even when acknowledging that she expected her demand/request to be refused. She stressed that refusal would not be the end of the matter. But she gave no clue as to what that meant.

We only have clues to what “in due course” means and how Nicola Sturgeon deals with being ignored. Those clues suggest “in due course” means whatever the British Prime Minister wants it to mean up to and including never. We also know what action Nicola Sturgeon takes in response to being ignored – none! Because there is no action she can take.

The ‘gold standard’ Section 30 process gives all the power to the British political elite. Boris Johnson can ignore a Section 30 request for as long as he wishes because there is nothing in law that says he must respond at all, never mind within a specified period. Neither does the ‘gold standard’ Section 30 process offer the First Minister any redress. Having embraced this process as necessary and ideal, she has no alternative but to accept the fact that this means giving all the power to the British Prime Minister.

The Section 30 process only works to the extent that the British Prime Minister is prepared to play along. The Section 30 process can only lead to a free and fair referendum if the British state cooperates. There are countless ways in which the Section 30 process can fail to or be prevented from bringing about a properly democratic referendum. There is only one way that it can succeed in doing so. And that way is entirely conditional on the goodwill, good grace and good faith of the British political elite.

And the British Nationalists are loving it! Expect to see more gleeful headlines like this from The Daily Express Monday 6 January.

Boris Johnson ignores Nicola Sturgeon’s second independence referendum demands

As you read such headlines bear in mind that they are not just gloating over Nicola Sturgeon’s powerlessness and Scotland’s humiliation, they are applauding Boris Johnson. Those who imagine that he might somehow be forced by public option to grant a Section 30 order are as deluded as any who thought he might feel obliged to do so due democratic principles weighing on his mind.

Johnson needn’t even feel obliged to offer the courtesy of a response. And the more he treats Scotland with high-handed contempt the more the voters he cares about will cheer him on.

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A matter of dignity

Once again I find myself wondering why “the democratic right of the people of Scotland to have a say on their future” must be conditional on the dubious gift of Boris Johnson’s respect. And why evidently intelligent and thoughtful people like Kirsty Strickland so readily accept this caveat.

Intelligent and thoughtful people will loudly protest the imposition of Brexit or austerity or any of countless policies and choices which are both anathema to us and a necessary condition of the Union. But when it comes to a condition which directly and destructively impinges on our fundamental democratic rights, they have nothing to say.

I don’t get it.

More to the point, I don’t want to get it. I have no intention of trying to get it. Not if getting it means being blase about an iniquity which should provoke howls of indignant outrage that don’t subside until the wrong has been entirely righted.

I would never write a sentence such as the one Kirsty closes with. I am not inclined to offer my dignity for Boris Johnson to wipe his arse on. Unfortunately, I can’t prevent our First Minister doing that on my behalf.

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Gold standard for the goose…

Alyn Smith says “Scotland cannot be dragged out of Europe against the wishes of our people“. Meanwhile, the article notes that the EU (Withdrawal Agreement) Bill passed its second reading in the British parliament with a majority of 124 and that this “means the UK is on its way to finalising its divorce from Brussels by the January 31 deadline”.

Which is it?

It seems odd to say this after the half-arsed slapstick of the UK Government’s handling of the Brexit process, but I have a fairly good idea of how Scotland will be dragged out of the EU with the rest of the UK at the end of January. I have absolutely no idea how Alyn Smith proposes to prevent this. He says it cannot happen. But gives no clue as to what might stop it happening.

Alyn Smith is in good company. As recently as August 2019 Ian Blackford Tweeted “I will not allow Scotland to be dragged out of the EU against its will”. This is typical of the SNP leadership’s rhetoric on the matter of Brexit. But there is, as yet, no substance behind the fine sentiments.

In this, we find echoes of the party’s statements regarding the refusal of a Section 30 order. It is declared ‘unsustainable’. But at no time are we told what is to prevent Boris Johnson from continuing to refuse a Section 30 request. Or, indeed, simply to ignore the request indefinitely.

The refusal of a Section 30 order is denounced as undemocratic. But so is the imposition of Brexit. And, just as the latter is proceeding despite the protestations, we are offered no explanation as to why the former will not do likewise.

Our First Minister is famously determined to ensure that everything the Scottish Government does as it pursues Scotland’s cause is in accordance with what the British state defines as “legal and constitutional”. That is her “gold standard”. Here’s the thing! By that same “gold standard”, imposing Brexit on Scotland is perfectly “legal and constitutional”. Refusing a Section 30 order is not contrary to any British law or constitutional provision.

Within the Union, it is constitutionally perfectly legitimate that Scotland’s 62% Remain vote should count for nothing. That is the principal effect of the Union. Within the Union, Scotland’s needs, choices, priorities and aspirations must always be subordinate to the interests of England-as-Britain.

Similarly, there is nothing in Section 30 of the Scotland Act (1998) that provides for the Scottish Government requesting a transfer of powers to hold a referendum, far less anything compelling the British Prime Minister to do so. Or even to respond to a request!

Boris Johnson is adhering to the same “gold standard” that Nicola Sturgeon has adopted as her guiding imperative.

To define either or both the imposition of Brexit or denial of a Section 30 order as illegal and unconstitutional we must refer to the very body of international declarations and conventions which Nicola Sturgeon insists are superseded by the “gold standard” of the British state’s self-serving laws and unwritten constitution.

It’s a puzzle, right enough!

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