Cherry on top

If people are seeking a ray of hope in the understandable gloom of the constitutional issue, it to be found in Joanna Cherry’s weekly column for The National. Not that I have no quibbles with what she says. It would be a remarkable feat indeed for Ms Cherry – or anyone else for that matter – to write something with which I was in total agreement. But the basics are sound. And growing more sound over the weeks.

I anticipate that this column will become one of the most referenced articles in the constitutional debate. It’s fair encrusted wi’ gems o’ truth an’ pearls o’ wisdom!

Acts of the UK Parliament cannot be challenged in court. Westminster could abolish the Scottish Parliament if it wanted to and no legal action could change that.

Joanna Cherry: Politics is not on hold – we must keep independence in sight

A truth long known but all too seldom told and recognised.

Well, first off, we must not fall into the trap of conceding that the fight against the coronavirus and dealing with its economic fallout precludes pursuing the goal of independence. Politics is plainly not on hold. Brexit is proceeding at full speed. Devolution is under attack. The Tories are continuing to pursue their constitutional agenda. We must do likewise.

Joanna Cherry: Politics is not on hold – we must keep independence in sight

Denying this is not a good look for any politician. It’s the wrong shoes for Nicola Sturgeon.

A strategy which rests solely on the assumption that Boris Johnson will grant a Section 30 Order if the SNP win just one more mandate is a risky one.

Joanna Cherry: Politics is not on hold – we must keep independence in sight

An understatement, for sure. But an understandable one. Joanna Cherry is working towards a position that would be difficult for her to approach other than with a modicum of caution. As someone who has the utmost regard for gravity and an abiding awareness of the almost proverbial inelasticity of rock and who has, therefore never looked at a mountain and thought it’s height a gauntlet thrown before my ego, I hesitate to deploy a mountaineering metaphor. But we might think of what Joanna Cherry is doing as hammering in pitons to aid her ascent to the summit of a position on the constitutional issue which (even more) directly challenges that taken by the First Minister.

I for one look forward eagerly to the moment when Ms Cherry plants Scotland’s flag atop that peak.

Meanwhile, I cannot possibly agree that “the route followed in 2014 is the gold standard”. But I can appreciate why Ms Cherry might say such a thing. It is politic for her to do so at this stage. Nor can I go along with the focus on developing post-independence policies in the hope of winning over wavering No voters. Quite apart from the fact that restoring Scotland’s independence is a question that will be decided in a referendum and not an election, any policy position is liable to be disliked as much as it’s liked. As Elliot Bulmer so succinctly put it in a comment an a recent Facebook post of mine “The choice is between states, not governments.”

Policy development is essential, and much good work is being done in that area. But none of it should be thought of as part of a referendum campaign. That was one of the mistakes made in the 2014 referendum. The constitutional issue got lost in a fog of policy debate. When (if?) a new referendum is held, we will not be electing a party to govern after independence. We will be choosing between the British state and the Scottish nation. We will be choosing between the constitutional anomaly of the Union and the constitutional normality of independence. That is all we will be choosing! These will be the only two options! Focus!

But we can surely forgive this lapse. It relates to matters of campaign tactics rather than overall strategy and is something that can be fairly easily rectified. Besides, Joanna Cherry has other things to say which are more deserving of our attention and consideration both for what they say and what they imply. My pick of the quotes would be the following,

But the reality is that because “power devolved is power retained” we cannot win this fight in the context of a devolved settlement which is designed to ensure Westminster’s supremacy. Nor, in the face of Westminster legislation, can we win this fight in the courts.

Joanna Cherry: Politics is not on hold – we must keep independence in sight

What is not explicitly stated but is necessarily implied is the matter of what’s left when you discount the courts and the “context of a devolved settlement” – which must be understood as implying the constitutional and legal framework constructed by the British state for the purpose of preserving the Union and “the dominance of England[-as-Britain] in our unequal Union”.

What is left is the Scottish Parliament and a new constitutional and legal framework constructed for the defence of democracy in Scotland. A constitutional and legal framework informed by the distinctive political culture which British Nationalists are seeking to eradicate along with such other distinctiveness as is deemed inimical to the ‘Little Britain/Greater England’ fantasised about by those British Nationalists. A constitutional and legal framework built on the solid foundation of the sovereignty of Scotland’s people and the democratic legitimacy of the Scottish Parliament.

Joanna Cherry may well be hinting at, and perhaps working towards, the very conclusion arrived by myself and others in the thoughtful portion of the Yes movement. The conclusion that Scotland’s independence can only be restored by the Scottish Parliament. And only if we break free of the “context of a devolved settlement”. Precious few listen to me when I say this. Very many listen to Joanna Cherry. As they should.

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Who knew?

I see people are at last waking up to the constitutional implications of Brexit. Talk from Michael Gove of creating a legally defined internal market in the UK has prompted a flurry of panicky criticism from the likes of Scotland’s Constitution Secretary, Mike Russell and outraged condemnation from columnists such as Ruth Wishart. Apparently, there is a serious threat to the devolution settlement involved in the UK’s slapstick departure from the European Union. It seems the British political elite is intent on exploiting Brexit as an opportunity to undermine the Scottish Parliament. It seems that while the unquestionably and inevitably dire economic consequences of this economic vandalism were obvious to one and all, the equally certain and unavoidable constitutional implications somehow got missed. Who knew?

Well, everybody? Or at least anybody who wasn’t too distracted by the all too credible accounts of economic catastrophe to think it through. Even when the EU referendum was still no more than an ominous prospect and the term ‘Brexit’ was not yet on everybody’s lips, the fact that quitting the EU would cause constitutional as well as economic upheaval was glaringly obvious. But, as always, the spotlight fell on the latter while the former was afforded almost no attention. When I say “always” I am, of course. thinking of the 2014 referendum campaign. A constitutional issue all but totally obscured by a thick smog of economic disputation.

There are reasons for this. Whenever established power is talking about something it’s wise to ask what it is that they are avoiding talking about. And when established power is looking for something a topic that serves to obfuscate, they turn to economics. Three things make economics ideal for the purposes of generating a propaganda smoke-screen. Firstly, the sheer volume of material available. Cross the economists’ collective palm with enough silver and they will churn out an utterly bewildering mass of charts and graphs and statistics and reports and analyses and forecasts. More than enough to bury any subject that established power would prefer to keep off the agenda.

Secondly, economics is the go-to topic for scare-stories and doom-mongering. Rosy pictures are also available if required. But Jeremiads are the economist’s speciality. Bad news is headlines. Good news is ‘and finally’. And when politicians have little or nothing to offer then their only resort is to paint the alternative as worse.

Thirdly, nobody understands it. Economic arguments can be as arcane as you want. And if people begin to get a handle on the intricacies you can always introduce more. This is great if you want people to switch off or if you want to portray opponents as too stupid to grasp the ‘science’. Having made things too massively complicated for people to be able to discern the facts you’re seeking to conceal, you can then make yourself a popular hero by ‘clarifying’ and ‘simplifying’ the economics – a process which involves omitting the facts you’re trying to conceal.

So the constitutional implications of Brexit didn’t get much of a look in. Constitutional politics is dismissed as not being about real life in the real world. As if economics was! Those rights and freedoms are all very well, but will you be paying more tax? That’s the important question. Why are you fretting about democracy when people are homeless and hungry? It’s nice to have aspirations, but they just aren’t economically viable. We have to make the hard choices. There is no other way!!!

But those constitutional implications were always there. When I explained my support for Remain in the 2016 EU referendum, economics didn’t get a mention. Not that I was unaware of the economic issues. I just didn’t attach much significance to them. The economy is like the weather. It’s considerably less predictable and no more controllable. There are periods of sunshine and spells of rain. You have to get through them. That’s all.

Neither did I explain my support for Remain by great enthusiasm for the EU. I am conscious of the benefits it has brought to a Europe previous blighted by bloody and seemingly incessant conflict. I’m aware of its failings. It’s a human contrivance. I don’t expect it to be perfect. I’m content if it sort of works for the most part.

By far the biggest part of my personal argument for a Remain vote was my concern for how the established power of the British state would exploit the chance to redefine the UK for the purposes of a British Nationalist agenda. I knew for certain that they would not miss the opportunity. The UK was redefined on joining what was to become the EU. It seemed obvious that it would have to be redefined again on leaving. Having just been given a fright in the independence referendum as well as having their hive mind focused by the electoral successes of the SNP, it seemed obvious that the British establishment would be intent on doing whatever was required to preserve the Union.

And so it has transpired. It’s no surprise at all. Why would it be? We were told! Only a year ago, since discarded Scottish Secretary David “Baron Snackbeard” Mundell was banging on about “UK-wide common frameworks”. A term which at the time I warned should send a chill down the spine of anyone who placed the smallest value on Scotland’s distinctive political culture. Or, for that matter, our democracy.

If only that elephant in the room had been brilliant orange and decked with sleigh-bells and fairy-lights! Maybe more people would have noticed it.

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A little misunderstanding

Will we do this at the same time in Scotland as the rest of the UK? That will depend on what the evidence tells us. It’s not a point about constitutional ideology either way.

First Minister Nicola Sturgeon MSP

I worry when I hear Nicola Sturgeon say things like this. I worry a lot. The inescapable impression is that she hasn’t grasped the essence of constitutional politics. How can anyone sensibly claim that “constitutional ideology” has nothing to do with the ability to act independently according to a distinct interpretation of evidence? Effective political power is precisely what constitutional ideology is all about.

Scotland’s civic nationalist ideology holds that the power to act as the First Minister says she intends should rest with the government that is democratically elected by the people of Scotland. British Nationalist ideology insists that ultimate power rests with a British government and a British Parliament which no democratic legitimacy in Scotland. Scottish nationalist ideology gives primacy to democratic principles. British Nationalist ideology prioritises the structures of power, privilege and patronage which define the British state over everything else – including democracy, justice and the well-being of people throughout the UK.

Our First Minister can only have the power she claims to the extent that Scottish nationalist ideology prevails. Yet she appears to believe that the efficacy of her office and her Government is “not a point about constitutional ideology”. My sense – and it can be no more than that – is that she regards Scotland’s constitutional status as a matter of party policy like any other. Which implies that policy can change. That a party’s stance on the question of Scotland’s constitutional status can be modified if circumstances justify it. Since she is leader of the SNP, the implications are worthy of consideration.

Constitutional ideology is not at all like any other other area of politics. Constitutional politics both overarches and underpins all of a nation’s politics. Constitutional politics is about the power to decide. A constitutional ideology is position on what is the ultimate source of legitimate political authority. Democrats, including Scottish nationalists, take the position that the people are the ultimate source of legitimate political authority. That sovereignty resides with the people. That only the people can therefore bestow legitimacy on effective political power.

British Nationalism is anti-democratic in that, even while paying lip service, it denies popular sovereignty insisting rather that the ultimate source of legitimate political power is the divinely ordained monarch – or “the Crown in Parliament”.

It is only possible to maintain that Scotland’s constitutional status is not a point of constitutional ideology if one reduces the fundamental democratic principle of popular sovereignty to a matter of party policy. There can be no equivalence between democratic and anti-democratic ideologies. Democracy can accommodate diverse positions on matters such as the operation of the tax/benefit system and education and transport and social welfare and everything else. Democracy cannot accommodate anti-democracy. Fundamental democratic principles must not be compromised for the sake of political expediency. Questions of sovereignty are not rightfully the province of party policy.

Whether we do anything in a distinctive way informed by the needs, priorities and aspirations of Scotland’s people is by definition a “point about constitutional ideology”. It is deeply disturbing that Scotland should be labouring under a political leadership which denies this.

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Three crises

There is no law of nature or humanity which provides that there can only ever be one crisis facing a nation or the world at any given time. And yet this is what apologists for the SNP’s failure ask us to accept. They effectively insist that because there is a public health crisis, nothing else may concern us or occupy a moment of our attention lest we be condemned as cold and uncaring – heedless of the human cost, if not actually responsible for some part of it. It would be interesting to examine this curious mindset. It could be informative to reflect on the causes of this extreme tunnel-vision. In particular, it might be illuminating to consider the role of the mass media in creating a population whose attention can so readily be manipulated by or on behalf of powerful forces in society.

But that is not my purpose here. Perhaps another time. For now, I think it important to consider the reality which is being excluded by the contrived and quite unnatural obsession with a public health threat which, while undoubtedly serious, is now being exaggerated to rationalise the irrational exclusion of all political and social issues from public attention.

As is very often the case, Scotland is the exception. It is strange that the thing that is most insistently excluded from public attention, the thing that is most immediately and comprehensively set aside, so consistently tends to be something that is of particular relevance to Scotland. Part of this irrationally obsessive mindset involves the well recognised phenomenon of abstraction from any historical context. Events are regarded as one-off. Singular. Unique. Failures of the capitalist economic system, for example, are reliably portrayed as unprecedented when, in reality, they are frequent enough to be commonplace. Economic crises are presented as isolated instances when, in fact, our economic system is in a constant state of crisis. It simply suits some purpose of the powerful to have us concentrate all our attention on one small section of the timeline. Like blanking out all but a few selected frames in a movie or ripping out all but a small number of pages from a book and convincing everybody – or enough people – that this is the whole story.

Lest you think this phenomenon manifests only in the realm of global economics I’ll mention one further instance which always comes to mind when this abstraction is discussed – the terrorist attacks on the Twin Towers in New York. One aspect of this magnificently horrific incident evident to those inclined to consider its wider implications was that it was not considered fitting to consider wider implications. The incident was lifted entirely and completely out of the great play of history and placed centre stage and alone with every light in the house thrown on it and everything around it cast into darkness. Any attempt to restore the incident to, for example, the context of US foreign policy was, shall we say, vigorously opposed. In fact, even to attempt such a thing risked being metaphorically burned at the stake for heresy. If the attempt was made in America the immolation might be less metaphorical.

As with bank collapses and terrorist atrocities, so with the current public health emergency. It’s the only thing there is. One crisis only allowed. Nothing else matters. To suggest that something else matters is to invite accusations of attempting to diminish or dismiss the seriousness of the ‘real issue’.

But the world is not so monochromatic. There’s every shade of grey and every other hue besides. This is not a controversial observation. All but the most devoted coronavirus obsessives might agree were the question put to them directly. There is no law of nature or humanity which provides that there can only ever be one crisis facing a nation or the world at any given time. The COVID-19 pandemic is a serious public health issue. But it is not and cannot be the only issue. Life goes on quite literally regardless of the things that inevitably loom large in our personal sphere – such as bereavement – and the things that are made to loom large by those who stand to benefit from having them loom large enough to push everything else out of our sight.

In Scotland, what always and immediately gets unceremoniously pushed below the bottom of our list of priorities is the constitutional question. Is that not something worth pondering? The constitutional issue is one day the single overarching matter in Scotland’s politics, and next day nowhere to be found. How does that happen? Why this issue? To stay firmly within living memory, the tipping of the global capitalist system from constant to particular crisis in 2007/2008 instantly prompted shrill demands that Scotland’s constitutional issue be completely removed from the agenda. Note that it had to be purposefully, forcefully removed. Other issues could be relied upon to find their place in the calls upon the public’s attention and concern. Actual effort was demanded to ensure that the constitutional issue was consigned to the sub-basement of priorities. Have you never wondered why?

Likewise with the Brexit fiasco. Ever since the Leave vote in England and Wales meant that Brexit would be imposed on an unwilling Scotland, the shrill voices of those who presume to decided such things on our behalf have asserted as fact that it is not possible to both deal with Brexit and be in any measure preoccupied with Scotland’s constitutional issue. Only and always and most insistently Scotland’s constitutional issue. Have you never wondered why?

Now it’s COVID-19. Almost the moment the existence of the virus became known it was seized upon as yet another justification for taking the constitutional issue ‘off the table’ completely. Do you not wonder why? Are you not yet beginning to see a pattern emerging?

And it is particularly the constitutional issue that is the matter we are supposed to put entirely from our minds. Nobody suggests that the coronavirus crisis obviates the climate crisis. Nobody has suggested that the conflict in Syria has ceased to be of any importance because only the coronavirus crisis can be important. The public health crisis certainly hasn’t put a stop to the British political elite’s constitutional machinations. If anything, the malignant child-clown in Downing Street is accelerating its plans and intensifying its efforts to forcibly mould these islands into a new state made in the image of the imagined ‘Great Britain’ of a grotesquely mythologised past. Only in Scotland are we expected – required – to abandon our aspirations for something better than Boris Johnson’s tawdry blend of Little England and Greater England where every day is a crossover between Dad’s Army and Terry & June. Don’t you ever ask yourself why?

There is no law of nature or humanity which provides that there can only ever be one crisis facing a nation or the world at any given time. At this moment, there is a public health crisis. But there is also a constitutional crisis. The public health crisis needs to be addressed and can be handled without any difficulties which aren’t the product of human folly. But what of the 99% who survive? What of their future and the future of the generations to follow? When the COVID-19 pandemic ceases to hog the attention of the mass media and hence the general public, Scotland’s constitutional crisis will still be there. It will still need to be resolved. It will inevitably be even more urgent given that British Nationalists are not being in the slightest bit hindered in their campaign by the coronavirus pandemic. Does that not lead you to wonder whether it is a good idea to drop the independence campaign completely? Has it suddenly ceased to be important that we set up some resistance to the escalating onslaught on our democratic institutions, our distinctive political culture, our essential public services, our civil and human rights as citizens of Scotland and our very identity as a nation?

Which brings me to the third crisis I want to bring out of the deep, ominous shadow cast by COVID-19 (and whatever is to be the next mono-crisis) and into the light of public attention. There is a constitutional crisis in Scotland. But our means and effort to address this are also in crisis. The Yes movement is in crisis. The independence campaign is in crisis. And it has bugger all to do with coronavirus. Responsibility for this crisis lies squarely on the shrugging shoulders of the SNP. With their apologists perhaps due some small share of blame. It’s bad enough when the British political elite tries to demote our constitutional crisis to insignificance and with it our aspirations for a better nation and a better society. It is an entirely different and vastly more serious matter when our own government and the party on which the independence movement has hitherto relied collude with the British state in this demotion. That, I submit, is a whole new crisis. And one from which we should not be distracted if we are to have any hope of saving Scotland from the fate that is being decided for us by forces unaccountable to the people of our endangered nation.

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Can the soul of a nation be weighed?

Elliot Bulmer is a man whose views on constitutional matters should be listened to. He knows whereof he speaks in such matters. His article in today’s Sunday National offers the valuable insights of an esteemed academic presented with enviable clarity and concision. For those involved in the campaign to restore Scotland’s independence, the article is essential reading. I defy anyone to find a more accurate, erudite and eloquent summary of Scotland’s constitutional predicament than is contained in the first few paragraphs. I comment with appropriate humility.

The thing that strikes me most immediately and tellingly about Elliot Bulmer’s article is not only that in less than 900 words he manages to describe the situation; give an informed and informative account of how that situation came about; make a compelling case for the restoration of constitutional normality; and issue a warning about the consequences of failure to do so, but that he does all this without once resorting to that dread phrase “the economic case for independence”.

At this point I must beg Elliot Bulmer’s forgiveness as I reveal the content of a private communication. I trust he will allow that I commit this normally unforgivable indiscretion with the best of intentions. Some time ago, I was privileged to receive an email from him in which he commented extremely favourably on a remark I had made in a blog article. The phrase was “You can’t answer a constitutional question with a calculator!”. Regular readers will be aware that I have made much use of this aphorism ever since. What they cannot know is what prompted me to recognise the worth of what I had previously regarded as a throwaway line. A line which, it transpires, concisely expresses the simple but essential truth that Scotland’s predicament is a constitutional matter and emphatically not a matter of economics.

It’s not only my opinion. It is an essential aspect of the body of international laws and conventions governing the constitutional status of nations. The following is from the Declaration on the Granting of Independence to Colonial Peoples, UNGA Res 1514(XV).

Inadequacy of political, economic, social or educational preparedness should never serve as a pretext for delaying independence.

United Nations General Assembly Resolution 1514

The old “Too wee! Too poor! Too stupid!” argument is not only nonsensical and insulting, it is unlawful!

There is no need for an “economic case for independence”. There can be no economic case against independence. Given that the Union is constitutionally anomalous, it is the Union which must be justified, on whatever grounds it may. Instead of putting so much of our energy into building an economic case for independence that is entirely redundant and was never going to be accepted by the British state in any case, we should have been demanding an economic case be made for preserving the constitutional aberration that is the Union.

Allowing the constitutional issue to be presented as a matter of economic calculation and engaging with debate on almost exclusively economic terms is arguably the most serious mistake made by the independence movement in Scotland. As Elliot Bulmer says, quoting Hassen Ebrahim, the constitution is the “soul of a nation”. In his own words, constitutions deal with,

… those fundamentals – in terms of institutions, rights, identity, values and principles – that bind us together as a political community.

Can the soul of a nation be weighed? Can it be accorded a monetary value? Are our “institutions, rights, identity, values and principles” for sale if we get the right offer?

The question is not whether Scotland can survive as an independent nation but whether Scotland can survive as a nation without independence. What economic argument could possibly convince us to accept the legitimacy of a constitutional arrangement imposed by the “dominant majority” and actively opposed by as much as half of Scotland’s people? Why would any democrat even imagine that such a constitutional settlement might be acceptable? How might it conceivably represent an “underlying stable settlement”? How can it be regarded as the “settled will” of Scotland’s people?

In a handful of short paragraphs Elliot Bulmer summarises the constitutional issue facing the people of Scotland. An issue that has yet to be resolved because, self-evidently, the vote in 2014 failed to resolve anything. It provided a result, but no decision. The constitutional question was left hanging largely because the constitutional issue was never properly debated in constitutional terms. Neither side offered a clearly defined constitutional option that could be the object of an informed choice. The Yes side presented voters with a plethora of visions, definitions and explanations such that no distinct idea of independence could emerge from the confusion. The No side, meanwhile, started by offering only the status quo, but then went on to adjust its offering throughout the period of the campaign until people had no way of knowing for certain what a No vote actually meant. They wouldn’t find out until after the votes were counted.

How different it might have been if the Yes campaign, instead of constantly reacting to the No side’s propaganda and going wherever the No side led, had stood firm on the distinctiveness of Scotland’s institutions, rights, identity, values and principles. How different if the Yes campaign had been based on the need to defend that distinctiveness against the effects of an imposed constitutional settlement formulated for the purpose of denying that distinctiveness.

How different Scotland’s predicament might be even now had our political leaders and influencers learned the lessons of the 2014 referendum.

Elliot Bulmer captures the essence of this denial when he describes the contradiction which beset the British state’s constitutional tinkering in the closing decades of the 20th century. He observes that the reforms

… had contradictory, irreconcilable aims: to modernise and democratise at the periphery, without challenging parliamentary sovereignty at the centre.

That final phrase is the killer. The entire devolution experiment intended to make the Union acceptable was embarked upon only on the strict condition that it would never put in jeopardy the very concepts and institutions which make the Union unacceptable. Is it any wonder the experiment failed with such inherently contradictory and incompatible objectives?

Elliot Bulmer goes on to note that the experiment was botched in other ways. It was “piecemeal”. The pieces didn’t fit together. He points to the failure to reform the House of Lords in conjunction with other changes and the fact that, while the Greater London Assembly was established, this was not part of any “wider scheme of devolution within England”. At the risk of seeming to tread in the mire of economics, we might also see this disjointedness in the way devolution in Scotland was done. It is a truism that the tax/benefit system is best administered as a single entity. They are too closely related for anything else to make sense. The very worst ‘solution’ imaginable would be to separate the administration of tax from the administration of benefits and then split the administration of each between different governments operating on different principles in markedly different political cultures. And yet this is pretty much exactly what the devolution reforms of the Smith Commission set out to do. One is prompted to wonder if failure was what was intended.

We have already touched on what Elliot Bulmer identifies as the most important failing of the British state’s constitutional reforms – the lack of any “constitutional conversation”. The 2014 referendum campaign was quite deliberately prevented from being the constitutional conversation it ought to have been by the British state’s propaganda machine. With, it must be acknowledged, the eager assistance of professional practitioners of the dismal science and a veritable army of enthusiastic amateurs within the Yes movement. Rather than being a conversation about the constitutional question on which people were being asked to vote, the 2014 referendum was made a futile and fruitless and endless and necessarily inconclusive squabble over money. Instead of intelligent and concerned people discussing institutions, rights, identity, values and principles we had opposing armies of benighted bean-counters battering each other with graphs and charts and statistics to the bored bemusement of voters in general.

The slogan “It’s the economy, stupid!” was coined by an economist. Or, at least, by some creative working for an economist. The fact that this idea has come to be so deeply embedded in our politics is a testament to the power of propaganda. It has absolutely nothing to do with what goes on in the real world. In fact, no political campaign was ever decided on an economic argument. For a start, no economic argument is ever unambiguous and unambivalent enough to inform a decision. And nobody really understands these arguments anyway. Normal people tend to become desiccated and brittle on contact with economic arguments and are reduced to wind-blown dust by explanations of economic arguments. They also know – or are intuitively aware – that economic forecasters never get anything right.

The purpose of an ‘economic case’ in any political campaign is not to inform voters’ choices but to justify choices already made on the basis of existing prejudices and preconceptions. People claim to have been persuaded one way or the other by the economic arguments only because they don’t want to admit that they’d spent the entire campaign trawling Netflix for anything that might drown out those pestilential economic campaigners and commentators. I’m an original 1970s political anorak and I don’t mind admitting that by the middle of 2013 I was ready to jump into one of those “fiscal black holes”.

So, now you understand why Elliot Bulmer’s guaranteed 100% economics-free analysis is so refreshing – all the way to the end!

And what an ending it is! All the warnings about England-as-Britain’s direction of political travel and the threat of populist British Nationalism and the precariousness of our democracy are rolled into his final paragraph. If it’s a good enough closing for Elliot Bulmer, it’ll do for me.

We have already seen attempts to undermine the judiciary, weaken parliament and politicise the civil service. This follows the same playbook used by other authoritarian populists across the western world, but the UK is in a uniquely vulnerable position. The lack of a written constitution means everything can be swept away by an ordinary parliamentary majority. No institution is safe. Democracy hangs on a thin thread

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The necessity of “unconstitutional action”

I only read the first paragraph of Michael Fry’s column in The National, because the rest appears to be about economics; which is irrelevant to the constitutional issue. But the first paragraph is enough to tell me that Michael Fry is probably better sticking to economics as he clearly hasn’t a clue about constitutional matters.

He writes of a “rising clamour for unconstitutional action”, but signally fails to inform us as to what this supposedly “unconstitutional action” is or where the “clamour” is coming from. In other words, Michael Fry deploys a big fat straw man argument at the outset in the hope of disarming any who might question what follows. This is not the behaviour of someone who has great confidence in their own case.

I haven’t seen anything that could be characterised as a clamour for unconstitutional action. And I am involved in the constitutional debate on a daily basis absent a distracting obsession with abacus-twiddling. I see the occasional mention of a unilateral declaration of independence (UDI), which is nonsensical and irksome for a number of reasons – basically that it is simply inappropriate. But the odd ill-informed outburst hardly amounts to a clamour. Besides which, I’m not sure UDI could even be classified as “unconstitutional”. The answer to the question of whether it is unconstitutional or not would be, “It depends!”.

Being someone who finds fascination in the dismal science, Michael Fry should be familiar with such vague and inconclusive answers. The ‘solutions’ provided by economics depend on so many factors they can hardly be called conclusions at all. Not the least of these factors being who is paying the economist. Economics isn’t a science. Real scientific solutions – developments, discoveries, advances – tend not to be critically dependent on the facts that are selectively ignored; the information that is purposefully excluded or the questions that are judiciously left unasked.

Economics does have a few ‘iron laws’; a scattering of fixed points to which it is tethered in order to prevent it straying too far into the realms of fantasy. Other than that, economics is pretty much entirely at the mercy of personal prejudice and political expediency.

The constitution is, to some extent, similar. Except that nobody makes pompous claims for its credentials as a science. Constitutional law is to criminal law as economics is to Newtonian physics. Although, like any analogy, this one benefits from not being pursued too far, it is illustrative and maybe informative. It’s a matter of flexibility. Universal laws serve real science best when they are strictly observed. Economics works as intended when the analysis is permitted as much leeway as the brief demands. Criminal law is best served by strict obedience. Constitutions are best served by being subject to constant challenge.

We escape the analogy (at last!) by noting that, while the looseness of economics is intended to serve very particular interests, the flexibility of constitutions is intended to serve justice, democracy and society as a whole.

What does Michael Fry mean by “unconstitutional”? What is unconstitutional about any of the actions being touted within the Yes movement in a manner that might sensibly be described as a “clamour”? These are question which only Michael Fry himself can address. Although I very much doubt if he will make any attempt to do so. We must perforce confine ourselves to the wider question of what might make an action unconstitutional.

I am not a constitutional lawyer. But, for present purposes, that may be an advantage. Sometimes, a territory is more satisfyingly – possibly even more fruitfully – explored by one who is not already familiar with the geography.

The obvious answer to the question of what makes an action unconstitutional is that the action is prohibited by the constitution. Obvious and simplistic. Because the prohibition itself may be considered unconstitutional. It may be deemed unconstitutional by some higher authority. It my be unconstitutional by virtue of being contrary to the strictures of natural justice or the demands of fundamental democratic principles. In which case, it is the breach of that prohibition which has the greater claim to constitutionality.

To take an extreme example for the purposes of illustrating the point, a constitution which enshrined the right of individuals to own another person would clearly be unconstitutional in that it is contrary to an overarching prohibition on slavery.

By the same token, the UK Government’s efforts to constrain or prohibit the exercise of Scotland’s right of self-determination must surely be unconstitutional in that it breaches the international laws and conventions guaranteeing the right of self-determination.

I don’t know if, when he talks of “unconstitutional action”, Michael Fry is referring to calls for the Scottish Government to eschew the Section 30 process. But this is the only thing that might fit with his description of a “clamour”. Increasing numbers of people are recognising and acknowledging the folly of committing to a process which is unconstitutional. The realisation is dawning that it is the assertion that rejecting the Section 30 process is unconstitutional which must be challenged.

Another way of defining unconstitutional action might be as action which changes – or attempts to change – what is regarded as constitutional. In that sense, there is no route to the restoration of Scotland’s rightful constitutional status which does not require action which is unconstitutional in terms of the existing constitutional settlement. It must be action which breaks the existing constitutional settlement in order to create a new one.

Perhaps what Michael Fry is referring to when he talks of a “clamour for unconstitutional action” is actually no more than the perfectly calm, if understandably impatient, chorus of voices pointing out the folly of imagining it may be possible to restore Scotland’s independence whilst adhering to the rules imposed by those who are determined to preserve the Union at any cost.

As one of these voices, I’m here to tell Michael Fry, and any who are similarly minded, that timid acceptance of the British state’s constitutional primacy makes the restoration of Scotland’s independence impossible. Genuine power is not given. It is only taken. The British political elite would never grant Scotland independence even if it was in their gift rather than being rightfully ours just for the taking. It is only by ‘unconstitutionally’ asserting the primacy of Scottish popular sovereignty that the Union can at last be dissolved, leaving Scotland free to formulate our own constitution.

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A game of constitutional chicken

Power is often just a matter of what you can get away with. A question of how far you’re prepared to go. In a given situation, one player my appear to have all the advantages, but they succumb to their opponent’s audacity. All the advantages in the world count for nothing if you’re the first to back down. Temerity can compensate for a lot of disadvantage.

The current face-off between the Scottish Government and the British political elite is very much like a game of constitutional chicken. It’s not about who holds the best cards. It’s about who folds first. It’s not about what is lawful or rightful. It’s about how far you can go before being challenged. It’s not about how much power you have. It’s about being prepared to use that power to it’s fullest.

In a democracy, politicians only have the power that the people afford them. Or, at least, that’s the theory – the democratic principle. In reality, politicians tend to have as much power as they can assert without it being disputed. The ‘looser’ the constitutional constraints on political power, the more difficult it can be to dispute asserted power; and so the more likely it is that asserted power will become established power – and even more difficult to dispute. Where the constitution is weak, the audacious can accrue great power.

Few modern democracies have weaker and looser constitutional constraints on executive power than the UK. It is thus by design. The dearth of effective constitutional constraints allows the British executive to acquire powers simply by laying claim to them.

One might think this would lead to dictatorship. That the outcome of this accretion of power to the executive must eventually be a totalitarian state. Indeed, this would be the logical, and almost certainly inevitable, conclusion were there a complete absence of constraints. But at least two factors serve to prevent this. The fact that the UK is a democracy – albeit one with a woefully inadequate constitution – means that the people are a limiting factor. There are elections and no matter how effectively voters are manipulated by the media, they can still occasionally tug the political choke-chain. Or, even more infrequently, they can do something very surprising and use their democratic power effectively to achieve an outcome something akin to what the majority favour.

The ruling elites of the British state have to be mindful of popular democratic power. For the most part, they have it under control. But the public are fickle and voters can behave unpredictably. So some caution is required.

But there is a more prosaic reason the UK hasn’t become a fully-fledged totalitarian state, despite the executive having the potential to wield dictatorial powers. The present arrangement works too well. The ruling elites are served very well by the existing structures of power, privilege and patronage. So why change anything? If it ain’t broke, don’t fix it!

You might want to reflect on that for a moment. As far as the political, social and economic elites of the British state are concerned the existing British political system makes dictatorship redundant. Or maybe you don’t want to think about it at all.

The Union is, of course, a key element of the system that serves the few at whatever cost to the many. While Scotland and England could undoubtedly function perfectly well as independent countries, the entity that has evolved – and continues to evolve – from the old ‘Greater England’ project requires the Union. The survival of neither England nor Scotland depends on the Union. But it is crucial to the preservation of a British political system which serves the ruling elites better than a totalitarian regime might.

It is to be expected, therefore, that the British executive will do everything in its power to preserve the Union. It follows that it will assert whatever powers are required in order to counter any perceived threat to the Union. and that is precisely what is happening.

Power is relative. A political actor can achieve and maintain superiority either by becoming stronger or by making competing political actors weaker. Either by acquiring/asserting new powers, or by diminishing/depleting the powers of competitors. Invariably, the power dynamic involves both. Take a look at what the British government is doing in Scotland now and you will see it both asserting additional or increased powers and seeking to undermine the powers of Scotland’s democratic institutions.

Take a look at what the Scottish Government is doing and you will see a perplexing lack of effort either to challenge the powers being asserted by the British government or, more crucially, to assert the powers of Scotland’s democratic institutions. Few doubt that the British side is audacious enough to assert whatever powers it deems necessary to thwart Scotland’s constitutional aspirations and preserve the Union. Many now wonder whether the SNP administration has the audacity to respond appropriately by asserting its popular mandate.

Much of this reticence and hesitancy on the part of the Scottish Government appears to be due to concerns about the lawfulness of asserting power. The British state is distinctly unencumbered by any such concerns. Perhaps because the British ruling classes have bred into them an awareness that power is just a matter of what you succeed in getting away with. Perhaps because the British ruling elites have for generations operated on the basis of absolute confidence in their entitlement to power. Perhaps because the British executive has the audacity that the Scottish Government lacks.

In the game of constitutional chicken, having a mandate from the people means nothing if you are not prepared to use it. Having a lead in the polls is no use if you are not prepared to act. Having a just and worthy cause counts for nothing if you are not prepared to pursue that cause as aggressively as may be necessary.

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