A 'UDI' of our own

James Kelly seems to have changed his tune about a course of action which he previously denounced as unthinkably irresponsible ‘UDI’. More acute observers, of course, realised a long time ago that if Scotland’s independence is to be restored this will never be by any process deemed ‘legal’ by the UK government. It’s either ‘UDI’ or nothing. Where ‘UDI’ is understood to mean a process which excludes the UK government from any involvement and which must, therefore, be branded ‘illegal’ by a British political elite intent on preserving the Union at any cost.

Calling the referendum at the centre of this process “consultative” is a cop-out. It is an attempt to appease British Nationalists by assuring them that we’re only pretending to exercise our right of self-determination and won’t actually do anything. It’s a binary question of the kind that is perfectly suited to being decided by plebiscite. Assuming a properly framed ballot question and an adequate turnout, the result cannot be other than a clear expression of the will of Scotland’s people. Which, in turn, cannot be other than binding on the government and parliament elected by the people of Scotland and accountable to them.

It didn’t take a survey to know that it was nonsense to assume that ‘UDI’ would alienate large numbers of voters. All it took was some understanding of human nature. To anybody with a modicum of such understanding, bold, assertive action is obviously just the thing to catch the public’s imagination – and the mood of the nation.

The only question remaining is who might take this bold, assertive action that will inevitably be dubbed ‘UDI’ by anti-democratic British Nationalists. And whether it will be done properly. Whether the words “bold” and “assertive” are taken to heart.

The current SNP administration doesn’t look a likely candidate. But we shouldn’t give up on them just yet. To get the job done, we need a particular tool. The SNP is what we have to hand. The parlousness of Scotland’s predicament makes delay seriously inadvisable. So we must use what we have. The Yes movement has to get its act together and force Nicola Sturgeon to do what needs to be done – or to step aside in favour of someone who will. The latter trailing as the second choice some distance behind the former.

Forget the less than half-measure of a “consultative” referendum. Appeasement will always be perceived as weakness and encourage retaliatory action. The Scottish Government must be absolutely resolved and determined. The aim is to break the Union, not caress it.



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What would YOU do?

What would you do? What’s your alternative, smartarse? You’re very good at criticising, but where are your positive suggestions?

I am asked questions like this all the time. Variations on the demand to know what I would do instead have become the standard response when I point out things that the Scottish Government and/or the First Minister are doing that I maintain are mistaken or misguided. There’s been quite a lot of that lately. Much to my dismay. And that’s something people would do well to bear in mind. I get no pleasure from criticising the administration and condemning Nicola Sturgeon. More the latter than the former because the administration, generally speaking does a good job. It is in the matter of the constitutional issue that I take exception and that is all on Nicola Sturgeon’s shoulders. Although Mike Russell may take a bit of flak as well.

I would much rather go back to my previous practice of circumspection. Not that I wouldn’t criticise the party, but I would only do so if the criticism was weighed against the interests of Scotland’s cause and tipped the scales. Even then, I was cautious about the tone of the criticism. I still am. I’m appropriately obliged to the hundreds of people who have been presumptuous enough to point out to me how essential the SNP is to the cause of restoring Scotland’s independence. I can only assume that these people comment in ignorance of my lever analogy. One really shouldn’t condemn from a position of ignorance.

I have to assume, also, that the interlocutors in question are afflicted with some form of reading difficulty. Because in all of the material I have written berating and bemoaning Nicola Sturgeon’s ‘strategy’ on the constitutional issue I have never once suggested or implied or hinted or left room for the honest impression that I didn’t acknowledge the vital role of the SNP in the independence project. Nor have I ever done anything other than encourage people to vote SNP at every opportunity. So much so that I was only today referred to by someone obviously unacquainted with my more recent output as an “SNP arse-licker”.

What would you do? The question, however it is framed and regardless of the accompanying epithets (mostly woefully unimaginative), irks me. It irks me somewhat for the false allegations, as described above, stated or implied. It irks me more because the question is commonly deployed, not as a genuine enquiry, but to divert from whatever criticism I’m making. Let’s not talk about what’s actually being done by the people with power. Let’s talk about what someone who has no power might hypothetically do if he did. It’s a feeble and rather cowardly way to avoid having to admit that they cannot address the criticism. They have nothing meaningful to say about whatever defect or deficiency it is that I’ve identified. They have no way to refute the arguments. So they try to change the subject. Pathetic!

It irks me when people imply, or explicitly state, that criticism cannot be valid if no alternative is offered. I’ll let that one lie here and steam gently taking care not to step in it as I move on.

But the question irks me most because it is very unfair. It asks me what I would do in a situation that is not of my making. A situation which, had I the power that is being hypothetically attributed to me, would not have arisen. It demand’s to know how I would clean up somebody else’s mess.

If people were to ask what would I have done, that would be a fair question. And no more hypothetical than the one I’m being asked. And it might even be a sensible, useful question. There’s a chance that figuring out how a situation might have been averted might reveal clues as to how it may be rectified. At the very least, such revision could provide insights relating to the actual situation and a better understanding of the problems. At the very, very least there may be valuable lessons for the future nested like pearls in the oyster of rewritten history.

I am now going to assume that somebody has asked the sensible question. I shall pretend someone has had the wits to ask what I would have done. All the while mourning the fact that I have to pretend.

What would I have done differently? How would I have avoided the present situation? Anyone with the sense to ask that question would almost certainly wish to point out that a future event or development can only be averted if it can be foreseen. You can’t avoid it if you don’t see it coming. I maintain that it was perfectly possible to predict how things would pan out given various educated assumptions.

The story of what I would have done begins on Friday 19 September 2014. Or maybe a day or two after that. But no later. I really did start thinking about a second referendum almost immediately after the unfortunate (euphemism!) outcome of the first one. I set myself the immediate task of working out the earliest possible date for this new referendum after which I undertook a review of the past campaign to see what lessons might be learned. I won’t go into the process by which I arrived at a date; I’ve told the story enough times to be bored with it and it’s not that important. What matters is that it wasn’t just picked at random. It was a rough calculation, not a complete guess. The date was Thursday 20 September 2018.

This was the earliest date for a new referendum. When the EU referendum came along, I had to take another look. By one of those weird coincidences that give superstitious folk goosebumps. it turned out that taking the EU referendum into consideration Thursday 20 September 2018 went from being the earliest date for a new referendum to the latest. This was due to the constitutional implications of what would come to be called Brexit.

Of course, I couldn’t know the result of the EU referendum beforehand. But it wasn’t difficult to figure out what the consequences would be whichever way it went. The September 2018 date was intended to allow Scotland to escape Brexit. Or, more precisely, the constitutional implications of the UK leaving the EU. Bear in mind that my calculations didn’t take account of the extensions. Cut me a bit of slack here! By the time we were at the Article 50 extension stage it was already too late for a September 2018 vote.

The preparation for that vote should have started in 2015. That left plenty of time before for a thorough review of the 2014 campaign, and sufficient time after for the process leading up to a vote – principally, the passing of legislation.

I would have fired the starting gun immediately after the 2015 UK general election on 7 May. I would have announced the date and set out a timetable for the preparations. I may be accused of exploiting 20/20 hindsight concerning the result of that election. But while I can’t and wouldn’t claim to have foreseen the scale of the SNP landslide, I was confident that, riding the wave of enthusiasm that followed the 2014 referendum, the SNP would do well. Certainly well enough to provide an excellent backdrop against which to announce the new referendum.

People will say that ‘we didn’t have the numbers’ at that time. But the surest way to get the numbers is to give people something to latch onto. The surest way to not get the numbers is not to do anything at all. People aren’t inspired by inaction.

The main problem with launching so far in advance would have been maintaining momentum. But we had the Scottish Parliament elections in 2016 as well as a number of other electoral events. And, with a big group of MPs at Westminster it would not have been difficult to engineer enough ‘activity’ to keep the issue live and lively. The 2016 Holyrood elections would not have been as fraught as they were because the spirit which existed post-2014 would not have been allowed to subside and dissipate in the way that it did. And there would have been the passage of various bits of legislation in the Scottish Parliament to keep the media interested. The Referendums Act just enacted last December was, like so much the Scottish Government has done, at least two and as much as four years late. I would not have allowed that time to be squandered.

Already it can be seen how things would have been totally different if we’d gone for #Referendum2018. And I am firmly persuaded we could have won. The conditions would have been better because we would have acted to make them better rather than sitting around waiting for them to magically improve. The campaign itself would have been better because, having properly learned the lessons of the 2014 campaign I would have ensured that the 2018 campaign was different in a number of significant ways. I’m not sure if details of this are relevant here. I’ll gladly answer questions about what I would have done in terms of the actual campaign. And, indeed, what I would still do were there to be a campaign in the future.

Instead of seizing the moment, we gave the British government time to recover from every one of its serial fuck-ups. Now, we’re up against an administration with a substantial majority, led by a man who, for all his buffoon image, has so far got everything he wanted and, most important, a British government with the ideological mindset to fully exploit the power afforded it by the Union without pause or scruple or any consideration of principle.

Most of the foregoing is stuff that I was happy to talk about in the years between 2014 and 2018. And talk about it I did – both online and at countless gatherings. And people were coming round to the idea of a 2018 referendum. But it was not to be. There were some things that I declined to talk about back then, however. Things that I could foresee, but which I foreswore to speak of. For reasons which should become obvious.

Even in 2015 I could see that the good ship SNP was going to hit the odd rock within a very few years. Not that I had specific predictions. Just that history tells us parties which are in government for a decade start to encounter problems. I think we can safely say I was correct. And you can see why it would have been inappropriate to say anything about this at the time. Just as in was both inappropriate and inadvisable to mention the fact that cracks would eventually start to show in the Yes movement. Fortunately, the Yes movement has proven to be remarkably resilient and robust. Without doubt, it is the best thing to come out of the 2014 campaign. But how long can people keep marching as they see their destination receding?

Similarly, it was possible five years ago to see which way the British government was headed. I don’t claim to have predicted that Boris Johnson would become Prime Minister. I wish I’d had a tenner on that in 2014! But it was entirely possible to read the trends. The British political system was bound to excrete a Boris Johnson eventually.

Brexit hadn’t even become a word and it was obvious it would be a total shambles. Without ten years of planning and preparation, it couldn’t be anything else. What was important to recognise was how this would influence the government in London and the electorate in England-as-Britain. It might have been assumed that the government would be weakened by making such a hash of things. But the way the British system works is that governments which fuck up deal with the problems they’ve created for themselves by making themselves stronger. And in the process they become more populist. So the anticipated backlash from the voters never materialises.

Five years ago it was possible to see where British ‘demockracy’ was headed. I would have avoided being dragged down with the rest of the UK. I would have been campaigning while these fuck-ups were happening or fresh in people’s minds. I wouldn’t have been asking the voters to think back and try to get angry again about something the British media barely reported at the time and have played down ever since. I wouldn’t have adopted a strategy of allowing the worst to happen in the hope of political advantage.

The one thing I came nowhere near to predicting is Nicola Sturgeon’s handling of the constitutional issue. Quite honestly, if you were to ask me what I would do now, I’d be stumped. I’m not even sure this can be fixed. In five years we’ve gone from the certainty that independence would be restored to clinging to the last vestiges of confidence that we will even have a referendum before the British Nationalist juggernaut crushes the final bit of hope.

It could all have been so different.



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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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Crisis? What crisis?

Dictionary.com

Ian Blackford proclaims that UK faces a “constitutional crisis” over Brexit Bill votes in the three devolved parliaments. The National notes that,

While none of the devolved institutions have [sic] granted permission for Westminster to go ahead with the legislation, the Withdrawal Bill is still likely to pass through Westminster.

Ian Blackford: UK faces constitutional crisis over Brexit Bill votes

What The National doesn’t say is that Westminster does what it pleases with no apparent discomfort or unease. The British parliament completely ignores the devolved parliaments, each of which has greater democratic legitimacy than Westminster, and does so effortlessly. If there is a “constitutional crisis” then the British establishment is, to all appearances, unaware of it. There is certainly no sign that it is at all troubled by this “constitutional crisis”.

Can it qualify as a crisis if one of the parties to events and developments is unaware of it? Or, to put it another way, if the party at the centre of the affair perceives no crisis, are we justified in calling it such?

Or could it be that Mr Blackford has misidentified the parties to the purported crisis? Perhaps he is simply mistaken in thinking that the crisis affects the British political elite. Perhaps, if crisis there be, it is only a crisis for the devolved administrations; particularly the one in Edinburgh. Maybe the explanation for the British political elite’s equanimity in the face of this crisis is simply that it doesn’t really involve them.

If, indeed, we have reached a stage in a sequence of events at which the trend of all future events, especially for better or for worse, is determined, then perhaps the British political elite doesn’t regard this as a crisis because, to whatever extent the trend of all future events is being determined, they are fully confident that this implies no changes that might be to their detriment.

If there is a condition of instability or danger in the affairs of the UK such as might occasion decisive change, maybe they know with a high degree of certainty that this decisive change will not be to the disbenefit or disadvantage of the established order.

Or maybe the British political elite is exhibiting the smug self-assurance that accompanies overweening power. Maybe they consider the established order invulnerable. Maybe they feel safe in the knowledge that, having the power to make, amend or exempt themselves from the rules of the game, they cannot possibly lose.

Why should this be a crisis for the British state? Nothing can oblige their parliament or government to heed the decisions of the devolved parliaments. The British state suffers no penalty for treating the devolved parliaments with supercilious disdain. Quite the contrary, in fact. Particularly in relation to Holyrood, Brexit has provided the British state with just the opportunity it needed to roll back devolution, slapdown the presumptuous SNP and put those uppity Jocks firmly back in the box labelled ‘Property of England-as-Britain’.

From the outset, discourse around the whole Brexit farce has focused almost exclusively on the economic impact. Little or no attention was paid to the constitutional implications. This despite the fact that the constitutional implications were always huge – as Ian Blackford and the rest now acknowledge. The constitutional implications were also obvious. When I argued for a Remain vote in the 2016 EU referendum the main reason I gave was the fact that leaving the EU would provide the British political elite with an opportunity to unilaterally redefine the UK and the constitutional status of the troublesome peripheral nations. At the extreme, which wise counsel would have us anticipate, this might involve the British constitutionally redefining the UK as an indivisible and indissoluble unitary state – putting Scotland in relation to the UK much as Catalunya is in relation to Spain.

The question was never whether the British would do this. The question was always whether there was any reason that they might not. Any just cause, that is, which they would see as such. Bearing in mind the nature of the British state and its ruling elites, considerations of ethics, morality or democratic principle were never going to enter into the calculation. The British political elite would do whatever was required to preserve and reinforce the structures of power, privilege and patronage which define the British state. The Union at any cost! To anyone but them!

There is no crisis for the British state. Ian Blackford has misread the situation. The British can, in this matter as in all matters relating to Scotland, act with total impunity. The crisis falls entirely on the devolved administrations and parliaments. Arguably, it falls most heavily on the Scottish Parliament and the SNP administration in Edinburgh. They will be judged on how they respond to this crisis. And it doesn’t look promising. Ian Blackford says, “really it is about this issue of respect”. Well, if it is, then it’s about how well he and his colleagues earn the respect of the people of Scotland. Because it’s as certain as anything might be that they will never get respect from the British political elite.



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Act to be

In the legal opinion commissioned by Forward As One, Aidan O’Neill QC argues that the question of the Scottish Parliament’s competence to legislate on a new independence referendum is a question of law, not a political question and “can only ultimately authoritatively be answered by the courts. I both agree and disagree.

I disagree with the assertion that the matter of the competencies of the Scottish Parliament is purely and solely a matter of law. I disagree because it is a constitutional matter and in constitutional matters ultimate authority must lie with the people. Few things are more fundamental to the constitution than the powers vested in (or withheld from) a nation’s parliament. Even if it is argued that parliamentary competencies are a matter of constitutional law, then it is still primarily and in the first instance a political issue because, in a democracy, the constitutional is an expression of the will of the people.

Constitutional law differs from criminal law in that, where the latter is an attempt to codify the established mores of society, rather than ephemeral public opinion, and works best if it is obeyed and changes only by way of a process rigorously isolated from day-to-day politics, the former must be constantly subject to challenge from all quarters as an intrinsic part of a democratic political process in order that it may truly represent the will of the people. Constitutional law is a special case.

I agree that constitutional change must be subject to legal challenge, if only to formally verify that such change has been established to reflect the will of the people in accordance with the provisions of the constitution. I simply insist that fundamental democratic principles decree that the ultimate authority in all matters rests with the people. And that this authority is most directly relevant in matters relating to the constitution.

The overarching criterion for deciding questions of parliamentary competence is democratic legitimacy, not legality. Where a parliament has incontestable democratic legitimacy – as does the Scottish Parliament – the default assumption must be that all competencies lie with that parliament. The manner in which such competencies are exercised may be subject to legal challenge. But the competencies themselves cannot rightfully be withheld or constrained by any agency with less or no democratic legitimacy.

The democratic legitimacy of the Scottish Parliament derives from the sovereign people of Scotland. It is the institution whereby the people pool their sovereignty and mandate governments of their choosing. If the nation is regarded as a community of communities in accordance with the doctrine of civic nationalism, then Holyrood is where all those communities come together to oversee the management of their mutual interests and negotiate the compromises which resolve political divisions. To propose that such a parliament must be subordinate to the parliament of an entirely different community of communities which manages Scotland’s interests only very badly and resolves political divisions by fiat flies in the face of reason.

Of course, Holyrood was never intended to be the locus of Scotland’s democratic soul. But that is how it has turned out. It has been transformed from an impotent puppet of the British political elite into a fully-fledged national parliament – lacking only the powers to which it alone has a legitimate and rightful claim. Powers that were seized and are being withheld by a parliament which serves only the ruling elites of England-as-Britain.

The competence of the Scottish Parliament to legislate for a new independence referendum is being denied by British politicians for political motives. It is entirely proper, therefore, that this should be challenged by political means. The Scottish Parliament must assert its authority by rejecting the authority asserted by Boris Johnson. The superior authority of the Scottish Parliament must be assumed on the basis of its superordinate democratic legitimacy. This authority must be exercised by the Scottish Government according to the mandate afforded it by the people of Scotland. If this is to risk any form of challenge by the UK Government then the Scottish Government must stand ready to meet this challenge. It is only by meeting and defeating such challenge that Scotland’s democracy can be preserved. It is only by meeting and defeating the resistance of the British state that Scotland’s democracy may be restored.

To be, and deserve to be, a normal independent nation, Scotland must act as a normal independent nation.



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Leave it to the experts

Amidst the eight hundred or so articles I’ve written since I started blogging in February 2012 you will find several which take as their subject warnings about what the future may hold if events play out in particular ways. Warnings, for example, published in the period before the 2014 referendum warning about the consequences of voting No. Or, subsequent to the first referendum, warnings about the implications of too long delaying a new referendum. Here are a few examples, with passages emphasised.

This is from 5 April 2018.

I had hoped to find in his [Pete Wishart] latest writing on the subject answers to such questions as what criteria are to be used in assessing the “optimum time” and how, having delayed the vote, he proposed to deal with the British government’s moves to make a new referendum impossible and/or unwinnable. I’m none the wiser on any of these points.

Referendum 2018

From 7 April 2018.

We can be sure, also, that while emasculating the Scottish Parliament the British government will also introduce measures for the purpose of making an independence referendum ‘unlawful’ and/or unwinnable. If the democratic route to independence is likely to be used, it must be closed off. If the people of Scotland might presume to exercise their democratic right of self-determination, that right must be denied.

Threat and response

From 23 April 208.

The difference – and pretty much the only difference – between the anti-democratic British Nationalists and Pete Wishart is that, while he still supposes there might be a new referendum at some undefined time in the future, Ruth Davidson, Richard Leonard and Willie Rennie) are determined that the referendum be postponed until such time as the British government, to which they give total allegiance, has implemented measures to ensure that a new referendum is impossible and/or unwinnable.

Sage advices

From 19 July 2018.

Scour that timeline as you may, you will find no mention of the steps the British government will be taking in order to make a new independence referendum impossible or unwinnable or both. Which is odd given that Gordon [MacIntyre-Kemp] otherwise seems to suppose the British government to be the only effective actor in all of politics. His timeline is almost entirely a tale of what the British elite does, and how the Scottish Government might react.

It’s what we make it

Finally, from 21 July 2018.

In all this talk of postponing the new referendum, whether it be until 2019 or 2021 or 2022, I see no explanation of how those commending delay propose to deal with the measures that the UK Government will surely implement in order to make a referendum impossible or unwinnable or both. It’s as if they think the British state is a benign entity which is just going to sit back and wait until we get our act together. It’s as if they are dumbly unaware that locking Scotland into a unilaterally redefined political union is one of the principal imperatives driving British policy.

I despair!

Now look at the image below showing the relevant detail of a Bill (Referendums Criteria Bill 2020) currently being considered in the British parliament.

As I express concerns about Nicola Sturgeon’s commitment to the Section 30 process and the SNP’s whole approach to the constitutional issue one of the most common responses I get is to tell me to shut up because ‘the powers that be’ know better than I do.

Do they?

I have been told that, for various procedural reasons, this Bill might make no further progress in the British parliament. To focus on this, however, is to miss the point. The point being that the Bill existed in the first place. It serves to illustrate the ways in which the British establishment will seek to close down all democratic routes to the restoration of Scotland’s independence. Something which could easily be foreseen.

It has been further stated proposal of the Referendums Criteria Bill 2020 was prompted by the 2016 EU referendum and the ensuing chaos. So what? Does this mean it wouldn’t have applied to Scotland? No! Does it mean it wouldn’t have serious implications for the independence campaign? No!

Does it mean there is no possibility of further efforts to make a new referendum impossible and/or unwinnable? No!

Is the Scottish Government ready to deal with those efforts? You’d like to think so. But….



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Power and effect

Neil Mackay

It’s not often one gets to say this, but Gerry Hassan’s column in the Sunday National (Scottish independence: the rise of people power in Scotland) is an enjoyable as well as an interesting read. Enjoyable – perhaps even inspiring – because it is about something which is inevitably close to the heart of everyone associated with the Yes movement – people power. What is the Yes movement but a wonderful example of people coming together to use their collective democratic power for a worthy purpose?

Like all the best popular movements, the origins of Yes are a bit vague. Inevitably so since such movements are not created but, rather, emerge from the populace – the demos. Popular movements are not launched, they arise. There may be a single spark, but it ignites many fires. In the case of the Yes movement, the spark was the 2014 referendum and the separate fires were the various Yes groups which sprang up all over Scotland. Initially, these groups were initiated by Yes Scotland, the official pro-independence campaign organisation. With a speed which I think it’s safe to say startled everyone, these groups began forming spontaneously, facilitated and fanned by social media. At some indefinable point, due largely to the networking capacity offered by the web, that scattering of individual groups became a movement. An amorphous, organic and rather chaotic phenomenon gradually realising the potential of its power.

Power itself is useless. In order to do anything it must be fed into some kind of machine. It is the machinery which does the actual work. As Gerry Hassan makes clear, All Under One Banner (AUOB) is an illuminating example of a mechanism by which raw people power is transformed into operational effect. It is organisations such as AUOB which draw together the different strands of disparate and diffuse people power, amplifying it and applying it to specific tasks or functions.

Which brings us to what I have previously referred to as the ‘organisation problem‘.

Yes is a diverse, open, inclusive, unstructured popular movement. It is NOT an organisation. That is as it should be. That is its strength. It is not hierarchical. It is an amorphous, informal, organic network. That is the essence of its power.
There are no leaders of the Yes movement. But there are leaders IN the Yes movement. Leadership arises as leadership is required. When that leadership ceases to be necessary, it merges back into the movement ready to be called upon if needed. The Yes movement has no need of leaders so long as it has this potential for emergent leadership.

Some of the Yes movement’s activities demand organisation. People put effort into creating the appropriate organisation within the movement. This is NOT a simple task. Creating an organisation within an organisation is relatively easy. Creating an organisation within a movement which eschews and is averse to formal structures is a hugely demanding task.

In that article I went on to observe that,

It takes a special kind of character to even attempt such a task. It takes extraordinary commitment, dedication and sheer hard work to see it through.

Neil Mackay is representative of that kind of character. Although anything but a ‘one-man band’, Neil’s name serves as a metonym for AUOB and, to some extent, for all the organisations which have been formed within the Yes movement.

The lesson here is that, however much the idea of people power may appeal to us, it doesn’t actually do anything absent the individuals and organisations which give it operational effect. The idea of Scotland’s independence being won by people power is at best misleading fallacy and at worst counter-productive delusion. There is a purist notion of people power which rejects, or only reluctantly accepts, the need for any machinery. This is simplistic nonsense. Ultimately, power of any kind has to use, or be used, by some form of organisation in order to have any effect. And organisations rely on individuals with particular abilities and attributes. Organisations like AUOB. Individuals like Neil Mackay.

Political parties are also part of the machinery which gives effect to popular power. All too many people won’t accept this. How often do you hear people say that they ‘hate political parties’, or ‘detest party politics’? I could discuss at length how this is a prejudice which established power is happy to encourage. And why wouldn’t they? What could suit prevailing power better than that countervailing power should spurn the means to challenge the status quo?

People power requires the machinery of organisations in order to build a campaign. That campaign requires a political party in order to be translated into effective action through the institutions and processes of democracy. There is, and can be, no direct connection between people power and social or political reform. It is critically important to recognise that movement, campaign and party are separate and distinct. They interact. But each has its function and all are crucial to success in effecting change.

The analogy which best represents this relationship portrays the SNP as the lever by which Scotland will be prised out of the Union; the Scottish Government is the fulcrum on which the lever turns; the Scottish Parliament is the base on which the fulcrum rests, and the Yes movement is the force which must be applied to the lever. No component works without the others. Each component must perform as required and work well with the rest of the system.

Which brings me (at last!) to my main point. From all of the foregoing it can be seen that it matters a great deal that people power is correctly directed. No useful purpose is served if that power is organised into a campaign only for that campaign to be spent on a political agent which cannot translate that power into the desired political effect. Which is why I was delighted to see the following quote from Neil Mackay.

AUOB’s aim is to push the Scottish Government and to emphasise the power underneath them. We are here to hold them to account and to hold their feet to the fire as much as we do to Westminster.

Look back at that lever analogy. Do you see any mention of Westminster? It is not there because it has no place. It contributes nothing to the process of restoring Scotland’s independence. If Westminster was to be shoe-horned into our analogy it could only be as the resistance to the lever’s movement. Scotland’s independence will not be restored by, or by way of, Westminster. People power applied to the British establishment is, in terms of the objective, all but entirely squandered. The British state has a capacity for disintegrating and/or deflecting and/or absorbing popular pressure that has been acquired and perfected over several centuries. There is no possibility of help for the Yes movement from that direction.

Neil Mackay is right. The power of the Yes movement must now be turned on the Scottish Government and Nicola Sturgeon, both in her role as our First Minister and in her role as leader of the SNP. Their purpose is to provide the Yes movement with effective political power. The Yes movement must put pressure on them to use that power effectively.



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