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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Things to come

It was all so predictable. That’s what makes it all doubly frustrating. So much of what is happening could be foreseen and forestalled. Indeed, it was foreseen. If not in detail then certainly in general terms and with predictions necessarily being updated as events unfold. I was warning about the rolling back of devolution as far back as 2012, perhaps earlier. I expected that the British government would begin stripping powers from the Scottish Parliament if there was a No vote in 2014. I warned that it was one of the consequences that No voters would have on their conscience, I’m sure I wasn’t the only one issuing such warnings. But it would not be proper for me to associate others with what I have to say.

The Scottish Parliament’s fate was decided in 2007 when the SNP formed the first Scottish Government since the Union was imposed. That wasn’t supposed to happen. It wasn’t supposed to be possible. Devolution was only permitted on the strict understanding that it could never imperil the Union. The electoral system was designed to ensure that no one party could ever achieve a majority. This was intended to ensure that the British parties would retain control in perpetuity by forming coalition governments. Unionists strenuously deny that the system was designed to keep the SNP out insisting, rather, that it was designed to promote a more collegial, consensus-building Parliament. But it’s the same thing. Purposeful or not – and you can make up your own minds about that – the effect was to obviate any threat to the Union by ensuring that the British parties in Scotland were kept firmly in control.

Any plans to weaken the Scottish Parliament after the British parties lost control in 2007 were blown out of the water by the electorate. In 2007, voters had put a big dent in the system. In 2015, they smashed it to pieces by giving the SNP an overall majority. Plans to put the brakes on devolution, or put it into reverse, were derailed. As were the predictions made during the referendum campaign. But if reining in Holyrood had become more problematic, it had also become more imperative. The thing the British establishment feared most; the thing they’d been assured would not follow from devolution, was happening. The SNP was in power. What was worse, they were doing a good job. The administration was competent. That wasn’t supposed to happen either. Worst of all, Scotland under the SNP was visibly diverging from the rest of the UK (rUK) in myriad ways. If that continued, the Union would surely become untenable.

It is not my purpose here to essay a potted history of the period. Suffice it to say that where the British establishment thought it was getting a Scottish Parliament that was unadventurous and a Scottish Executive that was meekly compliant, instead they got a Parliament that threatened to compete with Westminster in terms of authority and a Scottish Government that put Scotland’s interests first. The scene was set for confrontation.

But that confrontation never really came about. There were skirmishes between the two governments. The media made a big fuss about the Scottish Government always “picking fights with Westminster”. But there was no major confrontation. The British political elite still wanted desperately to undermine and weaken Scotland’s democratic institutions. They wanted this more than ever. Hobbling Holyrood had become a political imperative. The Union was meant to do that. But the devolution ‘experiment’ had put the Union in jeopardy.

The British government tried a new tactic. Rather than try to directly trim the powers of the Scottish Parliament, they decided to weaponise devolution and turn it against the Scottish Government. Changes to the devolution settlement, principally in the area of finance, were set up as a mesh of political and fiscal traps. The idea was to discredit the SNP by subtly forcing the administration to make unpopular political decisions and to cause budgeting problems that would be portrayed as ‘SNP incompetence’.

This plan backfired. Largely due to the skill of then Finance Secretary, John Swinney, the Scottish Government managed to avoid most of the traps. They even found money for impressive new projects and to mitigate socially or economically damaging Westminster policies in reserved areas. And they were doing it deliberately!

The situation was desperate. Scotland had always been a separate country, but now it was becoming very much a different country in ways that were obvious even to the politically disengaged. Something had to give.

Then came 2016 and the EU referendum and the beginning of the protracted tragi-comedy that is Brexit. The British establishment saw its opportunity, and seized it. Once again, the consequences of a Leave vote were foreseen. Obviously, nobody anticipated the monumental incompetence of the British government. Nobody predicted they would make quite such a disastrous mess of the whole thing. But certain implications of the UK’s departure from the EU were accurately foretold. Some are about to be proved painfully accurate.

It was entirely predictable that there would be long and loud squabbles about the economic entailments of Brexit. Politicians invariably take debate on to this battleground for the simple reason that they can get economists to say whatever they want. Maybe it would be fairer to say that they can always find an economist who is saying what they want. Economic arguments have the further benefit that they are rarely, if ever, conclusive. No politician wants to find themselves on the wrong side of a concluded argument. So long as they’re arguing, they’re not losing. Not losing is better than winning. If there’s a winner, there must be a loser. And one of these times it might be you. By keeping debate in the realm of economics that risk is minimised.

I probably should leave it there. But I can’t resist pointing out another benefit to established power of making it all about money. Not only does it allow politicians to pick and choose from among a plethora of statistics and charts and tables and graphs in order to construct an economic argument for any purpose, this deluge of data baffles the electors and induces them to switch off and leave it to the experts. Contrary to the received wisdom, I postulate that no voter was ever swayed by an economic argument. Just as politicians can select the economic ‘facts’ that work for them, so voters can pick the economic argument which gives a sheen of rationality to choices that are anything but rational.

But I digress. While dispute raged over the economic consequences of Brexit, little attention was paid to the constitutional implications. During the campaign for the EU referendum I warned that, whatever else it might entail, Brexit would provide the British state with an opportunity to unilaterally redefine constitutional arrangements within the Union. That is what is happening now and it’s what will happen more in the very near future.

The groundwork has been done. The ‘power grab’ of the EU Withdrawal Bill is just the start of it. The endpoint for the British establishment is Scotland locked into UK redefined as a unitary state, indivisible and indissoluble. All significant powers stripped from the Scottish Parliament and absorbed into ‘UK-wide common frameworks’ administered by the ominously named ‘UK Government in Scotland’. A final solution to the Scottish problem. Greater England realised at last!

You can take that as another prediction.



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The year of decision

Relax! I’m not going to do one of those ‘look back at the year’ things. Mainly because, if the BBC is to be believed, the best 2019 had to offer was a wean spewing on the First Minister, Nicola Sturgeon changing the date on her referendum promise again and something about butterflies. There was a UK general election in December which confirmed – as if further confirmation were needed – that Scotland would be a very different place from Tory England-as-Britain if our votes actually counted for anything. But look at all the pretty butterflies!

Reviewing the year just gone has become a particularly disquieting exercise for an unabashed Scottish nationalist like myself because I cannot help but observe the carnage and think how different things might be had Scotland not bottled it so badly in 2014. We should have been celebrating three years of constitutional normality. We should have had some successes that we could look back on with satisfaction and perhaps a little pride. We should have been enthused by the prospect of further achievements in the new year. A past we can live with and a future we can contemplate with something less than dread. Is that so much to ask for?

The only reason for mentally rerunning 2019 is the hope that it might end differently. There’s little comfort in knowing that it could have been worse. That probably means only that the worse that might have been is now the worse in prospect.

Not that everybody is so downbeat. If you read The National or listen to SNP politicians or follow the Yes movement on social media you might well suppose that 2019 has brought Scotland to the verge of independence. Not the same verge that we were on at various points in most of the last ten years. A new verge that is somehow more vergey than any of those other verges. This, we are assured, is The Verge. The ultimate verge. Parent to all other verges.

Taking a slightly less rose-tinted perspective, 2019 was more like a gap year. In terms of the two big constitutional issues – the UK’s relationship with the EU and Scotland’s relationship with the rest of the UK (rUK) – nothing changed. Or if it did change it went backwards. Brexit is still happening. And nobody knows what will ensue. Which could have been said at any time since the EU referendum in 2016.

The project to restore Scotland’s independence is still becalmed, sails flapping uselessly in air stirred only be the random gusting of political rhetoric. I am frequently castigated for being ‘negative’. But if two plus two must equal four then two minus three must, by the unforgiving rules of arithmetic, equal negative one. Strip away the happy-clappy positivity and the wishful thinking before totting up the numbers in the progress and regress columns and you just as unavoidably get a negative result.

Compare and contrast!

In 2011 we knew for a fact that there would be an independence referendum. We don’t have that certainty now.

With all that we’ve learned since about how the Union works and how the British state responds when its structures of power, privilege and patronage are threatened we now know that the confidence we felt back then was rather misplaced. We now know that we only got that vote because the British political elite was convinced that the referendum posed no threat to the Union. Having been disabused of that notion, they are now determined that the sphincter-slackening experience of 2014 should never be repeated. And we are learning that, absent thinking outside the box of the British political system, the Scottish Government has vastly fewer ways of making a referendum happen than the British government has of preventing it. Do the math! In terms of the probability of a referendum in 2020 as promised we are well into negative territory.

In 2012 we had an agreement with the British government and the assurance from the Scottish Government that the referendum would be held in the autumn of 2014. We have neither of these things now.

We not only don’t have the equivalent of the Edinburgh Agreement, we have a yawning gulf of ideological difference and mutual animosity that looks to be unbridgeable. And while we have the political promise of a new referendum in the second half of 2020 we also have awareness of the mechanisms and procedures involved and, unless we’ve succeeded in deluding ourselves, the ease with which the British can throw a variety of spanners in the precariously delicate works.

In 2013 we had a precise date for the referendum. We don’t have that now.

Nor is there the remotest possibility of us being given a precise date. Too many things have to be in place before that can happen. And every one of those things is an unknown variable. There is a vast sea of uncertainty between now and the announcement of a date.

In 2014 we had a clear route to independence. We don’t have that now.

Back then, we had a timetable for the restoration of independence. The dates may have been adrift by a few months either way. But we saw no reason to doubt that independence was coming. And sufficient reason to suppose that it would be delivered sometime in 2016. There is no such timetable now. It is undeniable that we have moved backwards from the position we were in then. The Scottish Government has no timetable. No programme. No plan. If we can’t be sure te referendum will happen, how can we foresee independence happening? In 2014 we knew precisely what we had to do in order to achieve our goal. Now, the route-map to independence is mostly blanks that can only be filled by resort to magic.

In 2015 we had an SNP majority in the Scottish Parliament. Now, we don’t even know that there will be a Scottish Parliament by the time of the next elections.

Such is the measure of the uncertainty we face. Since 2011 we have learned a huge amount about the strategies, tactics and methods by which the British state defends established power. The lessons of often very harsh experience. And yet the Scottish Government’s approach to the constitutional issue has not changed in the slightest. The last decade might as well not have happened for all the impact it has had on the thinking of the SNP leadership. They are totally committed to using the same process as for the 2014 referendum. And, should the referendum ever get to the campaigning stage, they are absolutely determined that the second Yes campaign should emulate the first one in every significant way.

Alex Salmond was a dancer. He respected his political opponents but had no illusions about them. He knew when to lead and when to swerve and when to go with his partner/opponent. He that it wasn’t enough to know the steps, you had to be able to improvise. He was conscious of the fact that the dance could very easily turn into a wrestling match. And he was aware that, in a wrestling match with the British state, Scotland almost certainly couldn’t win unless we could match them gouge for gouge and low-blow for low-blow.

Nicola Sturgeon is a marcher. A different kind of leader altogether. Not necessarily a lesser leader. Just different. She sees the goal, knows the cause is just and supposes that resolve will succeed. Nicola Sturgeon knows the “case for independence” inside-out and back-to-front. She is well prepared – and better able than any others I know of – to play the game according to the rules. But she seems to expect that the game will be played by the rules. She will steadfastly march the route defined by those rules regardless of her opponents’ ability to change those rules or their willingness to wantonly breach them.

Just as I decline to perform a post-mortem on the year about to pass, I offer no prognosis for the year to come. As noted, there are far to many unknowns – known and unknown – to make prediction anything other than an idle exercise. We can only speculate. We can only say if this then probably that – or perhaps the other. For such speculation to be at all interesting or useful, however, our ifs must be grounded in a realistic appreciation of what really is and what actually might be. No resort to magic. Thus constrained, any speculation I attempt must be far too gloomy for what is supposed to be a time of hope.

One thing I will say with, if not absolute certainty, then certainly a high degree of confidence. 2020 will be a decisive year for Scotland’s cause. By this time in 2020 Scotland will either be set fair on a course to becoming an independent nation again, or it will lie smashed and stranded on the reefs of unscrupulous, unprincipled, unconscionable British power.

The choice, and the responsibility, lies with us – the people of Scotland. In 2014, for fifteen unprecedented hours on Thursday 18 September, we held total political power in our hands. As a nation, we made the choice to hand that power back to a British political elite which, inexplicably, we trusted better than ourselves even in the knowledge that they had used a campaign of lies, threats and false promises to keep their grip on Scotland. In 2015 we had ourselves a wee rethink and, again as a nation, we decided to lend a big chunk of our democratic power to the SNP in the hope and expectation that they would help us rectify the mistake made the previous year. We’ve renewed that loan at every opportunity since.

In 2020 the SNP must justify the trust that we have invested in them. They must use the power that we have loaned them for the purpose intended. They must know that we are capable of calling in that loan. And willing to do so. Because that is how we exercise our power over those to whom we entrust it.

2020 will be an unprepossessing bairn that will grow into an exceedingly ugly creature unless we take hold of it and shape it, Let our New Year message to Nicola Sturgeon be this:

Get independence done! Get it done in any way you can! Resort to whatever methods you must! No more waiting! Just get it done!

A Happy New Year is not in prospect. Not as things stand. What I will wish whatever friends I have left in Scotland’s independence movement is the wits to know who can be trusted, the awareness to recognise what must be done and the strength to do it. And roll on 2021.



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Who do we trust?

So, Patrick Harvie thinks it’s a good idea for the Scottish Government to trust the British Electoral Commission. But Patrick Harvie also thinks it a wizard wheeze to stand candidates in constituencies such as Perth & North Perthshire where the SNP’s Pete Wishart is defending a majority of less than two dozen votes. All things considered, I’m not inclined to put much faith in Mr Harvie’s judgement.

That is not to say that the British Electoral Commission is untrustworthy. It is only to say that it may not be entirely wise to take Patrick Harvie’s word for it. We should make our own assessment based on what we know, or can learn, about the British Electoral Commission and how it operates.

On paper, the British Electoral Commission looks to be sound. The organisation, which was set up in 2000, describes itself as

“The independent body which oversees elections and regulates political finance in the UK. We work to promote public confidence in the democratic process and ensure its integrity.”

A trawl through the British Electoral Commission’s website is very reassuring. If one takes everything at face value. The way commissioners are appointed, the decision-making processes, the expertise all appear totally satisfactory. One might be impressed by the fact that there is a dedicated commissioner for Scotland (and Wales) and, as the third largest party in the House of Commons, the SNP gets to nominate a commissioner. On the face of it, there seems no reason to disagree with Patrick Harvie’s assessment.

But there’s another organisation which, on paper, looks every bit as independent, fair and impartial – the BBC. And we all know how different the reality is from slick presentation.

But it’s not actually about trust. Whether or not the Scottish electorate can have confidence in the British Electoral Commission is not the point. It is a question of appropriateness. Regardless of whether or not we consider the British Electoral Commission trustworthy, we have to ask whether it is appropriate for an agency of the British state to have oversight of a referendum in which the people of Scotland exercise their right of self-determination. We have to wonder about the propriety of an agency of the British state having significant authority over a referendum in which the British state itself has a massive stake.

Much fuss is made about ensuring that the new independence referendum is ‘legal and constitutional’ in order that there should be no impediment to Scotland gaining international recognition once the nation’s independence is restored. We hear rather less about the fact that what the international community is most concerned about is that the process by which independence is restored should be impeccably democratic. Nor do we hear very much about how important it is that the people of Scotland have total confidence in the process.

We are entitled to question whether the democratic validity of Scotland’s referendum – actual and perceived – is served by the involvement of the British Electoral Commission. Or whether this is likely to be regarded as external interference such as would tend to undermine the democratic legitimacy of the referendum in the eyes of the international community and the Scottish electorate.

Ask yourself this, would you trust the BBC with a formal role in the referendum process? Would you think it appropriate?



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Mhairi’s voice

If, as Mhairi Black states, the purpose of this Saturday’s rally is to “send a message to the Westminster establishment” then it will be a wasted effort. The Westminster establishment isn’t listening. The Westminster establishment doesn’t care.

Why should they care what Scotland says? The Union ensures that the Westminster establishment will always have the power to slap Scotland down. The No vote in 2014 gave the Westminster establishment a licence to do as it pleased with Scotland. The Nicola Sturgeon’s commitment to the Section 30 process allays any fears the Westminster establishment might have had that the Scottish Government intended to challenge its authority. The Westminster establishment has every reason to be confident that England-as-Britain’s grip on Scotland is secure.

Sending a message to the Westminster establishment will have no effect at all. If Mhairi Black and others want to shake things up, they should be addressing their speeches to Nicola Sturgeon. They should be urging her to take a more assertive approach to the constitutional issue. They should be telling her the time has come to challenge the power of the Westminster establishment. They should be insisting that she defend the principle of popular sovereignty. That she assert the authority of the Scottish Parliament. They should be demanding that she reject the alien concept of parliamentary sovereignty

They should press her to defy the authority of the British establishment. . Authority which may be ‘legal and constitutional’ in terms of British law and the British constitution, but which can never be just or rightful in terms of fundamental democratic principles.

Speakers at The National’s rally on Saturday should not waste their time talking to a British political elite which regards them with open contempt. They would do better to use the opportunity to remind our First Minister that where Scotland goes from here is up to her. It is the decisions she makes at this time which will determine Scotland’s future. It is her actions, and the actions of her government which matter; not the Westminster establishment.

They should be pointing out to the First Minister that, if she truly believes Scotland’s future should be in Scotland’s hands then she must accept that it will only get there if she wrests control from the Westminster establishment, rather than hoping that they might graciously give it up if she abides by their rules.

They should be emphasising that the overriding reason for seeking the restoration of Scotland’s independence is that it is right. The Union must be ended because it is wrong.

Mhairi Black’s is a powerful voice. A persuasive voice. She should not be wasting that voice talking to the Westminster establishment. She should be using it to inspire Nicola Sturgeon to be the bold, assertive leader Scotland needs.



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