Divergent concerns

Given some of then things I’ve had to say about his views in the past, some might be surprised to find me agreeing with Pete “The Postponer” Wishart. They might be even more perplexed to find that I am perfectly comfortable agreeing with what he says about the new pro-independence ‘list’ parties that are starting to proliferate. They shouldn’t be. My criticisms of Pete Wishart have never been personal. It’s his attitudes and the manner in which he tends to express them which I object to. I have always allowed that he is generally an excellent constituency MP – so long as you don’t question him at all about anything – and an asset to the SNP Westminster Group – when he isn’t embarrassing them by talking about applying for the job of Speaker of the British House of Commons.

Wishart is much like Nicola Sturgeon in this regard. Probably like all politicians. He’s neither all good nor all bad. Even the most apparently simple individual can be a rather complex mix of characteristics and attributes and attitudes. Nicola Sturgeon is a fine First Minister. Pete Wishart has served Scotland well as chair of the Scottish Affairs Committee. Nicola Sturgeon’s handling of the constitutional issue has been abysmal. Pete Wishart’s thoughtlets on the scheduling of a new independence referendum are jaw-droppingly delusional. Even the worst of the British politicians squatting in the Scottish Parliament like bloated cuckoos surely have some redeeming qualities. I am open to that possibility. I do not discount it completely. Anyone?

There is nothing to disagree with in what Pete Wishart says about these new parties that are springing up promising to game Scotland’s ungameable electoral system in ways that even the founders of some of the parties have previously insisted are impossible. At best, these list parties are not a good idea. At worst, they are the worst idea imaginable. They are being sold on the basis of what they promise to achieve – a slew of additional pro-independence MSPs – without any explanation as to how this might actually be achieved. The promise to rid our Parliament of parasites the likes of Murdo Fraser and buffoons such as James Kelly and fatuous nonentities of Willie Rennies ilk holds such powerful appeal that many are accepting the claims of these new parties with a naive eagerness which might be endearing were it not for the serious implications of such folly.

If a promise is too good to be true then it almost certainly isn’t. The sensible individual embraces a healthy cynicism when approached by wannabe political leaders bearing uncommon gifts. Especially when all you are ever shown is the packaging.

Pete Wishart comes to the correct conclusions about these list parties even if he gets there by a process which is rather less forensic than we might wish. He could, for example, have highlighted the illogicality of the assurances such as that the new party will only stand candidates on the regional lists so long as the SNP is ‘guaranteed’ a Holyrood majority from the constituency vote. Firstly, there can be no such guarantee. Secondly, if there could be such a guarantee it would totally negate the claimed purpose of these list parties.

Or how about the insistence that the new parties will not be standing against the SNP and endangering an SNP administration? The only occasion when the SNP has won an overall majority was in 2011. Achieving this remarkable feat involved winning seats in almost every region (7/8). How then can these new parties put up candidates for list seats without standing against SNP candidates and thereby increasing the risk of the Scottish Parliament falling back into the hands of the British parties – a catastrophe none of us who care for Scotland want to even contemplate. And let us not forget that the only time the electoral system has been ‘broken’ it wasn’t by the gaming activities of alternative parties but by the sheer force of the electorate concentrating votes on the SNP.

I wouldn’t expect Pete Wishart to get into psephology which shows how unlikely it is that any of these alternative parties will actually win seats or the arithmetic which illustrates how easy it is for them to do massive harm while trying to win seats. There is an effective 5% threshold for being awarded seats. There is a very real risk that the alternative parties could get near enough this approximate threshold to knock out the SNP but not enough to win a seat. Thereby doing the opposite of what they proclaim as their intention. The more of these parties there are, the greater the risk of the votes that go to them being not merely wasted but, from the perspective of the independence campaign, severely counter-productive. None of them admit to this risk or if they do then they do so well away from the public eye. I consider that to be deceit of the kind that would disqualify any party from getting my vote. Deceit not dissimilar to that of pretending there is a Scottish Labour Party.

What forensic analysis shows – and there’s an abundance of it available – is that these alternative parties represent a huge gamble. A gamble, moreover, in which it is impossible to calculate the odds. We know those odds are stacked against the list parties doing what they’ve scribbled in chalk on the tin, but we have no way of working out even roughly how remote are their chances of success in their own terms. What we can discover with ease are the stakes. If these parties fail to deliver on their promises – which they all but certainly must – then all is lost. The British parties seizing back control of the Scottish Parliament is a prospect which haunts the darkest nightmares of every politically aware person in Scotland. It would be a massive, perhaps fatal blow to the campaign to restore Scotland’s independence.

But what if they succeed? What do we stand to gain? What is the prize? Nothing! No more than what we already have. There is no gain in achieving a pro-independence majority when we already have a pro-independence majority. It makes to sense whatever to put that pro-independence majority in jeopardy for the vanishingly remote possibility of maybe by some electoral fluke getting a slightly bigger majority. There is nothing that can be achieved by a majority of two which cannot be achieved by a majority of one. So why would you gamble your majority of one in the vague hope of getting something that is by any objective measure no better?

Pete Wishart sees this. Do you really want to admit to being less perspicacious than the guy who came up with the inane notion of an ‘optimum time’ for holding a new referendum? Do you really want to claim less political acuity than someone who continues to look at the Section 30 process as the “gold standard” even after it has failed so spectacularly? Do you?

What Pete Wishart fails to see are the underlying reasons for these alternative parties coming into existence in the first place. Actually, it’s worse. He recognises the cause(s) but then flatly refuses to address it/them. This is starting to sound more like the Pete Wishart we’ve come to know and observe with weary despair. Failing or refusing to address issues is something of a trademark. He acknowledges that the Gender Recognition Act was ‘problematic’. But it has been shelved so no need to think about it at all. Please don’t question Mr Wishart on social media about why the legislation was ‘problematic’ or why it was allowed to become ‘problematic’ or why it continues to be ‘problematic’, or he’ll block you. For reasons which may be understandable even if hardly admirable he is not going to allow that the GRA was a mistake. Or even that mistakes were made in the handling and presentation of GRA.

I happen to agree that the constitutional issue takes precedence and must be abstracted for the realm of public policy. But even if only for the reason that it is prompting the massive gamble of the list parties I cannot be so dismissive of what are undoubtedly genuinely held concerns about self-ID proposals and the potential impact on women – even if that impact is exaggerated for legitimate campaigning reasons. It is this discounting of the concerns of Scotland’s citizens which I find incomprehensible and reprehensible. I found it so when Pete Wishart and others were dismissing valid concerns about the First Minister’s inexplicable commitment to the patently nonviable Section 30 process. In the name of consistency and principle I must object just as strongly to the anti-GRA lobby being treated with disdain bordering on contempt – even if I do find their lobbying to be way too shrill and frenetic to have any hope of being effective.

What really irks me, however, is Pete Wishart’s profound indifference to the other dissatisfaction which he acknowledges as a motivating factor in the formation of the alternative pro-independence list parties. He recognises the disquiet, not to say distress, with which many view the SNP’s somewhat lackadaisical approach to the constitutional issue and the Scottish Governments decidedly lacklustre performance in the handling of that issue.

To put it simply, Pete Wishart is worried about how these parties will affect the SNP’s chances in the next Holyrood election. I am fearful of how they will affect the cause of restoring Scotland’s independence. We both consider these list parties a very bad idea. But for quite different reasons.



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Of questions and reframing

Michael Gove: A creature of unknown origins struggling to maintain human form.
Michael Gove: A creature struggling to maintain human form.

Michael Gove is correct. You won’t see or hear those words very often. And never without some qualification. My own qualifying supplement is that Gove is correct, but only partly, coincidentally and in a sense.

That the British Electoral Commission is wasting its time is true in the sense that, as an agency of the British state, it should have no role in the process that will restore Scotland’s independence. It is also true that the British Electoral Commission is wasting its time in the sense that it is testing the wrong question. But we’ll come back to that.

Given that the British Electoral Commission should not play any part in Scotland’s exercise of its right of self-determination it follows that whatever process the British Electoral Commission is involved in cannot be intended to lead to the restoration of Scotland’s independence. This necessarily implies that Scotland’s First Minister had some other purpose in mind when she formally requested that the British Electoral Commission re-test the question that was asked in the 2014 referendum. One more way in which Nicola Sturgeon is going over old ground and repeating the mistakes of the past and failing to learn lessons and acting as if nothing has changed since the first independence referendum and so it’s perfectly appropriate to do everything the same way as it was done then.

Michael Gove is almost certainly correct about this other purpose being to maintain the pretence of a 2020 referendum as not-quite-promised by the First Minister. It is difficult to fathom what other reason she might have for embarking on such an exercise. No legislation has been proposed or passed in the Scottish Parliament to enable a referendum this year. Until that legislation is passed, nobody can know what the question on the ballot paper will be. It is not beyond the realm of possibility that a different question might be suggested and that this could be the question chosen by MSPs. The First Minister may think it a good idea to act as if nothing had changed since the first referendum. But MSPs might disagree. It’s a gratifying thought, even if no more than that.

Which brings us back to Michael Gove’s assertion that the British Electoral Commission is wasting its time because the First Minister’s request that they re-test a question which has already been tested in the most effective way possible is merely “an exercise designed to persuade Scottish National Party members that a referendum is imminent”. He is only partly correct. The exercise is designed to fool the entire Yes movement into believing that a referendum is imminent. But, of course, there is no way a British Nationalist such as Michael Gove will admit to support for independence beyond the ranks of SNP members. He has to stay on-message. Scotland’s cause must be portrayed as a minority obsession.

As already noted, the re-testing of the 2014 referendum question is a waste of time not only because it has already been subjected to the ultimate test of use in an actual referendum in addition to passing all pre-testing but because, supposing the First Minister comes to her senses, it will not be the question asked in a future referendum and because, supposing the First Minister comes to her senses, no agency of any external government will be permitted a role in the process the next time Scotland’s people exercise their right of self-determination.

What that testing of the old question tells us is that, while it may have been adequate and acceptable when it was agreed, that was more than seven years ago. The political landscape has undergone tectonic changes since January 2013. It is, at the very least, questionable whether the same question could be adequate and acceptable in dramatically altered circumstances. I would maintain that it is unquestionably inadequate, unacceptable and just plain wrong.

I was never happy with the question asked in the 2014 referendum.

“Should Scotland be an independent country?”

Put that question to the people of any other nation and they’ll assume you’re ignorantly offensive or simply daft. Independence is normal. Independence is the default status of all nations. The people of other nations take it for granted that their nation should be independent. Other than those who have experienced occupation by an aggressive imperialist and/or totalitarian power, they would probably have difficulty imagining anything different. Independence is normal. Only in cringe-ridden Scotland would such a question be asked. Only in meekly, obsequiously subordinate Scotland could such a question be asked without provoking widespread outrage and anger. Only the colonised mind might find this question acceptable. Only the colonised mind would fail to challenge and reject the premise that Scotland “should” be anything other than a normal independent country.

The question originally proposed by Alex Salmond’s administration was only slightly better. Only marginally less offensive. And only is one were making generous allowance for the context of devolution and the constraints this imposes on the Scottish Government.

“Do you agree that Scotland should be an independent country?”

This at least hints at independence being the default assumption. Which is almost certainly why the British government objected to it. The British establishment cannot allow that anything other that the iniquitously asymmetric Union is ‘normal’. As one would expect, the British Electoral Commission sided with the British Establishment of which it is part. The question was disallowed, effectively for acknowledging normality.

To be fair, it is likely that Salmond anticipated this. He is, after all, one of the most astute and wily political operators of our time. The sort of player it would suit the British establishment to have removed from the field. He was bound to be aware that the British political elite would protest every proposal he proffered for no other reason than that it was he who was proffering it. They had to be seen to be keeping the uppity Jocks in line. Especially the uppiest of all uppity Jocks. Knowing the first proposal was going to be rejected, Salmond ensured that the second was something he could live with.

He did much the same with the so-called “second question”. Which was actually a third option on the ballot for some form of enhanced devolution – or ‘devo-max’. This was the last thing Salmond wanted as it would split the constitutional reform vote at significant cost to the Yes option. His crafty solution was to drop a hint in a speech that it was his preference. The response from the British government was precisely as he expected. And exactly what he wanted. The “second question” was excluded.

The ballot question that was settled on struck me not only as offensive to the un-colonised or decolonised Scottish mind, but as massively misleading in that it made independence the contentious concept. Independence is normal. It is not and never can be a contentious concept. It is the concept of a nation’s status that is assumed by pretty much everybody in every other nation. Although there are some in some nations who are eager to threaten the independence of other countries, few if any question the appropriateness of independence for their own nation. Only in Scotland will you find people who consider the independence of their own nation a contentious concept – and a horrifying prospect.

Making the concept of independence the focus of debate gave the anti-independence campaign a huge advantage. It got Unionists and British Nationalist off the hook very nicely. The last thing they wanted was a debate about the Union and what it means for Scotland. But, by rights, that is what the referendum campaign should have been. It should have been a rigorous examination of the Union and forceful interrogation of those who seek its preservation at any cost to Scotland. It wasn’t. The question defines the campaign. And the question in the 2014 referendum forced the Yes side to defend the constitutional normality of independence rather than attacking the constitutional aberration that is the Union. And it allowed the forces intent on continuing to deny the sovereignty of Scotland’s people to dodge questions about their ‘precious’ Union and to focus on generating a thick fog of doubt around the concept of independence. The question in the 2014 referendum was an absolute gift to the anti-independence campaign.

It was doubt wot won it! A more apt nickname for Better Together than ‘Project Fear’ would have been ‘Project Doubt’. The entire No campaign was an exercise in reframing. The issue was reframed from being about the Union to being about independence. The question on the ballot did much of the work for them. Questions generate doubt. It’s human nature. If as you leave home to go on holiday somebody asks if you remembered to lock the back door, it doesn’t matter how certain you were that you had, as soon as the question is asked you start to have doubts. Doubts that may haunt you and ruin your holiday. Doubts that may even put you off going away altogether.

So it was with ‘Project Doubt’. The No campaign was essentially just an incessant stream of questions blasted into the minds of Scotland’s voters by the British media. Questions create doubt. The British establishment and its lackeys in Scotland knew that this was all they had to do. People tend to be averse to change of any kind. They also tend to be risk averse. All that was required was that the independence which is generally regarded as normal should be made to appear a very dubious prospect for Scotland. A step into the unknown. A leap in the dark. The question provided the foundation for a No campaign that was entirely an edifice of lies and intimidation.

All of this was aided by the fact that independence itself is not in undisputed concept. There is no single definition. There could be no unified Yes message because the Yes movement is so proudly diverse. The campaign for independence itself generated doubt because it was never clear which of the variations on the theme of independence was the independence being campaigned for. A situation that was only aggravated by the tendency of all too many in the Yes movement to run with propaganda cues being fed to the anti-independence campaign by the British media.

It all stems from the question asked on the ballot paper. National independence may have some legal definition. But in the context of Scotland’s civic nationalism the term refers at least as much to intangibles such as promise and potential as to a status specified in law. It is not possible to build an effective political campaign around a disputed concept. An effective campaign message cannot be vague or diffuse or ambiguous or ambivalent. The question asked in the 2014 referendum campaign ensured that the Yes side would be obliged to attempt the impossible. That the Yes campaign did so well was entirely down the the huge numbers of Yes campaigners and the massive effort they put in. They did Scotland proud. And they did it despite a question that stacked the deck against them from the outset.

Nicola Sturgeon proposes to use the same question. Think about that.

The 2014 referendum should have been, in the words of Dr Elliot Bulmer, a “constitutional conversation” about “rights, identity, values and principles”. Instead, it ended up being an unseemly and unedifying squabble about money. This was the second wave of the No campaign’s reframing exercise. The constitutional question was reframed as an economic issue. How better to generate doubt than to let loose the economic doom-mongers who can be hired to make an economic case against breathing if the intention is to suffocate the credulous en masse. Which, perhaps counter-intuitively, would be very, very wrong.

There were lessons to be learned from this. None appear to have been learned. Nicola Sturgeon is still talking about “making the economic case for independence”.

Independence is normal. It is the Union which is anomalous. It is the Union which should be under scrutiny in a constitutional referendum. It is the constitution which should be the topic of debate.

Self-evidently, this describes a referendum and a campaign both entirely different from the previous one. And yet Nicola Sturgeon and the SNP seem determined to replicate that first referendum and campaign in every way possible. The same Section 30 process. The same referendum question and, given that the question defines the campaign, the same unseemly and unedifying squabble about money. No lessons learned and no meaningful account taken of the drastically altered political landscape. It makes no sense!

If it did make some sense, somebody would be able to explain it. I have been questioning this ‘strategy’ for some years now. Certainly since 2015. As I write, I have yet to receive a sensible response. I am inundated with requests and demands to stop asking the questions. But I have been given no answers to questions I have asked inter alia about the Section 30 process. Nobody is willing or able to address the serious concerns that are now being voiced by more and more people in the party and the Yes movement. Attempts by others to open up discussion about strategy have been shut down quickly and with an efficiency that is slightly disturbing. And still none of it makes any kind of sense.

The lessons of the past are clear and easy enough to take on board even if not quite so simply translated into action. Those lessons can be distilled down to two statements about a new referendum.

The referendum process, from beginning to end, must be entirely made and managed in Scotland. It must, in compliance with international laws and conventions; in keeping with best practice; of necessity; and insofar as it may be practicable, prohibit and exclude any and all external interference and influence in the exercise by the people of Scotland of their inalienable democratic right of self-determination.
The referendum must seek the verdict of the people of Scotland on the Union. The referendum campaign must be focused on the constitutional issue being decided. The question on the ballot must relate to the Union. However the question is worded, it must ask that the people of Scotland decide whether they want Scotland to remain bound in the Union.*

Achieving this will require that the entire idea of the referendum be rethought and the campaign reformulated. It will involve an exercise in reframing at least as comprehensive and effective as that by which the British state thwarted Scotland’s aspirations in the first referendum.

It will require a Scottish Government and a First Minister prepared to act boldly and decisively and determinedly. It will require that our elected representatives act like the political leaders of a nation for which independence is a natural condition and rightful status. It will require that we all act as the citizens of an independent nation would if called upon to defend their independence and their distinctive political culture.

And it all needs to start five years ago.

* I should have said something about the form of the ballot paper and the manner in which the question is put. This was a clumsy omission for which I apologise and which I shall now seek to rectify.

The question should take the form of a proposal to dissolve Union with voters being invited to agree (YES) or disagree (NO). This YES/NO arrangement must be maintained. The Yes ‘brand’ is far too well-established and much too intimately bound to the independence campaign for it to be altered without causing confusion. To a lesser degree perhaps, the same could be said of NO. These words now define the two sides in the constitutional debate. Messing with that is a recipe for disaster.

The proposal on the ballot paper will reiterate the proposal passed by the Scottish Parliament. It may be feasible, and thought wise, to have a concise statement of the proposal on the front of the ballot paper and a longer, fuller explanation on the reverse. Copies of the proposal, in all relevant languages, will already have been widely distributed in the course of the campaign.

I shall offer two distinct and valuable advantages to putting the question in this way.

Firstly, everybody will know exactly what they are voting for (or against). There can be no subsequent argument about what a particular vote ‘means’. It’s there in clear print on every ballot paper.

Secondly, neither official campaign organisations nor the media will be able to misrepresent the issue. It may be considered efficacious to require that campaign organisations be required to carry the proposal text on all publications. It may even be a good idea to make misrepresentation of the proposal a criminal offence.



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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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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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What’s to stop them?

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

Ian Blackford asks,

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

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

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

Ian Blackford asks,

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

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

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

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



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