Ineffectual!

It was entirely predictable that British Nationalists would seek to create new impediments to holding a referendum and further obstacles to achieving a Yes vote should their efforts to deny Scotland’s democratic right of self-determination fail. Knowing the British mentality as we do, this anti-democratic manoeuvring was only to be expected. The British political elite always play by the rules. So long as they are allowed to write the rules; and to change them at will and without notice; and to have one set of rules for themselves and another for everybody else. The effort to ‘rig’ the process was readily anticipated and was, in fact, foretold by several commentators.

Nobody is surprised. Except, apparently, the SNP. The people we’d hope would be more politically astute than most appear to have been naive enough to suppose the British establishment would actually respect democratic principles. Nicola Sturgeon continues to be totally and unshakably committed to the Section 30 process despite the inevitability of the British political elite using that process to thwart democracy. Our First Minister remains completely deaf to the growing clamour within the Yes movement warning of the danger of trusting the British government. She remains oblivious to the voices urging her to immediately seize control of the entire referendum process in the name of preserving Scotland’s democracy. Despite the obvious anti-democratic intent of the British political elite, Nicola Sturgeon still seems happy to cede to them all the authority they need to ‘rig’ the process.

There are protests. Keith Brown says “the Tories are holding democracy in contempt”. Well of course they are, Keith! What did you expect? More importantly, what do you intend to do about it? He insists, yet again, that the Scottish Government has a mandate for a new referendum and that to refuse to recognise that mandate constitutes contempt of Scotland’s Parliament. But there is not so much as a hint that he and his colleagues have any intention to respond purposefully to this attack on Scotland’s democratic institutions.

It’s the same with Brexit. We get entirely redundant daily reminders from Ian Blackford and others about how catastrophic Brexit will be and how awful it is that this is being imposed on Scotland against the will of the Scottish people. But, apart from the incessant lament, what has the Scottish Government actually done to prevent Scotland being dragged out of the EU despite our emphatic Remain vote? They say this is unacceptable. But they seem content to accept it.

Already I can hear the pathetic bleating issuing from those with minds so effectively colonised as to render them incapable of thinking outside the British box. What can we do? We have no power! We have to obey the rules! We can’t be seen to do anything naughty! What do you expect?

[Insert appropriately expressive expletive!]

We can do whatever we are sufficiently determined to do! We have whatever power we choose to assert! We are under absolutely no obligation to obey any rules other than those we make for ourselves! We have to be seen to be willing to defend our democracy! I expect our politicians to do the job we elected them to do!

I don’t dismiss the difficulties involved in confronting the British state. Those difficulties have been aggravated by five years of inaction. They will only get greater with every day that passes without the bold, decisive action which is required to stop the British Nationalist juggernaut crushing our our democratic institutions.

The Scottish Government must recognise that the British state is absolutely determined to close all democratic routes to independence. They must realise that only democratic route to independence we can rely on is the one we create for ourselves and over which we retain total control. A process made by the Scottish Government working through the Scottish Parliament with the support of the sovereign people of Scotland.

Nicola Sturgeon must explicitly reject the authority of the British political elite to interfere in any way in process by which Scotland decides the matter of its constitutional status and chooses the form of government which best suits the needs of Scotland’s people. The First Minister must abandon the Section 30 process. She must insist that the British state, its agencies and its proxies are entirely excluded from Scotland’s constitutional decision-making process, in accordance with international laws and conventions. The SNP’s whole approach to the constitutional issue must be subject to an immediate, urgent and rigorous review.

Circumstances demand a mindset very different from that which is presently in evidence. How can we claim to be ready and determined to restore Scotland’s rightful constitutional status if we aren’t even prepared to take control of the process by which constitutional normality will be restored?

How can we even claim to deserve independence if the government we elect is prepared to let a government entirely lacking in democratic legitimacy make the rules for us?

How can we claim that the people of Scotland are sovereign while our own elected leaders are in thrall to the sovereignty of the British parliament?

One word, more than any other, comes to mind when I look at the Scottish Government’s handling of the constitutional issue – ineffectual! Against all the evidence to the contrary, they still proceed on the basis that the British will respect democratic principles. They continue to suppose that there is a path to independence abiding by the rules made by the British state for the purpose of preserving the Union at any cost. They persist in imagining that there must be a route to independence which avoids direct and almost certainly acrimonious confrontation with the British establishment. This is all delusion. And it is delusion which threatens to be fatal to Scotland’s cause.



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Section 30 won’t work

Great argument from Stu Campbell at Wings Over Scotland. Unfortunately, he comes to the wrong conclusion. We don’t need a Plan B. We need a better Plan A.

The problem with a creating a Plan B is that this assumes you’re going to get a second bite at the cherry. The attitudes and behaviour of the British political elite strongly suggest that this is not a safe assumption. We would certainly be wise to proceed as if we anticipated getting only one shot; if for no other reason than to eliminate any residual complacency and replace it with the necessary – and unquestionably warranted – sense of urgency that is currently missing from the Scottish Government’s approach.

What is the common factor in all these electoral calculations which lead to “OUTCOME: NO INDYREF”? Section 30! The problem is not the electoral arithmetic but the Scottish Government’s insistence on adhering to a process which, As WOS has shown, leads in every conceivable, barely conceivable and inconceivable scenario, to “OUTCOME: NO INDYREF” and, therefore, no independence.

Any outcome which doesn’t lead to the Union being dissolved in the very short term provides the British establishment with opportunities to create new and increasingly intractable obstacles to restoring Scotland’s independence. If we don’t get Plan A right, you can just forget the rest of the alphabet.

There is no route to independence through the twisting and shifting pathways created and controlled by the British state for the purpose of protecting and preserving the Union. Quite why anybody would think there might be is a total mystery given that this involves disregarding such a glaring contradiction. If we want independence, we must break the Union. And if we are determined to break the Union then we must be prepared to break the rules imposed in the name of and for the sake of the Union. Why is that not obvious?

There is another common factor in all the scenarios Stu Campbell has prepared. The all lead, not just to “no indyref”, but to the inevitable conclusion that the Section 30 process must fail. And when it fails, we are right back in the position of having to break the rules to break the Union. So why go through all that crap just to end up right back where we are now except with new difficulties to overcome in order to attain our goal?



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I don’t get it!

I don’t get it. Nicola Sturgeon says, “No Westminster government, of any party, has the right to stand in the way of the sovereign right of the people of Scotland to determine their own future.” If that is the case, then why is she intent on asking their permission? Why would you beg consent if consent isn’t required? If the British state has no right to stand in our way, why is Nicola Sturgeon behaving as if they do?

The people of Scotland are sovereign! There is no ‘but’ at the end of that statement. There cannot be. In one breath she says that the people of Scotland have a sovereign right to determine their own future. In the next she says that this supposedly sovereign right is subject to the approval of the British political elite. Both things cannot be true. Sovereignty cannot be conditional.

I don’t get it. Nicola Sturgeon says that another election win will “reinforce” this sovereign right that is, apparently, only sovereign in a certain ‘political’ sense. It’s only a ‘sort of’ sovereignty. Why would that sovereignty need to be reinforced unless it was in doubt? Nicola Sturgeon may entertain such misgivings, but I sure as hell don’t!

I don’t get it. Why would anybody imagine an election victory for the SNP would demolish the British establishment’s opposition to a new referendum? It never did before. The SNP has enjoyed almost unprecedented electoral success over the past few years and British antipathy to the idea of Scotland exercising its sovereign right of self-determination has only become more fervent. Opposition to a new referendum hasn’t been weakened by SNP election wins, it has grown more desperately resolute.

To summarise; Nicola Sturgeon wants us to do something she insists we have to do despite the fact that the sovereignty she claims means that we absolutely do not have to do it, in the hope that doing this thing will have an effect that it never did before.

I just don’t get it!



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What about dignity?

I wonder if Nicola Sturgeon realises how offensive it is to hear her repeatedly beg the British political elite for something which is ours by absolute right.

If Scotland is not prepared to face challenges – in court or anywhere else – to its constitutional claim, then Scotland is not ready to be restored to the status of an independent nation. Independent nations which are worthy of that designation do not seek to avoid such challenges. They stand ready to confront and defeat them.

I will maintain unto my dying breath and with every portion of my spirit and with every fraction of my intellect that Scotland is a nation fit to assume its rightful constitutional status and assert its nationhood against any who would deny it.

Nicola Sturgeon is a lawyer. Lawyers tend to go for what they see as the easy win. They opt for the path of least resistance. They make trade-offs to smooth the way. In doing so, they may well forget that they are dealing, not just with statutes and treaties and such, but with actual people. They lose sight of the effect their compromises have on those people. They forget that the things they give away in order to achieve the end that they pursue are things that may be hugely important to people, even if they have little or no legal or political significance.

What about our dignity, Nicola? If that is sacrificed now in the name of shallow political expediency, what will we have left when it comes to dealing with the challenges which must confront a nation newly freed from an injurious and demeaning political union? I have always felt that ending the Union is, in no small measure, about restoring Scotland’s dignity. Have I really been so wrong all these years?



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Options and priorities

As I have said on many occasions, the most valuable thing a political leader can have is a range of options. I have also acknowledged Nicola Sturgeon as a worthy pupil of one of the most astute politicians of our time – her erstwhile mentor, Alex Salmond. So I find it totally inexplicable both that she should discard options for taking forward the cause of restoring Scotland’s independence and that she should do so by choosing a route so fraught with potential pitfalls.

Unlike many other SNP members and a good number of my fellow Yes activists, I was perfectly content that the MacNeil/McEleny ‘Plan B’ resolution was rejected. I won’t go through all the reasons for this here, but they included the First Minister’s concern about distraction as well as recognition of the difficulties involved in making an election work as a substitute for a referendum. And the fact that a conference resolution isn’t needed for Plan B. The SNP can just stick in their manifesto for any election a declaration that a favourable outcome will be taken as a mandate to start negotiations. Who’s going to object? Apart from the usual suspects

I suggested then that Angus MacNeil and Chris McEleny might have had more success putting forward an amendment to the resolution in the names of John Swinney and Maree Todd, which they have now done; although I don’t for one moment suppose my words had any bearing on that decision. Besides, I also advised that they should drop their ‘Plan B’ and instead submit an amendment advocating a greater sense of urgency from the Scottish Government and exhorting the First Minister to keep her options open on on the matter of process rather than insisting on rigid adherence to procedures established by the British government. Obviously, Angus and Chris have not heeded this part of my advice.

I take the view that getting Plan A right is vastly more important than having a backup plan. Not least because, should Plan A fail, it’s unlikely that there will be an opportunity to resort to Plan B. If the British establishment is aware of the potential of Plan B, and how could they not be, then they will have a countermeasure ready to be deployed.

Nicola Sturgeon is absolutely correct in sating that focus must be on her plan. Where I part company with her is that I insist this focus shout take the form of critical scrutiny, rather than obedient acceptance.

I suggest that the four SNP MPs now backing a Plan B route to independence would serve Scotland’s cause better were they to take the lead in questioning the efficacy and wisdom of following the Section 30 route.



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Is he mad?

The fact that Michael Fry draws parallels with Catalonia suggests, however expert he may be on the glories of capitalism, he is not qualified at all to pontificate on matters constitutional. You don’t have to be a professor of constitutional law to know that the constitutional circumstances in Scotland and Catalonia are entirely different. So different that no meaningful comparisons can be made beyond the fundamental principle of the right of self-determination.

I suspect a professor of constitutional law would be more likely to award Michael Fry a rap on the knuckles than a passing grade were he to encounter the following argument.

“All-party agreement to the referendum rules is vital, and cannot be won in Scotland alone.”

That is just wrong in every way. If by “all-party agreement” he means the political parties, then what he seems to be saying is that the referendum rules would require a unanimous vote in parliament. Where is this stipulation made? Where does this appear in any internationally recognised law or convention regarding the right of self-determination?

But it gets worse! Apparently, we don’t only require a unanimous vote in the Scottish Parliament, we need the approval of Westminster as well! And that statement can only be taken to imply that Westminster’s approval would also have to be unanimous. There’s setting a high bar for Scotland’s right of self-determination, and there’s putting that bar into a deep space trajectory. And all this when there should be no bar at all. International convention prohibits interference in the referendum process by the state from which ‘secession’ is being sought. Michael Fry, on the other hand, maintains that such interference isn’t only lawful, but an actual requirement for legal validity.

The following would have our professor of constitutional law reaching for his rapping stick again.

“There is altogether a great weight of evidence that Scottish independence will come only by following the legal, constitutional route through agreement with the UK and not in defiance of it.”

What evidence? We can discount all the drivel about Catalonia because the constitutional differences make comparisons meaningless. What other evidence is there? I’m not seeing any. And it would take some powerful evidence to persuade me that there can possibly be a route to independence adhering to the laws, regulations, rules and procedures put in place by the British state for the purpose of preserving the Union.

Going even further, as Michael Fry recommends, and giving British Nationalists at least one and possibly more effective vetoes over the referendum would surely be a recipe for closing the democratic route to independence altogether and for all time.

(On the subject of time, you may note that Michael Fry would have us take a route which is “longer and drearier”, but nowhere does he address to consequences of further delay.)

The reality is that there is no route to restoring Scotland’s independence via a process designed and controlled by those who are fanatically opposed to Scotland’s independence being restored. There is no route which doesn’t involve breaking the British state’s rules. There is no route which avoids direct confrontation with the British state. Such is Michael Fry’s concern with making the process impeccably legal (according to British laws) he isn’t even aware that he’s making it impossible.

This entire article has been written for one reason. It is nothing more than a contrived legalistic rationalisation of the Scottish Government’s ‘strategy’ of waiting for the next thing that has to be waited for while never challenging the authority of the British state to deny or constrain or circumscribe Scotland’s right of self-determination. And, for goodness sake, don’t mention the Union!

I could maybe get to grips with this if Michael Fry was just asking me to trust Nicola Sturgeon and her team. But he is insisting that I should put my faith in the goodwill, honour and democratic principles of a British political elite that treats me and my country and the principles of democracy with open contempt. Is he mad? Or does he think I am?



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Section 30 is not Scotland’s salvation

I wonder if those who say things like “we are not at the end of the Section 30 order road” have ever stopped to think about what a Section 30 order actually is. When I hear people insisting that a Section 30 order is absolutely required for a referendum on restoring Scotland’s independence to be ‘legal and ‘binding’, I tend to wonder if they have considered what a Section 30 order is for and why this ‘loophole’ was made part of the Scotland Act 1998. After all, we know that the core purpose of the legislation is, not to empower the Scottish Parliament, but to keep it in check. We know that the devolution experiment never had anything to do with addressing the democratic deficit imposed by the Union or improving Scotland’s governance, but was always about creating a new and superficially more democratic framework within which powers could be ‘managed’ without the risk of compromising the Union. So why would the legislation include a provision for granting additional powers to the Scottish Parliament?

The answer, of course, is that it doesn’t. As becomes immediately clear when one reads the relevant text at Section 30(2).

Her Majesty may by Order in Council make any modifications of Schedule 4 or 5 which She considers necessary or expedient.

Scotland Act 1998

Expressed in a less legalistic, and more forthright, fashion what this says is that the British Prime Minister – currently a malignant child-clown named Alexander Boris de Pfeffel Johnson – can alter the powers of the Scottish Parliament whenever they want and in any way they deem “necessary or expedient” for their purposes – that purpose being ever and always the preservation of the Union. I think it’s fair to say that Section 30 isn’t sounding like quite the boon to Scotland some seem to suppose it to be. It is simply another device by which the British state may rein in the Scottish Parliament. Or, at least, that was the intention. Belt and braces legislation. Just in case there were any loopholes which might allow Holyrood more power than was intended, Section 30 allows the British political elite to quickly patch up any chink in the armour protecting the Union.

You may be asking how, if the purpose of Section 30 is to provide extra protection for the Union, did it come to be used to secure a ‘legal and binding’ independence referendum in 2014? To understand how this came about you need know just one thing – Alex Salmond is a lot smarter than David Cameron. Alex Salmond played Cameron like the proverbial old fiddle. He knew his opponent and was keenly aware that he could rely on a mix of hubris, arrogance and ignorance to enable him to extract what he wanted from the then British Prime Minister. And what he wanted was, not the Section 30 order itself, but the Edinburgh Agreement that accompanied it.

Of course, the drafters of the legislation never envisaged Section 30 being used in this way. They assumed the Scottish Parliament would always be controlled by the the British parties; who would never do anything to jeopardise the Union. That’s the way the electoral system was set up. Not, as some imagine, to keep the SNP out, but to keep some combination or permutation of British parties perpetually in. Another safeguard for the Union. You may be starting to discern a pattern.

Alex Salmond is a brilliant political operator. A master of the art of keeping open as many options as possible and a man who can calculate, on the fly, all the values in a complex trade-off. Setting a precedent by requesting a Section 30 order was dangerous because, on the face of it, this might limit the options available in the future. Remember that, in 2012, Salmond had little reason to suppose that a referendum could be won. He was pretty much bounced into going for it because, in 2011, the Scottish electorate broke the voting system in a way that not even Alex Salmond could have predicted. He had to declare the referendum. And he would do his utmost to win it. But he was also planning for the loss and looking to get as much out of the whole exercise as he could.

Aware that the precedent-setting risk involved in requesting a Section 30 order was at least mitigated and almost certainly negated by the unlawfulness of any attempt to deny the right of self-determination, Salmond figured the trade-off was worth it to secure the Edinburgh Agreement and, crucially, formal recognition of Scotland’s right of self-determination by the British state. Asking permission from Cameron must have grated severely on Salmond’s Scottish sensibilities. But, ever the pragmatist, he got on with doing what was necessary.

So, to summarise – the purpose of Section 30 of the Scotland Act 1998, is to afford the British Prime Minister the legal authority to unilaterally and arbitrarily alter the powers of the Scottish Parliament. So much for the ‘most powerful devolved parliament in the world’!

Alex Salmond used the Section 30 procedure to manipulate David Cameron into formally acknowledging Scotland’s right of self-determination as part of a subsidiary plan to ease the way for a new referendum in the event that the 2014 vote went the wrong way.

Salmond realised that this could not set an awkward precedent as the Section 30 procedure would always be trumped by international laws and conventions relating to the right of self-determination. Which does not mean that we should take the British government to court – whatever that may entail. What it means, and what Salmond no doubt intended, is that the British state is powerfully deterred from taking the Scottish Government to court. It is highly unlikely that any constitutional court, including the UK Supreme Court, would uphold the British government’s right to exercise what is effectively a veto over Scotland’s right of self-determination. To do so would be to strike down the Charter of the United Nations. No constitutional court would risk its credibility in this way. No judge would want that on their Debrett’s entry, or their Wikipedia page.

The question, therefore, is not whether we are “at the end of the Section 30 order road”, but whether we should be on that road at all.

Some insist that a Section 30 order is required to make a referendum legal. This is the colonised mind speaking. Note how such people constantly fret about the legality of what Scotland does and its bearing on independent Scotland gaining recognition by the international community. Note how they rarely, if ever, think about questioning the legality of what the British state does. They never ask how a law prohibiting or constraining a fundamental democratic right can possibly be valid. The British political elite has only to assert a power, and the colonised mind unthinkingly accepts it. The superiority of the British state is mindlessly assumed.

What matters in relation to the right of self-determination is, not formal legality, but democratic legitimacy. So long as the process by which the right of self-determination is exercised can be shown to be open and democratic, any law purporting to prohibit or constrain that right cannot itself be legitimate. Especially when that law is imposed by a parliament and a government which itself lacks even the semblance of democratic legitimacy. Who says so? Well, among others, the British government. It is stated with great clarity and concision in the British government’s statement(s) to the International Court of Justice inquiry as to whether the declaration of independence by the provisional institutions of self-government of Kosovo was in accordance
with international law.

5.5 Consistent with this general approach, international law has not treated the legality of the act of secession under the internal law of the predecessor State as determining the effect of that act on the international plane. In most cases of secession, of course, the predecessor State‟s law will not have been complied with: that is true almost as a matter of definition.

5.6 Nor is compliance with the law of the predecessor State a condition for the declaration of independence to be recognised by third States, if other conditions for recognition are fulfilled. The conditions do not include compliance with the internal legal requirements of the predecessor State. Otherwise the international legality of a secession would be predetermined by the very system of internal law called in question by the circumstances in
which the secession is occurring.

5.7 For the same reason, the constitutional authority of the seceding entity to proclaim independence within the predecessor State is not determinative as a matter of international law. In most if not all cases, provincial or regional authorities will lack the constitutional authority to secede. The act of secession is not thereby excluded. Moreover, representative institutions may legitimately act, and seek to reflect the views of their constituents, beyond the scope of already conferred power.

WRITTEN STATEMENT OF THE UNITED KINGDOM

It is abundantly clear that there is no necessity to follow the Section 30 procedure. So the question becomes one of what, if anything, makes it desirable to do so? And that is a far more difficult question, because it concerns subjective judgement Personally, I just hope that those ‘influencers’ who are advocating for the Section 30 procedure have actually thought it through. And, if our elected leaders are opting for the Section 30 procedure, I feel entitled to demand to know why, and to be assured that they have fully considered the kind of implications outlined in a previous article.



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