Thursday, March 22, 2018

If you want to get a Section 30 order, you first have to be serious about holding a referendum without one

My interest was caught by Peter A Bell's blogpost the other day about Green MSP Ross Greer's comments on Indyref 2, and not for the first time I find myself half-agreeing with Peter and half-disagreeing.  I certainly agree that Greer, in arguing that a Section 30 order is essential before a referendum can go ahead, is a siren voice who could potentially lead us onto the rocks - not ideologically or philosophically, but simply in strategic terms.  Greer suggests that we should forget all about holding a referendum without Westminster's consent and instead concentrate on "creating the political leverage to get the Section 30 order we need" - but the obvious point he's overlooked is that embarking on a process that could lead to a non-Westminster-approved referendum is in itself the sort of leverage that could actually produce a Section 30 order.  It's arguably very unlikely that anything else would even be capable of creating sufficient leverage (with the possible exception of an early general election in which the SNP make net gains - but of course the triggering of an early election is not in the gift of anyone on the pro-indy side).  There's no point in calling for the creation of leverage if in the same breath you're arguing that we should throw the best chance of leverage we have into the bin.

Greer says: "The idea of us being in a situation where we had to attempt independence with the absolute resistance of the UK government, I don’t think, would make independence actually possible."  Does he not understand that this stance, if maintained, would give the UK government a very simple method by which they can make independence "impossible"?  All they'd have to do is just keep saying "no" to a referendum.  Job done.  Scotland would have no leverage at all.

Think back to the first indyref.  Why did the UK government grant a Section 30 order for that one?  They didn't do it out of  the goodness of their hearts, that's for sure.  They did it because the SNP initially took the view that a Section 30 order wasn't needed and were talking seriously about going ahead without one.  That was dangerous for the UK government, who risked losing any say over the format of the vote (for example whether there would be a Devo Max option), and also risked being faced with a dilemma over whether to take legal action to stop the referendum - which might or might not have succeeded, but would have been politically damaging either way.  A credible threat of an "unapproved" referendum would generate a similar set of risks for London now.

In many ways, the strategic logic is similar to that of the Continuity Bill.  The Scottish Government would much prefer a deal with London to protect devolution, but paradoxically by preparing the ground for exploiting a no-deal scenario, you make a deal far more likely to happen.  But of course there's always just a chance that London will still prove intransigent, in which case you have to fall back on the Continuity Bill - in that sense it's an each-way bet.  Perhaps that's what scares people about using the same tactic to extract a Section 30 order - if it didn't work, we'd actually have to press ahead with an "unapproved" referendum.  But would that really be so awful?  If a referendum bill was passed without a Section 30 order and the Supreme Court subsequently upheld it, it would become the law of the land and the "fears" of a unionist boycott would probably recede.  If the Supreme Court didn't uphold it, the vote wouldn't happen anyway, but at least we'd then have political and legal clarity which would lead us inexorably towards using a Holyrood election to seek an outright mandate for independence.

Greer raises a specific concern about unionist-controlled local authorities refusing to cooperate with a referendum held without a Section 30 order.  I'm obviously not a legal expert, so I'm willing to be corrected on this, but it seems intuitively likely that there are ways to deal with that problem.  It's surely of some significance that powers over local government are devolved to Scotland.

Incidentally, I'd also suggest it's rather important that Labour and the Liberal Democrats (with the eccentric exception of Mike Rumbles) have created a precedent by voting in favour of the Continuity Bill, in spite of the Presiding Officer's opinion that it exceeds the parliament's powers.  That will make it harder for either party to credibly argue that the SNP are doing something terribly wrong by passing a referendum bill over which there is some legal doubt.  I don't say that in any sort of triumphalist "gotcha" way - I think Labour and the Lib Dems have done absolutely the right thing over the Continuity Bill, and they may even have done it for the right reasons.  But it's created new facts on the ground, just the same.

Where I part company with Peter A Bell is his belief that Greer's flawed thinking on strategy is symptomatic of a major difference in approach between the Greens and the SNP.  In reality, Greer's views are shared by some senior people in the SNP, while some take the opposite view, and others are somewhere in between.  I've no idea which camp Nicola Sturgeon is in, and unless Peter has some sort of inside knowledge, I think he's in danger of projecting his own beliefs onto her.  This isn't first and foremost an SNP v Green problem - there's an internal SNP debate on strategy that needs to be won.

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If you're an SNP supporter in the Penicuik ward, don't forget to vote in the local by-election today.  The SNP won the popular vote in the ward last year, but this is exactly the sort of place where Labour have prospered in recent months, so it could be a tight contest and every vote is important.  (The Tories are in with a serious chance as well.)

29 comments:

  1. I'm sure it's far from easy to do but the other thing that the ScotGov would have to do, beyond saying they would hold a referendum with or without a Section 30 order, is make it plain that they would put into action moves to set up an independent country in the event of any Yes vote (and so the unionists had better get their voters out).

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    1. Absolutely. Nothing else is going to move Westminster.

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  2. Just set a precondition that the Yes vote has to be over half of 85% of the electoral register, based on 2014 turnout. No one could then question the validity of the mandate, even with a unionist boycott.

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  3. The Treaty of the Union of Parliaments has been altered out of all recognition from the original by Westminster. It is time for the Scottish Parliament to cancel the treaty and remove all Scottish M P's from Westminster.

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    1. Anything that will get rid of wasters and save taxpayers money for public services.

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    2. Independence included?

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  4. Hmm random stream of consciousness now.

    I find it hard to see a realistic chance we're willingly going to get a Section 30 from the UK Government.

    They brazened it out sufficiently long with the "now's not the time" line, and the SG insufficiently pressed the case, such that we're very much now into status quo territory that's unlikely to change without some new event(s).

    If there's any elections soon and there are suddenly less SNP MP's/MSP's then that will be taken as evidence that support for independence is waning (whether true or not makes no difference) so they'll say there's "no point, no appetite". If there are more SNP MP's/MSP's that will frighten Westminster into continuing to say no anyway, as regardless of the SNP's position they know Yes would be starting from a much higher base than in the first referendum.

    I can't think what Westminster's angle would be to grant it anyway. Oh, I know it shouldn't be about that in principle, but that's naive idealism. The UK government will only grant it if they think there is something to further their angle from it. I don't think another relatively close vote (which I think would almost certainly be the case) would kill it off for good, so that's no good reason for them. Maybe if the Scottish Parliament continues to dig its heels in over Brexit, make that as difficult and awkward as possible, then there may be an appetite for "we've had enough, we trade you your awkwardness for a Section 30, win it and do what you want, lose it and support Brexit" sort of deal? Maybe, but sounds a bit fanciful.

    I could also maybe see it in some sort of post-General Election reciprocal-deal hung parliament with Labour as the largest party needing support from the SNP in some form, but even that seems unlikely - not necessarily that result but Labour agreeing to that.

    What would be helpful is another Scottish party on the Yes side of independence. It is definitely helpful having the Greens - not just in terms of the votes of the chamber but just a different voice to help make the case that independence isn't just about the SNP, it stops the case of everyone ganging up on them - but one other decent-sized party would help a lot. Can't see where that's coming from at the moment without some sort of massive split in a party, or political shift, though.

    So the Scottish Government/SNP are going to have to be prepared to hold a referendum without the Section 30, and I'm not 100% convinced they have the appetite for it, not without some massive polling shift, not without them thinking it's pretty nailed on. Hopefully I'm wrong though.

    Having said all that I think we're finally getting to the squeaky bum time of Brexit. After lots of rather dull stuff, it's finally beginning to hit home that any position of strength the UK government thinks it holds crumbles to dust pretty quickly, and we're boiling away all the details down to (somewhat predictably) compromises that neither remain voters not hardcore Brexiters like. So I tend to think that there will be at least one further big political event to come soon as I think there are one too many big groups of MPs for the electoral maths to work in upcoming votes. Not necessarily sure that it will automatically help or hinder the independence cause, but I think I like the opportunities for Yes better if there's upheaval than just the sort of drift that's been happening recently.

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    1. Making up scenarios in your head is not going to affect the reality of real politics and what is going to happen as a consequence. You Nat sis need to offer real independence and not sell Scotland out to the EU.

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    2. Well, I think we agree! A referendum without a Section 30 it is, then. Appreciate the input, albeit disagree with you on the EU.

      Best wishes

      Robert

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    3. Robert, you can have as many referendums as you wish provided they are legal and not imposed by a nat si regime.
      What is your disagreement with me on the EU?

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    4. I don't believe wishing to be part of the EU automatically equates to selling out Scotland.

      I think there are large parts of the UK who want to run away from the EU without fully understanding why they want to run away from it. I think there are a lot of people who have gotten confused, or just plain misled from certain sections of the press, and have voted to leave it for ancilliary reasons that aren't really related to anything specifically about the EU itself. I find that whatever good arguments there may be for leaving the EU, they are very easily drowned out by other arguments, horrible arguments, from people and politicians whose political viewpoints I cannot remotely agree with (Farage, Rees-Mogg, etc.). I find that many of the most vociferous Brexiteers make arguments for leaving the EU and then simultaneously create doublethink arguments as to why Scotland should not make similar arguments for leaving the UK.

      I find that at the very least with the EU one can take one's leave from the organisation if it is so wished, without any expectation that permission to consider leaving should somehow be sought first. I cannot imagine the Rees-Mogg's of the world calmly, blithely accepting a situation where the EU said "no, you can only have a referendum about leaving if we say so, and we say now is not the time".

      I want to be part of a confident, outward-looking, progressive Scotland, and I think the UK leaving the EU represents none of those things. I think it is the act of a country that has become angry, and small, and determined to close itself off from the world so that it can merely reminisce quietly in the corner about how things were better in the old days. I fear that the number of people who want to leave the EU for genuinely good reasons is quite small.

      But I suppose more than all that I want the position of Scotland within the EU to be Scotland's decision. If the rest of the UK wants to leave, that's ok - I don't agree with the rationale for the decision, but that's fine if they want to go their own way with that. If Scotland was independent and overall wanted to leave the EU (or not rejoin, depending on circumstance) then I could probably accept that whilst personally voting against it. But what matters to me is that ultimately it is Scotland's decision to make.

      Sorry, another rambling stream of consciousness there

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    5. Robert, You make your ramble in a way that you are entitled to do. I support the UK Union and have never supported the EU beaurocracy because it is not required. A good fair trade agreement is all that is required.
      We trade with the USA but do not have a star on their flag. We trade with the Chinese pretend commumists and do not have a seat at their congress.


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    6. Except that their is nae UK union. It was aye a de facto dictatorship with England sure to dominate.
      The EU at least allows members to benefit from their own natural resources and gives all countries a vote.
      England has an unhealthy and permanent veto. Now IS the time to leave this crippling 'Union.

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    7. You have to engage your brain and let go of yer wee tadger ding a ling, it makes you blind. The EU beaurocracy and their hing oots pray on pricks like you.

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    8. State of this.

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    9. The jaffa proddy bluesnout doesn't realise the island of Ireland will be united and the proddys put in their place.

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    10. It will be unifed this August when the leader of the worlds largest paedophile ring visits Dublin.

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    11. State of this.

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    12. State of you

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    13. State of this.

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    14. But...what if the Scottish VoverGoverheld a consultative referendum with or without the speakers permission on something they would be much more likely to win at the timing to achieve maximum effect. Two questions.
      "Should Scotland retain Single Market and Customs Union membership in line with Northern Ireland? Yes or No?
      "Should the Scottish Parliament at Holyrood be able to call any future independence referendum at a time of it's choosing without needing consent from Westminster? Yes or No?

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  5. Why did the UK government grant a Section 30 order for 2014 referendum? They may have felt some pressure from the prospect of Scottish Government running our own referendum, but I would guess that the biggest factor was that they thought the No side would win it easily - by 60%/40% or even 70%/30%. And that would then give them peace for a (political) generation.

    They could hardly approach another one with such insouciance.

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  6. Perception is everything. The Scottish government have to be seen to be trying for agreement on IndyRef 2 but if/when they are refused a section 30 order, I hope they have the guts to go for it anyway. they must.

    This apparent wavering of the Greens is very concerning. If they get cold feet and refuse to vote for IndyRef 2 on the basis that agreement with WM must be secured first, they will never be forgiven.

    IMO the more WM fights it the better - what are they going to do - a yoon boycott? Excellent - it would ensure a YES victory, and a real mess of course, but the important thing is the fight goes on. If we need Indyref 3 or indyref 4 to clear it up then so be it. Some of us will never give up.

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  7. Not on the subject of referendums, exactly ... I would like to see proposals, in black and white, for legislation that would be put to Holyrood to demand the powers that we wanted to get through the Smith Commission but failed. In other words, revisit the matter by claiming those powers by act of Parliament - and the opinion of the Presiding Officer be damned.

    Those powers must include the promised permanent status of the Scottish Parliament, the implementation of the Sewel Convention without the weasel word "normally", and cast-iron guarantees about our consent being required. Unlike "consent", "consultation" is a mealy-mouthed concept that includes no firm commitment whatsoever. It is simply not good enough.

    On the subject of referendums... Surely there can be nothing to prevent our holding an advisory referendum any time we feel like it? After all, without legal force, they are just opinion polls writ large. Like the one on Brexit. Of course,the regime ignored Scotland's voice on that one, so I don't see why we shouldn't ignore theirs.

    On the subject of independence referendums in particular: no one has the right to deny us our right to national self-determination. If the Westminster regime were to attempt to prevent us expressing our democratic will in the matter, they would be in violation of international law. Not that that has ever seemed to bother them very much.

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    1. "Surely there can be nothing to prevent our holding an advisory referendum any time we feel like it?"

      Well, the greens can, if they decide to play silly Bees.
      No SNP majority remember. The mandate includes and depends on the Green vote, and Ross Greer's ridiculous rationale concerning a section 30 is a cause for concern.

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  8. only reason indyref 1 was given a section 30 , unionists thought YES 25% at best

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  9. Prior to the Edinburgh agreement ever being signed westminster and whitehall had it worked out as...
    (On a simple yes/no vote) 33.3% Yes, 33.3% No and 33.3% undecided voters.

    And that during the campaign, they'd add devo max to their campaign mantra (which they reckoned most Scots would've voted for if it had actually been put on the ballot paper.

    (But if they'd actually put it on the ballot paper then they'd have been obliged to deliver it! If the majority voted for that. And they didn't want to have to deliver more powers like that!).

    So they reckoned, verbally offering devo max would convince the undecideds to vote No, giving them 66.6% No, to 33.3% yes, and they also expected some yes voters to fall for the verbal promise of devo max, which they reckoned would give them a final count of roughly 70% No, to 30% yes!

    And if that result were obtained they'd simply declare it so resounding that there'd be no need to hold another referendum for a generation, and proceed to "Brexit", use return of lawmaking powers to abolish Holyrood, and continue onwards with the annexation of Scotland, and full retention of her resources and assets.

    And that's the reason they granted the section 30 order for the 2014 referendum, they believed they couldn't possibly lose it, and would gain more power and control from it.

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    1. I disagree with that entirely. The main reason they granted a Section 30 order was to keep a degree of control over the process, and also to set a precedent (ie. that their 'permission' was required, which was not generally accepted at the time). And neither Brexit nor the abolition of Holyrood was part of their plans.

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  10. Assuming the idea is to negotiate independence within 18 months of a yes vote (same as was proposed last time) and secure EU membership before the end of the transitional period, then the referendum needs to be held in or before June of 2019. That would mean the referendum has to be called before the end of this year (and Sturgeon has said she will make a final decision in the last quarter of this year - which would seem to fit this timetable). So, we should know what is going to happen within 9 months.

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