Wednesday, January 15, 2020

The "no legal shortcuts to independence" article relies as much on political arguments as legal ones - and those political arguments are deeply flawed

You might have seen the other day that a couple of SNP MPs tweeted a piece by the constitutional law experts Chris McCorkindale and Aileen McHarg, setting out their thoughts on the legality of an independence referendum.  It was suggested that the article would explain why the Scottish Government have settled on the approach they have.  So I read it with an open mind, wondering if it would identify a legal opportunity that will arise if we're cautious enough at this stage.  But by the time I'd reached the end, I didn't know whether to laugh or cry, because it's infused with magical thinking.  It summarily dismisses pretty much every practical step that could realistically be taken to bring about a mandate for independence (and in some cases the dismissal is based at least partly on rather vague and dubious political arguments rather than legal ones), but then suggests that an SNP win in next year's Holyrood election may somehow break the logjam, without really explaining how.  And I thought: "Seriously?  Is that honestly the plan?  The last three immaculate SNP mandates were ignored by Westminster, but next time it's going to be different because reasons?"  If that really is the "strategy", there's going to have to be a rethink, because the flaw in it can be spotted from outer space.  In fairness to the authors of the article, it looks like they wrote it before the Secretary of State for Scotland announced that no Section 30 order would be granted until after Nicola Sturgeon dies from old age - in other words their reasoning is a little out of date, because they were working on the assumption that a post-2021 Section 30 order hadn't yet been ruled out by the Tories.  It most definitely has been now.

I'm not going to take issue with the legal arguments in the article, but as stated above, the critique of alternative routes to an independence mandate is often based on political points, or points that hover ambiguously between law and politics.  And some of those points really ought to be challenged.  (For the avoidance of doubt, the words in italics below are paraphrases rather than exact quotes.)

'There is no legal requirement for an independence mandate to be secured via referendum but there is arguably a constitutional requirement due to precedent.'  This reminds me of Alan Trench back in the day arguing on his Devolution Matters blog that there was a de facto constitutional bar on Westminster legislating on devolved matters without consent, due to the precedent of the Sewel Convention being repeatedly respected by successive UK governments.  And yet when a Tory government suddenly decided not to respect the Sewel Convention anymore, the Supreme Court judges said "that's fine" because they were only impressed by the letter of the law, not by informal constitutional conventions or established practice.  In any case, major constitutional changes have in the past been enacted in the United Kingdom without a referendum - most obviously, there was no referendum before the Heath government took the UK into the Common Market in 1973.  It may have become the norm since then to seek constitutional mandates by referendum, but if that option has now been made much more difficult due to factors outwith our control, it seems logical and natural to at least consider reverting to the previous practice of seeking a mandate via a scheduled election, and it's a statement of the obvious that there is no constitutional bar on doing so.  (Persuading the UK government to respect that mandate would be harder, of course, but that's a separate issue - the first step is to actually get the mandate.)

'If the Scottish Parliament pass a Referendum Bill without a Section 30 order, the UK government might pass legislation to unambiguously make the holding of referendums a reserved matter.'  Well, yes, it might do, but then it could pass such legislation at any time, and so far it has not done so, presumably because there would be a political cost attached.  If McCorkindale and McHarg feel it's a viable strategy to seek yet another mandate for a referendum in the 2021 election and cross our fingers that it's respected this time, I'm struggling to see why it would be any less viable to pass a Referendum Bill and cross our fingers that there is no blocking legislation at Westminster.

'A referendum held without a Section 30 order might be boycotted by unionists.'  Yes, it might be, and in that case the challenge for the Yes campaign would be to secure enough votes (roughly 1.8 million) to demonstrate that victory would have been secured even with a 2014-style turnout on both sides.  It's not an argument against holding such a referendum.

'Using the 2021 election to secure an outright mandate for independence wouldn't work for three reasons: a) the Scottish Government have already said they are opposed to the idea, b) the UK government wouldn't accept the mandate, and c) the process wouldn't be accepted as legitimate in Scotland, the UK and the international community.'  These are all circular arguments.  The first one is a nonsense because to pursue this strategy the Scottish Government would first have to change its mind on the principle of using an election to seek a mandate, and if it changes its mind it would clearly no longer be opposed to the idea!  Similarly, if the Scottish Government and UK Government reach an agreement that retrospectively recognises an election result as a mandate for independence, all doubts over legitimacy would fall away.  The international community certainly wouldn't raise any objections if the UK government were on board.

So it all boils down to the central question: how do you get the UK government to respect a mandate?  And McCorkindale and McHarg have failed to explain why challenging London to respect an outright mandate for independence is any less promising a strategy than challenging London to respect a fourth mandate to hold a referendum.  I would argue that it's a more promising strategy, because it would decisively move the narrative forward.  The SNP would no longer even be arguing for a referendum - it would be arguing that Scotland has already opted for independence and would be seeking negotiations to bring that into effect.  If the London parties (most obviously Labour and the Liberal Democrats) wanted to counter that by saying that major constitutional changes should only happen by referendum, it would be up to them to make the case for a second independence referendum, which would radically change the dynamic.

*  *  *

Poll fundraiser: Thank you to everyone who donated - the fundraiser reached its target within only a few hours!  It'll take at least a few days before I can access the funds (that would have been the case with pretty much any crowdfunding platform) but I'll move forward as quickly as I can.  Given that independence has shot up the news agenda over the last 24 hours, it's entirely possible that a mainstream media outlet may finally produce a poll over the coming days, but even if that happens I'll still go ahead - there'll be no harm in more than one poll.

Tuesday, January 14, 2020

FUNDRAISER: Help Scot Goes Pop commission a post-election poll on independence

It was suggested to me earlier today that the time may now be right for Scot Goes Pop to crowdfund its first opinion poll, mainly because it's really, really odd that no media organisation has commissioned a poll measuring independence support since the general election. There are plausible grounds for thinking the SNP's victory may have triggered a Yes surge, which may last weeks, or months, or indefinitely - but we'll never know unless polling is actually conducted. Not for the first time, we may have no option but to take matters into our own hands.

Click here to go direct to the fundraising page.

Hi, my name's James Kelly, and I run the Scottish pro-independence blog Scot Goes Pop, which has a particular focus on opinion poll analysis. Remarkably, since the SNP's landslide general election victory in mid-December, there have been no opinion polls measuring support for independence. This leaves a major gap in our knowledge. In the immediate aftermath of the Leave vote in 2016, two polls were published showing a significant swing towards Yes - but if those polls hadn't been commissioned at the right time, we'd never have known that the surge had even happened, because it later subsided. It's possible (and I only say possible) that we're currently living through a post-election Yes surge that will be completely lost to the history books because nobody bothered to commission a poll. But this isn't just of academic interest - the publication of a poll showing a Yes lead at a time like this could in itself have an impact on public opinion, and help to shape the debate on Boris Johnson's outrageous attempt to stop the people of Scotland deciding their own future.

With your help, Scot Goes Pop will commission its first opinion poll, asking how people would vote on the referendum question "Should Scotland be an independent country?" There will hopefully also be supplementary questions.

A few points to bear in mind -

* There is absolutely no guarantee whatsoever that we'll get the result we want. Polls have surprised us plenty of times before. But even if the numbers are disappointing, it's surely a good thing if the independence question is no longer neglected by polls.

* If there are excess funds (or if not enough is raised to commission a poll), I'll consult with readers on what to do. Ideally the money would be ring-fenced for future polling, but if after a reasonable period of time no polling is possible or required, the funds could be dispersed to other pro-independence causes.

* There's always a chance that a poll will suddenly appear while this fundraiser is underway - if that happens, it would still be my intention to go ahead. There'd still be value in getting a second opinion from a different polling firm.

Let's break the silence on current support for independence - because the only person that silence suits is Boris Johnson.

Click here if you'd like to donate.

Boris Johnson's contemptuous letter drops all the pretence: London's rule in Scotland is now officially a dictatorship

Monday, January 13, 2020

HMP Our Precious Union

I do think something good may come out of this Tory extremism, because the well-meaning but misguided "caution" faction within the SNP really needed the UK government to offer a slight glimmer of hope on an independence referendum, or at least some kind of creative ambiguity, to hold the line.  After Mr Jack's latest Francoesque pronouncement, it'll be faintly ludicrous for the likes of Mhairi Hunter to carry on pretending that they can prick the Tories' conscience with just a bit more campaigning or just one more election victory.  The SNP leadership will now need to provide an open and transparent route-map towards circumventing the Westminster veto if they're going to persuade the rank-and-file that they're serious about actually holding an independence referendum, because it's plain for all to see that the brick wall of obstructionism won't be going away at any point before May 2024, and in all probability before May 2029.  Yes, by all means let's wait a little while to see if Boris Johnson ever bothers to respond to the Section 30 request, but we really do need that route-map within a matter of weeks at the absolute most.

Sunday, January 12, 2020

Sooner or later, the Westminster veto has to be circumvented - there is no realistic alternative

Most of you probably saw Wee Ginger Dug's blogpost last week calling on the SNP leadership to keep its side of the bargain with the independence movement by taking steps to ensure (or at least genuinely try to ensure) that an independence referendum actually happens.  The observation that stood out for me was this -

"What it does mean is that when that referendum does occur, it will be of a confirmatory nature, to confirm the settled decision of the people of Scotland, rather than a contested referendum campaign during which the decision is made and minds made up – rather like the devolution referendum of 1997 when there was little doubt that supporters of a Scottish parliament would win. It appears that the SNP leadership would prefer this second sort of referendum."

That's certainly very much in tune with what Andrew Wilson said during his stint as a pundit on BBC Scotland's election results programme - he suggested that there was the potential to build up an overwhelming majority for Yes, with the implication being that a referendum shouldn't be called until that happens.  Now, of course, Andrew Wilson is not the leader of the SNP, and he has no current active involvement in politics.  But I do worry that the SNP leadership might be wholly or partly buying into his analysis (which I believe to be deeply flawed).  One of the clues is the triumphalism whenever the Tory government denies Scotland's right to self-determination or signals that powers will be stripped from the Scottish Parliament - senior figures within the SNP are always quick to gloat that this will simply further build support for independence, which leads me to suspect that they're trying to replicate the strategy of the devolution campaign in the 1980s and 1990s.  Back then, the Tory government kept saying "no", support for devolution kept getting higher, and eventually the dam burst and a Scottish Parliament was set up with a massive mandate from the electorate.  But there are two crucial differences between then and now  -

1) I'm struggling to see any evidence at all that there is the potential for anything more than a relatively modest majority for independence.  Even the tremendous shock of the UK-wide Leave vote in 2016 only pushed Yes support into the low 50s.  If Brexit proves to be truly disastrous, I can just about imagine the odd poll showing Yes at 60%, but I think sustained support at that level is highly unlikely, and to be honest the idea that we'll have the 3-1 majority that the devolution campaign managed is for the birds.  If that's what we're waiting for, it's tantamount to giving up on independence completely.

2) In the 80s and 90s, one of the two main London parties was committed to delivering devolution, so all we had to do was wait until the pendulum in English politics swung back to Labour - although admittedly there were times when we wondered whether that would ever happen.  The current situation is much less favourable.  The balance of probability is that the Tories will win the 2024 election and that there will be no so-called "legal" route to a referendum until 2029 at the earliest.  But even if Labour upset the odds and win in 2024, it's by no means clear that the obstacles to a referendum will magically disappear.  Let's suppose that Andrew Wilson is right and I'm wrong, and that holding off for years will somehow produce a big Yes lead in the polls.  Even if that's the case, it's absolutely no use to us unless there's some kind of credible strategy for circumventing the Westminster veto sooner or later.  I would hope Nicola Sturgeon doesn't want to end her career as "the leader who polls suggested would have won Scotland its independence if only she'd been allowed to hold a referendum" - that's not much of an accolade at all.

As Wee Ginger Dug points out, there is growing disquiet in the Yes movement that the SNP leadership is perhaps not being entirely straight with us and might intend to let matters drift.  That could lead to some people defecting to fringe pro-indy parties with a more radical offer, and that in turn could cost us the pro-independence majority at Holyrood next year, because those fringe parties have little or no chance of winning any seats.  We mustn't allow that to happen.  If there's a battle over strategy to be won, it can only be won inside the SNP.  Leaving the party will simply clear the pitch for those who want to keep kicking independence into the long grass.

*  *  *

Meanwhile, Robin McAlpine has written one of his trademark provocative pieces in which he compares the SNP's promises of an independence referendum this year with the mythical weapons of mass destruction in Iraq.  I don't disagree with all of it, but I do think Robin overreaches massively in some of his specific points.  It's absolutely ludicrous to see an independence supporter echo John Rentoul's claim that the SNP winning 45% of the vote and 80% of the seats isn't really a mandate at all.  Frankly, if you take a look at how other leading parties in Western Europe fare in multi-party systems, it's fair to say that the SNP's performance last month was close to 'beyond wildest dreams' territory, and anyone who seriously disputes that has lost the plot somewhat.

It's of course a monumental red herring to suggest that the 46% combined vote for pro-independence parties means that we've made no progress since the 45% Yes vote in the 2014 referendum.  A general election is not a referendum, and we know that a significant minority of the rump Labour vote would back Yes in a second indyref.  Labour even took conscious steps to retain the support of those people by indicating that they would not block a referendum indefinitely if the Scottish Parliament votes to hold one.

My impression is that Robin is constantly casting around for reasons to suggest that the SNP aren't doing well enough electorally.  I seem to remember at one point last year he claimed that no poll for years had shown that we were on track to retain the pro-indy majority in 2021.  That wasn't strictly true either, but he's on even weaker ground with his claim that a landslide Westminster election victory isn't sufficient.

As for Robin's suggestion that the SNP shouldn't horde independence supporters, and that more good would be done if Yessers join Labour and the Lib Dems and transform those parties into pro-independence parties...well, that sounds very seductive until you think it through.  It's hard to see how that would ever happen organically - there would have to be a directed strategy behind it, and it's pretty likely that Labour and the Lib Dems would quickly get wind of what's going on and take decisive action against 'entryism'.

*  *  *

Like many of you (most of you?) I was on the march for independence in Glasgow yesterday.  I recorded a few short videos, and if they've turned out all right I might post them on my YouTube channel over the coming days.

Saturday, January 11, 2020

The certainty of Brexit ensures the casus belli for an indyref

I'm going to update the blog properly quite soon - honestly.  I just got a bit out of habit over the festive period.  In the meantime, though, a quick note to let you know that I'm quoted in Alasdair Soussi's new piece for the Al Jazeera website, entitled 'UK Parliament approves Boris Johnson's Brexit deal'.  You can read it HERE.

Thursday, January 2, 2020

Do the Corbynites have a Plan B?

YouGov have conducted the first poll of the Labour leadership contest, and given the good track record of similar polls in the past, it now looks pretty likely that the Corbyn project is about to come to an abrupt end unless something dramatic changes.

First preferences:

Sir Keir Starmer 31%
Rebecca Long-Bailey 20%
Jess Phillips 11%
Clive Lewis 7%
Yvette Cooper 7%
Emily Thornberry 6%
Lisa Nandy 5%

Final round:

Sir Keir Starmer 61%
Rebecca Long-Bailey 39%

If the Corbynites were being rational, they'd thank their lucky stars that they've been given advance warning of Long-Bailey's impending defeat while there's still time to find a different champion.  But I'm not sure they're nimble enough for that.  They'll probably convince themselves that the poll is wrong or that they can somehow overcome the odds by signing up enough Corbynite registered supporters.  If so, they're in denial - Long-Bailey isn't going to inspire people, and certainly not after she came out in favour of the potential use of nuclear weapons.

Why was she the chosen one in the first place?  It may simply be that John McDonnell and those around him calculated that the Labour selectorate would be looking for a woman as their next leader, and that the best-placed female candidate would therefore stand an excellent chance.  But I don't think it really works like that.  Even in a progressive party, members vote on the basis of the candidates in front of them.  They don't vote for a gender.  In spite of the catastrophic mistake Lib Dem members made in electing Jo Swinson, I don't believe they chose her because she would be the party's first female leader - I think they (wrongly) reckoned that she had something.

What would a credible Plan B for the Corbynites look like?  I can only think of a couple of options -

1) John McDonnell replaces Long-Bailey as the standard bearer.  And they would have to be ruthless and make it a straight replacement, because the nominations system ensures there will be a maximum of one Corbynite candidate on the ballot paper.  It would be the equivalent of Alex Salmond jumping into the SNP leadership race at the last minute in 2004, after it became clear that his protégé Nicola Sturgeon was unlikely to defeat Roseanna Cunningham.  Although McDonnell has two obvious disadvantages (his age and his role in the 2019 defeat), he's very well known and has a big personality, and it's certainly possible to imagine him beating Starmer in a run-off.

2) The Corbynites swing behind Clive Lewis.  That may be an odd thing to suggest given that Lewis is well below Long-Bailey in the poll, but I would guess that's because the true believers are currently going with Long-Bailey as the leadership's favoured choice.  If Lewis became the leading left-wing candidate, he's charismatic enough to have a chance against Starmer.

But the likelihood is that the Corbynites will stubbornly stick with Long-Bailey, and will consequently go down to a needless defeat.

Tuesday, December 31, 2019

See you in the decade of independence?

Well, I was all set to write a retrospective of how Scot Goes Pop has covered the seismic events of the last decade...but I've run out of time.  Maybe tomorrow, or the day after.  In the meantime have a photo, and see you in the Probably-Not-Very-Roaring Twenties (although with a bit of luck it might be the decade in which Scotland becomes an independent country).

Sunday, December 29, 2019

SNP MPs are very poorly advised to do Westminster's work for it by using words like "illegal"

Further to my previous post, I've noticed that at least a couple of SNP MPs have come out in support of Pete Wishart's contentious article.  Now of course in one sense it's entirely understandable that they would wish to defend a colleague who has been receiving brickbats, and in fairness Mr Wishart's article isn't all bad by any means - it contains some points that almost any independence supporter would agree with.  But what troubles me deeply is any implied endorsement of Mr Wishart's characterisation of an independence referendum held without a Section 30 order as being "illegal".  That flatly contradicts what Nicola Sturgeon said repeatedly during the election campaign - she stressed that the question of whether a referendum was already within the Scottish Parliament's current powers had never been tested in court.  Presumably she was making that point for a very good reason, so it's puzzling and regrettable that SNP MPs would seek to undermine that careful messaging so soon after the election has come to a successful conclusion.

When Donald Dewar delivered devolution, he very wisely opted for a model that automatically assumes that anything not explicitly reserved to Westminster is a devolved power.  At the very least, there's a high degree of ambiguity over whether the power to hold a consultative independence referendum has been reserved, and in my naivety I'd be inclined to expect MPs who believe in Scottish autonomy and self-determination to take a maximalist interpretation of the parliament's powers, at least until a court rules otherwise.  Why on earth would we give moral support to the Westminster establishment by needlessly taking it as read that a hypothetical court ruling will go against us?  It makes no sense whatsoever, unless of course there is an underlying agenda here, such as a desire to use Westminster's obstructionism as a convenient excuse to kick an independence referendum into the long grass for a few more years.

Incidentally, even if the Supreme Court eventually decides that the Scottish Parliament would be exceeding its powers in holding an indyref without a Section 30, it would still be thoroughly inappropriate to use the word "illegal".  As David Halliday has pointed out, the UK and Spain are very different, and in this country the law reacts to an unofficial vote by ignoring it and treating it as of no effect.  It doesn't send in riot police or lock people up.  This isn't Nazi Germany or Stalin's Russia, and putting a ballot paper into a ballot box is no more an "illegal" act than holding a village fête is.

Saturday, December 28, 2019

London's pre-agreement is not needed to bring about an initial mandate for independence - even Mrs Thatcher accepted that.

Reading over the comments section of this blog recently, it strikes me that we're in danger of getting two separate concepts muddled up - and, in all honesty, if the "Scotland's Right to Choose" document is to be taken literally, it's guilty of exactly the same muddle.  Certain people are reacting to suggestions of a consultative independence referendum by saying "the international community will not be impressed unless there is UK government consent".  But that's an argument against UDI, not against a consultative referendum held without a Section 30 order.  Maybe this point needs to be made more often and more forcefully, but many of us who support a consultative referendum are either opposed to the concept of UDI, or at least highly sceptical about it.

London's acquiescence would be necessary for the international community to recognise a Scottish state - of course that is true.  But the sequence of events that brings about London's acquiescence is neither here nor there as far as the international community is concerned - if it comes about due to the retrospective acceptance of a mandate from a consultative referendum that was initially not regarded as valid, that'll be absolutely fine, and international recognition will still follow.  There's nothing sacred about the Section 30 process, or even about a referendum process for that matter.  It's worth remembering that thirty years ago, the Thatcher government and the SNP were on the same page about what would constitute a mandate for independence, and it didn't involve a referendum, or any sort of Edinburgh Agreement-style pre-contract.  If the SNP had simply won a majority of Scottish seats at Westminster, even on a minority of the vote, that would (if we can take Mrs Thatcher's words at face value) have been accepted by both sides as sufficient to open negotiations on an independence settlement.

So London's express agreement is required for independence, but NOT to gain the initial mandate for independence - that's the crucial distinction.  One hypothetical possibility, for example, is that there could be a Yes vote in a consultative referendum, and although the Conservatives refuse to accept its legitimacy, the Labour party might agree to recognise the result if it comes to power in the future.  Another possibility is that a Yes majority in a consultative referendum could be used as leverage to force the UK government to accept that the matter has to be resolved by a subsequent binding referendum.

If that seems optimistic in view of events in Catalonia, it's worth remembering that the political culture in Spain is different from the UK, and there's a tradition in this country of accepting that people can only be governed by consent.  If a convincing mandate for independence can be established, the dam is likely to burst at some point.

*  *  *

Meanwhile, if you'd hoped that Pete Wishart MP might be weaned off his excessive caution by having increased his own majority from 21 to 7550 on an unashamedly pro-independence manifesto, you're in for a disappointment.  He's written yet another of his "Hold!  Hold!  Hold!  Hooooold!  Hoooooooooooold!" articles, and although it's ostensibly simply a call for patience, the subtext is unmistakably that we should accept the Westminster veto until 2024 and then put all our faith in the long-shot of English voters electing a new indy-friendly government.  The article is brimming with silly straw men about how the "fragile" new Yes support will be turned off by attempts to bring about independence by "tricks", "gaming" or by "illegal" means.  The reality is, of course, that a consultative referendum would not be a trick, it would not be a game, and it would not be illegal.  It's also rather pointless worrying about losing Yes voters when you're hellbent on ensuring that no referendum actually takes place in anything like the foreseeable future.