Saturday, October 9, 2021

Independence will not be won by drifting through time and waiting for Alister Jack's dismal vision of restoring "a YouGov democracy by 2039"

With the normal caveat that I'm not a legal expert, it seems to me to be utter nonsense to claim that the Supreme Court ruling a few days ago scuppers hopes that a legal referendum can be held without a Section 30 order.  The issues involved are very different.  The crux of the ruling was that the Scottish Parliament cannot constrain the UK Parliament's unlimited powers to legislate for Scotland, even on devolved matters.  But as far as a referendum is concerned, the argument of the legal experts who believe Holyrood already has the powers to hold a vote is that the UK Parliament's right to legislate would not be constrained in any way, because they would not be bound by the outcome of a purely consultative referendum.  (Of course they'd be bound in a moral rather than a legal sense, which is why they're so terrified of a consultative referendum).

A slightly more convincing argument is that, although the ruling is not directly relevant to the legality of a referendum, it nevertheless reveals the Supreme Court to be a deeply conservative and instinctively British Nationalist body which is highly likely to dream up a legal argument for striking down a referendum, even if we have no idea yet what that argument will be.  Well, that may or may not be the case, but it strikes me that the amateur psychoanalysing of judges is not the most sensible or reliable way of forecasting the outcome of complex legal cases.  We need to concentrate on the things we can control, and stop worrying about the things we can't.  What we can control (and by "we" I mean the pro-independence side under the leadership of the Scottish Government) is legislating for a referendum - something that frankly we should already be doing or already have done.  What we cannot control is whether that legislation is then challenged by the UK Government or by a private citizen used by the UK Government as a proxy, or whether any such challenge is successful.  In a sense that doesn't really matter, because this is a process that has to be gone through.  If a legal challenge fails, the problem is solved - we won't need a Section 30 order and a referendum will go ahead.  But if the challenge is upheld, we'll still be further forward because we'll have demonstrated to the Scottish people that the referendum route is totally closed off and that the UK Government's pigheaded intransigence has left us with only one reasonable option for pursuing a democratic mandate for independence - namely via a parliamentary election.  That will be a moment of liberation, because it will break us out of the "No to Indyref2", "now is not the time", "once in a generation" paradigm.  Parliamentary elections take place at least once every five years, and there's not much the UK Government can do about that, short of a Nazi-style Enabling Act.

As ever, though, the real problem is that the ruling may encourage the Scottish Government's ongoing passivity.  Let's be honest, pretty much everything encourages the Scottish Government's ongoing passivity.  "We might fail so it's really important we don't even try" has been the guiding principle since the catastrophic loss of nerve in 2017, and that shows no sign of changing.  Anyone who seriously wants independence should be terrified by Nicola Sturgeon's admission that she doesn't know how the impasse will be broken, but that she thinks it somehow will be, one way or another, because "time is on her side". Decoded, that means the SNP leadership's solution is to do absolutely nothing with even more studied determination and wait for something to turn up.  Spoiler alert: nothing will turn up, even if we wait decades, because the British constitution does not change and the British state's vested interest in keeping Scotland prisoner does not change.  If we want the weather to change, we have to change it ourselves.

And there's another way in which a truly radical and daring pro-independence government might have reacted to the Supreme Court ruling.  Aileen McHarg pointed out that there's now a clear incentive for the Scottish Parliament to refuse to agree to Sewel motions giving the UK Parliament consent to legislate on a specified devolved matter, because the court has created a novel distinction between laws on devolved matters passed by each parliament - Holyrood can only control/influence the interpretation and implementation of legislation it has passed itself.  But that also, I would suggest, means there's an incentive for Holyrood to "re-legislate" on swathes of laws passed after previous Sewel motions, so that the new Holyrood laws replace the Westminster laws, thus rendering the ruling largely redundant.  That would be roughly analogous to what the Parti Québécois administration used to do when it invoked the "notwithstanding clause" (allowing Canadian provincial legislatures to override court rulings of unconstitutionality) on every single piece of legislation it introduced, even when there was no particular reason to think that was actually necessary.

In other news over the past week, Alister Jack has revealed that Scotland will only be held as a prisoner against its will for another eighteen years. In the year 2039, dictatorship will be replaced by a "YouGov democracy", ie. we can have the things we want as long as YouGov say we want them (supermajority requirements apply, naturally).  So that's exciting.   Only six thousand, five hundred and seventy-four more sleeps to go.

*  *  * 

Whatever the rights and wrongs of the Supreme Court ruling (and it's interesting that many eminent experts believe the judges erred in law), it's worth remembering that the Scottish people were firmly opposed to the UK Government taking the matter to court in the first place.  Here is the result of a Scot Goes Pop / Panelbase poll conducted in April - 

The Scottish Parliament recently passed legislation that incorporates the UN Convention on the Rights of the Child into Scots Law. The law seeks to protect children's rights by forbidding public authorities from acting in a way that is incompatible with the UN Convention. However, the UK Government are challenging the law in the Supreme Court on the basis that it would interfere with the UK Parliament's right to make laws for Scotland. Although the UK Government are allowed to challenge laws that they think may exceed the Scottish Parliament's powers, they are under no obligation to do so.  Do you think the UK Government are right or wrong to challenge the new Scottish law on children's rights? 

Right: 33% 
Wrong: 42% 

With Don't Knows excluded - 

Right: 44% 
Wrong: 56% 

*  *  * 

Courtesy of the fatalistic rabbit in Watership Down, here is the Scottish Government's current strategy for securing independence -

Where are you going, wind? 
Far, far away 
Over the hills, over the edge of the world. 
Take me with you, wind, high over the sky. 
I will go with you, I will be rabbit-of-the-wind.

Where are you going, stream? 
Far, far away 
Beyond the heather, sliding away all night. 
Take me with you, stream, away in the starlight. 
I will go with you, I will be rabbit-of-the-stream. 

Tuesday, October 5, 2021

Questions for Kirsty Blackman

As you can see, Kirsty Blackman's eventual attempt to draw a line under this episode did not involve an apology - it was simply an announcement of a deletion without any explanation of either the original retweet or of the deletion itself.  That being the case, I don't think it's unreasonable that she should be invited to answer the following questions to clear the matter up rather more satisfactorily...

* Did you not read the tweet properly before retweeting it?  All of us have been guilty of that sort of carelessness at some point in time, but is that what you're claiming happened in this case?

* If you did read the tweet properly, why did you knowingly retweet a call for one of your MP colleagues to be expelled from the SNP?

* Do you, in fact, believe Joanna Cherry should be expelled?

* If you do believe Joanna Cherry should be expelled, why did you delete the retweet?

* Does your clarification imply that you want transphobes to be expelled, but that you accept that this principle does not apply to Joanna Cherry because she is plainly not transphobic?  If so, have you apologised to her for the confusion?

* Do you accept that calling for a colleague to be expelled, when that colleague is in fact in good standing, should in itself be a disciplinary offence?  If not, why not?

When Ms Cherry was sacked from the frontbench, I said that one of my big concerns was that it might prove to be merely a staging post, and that the next step would be to make it a little less unthinkable for spurious disciplinary action to be taken against her, with a view to eventually having her suspended or expelled.  That may have seemed a tad outlandish when I said it.  It looks a hell of a lot less outlandish now, and we're only a few short months further on.  The many decent people who decided to stay in the SNP after Alba broke away in the spring now need to stand up and be counted.  They don't need to lose their party - there's nothing inevitable about it.  But time may be running short.

Monday, October 4, 2021

"Name one country that allows FOREIGNERS to vote in constitutional referendums. Go on, James, name just ONE!"

Naming no names, but someone has been challenging me today to...well, to do what you can see above in the title of this blogpost.  Where on earth is this nonsense coming from all of a sudden? Brexit has given EU citizens an enormous incentive to vote Yes in any future independence referendum, and anecdotally that does seem to be exactly what the majority of them plan to do.  This is absolutely the last moment to be retreating into 'blood and soil' nationalism and trying to strip 'non-natives' of their right to vote - it makes no strategic sense, even leaving aside the profoundly anti-democratic nature of the proposal.

I am, however, going to answer the challenge directly.  Before I do, though, I'll explain why the question would still be a monumental red herring even if it could not be answered.  It wouldn't actually matter if there was no country in the world that allowed foreign nationals to vote on constitutional matters, because excluding foreign nationals is not actually what is being proposed here, or at the very least it's not the main thrust of the proposalThe suggestion is that some English people who hold both residency and citizenship in Scotland, in other words people who are not foreign nationals, should be stripped of their right to vote.  You only have to think of it in those terms to realise what a total non-starter this proposal is - even if it was remotely desirable, which it is not.

But my answer to the challenge is very simple, and it's the United Kingdom, which allowed non-British Commonwealth citizens to vote in the referendums on European membership if they were resident in the UK.  That includes, for example, citizens of India, a country that contains eighteen per cent of the entire population of the world.  As I was only asked to provide one country that allows foreign nationals to vote in constitutional referendums, I don't need to go any further than that, but there will almost certainly be other examples if anyone wants to trawl through the electoral rules of other countries.  One possibility is New Zealand, which allows all resident non-citizens to vote.  If there's any exception to that general rule for constitutional referendums, I haven't been able to find any sign of it yet.

Sunday, October 3, 2021

Sunday Miscellany

So a few miscellaneous things while I'm thinking of them.  First of all, I meant to mention last week that I was quoted in Alasdair Soussi's latest piece for the Al Jazeera website, about the UK Government's attempts to turn COP26 in Glasgow into a Union Jack fest.  You can read it HERE.

Secondly, I promised our regular commenter 'Independence for Scotland' that I'd let him know if I heard anything about how to buy Alba Party merchandise in a way that ensures the funds go to the right place.  The latest email update from the party reveals an online Alba shop is on its way, and that in the meantime merchandise can be bought by emailing:

And lastly, there's an uncharacteristically helpful headline in the Herald on Sunday suggesting that a Tory-funded poll has backfired by showing a majority of the Scottish public think "the Union is bad for the environment".  Skimming through the article, though, I get the impression this may just be a Scottish subsample from a GB-wide Opinium poll (albeit one with an unusually large sample size).