Should We Demand Another Section 30 Order?

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By Jason Michael

ACHIEVING INDEPENDENCE IS THE GOAL of the Scottish independence movement. This much is a no-brainer, but the achievement of this end presents a veritable plethora of challenges. While I believe a referendum to be the best option, there are other ways; namely, a simple declaration of independence and a dissolution of the union. Each one of these has its historical precedents and each, under the right conditions, is at least theoretically capable of delivering independence. But returning to my preferred option – the referendum, Martin Keatings published a remarkable article in New Direction on Monday expertly exploding the fissure in the referendum camp; whether or not to request a Section 30 order from the British government.

Keatings does not want us to go down “the ‘we don’t need permission’ line of thought,” zetetically arguing the logic of adhering to the legal framework expected by Westminster. In a dissertation length and thoroughly encyclopædic article – a whopper of almost five thousand words – his argument is simple: We do precisely as Westminster wants either until it grants us a Section 30 or is forced to ignore or refuse us, thereby proving both to undecided voters in Scotland and the international community that, in order to assert our democratic will, we are compelled to hold a non-binding poll – which he shows to have been made binding as a consequence of the precedents created by the rulings on the various legal challenges to the Brexit referendum. In his own words:

How do you convince undecideds that Westminster is the undemocratic bams that we have been telling them that they are for decades? Simple! You follow the process within the UK constitutional framework to the end of the process and show the people of Scotland exactly how Westminster works. We don’t have to show that the people of the Fletcher Memorial Home for incurable tyrants are crazy, we just have to leave the doors unlocked and the sight of Westminster running around naked in the town centre laid bare for all to see, does the job for us.

Anyone who references Pink Floyd in relation to the behaviour of the British government obviously deserves respect, but the flaw in this line of reasoning cannot go unnoticed. Thankfully, pointing this flaw out is made less difficult in that the author acknowledged it himself in a brief discussion last night, saying, “Yes – [there is] one very big [flaw] – Westminster are a bunch of lunatics with the consistency of wet pasta. It’s like trying to make the dinner while being attacked by a velociraptor.” In theory, this argument makes perfect sense. When the rules are set and unchanging, and when everyone is willing to play by those rules qua the UK’s legal constitutional framework, then we can back London into a corner, thus giving ourselves recourse to a legitimate alternative.
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Perhaps it makes more sense to think of this as the chess model of this game theory. In this model both players begin with the same chances of victory, each has the same manœuvrability on the same eight by eight chequered board, and each has the same sixteen pieces at their disposal. What Martin Keatings is proposing, in effect, is a queen exchange; presenting the British government with an ultimatum. It can either accept the queen exchange or deny it, the latter giving the Scottish government “no choice” but to seek a legitimate alternative.

Given that Keatings and I agree the most likely response of the British government will be to deny or ignore a demand for a Section 30, this strategy will play out – in the beginning – pretty much as he sees it:

…the Scottish Government [will be] left with no choice but to exercise the democratic right of the people by other means. Only when it [gets] to the end of the existing process and [hits] a brick wall [will it] exercise democracy in another fashion.

His very next sentence is where we begin to snag. After playing by the expected rules of the game, he writes, “no court would deny Scotland a fair deal, enforced at an international level.” This coming Monday will be the first anniversary of the 1 October referendum in Catalonia. Now, hands up if you can see where this is going. What Keatings is suggesting is precisely the gambit played by the Catalan government, and it discovered at the very last moment what happens when power is forced into a corner – it changes the rules.

This ability of the dominant power to change the rules to suit its purposes ends the chess model. This is no longer a board with a shared set of rules or even the same balance of power, rendering pointless Keatings’ assumption of the stalemate Theresa May will face. If she refuses, he writes,

[The] Scottish Government knows that the UK does not intend to play ball, like a debtor sticking two fingers up at the debt collection agent that chapped on their door. Or there is the third option where Theresa May just says “now is not the time” and does not respond, in which case like a debtor, she is in no uncertainty of what happens next and the consequences lay firmly on her shoulders.

In a game where her government gets to change the rules, she will always be certain what happens next; whatever she wants to happen next. Rajoy had no problem with this in Catalonia and neither did Britain in the north of Ireland. This is what we call a state of exception, when the dominant power suspends or changes the normal rules of play so as to maintain control of the situation. Just as the courts – even the international courts – abnegated their moral responsibility towards the six counties and Catalonia during these states of exception, they will do it again to Scotland – and they will do it legally, because the law is a synonym for the rules of the game.

So, we’re not playing chess. We are playing a different game altogether and we’re playing it against “lunatics with the consistency of wet pasta” and this game, unlike the elegance of a chess match between Aleksandra Goryachkina and Andreas Diermair, is “like trying to make the dinner while being attacked by a velociraptor.” I want to call this the Diplomacy model.

Diplomacy, for the uninitiated, is a strategic board game created by Allan Calhamer in 1954. Rather than being a simple game of strategy and skill, Diplomacy was developed at Harvard with the express purpose of teaching geopolitics in the context of the Cold War. On a 1914 map of Europe – divided into nations, territories, and regions, other than the limitations on land and sea units, there are no rules. Players are free, between summer and winter campaigns, to negotiate alliances, plan out strategies, and agree on rules of engagement between themselves. With seven players, Diplomacy quickly descends into the rule of might – the strongest make the rules.

This is the model the British government is following, meaning we had better start reconsidering our chess model queen exchange strategy. As we are not the powerful, the moment we sacrifice our queen the rules will change – denying us Britain’s queen. We are simply not in a position to play an equal contest against Westminster within the framework of the British constitution. That constitution was designed with our perpetual domination in mind. Those rules, in this asymmetric contest, are about as much use to us as an ashtray on a motorbike.

Playing this model is lose-lose for the independence cause. Whichever route we take, be that the “we don’t need permission” option or the queen exchange model à la Keatings, the outcome will be the same – a rapid escalation from a flat refusal to the use of violence. Therefore, it is us and not the British government who are clean out of options – forcing us then to take the path of least resistance. Both will be met with resistance, there is no doubt of that, but one offers significantly less than the other. Keatings makes a good point, however. In advocating the long-game, by playing Westminster’s game to its inevitable conclusion we will prove to undecided voters and those unionists who sincerely want the best for Scotland that the British government is populated with a shower of “undemocratic bams.” But this will come at too high a cost. It will be accepting the legitimacy and therefore the legality of needing permission. When that permission is not given all alternatives will become illegal, and that – by our outmoded chess paradigm – is checkmate.

Once London – which is the de jure state member of the international institutions to which Keatings hopes to appeal – pulls us into this legal trap we can kiss goodbye, as the Catalans can tell us, to international recognition. Our actions will be illegal by the rules determined by the powerful, by the British state. This is the flaw I see in the long-game referendum strategy.

So, we must take an alternative route before we find ourselves being inconsistent vis-à-vis acknowledging Westminster’s rules only to break them when we lose. We must not give the British government the rope with which to hang us. Rather, by refusing to acknowledge – from the start – the prerogative of Westminster we create for ourselves the opportunity to hold a perfectly legal non-binding (but legally binding) poll without it ever being explicitly illegal under the present constitution, thus obliging the British state to change the rules ex post facto – forcing it and not us to be inconsistent. We can be in no doubt Westminster will use the law – as the rules of the game and as an instrument of its power – to its own ends. In other words, it will not play fair. But by asserting our position that we don’t need permission to hold another referendum we can at least show it to be the cheat it is, and thus maintain our right to a fair democracy in the eyes of the world.

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Section 30 Order – What happens if parties don’t agree?

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