No Plan B

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By Jason Michael

AS READERS ARE AWARE, the efforts of “SNP rebels” to introduce a debate on alternative routes to independence in the face of continued rejections of the Scottish government’s requests for another Section 30 order were crushed at the Scottish National Party’s conference in Aberdeen yesterday – to the sound of jeers and boos. In fairness, this was a matter for the SNP to decide, and the democratic decision of its membership in conclave was to reject it. Not being a member of the SNP, I am quite content to accept that this is the position now adopted by the party.

However, this is not the settled opinion of the independence movement – much of which is not within the SNP – and it is not my opinion. A recent poll commissioned by Wings Over Scotland revealed that no less than 45 per cent of the movement supported the idea of holding an independence referendum without the consent of the Westminster government and that a further 36 per cent were in favour of adopting a policy which would see more than 50 per cent support for pro-independence parties in the next general election as a mandate for negotiating independence directly.

Interestingly, this latter policy suggestion had been the position of the SNP as set out in its 1997 manifesto:

Scotland can regain its independence at any General Election. After the election of a majority of SNP MPs, the SNP will immediately initiate negotiations for independence with the UK government. In parallel with these negotiations, we will initiate talks with the European Union in order to facilitate the right conditions for independent representation.

Times change and, of course, political parties have the right to change their tunes. Quite evidently, the SNP has changed its thinking on how best to achieve independence. This is entirely normal and the result of changing opinions over time in a democratic political party. In this whole drama – and the reaction to dissent on social media was drama – I find myself entirely in agreement with Cllr. Chris McEleny: “Plan A is the plan that we want to have.” And he goes on:

We have a triple-lock mandate for an independence referendum. What do we benefit from a quadruple-lock mandate, or even a fifth or a sixth, continually winning elections, when we have a usurper prime minister in Boris Johnson who refuses to accept the democratic mandate of Scotland?

Yet, this was countered by Ian Blackford, who said “Plan Bs are by definition second best. That’s why our opponents would love us to shift onto that ground, it concedes their right to block the best route to independence.” But there are a number of serious issues here. Blackford’s argument is based on an obvious logical fallacy, he is begging the question. He is dismissing Plan B as “second best” because he assumes the premise of his argument that Plan A is the first best – and this is by no means proven. Only time can tell which of these options is the best route forward. The proof, as they say, is in the pudding – and we’re not there yet.

Now, I am not suggesting that Plan A is not a good idea. As I have said, like Chris McEleny and other so-called rebels, I quite like the idea. But to make it the only way is outrageously short-sighted and dangerously innocent of the behaviour of the British state towards Ireland and India in the past. It is not my suggestion that we should have Plan B rather than Plan A. My suggestion is that we must have both. One plan is not necessarily better than another in a situation where the objective is to achieve a goal. In this case, the end justifies the means. Neither Blackford nor myself can say what will work – both, one, the other, or neither. It is a simple logical statement, then, to say that removing one option to the exclusive use of the other is not a great idea.

But I am interested in the assumption that Plan A is qualitatively better than Plan B. Plan A, as I am given to understand, is to request a Section 30 and, in the highly likely event it is refused, to seek to force the London government to grant one through the courts. This sounds great. I love this idea – but I can see a problem with it. If for a moment we game this through – look at it as though we were British government strategists in order to develop a better game plan – then there is an obvious flaw, the law. If I were a London government strategist, I would take this Plan A head on, using the very hope for its success, the law, against it. And that’s not too difficult.

Always in these discussions the shibboleth of choice on the ground is the Claim of Right (1989), the accepted and recently ratified understanding that we Scots have the sovereign right to determine the form of government best suited to our needs. Do I acknowledge this? Absolutely, and with every fibre of my being – but, as far as the constitution of the British union state is concerned, this has no legal force. It has never claimed legal force. Even though the principles of the Claim of Right were officially endorsed in the Commons in 2018, no legal recognition of the Claim was created. In essence, this is not part of the constitution and so can only at best form a sentimental footnote to any legal argument against the intransigence of the Westminster government.

Limited to Plan A, we are ultimately backed into a corner by an unwritten British constitution. This certainly does not preclude attempting to force Britain to sign a Section 30 with the use of legal instruments, but – as we shall see – these are British instruments, the sole purpose of which is to preserve the cohesion of the union state. This brings us nicely to a discussion of what the law actually is; as it will pertain to a situation in which the Scottish government is effectively suing the state for the legal right to hold a referendum on independence – and this is the arena wherein the strategists on the British side will, if they are smart, meet us head on.

Not that social media is the best of all gauges of general knowledge, but too often now I come across the misapprehension – no doubt a product of the euphoria in the wake of its ruling on the illegality of the last prorogation of parliament – that the UK Supreme Court is the highest legal authority in the British state. It is not. It is, as the media is wont to say, the “highest court in the land,” but it is not the highest legislative body or authority. This was spelt out lucidly by the President of the Supreme Court, Justice Brenda Hale, the senior judge who read out the court’s decision on the case, when she underlined the fact that “only parliament can change the law.” In the same televised interview, she went on to explain that the courts serve only to adjudicate the law parliament – and only parliament – creates and amends. This goes back, as she says, to “precious parliamentary sovereignty established in the seventeenth century.” The courts do not make the law. An Act of parliament makes law and the court has no power whatsoever to change it.
https://twitter.com/jetpack/status/1183536321949847554

In a state of suspended animation, dealing with the constitution – the law of the state, the Scottish government can indeed sue the London government and win. But this is to assume, quite wrongly, that the law is static and unchanging; that the Westminster parliament is not at work. It is. Britain’s understanding of parliament – the London parliament – is that it, and it alone, is imbued with the unlimited sovereign power of the crown in parliament. What this means is that the Scottish government, the government of a parliament which’s power is devolved from Westminster and subject to its grace, can, on a point of constitutional law, litigate against the British government, but the British government can simply change the law by an Act of parliament. In reality, the British state can play constitutional whack-a-mole with the Scottish government forever. It can even close down the Scottish parliament if the game becomes too annoying or tedious.

This is the SNP’s Plan A and its foil in a nutshell, and the reason why it would be tactically prudent, in my opinion, to have alternatives available. Yet, frustratingly, suggesting that it was a mistake to reject these alternatives over the past 24 hours has been met with an angry and ferocious response from many within the ranks of the SNP. People who only last week were decrying me as an IRA man (which, for the record, I am not) are today denouncing me as a British government plant (which I can neither confirm nor deny).

My suspicion, as it has been for a long while, is that there are many in the independence movement – by no means a majority – who cling to the SNP and to the person of Nicola Sturgeon because the complexities of politics and the constitution have left them bewildered. For them, I suspect, the party and the leader have become totems – the great lights of a happy ending they so eagerly want. This leads them to see any criticism or dissent as a potential existential threat to independence. But, while I am at a loss as to how to address this problem – and it is a problem, we must deal with the realities of the situation, and in this we all have a democratic responsibility – a duty, even – to engage with the facts and participate in the national discussion.

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President of the UK Supreme Court – BBC HARDtalk

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