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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.

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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8 thoughts on “No Plan B

  1. Thanks for this Jason. You must know, however, that independence is not a matter of Domestic Law, but a matter of International Law and Nicola Sturgeon and the Mandarins of the British, “Scottish National Party” must know this. They are actually going against the legal opinion of the English government of the UK and the opinion of the International Court of Justice by treating it under Domestic Law.

    (Craig Murray)
    “The Independence of a country is not a matter of domestic law it is a matter of international law. The right of the Scottish Parliament to declare Independence may not be restricted by UK domestic law or by purported limitations on the powers of the Scottish Parliament. The legal position is set out very clearly here:

    (Legal Opinion of UK Government)
    5.5 Consistent with this general approach, international law has not treated the legality of
    the act of secession under the internal law of the predecessor State as determining the effect
    of that act on the international plane. In most cases of secession, of course, the predecessor
    States law will not have been complied with: that is true almost as a matter of definition.
    5.6 Nor is compliance with the law of the predecessor State a condition for the declaration
    of independence to be recognised by third States, if other conditions for recognition are
    fulfilled. The conditions do not include compliance with the internal legal requirements of
    the predecessor State. Otherwise the international legality of a secession would be
    predetermined by the very system of internal law called in question by the circumstances in
    which the secession is occurring.

    5.7 For the same reason, the constitutional authority of the seceding entity to proclaim
    independence within the predecessor State is not determinative as a matter of international
    law. In most if not all cases, provincial or regional authorities will lack the constitutional
    authority to secede. The act of secession is not thereby excluded. Moreover, representative
    institutions may legitimately act, and seek to reflect the views of their constituents, beyond
    the scope of already conferred power.

    (Craig Murray)
    That is a commendably concise and accurate description of the legal position. Of major relevance, it is the legal opinion of the Government of the United Kingdom, as submitted to the International Court of Justice in the Kosovo case. The International Court of Justice endorsed this view, so it is both established law and the opinion of the British Government that the Scottish Government has the right to declare Independence without the agreement or permission of London and completely irrespective of the London Supreme Court.

    I have continually explained on this site that the legality of a Declaration of Independence is in no sense determined by the law of the metropolitan state, but is purely a matter of recognition by other countries and thus acceptance into the United Nations. The UK Government set this out plainly in response to a question from a judge in the Kosovo case:

    (Legal Opinion of UK Government)
    2. As the United Kingdom stated in oral argument, international law contains no
    prohibition against declarations of independence as such. 1 Whether a declaration of
    independence leads to the creation of a new State by separation or secession depends
    not on the fact of the declaration but on subsequent developments, notably recognition
    by other States. As a general matter, an act not prohibited by international law needs
    no authorization. This position holds with respect to States. It holds also with respect
    to acts of individuals or groups, for international law prohibits conduct of non-State
    entities only exceptionally and where expressly indicated.”
    https://www.craigmurray.org.uk/archives/2018/12/the-scottish-parliament-does-have-the-right-to-withdraw-from-the-act-of-union/?fbclid=IwAR1qusDGh12Jqivd6-GcnVSaOF3iy9loIUepK5da2W5Fl5hHZ4k82pwyJdI

    Plan B proposes that the Scottish Government negotiate independence with the English government of the UK before independence. In my view this would be a great mistake, giving the English government every opportunity and excuse to delay independence. No! The Scottish Government should resile the Treaty of Union and revoke the Act of Union with England first, then negotiate the terms of a just distribution of the Patrimony of the former UK.

    If the Queen’s speech is passed by the Commons, then it will be time for the Scottish Parliament to use International Law and resile the Treaty of Union and revoke the Act of Union with England. The Scottish Parliament has the right to do this. Of course it would need to be followed by a confirmatory referendum to give it democratic legitimacy.

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  2. While I have no real way of knowing Jason!
    It seems to me that “plan B” has a much better chance of working,if the Scottish Government are seen to having no other choice,but to use it.
    In that instance,having looked reluctant to use it , could be a part of the Political theatre that they ( Parties) all get up to!
    It’s not as if the Yes movement and by extension the British Nationalists don’t know,that we know, any ballot could be used,and that Scotland cannot be kept away from the ballot box indefinitely.
    So ultimately the British State has a better chance of winning in a referendum than being seen to hold us hostage . Sooner or later we get to a polling station!
    And while I do understand the Concepts of The Crown in Parliament and that Westminster has the ability to make or unmake ANY law.
    AC Dicey himself warned of doing so without the tacit consent of the people.
    Not to mention that the law’s that would need amended to pull of what the Spanish have just done are wrapped up in international Treaties and wrapped up in the Treaty of the Union Itself.
    A Treaty is not a law and only the parties to the Treaty can change it Judges can only uphold it…
    Unless Westminster makes a Law that says that Treaties don’t have to be honoured..
    Which they can….. but then we’re right back to Diecy’s warning about the consequences of thing’s like breaking Treaties using the law making powers of the Crown , what he demonstrated to be the Political consequences of doing so.
    The Good Friday Agreement is causing Westminster all sorts of problems yet they don’t just write a Law to say they are no longer bound by it…
    They Could, and the Supreme Court would have no choice but to uphold it!
    But they don’t..
    Yes they’ve changed the Treaty of Union before,but that was with the Scottish MPs collusion so both parties to the Treaty were in agreement… That’s no going to happen this time.

    Hope I’m making sense here..

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  3. A section 30 is a tool of devolution. It is therefore a unionist tool. Devolution is a mechanism of the union. We really have to step back and imagine devolution never happened. How would Scotland go about getting independence?
    By winning a majority of Mps at WM of course. That result would trigger the process of disentanglement. It would be finalised in a confirmitary referendum on the deal achieved with the RUK.

    The mistake the SNP are making . Is declaring the devolution tool , the Section 30, as legal and legitimate. Whilst suggesting any other route to independence being illegal and sub standard.

    They are in fact allowing domestic law to superscede international UN law on sovereignty.

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  4. For the SNP to not keep open every legal means is playing politics like children.

    Joanna Cherry has shown what it takes,…hard-headed tactics to a changing situation and using tools that give you the dominant hand (there is no asking nicely)…She has made her opponents play catchup.

    This is not a church fate – you are up against a power that has a demonstrated history of chicanery, bending the law to itself, and brutality. You can only win by adapting to meet the changing stance of your opponent…EG. If you had a fixed position and tactic on Brexit 2 years ago – Boris would have had you for dinner.

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    1. @MaggieC
      A weird Scottish Exceptionalism is infecting many in the SNP….that England won’t do to Scotland what it has done to every other “colony” through out history.

      It’s the new “Emperor’s new clothes”….if we believe it will happen….and if they don’t give it to us, watch out because we’ll ask even nicer next time.

      Like

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