Tweet Follow @RPJblog
By Jason Michael
BORIS JOHNSON, the British Prime Minister, today denied the formal request of the Scottish government for a Section 30 order – the transferal of power from Westminster to Holyrood which would allow for another legal referendum on our constitutional future. Already, the Scottish National Party has rejected calls for a ‘Plan B,’ an option, which if accepted, would give us the opportunity to move ahead on an independence referendum without the consent of the London government. It seems as though we have gone and painted ourselves into a corner. All is not lost, however. But before looking at the still available alternatives, we should at least attempt to gain a better understanding of the situation in which we now find ourselves.
Back in March and April last year, in the depths of a serious Brexit political crisis, the British state was in disarray. While the SNP was the third largest party in the House of Commons, the Labour Party was in meltdown and the Conservatives were rent by factionalism and division. England’s weakness was a golden opportunity for Scotland and our independence cause. England and Wales had voted for an isolationist Brexit which Scotland and the north of Ireland had rejected, no deal was in sight, food shortages were predicted, civil strife was immanent, and Operation Yellowhammer promised a military solution to a civil and political crisis.
Jason Michael (@Jeggit) January 14, 2020
It was no exaggeration at the time to say Britain was on or nearing the brink of actual state collapse. Throughout the independence movement there were voices, my own included, correctly shouting from the wilderness that this was the time to strike – the time to harness the chaos, worsen it, and force the question of independence for the social and economic good of our country. No doubt with the best intentions, the leadership of the SNP felt it was better to work with anti-Brexit (unionist) factions in England to end the crisis and restore order. But the road to hell is paved with good intentions, and now we are firmly on the path to a constitutional and legal hell.
Since then the naïve approach of the SNP leadership has been to chart a course through British legal frameworks to work towards Scottish independence. In the new year it was hinted from the Scottish government’s minister for constitutional affairs that our plans should be long-term, Pete Wishart said we should fall back to a careful strategy of ‘gentle persuasion,’ and Nicola Sturgeon waited for a response to her request for a Section 30 order – which was never strictly required in the first instance (until, that is, the Scottish government made it so). The British government’s reply today – a simple and petulant ‘No’ – closes the last of the doors on that legal route. Yet, it would be foolish to blame Mr Johnson for barring our way. We closed most of the doors ourselves.
This ‘master plan’ was predicated on the entirely false belief that Westminster would reject the request and that we would respond by taking the matter to court. Again, there were people in the independence movement screaming from the hilltops that this was a fundamentally stupid idea, and so we now have to welcome the expert assessment of Aileen McHarg and Chris McCorkindale:
It is, however, extremely unlikely that such a [legal] challenge would be successful, since there is no duty to make a Section 30 order, still less to introduce primary legislation.
There are no legal routes to independence. We cannot challenge the British government over its refusal to grant a Section 30 because there is no mechanism in law with which to do this, and there is no constitutional requirement of the British government to do it either. This was always a fiction. Scotland does not have the same relationship of consent with the London government the people of the north of Ireland have in the Good Friday Agreement. Britain does not legally require the consent of the Scottish people to government Scotland. Moreover, as I have said repeatedly in the past and as I will continue to say until I am blue in the face, UK law and politics exist to protect the British state. There will be no UK-political or legal remedy to the question of Scottish independence.
Yes, this all sounds rather bleak and defeatist – and it is. But it is only a dose of negativity so long as we refuse to accept – and I mean really accept – the only viable route to independence. We must forget the so-called ‘gold standard’ of democratic and legal pathways. This is nothing but pious bourgeois rhetoric. The law is, as it always was, the narrative of power – and in this particular situation (so long as we keep trying this futile strategy) London has all the power. The route to independence is not legal – certainly not in the sense the Scottish and British government currently understand it. Scotland’s claim of right is a moral and not a legal claim. Legally, Scotland is not an independent country. Morally, it already is.
Our case for independence – like all cases where the right of small nations to be free is asserted – is a moral case and a moral assertion. Scotland’s moral right to self-determination permits us to ignore every law which negates that supreme moral right. Charles Stewart Parnell made this perfectly clear in the case of Ireland, that “no man has the right to fix a boundary to the march of a nation. No man has the right to say to his country: Thus far shalt thou go and no further.” Likewise, no law – written by man – has the right to impede the march of Scotland and the Scottish people to their destiny. Britain’s claim to the right to stop us is real only insofar as we accept that it is real. It is not real. It is a fiction. But rather than see this for the fugazi it is, we treat what is real – the sovereignty of the Scots – as a fiction, as a romantic fairy tale castle in the sky.
Boris Johnson will of course refuse a Section 30, and of course the 'legal route' is a non-starter. We must have a… twitter.com/i/web/status/1…—
Jason Michael (@Jeggit) January 14, 2020
Our route to independence is this, and it has only ever been this: The bold confirmation and courageous assertion of our ancient sovereignty. Nothing north of the Tweed – not a crown and not a prince – has more power than the Scottish people. No law enacted without the consent of the Scots has power over Scotland. This is what our sovereignty means. Britain’s Prime Minister and the Party he leads were rejected in Scotland, by the sovereign Scottish people, and so they have no moral weight in our country. They are imposters foisted upon us by the will of another nation. Tell me, what people on the face of the Earth suffers this to be done to them?
Independence becomes a lived, legal and political reality for Scotland when we lift up that moral claim to self-determination and ignore the pretensions of the British government to power over us. We must take this letter of rejection and mark it ‘Return to Sender.’ Oh yes, the British government will respond with threats of violence and even in time real violence. Nothing will rouse a nation to action faster and with more force than images in the press of the bloodied faces of its daughters and sons. Only in its rage, as has always been the way in the past, will England lose the moral claim to our country, and with it will soon go its legal claims. ‘Don’t poke the bear,’ squeal the weak. Servile fools! Don’t poke the bear. Break its back.
Scottish independence supporters hold rally in Glasgow | AFP