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By Jason Michael
PETE WISHART POSTED an article to his website yesterday setting forth his vision for how we might move forward together to independence, a stall which he himself boils down to a three-point plan: That we ‘secure majority support and a cast iron democratic mandate,’ from which we progress to ‘a referendum with the participation of the United Kingdom,’ and, failing this, work with the European Union to establish a process which would ‘allow an internationally recognised referendum to take place, whilst simultaneously withdrawing from the institutions of the UK.’ Regardless of the critique of this strategy which I will make presently, this is indeed a welcome interjection from Mr Wishart – it has been quite some time since the movement has heard anything of substance on the subject of independence from the Scottish National Party.
On paper, this incremental or gradualist approach certainly looks good. It is legally and morally sound, and rests entirely on the democratic consent of the Scottish people – something with which we cannot find fault. Pete and I are not going to see eye to eye on every aspect on the proposed routes to independence, but at the very least we find common ground on the importance of consent. Whatever happens between now and independence, the decision must be taken with the prior established support of a majority in Scotland. This critique, then, begins by identifying the three pillars underpinning his proposal; legality, morality, and democracy.
The devolution generation simply don't understand why Scotland shouldn't be independent. So much for it killing ind… twitter.com/i/web/status/1…—
Mhairi Hunter (@MhairiHunter) June 22, 2020
Legality is at least notionally important. After Catalonia, no one wants to be standing holding a saltire in the spotlight of international attention under a headline reading ‘illegal referendum.’ Everyone wants this process to be legal and beyond reproach, but the problem we have here is with the very construct of legality itself; whose law and which legality are we talking about? This is a contested field, and I am fairly sure Pete Wishart will agree with this point. Thus, when he speaks of securing a referendum which is beyond legal dispute, we are forced to ask how anything in this field can be legally settled when the law itself is disputed – and not merely what one particular law can determine. Our problem is that this question, for so long as we continue on this measured and incremental path, will always be plagued and hampered by the conflict of two jurisdictions.
Scots law, as we all know, is established on the principle of popular sovereignty, but in our current constitutional predicament our legislators – our MPs – with the competence to decide on constitutional matters are sitting in the Westminster parliament where sovereign power is rested in the medieval idea of the Crown in parliament. The status quo, therefore, is a legal environment in which a sub-state Scotland requires the permission of the Crown in order to exercise its popular sovereignty. In an English and Conservative dominated parliament, designed as it is to mute the democracies of Scotland, Wales, and the six counties, we can safely assume this permission will not be forthcoming. This too, I am sure, Wishart recognises, and it’s why he includes his third opinion.
There are two legal points here of paramount importance to this discussion; that the British qua the de facto English government has no constitutional obligation to acquiesce to a referendum, and that the Claim of Right – the principle that the people of Scotland have the right to determine what form of government best suits them – has no legal force in the United Kingdom. This is a moral claim accepted in principle but not in law. So, let’s look at the moral argument.
In a nutshell, Pete Wishart’s argument makes an appeal to something closer to natural law – the law of fairness and basic human decency – than actual constitutional law to make the case for returning an SNP majority at the next Holyrood election. He writes:
If the SNP can secure an overall majority as we did in 2011 that would replicate the conditions when the last referendum was triggered. If we also get another majority then the whole democratic case of withholding a referendum is taken away.
He is wrong to say that if this happens it will replicate the conditions which led to the 2014 referendum. Other than this being a big ‘if,’ the conditions are entirely and fundamentally different to those that prevailed in 2011. Such conditions, in vita reali, are not determined by mathematics, by a repetition of the numbers, but by history and mutable socio-political realities – this is a smart way of saying you can’t step in the same river twice. Scotland has changed since 2011. British politics and public opinion across the UK have changed since 2011. And, arguably more importantly, Westminster’s disposition with regards to Scotland – its people and government – has changed radically since 2014. So, no. We cannot concede here that by simply repeating the SNP result of 2011 we will replicate the conditions that lead to a referendum. Then we have the categorical error in the assumption that there can be any set of conditions which will ‘trigger’ a referendum. Referenda are not automatically granted when we meet certain conditions. They are granted or refused at the will and pleasure of the British government, and – as we have said – London is not obliged to give Scotland a constitutional referendum in any set of circumstances.
My position is clear - the deeply undemocratic stance of the UK Government in denying the mandate for indyref and r… twitter.com/i/web/status/1…—
Keith Brown MSP (@KeithBrownSNP) March 07, 2019
What Pete Wishart is making here, especially when he writes about taking away ‘the whole democratic case of withholding a referendum’ by winning another majority, is a moral argument – and a good moral argument, but a moral argument nonetheless. Absolutely, a democratic majority would morally require the British government to do the right thing. Historically speaking and as our own experience of the British government since 2012 tells us, Britain and ‘the right thing’ seldom appear in the same sentence. As Rob Johns, Professor in Politics at the University of Essex, explained late last year, Boris Johnson – having lost any meaningful political support in Scotland has no incentive to appease Scotland. Johnson is in a position to stand his ground, not do the right thing, and suffer no political penalty for it. In fact, it plays to his right-wing English power base to simply refuse. Because here’s the thing: It’s not about morality, it’s about power.
In sum then, Wishart’s pillars of legality and morality are, in the final analysis, considerably less than the columns he would have us think they are. What they are – certainly for the purposes of any campaign with independence as its goal – are broken reeds. But, to be fair to Pete, he is aware of this. ‘If the UK refuses to participate in an agreed referendum in the face of majority support and a clear democratic mandate…’ this is precisely what the British government will do, and this is why he sneaks in a little Plan B of his own:
We would then have the grounds to seek to secure our independence without their participation. This should involve a referendum designed in Scotland where a last invitation is offered to the UK to participate to put the case to remain in the union. A request to the EU to sanction this referendum should be made and every attempt to involve them in the designing of that referendum should be pursued.
Actually, this sounds very much like the Plan B the SNP recently rejected out of hand. The difference, the reader must surmise, is timing – do we do this now or wait until we have exhausted all possible means of engaging the London government? Given the weakness of the legal and moral arguments for this gradualist approach, the time should be whenever we – the people of Scotland – decide we are ready to go back to the polls. So, there is some wisdom in waiting until we have a greater majority – in Holyrood and in the polling on independence. But trying to exhaust ‘all possible means’ in a Byzantine bureaucratic state such as the UK is, is a how-long-is-a-piece-of-string argument. The British civil service machine and the various instruments of state can have us exhausting all possibilities until we are simply too exhausted to possibly do anything. The British state is not the gate-keeper to independence, it is the cul-de-sac and dead-end.
Knowing and – crucially – accepting the futility of seeking independence with the participation of the British state, leaves us – as everyone will realise soon enough – with this Plan A or Plan Z or whatever you call it. The legality which the mild and politically naïve desire is non-existent and the morality we all expect from the British side – as the whole world now knows, thanks to Brexit – is fly in the sky. It is the third option all the way. After 2014, it always was – and the only question is timing. This is something I brought up in the comments section of Pete Wishart’s article. The Scottish people have given the SNP numerous mandates to act on this alternative, but we have moved not a single inch since 2014. Pete’s answer was that he thinks he ‘pretty much dealt with the “mandates,”’ but he didn’t. When it was put to him that ‘…these mandates have been ignored by the SNP,’ he pointed back to the mandates of his article – the moral mandates Scotland has for a legal referendum, and not the mandates the Scottish people have given their government.
Ultimately, what Mr Wishart is asking is that we continue on as we are until such a time as all avenues of coöperation with the British government are exhausted, which is to say we will be continuing on for the length of that piece of string. So, why didn’t he just say this? Why did he feel the need to obfuscate the fact his position remains exactly the same? Because, I suggest, this statement wasn’t really about a route map to independence. He tells us what it’s about:
This is why the next Holyrood election is so important. We must have a clear and unambiguous commitment to hold a referendum and have it understood that a vote for the SNP is a vote for a referendum on independence. If the SNP can secure an overall majority as we did in 2011 that would replicate the conditions when the last referendum was triggered. If we also get another majority then the whole democratic case of withholding a referendum is taken away. That is why talk of ‘list’ parties and ‘gaming’ the system are so singularly unhelpful.
This is all about the next Holyrood election and the SNP winning another mandate, like the past mandates it has had and failed to act on. The formation of pro-independence ‘list’ parties threatens this majority – the SNP’s majority, but they would not threaten the mandate. Here we see his priority; party and position before the cause.
Now, is the time for Scotland to speak with one voice, and be something, it was always meant to be... An independe… twitter.com/i/web/status/1…—
Colin Burnett (@ColinBurnett16) December 12, 2019
But winning this majority will be a tall order. As we move further from 2014 – a moment in Scotland that sparked greater political awareness and brought thousands to political activism – more people are coming to see that the independence movement and the SNP are not one and the same thing. The SNP is a faction of the wider movement, and so calling for unity under the aegis of the National Party is a bit disingenuous. Since 2014 the image conscious and risk averse machine that is the SNP has thrown a number of high profile independentistas under the bus, it has put an ideological stance on gender – which has alienated many – front and centre, and it has, in my opinion, wasted one opportunity after another trying to play a game we all know it cannot win.
Still, he is right. Support for the SNP did increase at the last Holyrood election – by 1.1 percent. But it lost six seats, and it’s the seats that matter. Independence by the third option – this Plan B, like all more forceful routes to independence – demands an overwhelmingly pro-independence parliament, something the Edinburgh system works against any single party achieving. Any Plan B – or Plan Z (see, it’s not just a matter of the name of the alternative plan, it’s the alternative nature of the plan) – will work only with a strong pro-independence coalition, and this is the only way we will ever see true political unity of the independence movement. But, this said, Pete Wishart is a loyal son of the SNP and he has served Scotland and his party well. We can’t blame him for taking the position he is. This is the road to an SNP majority, but this is not the road to independence.
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