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By Jason Michael
IT IS NOT THE CASE that I am against the Scottish National Party. Certainly, in light of recent developments, of which we are all aware, I have serious misgivings about the current leadership. It looks to me, at least, that a group of senior figures in the party acted to recruit complainants against Alex Salmond and, against the advice of its own legal experts, sought to have him convicted and imprisoned on a catalogue of dirty charges. Ever since the court upheld Mr Salmon’s innocence this group has collaborated with the British media in Scotland to create the impression of his guilt, has deeply divided the party and the movement for independence between those who ‘believe women’ and those who believe in the rule of law, and has strenuously resisted – with the assistance of the British civil service – the efforts of the former First Minister to defend his reputation and make public the details supporting his belief that this was the work of a high-level conspiracy against him.
So, naturally, having followed this story very closely and having paid careful attention to all the evidence submitted to the present inquiry, I have become rather suspicious of Nicola Sturgeon and many of those around her. It may, of course, be the case that many others and myself have arrived at the wrong conclusion, that we do not have all the information. One must always be open to this possibility. The easiest thing for Ms Sturgeon to do then would be share the evidence that there was no conspiracy. We are intelligent enough to weigh up the evidence. But rather than doing this she and her inner circle have made every effort to block evidence coming to light. We have had nothing but rhetoric and obfuscation from the party leadership, and this does not exactly inspire confidence in its claim to be telling the truth.
But this is not about losing faith in the SNP. The National Party is a large organisation made up of many individuals, and there are many good and sincere people in the party. I am not a party member, and after this fiasco I think I will just park any thoughts of ever joining for the time being. But this does not mean I am not prepared to work with and lend my support to the Scottish National Party. Insofar as the SNP is working towards independence, we have common cause. If the SNP can deliver an independence referendum in 2021, as it has promised, then I will advocate voting for it in the May election. However, I have my reservations. I do not believe the party is being honest with people, and I believe this because I know the SNP cannot deliver an independence referendum in 2021 – and I know the SNP knows this too.
I do not believe the party is being honest with people, and I believe this because I know the SNP cannot deliver an independence referendum in 2021 – and I know the SNP knows this too.
On the 19 December 2019 the SNP-led Scottish government passed the Referendums (Scotland) Act 2020, an Act which made it a legal requirement in Scots Law to obtain from the British government a Section 30 order in order to hold an advisory referendum (all referenda in the United Kingdom are advisory) on the question of independence.1 It is important to note here that this law was enacted by the Scottish and not the British government. In 2014 the purpose of the Section 30 order was to temporarily increase the constitutional authority of the Edinburgh parliament so as to act on the decision of the 18 September 2014 referendum – not permission to hold the referendum. In 2014 a Section 30 order was not legally required. Today it is.
Westminster alone has the right to grant such a transfer of powers by an act of parliament, and so we have to think about what this means. Crucially, it highlights the constitutional and legal reality that the Scottish parliament – as a legislative body exercising powers merely devolved from Westminster – is not a sovereign parliamentary institution. Regardless of the affection we have for ‘our parliament,’ Holyrood is a department of the Westminster British parliament in Scotland – this is what devolution means. The Referendums (Scotland) Act 2020 and all other acts of the Scottish parliament acknowledge and reinforce this reality. Where elections in Scotland may reflect the ancient notion of Scots popular sovereignty, Holyrood is an extension of English sovereignty; that is to say that its ‘power’ is derived from the sovereignty of the crown in parliament – id est Westminster’s sovereignty in Scotland. Therefore, the very idea of a Section 30 order legally nullifies Scots sovereignty – reducing it to a romantic and sentimental notion. No sovereign nation requires the permission of another parliament in another country to legislate for its own governance. The Claim of Right – a claim which asserts ‘the sovereign right of the Scottish people to determine the form of government best suited to their needs’ has no legal force in Westminster – and so, by extension, in the Scottish parliament in Edinburgh.
…the very idea of a Section 30 order legally nullifies Scots sovereignty – reducing it to a romantic and sentimental notion.
Given that the constitution is a reserved matter under the Scotland Act (1998), only an act of the Westminster British parliament in London can grant a Section 30 order. It cannot be legislated for under any circumstances in the devolved British parliament in Scotland. And precisely because Westminster – and Westminster alone – is sovereign, no set of conditions or political realities in Scotland can compel the British government in London to grant a Section 30 order. What does this mean? In effect, this means that no matter who holds a majority on the Scottish benches at Westminster or in the Scottish parliament and no matter what the opinion polls say, no legal mechanism exists to trigger the granting of an extension of powers qua a Section 30 order. Theoretically, the SNP – or another pro-independence party or a coalition of pro-independence parties – can hold every single seat in Westminster and Holyrood and we can have an unbroken record of a hundred years of opinion polls showing 100 percent support for independence, and still London – and London alone – has the sovereign power to grant or refuse such a request. Simply put, a Section 30 order is not within the democratic reach of Scotland. It is not a matter of democracy. Rather, it is a central element of Britain’s colonial domination and ownership of Scotland.
Now then, let us return to that election promise. The Scottish National Party is asking us to give it a majority in May this year in order that it might put into motion a programme that will result in an independence referendum in 2021. The SNP is promising something that it itself has put beyond our reach. It is promising a referendum it does not have the power to grant – and Nicola Sturgeon is on record saying that she will not have a referendum without a Section 30 order. The Westminster government can and will deny this request – and there is not a single thing Nicola Sturgeon, the SNP, or the Scottish government can do about it.
So, why then is the SNP asking us to give them another majority? Well, most interestingly, the SNP is not looking for a pro-independence supermajority, only a narrow SNP majority. Under the D’Hondt electoral system it is mathematically impossible for one party to win a supermajority – the only condition which would completely expose the undemocratic nature of British rule in Scotland and so strengthen the moral argument for a Section 30 order. But the SNP is asking us to give both votes – the constituency and the regional list vote – to it, an election which, even in the most favourable circumstance, would give the SNP only a narrow majority. The idea has been put to the National Party to work with another pro-independence party so as to achieve a supermajority, but no – this idea is anathema. The SNP only wants a small SNP majority.
Simply put, a Section 30 order is not within the democratic reach of Scotland. It is not a matter of democracy. Rather, it is a central element of Britain’s colonial domination and ownership of Scotland.
But why? There has been a pro-independence majority in Holyrood since 2015. Right now, there is a pro-independence majority in Holyrood. The SNP has been given mandate after mandate to move on independence. At one point it had a triple lock mandate. And in spite of the screams from its own rank and file and from the wider independence movement to ‘use the mandate,’ the SNP did exactly nothing – nothing – to advance the campaign for independence. It now wants yet another mandate and another majority all to itself. But why? There is only one reason the SNP wants a majority in May – just to have a majority, just to have unnegotiated [limited] power in a British owned Scotland, to have its own fiefdom within the union. And we can know this is what the party wants because there is nothing else it can have – it cannot grant itself an independence referendum.
It is certainly not my desire to tell you how to vote. I am not telling you not to vote SNP. Vote according to your own conscience and vote for who you want. What I am saying is don’t vote for the SNP thinking this will result in a 2021 independence referendum. It will do no such thing – it can’t. And don’t imagine that not voting for the SNP will endanger independence. It will not. An independence referendum is not on the table – it can’t be. Of course, an SNP government is infinitely better than the alternative. So, in my opinion, it will still be
good better to have the SNP in government, but this 2021 independence referendum business is nothing but an empty election promise, and we deserve so much better than this. It infuriates me that the SNP has made this promise, because independence is not an election promise – it is the highest aspiration of our nation. It is not there as some cheap trick to guarantee election victories.
Independence is not an election promise – it is the highest aspiration of our nation.
My friend on Twitter, ‘Nicola’s No1 Comrade,’ is a firm advocate of returning an SNP majority in May – as is his right. But I asked him to explain to me how this would lead to an independence referendum the Scottish government had no power to grant. He couldn’t. But what he did was offer a perfectly good reason to still support the SNP – so that we might ‘hold their feet to the fire.’ But still, I have questions. How can we hold their feet to the fire? At the last election, after the party failed to deliver on a triple lock mandate, the word was to vote for them again and if we still got nothing, we could withhold our vote next time – that’s this time. His answer to this was:
By constantly progressing left policies with the socialist group & the trade union group we can keep them to the left. That way we keep our conscience clear that we all, individually know that we have done as much as we can in order to achieve our common goal for our country.
Now, up to a point, I can respect this – but it’s not a referendum and it’s not independence. Absolutely, I want a socialist Scotland. Left policies make me happy. So, sure, we can vote them in to keep the pressure on them to make Scotland a more economically just and equitable country. I like that – but it’s not independence. The unionist Labour Party are offering the same thing. The independence campaign is not a campaign for a more left leaning nation, it is a campaign for independence in which every idea on the political spectrum can compete for attention in a sovereign Scottish parliament. Everything short of this is just – well – short of this.
Independence will not come as a result of a 2021 referendum Nicola Sturgeon does not have the power to deliver. We will have our referendum in one of two ways; either by voting for a pro-independence supermajority in Holyrood and thereby embarrassing England into granting a Section 30 order or by legislating it out of our way and holding a referendum without it. We are not children, and we have to quit thinking like children. Stop telling yourself and each other fantastical little stories about us being sovereign and just rocking up one day and declaring independence. It doesn’t work like this and the SNP certainly is not doing it like that. We are in a real-world process and we have to navigate realities and not just blow them away with wishful thinking.
- The Referendums (Scotland) Act 2020, s1(1), sets out both the reach and the limitations of the Act: ‘This Act applies to any referendum held throughout Scotland in pursuance of provision made by or under an Act of the Scottish Parliament (emphasis added).’ It therefore places beyond the legislative competence of the Scottish parliament referenda in pursuance of matters reserved to the Westminster parliament set out in Schedule 5 of the Scotland Act 1998 (Reserved Matters), specifically in this instance Sch 5.1(c), ‘the Parliament of the United Kingdom.’ Therefore, in accordance with the 2020 Act, the Scottish parliament must request an Order in Council (Section 30 order) for the temporary transfer of powers from the British government to hold such a referendum.
Indyref 2 without a Section 30 Order?