The game-changer
Presumably, those backing Ash Regan’s “plan” have had sight of the draft Bill. I have not. So, I cannot comment on it, far less support it. I’m not getting all excited about something which may or may not be a pig in a poke. I want to see the goods before I commit to their purchase.
What I can comment on is the little Ash Regan has chosen to reveal about her intended proposed draft Bill. (If that sounds tenuous, there’s the very best reason.) The closest thing to a fact we have regarding this proposed draft Bill is the date for the proposed referendum – September 18, 2024. So, my first question would be, why the delay? What happened to using the UK general election as a de facto referendum? That could be as early as May. Even if, as seems more likely, Sunak puts off the election until the last minute – say, late November or early December – we know it is going to happen and could start campaigning for a de facto Yes vote immediately. The date chosen by Ash Regan has obvious symbolic value. But is that value great enough to justify the delay?
The second thing we know with a high degree of certainty if that the draft Bill is to propose a referendum on the question of whether the Scottish Parliament should “have the power to negotiate and legislate for Scottish independence”. Professor Aileen McHarg has already pointed out one problem with this proposal. The intended question clearly relates to the reserved matter of the constitution and would be an easy target for the UK Supreme Court. And that’s supposing it got past the Presiding Officer and her legal advisors. The Lord Advocate would also have something to say, I suspect.
Let me make it clear that I appreciate what Ash Regan is doing. She is bringing some fresh thinking to the constitutional issue. Which, given the staleness of the SNP’s failed approach over the last nine years, has to be a good thing. Fresh thinking is good. Ash only needed to devote a bit more of that thinking to what she was proposing.
I also commend Ash for her willingness to address the issue of process. Something other nominally pro-independence politicians are strangely reluctant to do. More specifically, Ash is at least attempting to address the matter of legislative competence. Which is very welcome. But, again, she seems to have stopped short of fully thinking through her proposed proposal. Asking whether the Scottish Parliament should “have the power to negotiate and legislate for Scottish independence” is putting the cart before the horse. Allow me to explain.
I have frequently pointed out that in order to restore Scotland’s independence we have two battles to fight. The battle to remove impediments to our right to exercise our right of self-determination. And the battle to restore our independence. Obviously, the former takes precedence over the latter. Before we can restore independence, we must establish the capacity to restore independence. The first task is to establish that the Scottish Parliament has the legislative competence to facilitate the exercise of our right of self-determination. In other words, the authority to legislate for a proper, determinative constitutional referendum.
I have long maintained that we have two battles to fight. The first is the battle to assert and defend the sovereignty of Scotland’s people as well as our right of self-determination. Only when this battle is won will we have the means to facilitate the exercise of our right to decide the constitutional status of our nation.
The second battle is that to restore Scotland’s independence. The Alba proposal gets them in the wrong order. The referendum should be on the question of the Scottish Parliament’s powers in relation to all constitutional matters. Obviously, this would include the more specific powers Ash Regan wants to put to a vote. But it is much broader. And, being much broader, it is considerably more potent.
There is only one way the Scottish Parliament can acquire the power to legislate on constitutional matters and that is to take that power. That which is given is not real power. From what we know, it seems Ash Regan wants to ask the British state to give the Scottish Parliament certain powers in relation to the constitution. She defers to Westminster. In so doing, she compromises the sovereignty of Scotland’s people. I cannot consent to this and neither should anyone who adheres to the principal of popular sovereignty.
The power Ash wants the British state to concede is the power to end the Union. Preservation of the Union is an imperative for the British state. They not only won’t concede the power to end the Union, they can’t. No doubt Ash anticipates that, should her proposed draft Bill be passed by the Scottish Parliament, the British political elite will respond with the arrogant contempt so ably made manifest by Alister Jack. No doubt she expects a legal challenge. Because of the way her proposed legislation is framed, the inevitable legal challenge will go to the UK Supreme Court. The place such legislation goes to die.
Let’s pause a moment to consider what powers are being begged from the British state and what powers might actually be given in that fantasy world where the legislation actually takes effect. We can be certain that if the British state were to concede any powers over the constitution, those powers would be limited and conditional. All she can possibly be seeking is a sort of rolling Edinburgh Agreement. A standing Section 30 order, if you like. Because that is the very most the British state might imaginably concede. And a powerful imagination is required to envisage that ever happening,
There is a better way. And I am at a loss to understand how, having set off on the journey which brought her to this idea, she chose to disembark the train of thought at a station which has no connections to her desired destination. A better way would have been to fight the first battle first. The battle to ensure we are able to exercise our right of self-determination in a proper constitutional referendum (see Stirling Directive Appendix II). A better way would have been to put the sovereign people of Scotland at the centre of her thinking rather than the British state.
Whether it’s a referendum in September or a de facto referendum attached to the Westminster election by the incorporation of the #ManifestoForIndependence into all pro-independence parties’ manifestos, make the question about the right of self-determination and the means by which we exercise that right. Do not defer to Westminster! Don’t even refer to Westminster! Simply ask the people of Scotland for a mandate to have the Scottish Parliament assert its legislative competence in all matters relating to the constitution.
Ostensibly, this would be for the specific purpose of facilitating the exercise of our right of self-determination which would otherwise be denied to us by the British state. But there is no need to limit ourselves to this. The Scottish parliament must take all powers over the constitution.
Three advantages immediately come to mind. Firstly, it is easier to get people to vote for more powers for the Scottish Parliament than for independence. So, there is a better chance of getting a conclusive vote in in favour of the proposal. Secondly, making the issue self-determination means it becomes a matter of human right and brings into play the European Court of Human Rights (ECHR) and/or the International Court of Justice (ICJ) should there be a legal challenge. Thirdly, it makes a legal challenge less likely because the UK government would have no grounds for objection. Or to be more precise, no arguments it would want aired in open court.
I don’t know whether Ash Regan is amenable to amending her proposals. There is a consultation on the Alba Party website but I was unable to access it for reasons I won’t get into here. I hope she and her colleagues are open to input from dissenting voices. Although experience tells me that’s a forlorn hope. For whatever it may be worth, here are the two things I think Alba Party must do if it is to become a significant force in Scottish politics.
Incorporate the #ManifestoForIndependence in the Alba Party manifesto for the Westminster (and subsequent) elections.
Demand that the Westminster election serve as a de facto referendum on a proposal that the Scottish Parliament assert its legislative competence in all matters relating to Scotland’s constitutional settlement.
That is the game-changer Scotland’s cause requires.