Things that matter

Seeking inspiration for today’s article, I came across a letter from Iain Bruce of Respect Scottish Sovereignty (RSS) which was published in The National on 21 July (We need your help to make the case for a citizens’ convention). I should say I rediscovered this letter, as I recall glancing at it earlier but taking little interest. On reading the letter fully, I find that I was justified in not paying it much heed. I am familiar with RSS from their efforts to promote a petition demanding that the Scottish Parliament incorporate the International Covenant on Civil and Political Rights (ICCPR) into Scots law. I recall objecting strongly to a flyer RSS distributed which encouraged people to sign the petition with a totally dishonest claim that success would enable the Scottish Parliament to legislate for a constitutional referendum. With this in mind, I was wary.

This time, RSS is promoting a petition “calling for a people’s assembly/citizens’ convention, specifically to discuss the sovereign people of Scotland’s right to decide our own future”. This petition failed because RSS failed to follow the correct procedure. Although Iain Bruce tries to give the impression that RRS had been “thwarted by the powers-that-be”.

I had been intending to write something about the much-hyped ‘citizens’ convention’, or ‘national convention’, or some such. I wanted to address the purpose of such an entity. What would it do? What could it do? It has long seemed to me that advocates of a citizens’ convention were seeking a way to circumvent the Scottish Parliament. While I can understand this given the fact that the parliament is dominated by parties which are pro-independence in name only, I can’t see how any attempt to sidestep the democratic institutions could work. And supposing it could work, would we want it to?

The bit of Iain Bruce’s letter that caught my attention is where he quotes Professor Ciaran Martin of the Blavatnik School of Government, University of Oxford (RESIST, REFORM OR RE-RUN? Short- and long-term reflections on Scotland and independence referendums).

Ultimately there are no constraints on what Westminster can do to block a lawful path to Scottish independence if it’s so minded.

There are, in effect, only two things that matter.

One: The law is in Westminster,

Two: The votes are in Scotland. So if these two forces clash, one has to give way to the other. But there are no rules as to how such a situation should be resolved.

I had hoped that by the time I got to this point in the article, I would have figured out how the above quote relates to the idea of a citizens’ convention. I’m still not sure. But I think it has something to do with looking for ways to deal with – or avoid – that clash between the seemingly immovable object of Westminster law and the theoretically irresistible force of democracy. Let’s keep going and see where we end up.

If nothing else, I am grateful to Iain Bruce for providing a reminder and a reason for referring to Professor Ciaran Martin’s 2021 paper. There is much in what he says that remains relevant to the constitutional issue. I would recommend that, at the very least, everybody should read the first section, titled Lecture Summary. Accepting that many won’t read the whole summary, I’ll take the liberty of extracting the four key conclusions as, if you like, a summary of the summary.

1. That the Union can be maintained by force of law is not, ultimately, in doubt. The question is whether it is wise to seek to do so.

2. There is no viable alternative model for the United Kingdom. Ultimately, the choice facing Scotland, whether soon or at some point later, is between the status quo (or some variant of it) and independence.

3. The 2014 template is broadly replicable for a further referendum.

4. The conduct of the campaigns on both sides in 2014 unnecessarily complicated what is a huge, but actually reasonably straightforward, political choice which is easily understood by most people. If there is another referendum, this need not be so again.

I would qualify that first conclusion. The Union can be maintained by force of law only if we, the people of Scotland, accept the legitimacy of this law. Bear in mind that we are talking here not about criminal law, but constitutional law. The former is respected by being obeyed. The latter is respected by being constantly questioned. Otherwise, the right of self-determination is meaningless. The right of self-determination must mean that we, the people, always have a right to choose our status as a nation and the form of government which best serves our needs, priorities, and aspirations. If this were not so, the right of self-determination would not be inalienable. In theory, it could be forfeited or relinquished.

Readers will be familiar with one of the more inane arguments advanced by amateur Unionist propagandists. The one in which they argue that we had a referendum in 2014 and that settled the matter. But, as I would wearily point out, nobody voted to give up our right of self-determination. We could not have done so even if it had been an option on the ballot because the right of self-determination is an inalienable human right without which democracy ceases to be possible.

As Ernest Renan put it in his 1882 lecture, What is a Nation? (my emphasis):

A nation is therefore a large-scale solidarity, constituted by the feeling of the sacrifices that one has made in the past and of those that one is prepared to make in the future. It presupposes a past; it is summarized, however, in the present by a tangible fact, namely, consent, the clearly expressed desire to continue a common life. A nation’s existence is, if you will pardon the metaphor, a daily plebiscite, just as an individual’s existence is a perpetual affirmation of life. That, I know full well, is less metaphysical than divine right and less brutal than so-called historical right. According to the ideas that I am outlining to you, a nation has no more right than a king does to say to a province: ‘You belong to me, I am seizing you.’ A province, as far as I am concerned, is its inhabitants; if anyone has the right to be consulted in such an affair, it is the inhabitant. A nation never has any real interest in annexing or holding on to a country against its will. The wish of nations is, all in all, the sole legitimate criterion, the one to which one must always return.

If we follow Renan’s thinking on the matter – and why would we not? – then we, the inhabitants of Scotland, can on any day choose to make that plebiscite formal. We can choose at any time to say to the UK, “We do not belong to you! You shall not seize us!”

It is a question of which takes precedence: local (UK) law, or the most fundamental precept on which rests all our ideas of democracy and civilisation. The sovereignty of a people is an extension of the sovereignty of the person. They are the same thing. Democracy is the consensual pooling of sovereignty that makes civilisation possible. Deny the sovereignty of the individual and you condone slavery. Deny the sovereignty of a people and you condone tyranny and precipitate a descent into barbarity.

That the people of Scotland are sovereign is both a constitutional fact and an abiding principle underpinning our distinct political culture and our identity as a nation. Not only do we have an inalienable right to challenge local (UK) law which denies us access to the full and free exercise of our right of self-determination, we have a solemn duty as democrats and citizens to do so.

Where local law impinges on our right of self-determination, as UK law demonstrably does, then the corrective can only be a process which steps outside the constraints of that law whilst being strictly confined by the principles and provisions of international law.

Professor Ciaran Martin’s second conclusion appears to reinforce my own portrayal of the constitutional issue as an existential struggle which culminates in the end of Scotland as a distinct nation or the end of the British state’s conceit of itself as an imperial power. That, ultimately, is the choice we, the people of Scotland, must make. It is understandable that England-as-Britain would seek to prevent us from making that choice other than when it is certain the outcome cannot put the Union in jeopardy.

In this context, it is worth referring to what Professor Martin has to say about the Section 30 process.

Although some academics had pointed out some years earlier its potential for use as a route to holding a referendum, Section 30 was not designed for existential constitutional issues. It was designed to iron out mistakes in the way devolved and reserved powers work in more mundane matters, such as road transport, and to provide flexibility for new developments.

In other words, Section 30 of the Scotland Act was a belt-and-braces provision which would allow the UK government to adjust the powers of the Scottish Parliament. It seems redundant to state that it is a provision England-as-Britain would resort to in order to safeguard the Union. The Union which is ‘precious’ to them for much more than sentimental reasons.

Professor Martin continues:

[Section 30] was never regarded as the only legal path to a referendum. Indeed, Whitehall gave serious if brief consideration in 2011 to running the referendum under Westminster law, before deciding that it needed to be, as in the slogan, ‘Made in Scotland’. The Scottish government may find ways around a refusal to grant a Section 30 order, as it has said it will. But that’s potentially beside the point. Westminster is sovereign, and could pass a further law blocking whatever path Holyrood had found. Ultimately there are no constraints on what Westminster can do to block a lawful path to Scottish independence if it’s so minded.

Which is kinda where we came in. There is a distinct feeling of being trapped in some kind of loop. This is because there is no route to the full and proper exercise of our right of self-determination while we accept the constraints of local law, as our political leaders insist we must. There is no escape from this loop unless and until we cease to accept those constraints.

I must emphasise here that it is not independence per se that is denied to us by the strictures of local law. There is no right to independence. There is only the right to self-determine our constitutional status, with independence being one option. The point Professor Ciaran Martin makes is that there is no ‘third way’. There is no constitutional arrangement that both ensures the continuity of the UK and permits the development of a distinct Scottish political culture. The doctrines of parliamentary and popular sovereignty are totally incompatible and absolutely irreconcilable. Arguably, this was always the fatal flaw in the Union. Although those who originally contrived it would have no way of foreseeing a situation in which votes in Scotland could challenge law in Westminster. If those votes were ever cast, that is.

Professor Martin’s third key conclusion is that the 2014 template is broadly replicable for a further referendum. Well, maybe. But would we want to replicate it? Obviously, John Swinney imagines we can. I have devoted a lot of words to pointing out how wrong this is. Frankly, I’m rather surprised that writing in 2021 Professor Martin still supposed a Section 30 referendum was acceptable or viable. Clearly, it isn’t. Not least because the British state won’t go along. But as far as I am concerned, the argument for repudiating the Section 30 process has been made and not rebutted. So, I’ll move on to Professor Martin’s fourth and final conclusion. Because it seems to contradict the notion of replicating the 2014 referendum.

Let’s remind ourselves of that fourth conclusion.

The conduct of the campaigns on both sides in 2014 unnecessarily complicated what is a huge, but actually reasonably straightforward, political choice which is easily understood by most people. If there is another referendum, this need not be so again.

Again, this is a point I have made time and time again. The 2014 referendum took a simple binary choice and buried it in a mountain of debate about matters of policy, not a single one of which was part of that binary choice.

If I may make so bold as to suggest where the good professor is in error, it is in thinking we could replicate the 2014 referendum without replicating that horribly flawed campaign. It is an error that John Swinney is also guilty of. Less forgivably, I would contend. He’s had five more years to think about the constitutional issue. Evidently, he has put that time to no use whatever.

Everything about a referendum is determined by the question that is asked, or the binary choice that is offered. The 2014 referendum made independence the contentious issue. But independence is normal. It is the default status of all nations. It is the status to which all the peoples of nations are presumed to aspire. A status which can only be circumscribed or altered with the ongoing consent of the people. Therefore, it is the Union which is anomalous. It is the Union that should be the contentious issue.

The law is in Westminster, and the votes are in Scotland. If these two forces clash, one has to give way to the other. But there are no rules as to how such a situation should be resolved. Moreover, the UK has shown no interest in developing such rules. And we would have to ask whether it is their right to do so. Surely that right lies with the people of Scotland. Surely, the right of self-determination must encompass the right to decide when and how we exercise that right.

It simply makes no sense that the matter of how and when and even if we exercise our right of self-determination should be at the discretion of what, for the purposes of the constitutional issue if nothing else, is effectively a foreign government.

Which brings us yet again to #ScottishUDI, a strategy which can be seen as the people of Scotland taking charge of the process by which we exercise our right of self-determination.

And I’m still unsure about the role of a citizens’ convention in all of this. Of one thing I am certain, however. If establishing a citizens’ convention is left to the independence industry, it will achieve nothing, as it would be bound by the orthodoxies which have paralysed Scotland’s cause. The independence industry’s first instinct is to stifle dissenting voices. Only ‘respectable’ views are to be considered. Where ‘respectable’ means accepting that Scotland’s votes are inferior to Westminster law.

For the record, I will never be ‘respectable’.