Time is running out

There is another fine letter in The National today from Mike Wallace. I make no apology for reproducing that letter here in full in the hope that it might reach a wider audience.

Recent discussions on the future of Scotland’s governance have shown that, despite speeches about popular sovereignty, for some politicians all options for triggering an independence referendum still hinge on Westminster’s approval.

Recently, the Holyrood Constitution, External Affairs and Culture Committee outlined three main routes: amending the Scotland Act to give the Scottish Parliament powers to legislate for a referendum, transferring a duty or discretionary power to hold a referendum from the UK Government, or reaching a binding political agreement between Holyrood and Westminster. Each path makes Westminster’s consent a prerequisite for Scotland to have a say on its constitutional future.

Central to Scotland’s constitutional tradition is the Claim of Right, which asserts that authority ultimately resides with the people, not the monarch or parliament. Historically, this principle justified the removal of monarchs who failed to uphold the people’s will, and it stands in sharp contrast to the English Bill of Rights, which places sovereignty within parliament. The Scottish tradition is uniquely democratic, empowering the people to place limits on government and shaping their expectations of how they should be governed. Canon Kenyon Wright gave a clear modern formulation as: “Either the people of Scotland are sovereign or Westminster, it cannot be both”.

Considering these constitutional roots, Scotland’s national party is tasked with ensuring that the wishes of the people underpin all constitutional arrangements. The “Winning Independence” policy, passed at SNP annual national conference, doesn’t explicitly call for permission from Westminster for an independence referendum. Rather, it calls for an “agreed and lawful” process. For a nation striving for democracy, genuine agreement must begin and end with its citizens. It should not be an approach that, by implicitly undermining our Claim of Right, can be viewed as unlawful in our own legal and constitutional tradition. This is especially so now, when that Claim – along with our constitutional popular sovereignty – currently form part of the presentation made before our Court of Session in the judicial review of the proscription of Palestine Action.

John Swinney has said that no-one knows what tactics he may use in pursuit of the next independence referendum. As Scotland charts its course, it is vital that strategy and principle remain intertwined. The nation must ensure that every tactical move is guided by a clear strategic vision – one rooted in the Claim of Right and the people’s unassailable right to decide their future. Seeking an electoral mandate from the Scottish people for the specific action of introducing a bill at Holyrood restoring to a Scottish Parliament the needed competence over constitutional affairs can be the basis for that strategy.

Should party leaders shift away from our foundational principles, it becomes imperative for members – especially those attending Saturday’s campaign conference – and the public to debate and scrutinise such a change openly. The right to self-determination is a pillar of democracy and should not be marginalised by parliamentary procedures. Our Claim of Right is an enduring principle that demands to be upheld – and not diminished – in the face of external constraint.

Mike Wallace
Newington

The key point in Mike’s letter is that all thinking around the constitutional issue within Scotland’s political elite puts Westminster at the centre, while according to our own constitutional tradition, only the people of Scotland rightfully belong there.

This ties in with my own comment this morning on the matter of the US using Prestwick Airport for purposes relating to its military assault on Iran and the First Minister’s pusillanimous response to calls for him to put a stop to this. Again, I reproduce the comment in full.

When moral imperatives become subordinate to legal niceties, civilisation ceases.

Those of us not blinded by the solar rays emanating from John Swinney’s fundament recognise that if we are to break the Union, we must break the rules which protect and preserve the Union. But we must choose wisely when deciding which rules to break. We would be well-advised to choose a rule which conflicts with a moral imperative. If we are clever, we will choose a rule which conflicts not only with ideals of natural justice but also with principles enshrined in international law.

As things stand, we have the ability to choose the ground on which is fought the battle to restore Scotland’s independence. We cannot be confident that we will always have this ability.

The ability to choose that battleground is not enough, however. We also require political leaders prepared to go on the offensive in our liberation struggle. Nothing about John Swinney suggests he is the man for the job.

Both Mike Wallace and I seek the same thing. We both want political leadership that puts the people of Scotland foremost. We insist that our political leaders uphold Scotland’s legal and constitutional tradition. We both recognise that there can be no route to the full and free exercise of our right of self-determination which is “agreed and lawful” in the context of local (UK) law. The doctrine of parliamentary sovereignty precludes Westminster transferring to a devolved parliament powers which supersede its own. We both see that the British state will not and cannot agree to anything which puts the Union in jeopardy. With the corollary that nothing the UK government does agree to can possibly be a threat to the Union.

Mike Wallace points out that “John Swinney has said that no-one knows what tactics he may use in pursuit of the next independence referendum“. That is true. It’s the old ‘secret plan’ ploy that Nicola Sturgeon used to such great personal advantage. But we do know what tactics he may not use if/when his supplication to the British Prime Minister meets a similar fate to all that went before. Given that Swinney has stipulated that a new referendum must be “agreed and lawful”, he cannot then propose something that is not “agreed and lawful”.

The term “agreed and lawful” is a euphemism for a Section 30 referendum. It cannot be otherwise because there is nothing else that would be both “agreed” by the British state and “lawful” in terms of UK law. So, John Swinney is saying that a Section 30 referendum is the only kind of referendum that is possible. But he is also acknowledging the British state’s ‘right’ to refuse such a referendum. Any alternative to the Section 30 process which Swinney proposes after his begging letter is returned unopened would inevitably be something that he himself has deemed unlawful.

Another problem arises from the insistence on putting Westminster at the centre of the constitutional issue. Mike Wallace echoes my oft-repeated view that “seeking an electoral mandate from the Scottish people for the specific action of introducing a bill at Holyrood restoring to a Scottish Parliament the needed competence over constitutional affairs” is the best and possibly the only way forward for Scotland’s cause. But the proximate basis on which the Scottish Parliament asserts this legislative competence must be that it is the only way the people of Scotland can be enabled to fully and freely exercise their right of self-determination. If John Swinney accepts the Section 30 process as a satisfactory democratic means by which we can exercise our right of self-determination, he fatally undermines the basis for the Scottish Parliament asserting legislative competence. He closes that route to independence while offering no alternative.

It is also worth noting that Swinney’s declared intention to validate the Section 30 process also torpedos the UN initiative being undertaken by Liberation Scotland. The British state would be able to argue that a UN intervention is not required – and might itself be unlawful – because there is an existing democratic process recognised by both parties.

As the election draws nearer, my sense of foreboding increases. What the SNP is proposing not only won’t help Scotland’s cause; it will do great damage to that cause. Mike Wallace is to be commended for his efforts to steer the SNP away from the precipice. For my part, I have attempted to do the same from outside the party. Neither of us has met with much success. The clock is ticking ominously.