At the demo outside Holyrood in the wake of the Supreme Court decision Catalan-Scot Valentina Servera Clavell made this demand of Westminster on the subject of a voluntary union, “If this union is voluntary, show me the door, so I can walk through it.”
That, for me, pretty much summed up the new democratic stage we find ourselves performing upon. It has very much been on my mind ever since.
I’m thinking out loud again and this will probably get me in a bunch of trouble, like it did the last time, but there you go, ideas need to be shared and stress tested if we are to come to sound conclusions.
I haven’t read any of Gordon Brown’s proposals but I’ve seen enough to know he’s taking the piss.
After the last time I shot my mouth off, about devo-minmax on that occasion, I heard from a lot of folks that I was an eejit and from a surprising number of folks outside the Yes movement who thought they saw an opportunity or a weakness in the Yes camp.
That included folks close to Gordon’s ‘think-tank’ that was supposedly beavering away on these proposals. So I know they know what the problems are and what the solutions might be for them.
So the rubbish they published on Monday feels like an insult. Not to me, or the Yes movement, but to uncertain No voters that are becoming increasingly disillusioned with a UK that is demonstrably no longer the voluntary union they believed it was.
What I don’t think Labour truly understand is that the union’s voluntary nature is part of the glue that holds the UK together. Folk that were worried about the risks of leaving the UK back in 2014 felt safe to vote No because they were in a voluntary arrangement and they could always change their minds at a later date. The fear of the possible downsides of choosing independence outweighed any fears they might have about the status quo because if the worst came to the worst they could always change their minds.
The Supreme Court changed all that two weeks ago and Gordon’s milquetoast recommendations have only highlighted the enormous danger that a marriage they might be having second thoughts about is beginning to turn into something involving basements and padlocks.
That Constitutional Democratic Deficit really is potentially existential for Scotland and very large numbers of Scots are becoming persuaded that enough is enough.
Last week I wrote that I thought that having an Emergency Conference was the right thing for the SNP to do. It absolutely must be up to the rank and file to make the decisions about how the party proceeds from here. However, I am very concerned by the number of senior figures in the party I’ve seen attempting to frame the narrative and trying to steer the discussion towards particular outcomes.
To my mind, based on what the First Minister said when she announced the reference to the Supreme Court and on the outcome of that reference, it is pretty straightforward.
The majority of the electorate in a nation where the People are Sovereign authorised the holding of a referendum on independence in May of 2021. The Supreme Court has ruled that a mandate won in a Holyrood election isn’t good enough to meet the necessary constitutional standard. In my opinion they are wrong and are no longer upholding the rule of law. From a practical standpoint however it is necessary to tick all the legal boxes on our path to independence if there is a risk that we might have to rely on international recognition alone.
The Supreme Court implied, and a number of ‘neutral’ observers have agreed, including the Dean of the Faculty of Advocates, that the Sovereign People of Scotland exercise their Sovereign Will at the ballot box in General Elections for Westminster Members of Parliament.
A majority of votes at a WM GE is a clear, legally accepted, expression of the Sovereign Will of the People of Scotland. Such a de facto referendum would not just be advisory, it would be immediately self executing. What legal superior do the Sovereign People of Scotland have?
They are all careful not to say so too directly but that is essentially the answer you get from them when you press them to tell you what legal route Scotland has out of the UK.
To me talk of having a de facto referendum to seek permission to have an independence referendum that the People of Scotland have already mandated repeatedly is a tactical error that will simply result in us failing to reach the necessary threshold. We need a direct mandate for independence, if Westminster refuses to recognise the outcome, as table stakes in the game of international recognition. Anything less risks having to wait another entire UK election cycle.
But I do recognise that a stance of ‘That’s it, we’ve had enough, if we get a majority we will immediately issue a UDI and form an independent government’ might be a bit strong and risks putting off voters that are annoyed by the refusal of the UK to recognise the democratic mandate of the Scottish Government to hold an independence referendum but don’t necessarily want to vote Yes or would vote Yes but not to a UDI and possibly ending up like Catalonia.
That too might well end up with us falling agonisingly short and failing to achieve our goal.
So it occurred to me, whilst I was fuming about the rubbish Gordon Brown was proposing and ranting to myself that I had told them what they needed to do and they just didn’t listen or deliberately chose to keep repeating the same old stupid strategy of offering a drowning person vouchers for swimming lessons, that there might be a third way based on the proposals I got such a hard time for at New Year.
See the thing is, a de facto referendum at a General Election is either good enough to legally achieve independence or it isn’t.
What I mean by that is that the UK will either accept Scotland’s independence after a majority vote at a GE or it will continue to put its hands over its ears and scream ‘la la la la la’ until the end of time.
If it does the latter then we are in the messy territory of declaring independence unilaterally and seeking international recognition despite the rUK’s objections.
If it does the former then it will be showing us the door, that they are pretending doesn’t exist presently, unlocking it, and letting us walk out because the People of Scotland are Sovereign and it is constitutionally impossible to ignore their wishes if they express them clearly in a majority vote at a UK General Election.
It’s a binary proposition. The rUK will either behave one way or another but the only way we will find out if they will behave in the latter manner is if we win a majority of votes at a General Election on a single issue manifesto.
So if we go into that de facto referendum with a platform that risks failing to get that majority we are cutting off our nose to spite our face.
So here is where I resurrect an idea that nearly got me laughed off the face of the Earth 11 months ago.
We stand on a platform of asking the Sovereign People of Scotland to make unilateral changes to the Scotland Act and the Act of Union that protect the existing powers of Holyrood and expand them in such a way as to ensure that Holyrood can call referendums on reserved matters and that those referendums will be binding and self-executing.
If we are living in one of the worlds where winning such a de facto referendum would have resulted in independence we will have the power to hold a referendum on independence whenever we like, we could even afford to lose that referendum because we could always hold another, there would be nothing Westminster could do to stop us, and Westminster would no longer have the power to change our laws without our permission or reduce the powers of Holyrood.
We could even start gradually expanding Holyrood’s powers in a similar manner to the Faroe Islands. Perhaps we could start by taking back power over energy, or pensions, or foreign policy.
We would have maximised our chances of winning a de facto referendum by not alienating those that are still on the fence about independence, we would still have the best possible chance of achieving independence with a legal, recognised referendum with the full franchise and less pressure on voters to make irrevocable decisions, and we would have given Holyrood a whole suite of new powers that would make independence inevitable in the medium term.
But what if they still say no I hear you cry?
Well, we can make it clear in that case that the rUK will be finally and irrevocably turning its back on democracy and the idea of a voluntary union. At that point Scotland will have been illegally annexed without the consent of its population. They will be bricking over the door that they have claimed leads out of the union.
Then, and only then, we’ll have no other choice than to seek recognition from the international community. I don’t think that backup plan will depress a Yes vote because it relies on Westminster acting in a way they have always claimed they will not. The union would be dead and buried as a concept if they did that.
We’ll be saying ‘Show us the door, unlock it, open it, and let us decide whether we walk through it or not”. It needn’t be the end of the UK if we win but it will be the end of the UK as it is presently constituted and it will settle forever our right to leave whenever we alone choose to do so.
That seems like a win, win, win to me.
