How will Plan B B?

By Alasdair Galloway

Most commentators are of the view that if Nicola Sturgeon asks Boris Johnson for another S30 Order – precedent being the Edinburgh Agreement – the answer will be some variation of “No”, “Not now”, “Now is not the time” or “I see no demand for another referendum”. Or put short – NAW.

At the same time, Nicola has made clear that a referendum must be “legal”. Interestingly, DRoss has made clear that his side would not participate in one that was illegal (does that leave him enough wriggle room, or is “illegal” the same as “not legal? Do “unofficial referenda” count? No doubt Dougie will let us all know in due course).

Anyhow, asking for a S30 is arguably the waste of a stamp, which no doubt will be added to the £20 million being wasted on referendum preparation. Cieran Martin helpfully points out this morning in the Herald, that the Johnson gang have closed off all “legal” approaches to a referendum (as they are constantly so confident they will win, WHY?). However, as Martin points out, ““The goal of the Scottish Government and the wider independence movement is not to hold a referendum. It’s to achieve independence.” Thus, the question can then only be “what next”?

I am obliged to a long time SNP member for reminding me that you don’t tell your opponent in advance what you are going to do. We all know a S30 Order will not be forthcoming, so what is the First Minister going to do then? No matter how much Dross, Sarwar and ACH go on, or McWhirter or Campbell may complain, does it make sense to tell everyone before you have to?

To see what might be possible one place to look is the law, and in this case the Scotland Act 1998, which is where the fabled S30 resides. Yet, S30 is not the really important section. It does little more than set out how the transfer of powers would work – it allows a transfer of powers. But if no transfer of powers is forthcoming, it also sets out the only circumstances where this would be necessary.

It reads

“(1)An Act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Parliament.

(2)A provision is outside that competence so far as any of the following paragraphs apply—

(a)it would form part of the law of a country or territory other than Scotland, or confer or remove functions exercisable otherwise than in or as regards Scotland,

(b)it relates to reserved matters,

(c)it is in breach of the restrictions in Schedule 4,

(d)it is incompatible with any of the Convention rights F1…,

(e)it would remove the Lord Advocate from his position as head of the systems of criminal prosecution and investigation of deaths in Scotland.

(3)For the purposes of this section, the question whether a provision of an Act of the Scottish Parliament relates to a reserved matter is to be determined, subject to subsection (4), by reference to the purpose of the provision, having regard (among other things) to its effect in all the circumstances.

(4)A provision which—

(a)would otherwise not relate to reserved matters, but

(b)makes modifications of Scots private law, or Scots criminal law, as it applies to reserved matters,is to be treated as relating to reserved matters unless the purpose of the provision is to make the law in question apply consistently to reserved matters and otherwise.”

Section 1 I would suggest is fairly obvious and uncontentious. It is only when we get to Section 2 where difficulties come into view. (a) and (d) to (e ) pose no problems – all the action is at (b). Now given that the “Constitution” IS a reserved matter one might imagine that we are sunk here.

Part 2

However, a very prescient letter by David Brookens, “retired solicitor advocate, Whiting Bay, Arran” was published on this matter in the Herald recently (https://www.heraldscotland.com/news/20216109.letters-support-independence-soon-vote/)  

It reads

“I NOTE an interesting contribution from Professor Ciaran Martin (“What’s really behind launch of Sturgeon’s ‘Indyref2’ push?”, The Herald, June 16), but he’s getting way ahead of himself and completely missing the point, in my respectful submission.

Since no Scottish Parliament legislation is yet in place we can only speculate as to what its terms might be but its purpose will not be to “compel the United Kingdom to dissolve itself ”, it will simply be seeking to lay a question before the electorate.

The question for the Supreme Court would be two-fold. First, does the Scotland Act of 1998 give the Scottish Parliament the legislative competence to pass such legislation and, secondly, do the terms of this proposed legislation comply with that competence? Despite the outpourings of politicians and the media – BBC Scotland regularly offends here – there is a respectable body of legal opinion which suggests the Scottish Parliament does indeed have that competence but that is many removes from impacting on the Union itself. The future of the Union will not be affected until Westminster knows the outcome and agrees, if necessary, to respect it.” (my emphasis).

There are two key points in this. Rather perversely let’s take the second one first.

Given the wording of s29 the case being put by the Scottish Government is that their proposed vote doesn’t affect the Union at all. In 2012 there was a view that the Scottish Government DID have the power to take forward a referendum on their own  See https://www.heraldscotland.com/news/13044585.salmond-thatcheresque-rivals-play-hands/ or see https://www.centreonconstitutionalchange.ac.uk/opinions/second-scottish-independence-referendum-without-s30-order-legal-question-demands-political  by Professor Stephen Tierney, director of the Centre for Constitutional Law at the University of Edinburgh). The latter is particularly useful, since he makes clear that the route was not pursued for 2014 was that “regardless of whether one was a Yes or a No voter, it was far better in terms of fostering a conducive environment for debate that a referendum, without the consent of the UK Parliament, was not attempted”. I think, given present circumstances, we can see what he means.

And of course, that support for independence at the time of the Edinburgh Agreement stood, according to Blair McDougall, at 28% and the whole thing should be a ‘walk in the park’, is of course another reason.

Part 3

We are not though in that zone any longer. Another referendum, whatever else it might be, will not, from Westminster’s point of view, be a ‘walk in the park’. However, the Westminster Government may not be able to protect itself by just saying “Naw”, for as Tierney points out whether a Bill relates or not to a reserved matter depends on its the purpose, “having regard ‘to its effect in all the circumstances’” Therefore, the important point here is that it can be argued that since a vote will not of and by itself affect the Union – it won’t abolish it for instance – that organizing a vote is within the powers of the Scottish Parliament. All that is being done is to lay a question before the electorate

Therefore, we must appreciate that all a referendum does is to consult the electorate on independence and does not, in itself, do anything itself to end the Union. Indeed, even in 2014 my own feeling was that had the won that vote this was not the end, though (to be Churchillian) it might have been “the end of the beginning”. Even in 2014 while the political consequences would have been severe had Yes won out (think not acting on Brexit vote), it was not impossible that the politically undead (Forsyth, Foulkes, Lang, Brian Wilson, SIU et al) would have done their very best to ensure that the vote was not acted on. After all there is no law that says that a referendum outcome must be acted upon and the House of Commons is sovereign. Indeed in their judgement in the Miller case re Brexit the Supreme Court makes the point that as Westminster is sovereign whether or not to act on a referendum vote is a political decision, not a legal one.

Therefore, as Mr Brookens helpfully concludes, “The future of the Union will not be affected until Westminster knows the outcome and agrees, if necessary, to respect it”. In other words, a vote, whether organized with or without a S30 Order, is just that – it’s only a vote. The key issue is whether Westminster acts accordingly.

Thus, if what matters is what happens at Westminster, even if there is a S30 order – that is not the end of the matter. The question then would remain, “what next” if we cannot rely on Westminster to act democratically, respecting the outcome of a vote?

This morning Alex Salmond’s speech to the Alba Party is quoted in the Herald. The most important of the three points he makes is that “the SNP should cease referring to a section 30 referendum as the “gold standard”. It isn’t, but rather one of a number of ways to give democratic substance to Scotland’s national right of self-determination” and in this regard he is right. If it is blocked off to us, the purpose of the campaign, as Ciaran Martin points out is to win independence, not cool our heels while a succession of Westminster Prime Ministers refuses a Section 30 Order.

In passing, I think it is becoming most important to resist the portrayal of a referendum as “illegal” if it does not come with a Section 30 Order. This is not the case. A referendum that had no implications for the constitution (or the monarchy, or the other reserved matters) – i.e. it was not outwith the Scotland Act – would be perfectly legal. The problem in that case though would be to get Westminster to “respect” the vote. How?

Once again I have a broad agreement with Salmond that what is needed is “a determined campaign of civic action, parliamentary intervention and diplomatic initiative to press home Scotland’s Claim of Right.”

Craig Murray put is slightly differently – and typically more belligerently- five years ago “One day, all supporters of Independence are going to be forced to get their heads round the fact that London is going for the Madrid solution, and we are not going to achieve Independence without using peaceful, non-violent routes which are nevertheless going to be deemed illegal by the Establishment.” https://www.craigmurray.org.uk/archives/2018/10/taking-the-radical-road-with-auob/

Let’s see what Nicola has to say on Tuesday, but the ground for a S30 looks treacherous, at best, and difficult for any other referendum, both before and afterwards. In hearing her, we should be clear that this is no more than another move in a game of multi-dimensional chess.

21 thoughts on “How will Plan B B?

  1. A Top QC Once imparted this piece of Wisdom to me
    ” The Law is always simple it is how people interpret the Law that is complex ”
    So on that basis let all put the legal route to a referendum to one side
    Then apply universal unequivocally truthful facts
    That can never be avoided
    1.You can not govern without consent. End off
    2.We are in a union with England and Westminster
    3.Think of this as a marriage contract
    4.Now think of oath ” Till death we do part ”
    5. Now think of a woman in a broken abusive relationship
    6.Westminster for argumental sake is the abusive Husband
    So what does the Woman do
    1.Serve notice “it is over ”
    2.Sleep in separate room
    3.Deny all intimacy if Westminster persists this is rape/ sexual abuse
    4.Commence preparing to get out and start a entirely a new life and future for yourself
    5.When the ground ready walk out the door for the very last time
    6.Offer your ex.a harmonious ongoing honest decent relationship
    If Westminster ex hubby refuses To hell with him, he soon will come to his senses,if not he burns in hell
    Now apply all and take things forward on the basis
    That we have had enough, cannot take any more
    This is actually quite simple and at the end of the day that is exactly what will
    Transpire
    Suck that up Westminster
    Like it or not

    Liked by 6 people

    1. You have heard of the concept of ‘honour killings’ haven’t you? I can tell you right now, in the scenario you depict above that is how the British would proceed in order to retain control of Scotland’s assets – they need what we’ve got and they know it.

      When it comes to democracy the British ruling class are just a more inbred sleekit version of the gangsters in Moscow, and when push comes to shove they’ll move in to apply direct control from London.

      Democracy is dead in Scotland, all we have at this point is Scotland v Britain at all political levels.

      Liked by 4 people

          1. Jan
            With due respect then in this case the eyes of the whole world shall be upon them
            And the judgement and sentence passed will for sure boot them to Hell from whence they came

            Like

      1. It is a huge worry indeed, in how far the BritNat state will go stop a referendum from taking place. Some dodgy folk at the helm in London and their dodgy pals in other very dodgy countries.

        Liked by 2 people

  2. The question isn’t whether the SG or indeed more importantly and correctly the Scottish parliament can legislate to hold a referendum on whether or not Scotland leaves or remains as a partner in the Union. No, the question is whether or not westminster have the authority to prevent it. I’d remind everyone that the authority cited by the UK gov for reserved powers within the Scotland Acts is the Treaty of Union, nothing else. By the way the SG didn’t ask for a Section 30 agreement in 2014.

    Liked by 3 people

    1. That last sentence is very interesting. So why did Cameron do this? Was it a wish to be emollient? To keep the whole thing within the terms of the Westminster Scotland Act? After all, he could hardly say “No” since the Unionist parties had been goading the SNP most of the previous Scottish Parliament – and they had a majority to hold an election?
      Was it because support for independence was known to be much lower than it is now (according to Blair McDougal it was about 28% at the beginning of the whole thing) and would be dead easy, a ‘ walk in the park’ as he thought the Brexit would be as well. Not a good judge oor Dave!
      Or was it because there was a material suspicion that Salmond’s gambit of an “unofficial referendum”, organized and run by the Scottish Government, might just be given the thumbs up by the Courts? And what a lot of trouble that might cause – imagine if that was the current precedent? It wouldnt be certain – courts change their minds. Or perhaps because it might give the Scots a bit of a conceit of themselves organizing their own vote – better for it to be WM largesse?
      From the tone of his comments to the Alba Party I wonder if Alex knows he was suckered and that he might have been better pressing on with his own Plan A? My own guess that this is part of the reason why WM were keen on a S30 at that time (just not any more), aided by the lead that “No” would start with.
      However , all of that pales into insignificance when we have to recognise that a referendum will never be enough. Even if the vote was 99/1 for us, Westminster is under no legal obligation to act on that vote.
      One way of looking at this is the way the Unionists will – that we have to obey the law. The problem here is that the law is itself a political act. Sometimes when I hear some of them witter on about legal and illegal and the law, it seems to me as if they are talking about the 10 Commandments and that they did indeed come down from God. The counter example is Spain/ Catalonia. The Spanish constitution says that Spain is indissoluble so no matter how much you pesky Catalans – or your Basques – go on, you cannot be independent because it’s the law, the constitution says so. But these, no matter how we dress them up are political conclusions, and most certainly not acts of God, or acting against it the start of the slippery slope to perdition. Craig Murray’s observation about the “Madrid Strategy” is imo, bang on the money, and the sooner we understand that, and act on it, the better. Salmond’ well illustrates the argument when he says “any gain for Scotland will still have to be extracted like pulling teeth. It will require a determined campaign of civic action, parliamentary intervention and diplomatic initiative to press home Scotland’s Claim of Right.”

      Liked by 3 people

      1. Good comment and I enjoyed reading it. The introduction of the Catalonia/Spain argument into the equation so frequently used by Murray rather muddies the constitutional waters, deliberately I think since the man’s no dullard.
        Much depends on how the FM frames the way forward for Scotland on Tuesday and since she has already stated where her authority for this referendum comes from, I have high hopes for the route she will take. Worth noting that the Queen is now on public record as saying she will accept a Yes vote which rather limits any action westminster might contemplate, assuming she’s still with us of course.

        Liked by 1 person

  3. O/T

    From The National

    ”The man who made the complaint about Gibson is the same young SNP staffer that was targeted with an “unwanted sexual advance” from SNP MP Patrick Grady.”

    Liked by 1 person

    1. Yes and they went straight to the media who only too readily acted judge and jury and witch hunter all in one. Great distraction from the proven cases of actual criminals in the Tory party.

      Like

  4. Good news.
    DRossie will sit out our indy referendum.
    No TV appearances for the Boy Blunder, either.

    He is too busy practicing flip-flops for the U-turn olympics.

    Like

  5. “Mr DRoss, what is your policy position on a new leader of the Tory party”?

    “Easy one. Um working tirelessly to make sure Boris does not complete his third term in office….eh, third??…whit??…
    or maybe no….um….em….urnae..
    um……
    or.. urnae…………………..um”?

    Whispered aside….”Glen, whits the feckin’ answer”?

    Like

  6. I shall leave the legalities of what constitutes a ‘legal or illegal’ Referendum to others but have added an excellent article (which has featured here before) in the iscot mag which may throw some light on the debate and more importantly set out a possible way forward. I’m in my 70’s now and already excited by the challenge that awaits us and hope others are also. As before in 2014 I will willingly be on as many doorsteps as I can manage to argue the case and trust many others here and beyond will be joining the cause in name of freedom and a better fairer society . Nicola and Co do not desert us in this time of desperate need.

    https://www.iscot.scot/article/news/section-30-is-not-scotlands-salvation/

    Liked by 1 person

  7. International Law. The right to self determination. If people vote for it. The Queen and Johnston do not have the authority. Under the terms of the Union agreement. They will not last forever.

    Next election they will be gone. Along with the terms of the Union settlement. . Scottish sovereignty was guaranteed forever.

    Liked by 1 person

  8. The legality of a referendum is a bluff first played by Moore as SoSS in the Cameron government, it remains an untested opinion in Law for the very good reason that cause and effect are separated and the opinion would fail.

    The Tories going for the double bluff of playing silly buggers over a S30 may please their more rabid members and the media, but this could well blow up in their faces politically as the majority of England see Indyref2 as fully justified.

    The media’s usual anti-SNP/Indy tilt went into full campaign mode weeks ago, but it is the FM’s Tuesday statement which has the media in a right old lather before a word is uttered.
    BBC Scotland’s “The Sunday Show” with Martin Geissler did their usual laboured worst to combine both, but it was this nonsense from Andrew Kerr which astonished most, “apparently”….”maybe”.. a national broadcaster –

    Like

  9. … the initial contribution I applaud but it’s all academic until we we ‘win’ the referendum. Present numbers just aint good enough.
    Too many decent Scots unsure, sitting on the fence waiting for answers to same questions asked last time. Bad enough unionists that will use all means possible both foul or fair.
    What are we doing to make sure the message is out there, clear and true.

    Like

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