By Alasdair Galloway

In today’s edition Tom Gordon suggests we are approaching the end point of Nicola Sturgeon’s time as First Minister and leader of the SNP. He may be right in this assertion or he may be wrong. I certainly wouldn’t adopt his certainty.

Assuming she goes on to 2024, she would have been in the job for 10 years, or nearly as long as Thatcher and Blair, though much longer than any of the last four incumbents. Then again, the contemporary example is perhaps Angela Merkel, colloquially known in Germany as “mutti”.

While I have to congratulate Mr Gordon on appreciating what many other commentators have failed to do (or chose not to do) by recognising that when a lawyer (such as the current Lord Advocate) says they are “unlikely to have the necessary degree of confidence” that Holyrood has the powers to call a referendum, it doesn’t mean that they think they don’t, but that the issue is unclear, with competing views and has never been tested in court. As Gordon says, somewhat colloquially “Help me out. Tell me what to do.” So, one cheer for Tom.

However, his legal analysis of the Supreme Court case, which he feels confident will light the blue touch paper to the First Minister’s resignation, is wanting in several respects.

He claims the Lord Advocate’s argument that “a referendum asking folk their view on independence would have “nil” legal effect, while asking the Court to ignore the politics and stick narrowly to the law” errs in two respects.

First, referenda in legal terms have no standing. Referenda can be ignored by politicians, unless there is a legal commitment (eg in legislation for the vote) to the contrary. Spoiler – this has never happened. Therefore, referenda in legal terms never have had more than “nil” effect.

Of course, the practicalities are different. Imagine if you can, that Cameron had decided the day after the Brexit vote to say “sod it, we’re not leaving. It’s totally mad”. If Farage and the others had gone to court, they would have won nothing. The political and social consequences, though, would have been horrible – one MP had already been murdered during the campaign! But in strict legal terms the vote counted for nothing until it was endorsed by the House of Commons.

Secondly, what is the point of going to the Supreme Court if not to have the law clarified? The Supreme Court are the arbiters of all things legal, but all things political are for the politicians (and ultimately the electorate). Is it really for the Supreme Court to look behind their own legal judgement to assess the political consequences?

As Dorothy Bain is quoted in Gordon’s piece “Beyond the immediate effect of ascertaining the will of the people of Scotland, the practical effects of an advisory referendum are speculative. The court ought not to engage in such speculation because it is not equipped to do so.” Gordon’s anguished cry that “if the Court isn’t equipped to recognise the blindingly obvious, then I’m not sure what it is equipped for” really isn’t good enough. You see Uncle Tom, it’s fu’ o’ lawyers – the law is what we do. Politics is along the road.

Next, concerning the SNP joining the case, he quotes Roddy Dunlop that the intervention of the SNP in the court hearing, “does have the potential to rather cut off at the knees the protestations that there’s no politics involved in the reference”. Far be it for me to disagree with the Dean of the Faculty of Advocates, but why would any intervention by the SNP of necessity involve politics? Might it be that the SNP case would focus on such as the Scottish Claim of Right, which sought to bolster the position of the Scottish Parliament, later affirmed by a 1703 Act of the Scottish Parliament, which was retained after the Act of Union in 1707. They might also cite various UK commitments in international law – for instance the right to self-determination. According to the International Covenant on Civil and Political Rights, “all peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.”

Gordon’s article is typical of the structure of argument used by your former columnist David Torrance – namely to start from the conclusion and work back to the question, selecting and torturing evidence as required as you go. For instance, I find it hard to believe that your Scottish Political Editor is unaware of the legal standing (or lack of) of referenda. I find it no less unlikely that the Supreme Court will sally forth into the political realm that Mr Gordon deems pretty much certain. To be repetitive for reasons of clarity – and I am sure he understands this as well – the Supreme Court is the arbiter of law, not politics. If the Scottish Government’s case stands up in law – and I accept it might not – then the political consequences are for someone else, but not the Supreme Court. More likely, if the Supreme Court case is won by the Scottish Government is that Westminster will simply change the law – or “clarify” it to use Westminster speak – to close off the space the Supreme Court has found to exist.

ENDS

Will I send this? Did I send this? Nope, for three reasons.

1. It’s too long (about 840 words), though it could be edited
2. I would have to take out the vitriol about Uncle Tom (if you think I might be trying to make a point here, you might well be right!)
3. But most importantly, it wouldn’t be published.

I cannot remember – or cannot be bothered counting them (for they are on my computer) – how many letters I have written criticising Tom Gordon. The one thing they all have in common is that they have never been published. Not one. I dare say a proportion of them were just crap, or that the ‘agenda’ changed, but ALL of them?

I first got involved in this sort of malarky shortly after retiring by posting on the Herald readers’ forum, which was a different place then compared to what is now. Then, it was under the supervision of the late Callum McDonald who ran the forum with a rod of iron. Disputes between the legendary OBE and I would be deleted by Callum as we “were just squabbling”. In passing, I understand he now posts as Mr X, even though he knows damn well that Callum wouldn’t have had him anywhere near his forum with that name.

Therefore, I was flattered to be asked by Callum to review the new rules for the forum. This went pretty well. He would explain why some of my suggestions were not acceptable/ workable, but would make changes I had suggested if he felt they were right.

There was though one area on which we found agreement impossible. That rule is still there

“The MSM and us with minor changes

Hint: if you believe we’re just a part of the mainstream media (MSM), and you want to launch a virulent, unqualified attack on said MSM, please don’t be surprised if your criticism doesn’t appear on our (MSM?) site. Wider discussion of the role of the media will usually be acceptable, but please don’t point readers to other sites which are not under our control.”

Callum was very clear that as the employer of journalists the Herald had a duty to ensure their health and safety at work. My response was that sometimes the journalist was part of the story – for instance if I took offence at how a particular event has been reported, should I not be able to say so. The above is a small example, but the Nick Robinson “he didn’t answer” affair (even though not the Herald) is another example.

While I had every respect for Callum – and still do – I still think he was wrong. Journalists have a privileged position in the msm, so how wrong is it to challenge them when, in your view, they are wrong, or merely to disagree?

And criticism is just that – it’s the suggestion that the author is wrong, and needs correction. Criticism is not writing to say that you are so enraged that you are coming down to the Herald office with a big chopper to cut his head off. In short, journalists need to expect criticism (just as footballers do for instance), but there are no health and safety issues. That is just hiding.

Much the same thing still goes on today. I reviewed the letters over the last week and not one – NOT ONE – takes issue with anything written by the Herald’s journalists. Well, ok there is one – Kirsty Strickland is “criticised” by Gerald Edwards, but I would plead that anything by Dr (Retired Dentist!) Gerald Edwards really doesn’t count.

If you want an argument for blogs and other online sites like this, then could it be bettered? Our newspapers – and the Herald still has pretensions to ‘quality’ – not only have a privileged position in public debate, but work hard to exclude other perspectives (and yes, I would include the National in that criticism). Our public debate has become infantilised by the need to keep to the party line. What fun the Unionist media had trying to find any difference between, for instance, something Alex Salmond had said and something Denis Canavan might have said. This would then be bigged up so that the headline might read “Yes in chaos as …….”

A public debate as Jurgen Habermas reminds us has four necessary qualities

1. Every subject with the competence to speak and act is allowed to take part in a discourse.

2a. Everyone is allowed to question any assertion whatever.

2b. Everyone is allowed to introduce any assertion whatever into the discourse.

2c. Everyone is allowed to express their attitudes, desires and needs without any hesitation.

3. No speaker may be prevented, by internal or external coercion, from exercising his rights as laid down in (1) and (2).

Loud and messy, yes it would be. But perhaps its relevance is more to note not just how far we are from this (probably unrealisable) situation, but that we are moving away from it – most importantly that increasingly participation in public discourse is privileged, as above.