The anti-independence parties and their friends in the media are convinced that the British Government has “blocked off all legal routes to indyref2 next year,” according to a headline in the increasingly British nationalist Herald newspaper on Sunday. The actual article was more nuanced, Professor Ciaran Martin, the man responsible for the quote, which the paper wrenched from all context, also said that he thought that some form of consultative referendum might be legally possible, which isn’t quite the absolute closing down of any legal route to a referendum next year which was screamed by the headline.
Under what passes for a constitution in this increasingly disunited Kingdom, all referendums are consultative anyway. The EU referendum was a consultative referendum. The Edinburgh Agreement underpinning the 2014 referendum was a political agreement, it did not make the result legally binding. What it did was to put the referendum itself beyond legal challange. In the event that Yes had won, Westminster would not have been legally compelled to implement the result. The fundamental principle of the British constitution is that the sovereignty of the Westminster Parliament is absolute. There would have been a massive and overwhelming political imperative to implement the result, but as we all know, the British nationalist parties tell lies.
However even if the British nationalist parties had indeed created an absolute slam dunk and had blocked any possible route to a lawful independence referendum, this would not be the death blow to any chance of Scottish independence that some of the frothier British nationalist who infest the comments section of the Herald seem to think it would be, and that was the real thrust of Professor Ciaran Martin’s comments, for all that they were cherry picked by the rabidly anti-independence Herald in order to generate a click bait headline.
Professor Martin was pointing out that resorting to legal means to thwart the operation of Scottish democracy is a short term tactic which risks backfiring in the longer term. He cited the example of the infamous 40% rule in the Scottish Assembly referendum of 1979. It was a wheeze which succeeded in blocking Scottish demand for some form of autonomy in the short term, but the anger it generated and the way in which subsequent Conservative governments ran roughshod over the will of the Scottish people in the following years converted the desire for a Scottish Parliament into the settled will of the people of Scotland and when the Parliament did come into being it was considerably more powerful than the limited proposals of 1979 for an assembly had foreseen. The narrow victory for very limited Home Rule in 1979 became overwhelming support for a much more far reaching form of devolution by the time of the referendum of 1997.
Right now opinion polls suggest that support for independence is pretty evenly matched by opposition to it. The real point that Professor Martin was making was that Conservative intransigence on the issue of another referendum, just like Conservative intransigence on the issue of devolution in the 1980s and 1990s, risks converting support for independence into the settled will of the people of Scotland.
A point he did not raise, but which is obvious to anyone who has been paying attention to the Scottish constitutional debate is that even if it were possible for the Conservatives and their fellow travellers to create a legal bar tpreventing Holyrood from holding another independence referendum without the consent of a Prime Minister who can not even count on the support of most of his Scottish MPs, they still cannot prevent the people of Scotland from expressing their democratic will in other ways, and the more that they close down the path which led to the referendum of 2014, the greater the likelihood that an alternative route will enjoy widespread support from an increasingly alienated Scottish electorate.
The key problem for the anti-independence parties is that they have no real strategy for preventing Scottish independence. All that they have are short term delaying tactics. There is a fundamental contradiction between the assertion of the Unionist parties that the people of Scotland have the right to decide the future of Scotland and their refusal to specify how that right can be exercised. That’s an avoidance tactic that cannot last forever even with the assistance of an overwhelmingly anti-independence media. In an interview with the BBC’s Sunday Show Douglas Ross pointedly refused to say exactly how how Scotland could exercise its right to self-determination if not through a referendum, even though it was pointed out to him that the United Nations deems this a to be key principle of democracy.
As Professor Martin noted,the current constitutional position in the UK is that Scotland is in principle allowed to choose independence, but no matter how Scotland votes, Westminster blocks the implementation of Scotland choosing to revisit the question of independence. At some point this contradiction will have to be resolved. It cannot go on forever. The independence question is not merely mainstream in Scottish politics, it is the single most important issue in Scottish politics, the prism through which all other matters are reflected. It is not just going to go away, no matter how much the likes of Douglas Ross or Anas Sarwar wish it would. If is natural course is blocked, it will find another path, whether a plebiscite election or some other democratic means, and by that time the parties of Ross and Sarwar will have lost all influence over the course of events.
The fact is that the people of Scotland have clearly and unequivocally stated their demand for another independence referendum through the only democratic avenue open to them an election to the Scottish Parliament. For a party with just six Westminster MPs in Scotland and only 31 MSPs at Holyrood to resort to legal chicanery to block the will of the people makes a mockery of democracy.
Tomorrow (Tuesday), the First Minister will lay out the Scottish Government’s strategy for holding a lawful referendum even without the consent of the Prime Law Breaker. Hopefully we will then see how the Gordian knot can be cut through.
Many thanks to everyone who kindly supported the annual fundraiser. It’s always a nerve wracking time, I’m literally asking people to put their money where my mouth is. I’m delighted to say that the target of £5000 wasn’t just reached it was smashed. From all sources, the Gofundme page, PayPal donations, and direct donations by cheque or into my bank account, the grand total raised was an incredible £11,094. In my wildest dreams Icould not have expected it to go so well and my deepest thanks to everyone who contributed. It is heartening to know that so many people value my writing and that there is still an appreciative audience for a positive pro-independence message that concentrates on making the case for independence and debunking the arguments of the real enemies of Scottish independence, the Conservatives and their little helpers. That’s what I will keep doing thanks to you.
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