As most are aware, the First Minister made a statement to Parliament on Wednesday setting out her thoughts on Scotland’s constitutional future.
Over the past couple of days it has astonished me at how many people there are that cannot see the resulting end to all of this and why the First Minister made the statement that she did.
I understand fully that people want a date, they want to have a date to look forward too and I too fit into that camp, but we must be pragmatic about this. We must first exhaust every single avenue to legitimise the process – of which we are running out of avenues.
I blogged in autumn last year on how I believed this process would unfold, and I am so far being proved correct. At least up until now, and with that, I will propose how I see this ending.
For those of you who haven’t read my blog on the lead up to Wednesday, you can view it here – Do You See it?.
Firstly, it’s worth discussing the whole Section 30 request dilemma and what a Section 30 is, and more importantly what it isn’t.
A Section 30 is the handing over of powers on a temporary basis to the Scottish Parliament on what is effectively a reserved matter. In this case, the holding of a referendum that affects the constitutional arrangements of the UK and one that the UK Government and Parliament must respect the outcome of.
Let me reiterate, it is the POWER to hold the referendum which affects the Act of Union. The Act of Union is a reserved matter and as such, the competency to legislate on that is reserved.
A Section 30 doesn’t make the actual referendum illegal if it is used alongside other public interest (Claim of Right) applications, it may however, if held without first requesting a Section 30 order and not used alongside other public interest applications be termed illegal by the UK Government as its result may attempt to effect change to a constitutional arrangement that is reserved. The UK Government would then deny the legitimacy of the result should it be a Yes vote as the ability to change the UK Act of Union would be deemed to be out with the Scottish Parliaments competency.
The First Minister will of course request approval to hold a referendum via a Section 30 order, this will inevitably be denied. A referendum is the simplest form of process change and one that would be respected on both sides, but the very fact that its the simplest basically rules it out.
It must be denied for the furtherance of the process we want, but also what the UK Government wants.
Denying a Section 30 order will of course create two potential issues for the UK Government, and open up avenues to the Scottish Government.
Firstly, the Claim of Right.
The most recent Claim of Right vote that took place occurred in Westminster in 2018. This was unique in that it was the first Claim of Right vote (of which there have been 3) that was officially endorsed by the UK Government.
The Claim of Right explicitly states that the Scottish people are sovereign and that they can choose the best from of government suited to their needs. More on that part later.
If the UK Government denies a Section 30 order, which they will, the default position of the Scottish Parliament falls back onto the Claim of Right, which the UK Government cannot contest.
In effect, the Scottish Parliament could legislate to form a type of government that they feel best serves Scotland.
The second issue with denying a Section 30 that the UK Government will create for itself is the appearance of being undemocratic.
This is particularly important because for the last three years the UK Government has used the Brexit result, no matter how damaging it may be to the UK population, as respecting the democratic will of the people. They have even used terms, on record such as ‘the population will lose faith in politicians’. If the UK Government rejects a Section 30 on the back of the Scottish Governments vote to legislate (already approved by 69 to 59) and the mandate of the serving government to hold another referendum if there were a material change in circumstance (being taken out of the EU against our will), the rest of the world will see the glaring contradiction in their stance, and so would any international court (or the United Nations), particularly when they endorsed the Claim of Right in 2018.
This isn’t even considering the fact that leading politicians agree that the UK Government should not deny Scots the right to a second vote.
The First Minister announced that a referendum will be held by the end of the current parliament in 2021 – but a referndum on what?
I am still of the opinion that the mainstream perception of a Yes/No question will not actually happen. It’s the logically perceived outcome, but in my view the least likely to occur.
I believe the First Minister is, in effect, posturing (partly) as she knows the UK Government will never allow it, and she will not put the population in a position where we see potential conflicts between the population and the state should she set a date when the UK has said no.
I cannot see her allowing a Catalonia style vote to take place, and to be honest, she doesn’t need to. There are other routes.
The reason I don’t believe the First Minister will put the population in that position is because she is exceedingly competent and politically astute. Politics isn’t about aggravation of opponents, it’s about out-manoeuvring your opponents to achieve your end result.
In this case – independence!
This brings me onto the route map I see unfolding.
A Citizens Assembly! A very welcome move by the First Minister and something I wrote about and confirmed would occur. I’m glad to say that it will.
A Citizens Assembly is an integral part of this process, and one which will cement its outcome.
A Citizens Assembly is deliberative democracy. Canada and the Netherlands have both used Citizens Assemblies, so there is precedence. In other words, the process to legitimise national importance changes are a mixture of voting and deliberation. Not all changes to issues affecting national importance need to be voted on a majority basis. They can be implemented via opinions and deliberation of cross party experts, practitioners, inquires and public consultations.
A Citizens Assembly seeks to empower the people, in all areas, and at random on many topics to effect changes to law that effect the national importance of the state or country.
In layman’s terms, cross body deliberations can create laws rather than simply votes by members of parliament.
This, in my opinion, and as I wrote about in 2018 is the lead up to the inevitable outcome that a vote to change the constitutional arrangements of Scotland, without subverting reserved legislation may not be the only way to effect real and substantial change.
The First Minister is also the holder of the Great Seal of Scotland, which allows changes to scottish legislation to take effect on behalf of the Monarch without the actual signing of documents, coupled with the Claim of Right and assemblies, we are now exposed to a position where a Citizens Assembly could agree a way forward and the prerogative powers as laid upon the First Minister, and as advised by the public, could put effect to a new constitutional arrangement for Scotland without the necessity to vote on it.
This is all depending on a Section 30 request being denied.
The First Minister believes the UK Governments position is unsustainable in denying it, and she may be correct, but should she fail to acquire that Section 30, take confidence in an end coming to this as delivered by the people, rather than one delivered by politicians alone.
No matter what way this unfolds, take confidence in the fact that we currently enjoy one of the most politically astute leaders, of any country, leading us through this process. Her team, in Mike Russell, Joanna Cherry, and Alyn Smith and so on reinforce the few YES.SCOT videos that have come out over the past few days which are re-emphasising the democratic deficit that we find ourselves in.
If you watch those videos carefully, you will pick up on the subtle pattern emerging that the people should be making these choices and that politicians, here and in Westminster are getting it wrong and should not be solely accountable for making the choices.
Will all this take effect by 2021?
As soon as the Scottish Government receives an official response from the UK Government, watch the Section 30 gate slam shut and the Citizens Assemblies gate open, and the resulting independent Scotland gate being unchained.
If the Unionists believe that they can restart a campaign full of No to this and No to that, watch the independence support rise further. Every time someone says no, it reinforces the very problem, particularly when there have been so many broken promises and scottish opinions ignored.
There are a couple of solutions that the UK Government could employ in an attempt to halt the independence juggernaut, namely:
- Call a General Election and within the conservative manifesto, make a commitment to abolish the Scottish Parliament if voted for in a referendum as laid out in the Scotland Act.
- Promise some form of further federalism, or
- Leave the EU without a deal promptly and use the ‘national interest ‘and ‘power grab’ too temporarily suspend the devolution settlement.
I lean more towards number 3 being what will occur, but to be honest, any one of them could.
For now, I’ll close on this…
You cannot stop process. It must end, and end it will, but it may very well end in a way that it cannot be blocked and it need not be voted in on a majority rule.
Everything that has a beginning, has an end, but making sure the end comes from the publics choosing is more important than it ending because it must.