The way out

There’s been some commentary in the weekend papers to the effect that Scotland isn’t going to get a referendum before 2021, and possibly not after that, because the British government is going to remain implacably opposed to a Section 30 order. They suggest that what Nicola Sturgeon has done with her announcement this week is an attempt to let down the party faithful, because the only way in which she will go for a referendum is with a Section 30 order. Since there is no current sign that the UK government is going to allow one, then we’re never going to have a referendum, or at least we’re not going to have one any time soon.

David Mundell in an interview this weekend doubled down on the refusal from Theresa May, and suggested that no Conservative government would ever grant a Section 30 order under any circumstances at all. Clearly, David is talking way above his pay grade here. Although to be honest David would be talking way above his pay grade if he suggested chocolate hobnobs instead of bourbon creams as the biscuits to go with the tea and coffee at cabinet meetings. Such a profoundly undemocratic stance might play well with the Tory party faithful in Scotland, and the green ink SiU ranters who infest the comments sections of Scottish newspapers, but in the real world it’s an admission that Scotland isn’t in any sort of union at all and is merely a possession of the British state. It would not survive an election in which Scotland returned a strong majority of pro-independence representatives with a direct mandate to negotiate independence.

In his article for the Herald this Sunday, Ian McWhirter dismissed any possiblity that there might be any attempt at UDI, a referendum without a Section 30 order, or a de-facto referendum by turning Scottish elections into a plebiscite on independence in the event of a persistent refusal from Westminster to engage with a Section 30 order. However that would seem to concede that Scotland cannot have a say on independence unless Westminster is disposed to allow it, and if Westminster is never disposed to allow it then Scotland is effectively trapped within a dysfunctional UK forever, no matter what it wants. Ian doesn’t offer any way out of that trap. Certainly diehard opponents of independence want us just to have to put up with it indefinitely. However that is not a situation that Nicola Sturgeon, or any SNP leader, is going to tolerate.

Certainly a Section 30 order is, as Nicola Sturgeon herself called it, the gold standard. It means a referendum that is recognised by Westminster, in which the anti-independence parties participate fully, and whose result would be accepted by both parties. That means a result in favour of independence would be recognised by the UK, and equally importantly would be recognised by the international community. However there is also the reality that the more that support for independence increases in the opinion polls, the less likely it is a British PM is going to be disposed to grant a Section 30 order. No Prime Minister wants to go down in history as the British Prime Minister who broke up the UK.

Suppose there’s never going to be a Section 30 order, how do we get out of the trap that opponents of independence tell us that we are in? Ian is correct that there will be no UDI. There are those on social media who insist that the Scottish Government has the right to rip up the Treaty of Union and walk away, making a declaration of independence without any further ado. That’s not going to happen. The reason it’s not going to happen is because there is currently no clear democratic mandate for it to happen. The current Scottish Government was not elected on a mandate to unilaterally declare independence, it was elected on a mandate to hold a referendum should there be a material change in Scotland’s circumstances within the UK. We’ve not had that vote yet. No third country would recognise Scottish independence under those circumstances, and in independence, it’s international recognition that really counts. But worse than that, UDI without a clear democratic mandate would risk the British government taking action to impose its rule on Scotland by force. That is in no one’s interests.

We need a clear and unequivocal democratic mandate which says that a majority of the people of Scotland want independence. There can be no declaration of independence or recognition of Scottish independence until that happens. So ignore the UDI-ists on social media. They are angry and frustrated, with good reason, but they’re not proposing a realistic path to independence.

The next possibility is a referendum without a Section 30 order. Those who say that such a referendum would be illegal are making a political claim, not a legal statement of fact. No one has ever tested the legality of such a referendum in the courts so no one knows whether it’s illegal or not. However the fact that the Scottish government doesn’t seem to have any plans to introduce a court case to test the legality suggests that they have no plans to go down that route. The reason is not so much to do with legality, and more to do with the practical reality that a referendum without a Section 30 order would most likely be boycotted by the anti-independence parties. If opponents of independence don’t participate, it becomes very difficult to ensure that the referendum produces a meaningful result.

If Scotland was a country which had a media which was as evenly balanced on the subject of independence as the population at large, then a referendum without a Section 30 order might be a worthwhile route. We might then have a chance of getting a result that would clearly show that independence would have won even if opponents had participated. We’d have a good chance of a very high turnout. However in order to put the result beyond any doubt, we’d need a result which would show that a majority of the entire electorate wanted independence, and not just a majority of those who turned out to vote as in a normal ballot. With anti-independence parties boycotting the vote, they’re going to claim that everyone who didn’t vote voted no. No normal ballot ever gets 100% turnout, so we’d be up against an artificially high threshold.

Even so, this strategy might still be worthwhile if we had a representative media, but that’s not the Scotland that we live in. We live in a Scotland which doesn’t have a flourishing domestic broadcast media. Worse than that we live in a country where every single print newspaper bar one is opposed to independence. Should there be a referendum without a Section 30 order, even one which had been proven to be legal by the courts, it would be boycotted by the anti-independence parties. All that we’ll hear in the press and on the BBC will be the constant insistence that there’s no point in voting even if you do support independence, because the referendum result won’t be recognised. The vote will be dimissed even before it’s happened.

That leaves turning the next Holyrood elections into a de-facto plebiscite on independence. That shouldn’t be left to the SNP alone. It should only take place with a pan-independence alliance, formal or informal, ensuring that all parts of the independence movement are recognised. Not just the SNP, but also the Greens, and the minor parties as well as the non-party grassroots movement. That would require cooperation and collaboration to ensure that the pro-independence vote is not divided, and a mutual agreement that pro-independence parties and organisations were standing on the sole mandate of ensuring that Scotland has a right to determine its own future, even without the consent of Westminster.

Ian McWhirter ruled this out, as he seemed to believe that it would turn into UDI. However that’s not actually necessarily the case. The real value in turning the next Holyrood elections into a de-facto plebiscite on independence is to create political pressure on the British government that it cannot ignore. A pro-independence result in such a ballot would provide a clear and unequivocal mandate which would allow the Scottish government to ask third countries to recognise Scottish independence and to put pressure on the British government to negotiate. It internationalises the dispute, precisely at a time when the UK will – if Brexit occurs – be seeking to make trade deals and to agree a future relationship between itself and the EU. There will then be immense international pressure on the British government to resolve the situation. This is, after all, not Spain. Successive British governments have explicitly recognised that the people of Scotland have the right to decide for themselves what the political future of Scotland should be.

More importantly, a win for pro-independence parties under such circumstances produces a domestic democratic result which has political effect, it cannot be ignored like an opinion poll can be ignored. It would force the British government to the negotiating table, and would force them to consent to a Section 30 order – because the alternative would be a Scotland which already possesses a democratic mandate for independence. Scotland would then go into an independence referendum having already voted for independence and facing British nationalist opponents who are trying to defend a UK which had to be forced, kicking and screaming, to recognise the democratic will of the people of Scotland. We’d be in an incredibly strong position. We be campaigning against a union that had killed itself and had revealed its true colours as a unitary state which regards Scotland as a province.

What it is important to remember is that we’re not there yet with any of the scenarios detailed above. We have not got to the end of the Section 30 road. This current Prime Minister who is notable only for her instransigence is being predictably intransigent, but Theresa May won’t be around much longer. Given the disposition of the Conservative party membership, she will be replaced by someone who is even more hardline on Brexit than she is. That will only boost support for independence in Scotland.

There will almost certainly be European elections, there may well be a snap General Election and the independence parties are poised to do well. If there is a General Election, the SNP will certainly increase its representation. It could even well end up holding the balance of power.

In those votes it’s hugely important that supporters of independence turn out en masse to support independence parties. It’s only by increasing the number of political bums on parliamentary seats that we can demonstrate that there is an appetite in Scotland for independence and a demand for a referendum. In the short term, the priority is to put pressure on the British state for a referendum. We can do that by continuing to campaign, to persuade, to convert people to the cause of independence, and also by ensuring that pro-independence parties have increased representation in all of the ballots that take place between now and 2021. We can do that by continuing to point out that a British state which refuses to allow Scotland to decide on its own future is a British state which doesn’t recognise Scotland as a partner in a union, but which regards it as a possession.

The crucial point however, is that one way or another, Scotland will have a vote on its future, and we do not require the permission of the British government to do so. There is no trap, only a failure of imagination. There is a way out. The campaign has already begun.

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36 comments on “The way out

  1. Jams O'Donnell says:

    In the same way as we could turn “the next Holyrood elections into a de-facto plebiscite on independence” we could turn it into a de facto vote on repudiating the Act of Union, and save a lot of time and trouble. All the SNP has to do is put that in its manifesto. The UK and other countries tear up treaties all the time. (Not that it’s a good example, but just look at Trump).

    • Illy says:


      We should really stop trying to ask if we can ask.

      Hell, I’d be up for turning the EU elections into a plebiscite on Scottish Independence.

    • Lorna Campbell says:

      They would much rather allow previous NO voters the opportunity (again) to vote down independence. I don’t care how democratic that sounds, it is potential suicide, as the Quebecois independists discovered when they lost the second referendum, too. The SNP has either lost the plot or has no intention of taking us to independence, however daft that might sound. I fear a Labour moment is upon them, when bums polishing death becomes more important that their raison d’etre. When you analyse what has actually been said, we are treading water and will go on treading water, while the faithful knock their guts out campaigning. Classic diversionary tactics.

  2. Douglas Deans says:

    Absolutely spot on Paul, thanks.

    I actually think that we are stronger if we avoid getting into ‘if you don’t give us a section 30 order then we will…’ which can be mistaken for an idle threat.

    Making the countermove explicit boxes us in as a hostage to fortune -who knows what exact twists and turns the future will take?

    We must, however, keep countering the ‘Illegal referendum’ meme that they are trying to build up. It’s not illegal without a section 30, just less clear cut.

    By simply making it clear that Scots will be given a choice, even if Westminster tries to block, puts them on the back foot. How lucky do they feel? (not very, I suspect!) Trying to convince us that we are equals and should stay after that would be very difficult.

    They know full well that the Independence movement is not going to say ‘no section 30? Ah well, we’ll just give up then…’

    Leave them to sweat for now.

    Ask for Section 30, then make the next move.

  3. Andy Anderson says:

    Excellent article Paul

  4. Andy Anderson says:

    Excellent article Paul

  5. Jim Draper says:

    MacAlba Press has an excellent blog on this Paul. It sets out the legal process that ScotGov will follow. Some commentators think that ScotGov are kow-towing to WM in presenting a Section 30 that will be refused. They’re not. Everything is about due legal process and how Scotland is viewed by the World Community. Following any refusal by Westminster to agree to a Section 30, ScotGov moves to Scottish Law and “Claim of Rights” that WM is powerless to overrule. This enshrines Scottish Sovereignty and the right of the Scottish people to decide their own future if it’s decided that Scotland’s future is best served away from the UK. No doubt, the legislation referred to by the FM in her statement intends to ringfence some aspects of Scottish Law before we move to IndyRef2 @blogAlba …

    • weegingerdug says:

      That’s an interesting blog, but it seems to be arguing that independence is possible without a vote from the people of Scotland. I disagree with that. We need to have a vote which gives an explicit mandate for independence.

      • Jams O'Donnell says:

        Yes absolutely – but go straight to repudiating the Act of Union – as a manifest commitment – get voted in and pass the legislation.

      • Jim Draper says:

        I agree Paul. I don’t believe for a minute that the SNP would jump a step in that respect, the Party has always been about a democratic vote on independence. However, if the Claim of Rights could be used to overrule Westminster’s attempt to block IndyRef2 by refusing Sect 30, then Westminster is nicely manoeuvred into a legal cul-de-sac. You touched on this yourself in your previous excellent blog “Anyone who insists that it (Referendum without a Sect 30) would be illegal is voicing a political opinion, not making a legal statement of fact.” …

    • The claim of rights not only says that the Scottish people are sovereign but that the English government is sovereign, not the queen. That was why the claim of rights was passed unanimously by Westminster in July 2018 To keep ENGLISH Parliamentary sovereignty in the case of the break up of the Union.

  6. ScotsCanuck says:

    another enjoyably thoughtful read, Paul.

    I get the feeling that “something is going to give” very soon and the change of P.M. (as you suggest) might just be that tipping point.

    The Tories (or Labour for that matter) south of the Border have no interest in Scotland other than it’s Natural Resources and would be ambivalent about it’s departure, especially as it removes a large number of “Remain” voters.
    This could well be a factor in Nicola’s thinking regarding a Section 30 Order for IndyRef2.

    These are very dynamic & interesting times in which we live !!

  7. Alba woman says:

    Got my polling card for European election yesterday!

  8. vellofello says:

    We are in a Treaty of Union with England, and it requires the cooperation of both parties for the the Treaty to continue.Westminster has assumed powers beyond it’s remit and so the Treaty is in jeopardy.

    “A referendum result recognised by Westminster and asking the international community to recognise the result?”. Really? That’s just so peely wally.

    – ” I have goods to sell, do you have money?” – The international community will do what it perceives to be best for them.I’d wager that the EU will view an independent Scotland within the EU as best for the EU.

    And finally. The courts, the laws …etc., are there to serve the interests of the State.And so we must demand that Scots Law serves the interests of Scotland.

    Section 30? Stick it up your arse.

    Easier to get forgiveness than permission.

    McWhirter, nice guy, writes for a living, “what do you want me to write?”.Journalists in Scotland have lost their audience.

  9. vellofello says:

    To follow on from my post above – Fiscality: excessive regard for legal matters.

    I’m frustrated at the reverence given to laws, and devised by Others, against our interests.. Remember, way back, the imposition of the 40% ruling on devolution, and the deceased being counted as Nos etc? Scotland was powerless to resist that imposition. If Westminster decided to apply a 60% ruling for Yes at the forthcoming IndyRef would you meekly conform? And how could you resist?

    I am absolutely not proposing some rebellion against the law, I am asking people to consider the processes of lawmaking as processed by Westminster.

    Did you notice the audience reactions on Question Time last night? Worrying.

  10. Macart says:

    Sounds good t’me. 🙂

  11. Liz g says:

    I do worry that it it comes to it. The 2021 election being a mandate to for a referendum to bring Westminster to the negotiation table,leaves us open to “Nicola just keeps seeking mandates” ( I know it’s more than that , but!! ) and is never going to actually call one!!!

    I think ” A Mandate to end the current Treaty of Union ” would be a stronger position.
    Firstly.. It sends the message that, in order to win a No vote,they’d need to agree a section 30…. Be in it to win it,so to speak!

    But mainly…
    To end the Treaty itself and bring Westminster to the negotiation table means that Scotland would be voting in the forth coming referendum for either complete Independence or a brand new Treaty ( and I don’t mean ACTs of Union I mean TREATY),either way …….
    We would be ending the current Treaty at the 2021 vote and either finish up with a properly negotiated one or Independence.
    Westminster would have to make us an offer, that we could sign up to!

    Again , in this instance,to have any chance of keeping the current Treaty the only way to do it would be for Westminster to agree a section 30 before the 2021 election….

  12. The EU elections in May must be held in Scotland even if they are not held in the rUK, in fact, especially if they are not held in the rUK. Whatever happens, we must have our people ready to take their seats in Strasbourg.

    Is it too late to amend the ballot papers to allow for the possibility that we may need the 13 MEPs which an independent Scotland can expect?

    As Vellofello says above, “Fiscality: excessive regard for legal matters”. We must surely be aware by now that the Westminster regime itself has little regard for the law, and fights, and will continue to fight, dirty. The outcome of the May elections will be a powerful political tool and we must make maximum use of it. Whatever the small print in the legislation says, the Westminster regime – which has little enough legitimacy in Scotland anyway – would be ill advised to meddle publicly with elections here, regardless of the legalities. While we must not descend into the sort of jiggery-pokery at which Westminster excels, we must push the envelope as far as we can to ensure that our people’s voice can be heard through the static from the Unionist noise machine.

  13. Cubby says:

    The people of Scotland have voted for an independence referendum to take place. It should take place with or without a sect 30. Asking for permission from Westminster to have a vote on independence is pathetic. It’s like asking your prison guard to let you go free.

    In NIreland a previous referendum was boycotted but the result still stood. Westminster had no problem with that.

    Westminster will always say we will only give you permission/ agreement when we are sure you will lose. Democracy is a joke in the UK.

  14. BILL says:

    “Suppose there’s never going to be a Section 30 order, how do we get out of the trap that opponents of independence tell us that we are in?” This is absolutely hilarious. The SNP decided to bin its electoral plebiscite route that it had always held to go into a Referendum-only route.

    • Cubby says:

      I never thought it was the right decision to change to a referendum. If you base independence on a Westminster GE then you have the guarantee of a vote for independence, as a minimum every 5 years, if you want it. Referendums are far easier to pockle than a GE. You get all this once in a lifetime nonsense.

      Westminster does all its damage based on a minority vote giving it the power.

    • Lorna Campbell says:

      Agreed, and it was only one of a series of mistakes. Another was in allowing such a wide open vote in 2014, when someone in Scotland on a temporary basis or who had arrived the day before, got the vote. Yet another was in allowing the obvious breach of the postal vote rules to go unchallenged. John McTernan had no right to know the postal vote four days before polling. The SNP – and the wider independence movement – are so pusillanimous, it’s shocking At this rate, we’ll get independence on the 12th of Never.

  15. Hi Paul,

    I agree with all you say bar one aspect:

    You mention that after a de-facto plebiscite Holyrood election (and pro-independence parties win) you could then extract a Section 30 order from Westminster so as to hold an Independence referendum.

    If you’ve already stood on a platform on “Vote for Us and You get Independence” and won, then why the need to confirm this via an Independence Referendum?

    • weegingerdug says:

      Realpolitik, essentially. A vote for independence in a plebiscite election would necessarily be followed by negotiations with Westminster. Personally I would prefer just to go directly to independence under such circumstances, but we also have to take into account what the international community is saying, so I wouldn’t rule out a confirmatory referendum.

  16. The practice of using animals as political metaphors has a rich and sometimes bitingly satiric past.

    Orwell of course elevated militant anthropomorphism to an art form in ‘Animal Farm’.

    This is Old Major, prize Middle White Boar, lecturing the animals when the humans had retired for the night.

    “Man is the only creature that consumes without producing. …does not give milk, does not lay eggs, he is too weak to pull the plough, he cannot run fast enough to catch rabbits, yet he is lord of all the animals. He sets them to work, he gives back to them the bare minimum that will prevent them from starving, and the rest he keeps to himself.”

    Delete ‘man’, insert the Oligarchy, the 1% who own half the wealth and resources of the world.

    Those of us old enough recall Dennis Healey excoriating Geoffrey Howe, Thatcher’s bag man and ultimate Brutus, who was the architect of ‘managed decline’ which led to the annihilation of the UK’s industries and manufacturing, when he compared being attacked by Howe ‘like being savaged by a dead sheep’.

    Johann Lamont in her fiery resignation speech as Leader of the Branch Office referred to her colleagues in WM as ‘dinosaurs’.

    It stuck. Brown and Darling, the lizards from the Twilight Zone.

    Now the former taoiseach Bertie Ahern is the latest to dip into the Zoological Gardens for inspiration..

    At a Communications seminar in Ireland he revealed that Rees Mogg had admitted to him that he knew nothing about the Border between South and North, assuming that it was two men and a sniffer dog and a table tennis bat painted red on one side and green on the other, who randomly selected ‘suspicious’ white vans, suspension creaking, driven by shady looking characters, for inspection.

    He was blissfully unaware that the Border meandered for 460 kilometres across the land.

    Ahern observed with some alarm; ’and regard to the fact that a lot of these guys went to Oxford, Cambridge, and Eton, they are not very bright. This is the problem.’

    He described Rees Mogg as: ‘a lovely fella, when he’s asleep.’

    He added:- ‘When he’s awake, he definitely is a strange fish, in and out of water.’

    Jake The Fish; whadda-are ya gonna do?

    The News Where We Are seems to have missed this wee gem.

    It is reported that Ireland has overtaken London as top designation for EU job seekers as a direct result of Brexit.

    A new cruise liner the WB Yeats has gone in to service sailing between Dublin and Cherburg. It can accommodate 1800 passengers and 1200 vehicles.
    Rosslaire is upping its game steaming between Ireland and the continent.

    Ireland is cutting out the middle person, England, and dealing direct; yet none of this gets reported Here.
    Instead we get the tired old trope about England being our biggest market and they wouldn’t trade with us if we left.

    Paul observes, “The crucial point however, is that one way or another, Scotland will have a vote on its future, and we do not require the permission of the British government to do so. There is no trap, only a failure of imagination. There is a way out. The campaign has already begun.”
    Scotland is being deliberately kept in the dark.

    Our Dead Tree Scrolls plastered their front pages with the No means No nonsense, and the TV Stations confirmed that ‘we’re Doomed’. Even McWhirter was in on the act; well he has copy to shift I suppose.
    None of the above tales from the West featured.
    Our neighbours to the West are getting on with life after Brexit.

    Yet a wee portly man sits on his sofa with saltire and butcher’s apron cushions and announces that he forbids us, the people of Scotland to exercise our basic human democratic right as citizens of the world.
    We require no one’s permission.
    Imagine MV Robert Burns steaming out of Rosyth laden with Scottish produce bound for markets in 27 European cities and towns.
    The worm has turned, the Eagle has landed.
    Now is the time, Mundell.
    Plop up your cushions and take 40 winks.

    • astytaylor says:

      Brilliant, Jack.
      I’m away down to Embra this week to sell copies of the National in front of Fluffy’s office.
      “Get yir Na-shu-nul hee-er”
      Whoops, i gave away my cunning plan… Mibbe i’m no allowed tae sell them on the street?
      Ach, ah’ll give them away. Surely no harm in that?
      The boys in blue can’t detain me for that, can they?

  17. aaron blue says:

    The more they refuse, the more the so-called united kingdom disintegrates. Keep on keeping on.

  18. Frank Lynch says:

    I like WoS take on the Brexit dilemma. Tell May the SNP will support her Brexit proposal in return for a legally binding Indyref2 vote. If the Scots vote against independence, granted we’ll go down the toilet bowl along with the rest of the UK, but we will have had a definitive say on the matter; and if Brexit goes ahead, we are in the same position as currently in not having a say over Brexit anyway.

    If we vote yes to independence, we can then apply to the EU for membership which the EU supports and grant the wish of two-thirds of the Scottish electorate: we get to stay in the EU while England follows its deranged path.

    • Och, Frank, there will be no deals with the Blue Tories.
      They have spent 9 years killing our citizens to reward their rich relatives and pals.

      There isn’t a spoon long enough to sup with that particular devil.

      There are some of us Independentista who are actually concerned about the fate of our close neighbour; some of us have family and dear friends Down There.

      Any form of Brexit will cripple the four nations, so, why would the SNP/Greens help the mad Blue Tory fascists achieve their goal? Turn England into a Tax Haven for Rees Mogg and Russian Mafia billionaires?
      That’s the dream touted by the ERG.

      Can we really stand by and watch England’s NHS taken out of public ownership and delivered into the Hands of the US Private Health giants?
      I’m sure that ‘Doctor’ Liam Fox would get a non exec seat on the board for his ‘cooperation’.

      There is a fine balance; We campaign and achieve Self Determination. Until this happens we help and support our near neighbours who voted Remain or at worst for a Soft Brexit.

      It benefits no one, especially Scotland Independent, to have England as a financial social and political basket case flooded with US privatisation, steroid Texas steaks, and chlorinated chicken fed on GM corn.

      There can be no cooperation with the Red Blue or Yellow Tories.

      They are isolationists who will cause severe harm to the people of England and Wales, and possibly N Ireland.
      We need no one’s permission.

      As someone observed on twitter.
      If England petitioned for Independence, would they require Scotland to give permission via a Sect 30 order?
      Answers on a post card.

    • Cubby says:

      It’s a bonkers idea. Legally binding indyref2 vote – really? Anyway Sturgeon ruled it out at the SNP conference.

      • Frank Lynch says:

        I know; I was there. So how do we go about getting indyref2? Win a referendum likely to be ignored by the Tory government? Then what? Declare UDI? Then what? Watch the troops take control? Bear in mind British troops followed orders of the UK government for 30 years and showed no compunction in shooting down citizens of another nation within the UK.

  19. […] see inside her mind, but surely that's at least one logical possibility? *  *  * In his comprehensive response to Iain Macwhirter's article, Wee Ginger Dug once again expressed his view that if a Section 30 […]

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