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By Jason Michael

ACHIEVING INDEPENDENCE IS THE GOAL of the Scottish independence movement. This much is a no-brainer, but the achievement of this end presents a veritable plethora of challenges. While I believe a referendum to be the best option, there are other ways; namely, a simple declaration of independence and a dissolution of the union. Each one of these has its historical precedents and each, under the right conditions, is at least theoretically capable of delivering independence. But returning to my preferred option – the referendum, Martin Keatings published a remarkable article in New Direction on Monday expertly exploding the fissure in the referendum camp; whether or not to request a Section 30 order from the British government.

Keatings does not want us to go down “the ‘we don’t need permission’ line of thought,” zetetically arguing the logic of adhering to the legal framework expected by Westminster. In a dissertation length and thoroughly encyclopædic article – a whopper of almost five thousand words – his argument is simple: We do precisely as Westminster wants either until it grants us a Section 30 or is forced to ignore or refuse us, thereby proving both to undecided voters in Scotland and the international community that, in order to assert our democratic will, we are compelled to hold a non-binding poll – which he shows to have been made binding as a consequence of the precedents created by the rulings on the various legal challenges to the Brexit referendum. In his own words:

How do you convince undecideds that Westminster is the undemocratic bams that we have been telling them that they are for decades? Simple! You follow the process within the UK constitutional framework to the end of the process and show the people of Scotland exactly how Westminster works. We don’t have to show that the people of the Fletcher Memorial Home for incurable tyrants are crazy, we just have to leave the doors unlocked and the sight of Westminster running around naked in the town centre laid bare for all to see, does the job for us.

Anyone who references Pink Floyd in relation to the behaviour of the British government obviously deserves respect, but the flaw in this line of reasoning cannot go unnoticed. Thankfully, pointing this flaw out is made less difficult in that the author acknowledged it himself in a brief discussion last night, saying, “Yes – [there is] one very big [flaw] – Westminster are a bunch of lunatics with the consistency of wet pasta. It’s like trying to make the dinner while being attacked by a velociraptor.” In theory, this argument makes perfect sense. When the rules are set and unchanging, and when everyone is willing to play by those rules qua the UK’s legal constitutional framework, then we can back London into a corner, thus giving ourselves recourse to a legitimate alternative.

Perhaps it makes more sense to think of this as the chess model of this game theory. In this model both players begin with the same chances of victory, each has the same manœuvrability on the same eight by eight chequered board, and each has the same sixteen pieces at their disposal. What Martin Keatings is proposing, in effect, is a queen exchange; presenting the British government with an ultimatum. It can either accept the queen exchange or deny it, the latter giving the Scottish government “no choice” but to seek a legitimate alternative.

Given that Keatings and I agree the most likely response of the British government will be to deny or ignore a demand for a Section 30, this strategy will play out – in the beginning – pretty much as he sees it:

…the Scottish Government [will be] left with no choice but to exercise the democratic right of the people by other means. Only when it [gets] to the end of the existing process and [hits] a brick wall [will it] exercise democracy in another fashion.

His very next sentence is where we begin to snag. After playing by the expected rules of the game, he writes, “no court would deny Scotland a fair deal, enforced at an international level.” This coming Monday will be the first anniversary of the 1 October referendum in Catalonia. Now, hands up if you can see where this is going. What Keatings is suggesting is precisely the gambit played by the Catalan government, and it discovered at the very last moment what happens when power is forced into a corner – it changes the rules.

This ability of the dominant power to change the rules to suit its purposes ends the chess model. This is no longer a board with a shared set of rules or even the same balance of power, rendering pointless Keatings’ assumption of the stalemate Theresa May will face. If she refuses, he writes,

[TheScottish Government knows that the UK does not intend to play ball, like a debtor sticking two fingers up at the debt collection agent that chapped on their door. Or there is the third option where Theresa May just says “now is not the time” and does not respond, in which case like a debtor, she is in no uncertainty of what happens next and the consequences lay firmly on her shoulders.

In a game where her government gets to change the rules, she will always be certain what happens next; whatever she wants to happen next. Rajoy had no problem with this in Catalonia and neither did Britain in the north of Ireland. This is what we call a state of exception, when the dominant power suspends or changes the normal rules of play so as to maintain control of the situation. Just as the courts – even the international courts – abnegated their moral responsibility towards the six counties and Catalonia during these states of exception, they will do it again to Scotland – and they will do it legally, because the law is a synonym for the rules of the game.

So, we’re not playing chess. We are playing a different game altogether and we’re playing it against “lunatics with the consistency of wet pasta” and this game, unlike the elegance of a chess match between Aleksandra Goryachkina and Andreas Diermair, is “like trying to make the dinner while being attacked by a velociraptor.” I want to call this the Diplomacy model.

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Diplomacy Game Board, 50th anniversary edition

Diplomacy, for the uninitiated, is a strategic board game created by Allan Calhamer in 1954. Rather than being a simple game of strategy and skill, Diplomacy was developed at Harvard with the express purpose of teaching geopolitics in the context of the Cold War. On a 1914 map of Europe – divided into nations, territories, and regions, other than the limitations on land and sea units, there are no rules. Players are free, between summer and winter campaigns, to negotiate alliances, plan out strategies, and agree on rules of engagement between themselves. With seven players, Diplomacy quickly descends into the rule of might – the strongest make the rules.

This is the model the British government is following, meaning we had better start reconsidering our chess model queen exchange strategy. As we are not the powerful, the moment we sacrifice our queen the rules will change – denying us Britain’s queen. We are simply not in a position to play an equal contest against Westminster within the framework of the British constitution. That constitution was designed with our perpetual domination in mind. Those rules, in this asymmetric contest, are about as much use to us as an ashtray on a motorbike.

Playing this model is lose-lose for the independence cause. Whichever route we take, be that the “we don’t need permission” option or the queen exchange model à la Keatings, the outcome will be the same – a rapid escalation from a flat refusal to the use of violence. Therefore, it is us and not the British government who are clean out of options – forcing us then to take the path of least resistance. Both will be met with resistance, there is no doubt of that, but one offers significantly less than the other. Keatings makes a good point, however. In advocating the long-game, by playing Westminster’s game to its inevitable conclusion we will prove to undecided voters and those unionists who sincerely want the best for Scotland that the British government is populated with a shower of “undemocratic bams.” But this will come at too high a cost. It will be accepting the legitimacy and therefore the legality of needing permission. When that permission is not given all alternatives will become illegal, and that – by our outmoded chess paradigm – is checkmate.

Once London – which is the de jure state member of the international institutions to which Keatings hopes to appeal – pulls us into this legal trap we can kiss goodbye, as the Catalans can tell us, to international recognition. Our actions will be illegal by the rules determined by the powerful, by the British state. This is the flaw I see in the long-game referendum strategy.

So, we must take an alternative route before we find ourselves being inconsistent vis-à-vis acknowledging Westminster’s rules only to break them when we lose. We must not give the British government the rope with which to hang us. Rather, by refusing to acknowledge – from the start – the prerogative of Westminster we create for ourselves the opportunity to hold a perfectly legal non-binding (but legally binding) poll without it ever being explicitly illegal under the present constitution, thus obliging the British state to change the rules ex post facto – forcing it and not us to be inconsistent. We can be in no doubt Westminster will use the law – as the rules of the game and as an instrument of its power – to its own ends. In other words, it will not play fair. But by asserting our position that we don’t need permission to hold another referendum we can at least show it to be the cheat it is, and thus maintain our right to a fair democracy in the eyes of the world.

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Section 30 Order – What happens if parties don’t agree?


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11 thoughts on “Should We Demand Another Section 30 Order?

  1. Jason

    Fantastic post.
    – Play by a bully’s rules and you lose.
    – Ignore your own trump cards and you lose.

    In this current push to protect Scotland, isn’t its biggest weapon that it retains its sovereignty. Hence just as in the EU, Scotland has pooled its sovereignty in the Union. However, that does not mean it relinquished it to Westminster. Or that Westminster is the only body that can exercise sovereignty.

    Just because Westminster and their mouthpieces state they hold all sovereignty doesn’t make it true.

    Generations of activist and their public supporters have fought to give Scotland the tools for a winning hand. They forced Westminster to constantly re-constitute its Scottish democratic mechanisms little by little. To the point where it can now be argued that its sovereignty tools are now in its own hands:

    – It has its own parliament (a parliament that reconstitutes the body that signed into the Union)
    – Its own independence party with a majority
    – A mandate

    Scotland has also been gifted Brexit as its own test case for nearly every precedent it would need to argue.

    Scotland owns the bakery, Westminster is just it’s floor manager. Of course, Westminster will scream and play the victim that you won’t play where they control that game. However, Scotland as the owner of the Sovereign capital must operate from its own strength.

    Liked by 3 people

    1. @Marconatrix

      I agree. This is why I deliberately did not use the term “devolution”. It is a reconstitution of Scotland’s governing bodies.

      I find the popular reading of The Scotland Act (pushed by Westminster) very bazar.- It doesn’t stack up under other readings of sovereign unions or federations.

      Westminster’s hold on power relies on pushing the erroneous view that the act is about setting up little administrative centres under the big, mighty, Westminster. That reading doesn’t stand up as Scotland is sovereign and by default all power sits at Hollyrood unless it is specifically assigned to Westminster. As the Act flipped the roles and the default rights are in Scotland, The act basically infers that Westminster only has limited power…Westminster by extension is only a secondary auspice.

      Scotland must tell its stories from its position of power. It needs to set the default position in people’s minds that they are naturally in charge and Westminster is a only tool they use while its suits their purpose.

      Liked by 2 people

  2. I have said it many times, if we will play by the rules, Westminster wont. We’ll get stuffed one way or the other.
    The Scottish Parliament has been given 3 separate mandates by Scottish voters to hold a referendum on Independence. The Parliament has ALL the permissions it needs.

    Your article is clear and accurate IMO. I would only take issue with one thing. The UK does not have a Constitution, Statements and Acts are made in Westminster which then become Law, making an unwritten constitution on the hoof.

    Like

  3. I agree with MUCH of what you are saying. But I’m not sure there is any value in bringing in or comparing the question of Catalunya. That is a whole ‘nuther ball game. And what happened there, should not LEGALLY happen here. We AREN’T a wee part of England, no matter how much & how often they, WM, try to emphasise that point. LEGALLY we are two separate countries that signed a Treaty. There is NO QUESTION it is otherwise. And as the people of one of those two countries, the Scots, are sovereign, it is they who can decide what happens next in Scotland. That should never be in dispute. On proclaiming Scotland an independent country (after going through whatever process Scots decide to dissolve the Union) any interference to nullify that, could and should be seen as a hostile act by the rest of the world. If WM was to try the military strong armed tactics, I believe the EU would have EVERY RIGHT to back and defend Scotland, a country in its own right, against WM’s tyranny. They could not interfere in Spain/Catalunya’s case, given Catalunya isn’t recognised as previously having been a country in its own right. And they are trying to secede rather than dissolve a contract. We need to halt the comparisons to this situation, as I believe they really aren’t applicable.

    But I certainly do agree we have to stop playing WM’s game and start using our own power that our sovereighty gives us! No more pandering to WM or playing the game their way! They knew their coats were on shoogly pegs when our MPs walked out of HoC a few months ago! The wind fair dropped out of their sails THAT day! Unfortunately the Scots turned up again next day & ruined their little advantage. And the bullies laughed at what they saw as Scotland having a ‘wee snit’. Perhaps if our MPs had stayed a way a little longer – given WM something to think about (all that oil money & revenue all our other resources’ generate perhaps not coming their way!), they might not be so antagonistic today! It’s typical of bullies to keep… well, doing what they do, as long as the victim lets them away with it! Time to stand up to the bullies and use our sovereignty to tell them to take a hike!

    Liked by 1 person

    1. Catalonia is important here because I was making the point about states of exception – where what should not legally happen here happens here because the law is suspended. This happened in Catalonia and it will happen here. How do I know this will happen in the UK? Because it has happened before in the UK. This is why I included a mention of the north of Ireland.

      Like

    2. @Kate

      I understand your human expression of morals and rights..it is a world we all hope for..
      However, reading “CRIMES OF BRITAIN” twitter pains the soul.

      But also sadly illuminating

      Liked by 1 person

  4. It is a fair point, but your suggestion is no better at avoiding the ‘Catalan’ outcome. If 50% plus Scots vote for Independence, whether by referendum or election, we need the support of the world community to endorse our democratic will I.e. UN, EU etc. Otherwise the UK can subjugate Scotland forever.

    Like

  5. We have played Westminster Rules for too long. We have also gone as far as we can with Westminster Rules – our last request for a Section 30 Order was refused. Why should we ask again?

    Like

  6. Too me what you do is seek agreement to hold a binding referendum based on the mandate of the elected Scottish parliament. If that is refused you resign and call an election because Westiminster has challenged the authority of the Scottish parliament. You then call a fresh election as a proxy independence referendum . If 51% is achieved you declare independence.
    Unlike referendums . Elections cannot be boycotted and the results cannot be ignored. I appreciate that the Tories and Labour could try and form a coalition and propose Ruth Davidson as First Minister. That would be rejected as they don’t have the numbers. It could go round and round indefinitely with proposal and rejection. However eventually they would have to concede they couldn’t form a government.

    Alternatively we could wait until 2021 and have the normal election but on a ticket of independence. We must steer clear of any consultative referendums. It’s UDI or a Scottish general election.

    Liked by 1 person

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