24 October 2011

My alignment with John McTernan...

Over at Bella Caledonia, I come in for a bit of flak from Mike Small, in a piece entitled: "We Are Not Men, We are Devo".  It turns out that, quite unbeknownst to myself, I have been keeping bad company. The indictment reads in part:

"If you go and see a dentist he’ll tell you there’s something wrong with your teeth. If you go into a mobile phone shop you’ll be sold a new phone. Likewise if you read legally-focused bloggers (and) you end up see everything as ‘law’, as they they view legitimacy through that prism. But (as was commented last week) the people being tasered and beaten were on their own land in Dale Farm. Justice and the law aren’t the same thing. The issues of legitimacy has been thrown about all week, led by Baron Foulkes, John McTernan, Michael Moore and other unfortunates. Even Kenny Farquarson of SoS is clear, the mandate is with the Scottish Government.

As Tony Benn’s fond of saying “Democracy is always a struggle for justice against the powerful” in other words most of the rights we assume today as normal were once condemned as ‘outrageous illegalities’. And if you think the law is an equal footing for all reflect on today’s happenings and those of 25 years ago at the Battle of the Beanfield. But bloggers like Lalland Peat Worrier and Love and Garbage are aligned with John McTernan in this analysis: the Scottish Govt can’t hold a referendum because they’re not allowed. ‘Sovereignty is still with the UK’ as Baron Foulkes spluttered earlier. End of. So far so mechanistic."

While this is a serious misreading of my position on the legalities (and potential illegalities) of an independence referendum, it is worth paying a wee bit of attention to the characters and concepts Mike appeals to. They are familiar. Indeed, every post I have ever written, discussing the shoogly legal peg the independence referendum hangs from, has prompted some version of it. 

Character one. Yours truly. A fustian legalist, tottering among tomes, Victorian precedents; arcane, abstract and uninvolved. This dusty, dreary conservative doesn't feel a single democratic throb in his attenuated frame. The only thing that could prompt a wiry pulse to spasm through his brackish veins being a nice point of law or a heartless legal problem. Prone to bark "do you have authority for that?", this irrelevant jurisprude has no interest in ardent political vocabularies and no commitments that are not legal commitments. In sum: a character of fumbling frigidity, living a political shadow-life as the puppet for the powerful, if he did but know it, or had the wit to see it.

Character two. The skeptical democrat. Thrusting, lively, popular. Vehement where the lawyer is verveless, he is convinced that all hearty, animal spirits should slam the archive doors in the pettifogger's whey face.  A turner of tables and an upturner of petty laws, he is impatient with anything which smacks of process-serving cavil, which only serves to entangle the onward march of the People, of whom he is a passionate representative-spokesman. Poignant where the lawyer is prosaic, the skeptical democrat is also a charismatic fellow, and gathers friends, all keen to grind all law-tables into so much dust. Do not all charms fly, at the merest touch of cold legalities?

The only minor problem with this vivid division of personalities is that it is quite false, and the wheezing jurisprude of Mike's imagination dwells primarily there.  He certainly doesn't compose pieces on this blog. Mike makes two discrete criticisms. Firstly, he suggests that my conception of legitimacy is wholly exhausted by dull legalities. Secondly, he suggests that I participate in John McTernan's thesis that the referendum is illegal. Full stop. This second argument can speedily be dispensed with as simply inaccurate. From my first piece on the subject onward, my commentary on the legality of the independence referendum has been an attempt to induce Nationalists to recognise that the legislative competence of any referendum Bill has the potential to face knotty legal challenges, and faces being waylaid in the courts while that competence is determined. Contra Mike's characterisation, I've actually outlined (I think convincing) arguments why the referendum would be legally competent, however, those arguments, even if ultimately convincing, would not prevent the legislation from being suspended by litigation. My more recent blogs have attempted to illustrate ways in which these legal problems could be solved in the course of the Scotland Bill's process through Westminster, to ensure that Holyrood does have the legal power to hold a referendum on Scottish independence, untroubled by the challenges of any potential litigant unionist.

As to Mike's first point of criticism, I have never argued that the limits on Holyrood's powers would justify casually deny a referendum, nor suggested that law answer all the demands of legitimacy, whatever the political and democratic situation in the country.  I am concerned, however, that Mike's emotive democratic case for the referendum - politics trumps law - is that it seriously underestimates the bother and disruption which that legal uncertainty might generate in the meantime, and the damage it could do to nationalists' political ambitions.  Firstly, the referendum Bill will have to get past the Presiding Officer in Holyrood. Thereafter, it may be subject to challenge on legal competence grounds by any member of the public.  Do you seriously imagine that if the referendum was challenged in Scottish Courts, and a judge prevented the referendum being held until its lawfulness was determined, that the SNP would attempt to hold the referendum anyway? That it would try to order politically unaligned returning officers to get cracking, without a lawful mandate to proceed? I can't see that happening. Moreover, if there is a challenge to any Referendum Act, this may take an age to resolve. The recent AXA judgment from the UK Supreme Court on Holyrood's pleural plaques legislation gives some flavour of just how seriously the whole referendum timetable could be knocked off course by a single litigant, bent on stopping a referendum being held. What of Edwin Morgan's £1,000,000 independence legacy then, if the referendum falls a year, two years later than was originally planned?

You may well find uttering emotive appeals to democratic legitimacy satisfying - and I wouldn't disagree with you that it'd be a scandal if the referendum was waylaid and delayed - but you are deluding yourself if you think legal conundrums and challenges are of no consequence. Quite apart from regarding the strictures of the Scotland Act 1998 as the be-all-and-end-all, I'd insist that a serious, strategic political nationalist must be concerned with the practical delivery of the party's essential policy and take seriously the dismantling of any hurdles which may inhibit realisation of that policy. That is not to transform oneself into a heartless pettifogger, uninterested in the democratic self determination of Scots - but is surely what a calculating Nationalist, who wants to make sure that the referendum happens, must do.

To indulge in democratic rhetoric - and neglect real-world referendum strategies - is simply crackers. To be so uninterested in potential legal problems as to regard them as only intelligibly articulated by colourless legalists whose heads button up the wrong way - is seriously to underthink our predicament - and worse, is to enjoy the ardent vocabularies of self-determination more than the practical work of ensuring that that self-determination is made possible. If one seriously believes in the political legitimacy of a vote on Scottish independence - and I have no doubts about that myself - one surely has a duty to use one's noodle to bring it about. This may be less satisfying that composing sentimental texts declaring one's rights, but it is ridiculous to contend that to address legal practicalities is to allow oneself to be borne away by a cramped, legalistic and undemocratic conception of legitimacy.  It may be an uncomfortable thought, but it seems absolutely clear to me that refusal to address dull legal realities has far more potential to ravage the cause of Scottish self-determination which Mike passionately and properly advocates.


  1. Hear, hear!

    I want the referendum to be held at a time of the Scottish Parliament's choosing and for the yes campaign to succeed so I expected Angus Robertson to address specifically the issue of a legal challenge to a Referendum Bill by some random unionist punter in his Roadmap to Independence speech but, disappointingly, there was nothing.

    The SNP must not risk leaving this to the last minute.

  2. I am sure that the Scottish government is not ignoring this issue.For Angus Robertson to raise it publicly as a possibility would have given his opponents unnecessary ammunition.
    He and the SNP have to continue to emphasize the moral legitimacy of the referendum and leave the Unionists to raise the issue at their peril - even if this is not legal peril? The Peat Worrier's rebuttal is fair enough but Westminster needs to be very afraid that legal intervention will not simply be met with quiet acquiescence. They designed a voting system completely at odds with what they state is the democratic best of the one man one vote for Westminster in order to kill independence.They then reserved the power to initiate a referendum and the Scots still thwarted this. The hypocritical media to their eternal shame never, ever highlight this. 'Call me Dave' then proceeds to advise the Irish, who had to take up arms to counter the obstacles put in their way by Westminster,that they are our (his!) eternal friends!
    In summary the evidence so far is that the SNP are playing a careful game. For example Devo Max is now presented as their option. Who would have predicted that?

  3. There is nothing the SNP can do about a legal challenge so why get hung up on it? The Civil Service and parliamentary authorities have seen the draft referendum bill and raised no issues, that's all the SNP can do at this stage as the Scottish Government can't change the Scotland Act.

    The idea of putting in an amendment to the Scotland Bill to allow the Scottish Government to hold a referendum seems utterly reckless to me. Suppose it failed? That would be shooting ourselves in the head with a vengeance.

    If an individual does raise a legal challenge then so be it, though I am 100 per cent sure that it would just be some random person, no political party would get involved with that as it would damage them deeply.

    If that heppens what's the worst outcome? The referendum may not be held on the planned date but the campaign will go on and it will go on beyond any regulated period which could actually work to our advantage financially, since I think it likely we will have more money than we can spend during the regulated period. That's partly why we have started the campaign now so we can spend early. The other reason being that it takes time, as well as shoe leather, to speak to every household in Scotland!

    So, to sum up, there's nothing we can do to change the legal situation, we've done all we can to make sure the referendum complies with the Scotland Act, if the referendum is delayed by a legal challenge that will not be the end of the world, so let's just get on with it.

    In politics you have to play the cards as they are dealt, you can't always pick your hand. Maybe that is the real difference between lawyers and politicians?

  4. I suppose if a referendum is a once in a generation occurrence it's as well to get it right.

  5. "That it would try to order politically unaligned returning officers to get cracking, without a lawful mandate to proceed?"

    The mandate given by the electorate is sufficient and lawful.
    Opponents of a referendum think so.
    That's why they seek to define that mandate into the straitjacket of their own objectives.

    Conjuring up the demons of the overriding legalists may help provoke a contrary vote.

  6. 'The mandate given by the electorate is sufficient'

    50% turnout.

    Lest we forget.

  7. Oh dear.

    Salmond caught lying to Holyrood about the two question referendum.

    No doubt whoever briefed him will get a doing.

  8. Nah we don't give people doings in the SNP Anonymous - yu are getting us mixed up with the peoples party.

    And you may have noticed Alex stood up, apologised and took full personal responsibility for having made a mistake as soon as was practicably possible.

    Spot the difference?

  9. Indy

    If you think the adviser has not had a doing then you know nothing about Alex Salmond.

    There's a reason his colleagues don't like him, and it's not all down to envy.

    Salmond had no alternative but to apologise. He lied. Black and white, unambiguous, live on telly. He lied.

    And lets not lose sight of the fact that the idea of a two question referendum has had a doing.

  10. Anonymous - just to clarify, are you suggesting that Alex Salmond will have given his adviser a doing in the sexual sense, or just the normal, everyday physical assault sense, the kind which, as Labour has kindly shown us, is perfectly acceptable in the workplace?

  11. Now now Doug Anonymous is making a very fair point that some of Alex's colleagues don't like him and there is a reason for that which is not just down to envy.But I feel sure they will get over it in time. Even Iain Gray.

  12. Doug

    I found it weird that the perpetrator of bullying wimmen felt the need to underline that the lady in question would not be getting a doing in the sexual sense. As if it is somehow more appropriate to threaten to batter than seduce. I have seen him in action with Derek McKay a few times on the telly and he growls in such a malevolant beligerant manner he gives the impression that he is desperate to hook him. Gie wee Del boy his due, I mean a strong gust of wind would blow him away but he steps in a step every time yer man ups the aggression.

    As for Eilidh Whiteford, well the man clearly has no taste, she's no a bad lookin wummin, or is that just me ;¬)

  13. No, Doug, in the sense that the majority of ordinary Scots would understand the phrase.

    In the sense that Salmond got a doing for lying to Holyrood.Thus he will have given his adviser a doing.

  14. Tony.

    Verb sap.

    No one believes that the doctor was threatened, or that she believed that she was threatened, with any kind of physical or sexual assault.

    This kind of stuff plays well to the thicker element of the nat support but the rest of the world can see it for what it is.

  15. Can I call you anon for short as I am too thick to be able to spell the whole thing?

    Ok, taking all the facts into consideration including;

    *Verbal aggression on numerous occassions towards SNP members.

    *Abusing and defaming the national party of Scotland by calling them fascists.

    *Being heard by at least one other witness/moral MP and the fact that he did not deny using said words.

    *Feeling the need to clarify that the pejoritive word 'doing' was not meant in the sexual way.

    On balance I'd reckon that any reasonable person would conclude that he was not being friendly when telling this female that he was going to give her a doing.

    Have you ever been subject to verbal bullying because your partisan defence of the indefencible is disgraceful if you have. If not then, hell mend ye and hope it doesn't happen to you.

  16. Tony

    You reckon he threatened her?

    That he was going to assault her?

    If that's the case she should report the matter to the police.

    Why hasn't she?

    Surely she owes it to all victims of bullying and intimidation to do so?

  17. Anonymous - when you are in a hole stop digging, eh?

    Everybody out there in the real professional world knows that if they used that kind of language towards a colleague, especially if they were in a position of superiority as a committee convener is, they would be in trouble.

    The fact that the normal rules of acceptable behaviour in the workplace are seen not to apply in the House of Commons will suprise no-one. After all these are the people who bay childish abuse at each other at work on a daily basis and get cheered for it, who decide their own level of salary and pension and who until very recently were able to claim expenses for a wide variety of things that us everyday folk have to pay for with our own hard earned cash.

    Different rules apply in the Palace on the Thames. We get that. But if you think that will win any approval among Mrs and Mrs J Public you are seriously kidding yourself.

    Ask yourself this - would any Scottish Parliament committee convener have got away with using that kind of language? Absolutely not. That point will not be lost on voters.

  18. Anon

    Picture the scene;

    The good lady goes straight to the bizzies and get's pillioried for going ott when said perpetrator makes grovelling apology swearing that all was misplaced jest.

    I'm absolutely positive that you would be on here condemning her as a hsterical female etc. etc. She canny win.

    I reckon she went through the correct channels and expected that if the person in question had any deceny he would remove himself, or more to the point his party might.

  19. Tony

    She claims he threatened her with physical violence (I think that's what we're being invited to believe).

    She should have been straight to the polis with not a thought to whether such a course of action would have resulted in her getting a doing in the media.

    Clearly she has let consideration of her own political career override her obligation to do the right thing.

    Shame on her. She is obviously unfit to hold public office and should resign immediately.

  20. Anon

    *shakes heid*

    Take a step back and comprehend what you are saying.

    If it is just to wind up 'those nasty nats' well I'd choose my subject matter with more care from now on.

    If you really believe the implications of what you are saying, then alles is kaput mein herr!


  21. lionroars67 says:
    30 October, 2011 at 13:08

    Either she was threatened with violence or she is lying.

    If she was threatened with violence she should have reported the matter to the police.

    If she is lying then I can understand why she wouldn't want to report the matter to the police.

  22. The idea that anyone would go to the police when they are being bullied at work - and that if they do not go to the police it is evidence that they are not being bullied - is clearly ludicrous.

    Most workplaces have policies on bullying and harrassment - certainly every public sector workplace does and I would imagine the vast majority of private sector workplaces do as well.

    The fact is tha,t in the modern world, workplace behaviour which is intended to undermine, humiliate, denigrate or injure the recipient is not allowed.

    As I said, in the real world we all know this.

    This whole debate around whether someone saying that a colleague would get a doing represents a real physical threat or not is just preposterous. It would not be accepted by a single trade union official as an excuse for bullying anywhere, in any circumstances. End of.

  23. By the way Indy and LPW.

    Seems that Strathclyde's finest did try to put their new powers to good use at Celtic park on Saturday. They tried to move in on the 'Green brigade' when they sang the boys of the old brigade at the end of the match.

    Stories I've heard and since read on-line point to the polis being pissed off at the demonstration at Georgie square and subsequent mass exit to paradise beforehand. Comments from individual police along the lines that they would show them that they weren't above the law etc. seems they were run ragged directing traffic and shutting off roads despite the fact they had plenty of warning of the demo and that the 2000 or so demonstrators intended to attend the match afterwards.

    The scenes toward the end of the match were unseemly and despite being subject to voilent jostling and harrassment they did not react in the way the police wanted, but neither did they submit to meekly allowing individuals to be arrested. These boys are intelligent, articulate, seemingly non-violent but criminally politically aware. And there can be little doubt now that they will be subject to arrest for singing a song remembering Ireland's fight for freedom.

    Is it just Irish freedom songs that will be treated thus we should know? I'm pretty sure that Flower of Scotland remembers our very own 'terrorists' who once fought to free our land.

  24. Indy

    She's at it.

    I know it.

    You know it.

    Aebody knows it.

    But you can't admit it.

    And in any case, the end justifies the means, which is all that matters so far as the nats are concerned.

  25. Most dignity at work policies have a clause in them saying that if you make a spurious allegation in order to cause another person to be disciplined, that is a disciplinary offence in itself. Most trade union officials will be able to tell you stories about people who do precisely that.

    Mr Davidson's explanation made perfect sense to me. He said that after a rancorous session, he drew it to a close & remarked that Dr Whiteford had been given a doing by the committee. He was passed a note which said that a doing can mean getting shagged outside the West of Scotland, so he clarified to Dr Whiteford afterwards that it was not meant in a sexual way.

    There is not one shred of evidence to indicate that this explanation is not true, it fits the facts, & it is supported by witnesses. Mr Davidson has no case to answer.

    He did use weegie slang, perhaps not appropriate for Parliament, & he has apologised for this.

    It is completely unjustified to assassinate Mr Davidson's character based on an alleged incident for which there is no supporting evidence. It's as simple as that.

    Note, I am not saying that Dr Whiteford made a spurious allegation, I think she just misunderstood the situation. It is other people who have made spurious allegations because Mr Davidson is in the Labour Party.

    None of this has done the SNP any credit at all. Rant over.