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.