A NEW CONSTITUTION?

A guest post from Cath Ferguson.

Cath is based in Glasgow and wrote a couple of things for Wings and Bella Caledonia back in the indyref days. Can often be found playing music in bars to take her mind off the political situation in Scotland, the UK and the wider world. 

Twitter: https://twitter.com/Fergie_Kate

Tip your hat to the new constitution

July 2023: BBC 6 O’Clock news

“Finally, an end to constitutional wrangling.” Flanked by representatives of all parties and none who have worked so tirelessly on UK2.0 – a New Constitutional Future, and with a Scotland’s FM Angus Robertson and his wife by his side, Tory PM Michael Gove waves the document for the waiting media. “This represents a historic moment for the UK and its constituent nations. For too long now, London has held tight the reigns of power and it was necessary unionists recognise that this is no longer sustainable or desirable. As we head towards the end of the first quarter of this twenty-first century, the time for change is long overdue. We are confident the people of Scotland, England and Wales will ratify this proposal in September’s referendum, and reject both outdated unionism and divisive nationalism”.

***

This, if unionists were sensible, is what they would have done in 2014: put devo-max on the ballot paper, a guaranteed, well worked out form of devo-max. One which the media could have presented as the sensible middle ground, making both unionists and pro independence sides (both at only around 25% solid support in 2012) the fringe outliers. It is likely, with all that has happened since and the growing sense of inevitability around independence, that they will have learned their lesson this time around. And the paragraph above will sound great to most people, who are sick of politics, for whom an end to constitutional wrangling will be music to their ears. It would, however, be a trick, political chicanery. It’s key aim not to bring genuine powers to Scotland but to lock us into a constitution akin to Catalonia’s, as an area which is not allowed to secede rather than the nation in a union we are now. It would rip up the treaty of union and replace it with a British constitution which makes independence impossible. 

Increasingly, it is looking as if the current SNP may have bought into this and sold out independence. There are various pieces of evidence for this: firstly the clear in hindsight shift of focus in 2017, away from independence. In 2017, independence looked inevitable. We had a united, energetic movement, Sturgeon leading the SNP, backed up by ex-FM Salmond ‘off the leash’ and taking on media roles (https://www.sundaypost.com/fp/alex-salmond-in-talks-to-become-chairman-of-newspaper-group-johnston-press/). We had a top QC in Westminster for the legal side.

Yet instead of the SNP capitalising, we then saw the stitch up of Alex Salmond and vitriolic bullying towards Joanna Cherry – two of the key people who would have prevented that shift. At this same time, they turned on all the pro independence blogs and new media, Wings in particular (initially in siding with Kezia Dugdale against him, then into an all out onslaught) and became one with the unionist media. Murray Foote – most famous for the vow – became their PR chief. The independence movement was split via a very deliberately divisive trans rights v women’s rights row, an issue which could have been addressed easily with a little talking through was used instead to silence, bully, terrorise and politically persecute. Then there was the ten year economic plan, the selling off of wind assets, jettisoning of the national energy company and acceptance of Freeports (all against the wishes of SNP members expressed at its policy making body: conference). 

It is the Alex Salmond case, however, which appears to provide most evidence. This was not an SNP plot nor was it a unionist plot. Had it been either one of those, the sides would have been clearly drawn. It was a joint action. There is often confusion when people talk about “The Scottish Government”. When Salmond took The Scottish Government to judicial review, many read (and indeed reported) this as him taking his old party, the SNP, to court. But The Scottish Government is a mix of two things. Yes, it is the party of government – in this case the SNP-Green coalition; between 2016 and 2021, a minority SNP government. But it is also the civil service which supports the ministers of that government. There is only one UK civil service, so The Scottish Government, in that sense, is merely an arm of the UK civil service operating in Scotland. The fundamental tenet of the civil service – and one we have to assume upheld by most staff within it – is that it acts on an impartial basis, giving advice to ministers and working to implement their policies without fear or favour. However, when it comes to the SNP, and to independence, keeping the UK together is not a UK party political issue: it is a key plank of UK security, economy and policy, shared by all parties. As Michael Moore said in 2012, “There is no position within government that separates out Scottish interests from the interests of the rest of the UK” (https://www.parliament.uk/globalassets/documents/lords-committees/economic-affairs/ScottishIndependence/ucEAC20121218Ev20.pdf). It is hard, then, to imagine the UK civil service in Scotland could ever be “one and the same” as any genuinely pro-independence government it supposedly supports. Its senior leaders ultimately report to the UK government. If there is a conflict between the aims of the UK and Scottish Governments, the UK government will be the one to whom they defer.

The government (ministers and their advisors many within the civil service) are one of three “arms of state”. The other two arms are the legislature (parliament: Westminster in the UK and Holyrood in Scotland) and the judiciary (courts, Crown office, legal system). Essentially, legislature makes law; the executive implements it and the judiciary acts where conflicts or disputes arise. The very name of the Crown Office states who and which “state” that represents. In reality, Scotland – not being a state – has no arms of state: these three arms are the UK state operating in Scotland (some areas of the judiciary remain, for now, relatively independent but are coming under increasing pressure). It has always been regarded a fundamental tenet of any democracy that these three are separate of each other. ’When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty… there is no liberty if the powers of judging is not separated from the legislative and executive… there would be an end to everything, if the same man or the same body… were to exercise those three powers.’ (Montesquieu, 1748)

So looking again at the Salmond case, it began in the Civil Service, who reported complaints directly to the Crown Office rather than the police, who didn’t want to know (https://archive2021.parliament.scot/HarassmentComplaintsCommittee/20210120PoliceScotlandtoConvener(1).pdf) 

The Crown Agent, David Harvie, reported to Leslie Evans at the time. 

(https://archive2021.parliament.scot/parliamentarybusiness/report.aspx?r=13167&i=119194&c=2325157)

The police were then ordered to carry out what must be the biggest and most expensive fishing exercise the UK has ever seen, in which 400+ women were dragged in for interview, and found nothing (https://www.craigmurray.org.uk/archives/2020/03/jaccuse-2/). This is the polar opposite of how a criminal investigation should work – complaints are brought to police, who investigate and if they can build enough evidence, then use it to persuade the Crown Office to prosecute: this has all the appearance of a decision to prosecute followed by looking for a crime. As this was happening, the SNP leadership were also fishing for dirt and complaints (https://www.thetimes.co.uk/article/alex-salmond-is-victim-of-a-witch-hunt-aide-to-snp-chief-whip-says-5ffjwz3kb). Nothing appears to have been found from any of this. So a very powerful group, close to the FM, stepped in with allegations that should never have made it anywhere near a court (https://wingsoverscotland.com/the-integrity-of-a-nation/). And yet they ended up in the High Court, with lurid and wholly unrepresentative coverage in a clearly delighted unionist media. 

There is no question the SNP leadership were on board with all of this, enabling it. But the idea the UK would allow all its arms of state in Scotland to be taken over by a devolved SNP leader is frankly ludicrous. Whatever you think of Sturgeon or her personality and leadership style, the idea she could cow the entire UK state would seem unlikely, and if she were that good, we’d be independent by now, not seeing political prosecutions aimed squarely at independence leaders. No, what emerges from the fog of battle is a colonial-style agenda, along with a complete lack of separation of powers between the legislature, executive and judicial systems. This is further complicated by devolution, when a supposedly pro-independence government is in “power”, lacking any real power or arms of state, but with the ability to make people believe they are acting differently to the UK government, or in conflict with them.

This, then, is why any agreement being stitched up in London to push “devo-max” onto a weary, bored of politics, country would be seen by history as the biggest betrayal of the Scottish people since the original 1707 treaty of union. Any new future which is born this way: on needing to remove fundamental tenets of democracy and justice, to attempt to jail or silence those who might point out its pitfalls and argue against, can never be good policy. Indeed, for those lengths to be reached feels like the very worst kind of colonialism, rather than any attempt at genuine reconciliation and finding a sustainable way forward. If sustaining the union long term requires legislative bonds and political prosecutions, it is not sustainable. If any new offer of devo-max, federalism or whatever the UK and Scottish establishments together might plan to impose on Scotland were genuinely good, it would not be necessary either: it could be sold genuinely, with democratic debate. 

Debate is what has been shut down in Scotland over the past few years, the energy of so many good campaigners diverted either into defending their own reputations ageists vexatious complaints, or into identity politics which only arrived post Brexit and will disappear as fast as it arrived once it’s no longer needed, leaving many heavily invested on both sides, battered and broken by the experience. However, as yet, there is no end in sight: the Hate Crime Bill about to be implemented makes political harassment and prosecution an even more simple tactic than it has been; an end to jury trials for sexual allegations would mean any inconvenient man can be easily destroyed. 

I hope the SNP prove me wrong on this and will stand up for Scotland in the event the unionists do attempt to push such a truly awful new constitution onto us. However, in the event they turn out to be on the side pushing it, let me set out what I believe the key arguments (while entirely ignoring the massive downsides will be). It may be worth being ready for them.

An end to constitutional arguments forever.

​- Yes, because it will make them virtually, if not entirely, illegal.

Now we’re out the EU, getting back in will be difficult and would involve a hard border with England.

​- This would only be the case if England chose it, and there are other options such as EFTA which would be fast and avoid this (https://www.thenational.scot/politics/19902938.group-wants-see-independent-scotland-join-efta/)

Now we’re out the EU, we’d need to have our own currency and leave Sterling

​- This is actually a positive thing, but it’s also not true. And, again, EFTA is another option. 

And the key one unionists will be able to use:

​Look how appalling Sturgeon’s SNP government were: they removed rights for women, silenced and harassed people, tried to jail their ex-leader, did jail a journalist, turned Scotland into a state where there was no separation of powers. The UK saved you from all that, which is why it’s so critical you stay in the safe arms of the UK. 

​ – <cough> Aye, right. See article above.

The bigger question is, were this situation to play out, who would be refuting these arguments and how could they be heard? If this is indeed the plan, it will happen quickly, without time for the independence movement to re-group and make the arguments. It would be left to the newer pro independence parties such as Alba and ISP. However, if the devolution plan has the full support of the SNP, Greens, Labour, Lib Dems, some Tories, and the entire media, any such arguments will simply be drowned out; the pro independence side painted as dangerous, divisive fantasists, pitted against and lumped in with the rump Tory unionists arguing for an end to devolution entirely. The real meat and intent of the new constitution – to bind Scotland and remove its status as a sovereign nation – would not be reported at all, nor would any other deliberately written in traps and downsides. It is critical, therefore, that people within the SNP and wider movement consider this danger before it is too late. Because if there is a referendum in 2023, and that is the form it takes, it will be too late by then to counter the propaganda. 

And if such a constitution is supported by all Scottish parties and voted for overwhelmingly by the Scottish people, no amount of late realisation, regret, or surge in support for real independence will be any use: the International community would, rightly, say Scotland entered with full choice and awareness. That wouldn’t simply put independence back by ten or twenty years: it would make it impossible. That would be its intention. 

The future is not yet written and it is possible the SNP would still never, despite all the actions and evidence detailed, support such a stitch up of Scotland. I pray that is the case, but the evidence of the past six years since Brexit is not positive, and for that reason the independence movement, and indeed all Scots who care about our future, need to be alert and ready

MY COMMENTS

THIS IS A VITAL ARTICLE. It spells out the disastrous course we are on and where it is leading. It is truly frightening. That it depends on SNP members, the same SNP members that have at best ignored, if not supported, the ruthless removal of all their own powers within the Party, to at long last rebel and demand this colonial manipulation of Scotland ends now.Our powers are being diminished in front of eyes, our assets are being sold off to huge corporations to our great cost. It must not go on any longer. If you care for Scotland examine what is happening and decide whether you are happy with a poor colonial future in an increasingly intolerant country where Stasi like control is being established, or do you want the freedom of full Independence?

I am, as always

YOURS FOR SCOTLAND.

BEAT THE CENSORS

Sadly some sites had given up on being pro Indy sites and have decided to become merely pro SNP sites where any criticism of the Party Leader or opposition to the latest policy extremes, results in censorship being applied. This, in the rather over optimistic belief that this will suppress public discussion on such topics. My regular readers have expertly worked out that by regularly sharing articles on this site defeats that censorship and makes it all rather pointless. I really do appreciate such support and free speech in Scotland is remaining unaffected by their juvenile censorship. Indeed it is has become a symptom of weakness and guilt. Quite encouraging really.

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