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.
The response is unambiguous. All UK referendums are consultative. This one is no different. You are willfully confusing legal legitimacy with democratic legitimacy, a point acknowledged by the Prime Minister. Now there’s more confusion with Malcolm Chisolm writing of the need to stop the ‘corrosive negativity’ of Labour to the ‘national question.’
But there’s more. Alongside the legal challenge there’s two more. Tom Harris, the aspiring MP, Dr Who fan and leading member of the Twitterati has a different complaint.
Tom4Scotland (as he’s now known) thinks the idea of including an otion for Indy Lite or Devo Max is even MORE illegal. Tom writes: “Why are so many people willing, after a mere 12 years — a blink of the eye in constitutional terms — to give up on devolution? Does the hard work of the Scottish Constitutional Convention mean nothing any more? Or is the unambiguous verdict of the Scottish people in the devolution referendum of 1997 now to be discarded?”
Finally we have the esteemed members of the Scottish Affairs Committee who have set themselves up to look into (I’m not making this up) the ‘Referendum on Separation for Scotland’. Not one but two enquiries are established. Salmond is quite right to declare this as absolute nonsense, for which he was lambasted in our media. The Scottish Affairs Committee consists of 11 MPs, including Fiona Bruce (MP for Congleton, no I don’t know where that is either), Simon Reevell, who serves the good people of Dewsbury, a David Mowat, an ex Macclesfield Councillor now MP for Warrington South, and someone called Mike Freer who’s the MP for Finchley and Golders Green. I’m sure they are all wonderful people but I’m not sure what conceivable legitimacy they have discussing and judging the Scottish Government plans for a referendum on independence.
So who has legitimacy and where do legal rights lie? The idea to evoke and restate the Claim of Right will give Scottish Labour and other parties a real dilemma, do they support that which they helped create, or will there be another disavowal?
On the first meeting of the Constutional Convention on 30th March 1989, Canon Kenyon Wright defied Margaret Thatcher saying:
‘What if that other voice we all know so well responds by saying, ‘We say no, and we are the state’,? Well we say yes – and we are the people.’
The declaration was signed in the Kirk’s Assembly Halls on the Mound in Edinburgh on the 30 March, 1989 – in the same room where the Covenant had been signed by the Duke of Montrose and others 40 years previously.
The Claim of Right read:
We, gathered do hereby acknowledge the sovereign right of the Scottish people to determine the form of Government best suited to their needs, and do hereby declare and pledge that in all our actions and deliberations their interests shall be paramount.
This is the challenge to Scottish politicians, are you democrats? And, crucially as the case was made by Margo MacDonald here, why resist sovereignty? What is it about standing on an equal footing that you find abhorrent? Suddenly, when the case is made as a fight for sovereignty, DevoMax seems like an insipid option. We are Men, We Are Not Devo.