We Are Not Men, We Are Devo

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.

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  1. MartinB says:

    I think the Claim of Right is absolutely the foundation stone of the nation, and of the national question.

    The point is absolutely to ensure that — whatever the outcome — the choice of the people of Scotland should be what prevails in our national government.

    This is where I take issue with many of my friends (including those posting here and elsewhere, and making speeches in Inverness) that the point of independence is to ensure that we never again have a right wing, divisive, militaristic government ruling Scotland. Even though I’m proud to call myself a socialist and a pacifist these last 25+ years.

    If we’re bloody stupid enough to vote for it, then we should be bloody stupid enough to suffer the consequences. And that’s the mark of a grown up nation.

    1. MartinB says:

      …which of course also means that almost all ‘practical’ questions about independence are entirely irrelevant, as they can only answer what will be at the point of nationality.

      It will be for us to decide whether we want Sterling, or the Euro, or something else.

      It will be for us to decide whether we remain in Europe or leave, or become further integrated.

      It will be for us to regulate our industries, including our banks; to let them suffer moral hazard or not.

      It will be for us to decide whether we maintain military forces.

      It will be for us to decide what we can afford to pay in all kinds of benefits, including pensions, although Dog Knows we’ll be one of the richest nations on earth and well able to choose to do so, even if it means sacrificing other things (my pref: willy waving weapons, but it’s our national decision so other views may prevail)

      And all these decisions will change over the life of a nation, with the first government of Scotland being not in the least binding over its successors.

      And the costs of separating? A one-off, miniscule viewed through the lens of forever.

  2. J McIllaney says:

    Brilliant. The make up of the Scottish Affairs Committee is hilarious – how many folk know this?

  3. HighlandLawyer says:

    Of course Westminster needs 2 committees: one for ‘Referendum on Separation for Scotland’, and another for ‘Referendum on Separation for England’.

    And through the prism of “Law (Scots)” sovereignty of the people is a legal principle – see Lord Cooper per MacCormick v HMA “the principle of unlimited sovereignty of Parliament is a distinctively English principle and has no counterpart in Scottish constitutional law”. That does not prevent legal commentators legitimately pointing out mechanisms of law by which Westminster could seek to derail a referendum; as I understand it, that is why Lalland Peat Worrier and Love & Garbage have raised these points. I would respectfully suggest despite their comments that there is in fact no legal impediment, but to ignore the potential arguments against which they have identified is unwise.

    1. HighlandLawyer says:

      In fact Lalland Peat Worrier has now posted a response in his own blog which confirms my understanding of his position.

      http://lallandspeatworrier.blogspot.com/2011/10/my-alignment-with-john-mcternan.html

      1. Lalland’s got it badly wrong in Axa et al vs the Scottish Government in the Supreme Court he said Axa were sure fired winners what he didn’t see was the impact of the 1689 Claim of Right, protected for all time by the 1707 Union Treaty, revisited by Lord Cooper in 1953 which states the people of Scotland are sovereign.

        One sentence from the judgement you did not see in the MSM basically saw the Supreme Court draw a line in the sand by stating that Laws and Acts passed by the Scottish Parliament must be respected. If Lalland’s and Axa were right then the Supreme Court could not have come to this decision (that is Scottish Sovereignty lies at Westminster), they could only come to this decision by agreeing that the Scottish Parliament is sovereign in line with Scots Law and constitutional norms. In effect this agrees With Lord Forsyth’s 1997 worry that a Scottish Parliament could simply vote Scotland independent which in turn renders parts of the 1998 Scotland Act concerning the rights of Westminster over Scottish sovereignty null and void.

        If Unionist MSP’s fail to re-affirm the 1689 Claim of Right in its 1988 rendition then they are liable to removal under the original statute as they will not be ‘legitimate’ in terms of Scottish constitutional practice and law.

        There is still a lot of sh1t to hit the fan on this.

  4. Alex Grant says:

    I was in Inverness to hear Eck’s speech. It was inspirational and this article continues in the same vein. We need to get this message across even if it means taking to the streets?

  5. Scottish republic says:

    I do so enjoy your articles.

    The writing style, the content, the sense.

    More often Mike if possible.

  6. Ard Righ says:

    Devolution. Devo Max. Independence lite; are all pies without meat.

    “Salmond is quite right to declare this as absolute nonsense, for which he was lambasted in our media.” Our Media???? I have never experience media with a Scottish perspective. I have only ever seen English media broadcast over these isles. Empire Empire Empire.

    The BBC needs slammed for their string pulling over the weekends abuse of impartial coverage, their slot pulling, their total lack of whole coverage of Alex Salmonds speech at Inverness and some truly obscene, twisted cut and paste editing on the “highlights” provided three days later after the event, after midnight!

    http://www.ustream.tv/channel/snp-conference-2011-inverness-scotland1

    For the DEVO uninitiated:

  7. Unionist Referendum Blues

    Squeak, squeak, Kevin McKenna Labour Unionist through and through … squeak, squeak
    Has said the SNP will win the referendum on independence … squeak, squeak
    Because the Unionists do not have a politician equal to Salmond … squeak, squeak
    Referendums are bad ….. squeak, squeak.

    Squeak, squeak , Wee Eck has done the dirty, SNP’s ‘Yes’ campaign only … squeak, squeak,
    It is up to Westminster to define what’s on offer as devo-max …. squeak, squeak,
    Westminster is in confusion ….. squeak, squeak,
    Referendums are bad ……… squeak, squeak.

    Squeak, squeak, Davidson reported by clerk threatening the ‘doing’ ….. squeak, squeak,
    Unionist Scots are loosing the plot …. squeak, squeak ,
    Newsnicht woke up last night to reality and Brewer stunned to more gibberish …. squeak, squeak, Referendums are bad …. squeak, squeak.

    Squeak, squeak ……. Scotland is too wee, too poor too stupid … squeak, squeak,
    Socialist, sectarian and violent to be allowed out on its own …. squeak, squeak …
    The Unionist mouse ignored for all its squeak, squeaking, tragedy for Scotland … squeak, squeak … Referendums are bad …. squeak, squeak.

  8. Ard Righ says:

    Squeak………

    ……….Roar

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