I am a layman. I am no kind of legal expert. I certainly don’t possess the level of knowledge and understanding that Andrew Tickell brings to this matter. And yet many of the points Andrew makes in his column in the Sunday National tend to support what I have been saying for months about the so-called ‘People’s Action on Section 30’. I say this not to make myself out to be some kind of sage. As I’ve already stated, I have no education or expertise in the law. I say it to highlight the fact that no such knowledge or expertise is necessary in order to see the problems with this ‘initiative’. What Andrew Tickell does here is add the insights and observations of a legal expert to an understanding of the issue that was always accessible to anyone who cared to think the matter through. Anyone who cared to ask the questions.
The first of those questions is ‘why’. Why is this being done – or proposed? What is its purposed? What does it purport to achieve if successful? What does it potentially cost if it fails? As Andrew graciously avoided pointing out, the objective, dispassionate answers to these questions reveal the ‘initiative’ to be just plain daft. It is not necessary. It does not address any pressing need. If this action was not taking place at all we would not feel its lack. It is not sufficient. It doesn’t actually do anything useful. It most likely won’t do anything at all. And, from an objective, dispassionate point of view, doing nothing at all might be the best outcome we could hope for. Because if it does anything then what it does is likely to be detrimental to Scotland’s cause.
With all the considerable respect that is due to Andrew Tickell, I will make so bold as to suggest that while he brings a legal mind to bear on this matter, I bring a certain capacity for analytical thinking on the political ramifications rather than the strictly legal ones. I would venture to put this perspective ‘out there’ for consideration.
The arguments Andrew makes to expose – but not state – the essential daftness of the ‘initiative’ stand on their own rather obvious merit. There is no need to be asking the question at this time. There is almost certainly no need to be asking the question at all. Even if the question must be asked it should not be asked now and it should not be asked on behalf of the Yes movement. Where I disagree – or at least part company with – Andrew is when he states with more emphaticness than is perhaps typical of a lawyer that “it isn’t about the legal status of popular sovereignty in Scotland”.
Oh yes it is!
I would contend that the question of whether the Scottish Parliament has the competence to authorise a constitutional referendum cannot possibly be divorced from the issue of sovereignty. If the Scottish Parliament possesses the competence authorise a plebiscite on the question of Scotland’s constitutional status then it can only be as a function of the sovereignty of the Scottish people. Where else might this authority derive from?
The concept of popular sovereignty maintains that the people are the source of all legitimate political authority. If the Scottish Parliament has the legitimate authority to sanction a referendum to confirm or alter the constitutional status of the nation, then that authority can only be held as a necessary implication of the democratic legitimacy that is, in turn, a necessary implication of the Scottish Parliament being democratically elected by Scotland’s people.
It inevitably follows, therefore, that a finding by the court that the Scottish Parliament does not possess the competence to authorise such a constitutional referendum is necessarily a finding that the people of Scotland are not sovereign. Because if the people of Scotland are sovereign then the democratic legitimacy they bestow on the Scottish Parliament – AND NO OTHER – provides an authority that cannot be superseded by any legal or political institution unless that institution has the democratic legitimacy which can only come from being elected by the sovereign people of Scotland.
Even to ask the question is to imply the matter of the sovereignty of Scotland’s people is subject to the finding of a court. Which is to allow that the people of Scotland are not actually sovereign.
Even with this different – or additional? – perspective, the conclusion is the same. Andrew Tickell and I may diverge on the matter of popular sovereignty. But I am in total agreement that the deceivingly named ‘People’s Action on Section 30’ is a very bad waste of good cash. And, I would add, just plain daft!
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