Are we in a Cohen Brothers movie?

by | 20 Jun 2022

The evidence suggests that the Scottish Government's hyper-confidence that it can definitely hold an independence referendum isn't sound. Are we reaching the bottom of a spiral?

Among my favourite filmmakers of the last 40, the Cohen Brothers rank highly – I’ve been hooked since I ‘accidentally’ wandered into a screening of Miller’s Crossing at the Glasgow Film Theatre when I was a only 18.

Cohen Brother films are filled with recurring themes and character types and one of the almost ever-present character types is the desperate figure in a downwards spiral. Think John Tutturo in Miller’s Crossing, William H Macy in Fargo, Barton Fink himself, Nicholas Cage in Raising Arizona.

In each case the pattern is the same. The character tells one small lie, or engages in one minor fraud, or cheats or sells out once. This propels them into their downward spiral where they have to tell a second lie or perpetrate a second fraud to cover up the first one, then a third to cover up the second, each one an escalation. Until finally they’re cornered, desperate.

William H Macy in Fargo is the great example; he starts off with a basic number plate fraud and by the time we join him he is deliberately blunting a pile of pencils so that when he faxes the license plates numbers to the insurance company they won’t be able to read them, buying him another 24 hours. He hopes…

The reason that I mention any of this is that my familiarity with Cohen Brother anti-heroes is the only thing that is currently helping me make any sense of what is going on with the Scottish Government and referendums. I can now only see them as a character in a Cohen Brother movie, painting themselves further and further into a corner from which there is no escape.

We joined this downward spiral right at the top – a foolish and undeliverable promise made one morning in June 2016 to hold a referendum in the next 24 months. When the undeliverability of this became clear the government was left having to fabricate a way out.

And then another, and another, and another. Until, so hemmed in by the strings of exaggerations, misdirects and verbal trickery, there was nothing left to do but escalate further and further and further, each time trying to buy one more month, get through one more party conference, make it to the end of one more press conference…

It seems to me like we are reaching the bottom of this particular spiral – the promises have become more brazen, the wriggle room keeps shrinking, the caveats are still there but are weaker and weaker. Frankly the corner is now really small and yet still the painting continues.

Why do I think this? As I’ve pointed out before, nothing the Scottish Government says ever lacks total self certainty and yes, I get wobbles myself when they say things that seem to contradict the evidence but say it like they know better. So perhaps I’m wrong, but until I see otherwise I’m going to stick with the available evidence.

Let’s start with what ought to be the easy question here given that a government has made a promise to take an action next year – can they definitely deliver on that action? This is the province of the constitutional lawyer and we now have quite a number of them commenting on this, none of them is to my mind being anything less than fair and balanced.

And here’s the thing – from pro-indy sympathisers like Andrew Tickell or Aileen McHarg via people who are fundamentally positive about referendums like Matt Qvorturp to people who aren’t independence supporters but favour a democratic settlement like Ciaran Martin to someone like  David Torrance who has been constitutionally neutral since leaving journalism to anti-indy experts like Adam Tompkins, not a single one thinks it likely the SNP will win a legal challenge over a referendum.

At the moment the Scottish Government says work to find a legal path is ‘ongoing’ – which to my mind means they should not be offering ‘no ifs, no buts’ guarantees to anyone

Being (mostly) lawyers they leave open the option that there might be some kind of ‘clever legal wheeze’ that might just about somehow scrape over the legal threshold, but none thinks we can hold a referendum which would be in any way comparable with 2014.

This raises the question about whether the Scottish Government has known this for a while, and I can’t see any good answer to this question. When forced to publish any legal advice on the legality of a referendum it very visibly failed to produce any legal advice on the question whatsoever. It instead suck out a basically unrelated piece of legal advice on whether it could make preparations.

I can only come up with two possible interpretations of what that means. The first is that legal advice actually was sought but that it didn’t come back as desired – i.e. it was pessimistic about the legality. We know without doubt that the Scottish Government would have no qualms about simply concealing that evidence because it has a substantial track record of hiding documents and then lying about it.

But there is another possible explanation – that the Scottish Government deliberately didn’t ask the question. This would very strongly suggest that it knew informally that it wasn’t going to get the answer it wanted and so didn’t ask.

If either of the above are true, the implications are stark. It would mean that the Scottish Government is promising to hold a unilateral referendum it is either fully aware it cannot hold or at least strongly suspects is not legal to the extent that it would rather not ask than get knocked back.

And if that is true, the SNP membership and the wider movement have some very legitimate questions to ask about the honesty or otherwise of what we’re being promised. At the moment the Scottish Government says work to find a legal path is ‘ongoing’ – which to my mind means they should not be offering ‘no ifs, no buts’ guarantees to anyone.

Another piece of evidence may help to explain all of this. In a column in the Herald Tom Gordon spoke to an unnamed constitutional expert who raised the question of whether the Scottish Government misunderstood the ease with which it could introduce constitutionally-dicey legislation.

In his analysis there are serious questions about whether law officers and the Lord Advocate would allow a proposed piece of legislation to make it as far as being introduced if, in their view, it was not legally competent. Andrew Tickell (in the piece linked to above) suggests that it might be possible to work around this via a ‘Members Bill’ – i.e. from a backbencher rather than from government.

This is all absolutely crucial. My view has been for quite a while now that the First Minister’s strategy is to introduce legislation, invite a long court battle over its legality, lose and then grandstand about the injustice of it either to buy some more time or to create a window for a dignified exit.

That strategy falls apart completely if she is not able to introduce the legislation. Indeed that would be a very worrying development for her and the SNP leadership, leaving them going into their October conference with no prospect of a referendum and no in-built defence. It would now surely be seen as a total failure.

But what if the ‘ongoing work’ to find a legal path succeeds? What if they can introduce a piece of legislation which is either highly likely to be challenged in the Supreme Court and (most experts agree) would have a very high chance of failure or if the unionist side simply refuses to recognise it?

Show us a credible bill and get it into law before you ask the independence movement to start campaigning

Because that just about perhaps might be enough to buy the First Minister and wider SNP leadership the breathing space they desperately need – but at a very big cost. That cost is the credibility of the cause of independence.

In 2019 I wrote a paper for Common Weal called Within Our Grasp. It was written entirely from my perspective as a professional political strategist. There is a lot in it but there are two very important element which are relevant here.

The first is that achieving independence is 100 per cent a political act, not a legal one, not a constitutional one. No matter what you have been told to the contrary, there is no legal route to compel the UK to permit Scotland to become independent and no forum in which to prosecute that case even if there were. The UK is a sovereign nation and Scotland is not. That is the reality.

So even if we ‘won’ a referendum (what ‘won’ would mean in a context where only one side took part needs discussed) based on a question that went something like ‘should the Scottish Government open negotiations over independence with the UK Government’ it could presumably be met with the UK highlighting its own existing mandate not to join in.

Negotiating tables are places that you arrive at consensually which means it is a matter of politics. And the politics we have created very clearly has not compelled the UK towards that negotiating table.

Which brings me to the second point; in political campaigning it is really easy to escalate but very difficult to deescalate again. I argued in that paper that seeking to introduce a non-Section 30 Order referendum was a viable part of a strategy to increase political pressure, but that much needed to be done before that escalation. My judgement was that we needed to be confidently in the lead in the polls.

But we have escalated to that place without doing the work to earn us the right to that escalation, or at least that is my strong feeling about it. Winning elections and rattling on about mandates may be what politicians think politics is, but it is not. The Scottish Government has left it until seven years after first announcing ‘indyref 2’ before engaging with the public on independence and, if its ‘taster’ paper is anything to go by, not much effort has been put into it.

The rest of us are left marching up the hill again with a distinct possibility that we’ll be marching down for the umpteenth time. Internally that would take an enormous toll on morale and externally that will do very serious damage to our credibility.

That is all I can make of this. I cannot see any of this as anything other than a government spiralling downwards out of control, desperately trying anything it can to buy itself another 24 hours. You can imagine some junior official being asked to blunt all the pencils before faxing the legal advice out in illegible hand-written form.

There are therefore two simple tests I wish to set for the SNP leadership. First, show us a credible bill and get it into law before you ask the independence movement to start campaigning. That is surely the very least we can except after seven years of being told it is ‘just round the corner’.

And second, make it very clear to all that if you fail to get a credible referendum bill into law in time to hold a vote in 2023 you will resign. This should go without saying but I’m not sure it does.

Until then the only way I can make sense of any of what is going on is to follow the available evidence. And when I do I’m back in a Cohen Brother movie again, being promised that the cheque is in the post and that this time it won’t bounce…

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