Independence is political, not legal

by | 13 Oct 2022

Don't worry about the Supreme Court - it makes little difference which way the decision goes. Watch the 'economic case' coming out on Monday. If it isn't good, we're in trouble.

I struggle greatly to care much about the Supreme Court indyref case. I don’t believe the outcome makes all that much difference to the actual prospects of achieving Scottish independence. That’s because I firmly believe that independence is a political act not a constitutional or legal one. So what I am much more focussed on is the likelihood that, by Monday, the prospects of independence will be knocked back on its heels.

So let me try and unpack all of that for you.

First, I view the whole Supreme Court case as a kind of vanity project there to delay further the moment the independence movement loses confidence in the First Minster. I say this for a very specific reason – win or lose the case there won’t be a referendum. If it goes our way the No side will boycott a referendum, making it almost impossible to ‘win’. Which means the FM will run a mile from it.

(I was involved in a meeting of a group of respected Scottish political strategist looking at this issue and I didn’t even need to share the above opinion because it was already the unanimous view of the group.)

To explain further my perspective I want to take you right back to ‘what independence means’. In recent years a frustrated and under-occupied independence movement has taken to exploring lots of alternative routes to independence. This has led people to believe there is a legal definition of independence.

That is wrong. There are some things you must have to be legally independent (like ‘legal personality’, the state of being able to enter into international legal agreements). But having these things doesn’t make you legally independent. In fact, nothing does – there is no international legal definition of independence and certainly no binding one. Nor is there any binding right to be independent.

The best way to think of being independent is that you are it when everyone thinks you are it. It is mainly a perception; Kosovo isn’t functionally part of another country but no-one treats it like an independent county for geopolitical reasons so it is stuck in a ‘phantom zone’, not part of a country, unable to join the United Nations.

That’s the best measure of ‘independence’ we have – generally if you are a member of the United Nations everyone just behaves like you are independent. To join the United Nations you need two thirds of the members to approve you in a vote. Plus you need the approval of the Security Council.

The best way to think of being independent is that you are it when everyone thinks you are it

So what will get you that support? One thing; recognition by the UK. If the nation state from which you are seceding recognises you, under usual circumstances, so will everyone else. Certainly the US would and that would largely be ‘job done’. It’s possible without recognition, but it’s really, really hard. Just assume that we need it.

Which is to say Scotland’s independence is best achieved through a recognition agreement with the UK and everything else is just a mechanism for getting them to the negotiating table. This is why I get so frustrated with all the talk of referendums. Undoubtedly a mandate in a mutually-agreed referendum is the best way to get the UK to the negotiating table, but it is not the only way.

Even more than that, it is not the referendum which matters, it’s what referendums demonstrate – public support. Which is to say a referendum is only a way of demonstrating public support. In the end it is public support that makes you independent – well, public support and a plan for converting that into a recognition agreement from the nation from which you are seceding.

And this is what irritates me so much about the whole independence debate just now – we can grandstand at the Supreme Court (or wave a white flag which appears to be what is happening). We can pick apart the Act of Union with a fine tooth comb. We can invent ‘plebiscite elections’ or whatever we want. It all – all – requires one irreducible thing. Public support.

And we don’t have it. We don’t have public support. We don’t have reliable, clear, sustained, measurable support from the Scottish public for independence yet (it’s still effectively 50/50) and we definitely don’t have support for rushing into a referendum before we’ve got support (barely one in three members of the public are behind us on a referendum next year).

From that position we are powerless. We can ask a Supreme Court to give us power to hold referendums but even if we win, the politics states that the other side can boycott and ignore us without consequence. We can whine to our heart’s content about what’s no’ fair. We can craft clever soundbites or we can produce lengthy spurious pseudo-legal essays.

But… none of it amounts to a hill of beans because we’ve not won the politics. The independence movement has devolved into a fragmented mess, the activists still engaged just doing anything they can and the rest of the space dominated by individuals and organisations jostling for control and money.

Our whole problem is summed up in the phrase ‘day of action’, as if what you do in one day changes minds, as if it is a lack of leaflets of bar graphs and pretty pictures which stands between us and independence. It isn’t, because we haven’t won the politics.

And why haven’t we won the politics? Because we haven’t answered the questions. We bluff, we make things up on the hoof, we dodge and divert, we distract and engaged in world-class whataboutery. But we don’t answer. Or actually worse, we think that soundbites and answers are the same thing. (And by ‘we’ I obviously only mean the politicians. Plenty of people can actually answer the questions…)

If this lot could win over the public, one presumes they’d have won over the public – and until we do that, the rest is noise

Of course on Monday we’re supposed to get answers, and my guess is that’s going to be the game over for just now. Because from what I’ve heard so far what we’re getting is more soundbites and not a jot of substance. It sounds like it is going to be a jumble of barely-reheated bad ideas.

If you think we can win over Scotland pretending that being Sterlingised over the last four weeks wouldn’t have been a massive crisis you’re nuts. If you think we can get away with pretending a cookie jar and a central bank are the same thing, you’re wrong.

If you think we can wish away deficits, create an oil fund that we are spending as we ‘create it’ (i.e. pretending revenue is a ‘fund’), you need to do some arithmetic. And if you think it’s credible to suggest that an independent Scotland can establish itself, cope with the transition from being regional to national economy and address struggling public services and the climate crisis and still limit borrowing to one per cent of GDP for the first decade – well, words fail me.

Yet that is what it looks like we’re getting on Monday. Every square inch of it looks like someone is trying desperately to avoid a U-turn despite driving fast up a dead end. This isn’t about winning the politics of independence, this is about saving face for a group of politicians who are failing at almost everything they do.

That’s the reality. That’s the simple fact of it. The simple fact of it is we are leaving the cause of independence to a group of people who have told us over and over that they and only they know how to win over the public yet in nearly a decade have failed to do it. And still they tell us it and still we seem to accept it. If this lot could win over the public, one presumes they’d have won over the public.

And until we do that, the rest is noise. No-one is giving us a referendum until we force them. No-one is participating in a referendum we hold until we force them. No-one is coming to the negotiating table until we force them.

To force them we have to win the public, and to win the public we have to win the politics. Everyone is looking for shortcuts and there aren’t any.

Independence will not be won in the Supreme Court. It will not be won in SNP HQ or on the floor of the Scottish Parliament. It won’t be won at a street stall or by knocking a door. It will be won in the imaginations of the people of Scotland. They need to be able to imagine that Scotland would be better off independent, and for them to do that they need answers and inspiration.

If what happens on Monday is what it seems is going to happen on Monday, if we get a reheated Growth Commission, we will be selling a case that can’t be sold, one that absolutely no-one in the independence movement not on the SNP payroll supports. So we will lose the politics until we can throw the whole lot out again and start over.

Don’t watch the Supreme Court, watch what the Scottish Government publishes. If your heart sinks when you do, your heart is probably right.

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