Normally, I wouldn’t write a whole article on some internet rando, but in a video posted on March 3, Gordon Ross, a driving instructor from Partick, who styles himself with the bad pun ‘Inde-car guy’ (on Twitter as @PartickDriver), claimed that he has been given the answers to how the SNP will conduct its second referendum campaign, directly from Mike Russell, the party’s President and former ‘Cabinet Secretary for the Constitution, Europe and External Affairs’.
As we all know, as a devolved administration, under The Scotland Act, the Scottish Government cannot run a legal independence referendum without first obtaining a Section 30 order from the UK Government. Section 30 gives the UK Government the legal power to alter the list of reserved matters which fall outside Holyrood’s powers. Such an order was granted before the 2014 referendum.
What Would Sturgeon Do?
In the 2021 Leaders’ Debate, Nicola Sturgeon said that she doesn’t want to run a ‘wildcat’ or illegal referendum without an S30:
I have said consistently all along, sometimes to criticism from people on my own side of the argument, that I would not countenance an illegal referendum, not least because it would not deliver independence. And I want Scotland, in the fullness of time, in due course, to become an independent country. And I will be responsible about that, and I will build and ultimately, I think, win the case for independence, through patient persuasion of people across the country.
In the same debate, she also told voters that a vote for her in 2021 was ‘not a vote for independence’ (only to turn around after the vote and claim it was).
- The Edinburgh Agreement, signed by Nicola Sturgeon and Alex Salmond, said the 2014 referendum was held to ‘deliver a fair test and decisive expression of the views of people in Scotland and a result that everyone will respect
- The result showed a clear majority of Scots wanted to remain in the UK
- It is a low voter priority
- A consistent threshold of 60% in polling is reached (something we reject – our country shouldn’t be up for auction by poll results)
- Now is not the time, due to COVID, Ukraine crisis, etc
But the main reason it won’t grant one is because it doesn’t have to. The Scottish Government has no way to force an S30.
A Worthless Mandate
Nationalist voters claim that the 2021 Scottish Election result, returning 64 SNP MPs (one short of a majority), gives them a ‘mandate’. But that ignores that a second referendum is outside the remit of the administration they were voting for. It would be like voting for your local council to send tanks into Ukraine: it simply doesn’t have that power.
Section 29 of The Scotland Act 1998 is quite clear about the limits of the Scottish Government’s power:
- An Act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Parliament.
- A provision is outside that competence so far as any of the following paragraphs apply—
- it would form part of the law of a country or territory other than Scotland, or confer or remove functions exercisable otherwise than in or as regards Scotland,
- it relates to reserved matters
- For the purposes of this section, the question whether a provision of an Act of the Scottish Parliament relates to a reserved matter is to be determined, subject to subsection (4), by reference to the purpose of the provision, having regard (among other things) to its effect in all the circumstances.
Note the words “to its effect”. If an advisory referendum’s aim is to effect the Constitution, a reserved matter, then it is outside the legislative competence of the Scottish devolved administration. Sturgeon and her useful idiots in the media, have fooled and continue to fool, her followers into thinking she has a power she is not entitled to.
Talk of a ‘mandate’ also ignores the fact that the Conservative Party, which is in government, also has a mandate not to grant a second referendum, a point made by Wings Over Scotland’s Stuart Campbell:
Johnson absolutely DOES have both the moral and political right to refuse. He has the political right because Westminster – as Nicola Sturgeon never tires of reminding us by refusing to countenance an “illegal” vote – is sovereign over Holyrood, and he controls Westminster. And he has the moral right because he stood for election just nine months ago on an unambiguous manifesto pledge of refusal, and he won a clear majority in the UK parliament on that manifesto…You cannot say “our manifestos and mandates count but their’s don’t” and expect anyone, let alone the international community, to take you seriously…Those competing rights represent an irresistible force and an immovable object, and you don’t shift an immovable object by sulking and stamping your feet and shouting at it that it has no right to be immovable. You have to act.
(Note that Campbell acted by giving up.)
But Campbell is wrong: these two mandates aren’t actually equal. The Scottish Government claims a mandate for a power it doesn’t have, while the UK Government claims a mandate for a power it actually has.
A Powerless Movement
So how can the Scottish Government force the issue? They could organise mass protests, but recent protests are in the hundreds, even including the dogs that tag along for the walk.
SNP MSPs could engage in some kind of passive resistance, but it would only highlight that they aren’t doing ‘the day job’. For it should be remembered that The Scottish Assembly wasn’t set up as a pathway to independence. It wasn’t set up as a talking shop for independence. It wasn’t set up as a place to foment grievance against the UK. It was set up to improve the lives of Scots. Really.
The SNP have used the past 15 years in power to lever the Scottish parliament into a forum for grievance and breaking up the UK, instead of using it to improve education, housing, crime, drug deaths, while brushing away a huge litany of scandals, crimes and misadventures under the magic carpet of ‘independence’.
We Don’t Need No Stinkin’ S30
So, if the SNP can’t force an S30 what can they do? Back to Gordon Ross in his car, somewhere in deepest Partick, and his inside track to Mike Russell. According to Ross, and assuming he’s telling the truth, Magic Mike says the SNP don’t need an S30 at all! Mike told Ross that an S30 was a ‘nicety’ and a ‘kind of gentleman’s agreement’ that is ‘merely an invitation to the UK to participate formally, and inviting it to recognise the result’.
Russell told Ross that SNP intends to not ask for an S30 and hold an ‘advisory’ referendum instead. They are not worried about ‘Unionists boycotting the vote because for them any positive result will stand, even with a lowered turnout. The result of the real referendum in 2014 will be cast aside and the advisory referendum result will also be used to say that ‘The Scottish People™ want independence’ with separatists claiming that every action taken by the UK Government to defend itself is ‘against the will of The Scottish People™’.
They are not worried about any court action by the UK Government, which Ross calls ‘a legal challenge by Boris Johnson in ‘his own Supreme Court in England’ as it ‘cannot trump Scots law’. I’ll add now, for the sake of reality, that this is false:
The UKSC can hear ‘devolution issues’, which include questions about whether a Bill or Act of Parliament, or any provision of a Bill or Act of Parliament, is within the legislative competence of the Scottish Parliament or the Northern Ireland Assembly.
According to Russell, pro-indy MPs in Westminster, who he calls ‘the legitimate, unrestricted, Scottish parliament sitting in The English Chamber’, would return to Scotland, where they would legislate to repeal the ‘voluntary’ Acts of The Union, which Ross says ‘can be repealed by either side’.
Quite how this would be done is not explained, most likely because it can’t be done. The Scottish Government, whether it has the result of its referendum in its favour or not, has no competence to legislate on reserved matters, and The Scottish Government is not a party to The Act of Union.
Ross says a Declaration of Independence would follow. Quite how an ‘advisory’ referendum can be used to do this is also not explained. The strategy amounts to: use an advisory referendum, that has as much validity as an opinion poll, as a PR tool. Then issue a Unilateral Declaration of Independence (UDI).
An Opinion Poll + UDI = Danger
UDI is a dangerous strategy that puts the anti-democratic views of a minority of separatists against the democratic wishes of the majority of Scots who voted to remain in the UK in a legal, free, fair and decisive once-in-a-generation/lifetime referendum. UDI will likely be a trigger for civil unrest and possibly violence. At this point, separatist leaders will face arrest (see Catalonia).
Ross then says the referendum result would be used to engage international agencies, citing the Scottish Sovereignty Research Group (SSRG)’s plan to join the European Free Trade Association EFTA, which is a regional trade organisation and free trade area consisting of four European states: Iceland, Liechtenstein, Norway and Switzerland. According to SSRG,:
Prior to the May  elections, the SSRG asked EFTA if the Scottish Government were to use these elections as a plebiscite for independence, would they consider this as legitimate grounds to join. They responded affirmatively, provided the Scottish Parliament affirms its sovereignty thereby acquiring the competence to negotiate international treaties, and the powers to abide by them…Once sovereignty is affirmed, Scotland can join EFTA and re-join the EEA within weeks. The four freedoms of movement Scotland lost with Brexit: people, goods, services, and capital, would be restored. EFTA has already negotiated post-Brexit trading arrangements with the UK. Scotland joining EFTA will also facilitate cross-border trade between an independent Scotland and England.
That means a hard border. By the way, a ‘plebiscite election’, the idea that a General Election can be used as a proxy for a referendum, is bogus. That’s what referendums are for. And it amounts, once again, to UDI.
The SNP would then aim to get recognition from the EU and the UN, where Ross believes that any dispute with the UK would become a matter of ‘international law’.
Russell, through Ross, says this process will take just three years. The referendum in 2023 (now apparently delayed due to the Ukraine crisis); the recall of MPs and repeal of the Acts of Union in 2024; international recognition in 2025.
Ross, and presumably Russell, see their plan unimpeachable. They say that there can be no legal challenge to an advisory referendum (there will be), that a boycott only helps them (it won’t) and that international agencies will support (unlikely). Their plan amounts to UDI, pushed through on the basis of a government run opinion poll.
Pretendyref or not, we must get ahead of the fight
Nonetheless, there is a real danger that an advisory referendum, should it go ahead, would give separatists a significant PR win. As it stands now, the UK Government is able to say that the matter was settled by Scots in favour of remaining in the UK. But a pro-independence result, even for an boycotted advisory referendum, can cause significant trouble, as political and media troublemakers and external influences use it to try to attack the UK government.
Most worryingly, by allowing these plans to go ahead, the UK and pro-UK voters will be put into a defensive position. It is vital to get ahead of their plans. This means:
- The UK Government should:
- Make clear that so-called ‘independence’ referendums are actually about breaking up the UK and affect all UK citizens.
- State that the only path to breaking up the UK is through the UK Parliament. Get a majority there and separatists can do what they like.
- Say they will aggressively fight and dedicate resources to maintaining the UK’s territorial, social economic and strategic/military integrity.
- Amend the Scotland Act to explicitly disallow any further referendums on the constitution by the devolved assemblies. Scrap Section 30 OR write into the Ministerial Code
- Remove funding and civil servants from any work on the referendum. If they persist, remove them from office, with penalty.
- Remove UK funding, such as Short Money, from the SNP and other separatist parties if they continue to advocate for the break up of the UK. (Separatist parties can raise private money if required).
- Consider banning secession, as many other countries do.
- Say that any party issuing a Unilateral Declaration of independence will have its leaders arrested
- Force the renaming of the ‘Governments’ back to Assemblies, to reflect their true status as devolved administrations
- Institute robust ‘checks and balances’ to ensure that Scots are not being deprived of rights that other regions of the UK have, and that funding is being spent effectively
- Pressure EFTA to disavow entreaties by Scottish separatists
- Institute a ‘Logan Act’ that would stop any body except the UK Government seeking or negotiating international treaties
- Ensure that any Scottish Government overseas spending is not spent on promoting the break up of the UK
- We must identify ways in which a “People’s Challenge”, by Scots, on behalf of Scots, can challenge the Scottish Government’s plans. There has been some discussion that the Lord Advocate’s decision to pass a Referendum Bill could be challenged through judicial review and we will shortly start a crowdfund to start the process by getting expert legal advice.
- We must get commitments from UK parties that they will boycott any illegal referendum. This may be challenging for Labour, but it would perhaps bolster their recent commitments to the UK.
- We must get commitments from local authorities that they will not enable an illegal referendum
The SNP will never stop agitating for a second referendum. They act like they never lost in 2014, while the UK acts like it never won. As we have found in Scotland, a country cannot move forward when it is under constant threat of breakup from a minority of separatists, especially after they were defeated in a free and fair referendum that was supposed to settle the issue decisively. It’s time to stop their divisive plans once and for all, and finally secure the peace Scots deserve.
Mark Devlin is the publisher of The Majority
We will be discussing this article and more on The Majority Podcast, every Thursday at 7pm.