THE PEOPLE’S ACTION ON SECTION 30

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Dear Martin 

Thank you very much for your email asking me and my fellow MPs to contribute to your fundraiser. Where I want to wish you well, and note the impressive sum that you have raised so far, I will not be making any donation. 

There are a number of concerns I have about this initiative. First and foremost is that I believe it may compromise progress towards securing our aim of independence. I also fundamentally believe that where legal actions may at some time be required, Scottish independence will be determined by political means and not through initiatives in the courts.

Where legal opinion is split on whether you may be successful, my exclusively political view looking at the available evidence, is it is unlikely to be successful. There are also further questions about whether you will be able to continue the fundraising efforts for a series of very expensive actions which may be required throughout all the necessary stages of this case. You will also be aware that the Scottish Government is not supporting this action.

But it is the likelihood of failure that I want to highlight as my main concern.

There are many good reasons why both sides in this debate have left this issue unresolved. For the independence case, having this tested (at this stage) and the prospect of losing it now could be disastrous for our independence prospects. The first response from unionists following a defeated action would be of unbridled jubilation. Where they are currently losing the argument, whilst having to observe support for independence at a sustained majority for the first time in our history, securing a judgement that a Scottish designed independence referendum is ‘illegal’ might just gift them a boost to their moribund campaign. 

Secondly, if the UK Government were to continue to refuse to participate in a properly constructed ‘legal’ referendum, agreed by both sides, we might need to use a Scottish based referendum as either a tactic to force them to an arrangement or as a basis of a campaign to resolve the issue. If it is already declared ‘illegal’ this will not be available to us. Where I note that you and your supporters take a fairly casual and cavalier approach to any defeat what you may be doing is creating a legal cage for a Scottish designed referendum and then have that referendum permanently locked inside it. 

I do however note that you may be successful, and even if I personally believe that to be unlikely, that would indeed be a positive outcome. However that satisfaction might be short lived. Firstly we would still require the UK to participate in a referendum to supply a ‘No’ case and we would further require them to recognise any result to secure a legal basis to the referendum and to have it internationally recognised. There are also further legal hurdles in the Scotland Act 1998 to overcome about reservations in relation to the constitution. Secondly, and perhaps more importantly, any legal judgement will detail the provisions on which any action is successful. There is nothing to stop the UK subsequently amending the Scotland Act to make a referendum retrospectively illegal. This is exactly what they did in relation to the Scottish Parliament’s Continuity Bill and there is no reason to believe they wouldn’t do it again. A court ‘victory’ therefore may take us no further forward than we are now.

Finally, the letter you sent me barely made any sense referring variously to issues of popular ‘sovereignty’ and a ‘Section 30’ order. I believe that recognised legal authorities have already pointed out to you that neither of these issues have anything to do with the action you are raising. Your action is exclusively about whether Holyrood legislating for an independence referendum “relates to a reserved matter” under the Scotland Act. A Section 30 Order and ‘sovereignty’ are not detailed in your action and have nothing to do with your intended court case.

I know that independence supporters are desperate to see their nation secure its rightful place in the community of nations and are looking for anything that might secure some sort of shortcut to achieving that. However, those of us elected to secure independence for our nation have a responsibility to detail reservations we may have on particular plans and proposals and highlight some of the difficulties that might emerge from pursuing certain actions. I’m afraid that your action does not provide a helpful way forward and presents just far too many risks. For those reasons I will not be contributing to your fund-raising  appeal. 

18 thoughts on “THE PEOPLE’S ACTION ON SECTION 30

  1. Colin Guthrie-Dawber

    Good shout Peter.
    A coherent explanation that now provides this English supporter of independence with further verbal ammo to fire at my Unionist Acquaintances.
    I shall sit tight and await the day, just don’t leave it too long as at 61 I want to be around to enjoy it.

    Reply
  2. aLurker

    “Firstly we would still require the UK to participate in a referendum to supply a ‘No’ case ”

    Have you considered Peter that ‘requiring’ the British State to participate in the self determination of the Scottish Nation is in itself obviously a questionable proposition to anyone who actually believes in Self Determination?

    “and we would further require them to recognise any result to secure a legal basis to the referendum and to have it internationally recognised. ”

    Have you considered Peter that when the right of Self Determination is excercised by a Nation, it is explicitly NOT the case that that a legal basis is required to be recognised by the colonial state, and that in fact it is the norm for the Right of Self Determination to be recognised by the international community WITHOUT the recognition of the colonial state?

    Reply
    1. Terry Entoure

      The right to self determination is not the same as a right to a secession referendum. In international legal circles, it is considered that Scotland already exercises self determination through Holyrood.

      There is no international law on self determination beyond rights acquired by Non Self Governing Territory status. There are UN declarations and formal comments that set out caveats based on representation but these condtiions do not apply to Scotland. They also have the status of declarations and formal comments and definitely not of laws arising from ICJ rulings. Scotland is not a Non Self Governing Territory.

      Just for the purposes of clarity: Scotland is not a colony. We have represenation at Westminster and at Holyrood. Representation is the key difference between being a colony and being the opposite of a colony. Any argument predicated on colonial status is doomed to fail.

      Reply
  3. Ian C

    Pandering to unionists rather than their own support seems to be a feature of senior SNP officials. Yes, unionists will be jubilant if the action fails – god knows, they don’t have much to be cheerful about – but it will not translate into a reduction in pro-independence support.

    The fact is the British Government has never and will never agree to anything that could further independence especially when it is within what it considers to be its own territory. In their eyes, the matter is non-negotiable. Your continued reliance on the Brits to, in the end, relent and become a willing partner in the break-up of the United Kingdom is precisely the reason why people like Martin and dare-I-say the majority of independence supporters feel they have no choice but to act.

    Perhaps if the SNP did what unionists are doing and actually do something to further their cause rather than expend energy on things that most independence supporters see as unnecessary or a lower priority then they might feel that they do not have to.

    Reply
  4. lexicalluthor

    This is all very confusing for the layman. I’m left not knowing what to think is best anymore. Never was much good at the game of Chess yet this is the comparison that springs to mind. I think though that the Scottish Government needs to be a little more proactive in their attempts to allay the fears of independence supporters like me – fears of being “shafted” by Westminster (please forgive the crude parlance). I don’t have a crystal ball but I do fear for what may happen out on on the streets, regardless of the outcome. My support is still with the SNP and if they consider this action to be folly, then by default, I cannot in all conscience give my support for the court action either. United we stand.

    Reply
  5. 100%Yes

    I would like to point out that if this action fails it won’t be the fault of the people who have taken the action but the SNP and its leader (Sturgeon) who has been given 5 mandates and has ignored every single one and since 2014 has done nothing to further the cause of Independence other than to tell the Yes movement to disband and not to talk about Indyref2, Scotland has never ever been in such a fantastic place as it is today with two opinion polls saying Independence is at 54% and 55% and what is our FM doing nothing she couldn’t be bothered. I reckon the SNP are losing members left right and center and Pete if there isn’t a referendum in 2021-2022 the SNP will be finished for good so you can kiss goodbye to your hopes of becoming the next Speaker of the House commons.

    Reply
    1. lexicalluthor

      Your frustration and impatience is very apparent and your language is direct. However, none of your points negate the points that Pete has made. The court action seems to me to be a gamble not worth taking, especially if losing would ultimately be extremely detrimental to the independence cause.

      Reply
  6. Picti Scotti

    Mr. Keatings, self appointed advocate for the IndyCamp on the grass. Oh and a ‘socialist’ Party, whichever one, stooge. Nice little earner coat-tailing and self-aggrandising on the back of the Independence Zeitgeist.

    Reply
  7. martinjameskeatings

    Dear Mr Wishart,

    Thank you for your response, which I note did not extend the common courtesy of being reciprocated in the same manner in which it was sent to you, namely directly. I note your discourtesy and your choice to utilise it for your own political partisanship instead of actually responding in kind like a civilised adult.

    Sincerely

    Martin Keatings

    Reply
    1. lexicalluthor

      I had been in some doubt before about the correct way forward in this regard. However after reading your response to Pete Wishart, you have quickly made the choice considerably easier. I’ll remain loyal to the SNP.

      Reply
  8. martinjameskeatings

    Further to your comments, however, allow me to explain that when it comes to the matters at hand, I put my trust in the legal team we have and more importantly, the QC who is one of the leaders in the field of such actions. Not just that, but the legal team who successfully argued the Article 50 case under Wightman and the unlawful prorogation case for Joanna Cherry.

    I put their credentials above yours any day!

    Reply
    1. Terry Entoure

      Nobody has doubts about the legal team but this is problem wtih legal and political dimensions. The doubts are entirely about the political strategy beyond the litigation and the ability of Forward As One to develop that strategy and to understand their own litigation. As an example, the original campaign to sue the UK government was just daft. Donations should never have been solicited for such a hopeless case. Forward as One should not be writing letters claiming they are defending the “sovereign right of the people within Scotland’s borders to define their own constitutional future”. The litigation is demonstrably not about any of that.

      The Cherry case was co-litigated by the Good Law Project, an established legal charity with extensive litigation experience. The Millar case was largely pro bono. When I look at the qualities of the litigants in these two cases and the aims served by their litigation, I just don’t see any of this in your campaign.

      Reply
  9. john

    Pete argues against Martin and his team doing something to move forward whilst he and the SNP have had 4 mandates to do something. You can not keep asking the people to give you a mandate if you cannot use it because Westminster says no. in the end you must seek to move forward in another way. Martin is doing this and you are not.

    Reply
  10. yesindyref2

    This article about “I won’t contribute because …” totally misses the point that because the fundraiser is heading for its target, Martin Keatings decided to go ahead anyway. So all Peter Wishart is doing is advising leaving the risk of being out of pocket with Keatings, rather than actually stopping the action going ahead.

    I’m sure when Pete Wishart realises that, he will reconsider …

    Reply
  11. Ian Wilson

    Irrespective of the route to request a referendum ultimately Boris Johnson will continue to say “No”.
    Believing he can be morally embarrassed in to changing his attitude towards the people of Scotland based on a majority vote next year is naive at best. He will not want to willing be the last PM of the British Empire.
    Ultimately I suspect it is going to take a series of court cases and probably end up at the international court in the Hague, so why not start now. We must understand the legal arguments and adapt our argument until eventually we succeed. What is the alternative!

    Reply

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